PERSONS & FAMILY RELATIONS
Persons and Personality ..... 10
Effect and Application of
Laws ........................................ 2
WHEN LAWS TAKE EFFECT ................................. 2
IGNORANCE OF THE LAW .................................. 2
RETROACTIVITY OF LAWS .................................. 2
ACTS CONTRARY TO LAW ................................... 2
WAIVER OF RIGHTS ............................................ 2
REPEAL OF LAWS ............................................... 2
TWO KINDS OF REPEAL OF LAW ................................... 2
JUDICIAL DECISIONS .......................................... 2
DUTY TO RENDER JUDGMENT ............................ 3
PRESUMPTION AND
APPLICABILITY OF CUSTOM ............................... 3
LEGAL PERIODS .................................................. 3
POLICY ON LAST DAY BEING A LEGAL HOLIDAY/SUNDAY ... 3
APPLICABILITY OF PENAL LAWS ........................ 3
EXEMPTIONS UNDER INTERNATIONAL LAW (THEORY OF
EXTRATERRITORIALITY) ............................................ 3
CONFLICT OF LAWS ............................................ 3
CONFLICT OF LAWS/ PRIVATE INTERNATIONAL LAW ........ 3
SOURCES ............................................................... 3
EXAMPLES OF CONFLICT OF LAW
RULES IN THE PHILIPPINES......................................... 3
RULE ON PROPERTY ................................................. 4
RULE ON SUCCESSION............................................... 4
RULE ON EXTRINSIC VALIDITY OF CONTRACTS ................ 5
SPECIAL CONFLICT OF LAW RULES .................... 5
MARRIAGE ............................................................. 6
DIVORCE AND SEPARATION ........................................ 8
ANNULMENT AND DECLARATION OF NULLITY ................. 8
Human Relations .................. 8
ABUSE OF RIGHT ................................................ 8
ACTS CONTRARY TO LAW ................................... 9
ACTS CONTRA BONUS MORES ........................... 9
PRINCIPLE OF UNJUST ENRICHMENT................. 9
CAPACITY TO ACT .............................................. 10
CIVIL PERSONALITY ................................................. 10
RESTRICTIONS ON CAPACITY TO ACT ........................... 10
DOMICILE AND RESIDENCE OF PERSON ........... 13
FOR NATURAL PERSONS .......................................... 13
FOR JURIDICAL PERSONS ......................................... 13
DOMICILE VS. RESIDENCE ......................................... 13
REQUISITES OF DOMICILE ......................................... 13
KINDS OF DOMICILE ................................................ 13
Family Code ..........................13
Marriage ...............................13
REQUISITES ....................................................... 13
NATURE OF MARRIAGE ............................................ 13
KINDS OF REQUISITES ............................................. 13
EFFECT OF ABSENCE OF REQUISITES ........................... 13
ESSENTIAL REQUISITES ............................................ 13
EFFECT OF MARRIAGES CELEBRATED
ABROAD AND FOREIGN DIVORCE ..................... 16
MARRIAGES CELEBRATED ABROAD ............................. 16
PROOF OF FOREIGN MARRIAGE.................................. 16
FOREIGN DIVORCES ................................................ 16
VOID AND VOIDABLE MARRIAGES .................... 16
PRESUMPTION OF MARRIAGE .................................... 16
VOID MARRIAGES ................................................... 17
ACTION OR DEFENSE OF NULLITY .............................. 20
ANNULLABLE MARRIAGE .......................................... 21
EFFECT OF PENDING ACTIONS/DECREE ...................... 24
EFFECTS OF NULLITY .............................................. 24
Legal Separation .................24
GROUNDS FOR LEGAL SEPARATION................ 24
ACTS OF VIOLENCE ACCORDING TO RA 9262 ............... 25
DEFENSES ........................................................ 26
GROUNDS FOR DENYING LEGAL SEPARATION .............. 26
COOLING-OFF PERIOD
AND RECONCILIATION EFFORTS...................... 26
CONFESSION OF JUDGMENT ............................ 26
EFFECTS OF FILING PETITION .......................... 26
EFFECTS OF PENDENCY ................................... 26
EFFECTS OF LEGAL SEPARATION..................... 26

RECONCILIATION ............................................. 27
HOW DONE ........................................................... 27
EFFECTS OF RECONCILIATION ................................... 27
ANNEX TO VOID AND VOIDABLE
MARRIAGES AND LEGAL SEPARATION ............ 27
GROUNDS ............................................................ 27
EFFECTS OF FILING / PENDING DECREE ....................... 27
EFFECTS OF AFFIDAVIT OF REAPPEARANCE, JUDICIAL
DECLARATION OF NULLITY, ANNULMENT AND LEGAL
SEPARATION ........................................................ 28
Rights and Obligations
between
Husband and Wife .............. 28
ESSENTIAL OBLIGATIONS ................................ 28
FAMILY DOMICILE ............................................ 28
SUPPORT .......................................................... 29
MANAGEMENT OF HOUSEHOLD ....................... 29
EFFECT OF NEGLECT OF DUTY .......................... 29
EXERCISE OF PROFESSION ............................... 29
Property Relations of the
Spouses ................................29
MARRIAGE SETTLEMENTS ............................... 29
MARRIAGE SETTLEMENT RULES ................................ 29
DONATIONS BY REASON OF MARRIAGE .......... 30
DISTINGUISHED FROM ORDINARY DONATIONS .............. 31
ABSOLUTE COMMUNITY OF PROPERTY
AND CONJUGAL PARTNERSHIP OF GAINS ........ 31
COMPARISON OF ACP AND CPG .................................. 31
SEPARATION OF PROPERTY OF THE SPOUSES
AND ADMINISTRATION OF COMMON PROPERTY
BY ONE SPOUSE DURING THE MARRIAGE ........ 38
JUDICIAL SEPARATION OF PROPERTY MAY EITHER BE
VOLUNTARY OR FOR SUFFICIENT CAUSE ..................... 38
PROPERTY REGIME OF UNIONS
WITHOUT MARRIAGE ....................................... 39
The Family........................... 40
THE FAMILY AS AN INSTITUTION ..................... 40
ASPECTS OF FAMILY RELATIONS ............................... 40
FAMILY RELATIONS INCLUDE ................................... 40
EXCEPTIONS TO THE GENERAL RULE – CANNOT BE SUBJECT
OF COMPROMISE ................................................... 40
THE FAMILY HOME .......................................... 40
CONSTITUTED BY .................................................. 40
INCLUDES ............................................................ 41
GUIDELINES .......................................................... 41
BENEFICIARIES OF THE FAMILY HOME ......................... 41
REQUISITES TO BE A BENEFICIARY .............................. 41
REQUIREMENTS FOR THE SALE, ALIENATION, DONATION,
ASSIGNMENT, OR ENCUMBRANCE OF THE FAMILY HOME . 41
REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER
ARTICLE 160 ......................................................... 41
Paternity and Filiation .........42
KINDS OF FILIATION ........................................ 42
LEGITIMATE CHILDREN .................................... 42
WHO ARE LEGITIMATE CHILDREN .............................. 42
WHO ARE ILLEGITIMATE CHILDREN ............................ 42
IMPUGNING LEGITIMACY ......................................... 42
ACTION FOR IMPUGNING LEGITIMACY ........................ 43
PROOF OF FILIATION........................................ 43
ACTION FOR CLAIMING FILIATION .............................. 44
RIGHTS OF LEGITIMATE CHILDREN ............................ 44
ILLEGITIMATE CHILDREN ................................. 44
ACTION FOR CLAIMING FILIATION .............................. 44
RIGHTS OF ILLEGITIMATE CHILD ................................ 45
LEGITIMATED CHILDREN.................................. 45
TO BE CAPABLE OF LEGITIMATION ............................. 45
PROCEDURE ........................................................ 45
GROUNDS FOR IMPUGNING LEGITIMATION ................. 45
RIGHTS ............................................................... 45
IMPUGNING LEGITIMATION ...................................... 45
Adoption.............................. 46
RA 8552 – DOMESTIC ADOPTION LAW ............. 46
WHO CAN ADOPT ................................................... 46
WHO CAN BE ADOPTED ........................................... 46
PRE-ADOPTION PROCEDURES .................................. 47
ADOPTION PROCEDURES......................................... 47
WHO MAY NOT ADOPT/ BE ADOPTED ......................... 48
RIGHTS OF AN ADOPTED CHILD ................................. 48
RESCISSION OF ADOPTION ....................................... 48
RECTIFICATION OF SIMULATED BIRTH......................... 49
RA 8043 – THE LAW ON INTER-COUNTRY
ADOPTION ........................................................ 49
INTER-COUNTRY ADOPTION ..................................... 49
WHO CAN ADOPT ................................................... 49
WHO CAN BE ADOPTED ........................................... 50
Support ............................... 50
WHAT IT COMPRISES ....................................... 50
WHO ARE OBLIGED ........................................... 50
TO SUPPORT EACH OTHER ....................................... 50
PROPERTIES ANSWERABLE FOR SUPPORT ....................51
ORDER OF SUPPORT ................................................51
STRANGER GIVES SUPPORT.......................................51
PERSON OBLIGED REFUSES OR FAILS TO GIVE SUPPORT ..51
CONTRACTUAL SUPPORT OR THAT GIVEN BY WILL ..........51
SUPPORT DURING MARRIAGE LITIGATION ......51
AMOUNT .......................................................... 52
WHEN DEMANDABLE ....................................... 52
OPTIONS .......................................................... 52
ATTACHMENT .................................................. 52
Parental Authority ...............52
GENERAL PROVISIONS ..................................... 52
PARENTAL AUTHORITY INCLUDES ............................. 52
PARENTAL AUTHORITY AND RESPONSIBILITY MAY NOT BE
RENOUNCED OR TRANSFERRED EXCEPT IN THE CASES
AUTHORIZED BY LAW .............................................. 52
CASES WHEN PARENTAL AUTHORITY AND RESPONSIBILITY
MAY BE TRANSFERRED OR RENOUNCED...................... 52
RULES AS TO THE EXERCISE OF PARENTAL AUTHORITY ... 52
CHARACTERISTICS OF PARENTAL AUTHORITY............... 52
PARENTAL PREFERENCE RULE .................................. 52
WHO EXERCISES AUTHORITY IN CASES OF DEATH,
ABSENCE, UNSUITABILITY, REMARRIAGE, OR SEPARATION
OF PARENTS ......................................................... 52
DESCENDANT’S PRIVILEGE OF REFUSAL TO TESTIFY ....... 53
TENDER YEARS PRESUMPTION ................................. 53
SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY ...................................................... 53
PERSONS EXERCISING SUBSTITUTE PARENTAL AUTHORITY
IN DEFAULT OF PARENTS OR JUDICIALLY APPOINTED
GUARDIAN ........................................................... 53
SUBSTITUTE PARENTAL AUTHORITY OVER DISADVANTAGED
CHILDREN ............................................................ 53
PERSONS EXERCISING SPECIAL PARENTAL AUTHORITY ... 53
LIABILITY OF THOSE EXERCISING SPECIAL PARENTAL
AUTHORITY OVER THE CHILD ................................... 53
EFFECT OF PARENTAL AUTHORITY UPON THE
PERSONS OF THE CHILDREN............................ 54
RIGHTS OF PARENTS UPON
THE PERSON OF THE CHILDREN ................................ 54
DUTIES OF PARENTS UPON
THE PERSON OF THE CHILDREN ................................ 54
SUBSTITUTE REPRESENTATION ................................ 54
COURT ASSISTANCE IN THE DISCIPLINE OF THE CHILD .... 54
EFFECTS OF PARENTAL AUTHORITY UPON THE
PROPERTY OF THE CHILDREN.......................... 54
PROCEDURE IN THE APPROVAL OF THE PARENT’S BOND 54
OWNERSHIP OF CHILD’S ACQUISITIONS ...................... 55
PARENT’S USUFRUCT ............................................ 55
WHEN PARENTS ENTRUST THE MANAGEMENT OF THEIR
PROPERTIES TO A CHILD ......................................... 55
SUSPENSION OR TERMINATION OF PARENTAL
AUTHORITY ...................................................... 55
RA 7610 – CHILD ABUSE LAW ........................... 55
PARENTAL AUTHORITY PERMANENTLY TERMINATES ..... 55
TERMINATION OF PARENTAL AUTHORITY WHICH CAN BE
REVIVED BY FINAL JUDGMENT .................................. 55
GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY . 55
SCOPE OF SUBSTITUTE AND
SPECIAL PARENTAL AUTHORITY ................................ 55
RA 7610 – CHILD ABUSE LAW .................................. 55
Emancipation, as amended
by RA 6809 ......................... 55
Summary Judicial
Proceedings in the Family
Law ...................................... 56
PROCEDURAL RULES PROVIDED FOR
IN THIS TITLE SHALL APPLY TO ........................ 56
SEPARATION IN FACT ...................................... 56
SEPARATE CLAIM FOR DAMAGES............................... 56
JURISDICTION ....................................................... 56
NOTIFICATION TO OTHER SPOUSE ............................. 56
PROCEDURE ......................................................... 56
WHEN APPEARANCE OF SPOUSES REQUIRED ............... 56
NATURE OF JUDGMENT ........................................... 56
RULES APPLICABLE FOR ADMINISTERING
OR ENCUMBERING SEPARATE PROPERTY OF SPOUSE .... 56
INCIDENTS INVOLVING
PARENTAL AUTHORITY .................................... 57
PROCEDURE ......................................................... 57
Retroactive Effect ................ 57
RETROACTIVE EFFECT ...................................... 57
INVALIDITY OF OTHER PROVISIONS ................. 57
Funeral ................................. 57
NATURE OF FUNERAL ............................................. 57
GUIDELINES IN MAKING FUNERAL ARRANGEMENTS ....... 58
Use of Surnames ................ 58
SURNAMES OF CHILDREN ................................ 58
WIFE AFTER AND DURING MARRIAGE ............. 58
CONFUSION AND CHANGE OF NAMES ............. 58
Absence ............................... 59
PROVISIONAL MEASURES
IN CASE OF ABSENCE ....................................... 59
PRESUMPTION IN THE RULES OF COURT ...................... 59
REQUISITES ......................................................... 60
WHO MAY BE APPOINTED AS REPRESENTATIVE ............. 60
DECLARATION OF ABSENCE ............................. 60
WHEN MAY A DECLARATION OF ABSENCE BE DECLARED . 60
WHO MAY ASK FOR A DECLARATION OF ABSENCE ......... 60
ADMINISTRATION OF THE
PROPERTY OF THE ABSENTEE.......................... 60
WHO MAY ADMINISTER THE PROPERTY ...................... 60
WHEN WILL THE ADMINISTRATION OF PROPERTY CEASE ..61
PRESUMPTION OF DEATH .................................61
EXTRAORDINARY ABSENCE .......................................61
Civil Registrar....................... 61
RA 9048 AS AMENDED BY RA 10172 ................. 62
GROUNDS ............................................................ 63
RULE 108, RULES OF COURT ............................ 63
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY .................................... 63
WHO MAY FILE PETITION ......................................... 64
ENTRIES SUBJECT TO CANCELLATION ......................... 64
PROPERTY
Characteristics .................... 66
Classification ....................... 66
HIDDEN TREASURE .......................................... 66
BASED ON MOBILITY –
IMMOVABLE OR MOVABLE ............................... 66
REAL OR IMMOVABLE PROPERTY .............................. 66
PERSONAL OR MOVABLE ........................................ 68
IMPORTANCE AND SIGNIFICANCE OF CLASSIFICATION
UNDER THE CIVIL CODE ........................................... 68
BASED ON OWNERSHIP ................................... 69
PUBLIC DOMINION ................................................. 69
PRIVATE OWNERSHIP ............................................. 70
BASED ON CONSUMABILITY............................. 70
CONSUMABLE ....................................................... 70
NON-CONSUMABLE ............................................... 70
SUSCEPTIBILITY TO SUBSTITUTION ................. 70
FUNGIBLES .......................................................... 70
NON-FUNGIBLES .................................................. 70
BASED ON THE CONSTITUTION ......................... 71
OTHER CLASSIFICATIONS ................................. 71
BY THEIR PHYSICAL EXISTENCE .................................. 71
BY THEIR AUTONOMY OR DEPENDENCE ....................... 71
BY SUSCEPTIBILITY TO DETERIORATION ....................... 71
BY REASON OF THEIR SUSCEPTIBILITY TO DIVISION......... 71
BY REASON OF DESIGNATION .................................... 71
EXISTENCE IN POINT OF TIME .................................... 71
Ownership ............................. 71
DEFINITION ....................................................... 71
RIGHT IN GENERAL ........................................... 71
RIGHTS INCLUDED IN OWNERSHIP .............................. 71
BUNDLE OF RIGHTS ................................................. 71
PROTECTING PROPERTY ................................... 71
BASIC DISTINCTIONS ............................................... 71
REMEDIES.............................................................72
RIGHT TO RECOVER POSSESSION................................72
LIMITATIONS ON OWNERSHIP ..........................72
LIMITATIONS ON THE RIGHTS OF OWNERSHIP
PROVIDED BY LAW .................................................72

Accession ............................. 74
CLASSIFICATION OF ACCESSION ...................... 74
WITH RESPECT TO IMMOVABLES ................................ 74
WITH RESPECT TO MOVABLE PROPERTY ...................... 79
Quieting of Title or Interest in
and Removal or Prevention of
Cloud over Title to or Interest
in Real Property .................. 81
IN GENERAL...................................................... 81
PURPOSE .......................................................... 81
NATURE: QUASI IN REM ................................... 81
JUSTIFICATIONS FOR QUIETING OF TITLE ........ 81
THE ACTION TO
QUIET TITLE DOES NOT APPLY ......................... 81
REQUIREMENT ................................................. 81
REQUISITES OF AN ACTION TO QUIET TITLE .................. 81
THERE IS A CLOUD ON TITLE TO REAL PROPERTY OR ANY
INTEREST TO REAL PROPERTY .................................. 81
THE PLAINTIFF MUST HAVE LEGAL OR EQUITABLE TITLE TO,
OR INTEREST IN THE REAL PROPERTY ......................... 82
PLAINTIFF MUST RETURN THE BENEFITS RECEIVED FROM
THE DEFENDANT ................................................... 82
QUIETING OF TITLE V. REMOVAL OF CLOUD..... 82
REQUISITES OF AN ACTION TO PREVENT A CLOUD ......... 82
PRESCRIPTION/NON-PRESCRIPTION
OF ACTION ........................................................ 82
PRESCRIPTION OF ACTION ....................................... 82
Co-ownership ..................... 82
DEFINITION ...................................................... 82
REQUISITES ...................................................... 82
WHAT GOVERNS CO-OWNERSHIP .................... 82
CHARACTERISTICS OF CO-OWNERSHIP ........... 82
THERE ARE IDEAL SHARES DEFINED
BUT NOT PHYSICALLY IDENTIFIED .............................. 83
SOURCES OF CO-OWNERSHIP .......................... 83
LAW ................................................................... 83
CONTRACTS ......................................................... 83
SUCCESSION......................................................... 84
TESTAMENTARY DISPOSITION
OR DONATION INTER VIVOS ..................................... 84
BY FORTUITOUS EVENT OR BY CHANCE ....................... 84
BY OCCUPANCY ..................................................... 84
BY ASSOCIATIONS AND
SOCIETIES WITH SECRET ARTICLES ............................ 84
RIGHT OF CO-OWNERS..................................... 84
RIGHT TO THE SHARE IN THE BENEFITS
AS WELL AS CHARGES ............................................ 84
RIGHT TO USE THE THING OWNED IN COMMON ............. 84
RIGHT TO BRING AN ACTION IN EJECTMENT ................. 84
RIGHT TO COMPEL OTHER CO-OWNERS
TO CONTRIBUTE TO THE EXPENSES
OF PRESERVATION AND TO THE TAXES ....................... 84
RIGHT TO REPAIR .................................................. 84
RIGHT TO OPPOSE ALTERATIONS............................... 84
RIGHT TO FULL OWNERSHIP OF HIS PART
AND OF THE FRUITS AND BENEFITS
PERTAINING THERETO ............................................ 85
RIGHT TO PARTITION ............................................. 85
RIGHT TO REDEMPTION........................................... 85
RULES................................................................. 85
TERMINATION/EXTINGUISHMENT ................... 85
TOTAL DESTRUCTION OF THING OR
LOSS OF THE PROPERTY CO-OWNED .......................... 85
MERGER OF ALL INTERESTS IN ONE PERSON ................ 85
ACQUISITIVE PRESCRIPTION..................................... 85
PARTITION OR DIVISION .......................................... 86
Possession........................... 86
DEFINITION ...................................................... 86
CONCEPT OF POSSESSION ............................... 86
CHARACTERISTICS ........................................... 86
ESSENTIAL REQUISITES OF POSSESSION ..................... 86
DEGREES OF POSSESSION........................................ 86
CASES OF POSSESSION ........................................... 87
ACQUISITION OF POSSESSION ......................... 88
WAYS OF ACQUIRING POSSESSION............................. 88
BY WHOM MAY POSSESSION BE ACQUIRED .................. 89
WHAT DO NOT AFFECT POSSESSION .......................... 89
RULES TO SOLVE CONFLICTS OF POSSESSION ............... 89
EFFECTS OF POSSESSION ................................ 90
RIGHT TO BE PROTECTED IN HIS POSSESSION ............... 90
ENTITLEMENT TO FRUITS –
POSSESSOR IN GOOD FAITH/BAD FAITH...................... 90
REIMBURSEMENT FOR EXPENSES—
POSSESSOR IN GOOD FAITH/BAD FAITH .......................91
LOSS OR UNLAWFUL DEPRIVATION
OF A MOVABLE ................................................. 93
POSSESSION OF MOVABLE
ACQUIRED IN GOOD FAITH (IN CONCEPT OF OWNER)
IS EQUIVALENT TO TITLE .......................................... 93
PERIOD TO RECOVER .............................................. 93
FINDER OF LOST MOVABLE ....................................... 93
DISTINGUISHED FROM VOIDABLE TITLE ....................... 93
EFFECTS OF POSSESSION................................. 93
EFFECTS OF POSSESSION IN THE CONCEPT OF OWNER .... 93
RIGHTS OF POSSESSOR.................................... 94
PRESUMPTION IN FAVOR OF THE POSSESSOR—
FOR ACQUISITIVE PRESCRIPTION ............................... 94
LOSS/TERMINATION OF
POSSESSION..................................................... 94
ABANDONMENT .................................................... 94
ASSIGNMENT, EITHER ONEROUS OR GRATUITOUS ......... 94
POSSESSION BY ANOTHER;
IF POSSESSION HAS LASTED LONGER
THAN ONE YEAR;
REAL RIGHT OF POSSESSION
NOT LOST AFTER 10 YEARS ..................................... 94
RULES FOR LOSS OF MOVABLES ................................ 95
Usufruct............................... 95
CONCEPT .......................................................... 95
OBJECTS OF USUFRUCT.................................... 95
CHARACTERISTICS ........................................... 95
NATURAL CHARACTERISTICS .................................... 95
CLASSIFICATION ............................................... 95
BY ORIGIN ............................................................ 95
BY PERSON ENJOYING RIGHT OF USUFRUCT ................. 96
BY OBJECT OF USUFRUCT ......................................... 96
BY THE EXTENT OF THE USUFRUCT ............................. 96
BY THE TERMS OF THE USUFRUCT .............................. 96
RIGHTS AND OBLIGATIONS
OF USUFRUCTUARY ......................................... 97
RIGHTS................................................................ 97
OBLIGATIONS........................................................ 98
SPECIAL CASES OF USUFRUCT ....................... 100
USUFRUCT OVER A PENSION
OR PERIODICAL INCOME ........................................ 100
USUFRUCT OF PROPERTY OWNED IN COMMON ........... 100
USUFRUCT CONSTITUTED ON A FLOCK
OR HERD OF LIVESTOCK ......................................... 101
USUFRUCT OVER FRUIT BEARING TREES
AND SPROUT AND WOODLANDS .............................. 101
USUFRUCT ON A RIGHT OF ACTION ........................... 101
USUFRUCT ON MORTGAGED PROPERTY ..................... 101
USUFRUCT OVER AN ENTIRE PATRIMONY ................... 101
USUFRUCT OVER DETERIORABLE PROPERTY ............... 101
USUFRUCT OVER CONSUMABLE PROPERTY ................ 101
RIGHTS OF THE OWNER .................................. 101
EXTINGUISHMENT/TERMINATION.................. 102
DEATH OF USUFRUCTUARY ..................................... 102
EXPIRATION OF PERIOD OR FULFILLMENT
OF RESOLUTORY CONDITION IMPOSED ON
USUFRUCT BY PERSON
CONSTITUTING THE USUFRUCT ................................ 102
MERGER OF RIGHTS OF USUFRUCT
AND NAKED OWNERSHIP IN ONE PERSON .................. 102
RENUNCIATION OF USUFRUCT ................................. 102
EXTINCTION OR LOSS OF PROPERTY.......................... 102
TERMINATION OF RIGHT OF PERSON
CONSTITUTING THE USUFRUCT ............................... 103
PRESCRIPTION ..................................................... 103
CONDITIONS NOT AFFECTING USUFRUCT ...... 103
EXPROPRIATION OF THING IN USUFRUCT ................... 103
BAD USE OF THING IN USUFRUCT ............................. 103
Easement ........................... 103
CHARACTERISTICS .......................................... 103
ESSENTIAL FEATURES............................................ 103
CLASSIFICATION .............................................104
AS TO RECIPIENT OF BENEFITS................................. 104
AS TO CAUSE OR ORIGIN......................................... 104
AS TO ITS EXERCISE............................................... 104
AS INDICATION OF ITS EXISTENCE ............................. 105
BY THE OBJECT OR OBLIGATION IMPOSED................... 105
GENERAL RULES .................................................. 105
RELEVANCE OF CLASSIFICATIONS .................. 105
DETERMINES WHAT EASEMENTS
CAN BE ACQUIRED BY PRESCRIPTION ........................ 105
DETERMINES WHAT EASEMENTS
CAN BE ACQUIRED BY TITLE .................................... 105
DETERMINES HOW TO COMPUTE
THE PRESCRIPTIVE PERIOD ..................................... 105
DETERMINES HOW EASEMENT
IS LOST BY PRESCRIPTION ...................................... 105
CREATION ....................................................... 105
BY TITLE ............................................................. 105
BY LAW (LEGAL EASEMENTS) .................................. 106
BY WILL OF THE OWNERS (VOLUNTARY EASEMENTS) .... 106
BY PRESCRIPTION ................................................ 106
LEGAL EASEMENTS ........................................ 106
LAW GOVERNING LEGAL EASEMENTS ....................... 106
VOLUNTARY EASEMENTS............................... 106
RIGHTS AND OBLIGATIONS OF OWNERS OF
DOMINANT AND SERVIENT ESTATES ............. 106
RIGHT OF DOMINANT ESTATE OWNER ....................... 106
OBLIGATIONS OF DOMINANT ESTATE OWNER ............. 106
RIGHT OF SERVIENT ESTATE OWNER ......................... 107
OBLIGATIONS OF SERVIENT ESTATE OWNER ................ 107
KINDS OF LEGAL EASEMENTS .........................107
NATURAL DRAINAGE ............................................. 107
RIPARIAN BANKS .................................................. 107
DRAINAGE OF BUILDINGS ....................................... 107
DAM .................................................................. 107
DRAWING WATER ................................................ 108
AQUEDUCT ......................................................... 108
SLUICE GATE....................................................... 108
RIGHT OF WAY..................................................... 108
PARTY WALL ....................................................... 109
LIGHT AND VIEW .................................................... 111
INTERMEDIATE DISTANCES ..................................... 112
NUISANCE ........................................................... 112
LATERAL AND SUBJACENT SUPPORT ......................... 112
MODES OF ACQUIRING EASEMENT ................. 112
BY TITLE ............................................................. 112
BY PRESCRIPTION ................................................. 112
EXTINGUISHMENT OF EASEMENTS ................. 112
MERGER ............................................................. 113
BY NON-USER FOR 10 YEARS................................... 113
EXTINGUISHMENT BY IMPOSSIBILITY OF USE ............... 113
EXPIRATION OF THE TERM OR
FULFILLMENT OF RESOLUTORY CONDITION ................ 113
RENUNCIATION OF THE OWNER
OF THE DOMINANT ESTATE..................................... 113
REDEMPTION AGREED UPON
BETWEEN THE OWNERS.......................................... 113
OTHER CAUSES NOT MENTIONED IN NCC 631 .............. 113
Nuisance.............................. 114
NUISANCE V. TRESPASS .................................. 114
NUISANCE V. NEGLIGENCE .............................. 114
CLASSES .......................................................... 114
ACCORDING TO NATURE ......................................... 114
ACCORDING TO SCOPE OF INJURIOUS EFFECTS ............ 114
DOCTRINE OF ATTRACTIVE NUISANCE............ 115
LIABILITY IN CASE OF NUISANCE .................... 115
WHO ARE LIABLE .................................................. 115
LIABILITY OF CREATOR OF NUISANCE ........................ 115
LIABILITY OF TRANSFEREES .................................... 115
NATURE OF LIABILITY ............................................ 115
RIGHT TO RECOVER DAMAGES ................................. 115
NO PRESCRIPTION ................................................ 115
REGULATION OF NUISANCES .......................... 115
PUBLIC NUISANCE ................................................ 115
PRIVATE NUISANCE ............................................... 116
Modes of Acquiring
Ownership .......................... 116
MODES OF ACQUIRING OWNERSHIP............... 116
OCCUPATION.................................................... 117
REQUISITES.......................................................... 117
KINDS ................................................................. 117
SPECIAL RULES ..................................................... 117
DONATION ...................................................... 118
OTHER INSTANCES CONSIDERED AS DONATION ........... 118
NATURE ............................................................. 118
WHAT MAY BE DONATED ........................................ 118
WHAT MAY NOT BE DONATED .................................. 118
KINDS OF DONATIONS ........................................... 118
FORMALITIES REQUIRED ........................................ 120
QUALIFICATIONS OF DONOR, DONEE......................... 120
EFFECTS OF DONATION/LIMITATIONS ........................121
VOID DONATIONS ................................................. 122
REVOCATION AND REDUCTION ................................ 122
TRADITION ...................................................... 127
CONCEPT ............................................................ 127
REQUISITES......................................................... 127
PURPOSE............................................................ 127
KINDS ................................................................ 127
Prescription .........................127
DEFINITION ..................................................... 127
RATIONALE ..................................................... 127
KINDS OF PRESCRIPTION................................ 127
ACQUISITIVE PRESCRIPTION.................................... 127
EXTINCTIVE PRESCRIPTION ..................................... 128
NO PRESCRIPTION APPLICABLE ..................... 128
BY OFFENDER ...................................................... 128
REGISTERED LANDS - PD 1529 ............................... 128
RIGHTS NOT EXTINGUISHED BY PRESCRIPTION ............ 128
ACTION TO QUIET TITLE IF PLAINTIFF IS IN POSSESSION . 128
VOID CONTRACTS .................................................128
ACTION TO DEMAND PARTITION ...............................128
PROPERTY OF PUBLIC DOMINION..............................128
PRESCRIPTION DISTINGUISHED
FROM LACHES .................................................128
PRESCRIPTION OR LIMITATION OF ACTIONS ..129
TO RECOVER MOVABLES .........................................129
TO RECOVER IMMOVABLES......................................129
OTHER ACTIONS ...................................................129
OBLIGATIONS & CONTRACTS
[Obligations] ...................... 132
Definition ............................ 132
Elements of
an Obligation .................... 132
ELEMENTS OF AN OBLIGATION ....................... 132
Different Kinds
of Prestations .................... 132
Classification
of Obligations ................... 132
FROM THE VIEWPOINT OF “SANCTION” .......... 132
FROM THE VIEWPOINT OF SUBJECT MATTER.. 132
FROM THE AFFIRMATIVENESS OR
NEGATIVENESS OF THE OBLIGATION .............. 132
FROM THE VIEWPOINT OF
PERSONS OBLIGED.......................................... 132
Sources of Obligations ...... 132
SINGLE ACT OR OMISSION CAN GIVE RISE TO
DIFFERENT CAUSES OF ACTION ...................... 132
NATURAL OBLIGATIONS ................................. 132
EXTRA-CONTRACTUAL OBLIGATIONS ............. 133
QUASI-CONTRACTS ............................................... 133
OTHER QUASI-CONTRACTS ..................................... 135
QUASI-DELICTS .................................................... 136
Nature and Effect of
Obligations.......................... 137
OBLIGATION TO GIVE ...................................... 137
A DETERMINATE OR SPECIFIC THING ......................... 137
AN INDETERMINATE OR GENERIC THING .................... 137
OBLIGATION TO DO OR NOT TO DO................. 138
BREACH OF OBLIGATIONS .............................. 138
COMPLETE FAILURE TO PERFORM ............................ 138
DEFAULT, DELAY, OR MORA.................................... 138
FRAUD (DOLO) IN THE
PERFORMANCE OF OBLIGATION .............................. 139
NEGLIGENCE (CULPA) IN THE
PERFORMANCE OF OBLIGATION ............................... 140
DILIGENCE NORMALLY REQUIRED
IS ORDINARY DILIGENCE OR
DILIGENCE OF A GOOD FATHER OF A FAMILY;
EXCEPTIONS ....................................................... 140
EXTENT OF DAMAGES TO BE AWARDED ..................... 140
CONTRAVENTION OF THE TENOR OF OBLIGATION ......... 141
LEGAL EXCUSE FOR BREACH OF OBLIGATION –
FORTUITOUS EVENT; REQUISITES ............................. 141
REMEDIES AVAILABLE TO CREDITOR
IN CASE OF BREACH ........................................ 141
SPECIFIC PERFORMANCE ........................................ 141
SUBSTITUTED PERFORMANCE BY A THIRD PERSON
OF ANOTHER’S OBLIGATION TO DELIVER
A GENERIC THING OR OF AN OBLIGATION TO DO,
UNLESS IT IS PURELY PERSONAL ACT ........................ 141
RESCISSION (RESOLUTION IN
RECIPROCAL OBLIGATIONS) .................................... 141
DAMAGES, IN ANY EVENT ....................................... 141
SUBSIDIARY REMEDIES OF CREDITORS ...................... 142
ACCION SUBROGATORIA ........................................ 142
ACCION PAULIANA ............................................... 142
ACCION DIRECTA ................................................. 142
Kinds of Civil Obligations .. 143
PURE ............................................................... 143
CONDITIONAL ................................................. 143
SUSPENSIVE CONDITION ........................................ 143
RESOLUTORY CONDITION ....................................... 143
POTESTIVE – CASUAL OR MIXED............................... 143
OBLIGATIONS SUBJECT TO POTESTATIVE SUSPENSIVE
CONDITIONS ARE VOID .......................................... 143
EFFECT OF THE HAPPENING OF SUSPENSIVE CONDITION;
RESOLUTORY CONDITION ...................................... 144
EFFECT OF LOSS OF SPECIFIC THING,
OR DETERIORATION OR IMPROVEMENT OF
SPECIFIC THING BEFORE FULFILLMENT
OF SUSPENSIVE CONDITION;
OR IN CASE OF ARESOLUTORY CONDITION
IN AN OBLIGATION TO DO OR NOT TO DO .................. 145
OBLIGATIONS WITH A PERIOD OR TERM........ 145
SUSPENSIVE PERIOD ............................................ 146
RESOLUTORY PERIOD ........................................... 146
DEFINITE OR INDEFINITE PERIOD ............................. 146
ALTERNATIVE OR FACULTATIVE ..................... 147
DIFFERENCE BETWEEN ALTERNATIVE
AND FACULTATIVE OBLIGATIONS .............................. 147
EFFECT OF LOSS OF SPECIFIC THINGS
OR IMPOSSIBILITY OF PERFORMANCE OF ALTERNATIVE,
THROUGH FAULT OF DEBTOR/CREDITOR OR
THROUGH FORTUITOUS EVENTS ............................... 147
Joint and
Solidary Obligation ........... 148
JOINT (DIVISIBLE) OBLIGATION ...................... 148
PRESUMPTION OF JOINT OBLIGATION ....................... 148
PRESUMPTION OF EQUAL DIVISION .......................... 148
EFFECT OF INSOLVENCY OF A JOINT DEBTOR .............. 148
JOINT (INDIVISIBLE) OBLIGATION................... 149
OBLIGATION CANNOT BE PERFORMED IN PARTS BUT
DEBTORS ARE BOUND JOINTLY ............................... 149
IN CASE OF FAILURE OF ONE OF THE JOINT DEBTORS TO
PERFORM HIS PART (SHARE), THERE IS DEFAULT BUT ONLY
THE GUILTY DEBTOR SHALL
BE LIABLE FOR DAMAGES....................................... 149
SOLIDARY OBLIGATION .................................. 149
ANYONE OF THE SOLIDARY CREDITORS MAY COLLECT OR
DEMAND PAYMENT OF WHOLE OBLIGATION; THERE IS
MUTUAL AGENCY AMONG SOLIDARY DEBTORS ........... 149
ANY OF THE SOLIDARY DEBTORS MAY BE REQUIRED TO PAY
THE WHOLE OBLIGATION; THERE IS MUTUAL GUARANTY
AMONG SOLIDARY DEBTORS .................................. 149
DIVISIBLE AND INDIVISIBLE............................. 151
OBLIGATIONS WITH A PENAL CLAUSE ............ 151
Extinguishment of
Obligations......................... 153
PAYMENT ........................................................ 153
DATION IN PAYMENT ............................................. 153
FORM OF PAYMENT .............................................. 153
EXTRAORDINARY INFLATION OR DEFLATION .............. 153
APPLICATION OF PAYMENT ..................................... 153
TENDER OF PAYMENT AND CONSIGNATION ................. 153
LOSS OF DETERMINATE THING DUE OR
IMPOSSIBILITY OR
DIFFICULTY OF PERFORMANCE ...................... 155
CONDONATION OR REMISSION OF DEBT ........ 156
EXPRESS – FORMALITY OF DONATION ....................... 156
IMPLIED ............................................................. 156
CONFUSION..................................................... 156
COMPENSATION ............................................. 156
KINDS ............................................................... 157
OBLIGATIONS NOT COMPENSABLE ............................ 158
NOVATION....................................................... 158
[Contracts] ......................... 160
Essential Requisites ......... 160
CONSENT ........................................................ 160
CONCURRENCE OF OFFER AND ACCEPTANCE .............. 160
ACCEPTANCE ....................................................... 160
LEGAL CAPACITY .................................................. 160
VICES OF CONSENT ............................................... 161
OBJECT ............................................................ 162
DEFINITION ......................................................... 162
REQUISITES......................................................... 162
CAUSE ............................................................. 162
DEFINITION ........................................................ 162
REQUISITES......................................................... 162
CAUSE IN ............................................................ 162
Kinds of Contracts ............ 163
CONSENSUAL .................................................. 163
REAL ............................................................... 163
FORMAL OR SOLEMN ...................................... 163
DONATIONS ........................................................ 163
PARTNERSHIP WHERE REAL
PROPERTY IS CONTRIBUTED ................................... 163
ANTICHRESIS ...................................................... 164
AGENCY TO SELL REAL PROPERTY OR AN INTEREST
THEREIN ............................................................ 164
STIPULATION TO CHANGE INTEREST ......................... 164
STIPULATION LIMITING COMMON CARRIER’S DUTY OF
EXTRAORDINARY DILIGENCE
TO ORDINARY DILIGENCE ....................................... 164
CHATTEL MORTGAGE............................................. 164
SALE OF LARGE CATTLE ......................................... 164
Formality ........................... 164
STATUTORY BASIS ......................................... 164
Defective Contracts .......... 165
FOUR KINDS OF DEFECTIVE CONTRACTS ........165
RESCISSIBLE CONTRACTS ...............................165
DIFFERENCE FROM RESCISSION (RESOLUTION) UNDER
ART. 1191 ...........................................................166
VOIDABLE CONTRACTS ...................................166
UNENFORCEABLE CONTRACTS .......................166
VOID CONTRACTS ............................................ 167
Effects of Contracts ........... 169
STATUTORY BASIS ..........................................169
SALES
Introduction ....................... 171
DEFINITION OF SALES .................................... 171
ESSENTIAL REQUISITES OF
A CONTRACT OF SALE .................................... 171
ESSENTIAL ELEMENTS OF A VALID CONTRACT OF SALE .. 171
STAGES OF CONTRACT OF SALE ..................... 171
PHASES OF A SALE CONTRACT ................................. 171
OBLIGATIONS CREATED ................................. 171
NATURE OF OBLIGATIONS CREATED
PER DEFINITION IN ART.1458 ................................. 171
CHARACTERISTICS OF A CONTRACT OF SALE 171
SALE IS TITLE AND NOT MODE ....................... 171
SALE DISTINGUISHED FROM OTHER CONTRACTS
........................................................................ 171
DONATION .......................................................... 171
BARTER ............................................................. 172
CONTRACT FOR A PIECE OF WORK ............................ 172
DACION EN PAGO ................................................. 172
CONTRACT OF SALE/CONTRACT TO SELL ...... 172
Parties to a
Contract of Sale ..................172
CAPACITY OF PARTIES ................................... 172
KINDS OF INCAPACITY ........................................... 172
ABSOLUTE INCAPACITY ................................. 172
RELATIVE INCAPACITY: MARRIED PERSONS .. 173
HUSBAND AND WIFE ............................................ 173
ALIENAGE .......................................................... 173
TRUSTEESHIP ..................................................... 173
SPECIAL DISQUALIFICATIONS ........................ 173
SPECIFIC INCAPACITY/ SPECIAL DISQUALIFICATIONS ... 173
EFFECTS OF INCAPACITY ................................ 173
Subject Matter ....................174
REQUISITES OF A VALID SUBJECT MATTER ... 174
MUST BE LICIT .................................................... 174
EXISTING, FUTURE, CONTINGENT ............................ 174
DETERMINATE OR DETERMINABLE ........................... 175
PARTICULAR KINDS ....................................... 175
Obligations of the Seller to
Transfer Ownership ............175
SALE BY A PERSON NOT THE OWNER AT TIME OF
DELIVERY ........................................................ 175
SALE BY A PERSON
HAVING A VOIDABLE TITLE ............................ 176
Price ....................................176
MEANING OF PRICE ....................................... 176
REQUISITES FOR A VALID PRICE .................... 176
HOW PRICE IS DETERMINED .......................... 176
INADEQUACY OF PRICE ................................. 176
WHEN NO PRICE AGREED .............................. 177
MANNER OF PAYMENT
MUST BE AGREED UPON ................................ 177
EARNEST MONEY VS. OPTION MONEY .......... 177
Formation of
Contract of Sale ................. 177
PREPARATORY .............................................. 177
OFFER ............................................................... 177
OPTION CONTRACT .............................................. 177
RIGHT OF FIRST REFUSAL ....................................... 178
MUTUAL PROMISE TO BUY AND SELL ........................ 178
PERFECTION .................................................. 178
WHEN PERFECTED ................................................ 178
EFFECT OF PERFECTION ......................................... 178
FORM AND OFFER ................................................ 178
FORMALITIES OF THE CONTRACT .................. 178
Transfer of Ownership ...... 179
MANNER OF TRANSFER ................................. 179
GENERAL CONCEPTS ............................................. 179
WHEN DELIVERY DOES NOT TRANSFER TITLE 179
SALE ON APPROVAL, TRIAL, OR SATISFACTION ........... 179
WHEN SALE NOT VALID ......................................... 180
WHEN SELLER IS NOT THE OWNER ........................... 180
SALE BY PERSON HAVING A VOIDABLE TITLE .............. 180
KINDS OF DELIVERY ....................................... 180
ACTUAL DELIVERY ............................................... 180
CONSTRUCTIVE DELIVERY ..................................... 180
DOUBLE SALES .............................................. 181
RULES GOVERNING SALE OF MOVABLES, IMMOVABLES AND
UNREGISTERED LANDS .......................................... 181
PROPERTY REGISTRATION DECREE ...............182
REQUISITES FOR REGISTRATION OF DEED OF SALE IN GOOD
FAITH .................................................................182
ACCOMPANIED BY VENDORS DUPLICATE CERTIFICATE OF
TITLE,PAYMENT OF CAPITAL GAINS TAX, AND
DOCUMENTARY TAX REGISTRATION FEES ...................182
Risk of Loss ....................... 182
GENERAL RULE ..............................................182
WHEN LOSS OCCURRED
BEFORE PERFECTION .....................................182
WHEN LOSS OCCURRED AT TIME OF
PERFECTION ..................................................182
WHEN LOSS OCCURRED AFTER PERFECTION
BUT BEFORE DELIVERY ...................................182
WHEN OWNERSHIP IS TRANSFERRED .......... 183
WHEN OWNERSHIP IS TRANSFERRED TO THE BUYER, THE
GOODS ARE AT THE BUYER’S RISK ............................ 183
Documents of Title ............ 183
DEFINITION .................................................... 183
PURPOSE OF DOCUMENTS OF TITLE .............. 183
NEGOTIABLE DOCUMENTS OF TITLE .............. 183
WHO MAY NEGOTIATE IT? ...................................... 183
A PERSON TO WHOM A DOCUMENT HAS BEEN NEGOTIATED
ACQUIRES .......................................................... 183
NON-NEGOTIABLE DOCUMENTS OF TITLE ..... 183
WARRANTIES OF SELLER OF DOCUMENTS OF
TITLE .............................................................. 184
A PERSON WHO NEGOTIATES A DOCUMENT OF TITLE
WARRANTS ........................................................ 184
HE DOES NOT WARRANT THAT ................................ 184
GOODS IN THE HANDS OF THE CARRIER COVERED BY A
NEGOTIABLE DOCUMENT CANNOT BE ATTACHED OR LEVIED
UPON, UNLESS .................................................... 184
RULES ON LEVY/GARNISHMENT OF GOODS . 184
Remedies of an
Unpaid Seller ..................... 184
DEFINITION OF UNPAID SELLER .................... 184
REMEDIES OF UNPAID SELLER ....................... 184
JUDICIAL REMEDIES OF AN UNPAID SELLER ................ 184
ALTERNATIVE REMEDIES OF THE UNPAID SELLER UNDER
RECTO LAW ........................................................ 185
Performance of Contract .. 185
DELIVERY OF THING SOLD .............................. 185
SALE OF MOVABLES .............................................. 185
SALE OF IMMOVABLES .......................................... 186
INSPECTIONS AND ACCEPTANCE.............................. 186
PAYMENT OF PRICE ........................................ 186
PAY THE PRICE OF THE THING SOLD ......................... 186
Warranties .......................... 187
CONDITION V. WARRANTY .............................. 187
EXPRESS WARRANTIES .................................. 187
EXPRESS WARRANTY DISTINGUISHED FROM FALSE
REPRESENTATION ................................................ 187
IMPLIED WARRANTIES ................................. 188
IMPLIED WARRANTY OF TITLE ................................ 188
IMPLIED WARRANTY AGAINST ENCUMBRANCE/NON-
APPARENT SERVITUDES ....................................... 188
IMPLIED WARRANTY AGAINST HIDDEN DEFECTS ......... 188
IMPLIED WARRANTY AS TO MERCHANTABLE QUALITY AND
FITNESS OF GOODS .............................................. 188
IMPLIED WARRANTY AGAINST REDHIBITORY DEFECT IN THE
SALE OF ANIMALS ............................................... 189
EFFECTS OF WARRANTIES ............................. 189
EFFECTS OF WAIVERS .................................... 189
BUYER’S OPTIONS IN CASE OF BREACH OF
WARRANTY ................................................... 189
EXPRESS WARRANTY ........................................... 189
IMPLIED WARRANTY AGAINST EVICTION .................. 189
IMPLIED WARRANTY AGAINST ENCUMBRANCES ......... 190
IMPLIED WARRANTY AGAINST HIDDEN DEFECTS ........ 190
IMPLIED WARRANTY AGAINST REDHIBITORY DEFECTS OF
ANIMALS ........................................................... 190
WARRANTY IN SALE OF CONSUMER GOODS .............. 190
Breach of Contract ............ 190
REMEDIES OF THE SELLER ............................. 191
SALE OF MOVABLES .............................................. 191
RECTO LAW: SALE OF MOVABLES ON
INSTALLMENT ................................................192
SALE OF IMMOVABLES ........................................... 193
REMEDIES OF THE BUYER ............................... 193
SALE OF MOVABLE ................................................ 193
SALE OF IMMOVABLES .......................................... 194
Extinguishment of Sale..... 194
CAUSES ......................................................... 194
CONVENTIONAL REDEMPTION ..................... 195
DEFINITION ........................................................ 195
PERIOD ............................................................. 195
BY WHOM EXERCISED ........................................... 195
FROM WHOM TO REDEEM ...................................... 195
HOW EXERCISED ................................................. 195
EFFECT OF REDEMPTION ....................................... 195
EFFECT OF NON-REDEMPTION ............................... 195
RIGHT TO REDEEM VS. OPTION TO PURCHASE ........... 195
EQUITABLE MORTGAGE ................................. 196
DISTINGUISHED FROM OPTION TO BUY ........ 196
PRESUMPTION THAT A CONTRACT IS AN EQUITABLE
MORTGAGE ARISES WHEN ..................................... 196
FOR THE PRESUMPTION OF AN EQUITABLE MORTGAGE TO
ARISE UNDER ART. 1602,
2 REQUISITES MUST CONCUR ................................. 196
RATIONALE BEHIND
PROVISION ON EQUITABLE MORTGAGE ..................... 196
REMEDIES OF APPARENT VENDOR ........................... 196
PERIOD OF REDEMPTION ............................... 196
EXERCISE OF THE RIGHT TO REDEEM ............ 197
LEGAL REDEMPTION ..................................... 197
DEFINITION ........................................................ 197
MANNER ............................................................ 197
PERIOD TO REDEEM .............................................. 197
INSTANCES OF LEGAL REDEMPTION ......................... 198
AGE REDEMPTION ......................................... 199
The Law on Sale of
Subdivision and
Condominium (PD 957) ... 200
DEFINITIONS ................................................. 200
DEFINITION OF "SALE" OR "SELL" .......................... 200
DEFINITION OF "BUY" OR "PURCHASE" ................... 200
REQUIREMENTS FOR OWNERS AND DEVELOPERS ...... 200
The Condominium Act (RA
4726) ................................. 202
DEFINITION OF A CONDOMINIUM ................ 202
OTHER DEFINITIONS ..................................... 203
TRANSFERS OR CONVEYANCES OF A UNIT OR
AN APARTMENT, OFFICE OR STORE, OR OTHER
SPACE THEREIN ............................................ 203
RIGHTS OF A CONDOMINIUM UNIT OWNER
(ASIDE FROM RIGHTS ARISING FROM
OWNERSHIP) ................................................ 203
PARTITION BY SALE ...................................... 203
DECLARATION OF RESTRICTIONS BY OWNER OF
PROJECT –
PRECONDITION TO CONVEYANCE ................ 203

ASSESSMENT IN ACCORDANCE WITH
DECLARATION OF RESTRICTIONS ................. 204
HOW LIEN ENFORCED AFTER NON-PAYMENT OF
ASSESSED FEES ............................................ 204
CONTENTS OF A DECLARATION OF
RESTRICTIONS .............................................. 204
INVOLUNTARY DISSOLUTION OF THE
CONDOMINIUM CORPORATION .................... 204
POWER OF ATTORNEY HELD BY CORPORATION
IN CASE OF VOLUNTARY DISSOLUTION OF
CONDOMINIUM CORPORATION .................... 204
SALE, EXCHANGE, LEASE, OR DISPOSITION BY
CORPORATION OF THE COMMON AREAS ..... 204
STOCKHOLDER/MEMBER DEMANDING
PAYMENT FOR SHARES OR INTEREST AKA
APPRAISAL RIGHT ........................................ 204
REQUIREMENTS FOR REGISTRATION OF
CONVEYANCE WITH
THE REGISTER OF DEEDS .............................. 204
REALTY TAX ON CONDOMINIUMS ................. 204
SUCCESSION
General Provisions ............ 206
DEFINITION & TRANSMISSION ....................... 206
SUCCESSION OCCURS AT THE MOMENT OF
DEATH ........................................................... 206
KINDS ............................................................ 206
KINDS OF SUCCESSION ......................................... 206
KINDS OF SUCCESSORS ......................................... 206
KINDS OF HEIRS .................................................. 206
Testamentary
Succession ........................ 206
WILLS ............................................................. 206
IN GENERAL ....................................................... 206
TESTAMENTARY CAPACITY AND INTENT .................... 207
FORM................................................................ 208
WITNESSES ........................................................ 210
CODICILS ............................................................ 211
INCORPORATION BY REFERENCE .............................. 211
REVOCATION ....................................................... 211
REPUBLICATION AND REVIVAL ................................ 212
ALLOWANCE AND DISALLOWANCE OF WILLS .............. 212
INSTITUTION OF HEIRS .................................. 213
EXTENT OF GRANT .............................................. 213
EFFECT OF PREDECEASE OF HEIR ............................ 213
IDENTIFICATION OF HEIRS, MANNER OF INSTITUTION .. 213
FALSE CAUSE ..................................................... 213
PRETERITION ...................................................... 213
COMPULSORY HEIRS IN THE DIRECT LINE ................... 214
PRETERITION V. DISPOSITION LESS THAN LEGITIME ...... 214
DISTINGUISHED FROM DISINHERITANCE .................... 214
EFFECTS OF PRETERITION ..................................... 214
SUBSTITUTION OF HEIRS ............................... 214
DEFINITION ........................................................ 214
KINDS ............................................................... 214
TESTAMENTARY DISPOSITIONS WITH A
CONDITION, A TERM, AND A MODE ............... 215
3 KINDS OF TESTAMENTARY DISPOSITIONS ................ 215
CONDITIONS ....................................................... 215
LEGITIME ....................................................... 216
DEFINITION ........................................................ 216
COMPULSORY HEIRS AND VARIOUS COMBINATIONS ..... 216
RESERVA TRONCAL .............................................. 218
DISINHERITANCE .................................................. 219
Legal or
Intestate Succession ........ 224
GENERAL PROVISIONS................................... 224
INSTANCES WHEN LEGAL OR INTESTATE SUCCESSION
OPERATES ......................................................... 224
THE INTESTATE OR LEGAL HEIRS ............................. 224
FUNDAMENTAL PRINCIPLES IN
INTESTATE SUCCESSION........................................ 224
RELATIONSHIP ............................................... 225
BASIC CONCEPTS IN RELATIONSHIP ......................... 225
INCAPACITY ....................................................... 225
REPUDIATION .................................................... 225
ADOPTION ......................................................... 225
RIGHT OF REPRESENTATION ......................... 225
EFFECT OF REPRESENTATION ................................. 225
WHEN IT OCCURS................................................. 226
REPRESENTATION IN THE DIRECT DESCENDING LINE ... 226
REPRESENTATION IN COLLATERAL LINE ................... 226
PER STIRPES ...................................................... 226
THE DOUBLE HEIRSHIP TEST .................................. 226
REPRESENTATION IN ADOPTION ............................. 226
ORDER OF CONCURRENCE IN THE CASE OF AN ADOPTED
CHILD .............................................................. 226
ORDER OF INTESTATE SUCCESSION .............. 227
RULES OF EXCLUSION AND CONCURRENCE IN INTESTATE
SHARES ............................................................ 227
OUTLINE OF INTESTATE SHARES ............................. 227
Provisions Common to
Testate and Intestate
Succession ........................ 228
RIGHT OF ACCRETION ................................... 228
DEFINITION AND REQUISITES ................................. 228
EFFECT OF PREDECEASE, INCAPACITY, DISINHERITANCE OR
REPUDIATION IN TESTAMENTARY AND INTESTATE
SUCCESSION ...................................................... 229
CAPACITY TO SUCCEED
BY WILL OR INTESTACY ................................. 229
PERSONS INCAPABLE OF SUCCEEDING ..................... 229
ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE ................................................ 230
CHARACTERISTICS .............................................. 230
REQUISITES ....................................................... 230
ACCEPTANCE VS. REPUDIATION .............................. 230
COLLATION ..................................................... 231
CONCEPT OF COLLATION ....................................... 231
OPERATIONS RELATED TO COLLATION ...................... 231
PERSONS OBLIGED TO COLLATE ............................... 231
WHAT TO COLLATE ............................................... 231
PROPERTIES NOT SUBJECT TO COLLATION ................. 231
PARTITION AND DISTRIBUTION OF ESTATE .. 232
PARTITION ........................................................ 232
PARTITION INTER VIVOS ........................................ 232
EFFECTS OF PARTITION ......................................... 233
NULLIFICATION OF PARTITION ................................ 233
AGENCY & PARTNERSHIP
Contract of Partnership .. 236
DEFINITION .................................................... 236
ELEMENTS ..................................................... 236
ESSENTIAL FEATURES ................................... 236
EFFECT OF UNLAWFUL OBJECT ............................... 236
ASSOCIATIONS WITHOUT LEGAL PERSONALITY .......... 236
CHARACTERISTICS ........................................ 236
PARTIES TO THE CONTRACT .......................... 236
OBJECT OF THE CONTRACT ............................ 237
OBJECT OF UNIVERSAL PARTNERSHIP ....................... 237
OBJECT OF PARTICULAR PARTNERSHIP ..................... 237
FORM OF THE CONTRACT ............................... 237
DURATION OF THE CONTRACT ....................... 237
COMMENCEMENT ................................................. 237
TERM ................................................................ 237
EXTENSION ........................................................ 237
RULES TO DETERMINE EXISTENCE ................ 238
RELATIONS CREATED .................................... 238
KINDS OF PARTNERSHIP ............................... 238
AS TO LEGALITY OF EXISTENCE ............................... 238
AS TO OBJECT .................................................... 238
AS TO DURATION ................................................ 238
AS TO LIABILITY OF PARTNERS ............................... 238
AS TO PUBLICITY ................................................. 238
AS TO PURPOSE .................................................. 238
KINDS OF PARTNERS .................................... 238
DISTINGUISHED FROM OTHER CONTRACTS . 239
Rights and obligations of the
partnership ........................ 241
RIGHT TO CONTRIBUTION, IN GENERAL ........ 241
OBLIGATION OF PARTNERS TO THE
PARTNERSHIP WITH RESPECT TO
CONTRIBUTION OF MONEY OR PROPERTY .... 241
AMOUNT OF CONTRIBUTION ................................... 241
DETERMINING VALUE OF CONTRIBUTION IN GOODS ..... 241
ADDITIONAL CAPITAL CONTRIBUTION ....................... 241
PROHIBITION AGAINST ENGAGING IN BUSINESS .......... 241
RISK OF LOSS OF THINGS CONTRIBUTED .................... 241
REMEDY IN CASE OF NON-COMPLIANCE ................... 242
OBLIGATION OF PARTNERS TO THE
PARTNERSHIP WITH RESPECT TO
CONTRIBUTION OF INDUSTRY ...................... 242
PROHIBITION AGAINST ENGAGING IN BUSINESS ......... 242
RIGHT TO APPLY PAYMENT TO PARTNERSHIP
CREDIT .......................................................... 242
RIGHT TO RETURN OF CREDIT RECEIVED ...... 242
RIGHT TO INDEMNITY FOR DAMAGES ........... 242
COMPENSATION OF LIABILITY ................................ 242
SUIT FOR DAMAGES ............................................. 243
RESPONSIBILITY OF THE PARTNERSHIP TO
PARTNERS ..................................................... 243
Rights and obligations of
partners inter se ............... 243
RIGHT TO ASSOCIATE ANOTHER IN SHARE ... 243
SUBPARTNERSHIP ............................................... 243
RIGHT TO ACCESS PARTNERSHIP BOOKS ..... 243
BASIS OF RIGHT .................................................. 243
REASONABLE HOUR ............................................. 243
RIGHT TO A FORMAL ACCOUNT ..................... 243
ACCRUAL OF RIGHT ............................................. 243
PERSON OBLIGED ................................................ 243
PRESCRIPTION OF ACTION ..................................... 243
NATURE OF ACTION ............................................. 244
PROPERTY RIGHTS OF PARTNERS ................ 244
IN GENERAL ....................................................... 244
PARTNERSHIP PROPERTY AND PARTNERSHIP CAPITAL 244
OWNERSHIP OF CERTAIN PROPERTY ........................ 244
RIGHTS IN SPECIFIC PROPERTY ............................... 244
INTEREST IN THE PARTNERSHIP ............................. 244
RIGHTS OF ASSIGNEE ........................................... 244
CHARGING OF PARTNERSHIP INTEREST BY PERSONAL
CREDITOR OF PARTNERS ...................................... 244
CHARGING ORDER ............................................... 245
RIGHT TO PROFITS AND OBLIGATION FOR
LOSSES .......................................................... 245
RULES FOR DISTRIBUTION OF PROFITS AND LOSSES .... 245
DESIGNATION OF SHARE BY THIRD PERSONS ............. 245
EXCLUSION OF PARTNER FROM SHARE .................... 245
OBLIGATION TO RENDER INFORMATION ...... 245
BASIS OF OBLIGATION .......................................... 245
OBLIGATION TO ACCOUNT AND ACT AS
TRUSTEE ........................................................ 245
BASIS OF OBLIGATION .......................................... 245
Operation of
the Partnership ................ 246
FIRM NAME .................................................... 246
RIGHT TO CHOOSE FIRM NAME ............................... 246
MANAGEMENT OF THE PARTNERSHIP .......... 246
POWERS OF A MANAGING PARTNER ........................ 246
REVOCATION OF POWER OF MANAGING PARTNER ...... 246
MANAGEMENT BY TWO OR MORE PARTNERS ............. 246
STIPULATION ON UNANIMITY OF MANAGING PARTNERS
....................................................................... 246
MANAGEMENT WHEN MANNER NOT AGREED UPON .... 246
INSTANCES OF MUTUAL AGENCY ............................ 246
Obligations of
partnership/partners to third
persons ..............................247
LIABILITY OF PARTNERS FOR PARTNERSHIP
CONTRACTS .................................................. 247
NATURE OF INDIVIDUAL LIABILITY ........................... 247
LIABILITY OF INDUSTRIAL PARTNER ........................ 247
STIPULATION AGAINST INDIVIDUAL LIABILITY ............ 247
LIABILITY OF PARTNERS FOR PARTNERSHIP
CONTRACTS .................................................. 247
ACTS APPARENTLY FOR THE CARRYING ON OF USUAL
BUSINESS ......................................................... 247
ACTS NOT APPARENTLY FOR CARRYING ON OF THE USUAL
BUSINESS ......................................................... 247
ACTS OF STRICT DOMINION ................................... 247
ACTS IN CONTRAVENTION OF RESTRICTION ............... 248
CONVEYANCE OF REAL PROPERTY OF
PARTNERSHIP ............................................... 248
TITLE IN THE PARTNERSHIP NAME .......................... 248
TITLE IN THE NAME OF ONE OR MORE (NOT ALL) OF THE
PARTNERS AND THE RECORD DOES NOT DISCLOSE THE
RIGHT OF THE PARTNERSHIP ................................. 248
TITLE IN THE NAME OF ONE OR MORE OR ALL THE
PARTNERS, OR IN A THIRD PERSON IN TRUST FOR THE
PARTNERSHIP .................................................... 248
TITLE IN THE NAMES OF ALL THE PARTNERS .............. 248
LIABILITY OF PARTNERSHIP FOR ADMISSION BY
PARTNER ....................................................... 248
LIABILITY OF PARTNERSHIP FOR WRONGFUL
ACTS OF PARTNER ........................................ 248
LIABILITY OF THE PARTNERSHIP FOR
MISAPPLICATION OF MONEY OR PROPERTY
RECEIVED ...................................................... 248
LIABILITY OF OTHER PARTNERS FOR
WRONGFUL ACTS OR MISAPPLICATION ....... 248
LIABILITY IN CASE OF PARTNERSHIP BY
ESTOPPEL ...................................................... 248
LIABILITY OF PARTNER BY ESTOPPEL ....................... 248
NATURE OF LIABILITY ........................................... 249
EFFECTS OF ACTS OF PARTNER BY ESTOPPEL ............. 249
ESTABLISHING LIABILITY ....................................... 249
LIABILITY OF INCOMING PARTNER ................ 249
NOTICE TO OR KNOWLEDGE OF THE
PARTNERSHIP ............................................... 249
PREFERENCE OF PARTNERSHIP CREDITORS 249
Dissolution
and winding up ................. 250
CONCEPTS ...................................................... 250
EFFECT OF DISSOLUTION ON EXISTENCE OF
PARTNERSHIP ................................................ 250
CAUSES OF DISSOLUTION .............................. 250
WITHOUT VIOLATION OF THE AGREEMENT ................. 250
IN CONTRAVENTION OF THE AGREEMENT .................. 250
BY OPERATION OF LAW ......................................... 250
BY DECREE OF COURT ............................................ 251
OTHER CAUSES .................................................... 251
EFFECT OF DISSOLUTION ON AUTHORITY OF
PARTNERS.......................................................251
WITH RESPECT TO PARTNERS .................................. 251
WITH RESPECT TO THIRD PERSONS ........................... 251
LIABILITY OF PARTNERS IN TRANSACTIONS AFTER
DISSOLUTION....................................................... 251
CASES WHERE
PARTNERSHIP IS NOT BOUND........................ 252
PARTNERSHIP BY ESTOPPEL AFTER DISSOLUTION ....... 252
CONTRACTS AFTER DISSOLUTION BY SPECIFIC
CAUSES........................................................... 252
EFFECT OF DISSOLUTION ON EXISTING LIABILITY
OF PARTNERS ................................................ 252
WINDING UP PARTNERS ........................................ 252
WHO MAY WIND UP .............................................. 252
MANNER OF WINDING UP ...................................... 252
NATURE OF JUDICIAL LIQUIDATION .......................... 252
POWERS OF WINDING UP PARTNER .......................... 252
RIGHTS OF PARTNERS IN
CASE OF DISSOLUTION ................................... 252
DISSOLUTION WITHOUT
VIOLATION OF THE AGREEMENT .............................. 252
DISSOLUTION IN CONTRAVENTION
OF THE AGREEMENT ............................................. 253
RIGHTS OF PARTNERS
IN CASE OF RESCISSION ................................. 253
SETTLING OF ACCOUNTS
BETWEEN PARTNERS..................................... 253
COMPOSITION OF PARTNERSHIP ASSETS .................. 253
AMOUNT OF CONTRIBUTION FOR LIABILITIES ............. 253
ENFORCEMENT OF CONTRIBUTION .......................... 253
ORDER OF APPLICATION OF ASSETS ......................... 254
DOCTRINE OF MARSHALING OF ASSETS .................... 254
DISTRIBUTION OF PROPERTY OF INSOLVENT PARTNER. 254
RIGHTS OF CREDITORS OF DISSOLVED
PARTNERSHIP ................................................ 254
CREDITORS OF DISSOLVED PARTNERSHIPAS CREDITORS OF
NEW PARTNERSHIP.............................................. 254
LIABILITY OF A NEW PARTNER ................................ 254
PRIORITY OF CREDITORS OF DISSOLVED PARTNERSHIP 254
EFFECT OF CONTINUING USE OF PARTNERSHIP NAME .. 254
RETIRED OR REPRESENTATIVE OF DECEASED
PARTNER ....................................................... 254
RIGHT TO AN ACCOUNT ................................. 254
EXISTENCE OF RIGHT ............................................ 255
NEED FOR LIQUIDATION ........................................ 255
Limited partnership .......... 255
DEFINITION .................................................... 255
CHARACTERISTICS ......................................... 255
ADVANTAGES OF LIMITED PARTNERSHIP ..... 255
GENERAL AND LIMITED PARTNER
DISTINGUISHED ............................................. 255
GENERAL AND LIMITED PARTNERSHIP
DISTINGUISHED ............................................. 256
FORMATION OF LIMITED PARTNERSHIP ....... 256
PURPOSE OF FILING ............................................. 256
NO SUBSTANTIAL COMPLIANCE .............................. 256
FIRM NAME ........................................................ 256
FALSE STATEMENT IN THE CERTIFICATE .................... 256
ADMISSION OF ADDITIONAL LIMITED PARTNERS ......... 257
GENERAL AND LIMITED PARTNER AT THE SAME TIME ... 257
MANAGEMENT OF LIMITED PARTNERSHIP.... 257
MANAGEMENT BY GENERAL PARTNERS .................... 257
LIABILITY OF LIMITED PARTNER FOR PARTICIPATING IN
CONTROL .......................................................... 257
POWERS OF GENERAL PARTNER ............................. 257
OBLIGATIONS OF A LIMITED PARTNER .......... 257
OBLIGATIONS RELATED TO CONTRIBUTION ................ 257
LIABILITY TO PARTNERSHIP CREDITORS .................... 258
LIABILITY TO SEPARATE CREDITORS ......................... 258
RIGHTS OF A LIMITED PARTNER .................... 258
RIGHTS OF LIMITED PARTNER, IN GENERAL ............... 258
RIGHT TO TRANSACT BUSINESS WITH PARTNERSHIP .... 258
RIGHT TO SHARE IN PROFITS .................................. 258
RIGHT TO RETURN OF CONTRIBUTION....................... 259
PREFERENCE OF LIMITED PARTNERS ........................ 259
RIGHT TO ASSIGN INTEREST ................................... 259
RIGHT TO ASK FOR DISSOLUTION............................. 259
CAUSES OF DISSOLUTION OF LIMITED
PARTNERSHIP ................................................ 259
SETTLEMENT OF ACCOUNTS .......................... 260
ORDER OF PAYMENT............................................. 260
SHARE IN THE PARTNERSHIP ASSETS ....................... 260
AMENDMENT OR CANCELLATION OF
CERTIFICATE................................................... 260
WHEN CERTIFICATE IS CANCELLED ........................... 260
WHEN CERTIFICATE IS AMENDED ............................. 260
REQUIREMENTS FOR AMENDMENT OR CANCELLATION . 260
Contract of agency ........... 260
DEFINITION .................................................... 260
CHARACTERISTICS ..........................................261
CONSTITUTION OF AGENCY.............................261
ESSENTIAL ELEMENTS............................................ 261
PARTIES ............................................................. 261
CAPACITY OF PARTIES ............................................ 261
INTENTION OF PARTIES .......................................... 261
CONSENT OF PARTIES ............................................ 261
POWER OF ATTORNEY ........................................... 262
FORM OF CONTRACT............................................. 262
DESIGNATION BY THE PARTIES ................................ 262
ACTS DELEGATED ................................................ 262
PRESUMPTION OF EXISTENCE ................................. 262
COMMUNICATION OF EXISTENCE OF AGENCY .............. 262
DUTY OF THIRD PERSON ........................................ 262
EFFECT ........................................................... 262
EXTENSION OF PERSONALITY ................................. 262
THEORY OF IMPUTED KNOWLEDGE .......................... 262
DISTINGUISHED FROM OTHER CONTRACTS .. 263
Kinds of agency................. 264
KINDS OF AGENCY, IN GENERAL .................... 264
AS TO MANNER OF ITS CREATION ............................ 264
AS TO CAUSE OR CONSIDERATION ........................... 264
AS TO EXTENT OF BUSINESS COVERED ...................... 265
AS TO AUTHORITY CONFERRED ............................... 265
AS TO ITS NATURE AND EFFECTS ............................. 265
AS TO KINDS OF PRINCIPAL .................................... 265
KINDS OF AGENCY AS TO MANNER OF
CREATION ...................................................... 265
EXPRESS AGENCY ................................................ 265
IMPLIED AGENCY ................................................. 265
KINDS OF AGENCY AS TO EXTENT OF BUSINESS
COVERED........................................................ 265
UNIVERSAL AGENCY ............................................. 265
GENERAL AGENCY ............................................... 265
SPECIAL AGENCY ................................................. 265
KINDS OF AGENCY AS TO AUTHORITY
CONFERRED ................................................... 265
COUCHED IN GENERAL TERMS ................................ 265
COUCHED IN SPECIFIC TERMS ................................. 265
SPECIAL KINDS OF AGENCY ........................... 266
AGENCY BY ESTOPPEL........................................... 266
AGENCY WITH UNDISCLOSED PRINCIPAL ....................267
AGENCY BY OPERATION OF LAW ...............................267
IRREVOCABLE AGENCY...........................................267
KINDS OF AGENTS...........................................267
AS TO NATURE AND EXTENT OF AUTHORITY ................267
SPECIAL TYPES OF AGENTS .................................... 268
Powers of the agent ......... 268
AUTHORITY OF AN AGENT ............................. 268
KINDS OF AUTHORITY .................................... 268
SCOPE OF AUTHORITY ................................... 268
POWER TO BIND THE PRINCIPAL ................... 269
EFFECTS OF ACTS OF AN AGENT .................... 269
Obligations of the agent .. 269
OBLIGATIONS, IN GENERAL ........................... 269
GOOD FAITH AND LOYALTY TO HIS TRUST .................. 269
OBEDIENCE TO PRINCIPAL'S INSTRUCTIONS .............. 269
EXERCISE OF REASONABLE CARE ............................ 269
OBLIGATION TO CARRY OUT AGENCY ............ 269
OBLIGATION IN CASE HE
DECLINES AGENCY ......................................... 269
OBLIGATION TO
ADVANCE NECESSARY FUNDS ....................... 270
OBLIGATION TO ACT IN ACCORDANCE WITH
INSTRUCTIONS ............................................... 270
OBLIGATION TO PREFER INTEREST OF
PRINCIPAL ...................................................... 270
BASIS OF THE RULE .............................................. 270
APPLICATION ...................................................... 270
OBLIGATION TO ACCOUNT AND TO DELIVER
THINGS RECEIVED ......................................... 270
WHAT TO DELIVER................................................. 271
LIABILITY FOR CONVERSION .................................... 271
EXEMPTING STIPULATION ....................................... 271
WHEN OBLIGATION NOT APPLICABLE......................... 271
RESPONSIBILITY FOR ACTS OF SUBSTITUTE ... 271
SUB-AGENCY ....................................................... 271
POWER TO APPOINT .............................................. 271
RELATIONS AMONG THE PARTIES ............................. 271
EFFECTS OF SUBSTITUTION ..................................... 271
RESPONSIBILITY OF TWO OR MORE AGENTS .. 271
OBLIGATION FOR SUMS APPLIED TO HIS OWN
USE ................................................................. 272
OBLIGATIONS TO THIRD PERSONS ................ 272
LIABILITY OF AGENT FOR OBLIGATIONS CONTRACTED .. 272
VOID CONTRACTS ................................................ 272
PRESENTATION OF POWER OF ATTORNEY.................. 272
RATIFICATION BY PRINCIPAL .................................. 272
IGNORANCE OF AGENT .......................................... 272
OBLIGATIONS OF COMMISSION AGENT.......... 273
FACTOR OR COMMISSION AGENT ............................. 273
RESPONSIBILITY FOR GOODS RECEIVED .................... 273
SALE OF GOODS ON CREDIT WITHOUT AUTHORITY ....... 273
SALE OF GOODS ON CREDIT WITH AUTHORITY ............ 273
RESPONSIBILITY FOR FRAUD
AND NEGLIGENCE........................................... 273
Obligations of
the principal .......................274
OBLIGATIONS, IN GENERAL ........................... 274
OBLIGATION TO COMPLY WITH OBLIGATIONS
CONTRACTED ................................................. 274
RATIFICATION ..................................................... 274
SEPARATE CONTRACTS WITH PRINCIPAL AND AGENT... 274
WHEN PRINCIPAL NOT LIABLE, IN SUMMARY.............. 274
OBLIGATION FOR
COMPENSATION OF AGENT ........................... 274
AMOUNT OF COMPENSATION ................................. 275
COMPENSATION OF BROKER .................................. 275
LIABILITY FOR EXPENSES AND DAMAGES ..... 275
NECESSARY FUNDS .............................................. 275
WHEN PRINCIPAL NOT LIABLE FOR EXPENSES ............ 275
DAMAGES .......................................................... 275
RIGHT OF RETENTION BY AGENT ............................. 275
MULTIPLE PRINCIPALS .......................................... 275
LIABILITY FOR QUASI-DELICT BY AGENT .................... 275
Extinguishment
of agency ............................276
MODES OF EXTINGUISHING AGENCY, IN
GENERAL.........................................................276
REVOCATION BY PRINCIPAL ...........................276
MULTIPLE PRINCIPALS ...........................................276
MANNER OF REVOCATION ......................................276
EFFECT OF REVOCATION
IN RELATION TO THIRD PARTIES...............................276
WITHDRAWAL BY AGENT ................................ 277
LIABILITY FOR DAMAGES ........................................ 277
OBLIGATION TO CONTINUE AGENCY .......................... 277
DEATH, CIVIL INTERDICTION, INSANITY OR
INSOLVENCY ................................................... 277
DEATH OF PRINCIPAL ............................................ 277
DEATH OF AGENT ................................................. 277
ACCOMPLISHMENT OF OBJECT OR PURPOSE . 277
DISSOLUTION OF FIRM OR CORPORATION ..... 277
EXPIRATION OF TERM ..................................... 277
CREDIT TRANSACTIONS
Credit Transactions ..........279
MEANING AND SCOPE OF CREDIT
TRANSACTIONS ............................................. 279
TWO TYPES OF CREDIT
TRANSACTIONS/CONTRACTS OF SECURITY . 279
Loan ...................................279
CHARACTERISTICS OF A LOAN ...................... 279
COMMODATUM V. MUTUUM .......................... 279
OBLIGATIONS OF BAILOR AND BAILEE .......... 279
WHO MAY BE A BAILOR IN COMMODATUM? ............... 279
WHAT ARE THE TWO (2) KINDS OF COMMODATUM? .... 280
OBLIGATIONS OF A BAILOR IN COMMODATUM
....................................................................... 280
OBLIGATIONS OF A BAILEE IN COMMODATUM
....................................................................... 280
INTEREST AND SUSPENSION OF USURY LAW 281
KINDS OF INTEREST ..............................................281
WHEN IS COMPOUND INTEREST ALLOWED? ...............281
REQUISITES FOR INTEREST TO BE CHARGEABLE ..........281
EXCEPTIONS TO REQUISITE OF EXPRESS STIPULATION ..281
RULES FOR AWARD OF INTEREST IN THE CONCEPT OF
ACTUAL AND COMPENSATORY DAMAGES ...................281
ELEMENTS OF USURY ...........................................281
Deposit ............................. 282
CHARACTERISTICS ........................................ 282
CONTRACT OF DEPOSIT IS GENERALLY
GRATUITOUS .................................................. 282
ONLY MOVABLE THINGS MAY BE THE OBJECT OF
A DEPOSIT ...................................................... 282
OBLIGATIONS OF DEPOSITOR ....................... 282
EXTINGUISHMENT OF DEPOSIT ..................... 282
EFFECT OF DEATH OF DEPOSITOR OR
DEPOSITARY .................................................. 282
KINDS OF DEPOSIT ........................................ 282
VOLUNTARY DEPOSIT .................................... 282
NECESSARY DEPOSIT .................................... 282
KINDS OF NECESSARY DEPOSITS ............................. 283
DEPOSITS BY TRAVELERS IN HOTELS AND INNS........... 283
EXTENT OF LIABILITY UNDER ART.1998 ................... 283
WHEN HOTEL-KEEPER LIABLE ................................ 283
WHEN HOTEL-KEEPER NOT LIABLE .......................... 283
HOTEL-KEEPER’S RIGHT TO RETENTION ................... 283
JUDICIAL DEPOSIT ......................................... 283
NATURE AND PURPOSE ........................................ 283
DEPOSITARY OF SEQUESTERED PROPERTY ................ 283
APPLICABLE LAW ................................................ 283
Guaranty and Suretyship 283
GUARANTY DISTINGUISHED
FROM SURETYSHIP ....................................... 284
NATURE AND EXTENT OF GUARANTY ........... 284
NATURE AND EXTENT OF GUARANTY ....................... 284
NATURE AND EXTENT OF SURETYSHIP ......... 286
EFFECT OF GUARANTY ................................... 287
EFFECTS OF GUARANTY BETWEEN THE GUARANTOR AND
THE CREDITOR ................................................... 287
EFFECTS OF GUARANTY BETWEEN THE DEBTOR AND THE
GUARANTOR ...................................................... 288
EFFECTS OF GUARANTY AS BETWEEN CO-GUARANTORS
....................................................................... 289
EXTINGUISHMENT OF GUARANTY ................. 289
LEGAL AND JUDICIAL BONDS ........................ 289
QUALIFICATIONS OF PERSONAL BONDSMAN ............. 289
PLEDGE OR MORTGAGE IN LIEU OF BOND ................. 290
BONDSMAN NOT ENTITLED TO EXCUSSION ............... 290
Pledge .............................. 290
DEFINITION ................................................... 290
PROVISIONS APPLICABLE ONLY TO PLEDGE . 290
KINDS ............................................................ 290
ESSENTIAL REQUIREMENTS ......................... 290
ESSENTIAL REQUISITES COMMON TO PLEDGE AND
MORTGAGE ....................................................... 290
OBLIGATION OF PLEDGEE ............................. 290
RIGHTS OF PLEDGOR .................................... 290
PERFECTION .................................................. 291
REQUISITES FOR PERFECTION ................................. 291
FORECLOSURE .............................................. 291
REQUIREMENTS IN SALE OF THE THING PLEDGED BY A
CREDITOR, IF CREDIT IS NOT PAID ON TIME ............... 291
EFFECT OF THE SALE OF THE THING PLEDGED ............. 291
PLEDGE BY OPERATION OF LAW ................... 291
LEGAL PLEDGES/PLEDGE BY OPERATION OF LAW ........ 291
DISTINGUISHED FROM CHATTEL MORTGAGE
........................................................................ 291

Real Mortgage ................. 292
DEFINITION AND CHARACTERISTICS ............. 292
OBJECTS OF REAL MORTGAGE ................................ 292
CHARACTERISTICS ............................................... 292
KINDS ............................................................... 292
PRINCIPLE OF INDIVISIBILITY OF PLEDGE/MORTGAGE . 293
ESSENTIAL REQUISITES ................................. 293
ESSENTIAL REQUISITES COMMON TO PLEDGE AND
MORTGAGE ........................................................ 293
FORECLOSURE ............................................... 293
FORECLOSURE OF MORTGAGE ................................ 293
KINDS OF FORECLOSURE ....................................... 293
JUDICIAL FORECLOSURE ....................................... 293
EXTRAJUDICIAL FORECLOSURE ............................... 293
Antichresis ........................ 295
DEFINITION AND CHARACTERISTICS ............. 295
CHARACTERISTICS ............................................... 295
SPECIAL REQUISITES ............................................ 295
OBLIGATIONS OF ANTICHRETIC CREDITOR ... 295
REMEDIES OF CREDITOR IN CASE OF NON-PAYMENT OF
DEBT ................................................................ 295
Chattel Mortgage ............ 296
DEFINITION AND CHARACTERISTICS ............. 296
CHARACTERISTICS ............................................... 296
REGISTRATION .............................................. 296
PERIOD WITHIN WHICH REGISTRATION SHOULD BE MADE
....................................................................... 296
EFFECT OF REGISTRATION ..................................... 296
REGISTRATION OF ASSIGNMENT OF MORTGAGE NOT
REQUIRED ......................................................... 296
VENUE OF REGISTRATION ...................................... 296
VALIDITY OF CHATTEL MORTGAGE ................ 296
FORMAL REQUISITES .................................... 296
DESCRIPTION OF PROPERTY .................................. 297
PROPERTY COVERED BY CM ................................... 297
DISPOSITION OF PROCEEDS .......................... 297
Quasi-Contracts ...............297
NEGOTIORUM GESTIO (UNAUTHORIZED
MANAGEMENT) ............................................. 298
THE OBLIGATION DOES NOT ARISE .......................... 298
OBLIGATIONS OF A GESTOR ................................... 298
OBLIGATIONS OF THE OWNER OF THE PROPERTY OR
BUSINESS ......................................................... 298
EFFECT OF RATIFICATION ...................................... 298
EXTINGUISHMENT OF MANAGEMENT ....................... 298
SOLUTIO INDEBITI (UNDUE PAYMENT) ........ 299
WHEN DEBT NOT YET DUE ..................................... 299
RESPONSIBILITY OF TWO OR MORE PAYEES ............... 299
WHEN MONEY OR THING DELIVERED IS OWNED BY THIRD
PERSON ............................................................ 299
LIABILITY OF PAYEE ............................................ 299
EXEMPTION FROM THE OBLIGATION TO RESTORE THE
PAYMENT UNDULY MADE ...................................... 299
PRESUMPTION OF PAYMENT BY MISTAKE, DEFENSE .... 299
OTHER QUASI-CONTRACTS ........................... 299
Concurrence and Preference
of Credits .......................... 300
MEANING OF
CONCURRENCE AND PREFERENCE ................ 300
PREFERRED CREDITS ON SPECIFIC MOVABLES
....................................................................... 300
PREFERRED CREDITS ON SPECIFIC IMMOVABLES
AND REAL RIGHTS .......................................... 301
PREFERRED CREDITS ON OTHER PROPERTY,
REAL AND PERSONAL .................................... 301
EXEMPT PROPERTY ....................................... 302
CLASSIFICATION OF CREDITS ........................ 302
ORDER OF PREFERENCE OF CREDITS ........... 302
LAND TITLES & DEEDS
Torrens System ................. 304
THE TORRENS SYSTEM .................................. 304
PURPOSE........................................................... 304
ADVANTAGES ..................................................... 304
BACKGROUND .................................................... 304
CERTIFICATE OF TITLE ................................... 304
ORIGINAL CERTIFICATE OF TITLE OR OCT ................... 304
TRANSFER CERTIFICATE OF TITLE OR TCT .................. 304
PATENTS .......................................................... 304
Regalian Doctrine............. 305
EFFECTS ......................................................... 305
CONCEPT OF NATIVE TITLE, TIME IMMEMORIAL
POSSESSION................................................... 305
Citizenship Doctrine ......... 305
INDIVIDUALS AND CORPORATIONS ............... 305
CONSTITUTIONAL REQUIREMENTS AND LIMITATIONS... 305
KRIVENKO DOCTRINE............................................ 305
Original Registration ........ 306
WHO MAY APPLY ............................................ 306
UNDER PD 1529 .................................................. 306
UNDER CA 141 .................................................... 307
UNDER RA 8371 .................................................. 307
REGISTRATION PROCESS
AND REQUIREMENTS ..................................... 309
WHAT LANDS ARE REGISTRABLE ............................. 309
SURVEY ..............................................................310
APPLICATION .......................................................310
INITIAL HEARING ..................................................310
PUBLICATION .......................................................310
OPPOSITION ........................................................ 311
HEARING ............................................................ 311
JUDGMENT .......................................................... 311
ISSUANCE OF DECREE ............................................ 311
REMEDIES........................................................ 311
GROUND FOR REOPENING AND REVIEWING THE DECREE OF
REGISTRATION ..................................................... 311
PERIODS ............................................................. 311
PROHIBITIONS ..................................................... 311
IMPRESCRIPTIBLE ........................................... 312
NOT SUBJECT TO COLLATERAL ATTACK ......... 312
JUDICIAL CONFIRMATION OF IMPERFECT OR INCOMPLETE
TITLES ................................................................ 313
CADASTRAL REGISTRATION ...........................314
STEPS IN CADASTRAL REGION PROCEEDINGS .............. 315
Subsequent Registration .. 315
TWO TYPES OF DEALINGS ............................... 315
VOLUNTARY DEALINGS .......................................... 315
INVOLUNTARY DEALINGS........................................ 315
NECESSITY AND EFFECTS OF REGISTRATION . 315
WHEN SHOULD A PURCHASER INVESTIGATE?
........................................................................ 316
VOLUNTARY DEALINGS ................................... 317
REGISTRATION OF VOLUNTARY
INSTRUMENTS IN GENERAL .................................... 317
REGISTRATION OF DEEDS OF SALE AND TRANSFERS ..... 318
MORTGAGES AND LEASES ...................................... 318
POWERS OF ATTORNEY; TRUSTS .............................. 318
INVOLUNTARY DEALINGS ............................... 319
ATTACHMENT ...................................................... 319
EXECUTION AND TAX DELINQUENCY SALES ................ 320
NOTICE OF LIS PENDENS ....................................... 320
ADVERSE CLAIM .................................................. 320
Non-registrable Properties
............................................ 321
NON-REGISTRABLE LANDS ............................. 321
Dealings with Unregistered
Lands ................................. 322
TORTS & DAMAGES
Principles of Torts ............. 324
ABUSE OF RIGHT ............................................ 324
ELEMENTS ......................................................... 324
ACTS CONTRARY TO LAW .............................. 324
REQUISITES........................................................ 324
ACTS CONTRARY TO MORALS ........................ 324
ELEMENTS ......................................................... 324
EXAMPLES ......................................................... 324
BREACH OF PROMISE TO MARRY, SEDUCTION AND SEXUAL
ASSAULT ........................................................... 324
MALICIOUS PROSECUTION ..................................... 325
ELEMENTS ......................................................... 325
PUBLIC HUMILIATION ........................................... 325
UNJUSTIFIED DISMISSAL ....................................... 325
UNJUST ENRICHMENT ................................... 325
LIABILITY WITHOUT FAULT ..................................... 325
BASIS OF LIABILITY .............................................. 326
SCOPE OF LIABILITY ............................................. 326
Classification of Torts ....... 326
ACCORDING TO MANNER OF COMMISSION ... 326
ACCORDING TO MANNER OF SCOPE ............. 326
GENERAL ........................................................... 326
SPECIFIC ............................................................ 326
Acts of Omission and its
The Tortfeasor .................. 326 Modalities ........................... 333
THE DIRECT TORTFEASOR.............................. 326

PERSONS MADE LIABLE FOR OTHERS ........... 326

PRINCIPLE OF VICARIOUS LIABILITY; DEFINITION ......... 326
BASIS OF VICARIOUS LIABILITY ................................ 326
LIABILITY OF THE ACTUAL TORTFEASOR .................... 327
2 REQUISITES ACCORDING TO CHIRONI ..................... 327
PRESUMPTION OF NEGLIGENCE ON PERSONS INDIRECTLY
RESPONSIBLE ..................................................... 327
NATURE OF LIABILITY ........................................... 327
PERSONS VICARIOUSLY LIABLE ..................... 327
WHO ARE LIABLE FOR MINORS ................................ 327
PARENTS AND ADOPTERS ............................. 327
BASIS OF LIABILITY ............................................... 327
WHEN RESPONSIBILITY CEASES............................... 327
MEANING OF “MINORITY” ..................................... 327
ADOPTED CHILDREN ............................................. 327
ILLEGITIMATE CHILDREN ....................................... 327
REASON FOR VICARIOUS LIABILITY........................... 327
REQUISITES FOR LIABILITY TO ATTACH...................... 328
PARENTAL AUTHORITY OVER FOUNDLINGS, ABANDONED,
NEGLECTED OR ABUSED AND OTHER SIMILARLY SITUATED
CHILDREN .......................................................... 328
Proximate Cause ............... 333
CONCEPT OF PROXIMATE CAUSE.................... 333
DEFINITION ..................................................... 333
PROXIMATE CAUSE ............................................... 333
PROXIMATE LEGAL CAUSE ...................................... 333
DIFFERENTIATED FROM ................................. 333
REMOTE CAUSE .................................................... 333
INTERVENING CAUSE ............................................. 333
EFFICIENT INTERVENING CAUSE .............................. 334
TESTS TO DETERMINE PROXIMATE CAUSE .... 334
CAUSE IN FACT .................................................... 334
EFFECTIVENESS OF THE CAUSE; “BUT FOR” RULE ....... 334
SUBSTANTIAL FACTOR TEST ................................... 334
FORESEEABILITY TEST .......................................... 334
NATURAL AND PROBABLE CONSEQUENCE TEST .......... 334
ORDINARY AND NATURAL OR
DIRECT CONSEQUENCE TEST .................................. 334
HINDSIGHT TEST ................................................. 334
ORBIT OF THE RISK TEST ....................................... 334

GUARDIANS.................................................... 328 CAUSE V. CONDITION ..................................... 334

LIABILITY OF GUARDIANS....................................... 328
LEGAL CAUSE ................................................. 334
NATURAL AND PROBABLE CONSEQUENCES ............... 334
SCHOOL, TEACHERS AND ADMINISTRATORS 328
FORESEEABILITY ................................................. 334

OWNERS AND MANAGERS OF ESTABLISHMENTS

AND ENTERPRISES ......................................... 329 DOCTRINE OF LAST CLEAR CHANCE .............. 335
ELEMENTS ......................................................... 335
COVERS SUCCESSIVE ACTS OF NEGLIGENCE ............... 335
EMPLOYERS (IN GENERAL)............................. 329 INAPPLICABLE TO JOINT TORTFEASORS .................... 335
MEANING OF EMPLOYER ........................................ 329
INDEPENDENT CONTRACTOR.................................. 330
REQUISITES ........................................................ 330
CONTRIBUTORY NEGLIGENCE........................ 335
WHEN IS IT A BAR TO RECOVERY.............................. 335
EMPLOYER NEED NOT BE ENGAGED IN BUSINESS OR
INDUSTRY .......................................................... 330
DEFENSE OF DILIGENCE IN SELECTION AND SUPERVISION
........................................................................ 331
Legal Injury........................ 336
THE STATE ...................................................... 332 ELEMENTS ..................................................... 336
INSTANCES WHERE THE STATE GIVES ITS CONSENT TO BE
SUED ................................................................ 332 CLASSES OF INJURY ....................................... 336
INJURY TO PERSONS ............................................ 336
INJURY TO PROPERTY ........................................... 336
JOINT TORTFEASORS ..................................... 332
INJURY TO RELATIONS .......................................... 336
DEFINITION OF “JOINT TORTFEASORS”..................... 332
APPLICABILITY OF THE PROVISION ........................... 332
NATURE OF LIABILITY ........................................... 332
Intentional Torts ............... 336
CONCEPT ........................................................ 336
VIOLATIONS OF A PERSON’S SECURITY AND
PHYSICAL INJURIES ....................................... 337
BATTERY (PHYSICAL INJURY) .................................. 337
INTERESTS PROTECTED BY LAW .............................. 337
ASSAULT (GRAVE THREAT)..................................... 337
FALSE IMPRISONMENT (ILLEGAL DETENTION) ............ 337
INTERFERENCE WITH PERSONAL PROPERTY 337
TRESPASS TO LAND .............................................. 337
TRESPASS TO CHATTELS........................................ 337
CONVERSION ...................................................... 337
INTENTIONAL NON-PHYSICAL HARMS....................... 337
VIOLATION OF PERSONAL DIGNITY ........................... 338
INFLICTION OF EMOTIONAL DISTRESS ....................... 338
VIOLATION OF PRIVACY ......................................... 338
DISTURBANCE OF PEACE OF MIND ........................... 339
MALICIOUS PROSECUTION ..................................... 339
DEFAMATION, FRAUD
AND PHYSICAL INJURIES ................................ 340
DEFAMATION ...................................................... 340
DEFENSES ......................................................... 340
FRAUD OR MISREPRESENTATION (FORMERLY DECEIT) . 340
SEDUCTION ........................................................ 340
UNJUST DISMISSAL .............................................. 340
INTERFERENCE WITH RELATIONS ...................341
KINDS ................................................................ 341
FAMILY RELATIONS .........................................341
ALIENATION OF AFFECTION ..................................... 341
LIABILITY OF PARENTS, GUARDIANS OR KIN ................ 341
LOSS OF CONSORTIUM .......................................... 342
CRIMINAL CONVERSATION (ADULTERY) .................... 342
SOCIAL RELATIONS ........................................ 342
MEDDLING WITH OR DISTURBING FAMILY RELATIONS .. 342
INTRIGUING TO CAUSE ANOTHER TO BE ALIENATED FROM
HIS FRIENDS ....................................................... 342
ECONOMIC RELATIONS .................................. 343
INTERFERENCE WITH CONTRACTUAL RELATIONS ........ 343
UNFAIR COMPETITION .......................................... 343
POLITICAL RELATIONS ................................... 343
VIOLATION OF RIGHT TO SUFFRAGE.......................... 343
VIOLATION OF OTHER POLITICAL RIGHTS (FREEDOM OF
SPEECH, PRESS, ASSEMBLY AND PETITION, ETC.) ....... 344
Negligence ........................ 344
ELEMENTS ...................................................... 344
TEST OF NEGLIGENCE..................................... 344
GOOD FATHER OF A FAMILY (BONUS PATER
FAMILIAS)....................................................... 345
WHAT CONSTITUTES THE CONDUCT OF A PRUDENT MAN IN
A GIVEN SITUATION ............................................. 345
STANDARD OF CARE ...................................... 345
STANDARD OF CARE REQUIRED OF BANKS ................ 345
STANDARD OF CARE OF CHILDREN .......................... 345
STANDARD OF CARE OF EXPERTS/PROFESSIONALS .... 345
IN CASE OF INSANE PERSONS ................................. 346
EMERGENCY RULE OR SUDDEN PERIL DOCTRINE......... 346
UNREASONABLE RISK OR HARM ............................. 346
EVIDENCE ....................................................... 346
QUANTUM OF PROOF IN QUASI-DELICT VS. QUANTUM OF
PROOF IN BREACH OF CONTRACT ........................... 346
PRESUMPTION OF NEGLIGENCE .................... 346
PRESUMED NEGLIGENCE OR NEGLIGENCE PER SE ........347
RES IPSA LOQUITUR ..............................................347
DEFENSES .......................................................347
DUE DILIGENCE ....................................................347
ACTS OF PUBLIC OFFICERS ......................................347
ACCIDENT OR FORTUITOUS EVENT ............................347
DAMNUM ABSQUE INJURIA .................................... 348
AUTHORITY OF LAW ............................................. 348
ASSUMPTION OF RISK (VOLENTI NON FIT INJURA) ....... 348
LAST CLEAR CHANCE ............................................ 349
PRESCRIPTION ................................................... 349
WAIVER ............................................................. 349
DOUBLE RECOVERY ............................................. 349
ACTIONS AVAILABLE TO VICTIMS OF NEGLIGENCE........ 350
EFFECT OF ACQUITTAL OF THE ACCUSED ON HIS CIVIL
LIABILITY ........................................................... 350
NO RESERVATION IS REQUIRED IN THE CRIMINAL CASE FOR
THE FILING OF CIVIL ACTION ARISING FROM QUASI-DELICT
....................................................................... 350
Special Liability in Particular
Cases ................................. 350
PRODUCTS LIABILITY ...................................... 351
REQUISITES OF LIABILITY........................................ 351
BURDEN OF PROOF ............................................... 351
WHO MAY RECOVER .............................................. 351
CONSUMER ACT ................................................... 351
NUISANCE ...................................................... 354
LIABILITY FOR NEGLIGENCE VS. LIABILITY FOR NUISANCE
....................................................................... 354
NUISANCE PER SE ................................................ 354
NUISANCE PER ACCIDENCE .................................... 355
PUBLIC NUISANCE ................................................ 355
PRIVATE NUISANCE .............................................. 355
ATTRACTIVE NUISANCE ......................................... 355
VIOLATION OF CONSTITUTIONAL RIGHTS ...... 356
VIOLATION OF CIVIL LIBERTIES ................................ 356
VIOLATIONS OF RIGHTS COMMITTED BY PUBLIC OFFICERS
....................................................................... 356
PROVINCES, CITIES, AND MUNICIPALITIES ................. 357
OWNERS OF MOTOR VEHICLES ................................ 357
PROPRIETOR OF BUILDING OR STRUCTURE ................ 358
HEAD OF FAMILY.................................................. 359
Strict Liability .................... 359
POSSESSOR AND USER OF AN ANIMAL ......... 359
APPLICABILITY OF PROVISION ................................. 359
BASIS ................................................................ 359
POSSIBLE DEFENSES AGAINST THIS LIABILITY ............. 359
SCOPE OF PROVISION ........................................... 359
NUISANCE ...................................................... 359
CLASSES ............................................................ 359
EASEMENT AGAINST NUISANCE............................... 360
PRODUCTS LIABILITY .................................... 360
CONSUMER ACT ............................................. 360
Damages ........................... 362
DEFINITION .................................................... 362
DAMAGES VS. INJURY..................................... 362
ELEMENTS FOR RECOVERY OF DAMAGES ...... 362
CLASSIFICATION ............................................. 362
ACCORDING TO PURPOSE ...................................... 362
ACCORDING TO MANNER OF DETERMINATION ............ 362
SPECIAL AND ORDINARY........................................ 362
Actual and Compensatory
Damages ........................... 362
REQUISITES .................................................... 362
WHEN IS A PERSON ENTITLED ...................... 362
ALLEGED AND PROVED WITH CERTAINTY...... 362
THE DAMAGES MUST BE PROVEN BY
COMPETENT EVIDENCE (ADMISSIBLE OR
PROBATIVE) ................................................... 362
DEGREE OF CERTAINTY REQUIRED AS TO: FACT,
CAUSE AND AMOUNT OF DAMAGES .............. 363
NOT SPECULATIVE ......................................... 363
COMPONENTS ................................................ 363
VALUE OF LOSS; UNREALIZED PROFIT .......... 363
ATTORNEY’S FEES AND EXPENSES OF
LITIGATION..................................................... 363
INTEREST ....................................................... 364
INTEREST ACCRUES WHEN ..................................... 364
COMPOUNDING OF INTEREST ................................. 364
DETERMINATION OF LEGAL INTEREST ...................... 364
START OF DELAY ............................................ 365
EXTENT OR SCOPE OF ACTUAL DAMAGES ..... 365
IN CONTRACTS AND QUASI-CONTRACTS....... 365
IN CRIMES AND QUASI-DELICTS .................... 366
Moral Damages ................ 366
WHEN AWARDED ............................................367
REQUISITES FOR
AWARDING MORAL DAMAGES........................367
GENERAL PRINCIPLES OF RECOVERY .............367
WHEN RECOVERABLE .................................... 368
IN SEDUCTION, ABDUCTION, RAPE AND OTHER LASCIVIOUS
ACTS ................................................................ 368
IN ACTS REFERRED TO IN ARTS. 21, 26, 27, 28, 29, 32,
34 &35, NCC ..................................................... 368
IN CASES OF MALICIOUS PROSECUTION .................... 370
Nominal Damages ............370
REQUISITES AND CHARACTERISTICS............. 370
WHEN AWARDED ........................................... 370
Temperate Damages ........370 EXEMPLARY WITH MORAL, TEMPERATE, LIQUIDATED OR
COMPENSATORY ..................................................375

REQUISITES ..................................................... 371 DAMAGES THAT MUST STAND ALONE ............375

NOMINAL DAMAGES ..............................................376

Liquidated Damages.......... 371

REQUISITES AND CHARACTERISTICS .............. 371

RULES GOVERNING BREACH OF CONTRACT ... 371

Exemplary Or Corrective
Damages ............................. 371
WHEN RECOVERABLE..................................... 372
IN CRIMINAL OFFENSES ........................................ 372
IN QUASI-DELICTS................................................ 372
IN CONTRACTS AND QUASI-CONTRACTS.................... 372
REQUISITES ........................................................ 372
DAMAGES IN CASE OF DEATH RE. CRIMES AND QUASI-
DELICTS............................................................. 373

Graduation of Damages ... 373

DUTY OF THE INJURED PARTY........................ 373

BURDEN OF PROOF ........................................ 374

RULES ............................................................. 374

IN CRIMES .......................................................... 374
IN QUASI-DELICTS................................................ 374
CONTRIBUTORY NEGLIGENCE ................................. 374
PLAINTIFF’S NEGLIGENCE ...................................... 374
IN CONTRACTS, QUASI-CONTRACTS AND QUASI-DELICTS
....................................................................... 374
INSTANCES OF GROUNDS FOR MITIGATION OF DAMAGES
....................................................................... 374
RULE WHEN CONTRACTING PARTIES ARE IN PARI DELICTO
....................................................................... 375

LIQUIDATED DAMAGES .................................. 375

COMPROMISE ................................................. 375

Miscellaneous Rules ......... 375

DAMAGES THAT CANNOT CO-EXIST ............... 375
NOMINAL WITH OTHER DAMAGES ............................ 375
ACTUAL AND LIQUIDATED ...................................... 375

DAMAGES THAT MUST CO-EXIST ................... 375

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Effect and Application of
Laws
The Civil Code took effect on August 30, 1950
WHEN LAWS TAKE EFFECT
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such
publication. (1a)
Tañada v. Tuvera (1986):
(a) The clause "unless it is otherwise provided" refers
to the date of effectivity and not to the
requirement of publication itself, which cannot in
any event be omitted.
(b) Publication is indispensable in every case, but the
legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or
extended.
(c) EXCEPTION: interpretative regulations and those
internal in nature
IGNORANCE OF THE LAW
Art. 3. Ignorance of the law excuses no one from
compliance therewith. (2)
(a) Conclusive Presumption – That everyone knows
the law, even if they have no actual knowledge of
the law
(b) Mistake of Fact & Difficult Questions of Law -
These may excuse a party from the legal
consequences of his conduct; but not ignorance
of law.
(c) In specific instances provided by law, mistake as
to difficult legal questions has been given the
same effect as a mistake of fact. (Tolentino)
(d) The laws referred to by this article are those of
the Philippines. There is no conclusive
presumption of knowledge of foreign laws.
(Tolentino)
RETROACTIVITY OF LAWS
Art. 4. Laws shall have no retroactive effect, unless
the contrary is provided. (3)
General Rule: All statutes are to be construed as
having only prospective operation
Exceptions
(1) When the law itself expressly provides
Exceptions to Exception:
(a) Ex post facto law
INTRODUCTION BAR OPERATIONS COMMISSION
(b) Impairment of contract
(2) In case of remedial statutes
(3) In case of curative statutes
(4) In case of laws interpreting others
(5) In case of laws creating new rights [Bona v.
Briones (1918)]
(6) Penal Laws favorable to the accused
ACTS CONTRARY TO LAW
Art. 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. (4a)
WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a
right recognized by law. (4a)
Waiver – the relinquishment of a known right with
both knowledge of its existence and an intention to
relinquish it. [Portland v. Spillman]
Exceptions:
(1) If the waiver is contrary to law, public order,
public policy, morals or good customs
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist
(4) If the right is a natural right
REPEAL OF LAWS
Art. 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent
with the Constitution, the former shall be void and
the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution. (5a)
TWO KINDS OF REPEAL OF LAW [Tolentino]
(1) Express or Declared – contained in a special
provision of a subsequent law
(2) Implied or Tacit – takes place when the provisions
of the subsequent law are incompatible or
inconsistent with those of an earlier law.
JUDICIAL DECISIONS
Art. 8. Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal
system of the Philippines. (n)
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(a) Jurisprudence cannot be considered as an
independent source of law; it cannot create law.
(1 Camus 38 as cited in Tolentino)
(b) But the Court’s interpretation of a statute
constitutes part of the law as of the date it was
originally passed since the Court’s construction
merely establishes contemporaneous legislative
intent that the interpreted law carried into effect.
[Senarillos v. Hermosisima (1956)]
DUTY TO RENDER JUDGMENT
Art. 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or
insufficiency of the laws. (6)
Exception:
This article does not apply to criminal prosecutions
because where there is no law punishing an act, the
case must be dismissed. [Tolentino]
PRESUMPTION AND APPLICABILITY OF CUSTOM
Art. 10. In case of doubt in the interpretation or
application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
(n)
Art. 11. Customs which are contrary to law, public
order or public policy shall not be countenanced. (n)
Art. 12. A custom must be proved as a fact, according
to the rules of evidence. (n)
LEGAL PERIODS
Art. 13. When the laws speak of years, months, days
or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty
days; days, of twenty-four hours; and nights from
sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they
respectively have.
In computing a period, the first day shall be
excluded, and the last day included. (7a)
POLICY ON LAST DAY BEING A LEGAL HOLIDAY/SUNDAY
(a) If the period arises by statute or orders by the
government, the last day will automatically be
considered the next working day
(b) If the period arises from a contractual
relationship, the act will still be due on that Legal
Holiday/Sunday
INTRODUCTION BAR OPERATIONS COMMISSION
APPLICABILITY OF PENAL LAWS
Art. 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
(8a)
EXEMPTIONS UNDER INTERNATIONAL LAW (THEORY OF
EXTRATERRITORIALITY):
(1) When the offense is committed by a foreign
sovereign while in Philippine territory
(2) When the offense is committed by diplomatic
representatives
(3) When the offense is committed in a public or
armed vessel of a foreign country.
CONFLICT OF LAWS
CONFLICT OF LAWS/ PRIVATE INTERNATIONAL LAW
(a) It is a branch or part of Philippine Law which
regulates the application of foreign law within
Philippine jurisdiction in the resolution of cases
involving foreign elements.
(b) It is that part of municipal law which governs
cases involving a foreign element.
(c) Private International Law is more commonly
known in other jurisdictions as conflict of laws
SOURCES
(1) Codes and statutes
(2) Treaties and international conventions
(3) Treatises, commentaries, and studies of learned
societies
(4) Judicial decisions
EXAMPLES OF CONFLICT OF LAW RULES IN THE PHILIPPINES
(1) Art. 15 CC: Lex Patriae
(2) Art. 1251 (par. 3) CC: Lex Domicili
(3) Art. 16 CC: Lex Situs/ Lex Rei Sitae
(4) Art. 17 (par. 1) CC: Lex Loci Contractus
(5) Art. 71 CC: Lex Loci Celebrationis
(6) Art. 26 (par. 1) FC: Lex Loci Celebrationis
(7) Art. 1306 CC: Lex Loci Intentionis
Art. 15. Laws relating to family rights and duties, or
to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even
though living abroad. (9a)
Most civil law countries such as the Philippines
follow the National Law Theory:
It is the nationality or citizenship of the individual,
which regulates the following:
(a) Civil status
(b) Capacity
(c) Condition
(d) Family rights and duties
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(e) Laws on Succession itself, governing law is the law of the state
(f) Capacity to succeed which has real interest

According to the Supreme Court, it is a conflict of RULE ON SUCCESSION

laws theory by virtue of which jurisdiction over the Extrinsic Validity [Arts. 17, 815-817, CC]
particular subject matter affecting a person is Place of
determined by the latter’s nationality. [Ellis vs. Applicable law
execution
Republic (1963)]
Philippines Philippine Law

Filipino Testator
RULE ON PROPERTY Foreign (1) Law of the place where he
Controlling Law — Lex Situs/Lex Rei Sitae Country may be (lex loci
celebrationis) [Art 815]
General Rule: Real and Personal Property is subject (2) Philippine law [see III
to the law of the country where it is situated (Art. 16) Tolentino 117]

Application of the Doctrine of Lex Situs/Lex Rei Sitae

Philippines (1) Philippine Law (Art. 17)
(1) The capacity to transfer or acquire property is
(2) Law of the country in
governed by Lex Situs.
which he is a citizen or
subject (lex nationali) [Art.
Note: Transfer of property to a foreigner who
817]
subsequently became a Filipino citizen shall be

Alien Testator
recognized [Llantino v Co Liong Chong]
Foreign (1) Law of the place in which
(2) The formalities of a contract to convey property Country he resides (lex domicilii)
are governed by Lex Situs (Arts. 816, (2) Law of his country (lex
17) nationali)
Exceptions to Lex Situs (3) Philippine law
(1) Transactions Not Affecting Transfer of Title or (4) Law of the place where
Ownership of Land: Lex Intentionis or Lex they were executed (lex
Voluntatis loci celebrationis)

(2) Contracts where Real Property Offered as Security:

The principal contract is the loan while the
mortgage of the land is only an accessory
(a) Mortgage - Lex Situs
(b) Loan Contract - Rules on ordinary contracts
(3) Intestate and Testamentary Succession:
Intestate and testamentary successions shall be
regulated by the national law of the decedent,
with respect to the following [Art. 16(2); Art. 1039]
(a) Order of succession
(b) Amount of succession rights
(c) Intrinsic validity of the testamentary provisions
(d) Capacity to succeed
(4) Under a Policy-centered Approach:
Forum court is not bound to look to the law of the
situs when the situs of the movable property is
insignificant or accidental
(a) Questions relating to the validity and effect of
the transfer of the movable property are
governed by the law of the place of principal
use
(b) Where the issue involves considerations other
than the validity and effect of the transfer
Note: Rule re: Joint Wills
(1) Joint wills prohibited under Art. 818 executed by
Filipinos in a foreign country shall not be valid in
the Philippines even though authorized by the
laws of the country where they were executed.
(Art. 819)
(2) Civil Code is silent as to the validity of a joint will
executed by an alien in the Philippines. It is
suggested that it should not be probated if it
would affect the heirs in the Philippines.
Intrinsic Validity
Intestate and testamentary successions shall be
regulated by the national law of the decedent, with
respect to the following (Art. 16(2); Art. 1039)
(1) Order of succession
(2) Amount of successional rights
(3) Intrinsic validity of the testamentary provisions
(4) Capacity to succeed
Interpretation of Wills
Governed by the National Law of the decedent.

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Revocation
Testator Applicable Law Art. 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by
the laws of the country in which they are executed.
Philippine
Will is revoked in
the Philippines

Domiciliary
When the acts referred to are executed before the
Philippine Law diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
Non-domiciliary
established by Philippine laws shall be observed in
[Art. 829]
their execution.
(1) Philippine Law Prohibitive laws concerning persons, their acts or
Philippine (2) Law of the place of property, and those which have, for their object,
Will is revoked in a

Domiciliary revocation (lex loci

Foreign Country

public order, public policy and good customs shall

actus) not be rendered ineffective by laws or judgments
(1) law of the place where promulgated, or by determinations or conventions
the will was made agreed upon in a foreign country. (11a)
Non-domiciliary (2) law of the place in
[Art. 829] which the testator had
RULE ON EXTRINSIC VALIDITY OF CONTRACTS
his domicile at the
General Rule: Lex Loci Celebrationis
time of the revocation
The forms and solemnities of contracts xxx shall
be governed by the laws of the country in which
Probate of wills
they are executed [Art. 17]
Controlling Law:
The probate of a will being essentially procedural in
Note:
character, the law of the forum (lex fori) governs.
(1) Contracts Before Diplomatic/ Consular Officials:
The solemnities established by Philippine laws
Wills Proved and Allowed in a Foreign Country
shall be observed with respect to contracts
(1) A will proved and allowed in a foreign country in
executed before diplomatic or consular officials of
accordance with the laws of that country may be
the Republic of the Philippines in a foreign
allowed, filed, and recorded in the proper
country [Art. 17(2), FC]
Regional Trial Court in the Philippines (RULES
(2) Contracts entered Into by Letter/ Cablegram, etc.:
OF COURT, Rule 77, Sec.1)
A contract accepted by letter or cablegram is
(2) Requisites for Reprobate [Vda de Perez v Tolete,
presumed to have been entered into the place
232 SCRA 722]
where the offer was made. [Art. 1319(2)]
The following must be proved by competent
Three possible laws:
evidence:
(1) Lex Loci Contractus (Asked in 95, 02 BAR
(a) due execution of the will in accordance with the
EXAMINATIONS)
foreign laws
(a) Law of the place where the contract is made
(b) the testator had his domicile in the foreign
(b) Merits
country and not in the Philippines
(i) Relative ease in establishing
(c) the will has been admitted to probate in such
(ii) Certainty and stability
country
(c) Demerit - Unjust results when place of
(d) the laws of the foreign country on procedure and
making entirely incidental
allowance of wills
Note: To determine where the contract is made, we
Administration of Estates
look to the place where the last act is done which is
Territorial: governed by the law of the place where
necessary to bring the binding agreement into being
the administration takes place, and that is the law of
so far as the acts of the parties are concerned.
the country from which the administrator derives his
authority.
(2) Lex Loci Solutionis
(a) Law of the place of performance governs
Trusts
(b) Merit - Always connected to the contract in a
Extrinsic validity: Rule governing wills apply intrinsic
significant way
validity: lex situs since a trust involves property cf Art.
17

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(c) Demerit - Not helpful when the contract is
performed in 2 or more states with conflicting
laws
(3) Lex Loci Intentionis
(a) Law intended by the parties
(b) Basis:
The contracting parties may establish such
stipulations, clauses, terms and conditions as
they may deem convenient, provided they are
not contrary to law, morals, good customs,
public order, or public policy [Art. 1306]
(c) May be express or implied
(i) Express - when the parties stipulate that the
contract be governed by a specific law, such
law will be recognized unless there are
cogent reasons for not doing so.
(ii) Implied
(a) Based on the contemporaneous and
subsequent acts of the parties
(b) Often upheld with reference to the rule of
validity of contracts which presumes that
the parties contemplate to enter into a
valid contract
Art. 18. In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be
supplied by the provisions of this Code.
SPECIAL CONFLICT OF LAW RULES
MARRIAGE
Definition:
Art. 1, FC. Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this
Code.
Extrinsic Validity of Marriage
(1) Formal Requisites of Marriage under Philippine Law
[Art. 3, FC]
(a) Authority of the solemnizing officer
(b) Valid marriage license except in the cases
provided for in Chapter 2 of Title I
(c) A marriage ceremony which takes place with
the appearance of the contracting parties
before the solemnizing officer and their
personal declaration that they take each other
as husband and wife in the presence of not
less than two witnesses of legal age.
INTRODUCTION BAR OPERATIONS COMMISSION
(2) Determination of Extrinsic Validity
Art. 26, FC. All marriages solemnized outside the
Philippines in accordance with the laws in force in
the country where they were solemnized, and valid
there as such, shall also be valid in this country. Xxx
Art. 2, Hague Convention. Formal requirements for
marriage are governed by the law of the state of
celebration.
General Rule: Lex Loci Celebrationis
Exceptions: The following marriages are void even if
valid in the country where celebrated [Art. 26, FC]:
(a) Those contracted by any party below 18 years of
age even with the consent of parents or guardians
[Art. 35(1), FC]
(b) Bigamous or polygamous marriages not falling
under Art. 41, FC [Art. 35 (4), FC]
(c) Those contracted thru mistake of one contracting
party as to the identity of the other [Art. 35(5), FC]
(d) Those subsequent marriage without recording in
the civil registry the judgment of annulment or
declaration of nullity, partition and distribution of
properties and the delivery of the children’s
presumptive legitimes [Art. 35(6), FC]
(e) A marriage contracted by any party who, at the
time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, even if such incapacity
becomes manifest only after solemnization [Art.
36, FC]
(f) Incestuous marriages [Art. 37, FC]
(i) Marriages between ascendants and
ascendants of any degree, whether legitimate
or illegitimate; and
(ii) Marriages between brothers and sisters,
whether of the full or half-blood
(g) Void marriages for reasons of public policy (Art. 38,
FC)
(i) Marriages between collateral blood relatives,
whether legitimate or illegitimate, up to the
th
4 civil degree
(ii) Marriages between step-parents and step-
children.
(iii) Marriages between the adopting parent and
adopted child
(iv) Marriages between the surviving spouse of the
adopting parent and the adopted child
(v) Marriages between the surviving spouse of the
adopted child and the adopter
(vi) Marriages between an adopted child and a
legitimate child of the adopter
(vii) Marriages between adopted children of the
same adopter
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(viii) Marriages between parties where one, with
the intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
Note: These exceptions put into issue the capacity of
the parties to enter into the marriage and therefore
relate to the substantive requirement for marriage
and is governed by lex nationalii.
Intrinsic Validity of Marriage
(refers to capacity of a person to marry)
(1) Intrinsic validity is determined by the parties’
personal law, which may be their domiciliary or
national law.
Note:
(a) Laws relating to Family rights and duties,
Status, Condition or Legal capacity of persons
are binding on citizens of the Philippines, even
though living abroad [Art. 15]
(b) When either or both of the contracting parties
are citizens of a foreign country, it shall be
necessary for them before a marriage license
can be obtained to submit a certificate of legal
capacity to contract marriage, issued by their
respective diplomatic or consular officials [Art.
21, FC]
(c) Marriages enumerated under Art. 26(2), FC
are void even if valid in the country where
celebrated.
(2) Intrinsic requirements of marriage under
Philippine Law [Art. 2, FC]
(3) The Hague Convention on Validity of Marriages
allows a contracting state to refuse recognition of
3
the marriage in the ff. Cases (CR-M ):
(a) One of the parties did not freely Consent
(b) Spouses were Related, by blood or adoption
(c) One of the parties did not have the Mental
capacity to consent
(d) One of the spouses was already Married
(e) One of the parties has not attained the
Minimum age, nor acquired the necessary
dispensation
Note:
(1) Rule on Proxy Marriages:
(a) Proxy marriages, where permitted by the law
of the place where the proxy participates in
the marriage ceremony, are entitled to
recognition in countries adhering to the lex
loci celebrationis rule, at least insofar as
formal validity is concerned
(b) Internal Philippine law, however, does not
sanction proxy marriages.
INTRODUCTION BAR OPERATIONS COMMISSION
(2) Consular Marriages
Marriages between Filipino citizens abroad may
be solemnized by a consul-general, consul or vice
consul of the Republic of the Philippines [Art. 10,
FC].
Effects of Marriage
(1) Personal relations between the spouses
(a) Governed by the national law of the parties
NOTE: If the spouses have different nationalities,
generally the national law of the husband may
prevail as long as it is not contrary to law, customs
and good morals of the forum.
(b) Under Philippine law, personal relations
between the spouses include [Arts. 68, 70-71,
FC]
(i) mutual fidelity
(ii) respect
(iii) cohabitation
(iv) support
(v) right of the wife to use the husband’s
family name
(2) Property relations
(a) The Hague Convention declares that the
governing law on matrimonial property is:
(i) The internal law designated by the spouses
before the marriage
(ii) In the absence thereof, the internal law of
the state in which the spouses fix their
habitual residence
(b) Rule under Philippine law [Art. 80, FC]
(i) In the absence of a contrary stipulation in
the marriage settlements, the property
relations of the spouses shall be governed
by Philippine laws, regardless of the place
of the celebration of the marriage and their
residence.
(ii) Rule is inapplicable:
(1) If both spouses are aliens
(2) With respect to the extrinsic validity of
the contracts affecting property not
situated in the Philippines and executed
in the country where the property is
located
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines
but affecting property situated in a
foreign country whose laws require
different formalities for its extrinsic
validity.
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(c) Doctrine of Immutability of Matrimonial
Property Regime:
The change of nationality on the part of the
husband or wife does not affect the original
property regime EXCEPT when the law of
the original nationality itself changes the
marital regime, hence, the property regime
has to change accordingly.
DIVORCE AND SEPARATION
Rule under the Hague Convention
The granting of divorce or separation must comply
with the national law of the spouses and lex fori (law
of the place where the application for divorce is
made).
Divorce Decrees Obtained by Filipinos
General Rule: Decrees of absolute divorce obtained
by Filipinos abroad have no validity and are not
recognized in Philippine Jurisdiction.
Note: Statutory Bases
(a) Laws relating to Family rights and duties, or to
the Status, Condition and Legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad [Art. 15,
CC]
(b) Prohibitive laws concerning persons, their acts
or property, and those which have for their
object public order, public policy and good
customs, shall not be rendered ineffective by
laws or judgments, or by determinations or
conventions agreed upon in a foreign country.
[Art. 17(3), CC]
Exception: Art. 26(2), FC
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under
Philippine law
Van Dorn v. Romillo, Jr. (1985): Owing to the
Nationality Principle, only Philippine nationals are
covered by the policy against absolute divorces, the
same being considered contrary to our concept of
public policy and morality. However, aliens may
obtain divorces abroad, provided they are valid
according to their national law.
Llorente v. Court of Appeals (2000): Divorce obtained
by Petitioner from his first wife, after he was admitted
to US citizenship, is valid and recognized in our
jurisdiction as a matter of comity.
INTRODUCTION BAR OPERATIONS COMMISSION
Republic v. Orbecido (2005): Paragraph 2 of Article 26
should be interpreted to include cases involving parties
who, at the time of the celebration of the marriage
were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a
divorce decree. The Filipino spouse should likewise be
allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the
marriage. The reckoning point is not the citizenship of
the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce
is obtained abroad by the alien spouse capacitating the
latter to remarry.
Validity of Foreign Divorce Between Foreigners
(1) A foreign divorce will be recognized in all
contracting states if, at the date of the institution
of the proceedings (Hague Convention on the
Recognition of Divorce and Legal Separation):
(a) either spouse had his habitual residence
there;
(b) both spouses were nationals of that state; or
(c) if only the petitioner was a national, he should
have his habitual residence there
(2) While there is no provision of law requiring
Philippine courts to recognize a foreign divorce
decree between non-Filipinos such will be
recognized under the principle of international
comity, provided that it does not violate a
strongly held policy of the Philippines.
ANNULMENT AND DECLARATION OF NULLITY
Jurisdiction to Annul
(1) Vested in the court of the domicile of the parties
(2) Jurisdiction over the non-resident defendant is
not essential
Governing Law
(1) Lex loci celebrationis —determines the
consequences of any defect as to form
(2) In general, the same applies with reference to
substantive or intrinsic validity. But with regard to
capacity of the parties to marry, national law is
determinative.
Human Relations
ABUSE OF RIGHT
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
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ACTS CONTRARY TO LAW

Art. 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify
the latter for the same.

ACTS CONTRA BONUS MORES

Art. 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter
for the damage.

Breach of promise to marry is not an actionable

wrong. [De Jesus vs. Syquia, 58 Phil., 866]
BUT damages may be recoverable

Wassmer v. Velez (1964): Mere breach of promise to

marry is not an actionable wrong. But to formally set
a wedding and go through all the above-described
preparation and publicity, only to walk out of it when
the matrimony is about to be solemnized, is quite
different. This is palpably and unjustifiably contrary
to good customs for which defendant must be held
answerable in damages in accordance with Article 21
aforesaid.

Baksh vs. Court of Appeals (1993): Article 21 may also

be applied in a breach of promise to marry where the
woman is a victim of moral seduction. Award of
damages pursuant to Article 21 is justified not
because of such promise to marry but because of the
fraud and deceit behind it and the willful injury to her
honor and reputation which followed thereafter.

Tanjanco v. Court of Appeals (1966): The conduct of a

woman of adult age, maintaining intimate sexual
relations with appellant, with repeated acts of
intercourse is incompatible with the idea of
seduction.

PRINCIPLE OF UNJUST ENRICHMENT

Art. 22. Every person who through an act of
performance by another, or any other means,
acquires or comes into possession of something at
the expense of the latter without just or legal
ground, shall return the same to him.

Art. 22 Art. 2154

(Accion in Rem Verso) (Solutio Indebiti)
Not necessarily a Payment should be
mistake in payment made by mistake

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Persons and Personality General rule: Incapacitated persons are not exempt
from certain obligations arising from his acts or
property relations.
CAPACITY TO ACT
CIVIL PERSONALITY Minority
Art. 37. Juridical capacity, which is the fitness to be RA 6809 (1989): An act lowering the age of majority
the subject of legal relations, is inherent in every from twenty-one to eighteen years.
natural person and is lost only through death.
Capacity to act, which is the power to do acts with Effects on Contracts
legal effect, is acquired and may be lost. (1) They cannot give consent to a contract [Art. 1327
(1)]
(2) A contract where one of the parties is a minor is
Juridical Capacity Capacity to Act voidable [Art. 1390(1)]
(3) A contract is unenforceable when both of the
Fitness of man to be the Power to do acts with parties are minors (incapable of giving consent)
subject of legal relations legal effect [Art. 1403(3)]
Passive Active (4) Minority cannot be asserted by the other party in
Aptitude for the Holding Aptitude for the Exercise an action for annulment [Art. 1397]
and Enjoyment of rights of rights (5) Not obliged to make restitution except insofar as
he has been benefited [Art. 1399]
Inherent in every natural Must be acquired
(6) Minor has no right to demand the thing/price
person
voluntarily returned by him [Art. 1426]
Lost upon death Lost through death and
(7) Minor has no right to recover voluntarily paid sum
other causes
or delivered thing, if consumed in good faith [Art.
Can exist without Must exist with juridical 1427]
capacity to act capacity (8) Must pay reasonable amount for necessaries
Cannot be limited or May be restricted or delivered to him [Art. 1489]
restricted limited

Note: Juridical capacity can exist even without
capacity to act; the existence of the latter implies
that of the former.
RESTRICTIONS ON CAPACITY TO ACT
Art. 38. Minority, insanity or imbecility, the state of
being a deaf-mute, prodigality and civil interdiction
are mere restrictions on capacity to act, and do not
exempt the incapacitated person from certain
obligations, as when the latter arise from his acts or
from property relations, such as easements.
Art. 39. The following circumstances, among others,
modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of
these circumstances are governed in this Code, other
codes, the Rules of Court, and in special laws.
Mercado v. Espiritu, (1918):
Estoppel works against minors who misrepresent their
ages in a contract and are compelled to comply with
its terms. (active misrepresentation done by minors).
Bambalan v. Maramba, (1928):
When a minor made no active misrepresentation as to
his minority and such minority is known to the other
party, the contract is voidable (Art. 1403) as to the
minor.
Braganza v. Villa Abrille, (1959):
Minors are obliged to make restitution insofar as they
have been benefited (Art. 1399).
Effects on Marriage
(1) May not yet contract marriage [Art. 5, FC].
(2) Marriages, where one of the parties is below 18,
even with the consent of parents/guardians, are
VOID [Art. 35, FC]

Capacity to act is not limited on account of religious Insanity

belief or political opinion.
A married woman, twenty-one years of age or over, is
qualified for all acts of civil life, except in cases
specified by law.
Insanity includes many forms of mental disease,
either inherited or acquired. A person may not be
insane but only mentally deficient (idiocy, imbecility,
feeble-mindedness).

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Effect on Contracts
(1) Incapacity to give consent to a contract [Art.
1327(2)]
(2) Contracts entered into during lucid intervals are
valid [Art. 1328]
(3) Restitution of benefits [Art. 1399]
(4) Voidable if one of the parties is insane [Art. 1390]
(5) Unenforceable if both of the parties are insane
(Art. 1403 (3))
Effect on Crimes
(1) General rule: EXEMPTED from criminal liability
(2) Exception: Acted during lucid interval
Effect on Marriage
(1) May be annulled if either party was of unsound
mind unless the such party after coming to
reason, freely cohabited with the other [Art. 45(2),
FC]
(2) Action for annulment of marriage must be filed by
the sane spouse who had no knowledge of the
other’s insanity, or by any relative/guardian of the
insane before the death of either party; or by the
insane spouse during a lucid interval or after
regaining sanity [Art. 47(2), FC]
State of Being Deaf-Mute
(1) Cannot give consent to a contract if he/she also
does not know how to write (Art. 1327(2), CC)
(2) Can make a valid WILL, provided: he must
personally read the will. The contents of the same
have either been read personally by him or
otherwise communicated to him by 2 persons
(Art. 807, CC)
(3) Cannot be a witness to the execution of a will (Art.
820, CC)
(4) Voidable if one of the parties is deaf-mute and
does not know how to write
(5) Unenforceable if both of the parties are deaf-
mutes and does not know how to write
Prodigality
Martinez v. Martinez, (1902):
A spendthrift or a prodigal is “a person, who, by
excessive drinking, gambling, idleness or debauchery
of any kind shall so spend, waste or lessen his estate as
to expose himself or his family to want or suffering.”
The acts of prodigality must show a morbid state of
mind.
Note: It is not the circumstance of prodigality, but the
fact of being under guardianship that restricts
capacity to act.
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Civil interdiction
(1) It is an accessory penalty imposed upon persons
who are sentenced to a principal penalty not
lower than reclusion temporal (Art. 41, RPC).
(2) Offender is deprived of rights of parental
authority, or guardianship, of marital authority, of
the right to manage his property and of the right
to dispose of such (Art. 34, RPC)
(3) For the validity of marriage settlements, the
participation of the guardian shall be
indispensable (Art. 123)
Family relations
(1) Justifying circumstance if acted in defense of
person/rights of spouse, ascendants,
descendants, brothers/sisters, and other relatives
th
up to the 4 civil degree [Art. 11(2), RPC]
(2) Mitigating circumstance if acted in the immediate
vindication of a grave offense/felony committed
against his spouse, ascendants or relatives of the
same civil degree [Art. 13(5), RPC]
(3) Incestuous and void marriages:
(a) Between ascendants and descendants of any
degree;
(b) Between brothers and sisters, whether full or
half-blood. [Art. 37, FC]
(4) Donations/grants of gratuitous advantage
between spouses during the marriage shall be
VOID, except moderate gifts during family
occasions [Art. 87, FC]
(5) Descendants cannot be compelled to testify in a
criminal case, against his parents and
grandparents
(a) UNLESS: crime was against the descendant
OR by one parent against the other [Art. 215,
FC]
(6) Spouses cannot sell property to each other, except:
(a) Absolute separation is agreed upon in the
marriage settlements
(b) Judicial separation of property [Art. 1490]
Absence
Art. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be
sufficient in order that his succession may be
opened. (n)
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among
the heirs:
1. A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has taken part in
war, and has been missing for four years;
3. A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
Article 124, FC:
(1) Administration and enjoyment of the CPG shall
belong to both spouses jointly.
(2) In case of disagreement, husband’s decision shall
prevail, subject to recourse to the court by the
wife for proper remedy (within 5 years from date
of contract implementing such decision)
(3) If one spouse is incapacitated/unable to
administer, sole powers of administration may be
assumed by the other spouse.
(4) General Rule: This power does not include
disposition/encumbrance.
Exception: Judicial authority or written consent of
other spouse.
Birth
General Rule: Birth determines personality [Art. 40].
Death extinguishes civil personality [Art. 42].
Exception: A “conceived child shall be considered
born for all purposes that are FAVORABLE to it,
provided it be born later” [Art. 40, 2nd clause] with
the following circumstances:
Intra-Uterine Life When Considered Born
7 months or more Alive upon delivery
Less than 7 months Alive only after
completion of 24 hours
from delivery
Birth = complete removal of the fetus from the
mother’s womb; before birth, a fetus is merely part of
the mother’s internal organs.
Personality of Conceived Child
(1) Limited = only for purposes FAVORABLE to it.
(2) Conditional = it depends upon the child being
born alive later.
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Period of Conception = the first 120 days of the 300
days preceding the birth of the child.
A conceived child can acquire rights while still in the
mother’s womb. It can inherit by will or by intestacy.
Geluz v CA, (1961):
An aborted fetus had conditional personality but never
acquired legal rights/civil personality because it was
not alive at the time of delivery from the mother’s
womb. No damages can be claimed in behalf of the
unborn child.
Complete respiration = test/sign of independent life
Death
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations
of the deceased is determined by law, by contract
and by will
Criminal liability ends with death BUT civil liability
may be charged against the estate [People v. Tirol,
(1981)].
Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death
of one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the
same time and there shall be no transmission of
rights from one to the other.
Note: Article 43 provides a statutory presumption
when there is doubt on the order of death between
persons who are called to succeed each other (only).
The statutory presumption of Article 43 was not
applied due to the presence of a credible eyewitness
as to who died first [Joaquin v. Navarro, (1948)]
Compare Art. 43 with Rule 131, Sec. 3 (jj), presumption
of Survivorship.
Art. 43 Rule 131, Sec. 3 (jj)
Only use the presumptions when there are no facts
to get inferences from
Only use for succession Cannot be used for
purposes succession purposes
In any circumstance Only during death in
calamities, wreck, battle
or conflagration
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION

Presumption of Survivorship in the Rules of Court

(Rule 131, sec. 3, (jj.) Family Code
The Family Code took effect on August 3, 1988.

Age Presumed Survivor Marriage

Both under 15 Older
REQUISITES
Both above 60 Younger
NATURE OF MARRIAGE, ART. 1
One under 15, the other One under 15
above 60 Art. 1, FC. Marriage is a special contract of permanent
Both over 15 and under Male union between a man and a woman entered into in
60; different sexes accordance with law for the establishment of
conjugal and family life. It is the foundation of the
Both over 15 and under Older family and an inviolable social institution whose
60; same sex nature, consequences, and incidents are governed by
One under 15 or over One between 15 and 60 law and not subject to stipulation, except that
60, the other between marriage settlements may fix the property relations
those ages during the marriage within the limits provided by this
Code.
DOMICILE AND RESIDENCE OF PERSON
FOR NATURAL PERSONS: KINDS OF REQUISITES
The place of their habitual residence [Art. 50] (1) Essential Requisites (Art. 2)
(a) Legal Capacity of the contracting parties, who
FOR JURIDICAL PERSONS: must be a male and a female
The place where their legal representation is (b) Consent (of the parties) freely given in the
established, or where they exercise their primary presence of a solemnizing officer.
functions, unless there is a law or other provision that
fixes the domicile [Art. 51] (2) Formal Requisites (Art. 3)
(a) Authority of solemnizing officer
DOMICILE VS. RESIDENCE (b) A valid marriage license
While domicile is permanent (there is intent to (c) Except: Marriages in articulo mortis or when
remain), residence is temporary and may be changed one or both parties are at the point of death
anytime (there is no necessary intent to remain). (d) Marriage Ceremony:
(i) Appearance of contracting parties in the
REQUISITES OF DOMICILE [Callejo v. Vera] presence of a solemnizing officer
(1) Physical Presence in a fixed place (ii) Personal declaration that they take each
(2) Intent to remain permanently (animus manendi) other as husband and wife in the presence of
not less than 2 witnesses
KINDS OF DOMICILE
(1) Domicile of Origin - domicile of parents of a EFFECT OF ABSENCE OF REQUISITES
person at the time he was born.
(2) Domicile of Choice Absence Defect or Irregularity
(a) Domicile chosen by a person, changing his
domicile of origin. Effect
(b) A 3rd requisite is necessary – intention not to Void Voidable
return to one’s domicile as his permanent
place. ESSENTIAL REQUISITES
(3) Domicile by Operation of Law (i.e., Article 69,
domicile of minor) Age
(a) A married woman does not lose her domicile Legal Capacity [Art. 5]
to her husband. (Romualdez-Marcos vs. Male or female 18 years old and above, not under any
Comelec (1995)) impediments mentioned in Art. 37 (incestuous
marriage) & Art. 38 (marriage against public policy),
may contract marriage.

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Must be male and female
Jones v Hallahan, (1973): Application for marriage
license was denied since marriage is defined by law as
a contract entered into between a man and a woman.
Goodridge v. Dept. of Public Health, (2003): Same-sex
couples should not be denied the same benefits as
heterosexual couples; the right to marry includes the
right to choose who to marry.
Silverio v Republic, (2007): Changing of gender in one’s
birth certificate was denied; otherwise, it would result
in confusion and would allow marriage between
persons of the same sex which is in defiance of the law,
as marriage is a union between a man and a woman.
Note: The best source for citing the requirement (of
male/female) is still statutory, as provided explicitly
in the Family Code.
Consent freely given
People v. Santiago, (1927): A marriage entered into by a
person whose real intent is to avoid prosecution for
rape is void for total lack of consent. The accused did
not intend to be married. He merely used such
marriage to escape criminal liability.
Eigenmann v. Guerra (1964): There was no reasonable
and well-grounded fear of an imminent and grave evil
upon him or his property, father-in-law’s words were
merely an admonition typical of concerned parents.
Ceremony
Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required. (Art. 6)
The couple's written agreement where they declare
themselves as husband and wife, signed by them
before a judge and two capable witnesses, even
though it was independently made by them, still
counts as a valid ceremony. [Martinez v Tan, (1909)]
Minimum requirements prescribed by law: (AP-PMS)
(1) Appearance of contracting parties personally
before the solemnizing officer [Art. 3]
(2) Personal declaration that they take each other as
husband and wife. [Art. 3]
(3) Presence of at least two witnesses of legal age.
[Art. 3]
(4) The declaration shall be contained in the
Marriage certificate. [Art. 6]
(5) Marriage certificate shall be Signed by the
contracting parties and their witnesses and
attested by the solemnizing officer. [Art. 6]
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Note: In a marriage in articulo mortis, when one or
both parties are unable to sign the marriage
certificate, it shall be sufficient for one of the
witnesses to write the name of said party, which shall
be attested by the solemnizing officer. (Art. 6, par. 2)
Places where marriage SHALL be publicly solemnized:
(CCO)
(1) Chambers of the judge or in open court
(2) Church, chapel, or temple
(3) Office of the consul-general, consul, or vice-
consul [Art. 8]
Exceptions:
(1) Marriages performed in articulo mortis or in
remote places. [Art. 29]
(2) Where both parties request in writing that
marriage be solemnized at a place designated by
them.
Non-compliance with this requirement does not
invalidate the marriage (premise: more witnesses =
more people can notify officer of impediments to
marriage).
Who may solemnize marriages
Who may solemnize marriage: (JC-SPAMM)
(1) Incumbent member of the Judiciary within his
jurisdiction. [Art. 7]
(2) Priest, Rabbi, Imam or Minister of any Church or
Religious Sect. Must be:
(a) Duly authorized by his church or religious sect
(b) Registered with the civil registrar general
(c) Acting within the limits of the written
authority granted to him by his church or
religious sect.
(d) At least one of the contracting parties belongs
to the solemnizing officer’s church or religious
sect. [Art. 7]
(3) Ship Captain or Airplane Chief may solemnize a
marriage in articulo mortis between passengers
or crew members [Art. 7, 31]
(4) A Military commander of a unit may solemnize
marriages in articulo mortis between persons
within the zone of military operation. (Art. 7, 32)
(5) Consul-general, consul or vice-consul may
solemnize marriages between Filipino citizens
abroad. (Art. 7, 10)
(6) Municipal and City Mayors (LGC sec. 444 and
455)
Exceptions – Art. 35
(1) Marriage is void when solemnized by any person
not legally authorized to perform marriages
unless either or both parties believed in good faith
that the solemnizing officer had legal authority to
do so. [Art. 35 (2)]
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
(2) Absence & Irregularity of Authority of a
solemnizing officer
Lack of valid notification of both parties desiring a
ceremony in a remote place was held to be only a
mere IRREGULARITY [Navarro vs. Domagtoy (1996)]
Respondent judge was faulted for solemnizing a
marriage outside his territorial jurisdiction. Also,
presentation of the marriage license subsequent to
the solemnization of marriage will not cure the
defect. [Arañes v. Occiano (2002)]
License required
General Rule: License required
Article 9 - Issued by local registrar of city or
municipality where either contracting party
habitually resides
Article 11 - Each contracting party should file
separately.
Article 20 - License valid in any part of the
Philippines for 120 days from date of issue,
automatically cancelled at the expiration of such
period.
Foreign National
When either or both parties are foreign nationals:
Certificate of legal capacity to contract marriage,
issued by a diplomatic or consular official, shall be
submitted before a marriage license can be obtained
[Art. 21]
Stateless persons or refugees from other countries:
affidavit stating circumstances showing capacity to
contract marriage, instead of cert. of legal capacity
[Art. 21]
Exceptions
(1) Marriage in articulo mortis [Art. 27]
(a) The marriage may be solemnized without the
necessity of a marriage license.
(b) It remains valid even if ailing party survives.
(2) Between passengers or crew members in a ship
or airplane [Art. 31]
(3) Persons within a military zone [Art. 32]
(4) Marriage in Remote and inaccessible places [Art.
28]
(5) Marriages by Muslims and Ethnic cultural
minorities provided they are solemnized in
accordance with their customs, rites or practices.
[Art. 33]
(6) Marriage by parties who have Cohabited for at
least 5 years without any legal impediment to
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marry each other. [Art. 34, Ninal vs. Badayog
(2000)]
Requisites for the 5-year cohabitation to be valid for the
exemption from acquiring a marriage license
(1) The man and woman must have been living
together as husband and wife for at least five
years before the marriage;
(2) The parties must have no legal impediment to
marry each other;
(3) The fact of absence of legal impediment between
the parties must be present at the time of
marriage;
(4) The parties must execute an affidavit stating that
they have lived together for at least five years
[and are without legal impediment to marry each
other]; and
(5) The solemnizing officer must execute a sworn
statement that he had ascertained the
qualifications of the parties and that he had
found no legal impediment to their marriage.
[Borja-Manzano vs. Judge Sanchez (2001)]
Marriage certificate
Absence and irregularity of marriage license and
contract
Republic v. CA and Castro (1994): Issuance of the Civil
Registrar of a Certificate of Due Search and Inability to
Find the application of a marriage license certifies the
license’s inexistence, thus rendering the marriage
VOID.
Moreno v. Bernabe (1995): Before a marriage can be
solemnized, a valid marriage license must be
presented first, otherwise, the marriage is VOID.
People v. Borromeo (1984): Non-existence of a
marriage contract does not invalidate the marriage as
long as all the requisites for its validity are properly
complied with.
Things to do at the local civil registrar:
(1) File an application of marriage license at the
proper local civil registrar. [Art. 11]
(2) Present birth or baptismal certificate for proof of
age. [Art. 12]
(3) If aged 18-21 years, present parental consent.
[Art. 14]
(4) If aged 21-25, present parental advice. [Art. 15]
(5) If aged 18-25, present certificate of marriage
counseling from your priest. [Art. 16]
(6) (PD 965) Attend family planning seminar or get a
brochure regarding family planning
(7) Pay the required fees. [Art 19]
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(8) If foreigner, present certificate of legal capacity

issued by diplomat or consular officials. (Art. 21) Essential requisites Formal requisites

Marriage Certificate abroad (Art 15, CC) (Art. 26, CC)

Where parties declare that they take each other as Foreign marriages void Foreign marriages may
husband and wife; contains the ff: under Phil law due to lack be void under Phil law
(1) Full name, sex, age of party of an essential requisite, due to absence of a
(2) Citizenship, religion, habitual residence even if valid under foreign formal requisite under
(3) Date and precise time of celebration of laws, will not be foreign laws.
marriage recognized
(4) That marriage license was properly issued
(except in marriages exempt from ML req’t) PROOF OF FOREIGN MARRIAGE in order that it may be
(5) That parental consent was secured, when upheld:
required (1) Provisions of the foreign law
(6) That requirement as to parental advice was (2) Celebration of the marriage in accordance with
complied with, when required said provisions
(7) That parties have entered into marriage
settlements, if any [Art. 22] FOREIGN DIVORCES
(1) Those obtained by Filipino citizens are void under
Note: Not an essential or formal requisite without Philippine law.
which the marriage will be void [Madridejo v. de Leon (2) If the foreign spouse obtains a valid foreign
(1930)] divorce, the Filipino spouse shall have capacity to
remarry under Philippine law. (Art. 26)
Best evidence that a marriage does exist. [Tenebro v.
CA (2004)] Van Dorn v. Romillo (1985):
A divorce obtained by the foreign spouse in
EFFECT OF MARRIAGES CELEBRATED ABROAD accordance with the said spouse’s national law is
AND FOREIGN DIVORCE recognized in the Philippines and releases Filipino
spouse from their marriage.
MARRIAGES CELEBRATED ABROAD
General Rule: Marriages solemnized abroad in Quita v. Dandan (1998):
accordance with the laws in force in that country The citizenship of the spouses at the time of the
shall be valid in the Philippines. [Art 26] divorce determines their capacity to obtain a valid
divorce. Since the divorce and the naturalization of W
Exceptions: occurred within the same year, the case was remanded
(1) Marriage between persons below 18 years old to determine which occurred first.
[Art. 35(1)]
(2) Bigamous or polygamous marriage [Art. 35(4)] Llorente v. CA (2000):
(3) Mistake in identity [Art. 35 (5)] Citizenship at the time the divorce is obtained
(4) Marriages void under Article 53 [Art. 35 (6)] determines its validity. Since H was no longer a
(5) Psychological incapacity [Art. 36] Filipino citizen when he divorced W, the nationality
(6) Incestuous marriages [Art. 37] principle did not apply to him anymore and the divorce
(7) Marriage void for reasons of public policy [Art. 38] is valid.

Garcia v. Recio (2001):

Essential requisites
Inherent in the parties,
carried everywhere
Lex Nationalii – Laws
relating to family rights
and duties, or to the
status, condition, and
legal capacity of persons
are binding upon Phil
citizens even though living
Formal requisites
Requirements
independent of the
parties
Lex loci celebrationis- if
valid where celebrated,
then valid everywhere;
forms of contracting
marriage are to be
regulated by the law
where it is celebrated.
A divorce decree obtained by the foreign spouse is
recognized under Phil law if it is executed in
accordance with the foreigner’s national law. The
party must prove divorce as a fact and that said
divorce is obtained in conformity with the law allowing
it, before the Philippine courts can take judicial notice.
VOID AND VOIDABLE MARRIAGES
PRESUMPTION OF MARRIAGE
(1) Presumption in favor of a valid marriage [Art 220,
CC]

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UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
(2) The presumption that a man and a woman
deporting themselves as husband and wife have
entered into a lawful contract of marriage is
satisfactory if uncontradicted. [Sec. 3 (aa), Rule
131, ROC]
(3) In marriages of exceptional character, the
existence of the marriage is presumed, even in
the TOTAL ABSENCE of a marriage license. [Vda.
De Jacob v CA (1999)]
(4) If a marriage certificate is missing, and all means
HAVE NOT YET BEEN EXHAUSTED to find it,
then the marriage is presumed to exist [Sevilla v
Cardenas (2006)]
Absence of a marriage certificate is not proof of
absence of marriage. To prove the fact of marriage,
the following would constitute competent evidence:
(1) the testimony of witnesses to matrimony; (2) the
couple’s public cohabitation; and (3) birth and
baptismal certificates of children born during the
union. [Trinidad v CA (1998)]
VOID MARRIAGES
Type of Void Marriages
(1) Absence of any formal/essential requisites
(2) Psychologically Incapacitated spouse
(3) Incestuous Marriages
(4) Marriages contrary to public policy
(5) Void subsequent marriages
Absence of Requisites
Art. 4(1): The absence of any essential or formal
requisites shall render the marriage void ab initio,
except as stated in Article 35 (a).
Art. 5: Any male or female of the age of eighteen years
or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract
marriage.
Void from the Beginning [Art. 35]. –
(1) Marriage where any party is below eighteen years
of age even with the consent of parents or
guardians
(2) Marriage solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the
solemnizing officer had the legal authority to do
so.
Note: One’s belief in good faith that the
solemnizing officer has the required authority is a
mistake of fact, and not of law.
(3) Marriage solemnized without a valid marriage
license, except in marriages under exceptional
circumstances
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(4) Bigamous or polygamous marriages not falling
under Article 41 (Art. 41: subsequent marriage by
present spouse who obtained a declaration of
presumptive death for absent spouse prior to the
subsequent marriage)
(5) There is a mistake as to the identity of the other
contracting party
(6) Subsequent marriages that are void under Article
53 (Non-compliance with Art. 52)
Psychological incapacity
Contracted by any party who, at the time of the
celebration, was psychologically incapacitated to
comply with the essential marital obligations of
marriage, even if such incapacity becomes manifest
only after its solemnization [Art. 36]
Republic v. Molina, (1997):
(1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff.
(2) The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts,
(d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at
“the time of the celebration” of the marriage.
(4) Such incapacity must also be shown to be
medically or clinically permanent or incurable.
(5) Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code
as regards the husband and wife as well as Articles
220, 221, and 225 of the same Code in regard to
parents and their children.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling/decisive, should
be given great respect by our courts.
(8) The trial court must order the prosecuting attorney
or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed
down unless the Solicitor General issues a
certification.
Santos v. Bedia-Santos, (1995):
Laid down 3 characteristics for determining
psychological incapacity: gravity, antecedent, and
incurability.
Tsoi v. CA, (1997):
Refusal of husband to have sex was interpreted to be
PI. “A man who can but won’t is PI”
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
Marcos vs. Marcos (2000):
Psychological incapacity maybe established by the
totality of the evidence presented. Personal medical
examination could be dispensed with.
Republic vs. San Jose (2007):
There is no requirement that the respondent be
medically examined first.
Antonio v. Reyes, (2006):
“Pathological liar” considered as psychological
incapacity, Molina guidelines met.
Incestuous marriages
Article 37 (Incestuous):
(1) Between ascendants and descendants of any
degree, legitimate or illegitimate
(2) Between brothers and sisters, whether of the full
or half blood, legitimate or illegitimate
Against Public Policy
Article 38 (Against Public Policy):
(1) Between collateral blood relatives, legitimate or
illegitimate, up to the fourth civil degree.
(2) Between step-parents and step-children.
Note: Stepbrothers and stepsisters can marry
because marriages between them are not
among those enumerated in Article 38.
(3) Between parents-in-law and children-in-law.
(4) Between adopting parent and adopted child.
(5) Between the surviving spouse of the adopting
parent and the adopted child.
(6) Between the surviving spouse of the adopted
child and the adopter.
(7) Between an adopted child and a legitimate child
of the adopter.
(8) Between adopted children of the same adopter.
(9) Between parties where one, with the intention to
marry the other, killed that other person's
spouse, or his or her own spouse.
Relationships outside of Art. 37 and 38 which are not
impediments to marriage: brother-in-law with sister-
in-law, stepbrother with stepsister, guardian with
ward, adopted with illegitimate child of the adopter,
adopted son of the husband with adopted daughter
of the wife, parties who have been convicted of
adultery
Void subsequent marriages
Article 40 (No Judicial Declaration of Nullity)
A person entered into a subsequent marriage
without first getting a judicial declaration of nullity of
the first void marriage
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Article 41 (Presumptive Death)
Failure of the present spouse to obtain a judicial
declaration of presumptive death before entering a
subsequent marriage
Article 44 (Bad Faith of both spouses)
Both spouses entering a subsequent marriage after
presumptive death, who acted in bad faith
Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have not
have been complied with, shall be null and void.
Art. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of
the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in
the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons.
Previous marriage declared void ab initio or annulled
Art. 40. The absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous
marriage void.
In order to have a subsequent marriage:
(1) The previous marriage should be judicially
declared void or annulled (final judgment) (Terre
v. Terre (1992), Atienza v. Brillantes (1995))
(2) Must comply with the requirements of Art. 52
Under the Civil Code (superseded by the Family
Code), there was no need for a judicial declaration of
nullity of a previous marriage for a subsequent
marriage to be valid [People v. Mendoza (1954)]
Terre v. Terre, (1998):
A lawyer was disbarred for grossly immoral conduct by
convincing the other party that a judicial declaration of
nullity was not required and subsequently contracting
another marriage while his first marriage was
subsisting.
If there is no Judicial Declaration of Nullity, subsequent
marriage void for being bigamous.
Atienza v. Brillantes, (1995):
Even if the judge’s first marriage contracted in 1965
was void for not having a marriage license, the
requirement for a judicial declaration of nullity in Art.
40 still applies for his subsequent marriage contracted
in 1991.
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Apiag v. Cantero, (1997):
Where both marriages were contracted prior to the
effectivity of the FC, the requirement of Art. 40 does
not apply to the second marriage where a right is
already vested and which the FC cannot have
retroactive effect.
Domingo v. CA, (1993):
The judicial declaration of nullity can be invoked for
purposes other than remarriage. Article 40 was
interpreted as being a requirement for purposes of
remarriage but not limited for that purpose.
Separation of property is also a valid purpose for
filing for a judicial declaration of nullity.
The word “solely” in Art. 40 referred to validating
subsequent marriages but NOT to limiting the
purposes for which a judicial declaration of nullity
can be invoked.
Borja-Manzano v. Sanchez, (2001):
Legal separation does not severe marital bonds.
Cohabitation under Art. 34 merely exempts the
spouses from obtaining a marriage license, and is
not met when there exists legal impediment to marry
during the period of cohabitation.
Subsequent Marriage when one spouse is absent
Requirements for Subsequent Marriage to be Valid
When Prior Spouse is Absent [Art. 41]:
(1) Subsequent marriage due to ordinary absence
where:
(a) Absent spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-founded belief
that absent spouse is dead; and
(c) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) Absent spouse had been missing for 2
consecutive years;
(b) There is danger of death under the
circumstances set forth in the provisions of
Art. 391 CC attendant to the disappearance;
(c) The spouse present had a well-founded belief
that the missing person is dead; and
(d) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
Extraordinary circumstances [Art. 391, CC]:
(a) ON BOARD VESSEL lost at sea voyage, airplane,
(b) ARMED FORCES in war, or
(c) DANGER OF DEATH under other circumstances,
existence not known
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Notes:
(1) Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (Balane)
(2) Only the deserted/present spouse can file or
institute a summary proceeding for the
declaration of presumptive death of the
absentee. (Bienvenido case)
(3) There must have been diligent efforts on the part
of the deserted spouse to locate the absent
spouse. These diligent efforts correspond to the
requirement of the law for a well-founded belief.
Effect of Reappearance of Absent Spouse
General Rule: The subsequent marriage remains
valid.
Exception: It is automatically terminated by the
recording of the affidavit of reappearance of the
absent spouse at the instance of any interested
person, with due notice to the spouses of the
subsequent marriage. [Art. 42]
Note: It is the recording of the affidavit of
reappearance that automatically terminates the
subsequent marriage. Hence, if absentee spouse
reappears without recording affidavit of
reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
(Tolentino)
Exception to the exception: If there is a judgment
annulling the previous marriage or declaring it void
ab initio. [Art. 42]
Good Faith: PERIOD of absence for PRESUMPTIVE
DEATH is MANDATORY thus cannot be shortened by
good faith and if be done so will be VOID.
Burden of Proof: Two successive marriages,
nd
presumption of validity on 2 marriage and burden
ND
on party ATTACKING VALIDITY OF 2 MARRIAGE.
PRESUMPTION in favor of INNOCENCE prevails over
ST
PRESUMPTION of CONTINUANCE OF LIFE OF 1
SPOUSE & MARITAL RELATIONS.
Difference between Absence in the Civil Code and
Family Code
Family Code Civil Code
As to period
4 years under normal Absent for at least 7
circumstances; years;
2 years under 4 years under
extraordinary extraordinary
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Family Code Civil Code Family Code makes an exception for the purpose of
remarriage by limiting such requirement to 4 years.
circumstances circumstances
Article 43 and 44 (Effects of Termination of Bigamous
As to remarriage Marriage under Art. 42)
In order to remarry, Declaration of Art. 43:
summary proceeding is presumptive death is not (1) Children of subsequent marriage – conceived prior
necessary necessary to its termination considered legitimate; custody
As to who can institute the action and support decided by court in a proper
proceeding
Can be instituted by the The spouses themselves (2) Property Regime – dissolved and liquidated (party
present spouse, any in bad faith shall forfeit his/her share in favor of
interested party, and the the common children or if there are none, children
subsequent spouse of the guilty spouse by a previous marriage, and in
case there are none, to the innocent spouse)
As to effect on subsequent marriage (3) Donation propter nuptias – remains valid, (but if
the donee contracted marriage in bad faith,
Subsequent marriage is Upon reappearance, donations will be revoked)
automatically terminated judicial proceeding is (4) Insurance benefits – innocent spouse may revoke
by the recording of an necessary to declare designation of guilty party as beneficiary, even if
affidavit of reappearance marriage null and void such designation is stipulated as irrevocable
of the absent spouse (5) Succession Rights – Party in bad faith disqualified
As to ground to inherit from innocent spouse, whether testate or
intestate
Well founded belief that Generally believed to be
the absent spouse is dead dead Article 44:
Donations: If both parties of subsequent marriage
acted in bad faith, any donations and testamentary
Connected Provisions
dispositions made by one party to the other by
Art. 390, Civil Code. After an absence of 7 years, it reason of marriage will be revoked
being unknown whether or not the absentee still lives,
he shall be presumed dead for all purposes, except for ACTION OR DEFENSE OF NULLITY
those of succession. Prescription
Art. 39. The action or defense for the declaration of
The absentee shall not be presumed dead for the
absolute nullity of a marriage shall not prescribe. (as
purpose of opening his succession till after an absence
amended by RA 8533)
of 10 years. If he disappeared after the age of 75 years,
an absence of 5 years shall be sufficient in order that
his succession may be opened. It must be noted that under the new Supreme Court
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages
Art. 391, Civil Code. The following shall be presumed A.M. No. 02-11-10-SC, effective March 15, 2003,
dead for all purposes, including the division of the nullity of the marriage can still be collaterally
estate among the heirs: (SAAD) attacked.
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has Who may file the petition for nullity?
not been heard of for four years since the loss of the As to the parties allowed to file the action: Only an
vessel or aeroplane; aggrieved or injured spouse may file a petition for
(2) A person in the armed forces who has taken part in annulment of voidable marriages or declaration of
war, and has been missing for four years; absolute nullity of void marriages. Such petition
(3) A person who has been in danger of death under cannot be filed by compulsory or intestate heirs of
other circumstances and his existence has not been the spouses or by the State. The Committee is of the
known for four years. belief that they do not have a legal right to file the
petition. Compulsory or intestate heirs have only
Notes: inchoate rights prior to the death of their
Although 7 years is required for the presumption of predecessor, and, hence, can only question the validity
death of an absentee in the Civil Code, Art. 41 of the of the marriage of the spouses upon the death of a

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spouse in a proceeding for the settlement of the estate
of the deceased spouse filed in the regular courts.
(Enrico v. Heirs of Sps. Medinaceli (2007)), also
reiterated in (Carlos vs. Sandoval (2008))
How to attack a void marriage?
General Rule: Void Marriages may be attacked
collaterally or directly.
Exception: A person in a void marriage must first file
for a declaration of nullity in order to subsequently
marry
ANNULLABLE MARRIAGE
(Note: Although the Supreme Court in its syllabus
seems to make a distinction between annullable and
voidable marriages by the fact that they made two
separate categories for the two, Tolentino makes no
mention of any such difference.)
Art. 14: In case either or both of the contracting
parties, not having been emancipated by a previous
marriage, are between the ages of eighteen and
twenty-one, In addition to the requirements of the
preceding articles:
(a) Exhibit to the local civil registrar the consent to
their marriage of their father, mother, surviving
parent or guardian, or persons having legal charge
of them, in the order mentioned
(b) Manifested in writing by the interested party, who
personally appears before the proper local civil
registrar, or
(c) In the form of an affidavit made in the presence of
two witnesses and attested before any official
authorized by law to administer oaths
(d) The personal manifestation shall be recorded in
both applications for marriage license, and the
affidavit, if one is executed instead, shall be
attached to said applications.
Grounds for Annulment
Article 4 states that “xxx A defect in any of the
essential requisites shall render the marriage
voidable as provided in Article 45.”
Article 45. Marriage may be annulled on the
following grounds existing at time of marriage:
(PIFFIS)
(1) One of the parties is 18 or above but below 21
years old, and there is no parental consent.
(2) Either party was of unsound mind (insanity).
(3) The consent of either party was obtained through
fraud (different from mistake in identity):
(a) Through non-disclosure of a previous
conviction of a crime involving moral
turpitude;
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(b) Through concealment by the wife of the fact
that at the time of the marriage she was
pregnant by another man;
(c) Through concealment of a sexually-
transmitted disease, regardless of its nature,
existing at the time of marriage;
(d) Through concealment of drug addiction,
habitual alcoholism or
homosexuality/lesbianism. (Art.46)
(4) The consent of either party was obtained through
force, intimidation, or undue influence.
(5) Either party is physically incapable of
consummating the marriage (impotence; this is
different from sterility, which is the inability to
produce offspring).
(6) Either party has a serious and incurable sexually-
transmissible disease, even if not concealed.*
Action to Annul: Action in rem, concerns status of
parties; res is relation between parties or marriage
tie; jurisdiction depends on nationality or domicile
not the place of celebration.
Grounds for Annulment explained:
(1) Lack of parental consent
(a) 18 ≤ x < 21 without parental consent
(b) Ratified by party 18 or above but below 21
upon free cohabitation upon reaching 21.
(c) TOLENTINO: parents whose consents were
wanting may ratify before 21; this right can be
waived; however, the Code Commission
believes that no such ratification can be made
by the parent.
(2) Insanity
(a) Mental incapacity or insanity is a vice of
consent; insanity (1) of varying degrees, (2)
curable being an illness, capable of
ratification or convalidation, (3) has lucid
intervals, (4) ground only for annulment in
many countries
(b) Can be ratified by cohabitation after insanity is
cured or during a lucid interval
(c) Mere mental weakness is not a ground for
annulment, but if found grave enough may
amount to psychological incapacity.
(d) Intoxication, somnambulism where one had
no mental capacity to give consent is
equivalent to insanity
(e) Must EXIST AT THE TIME of the celebration of
the marriage.
(f) Law presumes SANITY, burden of proof on
party alleging insanity
(3) Fraud
(a) Only those enumerated in Art. 46:
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(1) Non-disclosure of previous CONVICTION when wife had been at least 6 months pregnant prior
by final judgment of a crime involving to marriage.
MORAL TURPITUDE
(2) Concealment by wife at the time of Aquino v. Delizo, (1960):
marriage, that she was pregnant by The Supreme Court granted annulment because the
another man wife concealed the fact that she was 4 months
(3) Concealment of STD regardless of nature pregnant during the time of the marriage. It argued
existing at time of marriage that since Delizo was “naturally plump,” Aquino could
(4) Concealment of drug addiction, habitual hardly be expected to know, by mere looking, whether
alcoholism, homosexuality, lesbianism or not she was pregnant at the time of the marriage.
existing at time of marriage
(b) NO other misrepresentation or deceit of Almelor v. RTC, (2008):
CHARACTER, HEALTH, RANK, FORTUNE OR It is the concealment of homosexuality, and not
CHASTITY shall constitute FRAUD. homosexuality per se, that vitiates the consent of the
(c) Conviction of Crime: requisites are innocent party. Such concealment presupposes bad
(1) Moral turpitude faith and intent to defraud the other party in giving
(2) Conviction consent to the marriage.
(d) Concealment of Pregnancy
(1) Fraud against very essence of marriage; Corpuz v. Ochoterena, (2004):
importance of procreation of children; an In a legal separation or annulment case, the
assault to the integrity of the union by prosecuting attorney must first rule out collusion as a
introducing ALIEN BLOOD condition sine qua non for further proceedings. A
(2) If husband knew of pregnancy, the certification by the prosecutor that he was present
marriage cannot be annulled on the during the hearing and even cross-examined the
ground of concealment plaintiff does not suffice to comply with the mandatory
(e) Marriage cannot be annulled on the ground requirement.
that wife concealed the fact that she had been
lewd & corrupt and had illegitimate child. (4) Force, intimidation, undue influence
(Shrady v. Logan (1896)) (a) FORCE must be one as to prevent party from
(f) Maybe ratified upon free cohabitation after acting as a free agent; will destroyed by
knowledge of fraud. fear/compulsion
(b) INTIMIDATION must be one as to compel the
party by reasonable/well-grounded fear/evil
Art. 45 STD Art. 46 STD imminent upon person/properties
(c) DEGREE OF INTIMIDATION: age, sex,
Ground for annulment The STD is a type of condition of person borne in mind
fraud which is a ground (d) Threat or intimidation as not to act as FREE
for annulment AGENT; threatened of armed demonstrations
Does not have to be Must be concealed by brother is ANNULLABLE (Tiongco v Matig-
concealed a)
Must be serious and Need not be serious nor (e) Man rapes a girl, marries her to conceal the
incurable incurable rape & has no intention to live with the girl;
The STD itself is the It is the concealment marriage is annullable (People v Santiago
ground for annulment that gives rise to the (1927))
annulment (f) Committee added “undue influence”, maybe
compelled to enter out of REVERENTIAL
Effect of Cure to Fraud in Art. 46: FEAR e.g., fear of causing distress to parents,
Recovery or rehabilitation from STD, drug addiction, grandparents, etc.
and habitual alcoholism will NOT BAR ACTION for (g) May be ratified upon cohabitation after force,
annulment; The defect is not the disease, but the intimidation, or undue influence has ceased or
FRAUD which VITIATED CONSENT. disappeared.

Buccat v. Mangonon de Buccat, (1941): (5) Impotency

Wife gave birth 3 months after marriage celebration. (a) Must exist at time of marriage, must be
Husband filed for annulment. Denied. Ground: continuous, must be incurable; thus if
Concealment of non-virginity. Court held that it was incapacity can be remedied or is removable by
unbelievable that husband could not have noticed

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operation, NOT ANNULLABLE (Sarao v (j) RELATIVE IMPOTENCY: may now be invoked
Guevarra(1940)) because there are cases where one is
(b) Should be unknown to the other party impotent with respect to his spouse but not
(c) Physical condition: sexual intercourse with a with other men or women.
person of the opposite sex is impossible, not (k) EXAMPLE: penile erection to other women
mere sterility possible; unusually large penis cannot fit with
(d) When both spouses are impotent, marriage abnormally small vagina
cannot be annulled because neither spouse is
aggrieved (6) Sexually-transmissible disease serious and
(e) POTENCY PRESUMED; party who alleges incurable
impotency has burden of proof (Jimenez v (a) Should exist at the time of the marriage
Canizares (1960)) (b) Should be found serious
(f) Although potency is presumed, there is a (c) Should appear to be incurable
doctrine in England called TRIENNIAL (d) Should be unknown to other party
COHABITATION that if wife remains virgin (e) Reason: danger to the health of spouse &
after 3 yrs, husband presumed impotent & has offspring/s
burden to prove otherwise (Tompkins v (f) Same as incurable impotency
Tompkins) (g) Not subject to ratification  cannot be ratified
(g) REFUSAL of wife to be examined DOES NOT or convalidated by prescription or
PRESUME impotency because Filipino women cohabitation:
are inherently shy & bashful; TC must order (a) Prior subsisting marriage; would result in
physical examination because w/o proof of anomalous relationship
impotency, she is presumed potent; to order (b) Vitiated by impotency remains as long as
her to undergo physical exam does not afflicted
infringe constitutional rights against self- (c) Vitiated by affliction of STD remains as
incrimination (Jimenez v Canizares) long as afflicted
(h) Villanueva vs. CA (2006): Absence of (d) Affliction of STD is unknown to the other
cohabitation is not a ground for annulment. spouse (Balane)
(i) NOTE: if wife continues to refuse to undergo (e) The other spouse must also be free from a
physical exam, she can be held for similar STD. (Balane)
CONTEMPT & ordered to be confined in jail (h) 2 & 3 above prescribe w/in 5 yrs by Art. 47(5)
until she does so

Who may file, Prescription, Ratification

Ground Who can file Prescription Ratification
(Art. 45) (Art. 47) (Art. 47) (Art. 45)
Lack of Under-aged party (18 or above Within 5 years after attaining Free cohabitation after
parental but below 21) 21. attaining age of 21.
consent Parent or guardian without Before party below 21 reaches
consent 21.
Insanity Sane spouse with no Any time before the death of Free cohabitation of insane
knowledge of the other’s either party party after insane party
insanity comes to reason

Legal guardian of insane party

Insane party During lucid interval or after
regaining sanity, and before
death
Fraud Injured party (defrauded party) Within 5 years after discovery Free cohabitation after having
of fraud full knowledge of fraud
Force, Injured party Within 5 years after Free cohabitation after the
intimidation, disappearance of force, undue force or intimidation or undue
undue influence, or intimidation influence has ceased or
influence disappeared
Impotence Potent spouse Within 5 years after marriage Cannot be ratified but action
prescribes
STD Healthy party Within 5 years after marriage Cannot be ratified but action

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Ground Who can file
(Art. 45) (Art. 47)
Marriages Not Subject to Ratification/ Convalidation
by cohabitation
(1) One spouse is incurably impotent (Art. 47 –
prescription: 5 years)
(2) One spouse has an incurable STD (Art. 47 –
prescription: 5 years)
(3) Sane spouse marries an insane spouse w/o
knowledge of insanity
Presence of Prosecutor
Art. 48: To prevent collusion between the parties,
fabrication or suppression of evidence, the prosecuting
attorney or fiscal shall appear on behalf of the State.
EFFECT OF PENDING ACTIONS/DECREE
Art. 49: During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the
support of the spouses and the custody and support of
their common children. The Court shall give
paramount consideration to the moral and material
welfare of said children and their choice of the parent
with whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights
of the other parent.
(1) The court shall provide for the support of the
spouses,
(2) The custody and support of the common children,
giving paramount consideration to their moral
and material welfare, their choice of parent with
whom they wish to remain.
(3) The court shall also provide for visitation rights of
other parent.
Decisions on the nullification of the marriage
Art. 48 (2): In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
Stipulation of Facts: An admission by both parties
after agreeing to the existence of any of the grounds
or facts that would constitute a void/voidable
marriage
Confession of judgment: The admission by one party
admitting his/her fault to cause the invalidity of the
marriage.
EFFECTS OF NULLITY
The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply
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Prescription Ratification
(Art. 47) (Art. 45)
prescribes
in the proper cases to marriages which are declared
ab initio or annulled by final judgment under Articles
40 and 45 (Art. 50(1)).
Final judgment in such cases shall provide for the
liquidation, partition, and distribution of the:
(1) Properties of the spouses
(2) Custody and support of the common children
(3) Delivery of their presumptive legitimes
(a) Unless such matters had been adjudicated
in previous judicial proceedings (Art. 50(2))
(b) All creditors (of the spouses/property regime)
shall be notified of the proceedings for
liquidation (Art. 50(2 and 3))
In the partition, the conjugal dwelling and lot shall be
adjudicated to the spouse with whom majority of the
common children remain (Art. 102 and 129) (Art.
50(4)
Presumptive legitimes, computed as of the date of
the final judgment, shall be delivered in cash,
property or sound securities:
(1) Unless the parties, by mutual agreement
judicially approved, had already provided for such
(Art. 51(1))
(2) The children/guardian/trustee of property may
ask for the enforcement of the judgment (Art.
51(2))
(3) The delivery of the presumptive legitimes shall
not prejudice the ultimate successional rights,
but the value of the properties already received
shall be considered as advances on their legitime
(Art. 51(3))
Generally, children born or conceived within void
marriages are illegitimate.
Exceptions:
(a) Children conceived or born before the judgment
under Article 36 has become final and executor
(Art. 54)
(b) Children conceived or born of subsequent
marriages under Article 53 (Art. 54)
Legal Separation
GROUNDS FOR LEGAL SEPARATION
Note: The grounds for legal separation are exclusive.
(Article 55) (RPC Final DH BSAA)
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These must be filed within 5 years after occurrence of
cause (Article 57)
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral Pressure to compel the
petitioner to change religious or political
affiliation;
(3) Attempt of respondent to Corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or Homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
Bigamous marriage, whether in the Philippines
or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent Against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
People v. Zapata and Bondoc (1951):
Adultery is not a continuing crime, but is
consummated and exhausted at the moment of carnal
union. Each sexual act constitutes one act of adultery.
As such, every sexual act is a ground for legal
separation.
Gandioco v. Peñaranda (1989):
In sexual infidelity as a ground for legal separation,
there is no need for prior conviction for concubinage,
because legal separation only requires a
preponderance of evidence, as opposed to proof
beyond reasonable doubt required in concubinage.
Lapuz Sy v. Eufemio (1972):
The death of one party in a legal separation case
abates the action. This is because the death of either
spouse automatically dissolves the marriage. An
action for legal separation is also purely personal
between the spouses.
Dela Cruz. v. Dela Cruz (1968):
Abandonment is not mere physical estrangement but
also financial and moral desertion. There must be an
absolute cessation of marital relations, duties, and
rights with the intention of perpetual separation.
ACTS OF VIOLENCE ACCORDING TO RA 9262
(1) Causing physical harm to the woman or her child;
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(2) Threatening to cause the woman or her child
physical harm;
(3) Attempting to cause the woman or her child
physical harm;
(4) Placing the woman or her child in fear of
imminent physical harm;
(5) Attempting to compel or compelling the woman or
her child to engage in conduct which the woman
or her child has the right to desist from or desist
from conduct which the woman or her child has
the right to engage in, or attempting to restrict or
restricting the woman's or her child's freedom of
movement or conduct by force or threat of force,
physical or other harm or threat of physical or
other harm, or intimidation directed against the
woman or child. This shall include, but not
limited to, the following acts committed with the
purpose or effect of controlling or restricting the
woman's or her child's movement or conduct:
(a) Threatening to deprive or actually depriving
the woman or her child of custody to her/his
family;
(b) Depriving or threatening to deprive the woman
or her children of financial support legally due
her or her family, or deliberately providing the
woman's children insufficient financial
support;
(c) Depriving or threatening to deprive the woman
or her child of a legal right;
(d) Preventing the woman in engaging in any
legitimate profession, occupation, business or
activity or controlling the victim's own money
or properties, or solely controlling the
conjugal or common money, or properties;
(6) Inflicting or threatening to inflict physical harm on
oneself for the purpose of controlling her actions
or decisions;
(7) Causing or attempting to cause the woman or her
child to engage in any sexual activity which does
not constitute rape, by force or threat of force,
physical harm, or through intimidation directed
against the woman or her child or her/his
immediate family;
(8) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that
alarms or causes substantial emotional or
psychological distress to the woman or her child.
This shall include, but not be limited to, the
following acts:
(a) Stalking or following the woman or her child in
public or private places;
(b) Peering in the window or lingering outside the
residence of the woman or her child;
(c) Entering or remaining in the dwelling or on the
property of the woman or her child against
her/his will;
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(d) Destroying the property and personal
belongings or inflicting harm to animals or
pets of the woman or her child; and
(e) Engaging in any form of harassment or
violence;
(9) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support
or custody of minor children of access to the
woman's child/children.
DEFENSES
GROUNDS FOR DENYING LEGAL SEPARATION (ARTICLE 56)
(4CMPRD):
(1) Condonation by aggrieved party
(2) Consent by aggrieved party to the commission of
the offense
(3) Connivance between parties in the commission of
the offense
(4) Mutual guilt or Recrimination between spouses in
the commission of any ground for legal
separation
(5) Collusion between parties to obtain decree of
legal separation
(6) Prescription of action for legal separation (Art. 57:
5 years from occurrence of the cause of action)
(7) Reconciliation of parties during pendency of
action (Art. 66 par.1)
(8) Death of either party during pendency of action
(Lapuz-Sy vs. Eufemio)
COOLING-OFF PERIOD AND RECONCILIATION
EFFORTS
Action cannot be tried before six months have
elapsed from the filing of the petition (Art. 58).
Action cannot be tried unless the court has
attempted to reconcile the spouses, and determined
that despite such efforts, reconciliation is highly
improbable (Art. 59)
Note: This is without prejudice to judicial
determination of custody of children, alimony, and
support pendente lite.
Araneta vs. Concepcion, (1956):
Courts can still resolve other issues, pending the
waiting period or cooling off period. In resolving issues,
try not to touch, as much as possible, on the main
issue (i.e. adultery if that is the ground used). However,
Court must still receive evidence if just to settle
incidental issues of support and custody.
Note: This provision of the Family Code dictating a
mandatory 6-month cooling-off period does not
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apply in cases where violence, as used in RA 9262
(Anti-Violence Against Women and their Children), is
alleged. The case should be heard as soon as
possible by the court.
CONFESSION OF JUDGMENT
No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment (Art.
60, par. 1. FC).
Note: Art. 60 par. 1 applies only if the judgment was
based solely on the stipulation of facts or solely on
the confession of judgment. Thus, if other grounds
were used, Art. 60 par. 1 is not applicable. (Balane)
Ocampo v Florenciano (1960):
The prohibition on confession of judgment does not
mean that the Court will not grant petition if one party
admits to being guilty of the charges of adultery. The
point of this provision is that the Court should still
admit evidence, not decide just based on an admission
of guilt. Because what is prohibited is handing down a
decree of legal separation based solely on a confession
of judgment.
EFFECTS OF FILING PETITION
(1) The spouses are entitled to Live separately, but
the marital bond is not severed. (Art. 61 (1)
(2) Administration of Community or Conjugal Property
– If there is no written agreement between the
parties, the court shall designate one of them or a
third person to administer the ACP or CPG. (Art.
61, par. 2)
EFFECTS OF PENDENCY
The Court shall provide for: (Art. 62, cf. Art. 49. FC)
(a) Support of spouses
(b) Custody of children
The court shall give custody of children to one of
them, if there is no written agreement between
the spouses. It shall also provide for visitation
rights of the other spouse.
(c) Visitation rights of the other spouse
EFFECTS OF LEGAL SEPARATION
(1) The spouses can live separately (Art. 63) but the
marriage bonds are not severed.
(2) The ACP or CPG shall be dissolved and liquidated,
and the share of the guilty spouse shall be
forfeited in favor the common children, previous
children, or innocent spouse, in that order (Art.
63. cf. Art. 43, par. 2).
(3) Custody of the minor children shall be awarded to
the innocent spouse (Art. 63, cf. Art 213)
(4) Guilty spouse shall be disqualified from Inheriting
from innocent spouse by intestate succession.
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The provisions in favor of the guilty party in the RECONCILIATION

will of the innocent spouse shall also be revoked
by operation of law. (Art. 63)
(5) Donations in favor of the guilty spouse may be
revoked (Art. 64) but this action prescribes after 5
years from the decree of legal separation.
(6) Innocent spouse may also revoke designation of
guilty spouse as beneficiary in an Insurance policy,
even if such stipulations are irrevocable. (Art. 64.
FC, cf. PD 612, sec. 11)
(7) Obligation for Mutual support ceases, but the
court may order the guilty spouse to support the
innocent spouse. (Art. 198)
(8) The wife shall continue to use the Surname of the
husband even after the decree for legal
separation. (Art. 372, CC)
HOW DONE
Should the spouses reconcile, they should file a
corresponding joint manifestation under oath of such
reconciliation. (Art. 65)
EFFECTS OF RECONCILIATION
(1) Proceedings for legal separation shall be
terminated at whatever stage. (Art. 66)
(2) If there is a final decree of legal separation, it
shall be set aside. (Art. 66)
(3) The separation of property and forfeiture of share
of guilty spouse shall subsist, unless the spouses
agree to revive their former property regime or to
institute another property regime. (Art. 66 cf. Art.
67)
(4) Joint custody of children is restored.
(5) The right to intestate succession by guilty spouse
from innocent spouse is restored.

The right to testamentary succession depends on

the will of the innocent spouse.

ANNEX TO VOID AND VOIDABLE MARRIAGES AND LEGAL SEPARATION

GROUNDS

Void Marriages Voidable Marriages Legal Separation

One is a minor Lack of parental consent Repeated Physical Violence

No authority to marry
No valid marriage license
Bigamous and polygamous
marriages
Mistake of identity
Void subsequent marriage
Psychological incapacity
Incestuous Marriages
Marriages against public
policy
Insanity Pressure to compel to change religious/political
affiliations
Fraud Corruption / Inducement to engage in prostitution
Force, Intimidation or Final judgement with sentence of more than 6 yrs.
Undue Influence
Impotence Drug Addiction / Habitual Alcoholism
Serious and Incurable Homosexuality / Lesbianism
STD
Bigamous marriage (engaging in)
Sexual Infidelity
Attempts against the life
Abandonment without just cause for more than 1
year

EFFECTS OF FILING / PENDING DECREE

Void/Voidable Marriages Legal Separation

Support for the spouses

Custody and support for the children
Visitation rights to the other spouse
No right to live separately Spouses to live separately
Properties are still managed by both parties Designation of an administrator of the properties

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EFFECTS OF AFFIDAVIT OF REAPPEARANCE, JUDICIAL DECLARATION OF NULLITY, ANNULMENT AND LEGAL SEPARATION
Void Marriages Terminated Marriage (Art. Voidable Marriages Legal Separation
41)
Status of Marital ties
Severed Severed Severed Not Severed
Status of Marriage
Void ab initio Subsequent marriage is Void Valid
terminated (not
invalidated)
Status of Children born and conceived before termination
Illegitimate Legitimate Legitimate Legitimate
EXCEPT: Art. 36 and 35 conceived
and born before judgement
(legitimate)
Custody of Children
Court Proceeding Court Proceeding Court Proceeding Innocent Spouse
Property Relations
(1) Dissolution and Liquidation of properties
(a) Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order):
(i) Common children
(ii) Children of the guilty spouse
(iii) Children of the innocent spouse
(2) Notification of creditors with the proceedings for liquidation
(3) Conjugal dwelling to be adjudicated to the spouse who has majority custody of common children
(4) Insurance policy may be revoked only by the innocent spouse (Legal Separation: Only within 5 years)
(5) Spouse in bad faith/guilty shall be disqualified to inherit (testate and intestate)
Donation Propter Nuptias
Valid, but if donee contracted marriage in bad faith, revoked by operation of law May be revoked within 5
years

sexual acts. The wife refused but the husband kept

Rights and Obligations insisting. The wife left the family home. Wife petitioned
between Husband and Wife for support/ separate maintenance.

SC: Court cannot compel the woman to go back to the

ESSENTIAL OBLIGATIONS
(1) Live together (cohabitation – Art. 68)
Exemption: One spouse living abroad or there are
valid and compelling reasons (Art. 69 (2))
Exemption To Exemption: Incompatibility with the
solidarity of the family (Art. 69 (2))
(2) Observe mutual love, respect, and fidelity
(3) Render mutual help and support (Art. 68)
Ilusorio v. Bildner (2000): A person has a purely
personal right to consortium (Constitutional right to
liberty). Court cannot order a man to go back to the
conjugal dwelling. (Shows that what is in Family Code
is not the former spousal unity doctrine (Old
England)).
Goitia v. Campos Rueda (1916): The husband
demanded the wife perform ‘unchaste and lewd’
husband. The duty of the husband to support the wife
is also not terminated because she left the house,
when it is the husband’s fault she left in the first place.
Husband is compelled, in this case, to give support for
separate maintenance (outside family home).
Arroyo v. Vasquez de Arroyo (1921): A court cannot
compel a married woman to go back to her husband.
FAMILY DOMICILE
The husband and wife shall fix the family domicile.
(Art. 69)
In case of disagreement, the court shall decide. (Art.
69 (1))

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(2) Benefit has accrued to the family before OR

SUPPORT
From the conjugal property; If none, income or the
fruits of their separate properties; if none, from their
separate properties (liable in proportion to their
properties).
after the objection.
If BEFORE the objection, enforce resulting obligation
against the separate property of the spouse who has
not obtained consent.

MANAGEMENT OF HOUSEHOLD
This is the right and duty of both spouses.
EFFECT OF NEGLECT OF DUTY
In case the other spouse neglects his or her duties or
commits acts which tend to bring danger, dishonor
or injury to the family, the aggrieved party may apply
to the court for relief. (Art. 72)
Injury contemplated is physical, moral, emotional or
psychological, not financial.
EXERCISE OF PROFESSION
Either spouse may exercise any legitimate
profession, without need for consent of the other.
(a) The other spouse may only object on valid,
serious, and moral grounds.
(b) In case of disagreement, the Court shall decide
whether:
(1) The objection is proper, and
Property Relations of the
Spouses
MARRIAGE SETTLEMENTS
Art. 75. Future spouses may agree upon, in the
marriage settlement, which property regime will
govern their marriage (ACP, CPG, complete
separation of property, other regimes). However, in
the absence of a marriage settlement, or when the
regime agreed upon is void, the system of absolute
community of property as established by this Code
shall govern.
Marriage settlements are considered accessory to
the marriage, therefore as per Art. 81, stipulations in
consideration of future marriage and donations will
be void if the marriage does not take place.

MARRIAGE SETTLEMENT RULES

When modifications can be
made
Requirements of marriage
settlements and any
modification thereof [Art. 77]
General rule: Before marriage is celebrated [Art. 76]
Art. 63(2) – Property regime is dissolved
Arts. 66 and 67 - Reconciliation in case of legal separation
Art. 128 - When spouse leaves family without just cause
Art. 135 - Sufficient cause for judicial separation of property
Art. 136 - Voluntary dissolution of ACP or CPG by the spouses
If a spouse petitions the court for:
(1) Receivership;
(2) Judicial separation of property; or,
(3) Authority to be the sole administrator of the conjugal partnership, if he or she is
abandoned by the other without just cause or fails to comply with his or her obligations to
the family [Art. 128]
Made in writing
Signed by the parties
Executed before the marriage celebration
Registered in the local civil registry where the marriage is recorded and in registries of
property in order to prejudice third persons
If executed by a person below 21 y.o., valid only when persons required to give consent to the
marriage (father, mother, or guardian, respectively) are made parties to the agreement [Art.
78]
If executed by a person upon whom civil interdiction has been pronounced or who is subject
to any other disability, valid only when his guardian is made party to the agreement [Art. 79]

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DONATIONS BY REASON OF MARRIAGE

Solis v. Barroso (1928): In donations propter nuptias, the marriage is really a consideration, but not in the sense of
giving birth to the obligation. There can be a valid donation even if the marriage never took place, but the absence
of marriage is a ground for the revocation fo the donation.

Mateo v. Lagua (1969): Donations propter nuptias are without onerous consideration, marriage being merely the
occasion or motive for the donation, not its cause. Being liberalities, they remain subject to reduction for
inofficiousness upon the donor’s death, if they should infringe the legitime of a forced heir.

Made before the celebration of marriage

Requisites of
Made in consideration of marriage
donations propter
In favor of one or both of the future spouses
nuptias
Donor must be one of the betrothed or any third person
Ordinary wedding gifts given after the celebration of the marriage
Donations in favor of future spouses made before marriage but not in consideration
Donations excluded thereof
Donations made in favor of persons other than the spouses even if founded on the
intended marriage
Spouses to each other
Who may donate Parents of one or both spouses
Third persons to either or both spouses
Family code provisions [Arts. 82-87]
Sources of rules
Ordinary donation provisions [Art. 83; Title III of Book III, NCC]
governing donations
Provisions on testamentary succession and the formalities of wills for donations on future
propter nuptias
property [Art. 84, par. 2]
General rule: Future spouses cannot donate to each other more than 1/5 of their present
property (excess shall be considered void). [Art. 84]
Exception: If they are governed by ACP
Rules for donations Donations of property subject to encumbrances
before marriage (1) Are considered valid.
(2) In case of foreclosure:
(a) if property value < obligation, donee shall not be liable for the deficiency
(b) if property value > obligation, donee shall be entitled to the excess (Art. 85)
(1) If the marriage is not celebrated or judicially declared void ab initio, except donations
made in settlements.
(2) When the marriage takes place without the consent of the parents or guardians, as
required by law.
(3) When the marriage is annulled, and the donee acted in bad faith.
Grounds for (4) Upon legal separation, if the donee is the guilty spouse.
revocation of donation (5) If there is a resolutory condition, and it is not complied with.
propter nuptias [Art. 1. When donee has committed an act of ingratitude: [Art. 765, CC]
86] a. An offense against person or property of donor, or his wife or children under
parental authority.
b. An imputation to the donor of any criminal offense, or any act involving moral
turpitude, even if proven, unless the crime is committed against the donee, his wife
or children under his authority.
c. Refusing to support the donor, if he/she is legally required to do so.
Donations by reason of marriage shall remain valid except that if the donee contracted
marriage in bad faith, such donations made to said donee are revoked by operation of law.
[Art. 43 (3)]
Effects of judicial Revocation by operation of law - Thus, even if spouse in good faith condones the donee,
declaration of nullity the donation propter nuptias is still forfeited.
Effects provided for by Art. 43(2), (3), (4), and (5) and by Art. 44 shall also apply to
marriages that are declared void ab initio or annulled by final judgment under Article 40
(Judicial declaration of nullity) and 45 (Voidable marriages). [Art. 50]

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General rule: Spouses cannot donate to each other, directly or indirectly (donations made
by spouses to each other during the marriage are void). [Art. 87]
Exception: Moderate gifts on the occasion of any family rejoicing.
Harding v. Commercial Union, (1918): The prohibition on donations can only be assailed by
Rules for donations
persons who bear such relation to the parties or the property itself, that their rights are
during marriage
being interfered with. Here, the insurance company of the donated car cannot assail the
validity of the donation. In addition, the codal exception of “moderate gifts” depends on
the income class of the spouses and a car could be considered a “moderate gift” that does
not infringe the prohibition of donation between spouses.
Matabuena v Cervantes, (1971): The donation between common-law spouses falls within
Rules for donations the provision prohibiting donations between spouses during marriage.
between common-law Sumbad v. CA, (1999): The donation made by a man to a woman was held valid because no
spouses proof was shown that they were still living in a common-law relationship at the time of the
donation.

DISTINGUISHED FROM ORDINARY DONATIONS

Donations Propter Nuptias Ordinary Donations
Does not require express acceptance Express acceptance necessary
May be made by minors (Art. 78) Cannot be made by minors
May include future property Cannot include future property
If present property is donated and property is not No limit to donation of present property provided
absolute community, limited to 1/5 (Art. 84) legitimes are not impaired
Grounds for revocation - In Art. 86 Grounds for revocation - in donation laws

ABSOLUTE COMMUNITY OF PROPERTY AND CONJUGAL PARTNERSHIP OF GAINS

Art. 80. Property relations between Filipino spouses are governed by Philippine laws, regardless of the place of
marriage and their residence.

By the Nationality Rule [Art. 15], the rule that Absolute Community Property (ACP) is the default mode of property
relations absent any marriage settlement applies to all Filipinos, regardless of the place of the marriage and their
residence.

Exceptions:
(1) Where both spouses are aliens
(2) As to the extrinsic validity of contracts
(3) Contrary stipulation

Art. 81. Everything stipulated in marriage settlements in consideration of a future marriage are void if marriage
does not take place. However, stipulations that do not depend upon the celebration of marriage (e.g.: recognition
of paternity of illegitimate child) remain valid.

Art. 89. As a general rule, a waiver of rights is not allowed, except in the following cases:
(1) When there is judicial separation of property
(2) When there is legal separation
(3) When the marriage is dissolved by death of one of the spouses
(4) When the marriage is annulled

Art. 90. Co-ownership rules shall apply to ACP in matters not provided by the Family Code.

COMPARISON OF ACP AND CPG

Absolute Community Property
At the precise moment of the celebration
of the marriage [Art. 88]
Conjugal Partnership Of Gains
When it commences
Default property regime for marriages celebrated before the Family
Code took effect (1988)
For marriages after the Family Code, if agreed to by the parties
through a marriage settlement.

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What it consists of
All the property owned by the spouses at Proceeds, products, fruits, and income of their separate properties
the time of the celebration of the Everything acquired by them within marriage through their own
marriage or acquired thereafter [Art. 91] efforts
Under the ACP, spouses cannot exclude Everything acquired by them by chance
specific properties from the regime. Acquired by onerous title during the marriage at the expense of the
common fund
Winnings from gambling shall accrue to Acquired through the labor, industry, work, or profession of either or
the community property [Art. 95] both spouses
Fruits from common property and net fruits of the exclusive
property of each spouse
Share of either spouse in hidden treasure, whether as finder or
owner of property where treasure was found
Acquired through occupation such as fishing or hunting
Livestock existing at dissolution of partnership in excess of what is
brought by either spouse to the marriage
Acquired by chance, such as winnings from gambling or betting
Moral damages arising from a contract paid from the CPG [Zulueta
v. Pan Am (1973)]
Loans contracted during the marriage are conjugal, and so is any
property acquired therefrom [Mendoza v. Reyes (1983)]
Property purchased by installment, paid partly with conjugal funds
and partly with exclusive funds, if full ownership was vested during
the marriage; the CPG shall reimburse the owner-spouse [Art. 118]
If a winning ticket is bought by conjugal funds, the prize is conjugal
(otherwise, the prize is exclusive property of the spouse who owns
the ticket)
Improvement on exclusive property: if original value < new value
(where new value = value of land + value of improvements + net
change in value), then land becomes conjugal property, subject to
the reimbursement of the value of the property of the owner-
spouse at the dissolution of the CPG
Property belonging to one spouse converted into another kind
totally different in nature from its original form during marriage
becomes conjugal in the absence of proof that the expenses of the
conversion were exclusively for the account of the original owner-
spouse, subject to reimbursement of the value of the original
property from the conjugal partnership
What remains exclusive property
Properties acquired before the marriage, Property brought into a marriage by each spouse as his/her own
for those with legitimate descendants with
a former marriage (to protect rights of
children by a former marriage)
Properties acquired by a gratuitous title, Property acquired by either spouse during the marriage by
i.e. donation, inheritance by testate and gratuitous title
intestate succession, including the fruits
of such properties
Except: When expressly provided by
the donor or testator that the property
shall form part of the ACP
Properties for personal use Property acquired by right of redemption, by barter, or by exchange
Except: Jewelry with property belonging to either spouse
Plata v. Yatco: Plata purchased property when she was single.
When married, she and her husband Bergosa co-signed a
mortgage on the property. Upon foreclosure, Bergosa was

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Absolute Community Property
All properties acquired during the
marriage form part of the ACP, unless it
be proven that they are excluded. [Art.
93]
Art. 94
Support of the following:
(1) Spouses
(a) Even if not living together, except
when a spouse leaves conjugal
home without just cause
(b) Even during pendency of action for
legal separation/annulment of
PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION
Conjugal Partnership Of Gains
sued for illegal detainer. A writ of execution on the property
was carried out but Plata refused to leave the premises. SC
ruled that Plata cannot be held in contempt. Property is not
conjugal. Her husband signing as co-mortgagor does not
convert it to CPG. She could ignore execution because the
decision was for her husband alone.
Property purchased with exclusive money of either spouse
Property purchased by installment, paid partly with conjugal funds
and partly with exclusive funds, if full ownership was vested before
the marriage [Art. 118]
Even if the installment is completed after the marriage, the
property is exclusive if ownership was vested in one spouse before
the marriage [Lorenzo v. Nicolas (1952)]
Improvement on exclusive property: if original value > new value
(where new value = value of land + value of improvements + net
change in value), then land remains exclusive property of the
owner-spouse, subject to the reimbursement of the cost of
improvement
Money received under the Social Security Act is not conjugal,
although the employee-spouse contributes to the SS with his
salaries, but belongs to the designated beneficiary under the
Social Security Law. SSA governs, not FC.
Intellectual property, like copyright or patent, should, according to
Tolentino, be considered separate property
Business property (e.g. trademarks, trade names, service marks,
business goodwill) are merely accessories to some commercial
establishment or product, so that if such establishment or product
is separate property of one spouse, then all the business property
is separate property; but all benefits or earnings derived from
these during the marriage should belong to the conjugal property
(Tolentino)
Collection of credits belonging to one spouse exclusively but the
interests shall belong to the CPG [Art. 119]
Sale of separate property of a spouse
Indemnity paid in case of expropriation of separate property or
under an insurance policy covering separate property
Presumption
All property acquired during the marriage, whether made,
contracted, or registered in the name of one spouse, are presumed
conjugal unless the contrary is prove. [Art 116]
As a condition sine qua non in favor of the conjugal partnership,
the party who invokes the presumption must first prove that the
property was acquired during the marriage [Acabal v. Acabal
(2005)]
Charges and obligations
Arts. 121-123
Debts and obligations
(1) Parag. 2: Debts incurred
(a) By administrator-spouse for the benefit of the family
(b) By both spouses
(c) By one spouse with the consent of the other
(2) Parag. 3: By one spouse without the consent of the other for the
benefit of the family
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marriage (3) Parag. 7: Ante-nuptial debts for the benefit of the family
(2)Common children
(3) Legitimate children of previous
marriage
(4)Illegitimate children – follow the
provisions on Support and parag. 9
Debts and obligations contracted during Taxes and expenses
the marriage (1) Parag. 4: Maintenance of the CPG properties
(1) Either by both spouses or one of them, (2) Parag. 5: Mere preservation of all exclusive properties
with the consent of the other (3) Parag. 9: Litigation expenses, unless the suit is groundless
(2)In parags. 2 and 3, creditors need not
prove that the debts benefited the
family
Debts contracted by one spouse without Support
consent of the other – ACP is liable only (1) Parag. 1: Support of spouses and common children
to the extent that the debt benefited the (2) Parag. 6: Education of spouses, absolute
family (3) Parag. 8: Education of common children, only for value of
donation
Support to surviving spouse & children during liquidation is
charged against the fruits or income of their shares in the
properties. [Art. 133]
Tax, liens, repairs (both major and minor) Debts incurred in the exercise of a spouse’s profession [Javier v.
on community property Osmeña (1916)]
Taxes and expenses for mere Loan contracts signed by both spouses are conjugal, and they are
preservation of separate properties jointly liable for payment, even if only one spouse signs a
- Applies only to separate properties by subsequent promissory note [DPB v. Adil (1988)]
either spouse being used by the family,
not those that do not benefit the family
- Expenses limited to minor repairs only
Expenses for professional, vocational, or Debts incurred during the marriage are presumed to be conjugal
self-improvement courses of spouses and thus are charged to the CPG [Cobb-Perez v. Latin (1968)]
Ante-nuptial debts that benefited the
family – if the ante-nuptial debt did not
benefit the family, the applicable rule is
parag. 9
Donations by both spouses to common
legitimate children, for purposes of
professional/vocational courses or
activities for self-improvement
Ante-nuptial debts not under parag. 7, Ayala Investment v. Ching (1998):
support of illegitimate children, and The Supreme Court ruled that indirect benefits that might accrue
liabilities of either spouse arising from to a husband in signing as a surety or guarantee agreement not in
crime/quasi-delict favor of the family but in favor of his employer corporation are not
- Only if the debtor-spouse has no benefits that can be considered as giving a direct advantage
exclusive property or his/her property is accruing to the family. Hence, the creditors cannot go against the
insufficient conjugal partnership property of the husband in satisfying the
- The payments by the ACP are deemed obligation subject of the surety agreement. A contrary view would
advances to be deducted from the share put in peril the conjugal partnership by allowing it to be given
of the guilty spouse upon the gratuitously as in cases of donation of conjugal partnership
liquidation of the absolute community property, which is prohibited
Expenses of litigation between spouses,
except when suit is groundless
If community property is insufficient
except in parag. 9, the spouses are
solidarily liable for the unpaid balance

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from their separate properties
Gambling losses shall be borne by the
losing spouse’s separate property [Art.
95]
Ownership, administration, enjoyment, and disposition
Art. 96: Administration of property Art. 124, par. 1: Administration of property belongs to both spouses,
belongs to both spouses, jointly. If they jointly. In case of disagreement, the husband’s decision shall
disagree, the husband’s decision prevails. prevail, subject to recourse by the wife for proper remedy, which
However, the wife has 5 years to seek must be availed of within 5 years from the date of the contract
recourse from the court. Otherwise, it is implementing such decision
presumed she agreed to his decision. Sale by the husband of property belonging to the conjugal
partnership without the consent of the wife, when there is no
Exception: When the other spouse is showing that the latter is incapacitated, is void ab initio [Abalos v.
incapacitated, or unable to participate in Macatangay (2004)]
the administration, e.g. when abroad. Uy v. CA (2000):
Capacitated spouse may assume sole FC124 contemplates a situation where one spouse is absent, or
powers of administration. However, separated in fact or has abandoned the other or consent is
power is limited to administration. withheld or cannot be obtained. Such rules do not apply to cases
where the non-consenting spouse is incapacitated or incompetent
to give consent ie, in coma. The proper remedy is to file for
guardianship under the ROC. Even assuming that the rules on
summary proceedings apply, the power of the administrator is the
same as a guardian. So a spouse who desires to sell conjugal
property as administrator must still observe the procedure for the
sale of the ward’s estate required of judicial guardians under ROC
not the summary judicial proceedings under FC.
De Ansaldo v. Sheriff of Manila (1937): Spouses are not co-owners
of CPG during the marriage and cannot alienate the supposed ½
interest of each in the said properties. The interest of the spouses
in the CPG is only inchoate or a mere expectancy and does not
ripen into title until it appears after the dissolution and liquidation
of the partnership that there are net assets. [
Either spouse may, through a will, Art. 124, par. 2: Disposition or encumbrance of conjugal property
dispose of his or her interest in the requires the following:
community property. [Art. 97] However, (1) Consent or approval by both spouses, or
the will should refer only to his or her (2) Judicial authority secured in court
share in the community property.
Donation of one spouse without the Donation of CPG must be with the consent of the other spouse
consent of the other is not allowed. [Art. except moderate donations for charity, on occasions of family
98] rejoicing, or family distress [Art. 125; cf. Art. 98]
Exceptions:
(1) Moderate donations to charity due to
family rejoicing or distress
(2) Moderate gifts by each spouse to the
other due to family rejoicing
Moderation depends on the family’s
socio-economic status.

ACP allows donations in excess of one-

fifth of present property of future spouses
because the donation would form part of
the community property once the
marriage is celebrated. [Art. 84]
Mere awareness of a transaction is NOT consent [Jader-Manalo v. Camaisa (2002)]
Homeowner’s Savings & Loan Bank v. Dallo (2005):

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Absolute Community Property Conjugal Partnership Of Gains

In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the
conjugal property shall be void.
Cheeseman v. IAC (1991):
If however, one of the spouses is an alien, the Filipino spouse may encumber or dispose of the property w/o the
consent of the former. The property is presumed to be owned exclusively by the Filipino spouse.
Dissolution of the regime
Terminates upon [Art. 99]: Terminates upon [Art. 126; cf. Art. 99]:
(1) Death of either spouse – follow rules (1) Death
in Art. 103 (2) Legal separation
(2) Legal separation – follow rules in (3) Annulment or judicial declaration of nullity
Arts. 63 and 64 (4) Judicial separation of property
(3) Annulment or judicial declaration of
nullity – follow rules in Arts. 50 and
52
(4) Judicial separation of property during
marriage – follow rules in Arts. 134 to
138
Rules on de facto separation [Art. 100] Not affected by de facto separation [Art. 128; cf. Art. 100]
De facto separation does not affect the
ACP, except that:
(1) Spouse who leaves the conjugal home
without just cause shall not be
entitled to support; however, he/she
is still required to support the other
spouse and the family
(2) If consent is necessary for transaction
but is withheld or otherwise
unobtainable, authorization may be
obtained from the court
(3) Support for family will be taken from
the ACP
(4) If ACP is insufficient, spouses shall be
solidarily liable
(5) If it is necessary to administer or
encumber separate property of
spouse who left, spouse present may
ask for judicial authority to do this
(6) If ACP is not enough and one spouse
has no separate property, spouse who
has property is liable for support,
according to provisions on support
Abandonment [Art. 101] Abandonment and absence [cf. Art. 101]
Present/aggrieved spouse may petition
the court for:
(1) Receivership
(2) Judicial separation of property Partosa-Jo v. CA (1992):
(3) Authority to be the sole administrator Physical separation of the spouses, coupled with the husband’s
of the absolute community, subject to refusal to give support to the wife, sufficed to constitute
precautionary conditions that the abandonment as a ground for an action for the judicial separation
court may impose of their conjugal property.
A spouse is deemed to have abandoned
the other when he or she has left the
conjugal dwelling without any intention
of returning.

Spouse is prima facie considered to have

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

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SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE

SPOUSE DURING THE MARRIAGE
Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between
spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may
either be voluntary or for sufficient cause.
JUDICIAL SEPARATION OF PROPERTY MAY EITHER BE (1) VOLUNTARY OR (2) FOR SUFFICIENT CAUSE.
(a) Sufficient Causes and Grounds for Return to Previous Regime
Sufficient Causes for Judicial Separation of Property (Art. Grounds for Return to Previous Regime
135) (CALASA) (Art. 141)
(1) Spouse of petitioner has been sentenced to a (1) Termination of the civil interdiction
penalty which carries with it the penalty of civil
interdiction
(2) Spouse of petitioner is judicially declared an (2) Reappearance of absentee spouse
absentee
(3) Loss of parental authority of the spouse of (5) Restoration of parental authority to the spouse
petitioner has been decreed by the court previously deprived of it
(4) Spouse of petitioner has abandoned the latter or (4) When the spouse who left the conjugal home without
failed to comply with his or her obligations to the legal separation resumes common life with the other
family
(5) The spouse granted the power of administration in (3) When the court, being satisfied that the spouse
the marriage settlements has abused that power granted the power of administration in will not again
abuse that power, authorizes the resumption of said
administration
(6) At the time of the petition, the spouses have been (6) Reconciliation and resumption of common life of the
separated in fact for at least 1 year and spouse who have separated in fact for at least 1 year
reconciliation is highly improbable.
(7) When after voluntary dissolution of the ACP or CPG
has been judicially decreed upon the joint petition of
the spouses, they agree to the revival of the former
property regime. No voluntary separation of property
may thereafter be granted.

Separation of Property
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a surviving spouse
When it applies without judicial settlement of previous property regime)
Default property regime when there is reconciliation between spouses after judicial separation
of property
Present or future property or both
Each spouse’s earnings from his or her own profession, business, or industry
What it consists
Natural, industrial or civil fruits of spouse’s separate properties
of
May be total or partial
If partial, property not considered separate is presumed to pertain to the ACP
Family expenses: Both spouses are liable in proportion to their income; if insufficient, based on
Liabilities the current value of their separate properties
Creditors for family expenses: Spouses solidarily liable
Spouses may own, dispose, possess, and administer separate estates without the consent of the
other
Ownership, Administration of exclusive properties may be transferred between spouses when:
administration, 1. One spouse becomes the other spouse’s guardian
enjoyment, and 2. One spouse is judicially declared an absentee
disposition 3. One spouse is given the penalty of civil interdiction
4. One spouse becomes a fugitive
Conveyance between the spouses is allowed under Art. 1490, NCC.

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In Re: voluntary dissolution of CPG of spouses Bernas (1965):

A voluntary separation of properties is not perfected by mere consent but upon the decree of the court approving the
st nd
same. The petition for voluntary separation of property was denied because the children of the 1 and 2 marriages
were not informed; the separation of property may prejudice the rights and shares of the children.

Maquilan v. Maquilan (2007):

A compromise agreement with judicial recognition is valid, pending petition for declaration of nullity of marriage.

PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE, ARTS. 147-148

Art. 147 Art. 148

Applicability
Man and woman living together as husband Man and woman living together as husband and wife, NOT
and wife, with capacity to marry (Art.5, capacitated to marry
without any legal impediment) (a) Under 18 years old
(a) at least 18 years old (b) Adulterous relationship
(b) not Art. 37 (incestuous void marriage) (c) Bigamous/polygamous marriage
(c) not Art. 38 (void marriage by reason of (d) Incestuous marriages under Art. 37
public policy) (e) Void marriages by reason of public policy under Art. 38
(d) not bigamous
Other void marriages due to absence of
formal requisite
Salaries and wages
Owned in equal shares Separately owned by parties
Properties acquired through exclusive funds
Remains exclusive, provided there is proof Remains exclusive
Villanueva v. CA (2004): Transfer of certificate Juaniza v. Jose (1979): Property acquired by a married party during
and tax declarations are not sufficient proof cohabitation with another not his spouse belongs to the CPG of
of joint contribution. the marriage, and the other party cannot be held jointly/severally
liable for it
Properties acquired by both through work and industry
Governed by rules on co-ownership Owned in common in proportion to respective contribution
Properties acquired while living together
Owned in equal shares since it is presumed to No presumption of joint acquisition. When there is evidence of
have been acquired through joint efforts joint acquisition but none as to the extent of actual contribution,
there is a presumption of equal sharing.
If one party did not participate in acquisition, Joaquina v. Reyes (2004): Prohibitions against donations between
presumed to have contributed through care spouses must likewise apply to donations between persons living
and maintenance of family and household together in illicit relations
Forfeiture
(1) In favor of their common children If one party is validly married to another his/her share in the co-
(2) In case of default of or waiver by any or all owned properties will accrue to the ACP/CPG of his/her existing
of the common children or their valid marriage
descendants, each vacant share shall
belong to the respective surviving If the party who acted in bad faith is not validly married to another,
descendants his/her share shall be forfeited in the same manner as that
In the absence of such descendants, such provided in Art 147.
share belongs to the innocent party
The same rules on forfeiture shall apply if both parties are in bad
faith.

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Yaptinchay v. Torres (1969):

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

Juaniza v. Jose (1979):

Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the
marriage, and the other party cannot be held jointly/severally liable for it

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

Joaquino v. Reyes (2004):

Prohibitions against donations between spouses must likewise apply to donations between persons living together in
illicit relations;

Valdez vs. QC-RTC (1996):

Marriages that have been declared void come under the rules of co-ownership under FC147/148 regardless of the
reason.

The Family Except: For a suit between members of the same

Art. 149. The family, being the foundation of the
nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations
are governed by law and no custom, practice or
agreement destructive of the family shall be
recognized or given effect.
THE FAMILY AS AN INSTITUTION
ASPECTS OF FAMILY RELATIONS
(1) External Aspect
(a) Governed by law (Art. 149)
(b) Only in this aspect can third persons and the
public interest be concerned
(2) Internal Aspect
(a) Sacred to the family and inaccessible to law
because law must respect the freedom of
action of man
(b) E.g. spiritual relations, sexual relations of
spouses, career or profession of spouses,
profession and career of spouses, practices
and customs of family
FAMILY RELATIONS INCLUDE:
(1) Between husband and wife
(2) Between parents and children
(3) Among other ascendants and descendants
(4) Among brothers and sisters, full or half blood.
General rule: (Art. 151):
No suit between members of the same family shall
prosper.
family to prosper, the following are required:
(1) Earnest efforts towards a compromise have been
made
(2) Such efforts have failed
(3) Such earnest efforts and the fact of failure must
be alleged
Note: The case will be dismissed if it is shown that no
such efforts were made.
The rules shall not apply to cases, which may not be
the subject of compromise.
EXCEPTIONS TO THE GENERAL RULE – CANNOT BE SUBJECT
OF COMPROMISE (ART 2035, CC; VJLAFF)
(1) Civil status of persons,
(2) Validity of marriage or a legal separation,
(3) Any ground for legal separation,
(4) Future support,
(5) Jurisdiction of courts,
(6) Future legitime
Hontiveros v. RTC (1999):
Whenever a stranger is a party in a case involving
family members, the requisite showing of earnest
efforts to compromise is no longer mandatory, as such
inclusion of a stranger takes the case out of the ambit
of Art. 151.
THE FAMILY HOME
CONSTITUTED BY:
(1) Jointly by the husband and the wife
(2) By an unmarried head of a family;

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INCLUDES:
(1) Dwelling house where they and their family reside
(2) The land on which it is situated (Art. 152)
The actual value of the family home shall not exceed,
at the time of the constitution, the amount of Three
hundred thousand pesos (P300,000.00) in urban
areas, and Two hundred thousand pesos
(P200,000.00) in rural areas or such amounts as may
hereafter be fixed by law. (Art. 157)
A person may constitute and be the beneficiary of
only one family home (Art. 161)
The provisions of the Chapter on Family Home shall
govern existing family residences insofar as said
provisions are inapplicable (Art. 162)
GUIDELINES:
(1) It is deemed constituted from time of actual
occupation as a family residence
(2) It must be owned by person constituting it
(3) It must be permanent
(4) Rule applies to valid and voidable and even to
common-law marriages under Arts.147 and 148
(5) It continues despite death of one or more spouses
or unmarried head of family for 10 years or as
long as there is a minor beneficiary (Art.159)
(6) Can only constitute one family home
General rule: The family home is exempt from (EFA)
from the time of its constitution and so long as any of
its beneficiaries actually resides therein (Art. 153):
(1) Execution
(2) Forced sale
(3) Attachment
Exceptions in the exemption of the family home from
execution (Art. 155)
(1) Nonpayment of taxes.
(2) Debts incurred prior to the constitution of the
family home.
(3) Debts secured by mortgages on the premises
before or after such constitution.
(4) Debts due to laborers, mechanics, architects,
builders, materialmen and others who have
rendered service or furnished material for the
construction of the building.
BENEFICIARIES OF THE FAMILY HOME (ART. 154)
(1) Husband and wife, or an unmarried person who is
the head of the family
(2) Parents (may include parent-in-laws),
ascendants, descendants, brothers and sisters
(legitimate/illegitimate), who are living in the
family home and who depend on the head of the
family for support
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REQUISITES TO BE A BENEFICIARY (RLD)
(1) The relationship is within those enumerated
(2) They live in the family home
(3) They are dependent for legal support on the head
of the family
REQUIREMENTS FOR THE SALE, ALIENATION, DONATION,
ASSIGNMENT, OR ENCUMBRANCE OF THE FAMILY HOME
(ART. 158)
(1) the written consent of the person constituting it,
(2) his/her spouse, and
(3) majority of the beneficiaries of legal age
Note: If there is a conflict, the Court will decide.
In case of death of one or both spouses or the
unmarried head of the family (Art. 159):
The family home shall continue despite the death of
one or both spouses or of the unmarried head of the
family for a period of ten years, or as long as there is
a minor beneficiary.
The heirs cannot partition the home unless the court
finds compelling reasons therefore.
REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER
ARTICLE 160 (If a claim of a creditor is not among the
exceptions mentioned in Art. 155 and has reasonable
grounds to believe that the family home is worth
more than the amount fixed in Art. 157)
Requisites:
(1) He must be a judgment creditor;
(2) His claim is not among those excepted under
Article155, and
(3) He has reasonable grounds to believe that the
family home is worth more than the maximum
amount fixed in Art. 157.
Procedure to avail of right under Art. 160
(1) The creditor must file a motion in the court
proceeding where he obtained a favorable
decision for a writ of execution against the family
home.
(2) There will be a hearing on the motion where the
creditor must prove that the actual value of the
family home exceeds the maximum amount fixed
by the FC either at the time of its constitution or
as a result of improvements introduced thereafter
its constitution.
(3) If the creditor proves that the actual value
exceeds the maximum amount the court will
order its sale in execution.
(4) If the family home is sold for more than the value
allowed, the proceeds shall be applied as follows:
(a) First, the obligation enumerated in Article 157
must be paid
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
(b) Then the judgment in favor of the creditor will
be paid, plus all the costs of execution
(c) The excess, if any, shall be delivered to the
judgment debtor
Versola v. Mandolaria (2006):
The proof that the house is the family home must be
alleged against creditors; Applied the rule in Art. 160,
FC.
Patricio v. Dario III (2006):
WON the grandson of the deceased is a beneficiary
according to Art. 154 FC. The beneficiary should satisfy
all requisites; he must be dependent on the head of the
family.
Arriola v. Arriola (2008):
This case involves half-brothers and a second wife; the
family home includes the land it is built on. The rule in
Art. 159 of the FC regarding the 10 year period is
applied, the parties involved must wait.
Paternity and Filiation
KINDS OF FILIATION (ARTS. 163, 164, 165):
(1) Natural
(a) Legitimate
(b) Illegitimate
(2) Legal Fiction (Adoption)
LEGITIMATE CHILDREN
WHO ARE LEGITIMATE CHILDREN (ART. 164)
Those conceived or born during the marriage of
parents either by natural means or by artificial
insemination
Natural/Biological
[Liyao v. Liyao (2002)]: A child conceived or born
during a valid marriage is presumed to belong to that
marriage, regardless of the existence of extramarital
relationships.
Artificial Insemination (Art. 164)
Requisites to be considered legitimate:
(a) Artificial insemination made on wife
(b) Sperm comes from any of the following:
(1) Husband
(2) Third Person Donor
(3) Husband and third person donor
(c) In case of donor sperm, husband and wife must
authorize/ratify insemination in a written
instrument
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(1) Executed & signed by husband and wife
before the birth of the child.
(2) Recorded in the civil registry together with the
birth certificate of the child.
[Tolentino]: Dual consent is required whether the
semen used comes from the husband or a third person
donor
WHO ARE ILLEGITIMATE CHILDREN
General rule: Those conceived and born outside of a
valid marriage. [Art. 165]
Exceptions:
(1) Children of marriages void under Art. 36
(psychological incapacity).
(2) And under Art. 53 (the second marriage of a
widow or widower who has not delivered to his or
her children by his or her first marriage the
legitime of said children). (Sempio-Dy)
De Castro v. Assidao-De Castro, (2008):
Common children born before the annulment are
legitimate, and therefore entitled to support from each
of the spouses.
IMPUGNING LEGITIMACY
Grounds for impugning legitimacy of a child are [Art.
166]:
(1) Physical impossibility for the husband to have
sexual intercourse with his wife within the first
120 days of the 300 days which immediately
preceded the child's birth due to:
(a) Physical incapacity of the husband to have
sexual intercourse with his wife
(b) Husband and wife were living separately as to
make sexual intercourse impossible
(c) Serious illness of the husband absolutely
preventing sexual intercourse
(2) Other biological or scientific reasons, except
Artificial Insemination
(3) And in case of Artificial Insemination, the written
consent of either parent was vitiated through
fraud, violence, mistake, intimidation, or undue
influence
Macadangdang v. CA (1980):
Mere proximate separation between the spouses is not
sufficient physical separation as grounds for
impugning legitimacy.
Andal v. Macaraig (1951):
Serious illness of the husband which absolutely
prevented him from having sexual intercourse with his
wife, like if the husband was already in comatose or a
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
vegetable, or sick with syphilis in the tertiary stage so
that copulation was not possible. But tuberculosis,
even in its most crucial stage, does not preclude
copulation between the sick husband and his wife.
Jao v. CA (1987):
Blood-type matching is an acceptable means of
impugning legitimacy, covered by Art. 166(2), under
"biological or other scientific reasons." But this is only
conclusive of the fact of non-paternity.
Legitimacy with regard to the mother:
(1) Child considered legitimate although [Art. 167]:
(a) Mother may have declared against its
legitimacy
(b) Mother may have been sentenced as an
adulteress (also applies to wife who was
raped)
(2) If the marriage is terminated and the mother
contracted another marriage within 300 days
after the termination of the former marriage, the
rules shall govern in the absence of proof to the
contrary [Art 168]:
(a) If child born before 180 days after the
solemnization of the subsequent marriage –
child is considered conceived during the
former marriage, provided it be born within
300 days after termination of the former
marriage
(b) If child born after 180 days following the
celebration of the subsequent marriage –
child is considered conceived during such
marriage, even if it be born within 300 days
after the termination of the former marriage
Note: The legitimacy or illegitimacy of a child born
after 300 days following the termination of the
marriage – burden of proof upon whoever alleges
the status. [Art. 169]
[Tolentino:] If nobody asserts the legitimacy or
illegitimacy of the child described in Art. 169, the
child should be considered illegitimate unless
legitimacy is proved. Legitimacy cannot be presumed
here since the birth was beyond the 300-day period
of gestation. While it goes against the policy of law
to lean in favor of legitimacy, this interpretation is
better than the anomalous situation created by Art.
169, which is a child without a status.
ACTION FOR IMPUGNING LEGITIMACY [ARTS. 170 AND 171]
May be brought within 1, 2, or 3 years from the
knowledge of the birth, or the knowledge of
registration of birth.
(1) Within 1 year  if husband or any heirs reside in
the same city or municipality where the child was
born or his birth was recorded.
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(2) Within 2 years  if the husband or all heirs live in
the Philippines but do not reside in the same city
or municipality where the child's birth took place
or was recorded
(3) Within 3 years  if the husband or all heirs live
outside the Philippines when the child's birth took
place or was recorded in the Philippines
If the birth of the child has been concealed or was
unknown to the husband, the above periods shall be
counted:
(1) From the discovery or knowledge of the birth of
the child, or
(2) From the discovery or knowledge of its
registration,
(3) Whichever is earlier.
General rule: Only the husband can impugn the
legitimacy of a child. If he does not bring an action
within the prescribed periods, he cannot file such
action anymore thereafter, and this is also true with
his heirs.
Exception: That the heirs of the husband may file the
action or continue the same within the periods
prescribed in Art. 170 [Art. 171]:
(a) If the husband died before the expiration of the
period fixed for bringing his action
(b) If he should die after the filing of the complaint
without having desisted therefrom
(c) If the child was born after the death of the
husband.
Sayson v. CA (1992): Legitimacy can only be attacked
directly.
PROOF OF FILIATION
Legitimate children may establish their filiation by
any of the following [Art. 172]:
(1) Primary Evidence
(a) Their record of birth appearing in the civil
registry.
(b) An admission of his filiation (legitimate or
illegitimate) by his parent or parents in a
public document or a private handwritten
instrument and signed by said parent or
parents
(2) Secondary Evidence
(a) Proof of open and continuous possession of
status as legitimate or illegitimate child
(b) Any other means stated by the rules of court
or special laws
Note: Only in the absence of primary evidence can
secondary evidence be admitted
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ACTION FOR CLAIMING FILIATION [ART. 173]:
(a) The child can bring the action during his or her
lifetime, and once commenced such action
survives even after the death of the parents. The
action does not prescribe as long as he lives.
(b) If the child dies during minority or in a state of
insanity, such action shall be transmitted to his
heirs, who shall have a period of five years within
which to institute the action.
RIGHTS OF LEGITIMATE CHILDREN [ART. 174]:
(a) To bear the surnames of the father and the
mother, in conformity with the provisions of the
Civil Code on Surnames
(b) To receive support from their parents, their
ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of
this Code on Support
(c) To be entitled to the legitimate and other
successional rights granted to them by the Civil
Code
ILLEGITIMATE CHILDREN
Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence
(primary or secondary) as legitimate children. [Art.
175]
ACTION FOR CLAIMING FILIATION [ART. 175]:
(a) For actions based on primary evidence, the same
periods stated in Art. 173 apply.
(b) For actions based on secondary evidence, the
action may only be brought during the lifetime of
the alleged parent.
Mendoza v. Melia (1966):
Baptismal certificates are given probative value only
for births before 1930. Birth certificates must be signed
by the parents and sworn for it to be admitted as
evidence.
Baluyut v. Baluyut (1990):
Unsigned birth certificates are not evidence of
recognized filiation.
Acebedo v. Arquero (2003):
Baptismal certificates are only conclusive of the
sacrament administered, and cannot be used as proof
of filiation.
Lim v. CA (1975):
Marriage certificates cannot be used as proof of
filiation.
Jison v. CA (1998):
Rule 130, Sec. 40 is limited to objects commonly
known as family possessions reflective of a family's
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reputation or tradition regarding pedigree like
inscriptions on tombstones, monuments, or coffin
plates.
Eceta v. Eceta (2004):
Signature of the father on the birth certificate is
considered as an acknowledgement of paternity and
mere presentation of a duly authenticated copy of such
certificate will successfully establish filiations.
Heirs of Rodolfo Bañas v. Heirs of Bibiano Bañas
(1985):
"Su padre [Your father]" ending in a letter is only proof
of paternal solicitude and not of actual paternity.
Signature on a report card under the entry of
"Parent/Guardian" is likewise inconclusive of open
admission.
De Jesus v. Syquia (1933):
By "open and continuous possession of the status of a
legitimate child" is meant the enjoyment by the child
of the position and privileges usually attached to the
status of a legitimate child, like bearing the paternal
surname, treatment by the parents and family of the
child as legitimate, constant attendance to the child's
support and education, and giving the child the
reputation of being a child of his parents.
Agustin v. CA (2005):
DNA evidence can be used as proof of paternity.
De Jesus v. Estate of Decedent Juan Gamboa Dizon
(2001):
The due recognition of an illegitimate child in a record
of birth, a will, a statement before a court of record, or
in any authentic writing, is in itself a consummated act
of acknowledgement of the child, and no further court
action is required.
Gono-Javier vs. Court of Appeals (1994):
Mere possession of status as an illegitimate child does
not make a recognized illegitimate child but is only a
ground for bringing an action to compel judicial
recognition by the assumed parent.
Herrera v. Alba (2005):
In assessing the probative value of DNA evidence,
therefore, courts should consider, among other things,
the following data:
(a) How the samples were collected,
(b) How they were handled,
(c) The possibility of contamination of the samples,
(d) The procedure followed in analyzing the samples,
(e) Whether the proper standards and procedures were
followed in conducting the tests,
(f) The qualification of the analyst who conducted the
tests.
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
Estate of Rogelio Ong v. Diaz (2007):
DNA evidence can still be used even after the death of
the parent.
Gotardo v. Buling (2012):
There are four significant procedural aspects of a
traditional paternity action that parties have to face:
a prima facie case, affirmative defenses, presumption
of legitimacy, and physical resemblance between the
putative father and the child. A prima facie case exists
if a woman declares — supported by corroborative
proof — that she had sexual relations with the putative
father; at this point, the burden of evidence shifts to
the putative father. Further, the two affirmative
defenses available to the putative father are: (1)
incapability of sexual relations with the mother due to
either physical absence or impotency, or (2) that the
mother had sexual relations with other men at the
time of conception.
Perla v. Baring and Perla (2012):
To prove open and continuous possession of the
status of an illegitimate child, there must be evidence
of the manifestation of the permanent intention of the
supposed father to consider the child as his, by
continuous and clear manifestations of parental
affection and care, which cannot be attributed to pure
charity.
Meanwhile, the lack of participation of the supposed
father in the preparation of a baptismal certificate
renders this document incompetent to prove paternity.
Baptismal certificates are per se inadmissible in
evidence as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence to prove
the same
RIGHTS OF ILLEGITIMATE CHILD [ART. 176]:
(a) Use the surname and be under the parental
authority of the mother
(b) However, may use the surname of their father if
(1) Their filiation has been expressly recognized
by the father through the record of birth
appearing in the civil register.
(2) There is an admission in a public document or
private handwritten instrument made by the
father.
(3) Provided, the father has the right to institute
an action before the regular courts to prove
non-filiation during his lifetime [RA 9255]
(c) Shall be entitled to support in conformity with the
Family Code
(d) Legitime shall consist of one-half of the legitime
of a legitimate child. Except for such
modification, all other provisions of the Civil Code
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governing successional rights shall remain in
force.
LEGITIMATED CHILDREN
"Legitimated" children are illegitimate children who
because of the subsequent marriage of their parents
are, by legal fiction, considered legitimate.
TO BE CAPABLE OF LEGITIMATION:
(1) The child must have been conceived and born
outside of wedlock; and
(2) General rule: The parents, at the time of the child's
conception, were not disqualified by any
impediment to marry each other (Art. 177).
Exception: RA 9858 - Children born to parents
who were so disqualified only because either or
both of them were below eighteen (18) years of
age at the time of child’s conception may be
legitimated.
PROCEDURE:
(a) Legitimation shall take place by a subsequent
valid marriage between the parents. The
annulment of a voidable marriage shall not affect
the legitimation. [Art. 178]
(b) Effects of legitimation shall retroact to the time of
the child’s birth [Art. 180]
(c) Legitimation of children who died before the
celebration of the marriage shall benefit their
descendants [Art. 181]
GROUNDS FOR IMPUGNING LEGITIMATION:
(1) The subsequent marriage of the child's parents is
void.
(2) The child allegedly legitimated is not natural.
(3) The child is not really the child of the alleged
parents. (Sempio-Dy)
RIGHTS:
The same as those of legitimate children [Art. 179]
IMPUGNING LEGITIMATION [ART. 182]
(1) May be made only by those who are prejudiced in
their rights
(2) Within five years from the time their cause of
action accrues
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION

Adoption emergency reasons are allowed) in RP prior to

the filing of application and maintains such
residence until the decree is entered
(4) Has been certified by his/her diplomatic or
Legitimation Adoption consular office or any appropriate government
agency that he/she has the legal capacity to
Legal effect adopt in his/her country
The law merely makes The law merely creates by (5) His/her government allows the adoptee to
legal what exists by fiction a relation which enter his/her country as his/her adoptee
nature did not in fact exist (6) Has submitted all the necessary clearances
Persons affected and such certifications as may be required
Natural Children Strangers (generally)
Procedure **Items 3, 4 and 5 may be waived under the
Extrajudicial acts of Always by judicial decree following circumstances:
parents (a) Adopter is a former Filipino Citizen who seeks to
th
Who should apply adopt a relative within the 4 degree of
Both parents Both parents, but with consanguinity or affinity
exceptions allowing only (b) Adopter seeks to adopt the legitimate or
one of them to apply [RA illegitimate child of his/her Filipino spouse
85520] (c) Adopter is married to a Filipino Citizen and seeks
Effect on parent-child relationship to adopt jointly with his/her spouse a relative
th
Same status and rights Creates a relationship within the 4 degree of consanguinity or affinity
with that of a legitimate only between the child of the Filipino spouse
child not only in relation and the adopting parents
to the legitimizing (3) Guardians
parents but also to With respect to theirs ward after the termination
other relatives of the guardianship and clearance of his/her
accountabilities.
ADOPTION is a juridical act, which creates between
two persons a relationship similar to that which Husband and wife shall adopt jointly, EXCEPT:
results from legitimate paternity and filiation. (1) If one spouse seeks to adopt the legitimate child
of the other
RA 8552 – DOMESTIC ADOPTION LAW (2) If one of the spouse seeks to adopt his/her
WHO CAN ADOPT illegitimate child provided that other spouse has
(1) Filipino Citizens signified his/her consent
(a) Of legal age (3) If spouses are legally separated from each other
(b) With full civil capacity and legal rights
(c) Of good moral character Note: If spouses jointly adopt, parental authority
(d) Has not been convicted of any crime involving shall be exercised jointly
moral turpitude
(e) Emotionally and psychologically capable of WHO CAN BE ADOPTED
caring for children (a) Minor who has been administratively or judicially
(f) At least sixteen (16) years older than adoptee, declared available for adoption
except when adopter is biological parent of (b) Legitimate child of one spouse by another
the adoptee or is the spouse of the adoptee’s (c) Illegitimate child by a qualified adopter to
parent improve the child’s status to that of legitimacy
(g) In a position to support and care for his/her (d) A person of legal age if, prior to the adoption,
children in keeping with the means of the said person has been consistently considered
family and treated by the adopter(s) as his/her child
(2) Aliens since minority
Same for Filipinos provided further that: (e) A child whose previous adoption has been
(1) At least 27 years old rescinded
(2) His/her country has diplomatic relations with (f) A child whose biological or adoptive parent(s)
the Philippines has died, provided that no proceedings shall be
(3) Has been living continuously for 3 years initiated within 6 months from the time of death
(provided that absences not exceeding 60 of said parent(s)
days per 1 year for professional, business, or

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Persons whose written consent is necessary for
adoption [Sec. 9]
(1) The prospective adoptee if 10 years or older
(2) The prospective adoptee’s biological parents,
legal guardian or the government instrumentality
or institution that has custody of the child
(3) The prospective adopters’ legitimate and adopted
children who are 10 years or older
(4) The prospective adopters’ illegitimate children, if
any, who are 10 years or older and living with
them
(5) The spouse, if any, of the person adopting or to be
adopted.
Note: A decree of adoption shall be effective as of the
date the original petition was filed. It also applies in
case the petitioner dies before the issuance of the
decree of adoption to protect the interest of the
adoptee.
PRE-ADOPTION PROCEDURES
(1) Voluntary Commitment of biological mother
wanting to put her child up for adoption
Counseling on her options other than adoption
Explaining to her the implications of losing her
parental authority over the child
Continuing services shall be provided after
relinquishment to cope with feelings of loss, etc.
and other services for his/her reintegration to the
community
Biological parent(s) who decide to keep the child
shall be provided with adequate services and
assistance to fulfill their parental responsibilities
Biological parent(s) who decide to put the child
for adoption shall sign the Deed of Voluntary
Commitment (DVC), which shall be rescissible
within 3 months from signing of the same
(2) Involuntary Commitment of abandoned
neglected child
Filing of a petition at Regional DSWD in the form
of an affidavit and with the required supporting
documents
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Posting of the petition, then recommendation by
the Regional Director of the DSWD (5 days each)
Issuance of certification by DSWD Secretary
declaring the child legally available for adoption
Notes:
(1) Abandoned child – no proper parental
care/guidance; or parents have deserted him/her
for at least 3 continuous months, including
foundlings
(2) Neglected child – his basic needs have been
deliberately unattended or inadequately
attended within 3 continuous months either by:
(a) Physical Neglect – child is malnourished, ill-
clad, without proper shelter, or without proper
provisions
(b) Emotional Neglect – child is maltreated,
raped, seduced, exploited, overworked, or in
moral danger
(3) Required supporting documents for a petition for
the declaration of involuntary commitment:
(a) Social Case Study Report by DSWD / LGU /
institution charged with child’s custody
(b) Proof of efforts to locate the child’s
parents/known relatives
(1) Written certification that a local/national
radio/TV case was aired on 3 different
occasions
(2) Publication in 1 newspaper of general
circulation
(3) Police report / barangay certification of
due diligence
(4) Returned registered mail to last known
address of parents
(c) Birth certificate, if available
(d) Recent photo and photo upon
abandonment of child
ADOPTION PROCEDURES
Inquiry of prospective adopters at DSWD
or
Attendance of DSWD Adoption Fora and
Seminars (include counseling)
Application for Adoption
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RIGHTS OF AN ADOPTED CHILD

Case Study Report (a) Parental Authority
All legal ties between biological parents and
adoptee are severed, and the same shall be
Certificate of Availability for Adoption vested on the adopter, except if the biological
parent is the spouse of the adopter. [Art. 189 as
amended]
(b) Legitimacy
Matching The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and shall be entitled to all the rights
and obligations provided by law to legitimate
Placement children born to them without discrimination of
any kind. [Art. 189 as amended]
(c) Succession
Supervised Trial Custody Adopter and adoptee shall have reciprocal rights
of succession without distinction from legitimate
filiation, in legal and intestate succession. If
adoptee and his/her biological parents had left a
Home Study Report
will, the law on testamentary succession shall
govern. [Art. 189 as amended]

Recommendation and Consent of DSWD Art. 190 as amended. Rules on legal or intestate
succession to the estate of the adoptee:

Petition for Adoption (1) Legitimate and illegitimate children, descendants

and the surviving spouse of the adoptee shall inherit
in accordance with the ordinary rules of
legal/intestate succession
Adoption Decree
(2) When the surviving spouse OR illegitimate children
AND adopters concur, they shall inherit on a 50-50
Note: After the decree of adoption, the court may basis
also issue a travel authority, if needed; DSWD to
provide post adoption services (3) When the surviving spouse AND illegitimate
children AND adopters concur, they shall inherit on a
WHO MAY NOT ADOPT/ BE ADOPTED 1/3-/1/3-1/3 basis
Art. 184 (as amended by RA 8552)
The following may not adopt: (4) When only adopters survive, they shall inherit
(1) The guardian, with respect to the ward prior to 100% of the estate
the approval of the final accounts rendered upon
the termination of the guardianship (5) When only collateral blood relatives survive,
(2) Any person convicted of a crime of moral ordinary rules of legal or intestate succession shall
turpitude apply
Art. 187
Art. 365, NCC. An adopted child shall bear the
The following may not be adopted:
surname of the adopter.
(1) A person of legal age unless he is a natural child
of the adopter or of his/her spouse; or he was
treated as a natural child since minority RESCISSION OF ADOPTION
(2) An alien whose government has no diplomatic Adoptee may request for rescission, with the
relations with the Philippines assistance of DSWD if he/she is a minor or over 18
(3) A person already adopted unless his adoption has but incapacitated, based on the ff. grounds:
been previously revoked/rescinded (1) Repeated physical and verbal maltreatment by
adopters despite having undergone counseling
(2) Attempt on life of adoptee
(3) Sexual assault or violence

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(4) Abandonment or failure to comply with parental
obligations
Note: Adoption, being in the best interest of the
child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit
the adopted based on causes enumerated in Art. 919
of the NCC:
(1) Conviction of an attempt on the life of the
adopter
(2) Having accused, without grounds, the adopter of
a crime punishable by imprisonment for more
than 6 years
(3) Conviction of adultery/concubinage with the
adopter’s spouse
(4) Having caused the adopter to make or change a
will by force, intimidation or undue influence
(5) Refusal without just cause to support the adopter
(6) Maltreatment of the adopter by word/deed
(7) Living a dishonorable/disgraceful life
(8) Conviction of a crime which carries with it the
penalty of civil interdiction
Effects of Rescission [Sec. 20]:
(1) Parental authority of the adoptee's biological
parents, if known, OR the legal custody of the
DSWD shall be restored if the adoptee is still a
minor or incapacitated
(2) Reciprocal rights and obligations of the adopters
and the adoptee shall be extinguished
(3) Court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and
restore his/her original birth certificate
(4) Succession rights shall revert to its status prior to
adoption, but only as of the date of judgment of
judicial rescission
(5) Vested rights prior to judicial rescission shall be
respected
Note: Rescission contemplates a situation where the
adoption decree remains valid until its termination
RECTIFICATION OF SIMULATED BIRTH
Simulation of birth is the tampering of LCR records
to make it appear that a certain child was born to a
person who is not his/her biological parent, causing
said child to lose his true identity/status
Sec. 21-b (RA 8552)
Any person who shall cause the fictitious registration
of the birth of a child under the name(s) of a
person(s) who is not his/her biological parent(s) shall
be guilty of simulation of birth, and shall be
punished by prision mayor in its medium period and
a fine not exceeding Fifty thousand pesos
(P50,000.00).
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Sec. 22 (RA 8552)
A person who has, prior to the effectivity of RA 8552,
simulated the birth of a child shall not be punished
for such act, PROVIDED:
(a) The simulation was for the child’s best interest
(b) Child has been treated consistently as his own
(c) Petition filed within 5 years of RA 8552’s
effectivity (2003)
Three-in-one Procedure
(a) Correction of entries in birth certificate
(b) Declaration of abandonment
(c) Adoption decree
RA 8043 – THE LAW ON INTER-COUNTRY
ADOPTION
INTER-COUNTRY ADOPTION refers to the socio-legal
process of adopting a Filipino child by a foreigner or
a Filipino citizen permanently residing abroad where
the petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued
outside the Philippines
WHO CAN ADOPT
Any foreign national or a Filipino citizen permanently
residing abroad who has the qualifications and none
of the disqualifications under the Act may file an
application if he/she:
(a) Is at least 27 years of age and at least 16 years
older than the child to be adopted, at the time of
application unless the adopter is the parent by
nature of the child to be adopted or the spouse of
such parent
(b) If married, his/her spouse must jointly file for the
adoption
(c) Has the capacity to act and assume all rights and
responsibilities of parental authority under his
national laws, and has undergone the
appropriate counseling from an accredited
counselor in his/her country
(d) Has not been convicted of a crime involving moral
turpitude
(e) Is eligible to adopt under his/her national law
(f) Is in a position to provide the proper care and
support and to give the necessary moral values
and example to all his children, including the
child to be adopted
(g) Agrees to uphold the basic rights of the child as
embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of this Act
(h) Comes from a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited
agency and that adoption is allowed under
his/her national laws
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
WHO CAN BE ADOPTED
(a) Only a legally-free child may be the subject of
inter-country adoption.
(b) A legally-free child is one who has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with the
Child and Youth Welfare Code.
(c) No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the
child cannot be adopted locally.
(d) In order that such child may be considered for
placement, the following documents must be
submitted to the Board:
(a) Child study
(b) Birth Certificate / Foundling Certificate
(c) Deed of Voluntary Commitment/ Decree of
Abandonment/ Death Certificate of parents
(d) Medical Evaluation / History
(e) Psychological Evaluation, as necessary
(f) Recent photo of the child
Tamargo v. CA (1992):
Where the petition for adoption was granted after the
child had shot and killed a girl, the Supreme Court did
not consider that retroactive effect may be given to the
decree of adoption so as to impose a liability upon the
adopting parents accruing at a time when adopting
parents had no actual or physically custody over the
adopted child. Retroactive effect may perhaps be given
to the granting of the petition for adoption where such
is essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant
case, however, to hold that parental authority had
been retroactively lodged in the adopting parents so as
to burden them with liability for a tortuous act that
they could not have foreseen and which they could not
have prevented would be unfair and unconscionable.
Lazatin v. Campos (1979):
Adoption is a juridical act, proceeding in rem. Because
it is artificial, the statutory requirements in order to
prove it must be strictly carried out. Petition must be
announced in publications and only those proclaimed
by the court are valid. Adoption is never presumed.
Santos v. Aranzanso (1966):
Validity of facts behind a final adoption decree cannot
be collaterally attacked without impinging on that
court’s jurisdiction.
DSWD v. Belen (1997):
Participation of the appropriate government
instrumentality in performing the necessary studies
and precautions is important and is indispensable to
assure the child’s welfare.
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Landingin v. Republic (2006)
Consents for adoption must be written and notarized.
Sayson v. CA (1992):
Adopted children have a right to represent their
adopters in successional interests. (“Although an
adopted child shall be deemed to be a legitimate child
and have the same rights as the latter, these rights do
not include the right of representation. The
relationship created by the adoption is between only
the adopting parents and the adopted child. It does
not extend to the blood relatives of either party.”)
Republic v. Hernandez (1996):
The change of surname of the adoptee as a result of
the adoption and to follow that of the adopter does
not lawfully extend to or include the proper or given
name. The birth certificate, as it appears in the civil
register, contains the official name. It does not matter
if the mother, with all intention to abandon it later,
named the child for the sake of naming it. If they really
want to change the name, they must institute another
action under Rule 103 of the Rules of Court.
Support
WHAT IT COMPRISES
Consists of everything indispensable for sustenance,
dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial
capacity of the family. [Art. 194]
(a) Education includes a person’s schooling or
training for some profession, trade or vocation.
[Art. 194]
(b) Transportation includes expenses in going to and
from school, or to and from place of work. [Art.
194]
(c) The right and duty to support, especially the right
to education, subsists even beyond the age of
majority. [Art. 194]
WHO ARE OBLIGED
TO SUPPORT EACH OTHER:
(a) Spouses;
(b) Legitimate ascendants and descendants;
(c) Parents and their children (legitimate and
illegitimate) and the children of the latter
(legitimate and illegitimate);
(d) Legitimate brothers and sisters, whether of full or
half-blood; [Art. 195]
(e) Illegitimate brothers and sisters, whether of full
or half-blood, EXCEPT when the need for support
of one (of age) is due to a cause imputable to
his/her fault or negligence. [Art. 196]
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Note: Both legitimate and illegitimate children are
entitled to support.
PROPERTIES ANSWERABLE FOR SUPPORT
From the separate property of the obligor. If no
separate property, the ACP/CPG (if financially
capable) shall advance the support, to be deducted
from the obligor’s share upon liquidation of such
regime. [Art. 197]
ORDER OF SUPPORT
If there are multiple obligors (SDAB)
(1) Spouses
(2) Descendants, nearest in degree
(3) Ascendants, nearest in degree
(4) Brothers and Sisters [Art. 199]
[Tolentino]: The order of liability among ascendants
and descendants would be: (1) legitimate children
and descendants, (2) legitimate parents and
ascendants, (3) illegitimate children and their
descendants.
When two or more are obliged to give support, the
payment shall be divided between them IN
PROPORTION to their resources;
Also, in case of URGENT NEED and by special
circumstances, judge may order only one obligor to
furnish support without prejudice to reimbursement
from other obligors of the share due from them (Art.
200).
If there are multiple recipients and only one obligor,
and the latter has no sufficient means to satisfy all
claims:
(1) Observe order in Article 199 (SDAB) as to whose
claim shall be satisfied first;
(2) But if the concurrent obligees are the spouse and
a child subject to parental authority, the child
shall be preferred. [Art. 200]
[Tolentino]: The above preference given to a child
under parental authority over the spouse should
prevail only if the person obliged to support pays it
out of his own separate property. So if the support
comes from ACP or CPG, the above rule of
preference for the child does not apply.
Pelayo v. Lauron (1909):
Even if the parents-in-law were the ones who called for
the physician’s services for the childbirth of their
daughter-in-law, it is the woman’s husband who is
bound to pay the fees due to the physician.
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Lacson v. San Jose-Lacson (1968):
Man is still liable for support in arrears since the
mother advanced it from a stranger (the uncle of the
daughters).
Lacson v. Lacson (2006):
Acknowledgment of and commitment to comply with
support obligation through a note in his own
handwriting is proof that a demand was made.
Gotardo v. Buling (2012):
The amount of support is variable and, for this reason,
no final judgment on the amount of
support is made as the amount shall be in proportion
to the resources or means of the giver and the
necessities of the recipient.
STRANGER GIVES SUPPORT
When, WITHOUT THE KNOWLEDGE of the person
obliged to give support, it is given by a stranger, the
stranger has the right to claim the same from the
person obliged, unless it appears that he gave it
without intention of being reimbursed. [Art. 206]
PERSON OBLIGED REFUSES OR FAILS TO GIVE SUPPORT
When the person obliged to give support UNJUSTLY
REFUSES OR FAILS to give support when urgently
needed, any third person may furnish support to the
needy individual, with right of reimbursement from
the person obliged to give support. This particularly
applies when the father or mother of a minor child
unjustly refuses to support or fails to give support to
the child when urgently needed. [Art. 207]
CONTRACTUAL SUPPORT OR THAT GIVEN BY WILL
The excess in amount beyond that required for legal
support shall be subject to levy on attachment or
execution. [Art. 208]
Reason: The amount of support agreed upon in the
contract or given in the will can be more than what
the recipient needs (Sempio-Diy).
Furthermore, contractual support shall be subject to
adjustment whenever modification is necessary due
to changes in circumstances manifestly beyond the
contemplation of the parties. [Art. 208]
SUPPORT DURING MARRIAGE LITIGATION
Pending legal separation or annulment, and for
declaration of nullity, support (pendente lite) for
spouses and children will come from the ACP/CPG.
After final judgment granting the petition, mutual
support obligation between spouses ceases. (But in
legal separation court may order guilty spouse to
give support to innocent spouse.) [Art. 198]
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
Note: De facto separation does not affect the ACP,
except that the spouse who leaves the conjugal
home without just cause shall not be entitled to
support. [Art. 100]
AMOUNT
The amount of support is in proportion to the means
of the provider and the needs of the receiver, and can
be reduced or increased if such circumstances
change. [Arts. 201, 202]
WHEN DEMANDABLE
(a) The obligation to give support shall be
DEMANDABLE from the time the person who has
a right to receive the same needs it for
maintenance, but it shall not be PAYABLE except
from the date of judicial or extra-judicial demand.
[Art. 203]
(b) Support pendente lite may be claimed in
accordance with the Rules of Court. [Art. 203]
(c) Payment shall be made within the first five days
of each corresponding month. When the recipient
dies, his heirs shall not be obliged to return what
he has received in advance. [Art. 203]
OPTIONS
(a) Payment of the amount; or
(b) Receiving and maintaining the recipient in the
home of the provider, unless there is a legal or
moral obstacle for doing so.
ATTACHMENT
The right to receive support as well as any money or
property obtained as such support shall not be levied
upon on attachment or execution. (Art. 205)
[Tolentino:] This is to protect that which the law gives
to the recipient against want and misery.
Parental Authority
GENERAL PROVISIONS
Parental authority is the mass of rights and
obligations which parents have in relation to the
person and property of their children until their
emancipation, and even after this under certain
circumstances (Manresa).
PARENTAL AUTHORITY INCLUDES [ART. 209]:
(1) The caring for and rearing of children for civic
consciousness and efficiency;
(2) The development of the moral, mental and
physical character and well-being of said children
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PARENTAL AUTHORITY AND RESPONSIBILITY MAY NOT BE
RENOUNCED OR TRANSFERRED EXCEPT IN THE CASES
AUTHORIZED BY LAW. [ART. 210]
CASES WHEN PARENTAL AUTHORITY AND RESPONSIBILITY
MAY BE TRANSFERRED OR RENOUNCED:
(a) Adoption;
(b) Guardianship; or
(c) Commitment of the child in an entity or
institution engaged in child care or in a children’s
home
RULES AS TO THE EXERCISE OF PARENTAL AUTHORITY:
(a) Jointly exercised by the father and mother over
their common children, but in case of
disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary [Art.
211]
(b) Exercised by the mother if the child is illegitimate
[Art.176]
(c) Children under parental authority shall always
observe respect and reverence towards their
parents and are obliged to obey them [Art. 211]
CHARACTERISTICS OF PARENTAL AUTHORITY:
(1) Natural right and duty of parents [Art. 209, FC]
(2) Cannot be renounced, transferred or waived,
except in cases authorized by law [Art 210, FC]
(3) Jointly exercised by the father and the mother
[Art. 211, FC]
(4) Purely personal and cannot be exercised through
agents
(5) Temporary
PARENTAL PREFERENCE RULE:
The natural parents, who are of good character and
who can reasonably provide for the child, are
ordinarily entitled to custody as against all persons.
[Santos v CA (1995)]
WHO EXERCISES AUTHORITY IN CASES OF DEATH,
ABSENCE, UNSUITABILITY, REMARRIAGE, OR SEPARATION
OF PARENTS:
(1) In case one parent is absent or already dead, the
present or surviving parent [Art. 212]
- Remarriage of the surviving parent shall not
affect his/her parental authority over the
children, unless the court appoints another
person to be the guardian of the children or
their property [Art. 212]
(2) In case of a void/annulled marriage, and there is
no agreement between spouses, the parent
designated by the court [Art. 43 par. 1; Art. 49]
(3) Innocent spouse gets custody of minor children in
legal separation [Art. 63 par. 3]
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(4) The court shall take into account all relevant SUBSTITUTE PARENTAL AUTHORITY OVER DISADVANTAGED
considerations, especially the choice of the child CHILDREN (ART. 217)
over seven years of age, unless the parent chosen Entrusted in summary judicial proceedings to:
is unfit [Art. 213 par. 1] (1) Heads of children’s homes
(5) Substitute parental authority [Art. 214] (2) Orphanages
(a) In case of death, absence or unsuitability of Similar institutions duly accredited by the proper
the parents, substitute parental authority shall government agency (such as the DSWD)
be exercised by the surviving grandparent
(b) When several grandparents survive, the one Who are disadvantaged children:
designated by the court shall exercise (1) Foundlings
parental authority, taking into account all (2) Abandoned
relevant considerations, especially the choice (3) Neglected
of the child over seven years of age, unless the (4) Abused
grandparent chosen is unfit (5) Others similarly situated

DESCENDANT’S PRIVILEGE OF REFUSAL TO TESTIFY [ART. PERSONS EXERCISING SPECIAL PARENTAL AUTHORITY
215]: No descendant shall be compelled, in a criminal [ART. 218 FC]
case, to testify against his parents and grandparents. (1) School, its administrators and teachers; or
(2) The individual, entity or institution engaged in
Exception: When such testimony is indispensable in child care
(1) a crime against the descendant, or (2) a crime by
one parent against the other. Note: Exercised over minor child while under their
supervision, instruction or custody; authorized
TENDER YEARS PRESUMPTION: activities include those conducted both within or
NO child under 7 years of age shall be separated outside the school, entity or institution
from the mother, unless the court finds compelling
reasons to order otherwise. [Art. 213 par 2; Gamboa v. Substitute Special Parental Authority
CA (2007)] Parental Authority
It is exercised in It is exercised concurrently with
Examples of compelling reasons are: case of death, the parental authority of the
(1) When the mother is insane; absence, or in parents and rests on the theory
(2) with a communicable disease that might case of that while the child is in the
endanger the life or health of the child; unsuitability of custody of the person exercising
(3) is maltreating the child; or parents. special parental authority, the
(4) has another child by another man who lives with parents temporarily relinquish
her. [Cervantes v. Fajardo (1989)] parental authority over the child
to the latter.
Note: Prostitution or infidelity to husband does not
make a mother unfit as parent. St. Mary’s Academy v. Carpitanos (2002):
The special parental authority and responsibility
SUBSTITUTE AND SPECIAL PARENTAL applies to all authorized activities, whether inside or
AUTHORITY outside the premises of the school, entity or institution.
PERSONS EXERCISING SUBSTITUTE PARENTAL AUTHORITY
LIABILITY OF THOSE EXERCISING SPECIAL PARENTAL
IN DEFAULT OF PARENTS OR JUDICIALLY APPOINTED
AUTHORITY OVER THE CHILD (ART. 219 FC)
GUARDIAN (IN THIS ORDER):
(1) Principal and solidary liability for damages
(a) The surviving grandparent [Art. 214, FC]
caused by the acts or omissions of the minor child
(b) Oldest brother or sister, over 21 years old, unless while under their special parental authority
unfit or unqualified.
(2) Subsidiary liability for the parents and judicial
(c) Child’s actual custodian, over 21 years old, unless
guardians of the minor, or those exercising
unfit or unqualified.
substitute parental authority over such minor for
his acts and omissions
Note: The same order applies to the appointment of
judicial guardian over the property of the child
Note: Both groups can use the defense that they
exercised proper diligence to avoid liability

PAGE 53
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EFFECT OF PARENTAL AUTHORITY UPON THE
PERSONS OF THE CHILDREN
RIGHTS OF PARENTS UPON THE PERSON OF THE CHILDREN:
(1) To have them in their custody [Art. 220]
(2) To represent them in all matters affecting their
interests [Art. 220]
(3) To demand from them respect and obedience
and impose necessary discipline on them [Art.
220]
(4) To give or withhold consent to their marriage,
their marriage settlements, their donations by
reason of marriage, adoption, and employment
(Art. 220)
(5) To disinherit them for just cause (Tolentino)
People v Silvano (1999):
Art. 220 which states that the parent has a right to
impose necessary discipline on the child does not
authorize the parent to invade or disregard the
child’s honor and dignity under the mask of
discipline. Such acts can never be justified as
parental punishment.
DUTIES OF PARENTS UPON THE PERSON OF THE CHILDREN:
(a) To support them, providing for their upbringing in
accordance with their means [Art. 220]
(b) To educate, instruct, and provide them with moral
and spiritual guidance and love and
understanding [Art. 220]
(c) To defend them against unlawful aggression [Art.
220]
(d) To give their lawful inheritance (Tolentino)
(e) To perform such other duties as are imposed by
law [Art. 220]
(f) To answer for damages caused by their fault or
negligence and for the civil liability for crimes
committed by them. [Art. 221]
SUBSTITUTE REPRESENTATION [ART. 222]
The courts may appoint a guardian of the child’s
property, or a guardian ad litem when the best
interests of the child so requires.
COURT ASSISTANCE IN THE DISCIPLINE OF THE CHILD
[ARTS. 223-224]
(1) The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental
authority, may petition the proper court of the
place where the child resides, for an order
providing for disciplinary measures over the child.
[Art. 223]
(2) The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the
court, and a summary hearing shall be conducted
wherein the petitioner and the child shall be
heard. [Art. 223]
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(3) If the court finds the petition meritorious,
disciplinary measures may include the
commitment of the child for not more than 30
days in entities or institutions engaged in child
care or in children’s homes duly accredited by the
proper government agency. [Art. 224]
(a) The parent exercising parental authority shall
not interfere with the case of the child
whenever committed but shall provide for his
support. [Art. 224]
(b) Upon proper petition or at its own instance,
the court may terminate the commitment of
the child whenever just and proper. [Art. 224]
If the court finds the petitioner at fault, irrespective of
the merits of the petition, or when the circumstances
so warrant, the court may also order the deprivation
or suspension of parental authority or adopt such
other measures as it may deem just and proper. [Art.
223]
EFFECTS OF PARENTAL AUTHORITY UPON THE
PROPERTY OF THE CHILDREN
(a) The father and mother shall jointly exercise legal
guardianship over the property of the minor child
without court appointment. [Art. 225]
(b) In case of disagreement, the father’s decision
shall prevail, unless there is judicial order to the
contrary. [Art. 225]
(c) The ordinary rules on guardianship shall be
merely suppletory except when the child is under
special parental authority, or the guardian is a
stranger, or a parent has remarried, in which case
the ordinary rules on guardian ship shall apply.
[Art. 225]
(d) If the market value of the property or the annual
income of the child exceeds P50,000, the parent
is required to furnish a bond of not less than 10%
of the value of the child’s property or income.
[Art. 225]
PROCEDURE IN THE APPROVAL OF THE PARENT’S BOND
[ART. 225]
(a) A verified petition for approval of the bond shall
be filed in the proper court of the place where the
child resides.
(b) If the child resides in a foreign country, the
petition shall be filed in the proper court of the
place where the property or any part thereof is
situated.
(c) The petition shall be docketed as a summary
special proceeding. The court shall determine
the amount of the bond, but shall not be less
than 10% of the market value of the child’s
property or of his annual income.
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
OWNERSHIP OF CHILD’S ACQUISITIONS [ART. 226]
The property of the unemancipated child earned or
acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership
and shall be devoted exclusively to the latter’s
support and education, unless the title or transfer
provides otherwise.
PARENT’S USUFRUCT [ART. 226]
The right of the parents over the fruits and income
(not the property itself) of the child’s property shall
be limited primarily to the child’s support and
secondarily to the collective daily needs of the family.
WHEN PARENTS ENTRUST THE MANAGEMENT OF THEIR
PROPERTIES TO A CHILD [ART. 227]
(a) If the parents entrust the management or
administration of any of their properties to an
unemancipated child, the net proceeds of such
property shall belong to the owner.
(b) The child shall be given a reasonable monthly
allowance in an amount not less than that which
the owner would have paid if the administrator
were a stranger, unless the owner grants the
entire proceeds to the child.
(c) In any case, the proceeds thus given in whole or
in part shall not be charged to the child’s
legitime.
SUSPENSION OR TERMINATION OF PARENTAL
AUTHORITY;
RA 7610 – CHILD ABUSE LAW
PARENTAL AUTHORITY PERMANENTLY TERMINATES
(1) Upon death of parents [Art. 228]
(2) Upon death of child [Art. 228]
(3) Upon emancipation of child [Art. 228]
(4) If the parents exercising parental authority has
subjected the child or allowed him to be
subjected to sexual abuse [Art. 232]
Note: In the case of death of parents, there is no
absolute termination of parental authority because
while the child is still a minor, the grandparents,
brothers and sisters, or a guardian may exercise
substitute parental authority over the child [Art. 216]
TERMINATION OF PARENTAL AUTHORITY WHICH CAN BE
REVIVED BY FINAL JUDGMENT [ART. 229]
(1) Upon adoption of the child;
(2) Upon the appointment of a general guardian for
the child;
(3) Upon judicial declaration of
(a) Abandonment of the child in a case filed for
the purpose
(b) Absence or incapacity of the person exercising
parental authority
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(4) Upon final judgment of a competent court
divesting the party concerned of parental
authority.
GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY
[CLEBC; ART. 230-231]
(1) Conviction of parent for crime which carries with it
the penalty of civil interdiction
(2) Treats child with excessive harassment and
cruelty
(3) Gives corrupting orders, counsel, or example
(4) Compels child to beg
(5) Subjects or allows acts of lasciviousness
SCOPE OF SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
[ART. 233]
(a) The person exercising substitute parental
authority shall have the same authority over the
person of the child as the parents.
(b) In no case shall the school administrators, teacher
or individual engaged in child care exercising
special parental authority inflict corporal
punishment upon the child.
RA 7610 – CHILD ABUSE LAW
An ascendant, stepparent or guardian of a minor
who shall induce, deliver or offer the minor to:
(1) Any one prohibited to keep the minor or
(2) Any one prohibited to have in his company a
minor, twelve (12) years or under or who is ten (10)
years or more his junior in any public or private
place, hotel, motel, beer joint, discotheque,
cabaret, pension house, sauna or massage parlor,
beach and/or other tourist resort or similar places
shall suffer penalties and imprisonment.
Note: Those not prohibited to have in his company
such minor in any of the mentioned places: anyone
who is related within the fourth degree of
consanguinity or affinity or any bond recognized by
law, local custom and tradition or acts in the
performance of a social, moral or legal duty
Emancipation, as amended
by RA 6809
Art. 234. Emancipation takes place by the attainment
of majority. Unless otherwise provided, majority
commences at the age of eighteen years.
Art. 236. Emancipation shall terminate parental
authority over the person and property of the child who
shall then be qualified and responsible for all acts of
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS
civil life, save the exceptions established by existing
laws in special cases.
Contracting marriage shall require parental consent
until the age of twenty-one.
Nothing in this Code shall be construed to derogate
from the duty or responsibility of parents and
guardians for children and wards below twenty-one
years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code.
RA 6809:
By virtue of this law, emancipation can no longer
take place by virtue of the minor’s marriage or by the
concession of the parents to a minor in a recorded
public instrument.
Summary Judicial
Proceedings in the Family
Law
PROCEDURAL RULES PROVIDED FOR IN THIS
TITLE SHALL APPLY TO [ART. 238]:
(1) Separation in fact between husband and wife
(2) Abandonment by one of the other
(3) Incidents involving parental authority
SEPARATION IN FACT
A verified petition alleging the following facts is
required when [Art. 239]:
(a) A husband and wife are separated in fact; or,
(b) One has abandoned the other
Situation: Where one of them seeks judicial
authorization for a transaction where the consent of
the other spouse is required by law but such consent
is withheld or cannot be obtained
The petition shall:
(1) Attach the proposed deed, if any, embodying the
transaction, if none, shall describe in detail the
said transaction and state the reason why the
required consent thereto cannot be secured.
(2) The final deed duly executed by the parties shall
be submitted to and approved by the court.
SEPARATE CLAIM FOR DAMAGES: Claims for damages by
either spouse, except costs of the proceedings, may
be litigated only in a separate action. [Art. 240]
JURISDICTION:
Jurisdiction over the petition shall,
upon proof of notice to the other spouse, be
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exercised by the proper court authorized to hear
family cases, if one exists, or in the regional trial
court or its equivalent sitting in the place where
either of the spouses resides. [Art. 241]
NOTIFICATION TO OTHER SPOUSE:
(1) Upon the filing of the petition, the court shall
notify the other spouse, whose consent to the
transaction is required, of said petition, ordering
said spouse to show cause why the petition
should not be granted, on or before the date set
in said notice for the initial conference.
(2) The notice shall be accompanied by a copy of the
petition and shall be served at the last known
address of the spouse concerned. [Art. 242]
PROCEDURE:
(1) A preliminary conference shall be conducted by
the judge personally without the parties being
assisted by counsel.
(2) After the initial conference, if the court deems it
useful, the parties may be assisted by counsel at
the succeeding conferences and hearings. [Art.
243]
(3) If the petition is not resolved at the initial
conference, said petition shall be decided in a
summary hearing. Basis of summary hearing (at
the sound discretion of the court):
(a) Affidavits
(b) Documentary evidence
(c) Oral testimonies at the court’s sound
discretion. If testimony is needed, the court
shall specify the witnesses to be heard and the
subject-matter of their testimonies, directing
the parties to present said witnesses. [Art.
246(a)]
WHEN APPEARANCE OF SPOUSES REQUIRED:
(1) In case of non-appearance of the spouse whose
consent is sought, the court shall inquire into the
reasons for his failure to appear, and shall require
such appearance, if possible. [Art. 244]
(2) If, despite all efforts, the attendance of the non-
consenting spouse is not secured, the court may
proceed ex parte and render judgment as the
facts and circumstances may warrant. In any
case, the judge shall endeavor to protect the
interests of the non-appearing spouse. [Art. 245]
NATURE OF JUDGMENT: The judgment of the court
shall be immediately final and executory. [Art 247]
RULES APPLICABLE FOR ADMINISTERING OR ENCUMBERING
SEPARATE PROPERTY OF SPOUSE: The petition for
judicial authority to administer or encumber specific
separate property of the abandoning spouse and to
use the fruits or proceeds thereof for the support of
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the family shall also be governed by these rules. [Art.
248]
INCIDENTS INVOLVING PARENTAL AUTHORITY
PROCEDURE
(1) Such petitions shall be verified and filed in the
proper court of the place where the child resides.
[Art. 250]
(2) Upon the filing of the petition, the court shall
notify the parents or, in their absence or
incapacity, the individuals, entities or institutions
exercising parental authority over the child. [Art.
251]
Note:
(a) Petitions filed under Articles 223, 225 and 235 of
this Code involving parental authority shall be
verified. [Art. 249]
(b) The rules in Chapter 2 hereof shall also govern
summary proceedings under this Chapter insofar
as they are applicable [Art. 253]
(c) The foregoing rules in Chapter 2 (Separation in
Fact) and (Incidents Involving Parental Authority)
hereof shall likewise govern summary
proceedings filed
(1) Declaration of presumptive death [Art. 41]
(2) Delivery of presumptive legitime [Art. 51]
(3) Fixing of family domicile [Art. 69]
(4) Disagreements regarding one spouse’s
profession, occupation, business, or activity
[Art. 73]
(5) Disposition or encumbrance of common
property in ACP where one spouse is
incapacitated or unable to participate in the
administration; administration of absolute
community in a disagreement and the wife
takes recourse within five years [Art. 96]
(6) Disposition or encumbrance of common
property in CPG where one spouse is
incapacitated or unable to participate in the
administration; administration of absolute
community in a disagreement and the wife
takes recourse within five years, [Art. 124]
When wife and husband are de facto separated and
the CPG is insufficient, the spouse present shall,
upon a petition, be given judicial authority to
administer or encumber any specific property of the
other spouse and use the fruits and proceeds thereof
to satisfy the latter’s share. [Art. 127]
Retroactive Effect
RETROACTIVE EFFECT
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Retroactive Effect
RETROACTIVE EFFECT
This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other
laws. [Art 256]
INVALIDITY OF OTHER PROVISIONS
If any provision is held invalid, other provisions not
affected shall remain valid. [Art. 255]
Funeral, NCC Arts. 305-310
The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the
order established for support, under Article 294 [Art.
305]:
(1) Spouse
(2) Descendants in the nearest degree. In case of
descendants of the same degree, or of brothers
and sisters, the oldest shall be preferred.
(3) The ascendants in the nearest degree. In case of
ascendants, the paternal shall have a better right
(4) The brothers and sisters.
(5) Municipal authorities – if there are no persons
who are bound to support or if such persons are
without means
NATURE OF FUNERAL: Every funeral shall be in keeping
with the social position of the deceased. [Art. 306]
The funeral shall be:
(1) In accordance with the expressed wishes of the
deceased.
(2) In the absence of such expression, his religious
beliefs or affiliation shall determine the funeral
rites.
(3) In case of doubt, the form of the funeral shall be
decided upon by the person obliged to make
arrangements for the same, after consulting the
other members of the family [Art. 307]
Note: No human remains shall be retained, interred,
disposed of or exhumed without the consent of the
persons mentioned in articles 294 and 305.
Damages: Any person who shows disrespect to the
dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages,
material and moral [Art. 309]
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Funeral Expenses: The construction of a tombstone or
mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses [Art. 310].
GUIDELINES IN MAKING FUNERAL ARRANGEMENTS
(1) The persons who are preferred in the right to
make funeral arrangements may waive the right
expressly or impliedly in which case the right and
duty immediately descend to the person next in
the order.
(2) It must be in keeping with the social position of
the deceased.
(3) Law shall prevail over the will of the persons who
have the right to control the burial of deceased –
exhumation, evidential purpose, disposition of
corpse by deceased, mutilation of corpses and
autopsies.
(4) Corpses which are to be buried at public
expenses may also be used for scientific purposes
under certain conditions.
(5) Expressed wishes of the deceased is given priority
provided that it is not contrary to law and must
not violate the legal and reglementary provisions
concerning funerals and disposition of the
remains (time, manner, place or ceremony)
(6) In the absence of expressed wishes, his religious
beliefs or affiliation shall determine the funeral
rights.
(7) In case of doubt, the persons in Art. 199 shall
decide.
(8) Any person who disrespects the dead or interferes
with the funeral shall be liable for material and
moral damages.
Use of Surnames, Arts. 364-
369, 369-380
SURNAMES OF CHILDREN
(1) Legitimate and legitimated children shall
principally use the surname of the father. [Art.
364]
(2) An adopted child shall bear the surname of the
adopter. [Art. 365]
(3) A natural child acknowledged by both parents
shall principally use the surname of the father. If
recognized by only one of the parents, a natural
child shall employ the surname of the
recognizing parent. [Art 366]
(4) Natural children by legal fiction shall principally
employ the surname of the father [Art. 367]
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(5) Illegitimate children referred to in Article 287 shall
bear the surname of the mother. [Art 368]
(6) Children conceived before the decree annulling a
voidable marriage shall principally use the
surname of the father. [Art. 369]
WIFE AFTER AND DURING MARRIAGE
(1) A married woman may use [Art. 370]:
(a) Her maiden first name and surname and add
her husband's surname, or
(b) Her maiden first name and her husband's
surname or
(c) Her husband's full name, but prefixing a word
indicating that she is his wife, such as "Mrs."
[Tolentino:] The wife cannot claim an exclusive right
to use the husband’s surname. She can’t be
prevented from using it; but neither can she restrain
others from using it.
(2) In case of annulment of marriage, and the wife is
the guilty party, she shall resume her maiden
name and surname. If she is the innocent spouse,
she may resume her maiden name and surname.
However, she may choose to continue employing
her former husband's surname, unless [Art. 371]:
(a) The court decrees otherwise, or
(b) She or the former husband is married again to
another person.
(3) When legal separation has been granted, the wife
shall continue using her name and surname
employed before the legal separation. [Art. 372]
(4) A widow may use the deceased husband's
surname as though he were still living, in
accordance with Article 370. [Art 373]
CONFUSION AND CHANGE OF NAMES
In case of identity of names and surnames, the
younger person shall be obliged to use such
additional name or surname as will avoid confusion.
[Art. 374]
In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can
be used only by a son. Grandsons and other direct
male descendants shall either [Art. 375]:
(a) Add a middle name or the mother's surname, or
(b) Add the Roman Numerals II, III, and so on.
No person can change his name or surname without
judicial authority. [Art. 376]
Usurpation of a name and surname may be the
subject of an action for damages and other relief.
[Art. 377]
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The unauthorized or unlawful use of another

person's surname gives a right of action to the latter
[Art. 378]
The employment of pen names or stage names is
permitted, provided it is done in good faith and there
is no injury to third persons. Pen names and stage
names cannot be usurped. [Art. 379]
Except as provided in the preceding article, no
person shall use different names and surnames. [Art
380]
Absence – Art. 43, CC; Art. 41,
Note: Applicable only to two or more persons who
perish in the same calamity, and it is not shown who
died first, and there are no particular circumstances
from which it can be inferred.
Article 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-
founded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.

FC General rule: Marriage contracted by any person

PROVISIONAL MEASURES IN CASE OF
ABSENCE, ARTS. 381-383
Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights
from one to the other.
Note: Article 43 provides a statutory presumption
when there is doubt on the order of death between
persons who are called to succeed each other (only).
Joaquin v. Navarro (1948):
The statutory presumption of Article 43 was not
applied due to the presence of a credible eyewitness as
to who died first.
PRESUMPTION IN THE RULES OF COURT (Rule 131, sec. 3,
(jj.) (presumption of survivorship)
during the subsistence of a previous marriage is void.
Exceptions: The following subsequent marriage of
the present spouse is valid:
(1) Subsequent marriage due to ordinary absence
where:
(a) The prior spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-founded belief
that absent spouse is dead; and
(c) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) The prior spouse had been missing for 2
consecutive years;
(b) There is danger of death attendant to the
disappearance [Art. 391, Civil Code];
(c) The spouse present had a well-founded belief
that the missing person is dead; and
(d) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).

Age Presumed Survivor Notes:

Both under 15
Both above 60
One under 15, the other
above 60
Both over 15 and under
60; different sexes
Both over 15 and under
60; same sex
One under 15 or over 60,
the other between those
ages
(a) Institution of a summary proceeding is not
Older sufficient. There must also be a summary
Younger judgment. (Balane)
One under 15 (b) Only the deserted spouse can file or institute an
action a summary proceeding for the declaration
Male of presumptive death of the absentee.
(Bienvenido case)
Older (c) There must have been diligent efforts on the part
of the deserted spouse to locate the absent
One between 15 and 60 spouse. These diligent efforts correspond to the
requirement of the law for a well-founded belief.

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Exception to the Exception:
Art. 381. When a person disappears from his domicile,
his whereabouts being unknown, and without leaving
an agent to administer his property, the judge, at the
instance of an interested party, a relative, or a friend,
may appoint a person to represent him in all that may
be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee
has expired.
Art. 382. The appointment referred to in the preceding
article having been made, the judge shall take the
necessary measures to safeguard the rights and
interests of the absentee and shall specify the powers,
obligations and remuneration of his representative,
regulating them, according to the circumstances, by
the rules concerning guardians.
Art. 383. In the appointment of a representative, the
spouse present shall be preferred when there is no
legal separation.
If the absentee left no spouse, or if the spouse present
is a minor, any competent person may be appointed
by the court.
REQUISITES: The judge may appoint a person to
represent absentee when:
(1) Person disappears from his domicile
(2) His whereabouts are unknown
(3) No agent to administer his property
(4) An interested party, a relative, or a friend files the
action
WHO MAY BE APPOINTED AS REPRESENTATIVE?
(1) Spouse present shall be preferred when there is
no legal separation
(2) If no spouse or spouse is incapacitated, any
competent person
DECLARATION OF ABSENCE, ARTS. 384-389
Art. 384. Two years having elapsed without any news
about the absentee or since the receipt of the last
news, and five years in case the absentee has left a
person in charge of the administration of his property,
his absence may be declared.
Art. 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an
authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
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(4) Those who may have over the property of the
absentee some right subordinated to the condition of
his death.
Article 386. The judicial declaration of absence shall
not take effect until six months after its publication in
a newspaper of general circulation.
WHEN MAY A DECLARATION OF ABSENCE BE DECLARED?
(a) Two years without any news about the absentee
(b) Five years if the absentee left a person in charge
of administration of his property
(c) Declaration takes effect only after six months after
publication in a newspaper of general circulation
WHO MAY ASK FOR A DECLARATION OF ABSENCE?
(1) Spouse present
(2) Heirs instituted in a will, who may present an
authentic copy of the same;
(3) Relatives who may succeed by the law of intestacy;
(4) Those who may have some right over the property of
the absentee, subordinated to the condition of his
death.
ADMINISTRATION OF THE PROPERTY OF THE
ABSENTEE, ARTS. 387-389
Art. 387. An administrator of the absentee's property
shall be appointed in accordance with Article 383.
Art. 388. The wife who is appointed as an
administratrix of the husband's property cannot
alienate or encumber the husband's property, or that
of the conjugal partnership, without judicial authority.
Art. 389. The administration shall cease in any of the
following cases:
(1) When the absentee appears personally or by means
of an agent;
(2) When the death of the absentee is proved and his
testate or intestate heirs appear;
(3) When a third person appears, showing by a proper
document that he has acquired the absentee's
property by purchase or other title.
In these cases the administrator shall cease in the
performance of his office, and the property shall be at
the disposal of those who may have a right thereto.
WHO MAY ADMINISTER THE PROPERTY?
(a) Spouse present shall be preferred when there is
no legal separation
(b) If no spouse or spouse is incapacitated, any
competent person
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WHEN WILL THE ADMINISTRATION OF PROPERTY CEASE?
Administrator shall cease in performance of his
office, and property shall be disposed in favor of
those who have a right thereto when
(1) Absentee appears personally or by means of an
agent
(2) Testate or intestate heirs appear, upon proof of
death of absentee
(3) Third person appears, with a proper document
showing he has acquired absentee’s property by
purchase or other title
PRESUMPTION OF DEATH, ARTS. 390-392
Art. 390. After an absence of 7 years, it being unknown
whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of 10 years. If he disappeared after the age of 75 years,
an absence of 5 years shall be sufficient in order that
his succession may be opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among
the heirs: (SAAD)
(7) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of
the vessel or aeroplane;
(8) A person in the armed forces who has taken part
in war, and has been missing for four years;
(9) A person who has been in danger of death under
other circumstances and his existence has not
been known for four years.
General rule: A person shall be presumed dead for all
purposes after absence for a period of 7 years.
Exception: Succession
(a) In succession, 10 years is required for
presumption of death.
(b) If absentee disappeared after age 75, 5 years
shall be sufficient.
EXTRAORDINARY ABSENCE
Only 4 years is required for presumption to arise if:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of
the vessel or aeroplane;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not
been known for four years.
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Note:
(1) Although 7 years is required for the presumption
of death of an absentee in the Civil Code, Art. 41
of the Family Code makes an exception for the
purpose of remarriage by limiting such
requirement to 4 years.
(2) Art. 41 also limits the required 4 years in Art. 391
for absence under exceptional circumstances to
only 2 years.
Art. 392. If the absentee appears, or without appearing
his existence is proved, he shall recover his property in
the condition in which it may be found, and the price
of any property that may have been alienated or the
property acquired therewith; but he cannot claim either
fruits or rents.
Republic of the Philippines v. Granada (2012):
The petition for declaration of presumptive death of an
absent spouse for the purpose of contracting a
subsequent marriage under Article 41 of the Family
Code is a summary proceeding “as provided for” under
the Family Code, and as such, the judgment of the
court therein shall be immediately final and executor,
and not subject to ordinary appeal.
However, the losing party in a summary proceeding for
the declaration of presumptive death for purposes of
remarriage under Art. 41 of the FC may file a petition
for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed
grave abuse of discretion amounting to lack of
jurisdiction. From the decision of the CA, the aggrieved
party may elevate the matter to the Supreme Court via
a petition for review on certiorari under Rule 45 of the
Rules of Court.
Civil Registrar
ARTS. 407-413
Art. 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
register.
Art. 408. The following shall be entered in the civil
register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriage;
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(6) judgments declaring marriages void from the
beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss, or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name.
Art. 409. In cases of legal separation, adoption,
naturalization and other judicial orders mentioned in
the preceding article, it shall be the duty of the clerk of
the court which issued the decree to ascertain whether
the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry
of the city or municipality where the court is
functioning.
Art. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the
facts therein contained.
Art. 411. Every civil registrar shall be civilly responsible
for any unauthorized alteration made in any civil
register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from
such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful
alteration.
Art. 412. No entry in a civil register shall be changed or
corrected, without a judicial order.
Art. 413. All other matters pertaining to the registration
of civil status shall be governed by special laws.
RA 9048 AS AMENDED BY RA 10172
AN ACT AUTHORIZING THE CITY OR MUNICIPAL
CIVIL REGISTRAR OR THE CONSUL GENERAL TO
CORRECT A CLERICAL OR TYPOGRAPHICAL
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL REGISTER
WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376
AND 412 OF THE CIVIL CODE OF THE PHILIPPINES
General rule: No entry in a civil register shall be
changed or corrected without a judicial order
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Exception:
(a) Clerical or typographical errors;
(b) Change of: first name or nickname, day and
month in the date of birth, or sex of a person
This exception applies where it is patently clear that
there was a clerical or typographical error or mistake
in the entry, which can be corrected or changed by
the concerned city or municipal civil registrar or
consul general in accordance with the provisions of
this Act and its implementing rules and regulations
Notes:
(a) Clerical or typographical error refers to a mistake
committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous
(i.e. misspelled name, misspelled place of birth,
mistake in the entry of day and month in the date
of birth or the sex of the person or the like, which
is visible to the eyes or obvious to the
understanding, and can be corrected or changed
only by reference to other existing record or
records)
(b) Before the amendment by RA 10172, no correction
must involve the change of sex, nationality, age or
status of the petitioner. After the amendment,
change of sex can now be subjected to correction
without judicial order under the rules of this Act.
(c) Civil Register refers to the various registry books
and related certificates and documents kept in
the archives of the local civil registry offices,
Philippine Consulates and of the Office of the
Civil Registrar General.
Sec. 3. Who May File the Petition and Where. – Any
person having direct and personal interest in the
correction of a clerical or typographical error in an
entry and/or change of first name or nickname in the
civil register may file, in person, a verified petition with
the local civil registry office of the city or municipality
where the record being sought to be corrected or
changed is kept.
In case the petitioner has already migrated to another
place in the country and it would not be practical for
such party, in terms of transportation expenses, time
and effort to appear in person before the local civil
registrar keeping the documents to be corrected or
changed, the petition may be filed, in person, with the
local civil registrar of the place where the interested
party is presently residing or domiciled. The two (2)
local civil registrars concerned will then communicate
to facilitate the processing of the petition.
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Citizens of the Philippines who are presently residing or
domiciled in foreign countries may file their petition, in
person, with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil
registrar or the consul general shall be processed in
accordance with this Act and its implementing rules
and regulations.
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.
GROUNDS
Who may file the petition and where?
(1) Any person having direct personal interest in the
correction of a clerical or typographical error in an
entry and/or change of first name or nickname in
the civil register
(2) Verified petition with the local civil registry office
of the city or municipality
(a) where the record being sought to be corrected
or changed is kept
(b) where the interested party is presently
residing or domiciled, if it will be impractical
to submit in the place where record is kept (i.e.
when party has migrated to another place in
the country
(c) nearest Philippine Consulates, if the petitioner
is presently residing or domiciled in foreign
countries
Note:
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.
Sec. 4. Grounds for Change of First Name or
Nickname. – The petition for change of first name or
nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce.
(2) The new first name or nickname has been
habitually and continuously used by the petitioner and
he has been publicly known by that by that first name
or nickname in the community: or
(3) The change will avoid confusion.
Sec. 5. Form and Contents of the Petition. – The
petition for correction of a clerical or typographical
error, or for change of first name or nickname, as the
case may be, shall be in the form of an affidavit,
subscribed and sworn to before any person authorized
by the law to administer oaths. The affidavit shall set
forth facts necessary to establish the merits of the
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petition and shall show affirmatively that the petitioner
is competent to testify to the matters stated. The
petitioner shall state the particular erroneous entry or
entries, which are sought to be corrected and/or the
change sought to be made.
The petition shall be supported with the following
documents:
(1) A certified true machine copy of the certificate or of
the page of the registry book containing the entry or
entries sought to be corrected or changed.
(2) At least two (2) public or private documents
showing the correct entry or entries upon which the
correction or change shall be based; and
(3) Other documents which the petitioner or the city or
municipal civil registrar or the consul general may
consider relevant and necessary for the approval of the
petition.
No petition for correction of erroneous entry
concerning the date of birth or the sex of a person shall
be entertained except if the petition is accompanied by
earliest school record or earliest school documents
such as, but not limited to, medical records, baptismal
certificate and other documents issued by religious
authorities; nor shall any entry involving change of
gender corrected except if the petition is accompanied
by a certification issued by an accredited government
physician attesting to the fact that the petitioner has
not undergone sex change or sex transplant. The
petition for change of first name or nickname, or for
correction of erroneous entry concerning the day and
month in the date of birth or the sex of a person, as the
case may be, shall be published at least once a week
for two (2) consecutive weeks in a newspaper of
general circulation.
Furthermore, the petitioner shall submit a certification
from the appropriate law enforcements, agencies that
he has no pending case or no criminal record.
The petition and its supporting papers shall be filed in
three (3) copies to be distributed as follows: first copy
to the concerned city or municipal civil registrar, or the
consul general; second copy to the Office of the Civil
Registrar General; and third copy to the petitioner.
RULE 108, RULES OF COURT
CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
Sec. 1. Who may file petition. - Any person interested in
any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation
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or correction of any entry relating thereto, with the (2) Any act, event, order or decree concerning the
Court of First Instance of the province where the civil status of persons which has been recorded in
corresponding civil registry is located. the civil register
(3) Verified petition for the cancellation or correction
Sec. 2. Entries subject to cancellation or correction. - of any entry relating thereto with the Court of
Upon good and valid grounds, the following entries in First Instance of the province where the
the civil register may be cancelled or corrected: (a) corresponding civil registry is located
births; (b) marriages; (c) deaths; (d) legal separations;
ENTRIES SUBJECT TO CANCELLATION
(e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the (a) Births
beginning; (g) legitimations; (h) adoptions; (i) (b) Marriages
acknowledgments of natural children; (j) (c) Deaths
naturalization (k) election, loss or recovery of (d) Legal separations
citizenship (l) civil interdiction; (m) judicial (e) Judgments of annulments of marriage
determination of filiation; (n) voluntary emancipation (f) Judgments declaring marriages void from the
of a minor; and (o) changes of name. beginning
(g) Legitimations
Sec. 3. Parties. - When cancellation or correction of an (h) Adoptions
entry in the civil register is sought, the civil registrar (i) Acknowledgments of natural children
and all persons who have or claim any interest which (j) Naturalization
would be affected thereby shall be made parties to the (k) Election, loss or recovery of citizenship
proceeding. (l) Civil interdiction
(m) Judicial determination of filiation
Sec. 4. Notice and publication. - Upon the filing of the (n) Voluntary emancipation of a minor
petition, the court shall, by an order, fix the time and (o) Changes of name
place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the
order to be published once a week for three (3)
consecutive weeks in a newspaper of general
circulation in the province.

Sec. 5. Opposition. - The civil registrar and any person

having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition
thereto.

Sec. 6. Expediting proceedings. - The court in which

the proceeding is brought may make orders expediting
the proceedings, and may also grant preliminary
injunction for the preservation of the rights of the
parties pending such proceedings.

Sec. 7. Order. - After hearing, the court may either

dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same
in his record.

WHO MAY FILE PETITION?

(1) Any person interested

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Property – All things which are, or may be, the object
of appropriation. [NCC 414]
Characteristics (USA)
(1) Utility – capacity to satisfy human wants
(2) Substantivity and Individuality – separate and
autonomous existence
(3) Susceptibility of being appropriated – what cannot
be appropriated because of their distance, depth,
or immensity cannot be considered ‘things’ (i.e.
stars, ocean)
Classification
HIDDEN TREASURE
Hidden treasure –any hidden and unknown deposit of
money jewels or other precious objects, the lawful
ownership of which does not appear. [NCC 439]
Owner of the land, building or other property on
which the hidden treasure was found, also owns it,
subject to:
(1) Right of a finder by chance who is not a
trespasser/intruder: ½ of treasure
(2) Right of a usufructuary who finds treasure: ½ of
treasure
(3) Right of State to acquire things of interest to
science or the arts [NCC 438]
BASED ON MOBILITY – IMMOVABLE OR
MOVABLE
REAL OR IMMOVABLE PROPERTY [NCC 415]
(1) Land, buildings, roads and constructions of all
kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of
an immovable;
(3) Everything attached to an immovable in a fixed
manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use
or ornamentation, placed in buildings or on lands
by the owner of the immovable in such a manner
that it reveals the intention to attach them
permanently to the tenements;
(5) Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which may be
carried on in a building or on a piece of land, and
which tend directly to meet the needs of the said
industry or works;
(6) Animal houses, pigeon-houses, beehives, fish
ponds or breeding places of similar nature, in
case their owner has placed them or preserves
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PROPERTY BAR OPERATIONS COMMISSION
them with the intention to have them
permanently attached to the land, and forming a
permanent part of it; the animals in these places
are included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while the
matter thereof forms part of the bed, and waters
either running or stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at
a fixed place on a river, lake, or coast;
(10) Contracts for public works, and servitudes and
other real rights over immovable property.
Categories of Immovables (NIDA)
(1) By nature
(2) By incorporation
(3) By destination
(4) By analogy
Immovables by Nature: cannot be moved from place
to place; their intrinsic qualities have no utility except
in a fixed place (Par. 1 & 8)
(1) Par. 1
(a) “Building” - their adherence to the land must
be permanent and substantial.
(b) Buildings have been considered as
immovables, despite:
(i) Treatment by the parties e.g. they
constitute a separate mortgage on the
building and the land [Punzalan v.
Lacsamana]
(ii) Separate Ownership i.e. a building on
rented land is still considered an
immovable. [Tolentino]
(2) Par. 8
(a) Mineral Deposits
(i) Minerals still deposited in the soil
(ii) When minerals have been extracted,
they become chattel.
(b) Slag Dump: dirt and soil taken from a mine
and piled upon the surface of the ground.
Inside the dump can be found the minerals.
(c) Waters: those still attached to or running thru
the soil or the ground.
Immovables by Incorporation: are essentially movables
but are attached to an immovable in such a way as
to be an integral part [Par. 2, 3, 4, 6 & 7]
(1) Par. 2
(a) Trees and plants: only immovables when they
are attached to the land or form an integral
part of an immovable
(i) When they have been cut or uprooted,
they become movables.
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(b) By special treatment of Act 1508 (Chattel work in which they are utilized) they
Mortgage Law), growing crops may be subject recover their condition as movables.
of a Chattel Mortgage. (ii) If it is still needed for the industry but
(c) For the purpose of attachment: growing crops separated from the tenement
are to be attached in the same manner as temporarily, the property continues to be
realty. (Rule 59, Sec. 7) immovable.
(b) Requisites for Immovability in Par. 5:
(2) Par. 3 (i) Placed by the owner or the tenant (as
(a) Res vinta in Roman Law agent);
(b) “Attachment in a fixed manner”: breakage or (ii) Adapted to the needs of the industry or
injury in case of separation will be substantial work
e.g. wells, sewers, aqueducts and railways (c) Except: Estoppel
(i) Whether attached by the owner himself (d) Parties may, by agreement, treat as personal
or some other person property that which by nature would be real,
as long as no third parties would be
(3) Par. 7 prejudiced. That characterization is effective
Actually used (it has been spread over the land) between the parties. [Makati Leasing v.
Wearever(1983)]
Immovables by Destination: are essentially movables (e) Effect of Attachment
but by the purpose for which they have been placed (i) Machinery becomes part of the
in an immovable, partake of the nature of an immovable.
immovable [Par. 4, 5, 6 & 9] (ii) The installation of machinery and
(1) Par. 4 equipment in a mortgaged sugar central
(a) Requisites: for the purpose of carrying out the
(i) Placed by the owner or by the tenant (as industrial functions and increasing
agent); production, constitutes a permanent
(ii) With intention of attaching them improvement on said sugar central and
permanently even if adherence will not subjects said machinery and equipment
involve breakage or injury. to the mortgage constituted thereon.
(b) Where the improvement or ornaments placed [Berkenkotter v. Cu Unjieng(1935)]
by the lessee are not to pass to the owner at
the expiration of the lease, they remain (4) Par. 6
movables for chattel mortgage purposes. Requisites:
[Davao Sawmill v. Castillo(1935)] (a) Placed by the owner or the tenant (as agent);
(b) With the intention of permanent attachment;
(2) Par. 3 v. Par. 4 (c) Forming a permanent part of the immovable.
Par. 3 Par. 4
(5) Par. 9:
Cannot be separated Can be separated (a) A floating house tied to a shore and used as a
from immovable from immovable residence is considered real property,
without breaking or without breaking or considering that the waters on which it floats
deterioration deterioration are considered immovables.
Must be placed by (b) But if the floating house makes it a point to
Need not be placed by the owner, or by his journey from place to place, it assumes the
the owner agent, expressed or category of a vessel, and is considered
implied immovable
Real property by
Real property by Immovables by Analogy: Contracts for public works,
incorporation and
incorporation servitudes, other real rights over immovable property
destination
e.g. usufruct and lease of real property for a period of
(3) Par. 5 1 year and registered [Par. 10]
(a) Immovability depends upon their being
destined for use in the industry or work in the Note: Enumeration in Art. 415 not absolute
tenement; (1) Parties may by agreement treat as, but effective
(i) The moment they are separated, (from only as to them.
the immovable or from the industry or

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It is based, partly, upon the principle of estoppel.
[Evangelista vs. Alto Surety(1958)]
(2) For purposes of taxation, improvements on land
are commonly taxed as realty, even though for
some purposes, they might be considered as
personalty.
It is a familiar phenomenon to see things
classified as real property for purposes of
taxation, which on general principle, might be
considered personal property. [Manila Electric v.
Central Bank(1962)]
PERSONAL OR MOVABLE [416 & 417, CC]
(1) Those movables susceptible of appropriation
which are not included in the preceding article;
(2) Real property which by any special provision of
law is considered as personalty;
(3) Forces of nature which are brought under control
by science; and
(4) In general, all things which can be transported
from place to place without impairment of the
real property to which they are fixed.
(5) Obligations and actions which have for their
object movables or demandable sums; and
(6) Shares of stock of agricultural, commercial and
industrial entities, although they may have real
estate.
Tests to Determine Movable Character
(1) By exclusion
(a) Everything NOT included in Article 415
(b) Parties cannot by agreement treat as
immovable that which is legally movable.
(2) By description
(a) Ability to change location – whether it can be
carried from place to place;
(b) Without substantial injury to the immovable to
which it is attached.
The steel towers built by MERALCO are not buildings
or constructions since they are removable and
merely attached to a square metal frame by means
of bolts, which when unscrewed could easily be
dismantled and moved from place to place, without
breaking the material or causing deterioration to the
object they are attached. [Board of Assessment
Appeals v. Meralco]
(3) By special provision of law
(a) Growing crops under the Chattel Mortgage
Law
(b) Machinery installed by a lessee not acting as
agent of the owner [Davao Sawmill v. Castillo]
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PROPERTY BAR OPERATIONS COMMISSION
(c) Intellectual property – considered personal
property; it consists in the pecuniary benefit
which the owner can get by the reproduction
or manufacture of his work.
(4) By forces of nature – e.g. electricity, gas, heat,
oxygen
IMPORTANCE AND SIGNIFICANCE OF CLASSIFICATION
UNDER THE CIVIL CODE
(1) In Criminal Law
(a) Usurpation of property can take place only
with respect to real property. [RPC 312]
(b) Robbery and theft can be committed only
against personal property. [RPC 293, 308]
(2) In the Form of Contracts Involving Movables and
Immovables
(a) Subject matter of specific contracts:
(i) Only real property can be the subject of
real mortgage [NCC 2124] and
antichresis [NCC 2132]
(ii) Only personal property can be the
subject of voluntary deposit [NCC 1966],
pledge [NCC 2094] and chattel
mortgage [Act 1508[
(b) Donations of real property are required to be
in a public instrument [NCC 749] but a
donation of a movable may be made orally or
in writing [NCC 748]
(3) For Acquisitive Prescription
(a) Real property can be acquired by prescription
in 30 years (bad faith) and 10 years (good
faith). (NCC 1137, 1134)
(b) Movables can be acquired by prescription in 8
years (bad faith) and 4 years (good faith).
(NCC 1132)
(4) Actions for Recovery of Possession
(a) Possession of real property - recovered
through accion reivindicatoria, accion
publiciana, forcible entry and unlawful detainer.
(b) Possession of movable property - recovered
through replevin.
(5) Venue of actions
(a) Real actions - Actions concerning real property
are commenced in the court which has
jurisdiction over the area where the real
property is situated. [Rules of Court Rule 4 Sec.
1]
(b) Personal actions - Commenced where the
plaintiff or any of the principal plaintiffs, or
where the defendant or any of the principal
defendants resides, or if a non-resident
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defendant, where he may be found, at the
election of the plaintiff. [Rule 4 Sec. 2]
(6) The Governing Law (Private International Law)
(a) Immovables - governed by the law of the
country where they are located
(b) Movables - governed by the personal laws of
the owner (which in some cases is the law of
his nationality and in other cases, the law of
his domicile)
(7) In affecting third persons
(a) In transactions involving real property – must
be recorded in the Registry of Property to
affect third persons
(b) In transactions involving personal property –
registration is not required, except for chattel
mortgages [Chattel Mortgage Register, NCC
2140]
BASED ON OWNERSHIP
Either of public dominion or private ownership [NCC
419]
Churches and other consecrated objects are
considered outside the commerce of man; they are
considered neither public nor private property
PUBLIC DOMINION
Property of public dominion is outside the commerce
of man. They cannot be the subject matter of private
contracts, cannot be acquired by prescription and
they are not subject to attachment and execution nor
burdened with a voluntary easement.
Public As defined by NCC 420
Dominion
Public Used in Art XII, Section 2, 1987
Domain Constitution
Public Lands Public Land Act
Characteristics:
(1) Not owned by the State but pertains to it as
territorial sovereign; to hold in trust for the
interest of the community.
(2) Purpose: For public use, and not for use by the
State as a juridical person
(3) Cannot be the subject of appropriation either by
the State or by private persons
Classifications:
Administered by the State: [NCC 420]
(1) Those intended for public use (roads, canals,
rivers, torrents, ports and bridges constructed by
the State, banks, shores, roadsteads, and others
of similar character)
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PROPERTY BAR OPERATIONS COMMISSION
May be used by everybody, even by strangers or
aliens but nobody can exercise over it the rights of
a private owner
(2) Those intended for some public service
(a) may be used only by authorized persons but
exists for the benefit of all
(b) e.g. fortresses, unleased mines and civil
buildings
(3) Those for the development of the national wealth
Includes natural resources such as minerals, coal,
oil and forest
(4) Patrimonial property
(a) Owned by the State over which it has the
same rights as private individuals in relation
to their own property
(b) Subject to the administrative laws and
regulations on the procedure of exercising
such rights.
(c) E.g. friar lands, escheated properties and
commercial buildings
(d) Purpose:
(i) Enables the State to attain its economic
ends
(ii) Serves as a means for the State’s
subsistence and preservation
(iii) Enables the State to fulfill its primary
mission
(e) Conversion of Property of Public Dominion for
Public Use to Patrimonial Property:
(i) Property of public dominion, when no
longer intended for public use or for
public service, shall form part of the
patrimonial property of the State [NCC
422, Civil Code]
(ii) Requires a Declaration by the
Government (executive or legislative
departments) that it is no longer needed
for public use or service.
Administered by Municipal Corporations: [NCC 424]
(1) Property for public use, in the provinces, cities,
and municipalities, consist of the provincial
roads, city streets, municipal streets, the squares,
fountains, public waters, promenades, and public
works for public service paid for by said provinces,
cities, or municipalities.
(2) Patrimonial property of Municipal Corporations:
(a) The province or municipality, as a juridical
entity, also possesses private property to
answer for its economic necessities.
UP COLLEGE OF LAW
(b) Classification of Properties of provinces, cities,
and municipalities [Salas v. Jarencio, (1972)]
(i) Properties acquired with their own funds
in their private or corporate capacity over
which the political subdivision has
ownership and control
(ii) Properties of public dominion held in trust
for the State’s inhabitants are subject to
the control and supervision of the State
(c) A municipal corporation must prove that they
acquired the land with their own corporate
funds
(d) Presumption: that land comes from the State
upon the creation of the municipality. All
lands in the possession of the municipality
Except for those acquired with its private funds,
are deemed to be property of public dominion,
held in trust for the State for the benefit of its
inhabitants.
(e) Congress has paramount power to dispose of
lands of public dominion in a municipality, the
latter being a subdivision only for purposes of
local administration. [Salas v. Jarencio, (1972)]
PRIVATE OWNERSHIP
Can be exercised by the State in its private capacity
or by private persons
Kinds:
(1) Patrimonial property - Property owned by the
State and its political subdivisions in their private
capacity; all property of the State not included in
NCC 420 (on public dominion) [NCC 421-424]
(2) Property belonging to private persons, either
individually or collectively [NCC 425]
(1) Property of private ownership, besides the
patrimonial property of the State, provinces,
cities, and municipalities, consists of all
property belonging to private persons, either
individually or collectively.
(2) Refers to all property belonging to private
persons, natural or juridical, either individually
or collectively (co-owned property)
Determination (two different views):
(1) Determined by how the property was used:
In Province of Zamboanga v. City of Zamboanga
(1968), property was considered patrimonial for
they were not for public use.
(2) Determined by how the property was acquired:
According to Salas v. Jarencio (1972), the absence
of a title deed to any land, showing that it was
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PROPERTY BAR OPERATIONS COMMISSION
acquired with its private or corporate funds, the
presumption is that such land came from the
State upon the creation of the municipality.
Conversion
Alienable Public Land converted to Private Property
through Prescription – Alienable public land held by a
possessor – personally/through predecessors-in-
interest, openly, continuously and exclusively – for
30 years is CONVERTED to private property by the
mere lapse or completion of the period. The
application for confirmation is mere formality,
because land had already been converted, giving rise
to a registrable title. [Director of Lands v. IAC]
Private Land converted to Property of Public Dominion
through abandonment and reclamation – Through the
gradual encroachment or erosion by the ebb and
flow of the tide, private property may become public
IF the owner appears to have ABANDONED the land,
and permitted it to be totally destroyed so as to
become part of the shore. The land having
disappeared on account of the gradual erosion, and
having remained submerged until they were
reclaimed by the government, they are public land.
[Government v. Cabangis]
BASED ON CONSUMABILITY [NCC 418]
Only applies to movables, determined by nature
CONSUMABLE
(1) Movables which cannot be used in a manner
appropriate to their nature without their being
consumed (e.g. food)
(2) Consumable goods cannot be the subject matter
of a commodatum unless the purpose of the
contract is not the consumption of the object, as
when it is merely for exhibition.
NON-CONSUMABLE
All others not falling under ‘consumable’ e.g. money
in coin
SUSCEPTIBILITY TO SUBSTITUTION
Only applies to movables, determined by the
intention of the parties.
FUNGIBLES
Things which, because of their nature or the will of
the parties, are capable of being substituted by
others of the same kind, not having a distinct
individuality
NON-FUNGIBLES
(1) Things which cannot be substituted for another
(2) If the parties agreed that the same thing be
returned, it is not fungible
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BASED ON THE CONSTITUTION [ARTICLE XII,

SEC 3]
(1) Public Agricultural Land
(2) Mineral Land
(3) Timber Land
(4) National Parks
OTHER CLASSIFICATIONS
BY THEIR PHYSICAL EXISTENCE
(1) Corporeal - All property the existence of which
can be determined by the senses (res qui tangi
possunt)
(2) Incorporeal
(a) Things having abstract existence, created by
man and representing value.
(b) Includes rights over incorporeal things,
credits, and real rights other than ownership
over corporeal things.
BY THEIR AUTONOMY OR DEPENDENCE
(1) Principal - Those to which other things are
considered dependent or subordinated, such as
the land on which a house is built.
(2) Accessory - Those which are dependent upon or
subordinated to the principal. They are destined
to complete, enhance or ornament another
property.
BY SUSCEPTIBILITY TO DETERIORATION
(1) Deteriorable that deteriorate through use or by
time
(2) Non-deteriorable
BY REASON OF THEIR SUSCEPTIBILITY TO DIVISION
(1) Divisible - Those which can be divided physically
or juridically without injury to their nature. E.g.:
piece of land or an inheritance.
(2) Indivisible - Those which cannot be divided
without destroying their nature or rendering
impossible the fulfillment of the juridical relation
of which they are object.
Ownership
DEFINITION
(a) Independent right of exclusive enjoyment and
control of a thing
(b) For the purpose of deriving all advantages
required by the reasonable needs of the
owner/holder of right and promotion of general
welfare
(c) Completely subjected to his will
(d) In everything not prohibited by public law or the
rights of another
RIGHT IN GENERAL
RIGHTS INCLUDED IN OWNERSHIP [NCC 428]
(1) Right to enjoy and dispose of a thing, without
other limitations than those established by law
(2) Right of action against the holder and possessor
of the thing in order to recover it.
BUNDLE OF RIGHTS
(1) Jus Utendi: Right to enjoy and receive what the
property produces
(2) Jus Fruendi: Right to receive fruits
(3) Jus Accessiones: Right to the accessories
(4) Jus Abutendi: Right to consume a thing by use
(5) Jus Disponendi: Right to alienate, encumber,
transform or even destroy the thing owned
(6) Jus Vindicandi: Right to recover possession of
property based on a claim of ownership
(7) Jus Possidendi: Right to possess the property
(Implied from all the other rights)
PROTECTING PROPERTY
BASIC DISTINCTIONS
(1) Real right v. Personal right
Real Rights - Rights that confer upon its holder an
autonomous power to derive directly from a thing
certain economic advantages independently of
whoever the possessor of the thing

BY REASON OF DESIGNATION Personal Rights - Rights of a person to demand

(1) Generic - That which indicates its homogenous from another as a definite passive subject, the
nature, but not the individual such as a horse, fulfillment of a prestation to give, to do or not to
house, dress, without indicating it do
(2) Specific - That which indicates the specie or its
nature and the individual, such as “the white Real Rights Personal Rights
horse of X” Definite active subject Definite active subject
who has a right against (creditor) and a definite
EXISTENCE IN POINT OF TIME ALL persons generally as passive subject (debtor)
(1) Present - Those which exist in actuality, either an indefinite passive
physical or legal, such as, the erected building subject
(2) Future - Those which do not exist in actuality, but Object is generally a Subject matter is
whose existence can reasonably be expected with corporeal thing always an incorporeal
more or less probability, such as ungathered thing
fruits.

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Real Rights Personal Rights
Generally extinguished by Personal right survives
the loss or destruction of the subject matter
the thing over which it is
exercised
It is directed against the It is binding
whole world, giving rise to enforceable only
rd
real actions against 3 against a particular
persons person giving rise to
personal actions
against such debtor
(2) Real action v. Personal action (Rule 4 Sec 1-2)
Real action – actions affecting title to or
possession of real property or any interest therein
Personal action – all other actions
(3) Action in rem v. Action in personam v. Action
quasi in rem
Action in rem – action against a property,
judgment binding against the whole world
Action in personam – action against a specific
person, judgment binding against that particular
person
Action quasi in rem – action against a specific
property with respect to a person
REMEDIES
(1) Self-help [NCC 429-430]
(a) The owner may use such force as may be
reasonably necessary to repel or prevent an
actual or threatened unlawful physical
invasion or usurpation of his property.
(b) Every owner may enclose or fence his land or
tenements by any other means without
detriment to servitudes constituted thereon.
(2) Actions to recover ownership and possession of
real property
RIGHT TO RECOVER POSSESSION
Immovable Property
(1) Accion Reivindicatoria: Recovery of ownership of
real property
(a) Including but not limited to possession
(b) Prescription of Action: 30 years
(2) Accion Publiciana: Recovery of a better right to
possess (de jure)
(a) Judgment as to who has the better right of
possession
(b) Also, actions for ejectment not filed within 1
year must be filed as accion publiciana
(c) Prescription: 10 years
PROPERTY BAR OPERATIONS COMMISSION
Distinction between forcible entry and unlawful
detainer
(1) Forcible Entry: Lawful possessor deprived through
FISTS:
(a) FISTS (Force, Intimidation, Strategy, Threats,
Stealth)
or (b) Prescription: 1 year from dispossession (force,
intimidation, threats) or from knowledge of
dispossession (strategy, stealth)
(2) Unlawful Detainer: Possessor refused to vacate
upon demand by owner
(a) Legal possession (by permission/ tolerance)
becomes unlawful upon failure to vacate
(b) Prescription of action: 1 year from last notice
to vacate
Actions for recovery of possession of movable
property
Replevin
(1) for manual delivery of property
(2) Prescription of Right: 4 years (GF) or 8 years (BF)
Requisites for recovery of property [NCC 434]
(1) Property must be identified
Through a relocation survey and a title properly
identifying boundaries and location
(2) Plaintiff must rely on the strength of his title and
not on weakness of defendant’s title
(a) Right must be founded on positive title and
not on lack or insufficiency of defendant’s
(b) Ei incumbit probatio qui dicit, non qui negat:
He who asserts, not he who denied must
prove
LIMITATIONS ON OWNERSHIP
LIMITATIONS ON THE RIGHTS OF OWNERSHIP PROVIDED
BY LAW
General limitations – taxation, eminent domain,
police power
(1) Police Power: Property taken with no
compensation for general welfare
(a) When any property is condemned or seized by
competent authority in the interest of health,
safety or security, the owner thereof shall not
be entitled to compensation, unless he can
show that such condemnation or seizure is
unjustified. [Art. 436, Civil Code]
(b) Requisites: To justify the exercise of police
power, the following must appear:
(i) The interests of the public generally,
require such interference (as distinguished
from those of a particular class)
(ii) The means are reasonably necessary for
the accomplishment of a purpose, and not
unduly oppressive
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(2) Taxation: Forced contribution to the operation of

government
(3) Eminent Domain: Property taken for public
use/purpose, but subject to due process and
payment of just compensation
Requisites – To justify the exercise of the right of
eminent domain, the following requisites must all
be present:
(a) Private property as the object of the
expropriation;
(b) The property is taken by the State or by
competent authority;
(c) The purpose of the taking is for public use;
(d) The taking must be attended with due
process of law;
(e) There is payment of just compensation
Specific Limitations – imposed by law, sic utere tuo,
nuisance, stat of necessity, easements voluntarily
imposed by owner: servitudes, mortgages imposed
by contract
(1) Legal Servitudes: once requisites are satisfied, the
servient owner may ask the Court to declare the
existence of an easement
(a) Art. 644 & 678: Aqueduct
(b) Art. 679: Planting of trees
(c) Art. 670: Light and View
(d) Art. 649 & 652: Right of Way
(e) Art. 637: Passage of water from upper to
lower tenements
(f) Art. 676: Drainage of buildings
(g) Art. 684-687: Lateral and subjacent support
(3) Act in State of Necessity
The owner of a thing has no right to prohibit the
interference of another with the same, if the
interference is necessary to avert an imminent
danger and the threatened damage, compared to
the damage arising to the owner from the
interference, is much greater. The owner may
demand from the person benefited, indemnity for
the damage to him. (NCC 432)
(4) Nuisance - A nuisance is any act, omission,
establishment, business, condition of property, or
anything else which:
(a) Injures or endangers the health or safety of
others; or
(b) Annoys or offends the senses; or
(c) Shocks, defies or disregards decency or
morality; or
(d) Obstructs or interferes with the free passage
of any public highway or street, or any body of
water; or
(e) Hinders or impairs the use of property. (NCC
694)

(2) Must not injure the rights of a third person

(a) Sic Utere Tuo Ut Alienum Non Laedas
(b) The owner of a thing cannot make use thereof
in such manner as to injure the rights of a
third person. [NCC 431]

Summary of Actions:

Action Venue Summon Prayer Basis Prescription

Forcible Entry/Unlawful Real Action In personam Possession Prior physical 1 year
Detainer possession
Real Action In personam Possession Real right of 10 years
Accion Publiciana
Possession [NCC 555(4)]
Real Action In personam Possession Ownership GF: 10 years
BF: 30 years
[NCC 1137]

Accion Reividicatoria Unless---

Torrens Title --
- Unless
laches

Reconveyance Real Action In personam Title Ownership 10 years

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Action Venue Summon Prayer Basis Prescription

(NCC 1456)
Real Action Quasi-in rem Quieting of Ownership Imprescriptible
Quieting of Title
Title
Personal In personam Possession Ownership GF: 4 years
Replevin
Action BF: 8 years

Accession (3) Lease

(4) Antichresis
Accession – the right by virtue of which the owner of (a) He who receives the fruits has the obligation
a thing becomes the owner of everything which is to pay the expenses made by a third person in
produced thereby, or which is incorporated or their production, gathering, and preservation.
attached thereto, either naturally or artificially. [NCC [NCC 443]
440] (b) Necessary expenses of production, gathering
and preservation must be borne by the
Accessories – things joined to or included with the receiver of the fruits
principal thing for the latter’s embellishment, better
use, or completion. Fruits – all periodical additions to a principal thing
produced by forces inherent to the thing itself
CLASSIFICATION OF ACCESSION
(1) Accession Discreta (fruits) – the right pertaining Kinds of Fruits
to the owner of a thing over everything produced (1) Natural – spontaneous products of soil and the
thereby (by internal forces) young and other products of animals [NCC 442
(1)]
(2) Accession Continua – the right pertaining to the
owner of a thing over everything that is Under the rule partus sequitur ventrem, to the
incorporated or attached thereto either naturally owner of female animals would also belong the
or artificially; by external forces (by external young of such animals although this right is lost
forces) when the owner mixes his cattle with those of
(a) Over Immovables another.
(i) Industrial
(ii) Natural (2) Industrial – produced by lands of any kind
(1) Alluvion through cultivation or labor [NCC 442 (2)]
(2) Avulsion
(3) Change of Course of River Standing trees are not fruits since they are
(4) Formation of Islands considered immovables although they produce
fruits themselves. However, they may be
(b) Over Movables considered as industrial fruits when they are
(i) Conjunction and Adjunction cultivated or exploited to carry on an industry.
(ii) Commixtion and Confusion
(iii) Specification (3) Civil Fruits – easily prorated for under NCC 544
they are deemed to accrue daily and belong to
WITH RESPECT TO IMMOVABLES:
the possessor in good faith in that proportion
Accession Discreta - Right of ownership to the fruits
[NCC 441] Note:
(a) Natural and Industrial Fruits are real property
General Rule: To the owner of the principal belongs while still ungathered
the natural, industrial and civil fruit. (b) Only such as are manifest or born are
considered as natural or industrial fruits
Exception: [PULA]
(1) Possession in good faith Principles Applicable to Accession Discreta
(2) Usufruct (1) Time of Accrual depending on kind:

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UP COLLEGE OF LAW
(a) Annuals: from the time seedlings appear on
the ground
(b) Perennials: from the time fruits actually
appear on the plants
(c) Young of animals: from the time they are in
the womb, although unborn – beginning of
maximum ordinary period of gestation
Fowls: from the time of incubation
(2) A receiver of fruits has the obligation to pay the
expenses incurred by a third person in the
production, gathering and preservation. [NCC
443]
(a) Exception: Receiver does not have to pay if
fruits are recovered before gathering from a
possessor in bad faith, receiver does NOT have
to pay indemnity
(b) But if recovered after fruits have been
gathered, receiver must pay since the fruits
have been separated from immovable, hence
accession principles will not apply
Principles Applicable to Accession Continua
(1) Accession Continua Artificial or Industrial: Building,
planting or sowing on land owned by another
(over immovables)
General Rule: Whatever is built, planted or sown
on the land of another + improvements or repairs
made thereon, belong to the owner of the land
subject to the rules on BPS.
Presumptions:
(a) All works, sowing and planting are presumed
made by the owner
(b) All works are presumed made at the owner’s
expense, unless the contrary is proved
(c) The owner of the principal thing owns the
natural, industrial and civil fruits, except when
the following persons exist:
(i) Possessor in Good Faith
(ii) Usufructuary
(iii) Lessee
(iv) Antichretic creditor
Meaning of bad faith
(a) On the part of the landowner: Whenever the
building, planting or sowing was done with
the knowledge and without opposition on his
part
(b) On the part of owner of materials: Allows the
use of his materials without protest
(c) On the part of the builder, planter and sower:
Knows that he does not have title to the land,
nor the right to build thereon OR no
permission of the owner of the materials to
pay their value
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PROPERTY BAR OPERATIONS COMMISSION
Note:
(a) Bad faith leads to liability for damages and the
loss of the works or the improvement without
reimbursement
(b) Bad faith of one party neutralizes the bad faith
of the other
(2) Accession Continua Natural: Land deposits, etc.
(a) Alluvium: Soil is gradually deposited on banks
adjoining the river
Requisites
(i) Deposit of soil or sediment is gradual
and imperceptible
(ii) As a result of the action of the currents
of the waters of the river
(iii) Land where the accretion takes place is
adjacent to the banks of the rivers
(iv) Deemed to Exist: When the deposit of
the sediment has reached a level higher
than the highest level of the water
during the year
Effect
(i) Land automatically owned by the
riparian owner
(ii) BUT does not automatically become
registered property
Rationale
(i) To offset the owner’s loss from possible
erosion due to the current of the river
(ii) Compensate for the subjection of the
land to encumbrances and legal
easements
(b) Avulsion: A portion of land is segregated from
one estate by the forceful current of a river,
creek or torrent and transferred to another
Requisites
(i) Segregation and transfer of land is
sudden and abrupt
(ii) Caused by the current of the water
(iii) Portion of land transported must be
known and identifiable
OR
(iv) Can also apply to sudden transfer by
other forces of nature such as land
transferred from a mountain slope
because of an earthquake
Effect:
The ownership of the detached property is
retained by the owner subject to removal
within 2 years from the detachment
UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION

(d) Formation of Islands

(c) Change Of Course Of River They belong to the State if:
Requisites (i) Formed on the SEAS within the
(i) Change in the natural course of the jurisdiction of the Philippines
waters of the river (ii) Formed on LAKES
(ii) Such change causes the abandonment (iii) Formed on NAVIGABLE or FLOATABLE
of the river beds RIVERS
(1) Capable of affording a channel or
Natural Bed: ground covered by its waters passage for ships and vessels
during ordinary floods. (2) Must be sufficient not only to float
bancas and light boats, but also
Such change is sudden or abrupt bigger watercraft
(3) Deep enough to allow unobstructed
Results: movements of ships and vessels
(i) Owners whose lands are occupied by the (4) TEST: can be used as a highway of
new course automatically become commerce, trade and travel
owners of the old bed, in proportion to
the area they lost They belong to the Owners of the nearest
(ii) Owners of the lands adjoining the old margins or banks if
bed are given the right to acquire the (i) Formed through successive accumulation
same by paying the value of the land of alluvial deposits
(ii) On NON-NAVIGABLE and NON-
Not exceeding the value of the land FLOATABLE RIVERS
invaded by the new bed (the old property (iii) If island is in the middle: divided
of the owner) longitudinally in half.

(iii) The new bed opened by the river on a

private estate shall become of public
dominion

Landowner

Good Faith Bad Faith

Rights of Landowner [NCC 448]: Absolute Duties of Landowner [NCC

(a) Buy (only after payment of indemnity 447]:
under NCC 546 and 548 to BPS) (a) Pay damages
(b) Buy or pay for value
546 and 548 – Necessary, Useful and (c) Allow removal
Good Faith

Ornamental
Builder,
Planter, (b) Sell to BP (unless the value of the land is
Sower considerably more than that of the
[BPS] building or trees)

Remedy: Rent to BP if L does not want to

buy

(c) Rent to S

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Landowner

Good Faith Bad Faith

Absolute Right of Landowner [NCC 449-452]

(a) Get
Bad Faith

(b) Demolish the work of B at the SAME AS

expense of B GF: GF
(c) Removal of PS at the expense of PS
(d) Sell to BP
(e) Rent to the S
(f) Damages

Landowner

Good Faith Bad Faith

Rights of Landowner: [NCC 447] Absolute Duties of Landowner: [NCC

Good Buy unless M can remove without 447]
Material Faith damage (1) Pay damages
Man (2) Buy or pay for value
(3) Allow removal

Bad Absolute Right of Landowner [NCC 447] SAME AS

Faith Get GF: GF

Case 1: Landowner is BPS using material of another

Landowner and BPS Owner of Material
Good faith Good faith
Right to acquire the improvements after paying the (1) Limited right of removal if there would be no injury to
value of materials. work constructed, or without plantings or
constructions being destroyed. [Article 447]
(2) Right to receive payment for value of materials
Bad faith Good faith
Acquire BPS after paying its value and paying indemnity (a) Right to receive payment for value of materials
for damages [Article 447] but subject to OM’s right to (b) Absolute right of removal of the work constructed in
remove any event
(c) Right to be indemnified for damages
Good faith Bad faith
(1) Right to acquire the improvements without paying Lose materials without right to indemnity
indemnity
(2) Right to acquire indemnity for damages if there are
hidden defects known to OM
Bad faith Bad faith
Same as though acted in good faith under Article 453 Same as though acted in good faith under Article 453

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Case 2: BPS builds, plants, or sows on another’s ;and using his own materials
Landowner BPS and Owner of Material
Good faith Good faith
Landowner has option to: BPS has right to retain (right of retention) the land until
(a) Acquire the improvement after paying indemnity the payment of indemnity
which may be the original cost of improvement OR
increase in value of the whole brought about by the NOTE: During this period BPS is not required to pay
improvement rent.
(b) Sell the land to the BP or collect rent from sower
UNLESS value of land is more than the thing built,
planted or sown or BP shall pay rent fixed by parties
or by the court in case of disagreement.

NOTE: Landowner can be forced to choose under pain

of direct contempt or court can choose for him.
Good faith Bad faith
Landowner has right to collect damages in any case and (1) Pay damages to landowner
option to: (2) BPS lose materials without right to indemnity
(a) Acquire improvements without paying indemnity if (3) No right to refuse to buy the land
the improvements are still standing on the land (4) Recover necessary expenses for preservation of land
(b) Sell the land to BP or collect rent from the sower
unless value of the improvements in which case
there will be a forced lease
(c) Order demolition of improvements or restoration of
land to its former condition at the expense of the
BPS

Landowner must pay for necessary expenses for

preservation
Bad faith Good faith
(1) Landowner must indemnify BPS for the BPS has right to :
improvements and pay damages as if he himself did (1) Be indemnified for damages
the BPS (2) Remove all improvements in any event
(2) Landowner has no option to sell the land and cannot
compel BPS to buy the land unless BPS agrees to
Bad faith Bad faith
Same as though acted in bad faith under Article 453 Same as though acted in bad faith under Article 453

Case 3: BPS builds, plants or sows on another’s land with materials owned by third persons
Landowner
Good faith
(a) Right to acquire improvements
and pay indemnity to BPS;
subsidiarily liable to OM
(b) Has option to:
(1) Sell land to BP except if the
value of the land is
considerably more
(2) Rent to sower
Good faith
(1) Right to acquire improvements
and pay indemnity to BPS
(2) Has option to:
(1) Sell land to BP except if the
value of the land is
BPS
Good faith
(1) Right of retention until necessary
and useful expenses are paid
(2)Pay value of materials to OM
Good faith
(1) Right of retention until necessary
and useful expenses are paid.
(2)Keep BPS without indemnity to
OM and collect damages from
him
Owner of Material
Good faith
(1) Collect value of material
primarily from BPS and
subsidiarily liable for landowner
if BPS is insolvent
(2) Limited right of removal
Bad faith
(1) Lose the material without right
to indemnity
(2) Must pay for damages to BPS

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Landowner
considerably more
(2) Rent to sower
(3) Without subsidiary liability for
cost of materials
Good faith
(1) Landowner has right to collect
damages in any case and option
to:
(1) Acquire improvements w/o
paying for indemnity; or
(2) Demolition or restoration; or
(3) Sell to BP, or to rent to sower
(2) Pay necessary expenses to BPS
Bad faith
Same as when all acted in good
faith under Article 453
Bad faith
(1) Acquire improvement after
paying indemnity and damages
to BPS unless latter decides to
remove
(2) Subsidiarily liable to OM for
value of materials
Bad faith
(1) Acquire improvements after
indemnity; subsidiarily liable to
OM for value of materials
(2) Has option to:
(a) Sell the land to BP except if
the value of the land is
considerably more
(b) Rent to sower
Good faith
(a) Acquire improvement after
paying indemnity; subsidiarily
liable to OM
(b) Landowner has option to:
(a) Sell land to BP except if value
of land is considerably more
(b) Rent to sower
Bad faith
Acquire improvements and pay
indemnity and damages to BPS
unless latter decides to remove
materials
WITH RESPECT TO MOVABLE PROPERTY
Three Types:
(1) Conjunction or Adjunction - process where 2
movables belonging to different owners are
attached to each other to form a single object
PROPERTY
BPS
Bad faith
Recover necessary expenses for
preservation of land from landowner
unless landowner sells land
Bad faith
Same as when all acted in good
faith under Article 453
Good faith
(1) May remove improvements
(2)Be indemnified for damages in
any event
Bad faith
(a) Right of retention until necessary
expenses are paid
(b)Pay value of materials to OM and
pay him damages
Bad faith
(1) Right of retention until necessary
expenses are paid
(2)Pay value of materials to OM
(3) Pay damages to OM
Good faith
(1) Receive indemnity for damages
(2)Absolute right of removal of
improvements in any event
(2) Mixture – the union of material where the
components lose their identity
Kinds:
(a) Commixtion – mixture of solids
(b) Confusion – mixture of liquids and gases
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BAR OPERATIONS COMMISSION
Owner of Material
Bad faith
(1) Recover value from BPS (as if
both are in good faith)
(2) If BPS acquires improvement,
remove materials if feasible w/o
injury
(3) No action against landowner but
liable to landowner for damages
Bad faith
Same as when all acted in good
faith under Article 453
Good faith
(1) Remove materials if possible
w/o injury
(2) Collect value of materials from
BPS; subsidiarily from landowner
Good faith
(a) Collect value of materials
primarily from BPS and
subsidiarily from landowner
(b) Collect damages from BPS
(c) If BPS acquires improvements,
remove materials in any event
Good faith
- Collect value of materials
primarily from BPS and
subsidiarily from landowner
- Collect damages from BPS
- If BPS acquires improvements,
absolute right of removal in any
event
Bad faith
(1) No right to indemnity
(2) Loses right to material
UP COLLEGE OF LAW
(3) Specification – transforming/giving of a new form
to another’s material through labor
Adjunction
Requisites
(1) There are 2 movables belonging to 2 different
owners
(2) They are united in such a way that they form a
single object
(3) They are so inseparable that their separation
would impair their nature or result in substantial
injury to either component
Kinds of Adjunction
(1) Inclusion or engraftment – e.g. a diamond is set
on a gold ring
(2) Soldadura or soldering – e.g. when lead is united
or fused to an object made of lead
(a) It is ferruminacion if both the accessory and
principal objects are of the same metal; and
(b) Plumbatura, if they are of different metals
(3) Escritura or writing – e.g. when a person writes on
paper belonging to another;
(4) Pintura or painting – e.g. when a person paints on
canvas belonging to another;
(5) Tejido or weaving – e.g. when threads belonging
to different owners are used in making textile
Ownership of new object formed by adjunction
(1) If union was made in good faith, owner of
principal thing acquires the accessory, with
obligation to indemnify the owner of the
accessory for its value in its uncontroverted state
(2) If union was in bad faith, NCC 470 applies:
(a) Owner of accessory in bad faith loses the thing
incorporated and has the obligation to
indemnify the owner of the principal thing for
damages
(b) If owner of principal is in bad faith, owner of
the accessory has a right to choose between
the owner of principal paying him its value or
that the thing belonging to him be separated,
even though for this purpose it be necessary
to destroy the principal thing; and in both
cases, there shall be indemnity for damages
Test to determine the principal thing
In the order of application, the principal is that:
(1) To which the other has been united as an
ornament or for its use or perfection (“Rule of
importance and purpose”)
(2) Of greater value
(3) Of greater volume
(4) That of greater merits, taking into consideration
all the pertinent legal provisions, as well as the
comparative merits, utility and volume of their
respective things
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PROPERTY BAR OPERATIONS COMMISSION
When separation allowed
(1) Separation without injury
(2) Accessory much more precious
(a) Owner of accessory may demand separation
even though the principal thing may suffer
(b) Owner who caused the union shall bear the
expenses for separation even if he acted in
good faith
(3) Owner of principal in bad faith
Mixture
Kinds of Mixtures:
(1) Commixtion: mixture of solid things
(2) Confusion: mixture of liquid things
Rules:
(1) Mixture by will of the owners
(a) First governed by their stipulations
(b) In the absence of stipulation, each owner
acquires a right or interest in the mixture in
proportion to the value of his material
(2) Mixture caused by an owner in good faith or by
chance
(a) Share of each owner shall be proportional to
the value of the part which belonged to him
(b) If things mixed are exactly the same kind and
quality, divide mixture equally/proportionally
(c) If things mixed are of different kind or quality,
a co-ownership arises
(d) If they can be separated without injury,
owners may demand separation
(e) Expenses borne by owners pro rata
(f) NOTE: Good faith does not necessarily
exclude negligence, which gives rise to
damages
(3) Mixture caused by an owner in bad faith
(a) Actor forfeits the thing belonging to him
(b) Actor also becomes liable for damages
(4) Mixture made with knowledge and without
objection of the other owner
Rights to be determined as though both acted in
good faith
Specification
Definition:
Takes place when the work of a person is done on the
material of another, such material, in consequence of
the work itself, undergoes a transformation
Rules:
(1) Person in good faith
General rule:
UP COLLEGE OF LAW
Worker becomes the owner but must indemnify
owner (who was also in good faith) for the value
of the material
Exception:
If material is more valuable than the new thing,
owner of material may choose:
(a) To take the new thing but must pay for the
work or labor
(b) To demand indemnity for the material
If the owner was in bad faith, maker may
appropriate the new thing without paying the
owner OR require the owner to pay him the value
of the thing or his work, with right to indemnity
(2) Person in bad faith
General rule:
(a) Owner may either appropriate the new thing
to himself without paying the maker OR
(b) Owner may demand value of material plus
damages
Exception:
The first option is not available in case the value
of the work, for artistic or scrientific reasons, is
considerably more than that of the material
(3) Person made use of material with consent and
without objection of owner
Rights shall be determined as though both acted
in good faith
Quieting of Title or Interest in
and Removal or Prevention of
Cloud over Title to or Interest
in Real Property
IN GENERAL
(1) Applicable to real property
(2) Basis: Equity comes to the aid of the plaintiff who
would suffer if the instrument (which appear to
be valid but is in reality void, ineffective, voidable
or unenforceable) was to be enforced.
PURPOSE
(1) To declare:
(a) The invalidity of a claim on a title
(b) The invalidity of an interest in property
(2) To free the plaintiff and all those claiming under
him from any hostile claim on the property.
PROPERTY BAR OPERATIONS COMMISSION
NATURE: QUASI IN REM
(a) A suit against a particular person or persons in
respect to the res and the judgment will apply
only to the property in dispute.
(b) The action to quiet title is characterized as
proceeding quasi in rem. Technically, it are
neither in rem nor in personam. In an action
quasi in rem, an individual is named as defendant.
However, unlike suits in rem, a quasi in rem
judgment is conclusive only between the parties.
[Spouses Portic v. Cristobal]
JUSTIFICATIONS FOR QUIETING OF TITLE
(1) To prevent future or further litigation on the
ownership of the property
(2) To protect the true title and possession
(3) To protect the real interest of both parties
(4) To determine and make known the precise state
of the title for the guidance of all
THE ACTION TO QUIET TITLE DOES NOT APPLY:
(1) To questions involving interpretation of
documents
(2) To mere written or oral assertions of claims
(a) Unless made in a legal proceeding
(b) Or asserting that an instrument or entry in
plaintiff’s favor is not what it purports to be
(3) To boundary disputes
(4) To deeds by strangers to the title unless
purporting to convey the property of the plaintiff
(5) To instruments invalid on their face
(6) Where the validity of the instrument involves a
pure question of law
REQUIREMENT
REQUISITES OF AN ACTION TO QUIET TITLE
(1) There is a CLOUD on title to real property or any
interest to real property.
(2) The plaintiff must have legal or equitable title to,
or interest in the real property.
(3) Plaintiff must return the benefits received from
the defendant.
THERE IS A CLOUD ON TITLE TO REAL PROPERTY OR ANY
INTEREST TO REAL PROPERTY
“Cloud on title” means a semblance of title, either
legal or equitable, or a claim or a right in real
property, appearing in some legal form but which is,
in fact, invalid or which would be inequitable to
enforce.
A cloud exists if:
(1) There is a claim emerging by reason of:
(a) Any instrument e.g. a contract, or any deed of
conveyance, mortgage, assignment, waiver,
etc. covering the property concerned
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(b) Any record, claim, encumbrance e.g. an
attachment, lien, inscription, adverse claim, lis
pendens, on a title
(c) Any proceeding e.g. an extrajudicial partition
of property
(2) The claim should appear valid or effective and
extraneous evidence is needed to prove their
validity or invalidity.
(a) Test: Would the owner of the property in an
action for ejectment brought by the adverse
party be required to offer evidence to defeat a
recovery?
(b) As a general rule, a cloud is not created by
mere verbal or parole assertion of ownership
or an interest in property.
(3) Such instrument, etc. is, in truth and in fact,
invalid, ineffective, voidable, or unenforceable, or
has been extinguished or terminated, or has been
barred by extinctive prescription.
(4) Such instrument, etc. may be prejudicial to the
true owner or possessor.
THE PLAINTIFF MUST HAVE LEGAL OR EQUITABLE TITLE
TO, OR INTEREST IN THE REAL PROPERTY [NCC 477]
(1) Legal title: the party is the registered owner of the
property.
(2) Equitable title: the person has the beneficial
ownership of the property.
PLAINTIFF MUST RETURN THE BENEFITS RECEIVED FROM
THE DEFENDANT [NCC 479]
QUIETING OF TITLE V. REMOVAL OF CLOUD
REQUISITES OF AN ACTION TO PREVENT A CLOUD
(1) Plaintiff has a title to a real property or interest
therein
(2) Defendant is bent on creating a cloud on the title
or interest therein. The danger must not be
merely speculative or imaginary but imminent.
(3) Unless the defendant is restrained or stopped,
the title or interest of the plaintiff will be
prejudiced or adversely affected.
PRESCRIPTION/NON-PRESCRIPTION OF
ACTION
PRESCRIPTION OF ACTION
(1) When plaintiff is in possession of the property –
the action to quiet title does not prescribe.
The rationale for this rule has been aptly stated
thus:
“The owner of real property who is in possession
thereof may wait until his possession is invaded
or his title is attacked before taking steps to
vindicate his right. A person claiming title to real
property, but not in possession thereof, must act
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PROPERTY BAR OPERATIONS COMMISSION
affirmatively and within the time provided by the
statute. Possession is a continuing right as is the
right to defend such possession. So it has been
determined that an owner of real property in
possession has a continuing right to invoke a
court of equity to remove a cloud that is a
continuing menace to his title. Such a menace is
compared to a continuing nuisance or trespass
which is treated as successive nuisances or
trespasses, not barred by statute until continued
without interruption for a length of time sufficient
to affect a change of title as a matter of law."
[Pingol v. CA]
(2) When the plaintiff is not in possession of the
property, the action to quiet title may prescribe.
(a) 10 yrs. – ordinary prescription
(b) 30 yrs. – extraordinary prescription
Co-ownership
DEFINITION:
The form of ownership when the ownership of an
undivided thing or right belongs to different persons.
[NCC 484]
REQUISITES:
(1) Plurality of owners
(2) Object must be an undivided thing or right
(3) Each co-owner’s right must be limited only to his
ideal or abstract share of the physical whole
WHAT GOVERNS CO-OWNERSHIP:
(1) Contracts
(2) Special provisions
(3) Civil Code
CHARACTERISTICS OF CO-OWNERSHIP
(1) There are 2 or more co-owners
(2) There is a single object which is not materially or
physically divided and over which and his ideal
share of the whole
(3) There is no mutual representation by the co-
owners
(4) It exists for the common enjoyment of the co-
owners
(5) It has no distinct legal personality
(6) It is governed first of all by the contract of the
parties; otherwise, by special legal provisions,
and in default of such provisions, by the
provisions of Title III on Co-ownership
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THERE ARE IDEAL SHARES DEFINED BUT NOT PHYSICALLY
IDENTIFIED [NCC 485]
(1) The share of the co-owners, in the benefits as
well as in the charges, shall be proportional to
their respective interests.
(2) Any stipulation in a contract to the contrary shall
be void.
(3) The portions belonging to the co-owners in the
co-ownership shall be presumed equal, unless
the contrary is proved
Each co-owner has absolute control over his ideal
share
Every co-owner has absolute ownership of his
undivided interest in the co-owned property and is
free to alienate, assign or mortgage his interest
except as to purely personal rights. While a co-
owner has the right to freely sell and dispose of his
undivided interest, nevertheless, as a co-owner, he
cannot alienate the shares of his other co-owners –
nemo dat qui non habet. [Acabal v. Acabal]
Mutual respect among co-owners with regard to use,
enjoyment, and preservation of the things as a whole
(1) The property or thing held pro-indiviso is
impressed with a fiduciary character: each co-
owner becomes a trustee for the benefit of his co-
owners and he may not do any act prejudicial to
the interest of his co-owners.
(2) Until a judicial division is made, the respective
part of each holder cannot be determined. The
effects of this would be:
(a) Each co-owner exercises, together with the
others, joint ownership over the pro indiviso
property, in addition to his use and enjoyment
of the same
(b) Each co-owner may enjoy the whole property
and use it.
Only limitation: a co-owner cannot use or enjoy
the property in a manner that shall injure the
interest of his other co-owners. [Pardell v.
Bartolome]
SOURCES OF CO-OWNERSHIP
Law, contract, succession, testamentary disposition
or donation inter vivos, fortuitous event or chance,
and by occupancy
LAW
(1) Cohabitation: co-ownership between common
law spouses
The Family Code, in the following provisions,
made the rules on co-ownership apply
(a) Article 147: between a man and a woman
capacitated to marry each other
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PROPERTY BAR OPERATIONS COMMISSION
(b) Article 148: between a man and a woman not
capacitated to marry each other
(c) Article 90: if matter is not provided in the FC
Chapter on ACP, then rules on co-ownership
will apply
(2) Purchase creating implied trust: co-ownership
between persons who agree to purchase property
If two or more persons agree to purchase
property and by common consent the legal title is
taken in the name of one of them for the benefit
of all, a trust is created by force of law in favor of
the others in proportion to the interest of each
[NCC 1452]
(3) Easement of Party Wall: co-ownership of part-
owners of a party wall (NCC 658)
(4) Condominium Law: co-ownership of the common
areas by holders of units
Sec. 6, RA 4726. The Condominium Act. Unless
otherwise expressly provided in the enabling or
master deed or the declaration of restrictions, the
incidents of a condominium grant are as follows:
(a) Unless otherwise, provided, the common
areas are held in common by the holders of
units, in equal shares, one for each unit.
CONTRACTS
By Agreement of Two or More Persons
Article 494, Civil Code. No co-owner shall be obliged
to remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned
in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended
by a new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or co-
heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership.
(1) Two or more persons may agree to create a co-
ownership
(2) Note: there is a 10-year term limit for ownership
by agreement; BUT: Term may be extended by a
new agreement
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By the creation of a Universal Partnership
Of all present property
NCC 1778. A partnership of all present property is
that in which the partners contribute all the property
which actually belongs to them to a common fund,
with the intention of dividing the same among
themselves, as well as all the profits which they may
acquire therewith.
NCC 1779. In a universal partnership of all present
property, the property which belonged to each of the
partners at the time of the constitution of the
partnership, becomes the common property of all
the partners, as well as all the profits which they may
acquire therewith.
A stipulation for the common enjoyment of any other
profits may also be made; but the property which the
partners may acquire subsequently by inheritance,
legacy, or donation cannot be included in such
stipulation, except the fruits thereof.
SUCCESSION
Intestate succession: co-ownership between the heirs
before partition of the estate
NCC 1078. Where there are two or more heirs, the
whole estate of the decedent is, before its partition,
owned in common by such heirs, subject to the
payment of debts of the deceased.
 For as long as the estate is left undivided the
heirs will be considered co-owners of the
inheritance.
 If one of the heirs dies, his heirs will in turn be co-
owners of the surviving original heirs.
TESTAMENTARY DISPOSITION OR DONATION INTER VIVOS
(1) When a donation is made to several persons
jointly, it is understood to be in equal shares, and
there shall be no right of accretion among them,
unless the donor has otherwise provided [NCC
753]
(2) A donor or testator may prohibit partition for a
period which shall not exceed 20 years.
BY FORTUITOUS EVENT OR BY CHANCE
(1) Co-ownership between owners of 2 things that
are mixed by chance or by will of the owners:
Each owner shall acquire a right proportional to
the part belonging to him, bearing in mind the
value of the things mixed or confused [NCC 472]
(2) Hidden Treasure - co-ownership between finder
and owner of the land [NCC 438]
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PROPERTY BAR OPERATIONS COMMISSION
when the discovery is made on the property of
another, or of the State or any of its subdivisions,
and by chance, one-half shall be allowed to the
finder.
BY OCCUPANCY
Harvesting and Fishing: co-ownership by two or more
persons who have seized a res nullius thing
BY ASSOCIATIONS AND SOCIETIES WITH SECRET ARTICLES
[NCC 1775]
Articles are kept secret among the members and any
one of the members may contract in his own name
with third persons:
(1) governed by the provisions relating to co-
ownership
RIGHT OF CO-OWNERS
RIGHT TO THE SHARE IN THE BENEFITS AS WELL AS
CHARGES [NCC 485]
(1) Proportional to their interests
(2) Stipulation to the contrary is void
(3) Portions belonging to the co-owners is presumed
equal
RIGHT TO USE THE THING OWNED IN COMMON [NCC 486]
Limitation:
That he use the thing in accordance with the purpose
for which it is intended
That he uses it in such a way as to not injure the
interest of the co-ownership or prevent the other co-
owners from using it
RIGHT TO BRING AN ACTION IN EJECTMENT [NCC 487]
RIGHT TO COMPEL OTHER CO-OWNERS TO CONTRIBUTE TO
THE EXPENSES OF PRESERVATION AND TO THE TAXES
[NCC 488]
(1) Any one of the other co-owners may exempt
himself by renouncing so much of his undivided
interest as may be equivalent to his share of the
expenses and taxes.
(2) No waiver if it is prejudicial to the co-ownership
RIGHT TO REPAIR [NCC 489]
(1) Repairs for preservation may be made at the will
of one of the co-owners but he must first notify
his co-owners
(2) Expenses to improve or embellish, decided upon
by a majority
RIGHT TO OPPOSE ALTERATIONS [NCC 491]
(1) Consent of all the others is needed to make
alterations, even if the alteration benefits all.
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(2) If the withholding of the consent is clearly
prejudicial to the common interest, the courts
may afford relief
(3) Reason for the rule: alteration is an act of
ownership, not of mere administration.
RIGHT TO FULL OWNERSHIP OF HIS PART AND OF THE
FRUITS AND BENEFITS PERTAINING THERETO [NCC 493]
(1) Therefore he may alienate, assign or mortgage it,
and even substitute another person in its
enjoyment
(2) Except: when personal rights are involved.
(3) The effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the
portion which may be allotted to him in the
division upon the termination of the co-
ownership
RIGHT TO PARTITION [NCC 494]
(1) Each may demand at any time the partition of the
thing, insofar as his share is concerned
(2) An agreement to keep the thing undivided for a
certain period NOT exceeding 10 years is valid.
(3) Term may be extended by a new agreement
(4) Donor or testator may prohibit partition, period
NOT to exceed 20 years
(5) No partition if prohibited by law
(6) Right does not prescribe
RIGHT TO REDEMPTION [NCC 1619]
(1) May exercise this in case the shares of other co-
owners are sold to a third person
(2) If 2 or more co-owners wish to exercise this right
= in proportion to their share in the thing
Note: Rules on Co-Ownership Not Applicable to CPG
or ACP
(1) These are governed by the Family Code
(2) Even void marriages and cohabitation of
incapacitated persons are governed by FC 50,
147, and 148
RULES:
On Renunciation
(1) Other co-owners may choose not to contribute to
the expenses by renouncing so much of his
undivided interest as may be equivalent to his
share of the necessary expenses and taxes
(2) Must be express; thus, failure to pay is not a
renunciation
(3) Requires the consent of other co-owners because it
is a case of dacion en pago (cessation of rights)
involving expenses and taxes already paid (J.B.L.
Reyes)
(4) Cannot renounce his share if it will be prejudicial
to another co-owner
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Repairs for preservation
(1) First, notify other co-owners, as far as practicable
(2) Co-owner may advance expenses for preservation
even without prior consent; he is entitled to
reimbursement.
Embellishment or improvements
(1) Notify co-owners of improvements and
embellishments to be made
If no notification, co-owner who advanced the
expenses has the right to reimbursement if he
proves the necessity of such repairs and the
reasonableness of the expense
Exception: If proven that had there been a
notification, they could have hired another who
would charge less or that they know of a store
that sells the needed material at a cheaper price
Only entitled to reimbursement for the amount
that should have been spent had he notified the
others, and difference shall be borne by him
alone
(2) Decision by majority must be followed
TERMINATION/EXTINGUISHMENT
TOTAL DESTRUCTION OF THING OR LOSS OF THE
PROPERTY CO-OWNED
Is there still co-ownership if a building is destroyed?—
Yes, over the land and the debris.
MERGER OF ALL INTERESTS IN ONE PERSON
ACQUISITIVE PRESCRIPTION
By whom
(1) A third person [NCC 1106]
(2) A co-owner against the other co-owners
Requisites
(1) Unequivocal acts of repudiation of the rights of
the other co-owners (oust the other co-owners)
(a) Must be shown by clear and convincing
evidence
(b) Must be within the knowledge of the other co-
owners
(c) Must not be a mere refusal to recognize the
others as co-owners
(2) Open and adverse possession - Not mere silent
possession
Note: there is a presumption that possession of a
co-owner is NOT adverse
Prescription only arises and produces all effects
when the acts are clearly meant to oust the rights
of the other co-owners
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PARTITION OR DIVISION
Effect:
(1) Confers exclusive ownership of the property
adjudicated to him
(2) Co-heirs shall be reciprocally bound to warrant
the title to and the quality of each property
adjudicated
(3) Reciprocal obligation of warranty shall be
proportionate to the respective hereditary shares
of co-heirs
(4) An action to enforce warranty must be brought
within 10 years from the date the right accrues
(5) The co-heirs shall not be liable for the
subsequent insolvency of the debtor of the estate
Unless partition is effected, each heir cannot claim
sole ownership over a definite portion of the land.
Heirs become the undivided owner of the whole
estate Until said partition, he cannot alienate a
specific part of the estate. Until then, they can only
sell their successional rights. [Carvaria v. CA]
Rights against individual co-owners in case of
partition [NCC 497]
(1) The creditors are allowed to take part in the
partition.
(2) Reason for the rule: They own part of the interest
of the co-owners who made the assignment or
alienation.
Partition in case co-owners cannot agree (NCC 498)
Procedure for Partition
(1) Governing rule: Rule 69
(2) How: By agreement of parties or by judicial
decree
(3) Form: Oral or Written (Statute of Frauds does not
operate here because it is not a conveyance of
property but a mere segregation or designation of
which parts belong to whom)
(4) Rules of Court do not preclude agreements or
settlements.
Action for Partition:
(1) W/N the plaintiff is indeed a co-owner of the
property
(2) HOW will the property be divided between the
plaintiff and defendant.
Intervention of creditors and assignees:
(1) The law does not expressly require previous
notice to the creditors and assignees before a
partition, but the right of creditors and assignees
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to take part in the division presupposes the duty
to notify.
(2) If notice is not given, the partition will not be
binding on them.
(3) Once notice has been given, it is the duty of
creditors and assignees to intervene and make
known their stand.
(a) If they fail, they cannot question the division
made, except in cases of fraud.
(b) If they formulate a formal question, they can
contest such partition
Possession
DEFINITION [NCC 523]
The holding of a thing or the enjoyment of a right
CONCEPT OF POSSESSION
(1) To possess, in a grammatical sense, means to
have, to physically and actually occupy a thing,
with or without right. (Sanchez Roman)
(2) It is the holding of a thing or a right, whether by
material occupation or by the fact that the thing
or the right is subjected to the action of our will.
(Manresa)
(3) It is an independent right apart from ownership.
Right of Possession Right to possess
(jus possessionis) (jus possidendi)
Independent right Incident to
ownership
(4) Possession includes the idea of occupation. It
cannot exist without it. (Exceptions: NCC 537)
CHARACTERISTICS
ESSENTIAL REQUISITES OF POSSESSION
(1) Corpus possessionis: Holding (actual or
constructive) of a thing or exercise of a right, if
right is involved.
(a) General Rule: Possession and cultivation of a
portion of a tract under claim of ownership of
all is a constructive possession of all, if the
remainder is not in adverse possession of
another. [Ramos v. Director of Lands]
(b) Doctrine of constructive possession applies
when the possession is under title calling for
the whole. It does not apply where possession
is without title.
(2) Animus possidendi: Intention to possess
(a) There is no possession if the holder does not
want to exercise the rights of a possessor.
(b) Implied from the acts of the possessor.
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(c) May be contradicted and rebutted by evidence
– to prove that the person who is in
possession does not in fact exercise power or
control and does not intend to do so.
DEGREES OF POSSESSION
(1) Mere holding or possession without title and in
violation of the right of the owner
(a) e.g. possession of a thief or usurper of land
(b) Here, both the possessor and the public know
that the possession is wrongful.
(2) Possession with juridical title but not that of
ownership
(a) e.g. possession of a tenant, depository agent,
bailee trustee, lessee, antichretic creditor.
(b) This possession is peaceably acquired.
(c) This degree of possession will never ripen into
full ownership as long as there is no
repudiation of concept under which property is
held.
(3) Possession with just title or title sufficient to
transfer ownership, but not from the true owner
(a) e.g. possession of a vendee from a vendor who
pretends to be the owner.
(b) This degree of possession ripens into full
ownership by lapse of time.
(4) Possession with a just title from the true owner
This is possession that springs from ownership.
CASES OF POSSESSION
Possession for Oneself, or Possession Exercised in
One’s Own Name and Possession in the Name of
Another [NCC 524]
(1) In one’s own name – the fact of possession and
the right to such possession is found in the same
person.
(2) In the name of another – the one in actual
possession is without any right of his own, but is
merely an instrument of another in the exercise of
the latter’s possession.
Kinds of possession in the name of another
(a) Necessary – arises by operation of law
e.g. representatives who exercise possession
in behalf of a conceived child, juridical
persons, persons not sui juris and the conjugal
partnership
(b) Voluntary – effected through the mutual
consent of the parties
(i) e.g. agents or administrators appointed
by the owner or possessor.
(ii) Third person may also voluntary exercise
possession in the name of another, but it
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does not become effective unless ratified
by the person in whose name it is
exercised.
Possession in the Concept of an Owner, and
Possession in the Concept of a Holder with the
Ownership Belonging to Another [NCC 525]
(1) Possession in Concept of Holder:
(a) One who possesses as a mere holder, not in
the concept of owner, acknowledges in
another a superior right which he believes to
be ownership, whether his belief be right or
wrong.
(b) e.g. tenant, usufructuary, borrower in
commodatum.
(2) Possession in Concept of Owner:
(a) May be exercised by the owner himself or
one who claims to be so.
(b) When a person claims to be the owner of a
thing, whether he believes so or not, acting as
an owner, and performing acts of ownership,
and he is or may be considered as the owner
by those who witness his exercise of
proprietary rights, then he is in the possession
of an owner. This is the kind of possession
that ripens into ownership under Article 540,
when such possession is public, peaceful and
uninterrupted [see Art. 1118].
Effects of Possession in Concept of an Owner
(1) Converted into ownership by the lapse of time
necessary for prescription
(2) Possessor can bring all actions necessary to
protect his possession, availing himself of any
action which an owner can bring, except
accion reivindicatoria which is substituted by
accion publiciana.
(3) He can ask for the inscription of possession in
the registry of property
(4) Upon recovering possession from one who
has unlawfully deprived him of it, he can
demand fruits and damages
(5) He can do on the thing possessed everything
that the law authorizes an owner to do; he
can exercise the right of pre-emption and is
entitled to the indemnity in case of
appropriation.
Possession in Good Faith and Possession in Bad Faith
[NCC 526]
(1) Possessor in good faith – one who is unaware that
there exists a flaw which invalidates his
acquisition
(a) Good faith – consists in the possessor’s belief
that the person from whom he received a
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thing was the owner of the same and could
convey his title.
(b) It implies freedom from knowledge and
circumstances which ought to put a person on
inquiry.
(c) The belief of a possessor that he is the owner
of the thing must be based upon the title or
mode of acquisition, such as a sale, a
donation, inheritance or other means of
transmitting ownership; for without this, there
can be no real, well-grounded belief of one’s
ownership.
(d) Error in the application of the law, in the legal
solutions that arise from such application, in
the appreciation of legal consequence of
certain acts, and in the interpretation of
doubtful provisions or doctrines, may properly
serve as basis for good faith.
(e) A misconception of the law, no matter how
honest cannot have the effect of making one a
possessor in good faith when he does not
hold a title valid in form or a deed sufficient in
terms to transfer property.
(2) Possessor in bad faith – one who knows his title is
defective
(a) Only personal knowledge of the flaw in the
title or mode of acquisition can make him a
possessor in bad faith for bad faith is not
transmissible from one person to another.
(b) Mistake upon a doubtful or difficult question
of law as a basis of good faith
(c) Mistake or ignorance of the law, by itself,
cannot become the basis of good faith. What
makes the error or ignorance a basis of good
faith is the presence of an apparent “doubt”
or “difficulty” in the law. In other words, the
law is complex, ambiguous, or vague such
that it is open to two or more interpretations.
(d) When the ignorance of the law is gross and
inexcusable, as when a person of average
intelligence would know the law, such
ignorance cannot be the basis of good faith.
Otherwise, the intendment of Article 3 which
states that, “Ignorance of the law excuses no
one from compliance therewith,” will be
defeated.
What Things May be Possessed [NCC 530]
Only things and rights which are susceptible of being
appropriated may be the object of possession.
What May Not Be Possessed by Private Persons
(1) Res Communes
(2) Property of Public Dominion
(3) Right under discontinuous and/or non-apparent
easement
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ACQUISITION OF POSSESSION
WAYS OF ACQUIRING POSSESSION [NCC 531]
(1) By material occupation
(a) “Material occupation” – used in its ordinary
meaning and not in its technical meaning
under NCC 712, which defines occupation as a
mode of acquiring ownership.
(b) Possession acquired by material occupation is
only possession as a fact, not the legal right of
possession.
(c) Constructive delivery is considered as an
equivalent of material occupation in two
situations where such occupation is essential
to the acquisition of possession:
(i) Tradicion brevi manu – takes place when one
who possess a thing by title other than
ownership, continues to possess the same
under a new title, that of ownership.
(ii) Tradicion constitutum possessorium – takes
place when the owner alienates the thing,
but continues to possess the same under a
different title.
(2) By subjection to the action of one’s will
(a) This mode refers more to the right of
possession than to possession as a fact. The
“action of our will” must be juridical, in the
sense that it must be according to law.
(b) Includes:
(i) Tradicion symbolica – by delivering
some object or symbol placing the
thing under the control of the
transferee
(ii) Tradicion longa manu – by the
transferor pointing out to the transferee
the things which are being transferred
(3) By execution of proper acts under legal formalities
(a) This mode refers to juridical acts or the
acquisition of possession by sufficient title
evidenced by the performance of required
formalities.
(b) Examples:
(i) Donations
(ii) Succession
(iii) Contracts (like a sale with right to
repurchase)
(iv) Judicial possession
(v) Execution of judgments
(vi) Execution and registration of public
instruments
(vii) Inscription of possessory information
titles
(c) The execution of the required formalities is
equivalent to delivery of the property
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BY WHOM MAY POSSESSION BE ACQUIRED [NCC 532]
(1) By the same person
(2) By his legal representative
(3) By his agent
(4) By any person without any power whatsoever but
subject to ratification, without prejudice to
proper case of negotiorum gestio [Arts. 2144, 2149,
2150]
(5) Qualifiedly, minors and incapacitated persons
By the same person
Elements of personal acquisition:
(1) Must have the capacity to acquire possession
(2) Must have the intent to possess
(3) The possibility to acquire possession must be
present.
By his legal representative
Requisites of acquisition through another:
(1) That the representative or agent has the intention
to acquire the thing or exercise the right for
another, and not for himself
(2) That the person for whom the thing has been
acquired or the right exercised, has the intention
of possessing such thing or exercising such right
Note:
(a) Bad faith is personal and intransmissible. Its
effects must be suffered only by the person who
acted in bad faith; his heir should not be saddled
with the consequences
(b) Good faith can only benefit the person who has it;
and the good faith of the heir cannot erase the
effects of bad faith of his predecessor.
By any person without any power whatsoever but
subject to ratification, without prejudice to proper
case of negotiorum gestio [NCC 2144, 2149, 2150]
(1) Whoever voluntarily takes charge of the agency
or management of the business or property of
another, without any power from the latter, is
obliged to continue until the termination of the
affair and its incidents, or to require the person
concerned to substitute him, if the owner is in a
position to do so.
(2) This juridical relation does not arise in either of
these instances:
(a) When the property or business is not
neglected or abandoned;
(b) If in fact the manager has been tacitly
authorized by the owner.
Qualifiedly, minors and incapacitated persons [NCC
535]
(1) Incapacitated – all those who do not have the
capacity to act (insane, lunatic, deaf-mutes who
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cannot read and write, spendthrifts and those
under civil interdiction)
(2) Object of possession – things only, not rights.
(3) Method of acquisition – material occupation;
acquisition by means for which the incapacitated
person has the capacity, such as acquisition by
succession, testate or intestate, or by donations
propter nuptias, pure and simple donations
WHAT DO NOT AFFECT POSSESSION (NCC 537)
(1) Acts merely tolerated
(a) Those which because of neighborliness or
familiarity, the owner of property allows
another person to do on the property;
(b) Those services or benefits which one’s
property can give to another without material
injury or prejudice to the owner, who permits
them out of friendship or courtesy
(c) Acts of little disturbances which a person, in
the interest of neighborliness or friendly
relations permits others to do on his property,
although continued for a long time, no right
will be acquired by prescription
Note: Permissive use merely tolerated by the
possessor cannot affect possession and cannot
be the basis of acquisitive prescription.
Possession to constitute the foundation of
prescriptive right must be possession under claim
of title; it must be adverse. [Cuaycong v.
Benedicto]
(2) Acts executed clandestinely and without the
knowledge of the possessor [NCC 1108]
Possession has to be in the concept of an owner,
public, peaceful and uninterrupted. (UPPO)
(3) Acts of violence as long as the possessor objects
thereto (i.e. he files a case) [NCC 536]
(a) Possession cannot be acquired through force
or intimidation.
Includes forcibly taking away the property
from another and also when one occupied the
property in the property in the absence of
another, and repels the latter upon his return
(b) Effect on Possession: Acts mentioned do not
constitute true possession. They do not
interrupt the period of prescription nor affect
the rights to the fruits.
RULES TO SOLVE CONFLICTS OF POSSESSION (NCC 538)
General Rule: Possession cannot be recognized in two
different personalities, except in cases of co-
possession by co-possessors without conflict of
claims of interest.
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In case of conflicting possession – preference is given
to:
(1) Present possessor or actual possessor
(2) If there are two or more possessors, the one
longer in possession
(3) If the dates of possession are the same, the one
who presents a title
(4) If all conditions are equal, the thing shall be
placed in judicial deposit pending determination
of possession or ownership through proper
proceedings
EFFECTS OF POSSESSION
(1) Right to be Protected in His Possession (NCC
539)
(2) Entitlement to fruits – possessor in good
faith/bad faith (Art. 544, 549)
(3) Reimbursement for Expenses—Possessor in Good
Faith/Bad Faith
RIGHT TO BE PROTECTED IN HIS POSSESSION (NCC 539)
(1) Every possessor has a right to be
respected in his possession; if disturbed,
possessor has a right to be protected in or
restored to said possession.
(2) Every possessor – includes all kinds of
possession, from that of an owner to that
of a mere holder, except that which
constitutes a crime.
(3) Reason for the rule: To prevent anyone
from taking the administration of justice
into his own hands. Even the owner
cannot forcibly eject the possessor, but
must resort to the courts.
Actions to Recover Possession:
(1) Forcible entry and Unlawful detainer (Summary
proceedings)
(a) Action by a person deprived of the
possession of any land or building by force,
intimidation, strategy, threat, or stealth
(FISTS) at any time within 1 year after such
unlawful deprivation (Rule 70)
(b) May ask for writ of preliminary mandatory
injunction within 10 days from filing of
complaint in forcible entry (NCC 539).
(c) The same writ is available in unlawful
detainer actions upon appeal. (Art. 1674)
(2) Accion Publiciana
(1) Based on superior right of possession, no
ownership
(2) Action for the recovery of possession of real
property upon mere allegation and proof of a
better title
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PROPERTY BAR OPERATIONS COMMISSION
(3) Accion Reivindicatoria
(1) Recovery of possession based on a claim of
ownership)
(2) An action setting up title and right to
possession
(3) Not barred by a judgment in an action for
forcible entry and unlawful detainer
(4) Action for Replevin
(a) Possession or ownership for movable property
Rules:
(1) Lawful possessor can employ self-help (NCC 429)
(2) To consolidate title by prescription, the
possession must be under claim of ownership,
and it must be peaceful, public and
uninterrupted (UPPO)
(3) It is only the conviction of ownership externally
manifested, which generates ownership.
(4) Acts of possessory character done by virtue of a
license or mere tolerance by the real owner are
not sufficient and will not confer title by
prescription or adverse possession.
(5) The following cannot acquire title by prescription:
(a) Lessees, trustees, pledges, tenants on shares
or planters and all those who hold in the
name or representation of another;
(b) Mere holders placed in possession of the
property by the owner, such as agents,
employees;
(c) Those holding in a fiduciary character, like
receivers, attorneys, depositaries and
antichretic creditors
(d) Co-owner, with regard to common property;
Except: When he holds the same adversely
against all of them with notice to them of the
exclusive claim of ownership
(i) Possession of real property presumes
possession of the movables therein (NCC
542)
(ii) Each co-owner is deemed to have
exclusive possession of the part which
may be allotted to him upon the division,
for the entire period during which the co-
possession lasted.
Interruption in the possession of the
whole or a part of a thing possessed in
common shall be to the prejudice of all
the possessors. (NCC 543)
ENTITLEMENT TO FRUITS – POSSESSOR IN GOOD
FAITH/BAD FAITH (ART. 544, 549)
(1) Possessor in good faith is entitled to the fruits
received before the possession is legally
interrupted
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(2) Natural and industrial fruits are considered
received from the time they are gathered or
severed
(3) Civil fruits are deemed to accrue daily and belong
to the possessor in good faith in that proportion
Provision is based on the following reasons of equity
(1) The fruits received are generally used for the
consumption and livelihood of the possessor, and
his life and expenses may have been regulated in
view of such fruits
(2) The owner has been negligent in not discovering
or contesting the possession of the possessor; it
would be unjust after the possessor has been
thus allowed to rely on the efficacy of the title, to
require him to return the fruits he has received on
the basis of that title.
(3) Between the owner, who has abandoned his
property and left it unproductive, and the
possessor, who has contributed to the social
wealth, by the fruits he has produced, the law
leans toward the latter
Right of the possessor in good faith
Only limited to the fruits of the thing. He must restore
the fruits received from the time such good faith
ceased. He has no rights to the objects which do not
constitute fruits.
Legal interruption of possession in good faith
Takes place when an action is filed against him—
from the time he learns of the complaint, from the
time he is summoned to the trial.
When good faith ceases (NCC 545)
(1) If at the time the good faith ceases, there should
be any natural or industrial fruits, the possessor
shall have a right to a part of the expenses of
cultivation, and to a part of the net harvest, both
in proportion to the time of the possession.
(2) The charges divided on the same basis by the two
possessors.
(a) “Charges” – Those which are incurred, not on
the thing itself but because of it (e.g. taxes,
contributions in favor of the government)
(3) The owner of the thing may give the possessor in
good faith the right to finish the cultivation and
gathering of the growing fruits, as an indemnity
for his part of the expenses of cultivation and the
net proceeds.
(a) The possessor in good faith who refuses to
accept this concession shall lose the right to
be indemnified in any other manner.
PROPERTY BAR OPERATIONS COMMISSION
When fruits are insufficient
There should only be reimbursement of expenses;
but each possessor should suffer a proportionate
reduction due to the insufficiency of the harvest.
REIMBURSEMENT FOR EXPENSES—POSSESSOR IN GOOD
FAITH/BAD FAITH (NCC 546-552)
Necessary Expenses
(1) Imposed by the thing itself and have no relation
to the desire or purpose of the possessor
(2) They are the “cost of living” for the thing and
must be reimbursed to the one who paid them,
irrespective of GF or BF.
(a) Only the possessor in GF may retain the thing
until he has been reimbursed therefor
(3) Those imposed for the preservation of the thing.
They are not considered improvements; they do
not increase the value of the thing, but merely
prevent them from becoming useless.
Useful Expenses
(1) Incurred to give greater utility or productivity to
the thing
(2) e.g. Wall surrounding an estate, an irrigation
system, planting in an uncultivated land, a
fishpond, an elevator in the building, electric
lighting system
(3) They are reimbursed only to the possessor in GF
as a compensation or reward for him. Possessor
in BF cannot recover such expenses
(4) If the useful improvements can be removed
without damage to the principal thing, the
possessor in good faith may remove them, unless
the person who recovers the possession refunds
the expenses or pays the increase in value which
the thing may have acquired by reason thereof
Expenses for Luxury
(1) They do not affect the existence or the substance
of the thing itself, but only the comfort,
convenience or enjoyment of the possessor.
(2) They are not the subject of reimbursement,
because the law does not compensate personal
whims or caprices.
(3) e.g. Opening of a garden, placing fountains and
statues in it, adorning the ceilings with paintings,
and the walls with reliefs
Useful Expenses Expenses for Luxury
Those which increased
Those which merely
the income derived from
embellished the thing
the thing
Result: Increase in the Result: Benefit or
products, either advantage is only for the
absolutely, or because of convenience of definite
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Useful Expenses Expenses for Luxury Possessor in GF Possessor in BF

greater facilities for possessors and to a part of the net (549)
producing them harvest, in proportion to
the time of the
Includes expenses possession.
resulting in real benefit
or advantage to the Indemnity may be, at the
thing owner’s option,
Result: Benefit or The utility is for the 1. In money, OR
advantage is only for the possessor or particular 2. By allowing full
convenience of definite persons alone and is cultivation and gathering
possessors therefore accidental. of the fruits (545)
Charges
Possessor In Bad Faith Must share with the
(1) Reimburse the fruits received and those which legitimate possessor, in
the legitimate possessor could have received Same as with GF (545)
proportion to the time of
(2) Has a right only to the reimbursement of the possession (545)
necessary expenses and the production,
gathering, and preservation of fruits Necessary Expenses
(3) Does not have right to reimbursement of Right to reimbursement
expenses for luxury but may remove them as long and retention in the Reimbursement only
as the principal thing suffers no injury, or may sell meantime (546) (546)
them to the owner.
(4) Liable for deterioration or loss in every case, even
if caused by a fortuitous event Useful Expenses
a. As opposed to a possessor in good faith, not Right of retention until
liable for the deterioration or loss, except reimbursed; Owner’s
when proved that he has acted with option to reimburse him
fraudulent intent or negligence, after the either for expenses or for
judicial summons increase in value which
the thing may have
Note: No right to
acquired (546)
(1) Costs of litigation over the property shall be reimbursement and no
borne by every possessor. (NCC 550) right of removal (547)
Limited right of removal
(2) Improvements caused by nature or time shall – should not damage
always inure to the benefit of the person who has principal and owner does
succeeded in recovering possession (NCC 551) not exercise option of
(1) Includes all the natural accessions referred to paying the expenses or
by articles 457-465, and all those which do increase in value (547)
not depend upon the will of the possessor.
(e.g. widening of the streets, rising of Ornamental Expenses
fountains of fresh or mineral water, increase Limited right of removal Limited right of removal
of foliage of trees) (548) (549)
Deterioration or Loss
Possessor in GF Possessor in BF
No liability unless due to
Fruits Received fraud or negligence after Liable in every case (552)
Entitled to the fruits becoming in BF (552)
Must reimburse the
while possession is in GF Costs of Litigation
legitimate possessor
and before legal
(549) Bears cost (550) Bears cost (550)
interruption (544)
Pending Fruits
Entitled to part of the Must reimburse the
expenses of cultivation, legitimate possessor

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LOSS OR UNLAWFUL DEPRIVATION OF A
MOVABLE
POSSESSION OF MOVABLE ACQUIRED IN GOOD FAITH (IN
CONCEPT OF OWNER) IS EQUIVALENT TO TITLE (NCC 559)
(1) Possessor has actual title which is defeasible only
by true owner.
Requisites of Title
(a) Possession in GF
(b) The owner has voluntarily parted with the
possession of the thing
(c) The possession is in the concept of an owner
(2) Nevertheless, one who has lost any movable or
has been unlawfully deprived thereof may recover
it from the person in possession
When the owner can recover
(a) Has lost the thing
(b) Has been unlawfully deprived thereof
(3) If the current possessor has acquired it in good
faith at a public sale, owner must reimburse the
price paid
PERIOD TO RECOVER (NCC 1140, 1132, 1133)
(1) Actions to recover movables prescribe 8 years
from the time the possession thereof is lost,
unless the possessor has acquired the ownership
by prescription for a lesser period
(2) Ownership of movables prescribes through
uninterrupted possession for 4 years in good
faith.
(3) Ownership of personal property also prescribes
through uninterrupted possession for 8 years,
without need of any other condition.
(4) Movables possessed through a crime can never
be acquired through prescription
FINDER OF LOST MOVABLE (NCC 719-720)
(1) Whoever finds a movable, which is not a treasure,
must return it to its previous possessor.
(2) If the previous possessor is unknown, the finder
shall immediately deposit it with the mayor of the
city or municipality where the finding has taken
place.
(3) The finding shall be publicly announced by the
mayor for two consecutive weeks in the way he
deems best.
(4) If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold at
public auction eight days after the publication.
(5) Six months from the publication having elapsed
without the owner having appeared, the thing
found, or its value, shall be awarded to the finder.
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The finder and the owner shall be obliged, as the
case may be, to reimburse the expenses.
(6) If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, one-
tenth of the sum or of the price of the thing found
DISTINGUISHED FROM VOIDABLE TITLE (NCC 1506)
(1) Seller of goods with voidable title not avoided at
the time of the sale: buyer acquires a good title to
the goods, provided he buys them in good faith,
for value, and without notice of the seller's defect
of title
(2) A movable lost or which the owner has been
unlawfully deprived acquired by a possessor in
good faith at a public sale - the owner can always
recover the movable provided he reimburses the
price paid.
EFFECTS OF POSSESSION
EFFECTS OF POSSESSION IN THE CONCEPT OF OWNER
Possession may lapse and ripen into full ownership
General Rule: Presumption of just title and cannot be
obliged to show or prove it (NCC 541)
(1) Basis: Possession is presumed ownership, unless
the contrary is proved. This presumption is prima
facie and it prevails until contrary is proved.
(2) Just title – that which is legally sufficient to
transfer the ownership or the real right to which it
relates
(3) For the purposes of prescription, there is just title
when the adverse claimant came into possession
of the property through one of the modes
recognized by law for the acquisition of
ownership or other real rights, but the grantor
was not the owner or could not transmit any
right. (NCC 1129)
Exception: For the purposes of prescription, just title
must be proved; it is never presumed (NCC 1131)
(1) Possessor may bring all actions necessary to
protect his possession except reivindicatoria
(2) May employ self-help under Art. 429
(3) Possessor may ask for inscription of such real
right of possession in the registry of property
(4) Has right to the fruits and reimbursement of
expenses (assuming he is possessor in good faith)
(5) Upon recovery of possession which he was
unlawfully deprived of, may demand fruits and
damages
(6) Generally, he can do on the things possessed
everything that the law authorizes the owner to
do until he is ousted by one who has a better
right.
(7) Possession in good faith and possession in bad
faith (Art. 528)
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RIGHTS OF POSSESSOR
PRESUMPTION IN FAVOR OF THE POSSESSOR—FOR
ACQUISITIVE PRESCRIPTION
(1) Of good faith until contrary is proved (NCC 527)
(a) Presumption is only juris tantum because
possession is the outward sign of ownership.
Unless such proof of bad faith is presented,
the possessor will be held to be in good faith.
(b) So long as the possessor is not actually aware
of any defect invalidating his title, he is
deemed a possessor in good faith.
(2) Of continuity of initial good faith in which
possession was commenced; possession in good
faith does not lose this character except in case
and from the moment possessor became aware or
is not unaware of improper or wrongful possession
(NCC 528)
(a) Good faith ceases from the date of the
summons to appear at the trial
(b) Good faith ceases when there is:
(i) Extraneous evidence
(ii) Suit for recovery of the property by the
true owner
(3) Of enjoyment of possession in the same character
in which possession was required until contrary is
proved (NCC 529)
(4) Of non-interruption of possession in favor of
present possessor who proves possession at a
previous time until the contrary is proved (NCC
554)
(a) Possession is interrupted for the purposes of
prescription, naturally or civilly. (NCC 1120)
(b) Possession is naturally interrupted when
through any cause it should cease for more
than one year (NCC 1121)
(c) Old possession is not revived if a new
possession should be exercised by the same
adverse claimant (NCC 1121)
(d) If the natural interruption is for only one year
or less, the time elapsed shall be counted in
favor of the prescription (NCC 1122)
(e) Civil interruption is produced by judicial
summons to the possessor. (NCC 1123)
(f) Judicial summons shall be deemed not to
have been issued and shall not give rise to
interruption (NCC 1124):
(i) If it should be void for lack of legal
solemnities;
(ii) If the plaintiff should desist from the
complaint or should allow the
proceedings to lapse;
(iii) If the possessor should be absolved from
the complaint
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PROPERTY BAR OPERATIONS COMMISSION
(g) In all these cases, the period of the
interruption shall be counted for the
prescription
(5) Other presumptions with respect to specific
properties of property rights
(a) Of extension of possession of real property to
all movables contained therein so long as in is
not shown that they should be excluded
(b) Non-interruption of possession of hereditary
property (NCC 553)
(i) Possession of hereditary property is
deemed transmitted to the heir without
interruption and from the moment of the
death of the decedent
(c) Of just title in favor of possessor in concept of
owner (NCC 541)
LOSS/TERMINATION OF POSSESSION (NCC 555)
(1) By the abandonment of the thing;
(2) By an assignment made to another either by
onerous or gratuitous title;
(3) By the destruction or total loss of the thing, or
because it goes out of commerce;
(4) By the possession of another, subject to the
provisions of Article 537, if the new possession
has lasted longer than one year. But the real
right of possession is not lost till after the lapse of
ten years.
ABANDONMENT
(1) Includes the giving up of possession, and not
necessarily of ownership by every possessor.
(2) It is the opposite of occupation. It consists of the
voluntary renunciation of all the rights which the
person may have in a thing, with intent to lose
such a thing. To be effective, it is necessary that it
be made by a possessor in the concept of an
owner.
(3) It must be clearly appear that the spes
recuperandi is gone and the animus revertendi is
finally given up.
ASSIGNMENT, EITHER ONEROUS OR GRATUITOUS
Complete transmission of ownership rights to
another person, gratuitously or onerously
POSSESSION BY ANOTHER; IF POSSESSION HAS LASTED
LONGER THAN ONE YEAR; REAL RIGHT OF POSSESSION
NOT LOST AFTER 10 YEARS - (SUBJECT TO NCC 537)
(1) Acts merely tolerated, and those executed
clandestinely and without the knowledge of the
possessor of a thing, or by violence, do not affect
possession.
(2) Possession that is lost here refers only to
possession as a fact (de facto), not the legal right
UP COLLEGE OF LAW
of possession (de jure). It is the possession that
the new possessor acquires.
(3) Real right of possession is lost only after 10 years.
(4) After one year, the actions for forcible entry and
unlawful detainer can no longer be brought. But
accion publiciana may still be instituted to
recover possession de jure
RULES FOR LOSS OF MOVABLES
(1) The possession of movables is not deemed lost so
long as they remain under the control of the
possessor, even though for the time being he may
not know their whereabouts. (NCC 556)
(2) Control – judicial control or right, or that the
thing remains in one’s patrimony
(3) Wild animals are possessed only while they are
under one's control (NCC 560)
(a) Domesticated or tamed animals - if they retain
the habit of returning to the premises of the
possessor
Kinds of Animals
(1) Wild—those which live naturally independent of
man
(2) Domesticated—those which, being wild by nature,
have become accustomed to recognize the
authority of man. When they observe this custom,
they are placed in the same category as domestic
and when they lose it, they are considered as
wild.
(3) Domestic or Tame—those which are born and
reared ordinarily under the control and care of
man; they are under the ownership of man, and
do not become res nullius unless they are
abandoned.
Usufruct
CONCEPT (NCC 562):
Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form
and substance, unless the title constituting it or the
law otherwise provides
OBJECTS OF USUFRUCT
(1) Independent Rights
(a) A servitude which is dependent on the
tenement to which it attaches cannot be the
object of usufruct
(2) Things
(a) Non-consumable things
(b) Consumable things, but only as to their value
if appraised, or on an equal quantity and
quality if they were not appraised
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(3) Unproductive things
e.g. sterile or absolutely unproductive land, or
things for mere pleasure, such as promenades,
statues or paintings, even if they do not produce
any utility.
CHARACTERISTICS
(1) It is a real right
(2) Of temporary duration
(3) To derive all advantages from the thing due to
normal exploitation
NATURAL CHARACTERISTICS
(1) Includes only the right to use (jus utendi) and the
right to the fruits (jus fruendi)
(2) Usufructuary must preserve the form or
substance of the thing
(a) Preservation is a natural requisite, not
essential because the title constituting it or the
law may provide otherwise
(b) Reason for preserving form and substance –
(i) To prevent extraordinary exploitation;
(ii) To prevent abuse, which is frequent;
(iii) To prevent impairment.
(c) Exception: In an abnormal usufruct, alteration
is allowed
(3) Usufruct is extinguished by the death of the
usufructuary
(a) Natural because a contrary intention may
prevail
CLASSIFICATION
BY ORIGIN
(1) Voluntary: created by the will of private persons
(a) By act inter vivos – such as contracts and
donations
(i) By alienation of the usufruct
(ii) By retention of the usufruct
(iii) Where a usufruct is constituted inter
vivos and for valuable consideration, the
contract is unenforceable unless in
writing
(b) By act mortis causa – such as testament
(2) Legal: as provided by law
Usufruct of parents over the property of
unemancipated children (now limited to the
collective daily needs of the family, FC 26)
(3) Mixed: created both by law and the acts of
persons
(a) The rights and duties of the usufructuary
provided by law may be modified or
eliminated by the parties.
(b) The title constituting the usufruct may validly
authorize the usufructuary to alienate the
thing itself held in usufruct.
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(i) If the usufructuary is authorized to
alienate the thing in case of necessity, it
is the usufructuary who determines the
question of necessity.
BY PERSON ENJOYING RIGHT OF USUFRUCT
(1) Simple: only one usufructuary enjoys the property
(2) Multiple: several usufructuaries enjoy the
property
(a) Simultaneous: at the same time
(b) Successive: one after the other
Limitations on Successive Usufruct
(1) If usufruct is by donation, ALL donees must be
alive. (NCC 756)
(2) Fiduciary or first heir and the second heir must be
alive at the time of the death of the testator.
(NCC 863)
(3) If by testamentary succession, there must be only
2 successive usufructuaries, and both must be
alive or at least already conceived at the time of
the testator’s death. (NCC 869)
BY OBJECT OF USUFRUCT
Usufruct may be constituted on the whole or a part
of the fruits of the thing or on a right, provided it is
not strictly personal or intransmissible (NCC 564)
Rights
(1) Must not be strictly personal or intransmissible.
(2) Usufruct over a real right is by itself a real right.
(a) Right to receive present or future support
cannot be the object of the usufruct.
Things
(1) Normal: involves non-consummable things where
the form and substance are preserved
(2) Abnormal or irregular: when the usufruct includes
things which cannot be used without being
consumed
(a) The usufructuary has right to make use of
them under the obligation of paying their
appraised value at the termination of the
usufruct, if they were appraised when
delivered.
(b) In case they were not appraised, he has the
right to return the same quantity and quality,
or pay their current price at the time the
usufruct ceases (NCC 574)
(c) In reality, the usufruct is not upon the
consumable things themselves, but upon the
sum representing their value or upon a
quantity of things of the same kind and
quality.
(d) The usufructuary, in effect, becomes the
owner of the things in usufruct, while the
grantor becomes a mere creditor entitled to
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PROPERTY BAR OPERATIONS COMMISSION
the return of the value or of the things of the
same quantity and quality (as if converted
into a simple loan)
BY THE EXTENT OF THE USUFRUCT
As to the fruits
(1) Total: all consumed by the usufruct
(2) Partial: only on certain aspects of the usufruct’s
fruits
As to object
(1) Singular: only on particular property of the owner
(2) Universal: pertains to the whole property;
A universal usufructuary must pay the debts of
the naked owner, if stipulated. Article 758 and
759 on donations apply.
NCC 758: When the donation imposes upon the
donee the obligation to pay the debts of the
donor, if the clause does not contain any
declaration to the contrary, the former is
understood to be liable to pay only the debts
which appear to have been previously contracted.
In no case shall the donee be responsible for the
debts exceeding the value of the property
donated, unless a contrary intention clearly
appears.
NCC 759: There being no stipulation regarding
the payment of debts, the donee shall be
responsible therefor only when the donation has
been made in fraud of creditors.
The donation is always presumed to be in fraud
of creditors, when at the time thereof the donor
did not reserve sufficient property to pay his
debts prior to the donation.
BY THE TERMS OF THE USUFRUCT
(1) Pure: no terms or conditions
(2) Conditional: either suspensive or resolutory
(3) With a term or period
(a) Ex die: from a certain day
(b) In diem: up to a certain day
(c) Ex die in diem: from a certain day up to a
certain day
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RIGHTS AND OBLIGATIONS OF USUFRUCTUARY ungathered for no fault imputable to him, but
because of malice or an act imputable to the naked
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RIGHTS owner or a 3 person, or even due to force majeure
As to Thing and Its Fruits or fortuitous event.
Right to enjoy the property to the same extent as the
owner, but only with respect to its use and the receipt of Right to civil fruits
its fruits. (1) Civil fruits – deemed to accrue daily, and belong
(1) Usufructuary cannot extract products which do to the usufructuary in proportion to the time the
not constitute fruits because he is bound to usufruct may last.
preserve the form and substance of the thing. (2) Whenever a usufruct is constituted on the right to
(2) Usufructuary rights may be transferred, assigned receive a rent or periodical pension, whether in
or otherwise disposed of by the usufructuary. money or in fruits, or in the interest on bonds or
(3) Not exempt from execution and can be sold at securities payable to bearer, each payment due
public auction. shall be considered as the proceeds or fruits of
such right
As to hidden treasure, usufructuary is considered a (3) Whenever it consists in the enjoyment of benefits
stranger without a right to a share, unless he is also the accruing from a participation in any industrial or
finder of the treasure commercial enterprise, the date of the
(1) With respect to hidden treasure which may be distribution of which is not fixed, such benefits
found on the land or tenement, he shall be shall have the same character
considered a stranger (a) In either case they shall be distributed as civil
(2) Hidden treasure belongs to the owner of the fruits
land, building, or other property on which it is
found. Right to enjoy any increase through accessions and
(3) Nevertheless, when the discovery is made on the servitudes, including products of hunting and fishing
property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof Right to lease the thing
shall be allowed to the finder. General rule: The usufructuary may lease the thing to
another but this shall terminate upon the expiration
Right to fruits pending at the beginning of usufruct of the usufruct, saving leases of rural lands, which
Fruits pending at the Fruits pending at the shall be considered as subsisting during the
beginning of the usufruct beginning of the usufruct agricultural year
Belong to the Belong to the naked Exceptions:
usufructuary owner (1) Legal usufructs cannot be leased.
(2) Caucion juratoria (lease would show that the
Without need to The owner shall usufructuary does not need the property badly)
reimburse the expenses to reimburse to the
the owners usufructuary ordinary Effect of the transfer of right:
cultivation expenses (1) The transfer or lease of the usufruct does NOT
from the proceeds of the terminate the relation of the usufructuary with
fruits (not to exceed the the owner
value of the fruits) (2) Death of the transferee does not terminate the
Without prejudice to the Rights of innocent 3
rd usufruct but it terminates upon the death of the
rd
right of 3 persons e.g. if parties should not be usufructuary who made the transfer.
the fruits had been prejudiced.
planted by a possessor in Rules as to Lease
good faith, the pending (1) The property in usufruct may be leased even
crop expenses and without the consent of the owner.
charges shall be prorated (2) The lease should be for the same period as the
between said possessor usufruct.
and the usufructuary (a) EXCEPT: leases of rural lands continues for
the remainder of the agricultural year
(b) A lease executed by the usufructuary before
Fruits already matured at the time of the termination the termination of the usufruct and subsisting
of the usufruct, which ordinarily would have already after the termination of the usufruct must be
been gathered by the usufructuary, may remain

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respected, but the rents for the remaining
period will belong to the owner.
(c) If the usufructuary has leased the lands or
tenements given in usufruct, and the usufruct
should expire before the termination of the
lease, he or his heirs and successors shall
receive only the proportionate share of the
rent that must be paid by the lessee. (Art. 568,
Civil Code)
(3) It is the usufructuary and not the naked owner
who has the right to choose the tenant.
(a) As corollary to the right of the usufructuary to
all the rent, to choose the tenant, and to fix
the amount of the rent, she necessarily has
the right to choose herself as the tenant
thereof; and, as long as the obligations she
had assumed towards the owner are fulfilled.
(Fabie v. Gutierrez David)
(4) A lease executed by the owner before the
creation of the usufruct is not extinguished by
such usufruct.
Limitations on the Right to Lease the Property
(1) Usufructuary cannot alienate a thing in usufruct
(a) Cannot alienate or dispose of the objects
included in the usufruct
(b) Cannot renounce a servitude
(c) Cannot mortgage or pledge a thing
(d) EXCEPT:
(i) When the right of usufruct is converted
into the right of ownership
(ii) When the things are consumable (574);
(iii) When the things by their nature are
intended for sale, such as the
merchandise in a commercial
establishment; and
(iv) When the things, whatever their nature,
are delivered under appraisal as
equivalent to their sale
(2) Future crops may be sold but such sale would be
void if not ratified by the owner.
(a) The buyer’s remedy is to recover from the
usufructuary.
(3) Only voluntary usufruct can be alienated.
(4) The usufructuary-lessor is liable for the act of the
substitute.
(a) A usufructuary who alienates or leases his
right of usufruct shall answer for any damage
which the things in usufruct may suffer
through the fault or negligence of the person
who substitutes him. (Art. 590, Civil Code)
Right to improve the thing, but improvement inures
to the benefit of the naked owner
(1) Usufructuary is not entitled to reimbursement.
(2) Whenever the usufructuary can remove the
improvements without injury to the property in
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PROPERTY BAR OPERATIONS COMMISSION
usufruct, he has the right to do so, and the owner
cannot prevent him from doing so even upon
payment of their value.
(3) This right does not involve an obligation – if the
usufructuary does not wish to exercise it, he
cannot be compelled by the owner to remove the
improvements.
(4) This right to remove improvements can be
enforced only against the owner, not against a
purchaser in good faith to whom a clean title has
been issued.
(5) Usufructuary may set off the improvements
against any damage to the property
(a) The improvements should have increased the
value of the property, and that the damages
are imputable to the usufructuary.
(b) Increase in value and the amount of damages
are set off against each other.
(c) If the damages exceed the increase in value,
the difference should be paid by the
usufructuary as indemnity.
(d) If the increase in value exceeds the damages,
and the improvements are of such nature that
they can be removed without injury to the
thing in usufruct, the settlement of the
difference must be agreed upon by the
parties.
(e) If the improvements cannot be removed
without injury, the excess in value accrues to
the owner.
(6) Registration of improvements – to protect
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usufructuary against 3 persons
As to the Legal Right of Usufruct Itself
Right to mortgage right of usufruct
(1) The usufructuary may alienate his right of
usufruct, even by a gratuitous title; but all the
contracts he may enter into as such usufructuary
shall terminate upon the expiration of the
usufruct [Art. 572]
(2) Does not include parental usufruct because of
personal and family considerations.
Right to alienate the usufruct except in purely personal
usufructs or when title constituting it prohibits the
same
Parental usufruct is inalienable
OBLIGATIONS
At the Beginning of Usufruct or Before Exercising the
Usufruct
(1) To make, after notice to the owner or his
legitimate representative, an inventory of all the
property, which shall contain an appraisal of the
movables and a description of the condition of
the immovables;
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(2) To give security, binding himself to fulfill the
obligations imposed upon him in accordance with
this Chapter.
Note: These requirements are NOT conditions
precedent to the commencement of the right of the
usufructuary but merely to the entry upon the
possession and enjoyment of the property.
To Make An Inventory:
(1) Requisites
(a) Immovables must be described
(b) Movables must be appraised because they are
easily lost or deteriorated.
(2) Concurrence of the owner in the making of the
inventory
(3) Expenses for the making of the inventory are
borne by the usufructuary
(4) Inventory may be in a private document, except
when immovables are involved (a public
rd
instrument is prescribed to affect 3 persons)
(5) Failure to make an inventory does not affect the
rights of the usufructuary to enjoy the property
and its fruits.
(a) A prima facie presumption arises that the
property was received by the usufructuary in
good condition
(b) Even if he is already in possession, he may still
be required to make an inventory.
(6) Exception to the requirement of inventory
(a) When no one will be injured , the usufructuary
may be excused from this obligation
To give a bond for the faithful performance of duties as
usufructuary:
(1) Any kind of sufficient security is allowed, e.g.
cash, personal bond, mortgage
(2) No bond is required in the following
(a) No prejudice would result (Art. 585)
(b) Usufruct is reserved by a donor (Art. 584)
(i) Gratitude on the donee’s part demands
that the donor be excused from filing the
bond
(c) Title constituting usufruct excused
usufructuary
(3) If usufructuary takes possession under a caucion
juratoria (Art. 587)
(a) The security given may be by a personal bond,
a pledge, or a mortgage.
(b) It is only by way of exception that a caucion
juratoria is allowed, and only under the
special circumstances:
(i) Proper court petition
(ii) Necessity for delivery of furniture,
implements or house included in the
usufruct
(iii) Approval of the court
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PROPERTY BAR OPERATIONS COMMISSION
(iv) Sworn promise
(c) A usufructuary under this can neither alienate
his right nor lease the property, for that would
mean that he does not need the dwelling or
the implements and furniture.
(4) Effect of filing a bond
(a) Retroactivity: upon giving the security, the
usufructuary will be entitled to all the benefits
accruing since the time when he should have
begun to receive them.
(5) Effect of failure to give bond (NCC 586)
(a) The owner may demand that the immovables
be placed under administration;
(i) That the movables be sold;
(ii) That the public bonds, instruments of
credit payable to order or to bearer be
converted into registered certificates or
deposited in a bank or public institution;
(iii) That the capital or sums in cash and the
proceeds of the sale of the movable
property be invested in safe securities.
(b) Owner may, until the usufructuary gives
security, retain in his possession the property
in usufruct as administrator, subject to the
obligation to deliver to the usufructuary the
net proceeds, after deducting the sums which
may be agreed upon or judicially allowed him
for such administration.
During the Usufruct
(1) To take care of the thing like a good father of a
family
(2) To undertake ordinary repairs
(3) To notify owner of need to undertake
extraordinary repairs
(4) To pay for annual charges and taxes on the fruits
(5) To notify owner of any act detrimental to
ownership
(6) To shoulder the costs of litigation re usufruct
(7) To answer for fault or negligence of alienee,
lessee or agent of usufructuary
To take care of the thing like a good father of a family
(1) When damages are caused to the property by the
fault or negligence of the usufructuary, the naked
owner need not wait for the termination of the
usufruct before bringing the action to recover
proper indemnity.
(2) The bad use of a thing, which causes
considerable injury, entitles the owner to demand
the delivery and administration of the thing.
(3) The exercise of this remedy does NOT extinguish
the usufruct.
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To undertake ordinary repairs
The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct (NCC
592)
(1) Ordinary repairs:
(a) Such as are required by the wear and tear due
to the natural use of the thing and are
indispensable for its preservation.
(b) Deteriorations or defects arise from the
natural use of the thing;
(c) Repairs are necessary for the preservation of
the thing.
(2) The usufructuary is bound to pay only for the
repairs made during the existence of the usufruct.
(a) If the defects existed already at the time the
usufruct began, the obligation to defray the
ordinary repairs falls upon the owner.
(3) If the defects are caused by the ordinary use of
the thing, the usufructuary may exempt himself
from making the repairs by returning to the
owner the fruits received during the time that the
defects took place.
Except: When the ordinary repairs are due to
defects caused by the fault of the usufructuary
(4) If the usufructuary fails to make the repairs even
after demand, the owner may make them at the
expense of the usufructuary
To notify owner of need to undertake extraordinary
repairs
(1) Extraordinary repairs
(a) Those caused by exceptional circumstances,
whether or not they are necessary for the
preservation of the thing;
(b) Those caused by the natural use of the thing,
but are not necessary for its preservation.
(2) General Rule: Naked owner must make the
extraordinary repairs
(a) Usufructuary obliged to pay legal interest on
the amount while usufruct lasts
(3) If the extraordinary repairs are indispensable, and
the naked owner fails to undertake them, the
usufructuary may make such repairs
(a) Requisites:
(i) There must be due notification to the
naked owner of the urgency – if it is not
urgent, there is no obligation to give
notice.
(ii) The naked owner failed to make them
(iii) The repair is needed for preservation
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PROPERTY BAR OPERATIONS COMMISSION
(b) The usufructuary who has made the
extraordinary repairs necessary for
preservation is entitled to recover from the
owner the increase in value which the
tenement acquired by reason of such works.
(c) Usufructuary may retain until he is paid.
To pay for annual charges and taxes on the fruits
It is well settled that a real tax, being a burden upon
the capital, should be paid by the owner of the land
and not by a usufructuary. There is no merit in the
contention of distinguishing public lands into
alienable and indisposable. All properties owned by
the government, without any distinction, are exempt
from taxation. (Board of Assessment Appeals of
Zamboanga del Sur v. Samar Mining Company, Inc.)
To notify owner of any act detrimental to ownership
(NCC 601)
To shoulder the costs of litigation re usufruct (NCC 602)
To answer for fault or negligence of alienee, lessee or
agent of usufructuary (NCC 590)
The usufructuary is made liable for the acts of the
substitute. While the substitute answers to the
usufructuary, the usufructuary answers to the naked
owner.
At the Time of the Termination of the Usufruct
To deliver the thing in usufruct to the owner in the
condition in which he has received it, after
undertaking ordinary repairs
Exception: abnormal usufruct – return the thing of
same kind, quantity and quality; if with appraised
value, must return value appraised
SPECIAL CASES OF USUFRUCT
USUFRUCT OVER A PENSION OR PERIODICAL INCOME (NCC
570)
(1) Each payment due shall be considered as the
proceeds or fruits of such right
(2) Shall be distributed as civil fruits
USUFRUCT OF PROPERTY OWNED IN COMMON (NCC 582)
(1) The usufructuary takes the place of the owner as
to:
(a) Management;
(b) Fruits; and
(c) Interest
(2) Effect of partition:
(a) The right of the usufructuary is not affected by
the division of the property in usufruct among
the co-owners.
(b) After partition, the usufruct is transferred to
the part allotted to the co-owner
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USUFRUCT CONSTITUTED ON A FLOCK OR HERD OF
LIVESTOCK (NCC 591)
(1) On sterile stock: same rules on consumable
property govern (i.e. replacement upon
termination)
(2) On fruitful stock
(a) Must replace ordinary losses of the stock with
the young if:
(i) Some animals die from natural causes
(ii) Some animals are lost due to rapacity of
beasts of prey
(b) NO obligation to replace if:
(i) There is a total loss of animals because
of some unexpected or unnatural loss
(like contagious disease or any other
uncommon event, provided the
usufructuary has no fault);
(1) If all perish, the usufructuary should
deliver the remains to the owner.
(ii) There is a partial loss
(1) If a part of the stock perishes, the
usufruct subsists on the remainder.
USUFRUCT OVER FRUIT BEARING TREES AND SPROUT AND
WOODLANDS (NCC 575-576)
The usufructuary can:
(1) Use dead trunks and those cut off or uprooted by
accident.
(2) Make usual cuttings that owner used to do.
(3) Cut the trees that are not useful
USUFRUCT ON A RIGHT OF ACTION (NCC 578)
(1) The action may be instituted in the usufructuary’s
name. As the owner of the usufruct, he is properly
deemed a proper party in interest.
(2) If the purpose is the recovery of the property or
right, he is still required under 578 to obtain the
naked owner’s authority.
(3) If the purpose is to object to or prevent
disturbances over the property, no special
authority from the naked owner is needed.
USUFRUCT ON MORTGAGED PROPERTY (NCC 600)
(1) When the usufruct is universal and some objects
are mortgaged, apply Art. 598.
(2) If the usufructuary mortgaged the usufruct
himself, he is liable to pay his own debt.
USUFRUCT OVER AN ENTIRE PATRIMONY (NCC 598)
Applies when:
(1) The usufruct is a universal one
(2) And the naked owner – Has debts or is obliged to
make periodical payments (whether or not there
be known capital)
General rule: The usufructuary is not liable for the
owner’s debts.
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PROPERTY BAR OPERATIONS COMMISSION
Exceptions:
(1) When it is so stipulated; in which case the
usufructuary shall be liable for the debt specified.
(2) If there is no specification, he is liable only for
debts incurred by the owner before the usufruct
was constituted.
(3) When the usufruct is constituted in fraud of
creditors
In no case shall the usufructuary be responsible for
debts exceeding the benefits under the usufruct.
(except when the contrary intention appears)
USUFRUCT OVER DETERIORABLE PROPERTY (NCC 753)
(1) The usufructuary shall have the right to make use
thereof in accordance with the purpose for which
they are intended
(2) It is sufficient if the usufructuary returns the
things in the condition in which they may have
been found at the time of the expiration of the
usufruct despite ordinary defects caused by use
and deterioration produced by age and time.
Except: when caused by the usufructuary’s fraud
and negligence.
(3) If usufructuary does not return the things upon
the expiration of the usufruct, he should pay an
indemnity equivalent to the value of the things at
the time of such expiration.
USUFRUCT OVER CONSUMABLE PROPERTY (NCC 574)
(1) The usufructuary shall have the right to make use
of them under the obligation of paying their
appraised value at the termination of the
usufruct, if they were appraised when delivered.
(2) If not appraised, he shall have the right to return
at the same quantity and quality, or pay their
current price at the time the usufruct ceases.
RIGHTS OF THE OWNER
(1) At the beginning of the usufruct (see obligations of
usufructuary at the beginning of the usufruct)
(2) During the usufruct
(a) Retains title to the thing or property
(b) He may alienate the property: he may not
alter the form or substance of the thing; nor
do anything prejudicial to the usufructuary
(c) He may construct buildings, make
improvements and plantings, provided:
(1) Value of the usufruct is not impaired
(2) Rights of the usufructuary are not
prejudiced
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EXTINGUISHMENT/TERMINATION (NCC 603) association is dissolved, the usufruct shall be

(1) By the death of the usufructuary, unless a extinguished.
rd
contrary intention clearly appears; (2) Time that may elapse before a 3 person attains
(2) By the expiration of the period for which it was a certain age [Art. 606, CC]
constituted, or by the fulfillment of any resolutory (a) Usufruct subsists for the number of years
rd
condition provided in the title creating the specified, even if the 3 person should die
usufruct; before the period expired
(3) By merger of the usufruct and ownership in the (b) Unless the usufruct has been expressly
same person; granted only in consideration of the existence
(4) By renunciation of the usufructuary; of the person
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person MERGER OF RIGHTS OF USUFRUCT AND NAKED
constituting the usufruct; OWNERSHIP IN ONE PERSON
(7) By prescription. Illustration: H was the usufructuary of land owned by
X. x dies, leaving in his will, the naked ownership of
DEATH OF USUFRUCTUARY the land to H. the usufruct is extinguished because
Exceptions: now H is both the naked owner and the usufructuary.
(1) In multiple usufructs: it ends at the death of the
last survivor (NCC 611) RENUNCIATION OF USUFRUCT
(a) If simultaneously constituted: all the (1) Waiver: voluntary surrender of the rights of the
usufructuaries must be alive (or at least usufructuary, made by him with intent to
conceived) at the time of constitution. surrender them
(b) If successively constituted: (2) Limitations
(i) If by virtue of donation – all the donees- (a) Must be express: tacit renunciation is not
usufructuaries must be living at the time sufficient
of the donation; (b) Does not need the consent of naked owner
(ii) If by will – there should only be 2 (c) If made in fraud of creditors, waiver may be
successive usufructuaries and both must rescinded by them through action under
have been alive at the time of testator’s Article 1381 (accion pauliana)
death.
EXTINCTION OR LOSS OF PROPERTY (NCC 608 & 608)
(2) If the period is fixed by reference to the life of
Situation Effect
another or there is a resolutory condition
Art. 607
Death does not affect the usufruct and the right If destroyed property is not insured
is transmitted to the heirs of the usufructuary
until the expiration of the term or the fulfillment If the building forms part If the building forms part
of the condition. of an immovable under of an immovable under
usufruct usufruct
(3) When a contrary intention clearly appears If usufruct is on the Usufruct continues over
(a) If the usufructuary dies before the happening building only the land and materials
of a resolutory condition, the usufruct is (plus interests), if owner
extinguished. does not rebuild.
st
(b) 1 view: usufruct is personal and it CANNOT If owner rebuilds,
be extended beyond the lifetime of the usufructuary must allow
usufructuary. (Sanchez Roman and SC) owner to occupy the land
and to make use of
EXPIRATION OF PERIOD OR FULFILLMENT OF RESOLUTORY materials; but the owner
CONDITION IMPOSED ON USUFRUCT BY PERSON must pay interest on the
CONSTITUTING THE USUFRUCT value of both the land
(1) In favor of juridical persons [Art. 605, CC] and the materials.
(a) Usufruct cannot be constituted in favor of a Art. 608
town, corporation, or association for more If destroyed property is insured before termination of the
than fifty year usufruct
(b) If before the expiration of such period the
town is abandoned, or the corporation or When insurance premium If owner rebuilds,
paid by owner and usufruct subsists on new

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(2) If both the naked owner and the usufructuary

Situation Effect
were separately given indemnity, each owns the
usufructuary (par. 1) building. indemnity given to him, the usufruct being totally
If owner does not rebuild extinguished.
interest upon insurance (3) If usufructuary alone was given the indemnity, he
proceeds paid to must give it to the naked owner and compel the
usufructuary latter to return either the interest or to replace
the property. He may even deduct the interest
When the insurance taken Owner entitled to himself, if the naked owner fails to object.
by the naked owner only insurance money (no
because usufructuary interest paid to BAD USE OF THING IN USUFRUCT (NCC 610)
refuses to contribute to usufructuary). Does not extinguish the usufruct but
the premium (par. 2) If he does not rebuild, (1) Entitles the owner to demand delivery and
usufruct continues over administration of the thing.
remaining land and/or (2) The bad use must cause considerable injury not to
owner may pay interest the thing, but to the owner.
on value of both (a) Destruction of a building over which the
materials and land (607). usufruct is constituted (Arts. 607 and 608)
If owner rebuilds,
usufruct does not
continue on new
building, but owner must
pay interest on value of
land and old materials. Easement
When insurance taken by Insurance proceeds goes
usufructuary only to the usufructuary. (1) An encumbrance imposed upon an immovable
depends on value of No obligation to rebuild. for the benefit of another immovable belonging
usufructuary’s insurable Usufruct continues on to a different owner (NCC 613)
interest the land. (2) A real right which burdens a thing with a
Owner has no share in prestation of determinate servitudes for the
insurance proceeds. exclusive enjoyment of one who is NOT an owner
of a tenement
(3) A real right by virtue of which the owner has to
TERMINATION OF RIGHT OF PERSON CONSTITUTING THE
ABSTAIN from doing or ALLOW somebody else
USUFRUCT
to do something to his property for the benefit of
Example: usufructs constituted by a vendee a retro another
terminate upon redemption
Dominant Estate – the immovable in favor of which
PRESCRIPTION
the easement is established
(1) Adverse possession against the owner or the
usufructuary. Servient Estate – the immovable which is subject to
(2) It is not the non-use which extinguishes the the easement
rd
usufruct by prescription, but the use by a 3
person. CHARACTERISTICS
(3) There can be no prescription as long as the ESSENTIAL FEATURES:
usufructuary receives the rents from the lease of (1) It is a real right – it gives an action in rem or real
the property, or he enjoys the price of the sale of action against any possessor of the servient estate
his right. (a) Owner of the dominant estate can file a real
action for enforcement of right to an
CONDITIONS NOT AFFECTING USUFRUCT easement
EXPROPRIATION OF THING IN USUFRUCT (NCC 609)
(b) Action in rem: an action against the thing
3 Situations itself, instead of against the person.
(1) If naked owner alone was given the indemnity, he
has the option: (2) It is a right enjoyed over another property (jus in re
(a) To replace with equivalent thing aliena) – it cannot exist in one’s property (nulli res
(b) Or to pay to the usufructuary legal interest on sua servit)
the indemnity – requires security given by the When a dominant and servient estate have the
naked owner for the payment of the interest same owner, an easement is extinguished.

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Separate ownership is a prerequisite to an
easement.
(3) It is a right constituted over an immovable by
nature (land and buildings), not over movables.
(Article 613)
Immovable: used in its common and not in the
legal sense, meaning only property immovable
BY NATURE can have easements.
(4) It limits the servient owner’s right of ownership for
the benefit of the dominant estate.
(a) Right of limited use but no right to possess
servient estate.
(b) There exists a limitation on ownership: the
dominant owner is allowed to enjoy or use
part of the servient estate, or imposes on the
owner a restriction as to his enjoyment of his
own property.
(i) Being an abnormal limitation of
ownership, it cannot be presumed.
(5) It creates a relation between tenements
No transfer of ownership, but a relationship is
created, depending on the easement.
(6) Generally, it may consist in the owner of the
dominant estate demanding that the owner of the
servient estate refrain from doing something
(servitus in non faciendo) or that the latter permit
that something be done over the servient property
(servitus in patendo), but not in the right to
demand that the owner of the servient do
something (servitus in faciendo) except if such act
is an accessory obligation to a praedial servitude
(obligation propter rem)
Servient owner merely allows something to be
done to his estate.
Exceptions: Praedial servitudes
(a) Right to place beams in an adjoining wall to
support a structure
(b) Right to use another’s wall to support a
building
(7) It is inherent or inseparable from estate to which
they actively or passively belong (NCC 617)
(a) Easements are merely accessory to the
tenements, and a “quality thereof.” They
cannot exist without tenements.
(b) Easements exist even if they are not expressly
stated or annotated as an encumbrance on
the titles.
(8) It is intransmissible – it cannot be alienated
separately from the tenement affected or
benefited
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PROPERTY BAR OPERATIONS COMMISSION
Any alienation of the property covered carries
with it the servitudes affecting said property. But
this affects only the portion of the tenement with
the easement, meaning the portions unaffected
can be alienated without the servitude.
(9) It is indivisible (NCC 618)
(a) If the servient estate is divided between two or
more persons, the easement is not modified,
and each of them must bear it on the part
which corresponds to him
(b) If the dominant estate is divided between two
or more persons, each of them may use the
easement in its entirety, without changing the
place of its use, or making it more
burdensome in any other way
(10) It has permanence – once it attaches, whether
used or not, it continues and may be used anytime
Perpetual: exists as long as property exists, unless
it is extinguished.
CLASSIFICATION
AS TO RECIPIENT OF BENEFITS
(1) Real or Praedial: exists for the benefit of a
particular tenement.
(2) Personal: exists for the benefit of persons without
a dominant tenement e.g. usus habitatio (right to
reside in a house) and operae servorum (right to
the labor of slaves) in Roman Law
AS TO CAUSE OR ORIGIN
(1) Legal: created by law, whether for public use or
for the interest of private persons
(a) Once requisites are satisfied, the owner of the
dominant estate may ask the Court to declare
that an easement is created.
(b) Example: Natural drainage of waters,
Abutment of land, Aqueduct, etc.
(2) Voluntary: Created by the will of the owners of the
estate through contract
Note: There is no such thing as a JUDICIAL
EASEMENT. The Courts cannot create easements,
they can only declare the existence of one, if it exists
by virtue of the law or will of the parties.
AS TO ITS EXERCISE (NCC 615)
(1) Continuous: Use is or may be incessant, without
the intervention of any man
(2) Discontinuous: Used at intervals, and dependent
upon the acts of man.
Note: This classification is important in determining
prescription: only continuous and apparent
easements can be created by prescription
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AS INDICATION OF ITS EXISTENCE
(1) Apparent: Made known and continually kept in
view by external signs that reveal the use and
enjoyment of the same
(2) Non-apparent: No external indication of their
existence
Note: Also important for purposes of prescription
BY THE OBJECT OR OBLIGATION IMPOSED (NCC 616)
(1) Positive: Imposes upon the owner of the servient
estate the obligation of allowing something to be
done, or doing it himself
(2) Negative: Prohibits the owner of the servient
estate from doing something which he could
lawfully do if the easement did not exist.
e.g. Negative Easement of Light and View: An
opening is made on the wall of the dominant
estate, and the easement consists of imposing
upon the servient estate the obligation to not
build anything that would obstruct the light
Note: Prescription starts to run from service of
notarial prohibition
GENERAL RULES
(1) Nulli res sua servi: No one can have a servitude
over one’s own property
(2) Servitus in faciendo consistere nequit: A servitude
cannot consist in doing
(a) Although some easements seem to impose a
positive prestation upon the owner of the
servient estate, in reality, the primary
obligation is still negative.
(b) Illustration: Under Article 680: the owner of a
tree whose branches extend over to a
neighboring property is required to cut off the
extended branches, but the real essence of
the easement is the obligation NOT TO
ALLOW the branches of the tree to extend
beyond the land
(3) Servitus servitutes esse non potes: There can be no
servitude over another servitude
(4) A servitude must be exercised civiliter – in a way
least burdensome to the owner of the land
(5) A servitude must have a perpetual cause
RELEVANCE OF CLASSIFICATIONS
DETERMINES WHAT EASEMENTS CAN BE ACQUIRED BY
PRESCRIPTION
Continuous and apparent easements may be
acquired by prescription of 10 years (NCC 620)
DETERMINES WHAT EASEMENTS CAN BE ACQUIRED BY
TITLE
(1) Continuous nonapparent easements, and
discontinuous ones, whether apparent or not,
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PROPERTY BAR OPERATIONS COMMISSION
may be acquired only by virtue of a title (NCC
622)
(2) The existence of an apparent sign of easement
between two estates, established or maintained
by the owner of both, shall be considered, as a
title in order that the easement may continue
actively and passively.
Unless: At the time the ownership of the two
estates is divided, the contrary should be
provided in the title of conveyance of either of
them, or the sign aforesaid should be removed
before the execution of the deed. This provision
shall also apply in case of the division of a thing
owned in common by two or more persons. (NCC
624)
DETERMINES HOW TO COMPUTE THE PRESCRIPTIVE
PERIOD (NCC 621)
(1) In positive easements, from the day on which the
owner of the dominant estate, or the person who
may have made use of the easement,
commenced to exercise it upon the servient
estate
(2) In negative easements, from the day on which the
owner of the dominant estate forbade, by an
instrument acknowledged before a notary public,
the owner of the servient estate from executing
an act which would be lawful without the
easement.
DETERMINES HOW EASEMENT IS LOST BY PRESCRIPTION
[NCC 631 (2)]
By nonuser for 10 years
(1) With respect to discontinuous easements, this
period shall be computed from the day on which
they ceased to be used
(2) With respect to continuous easements, from the
day on which an act contrary to the same took
place
CREATION
BY TITLE
(1) Continuous and apparent easements may be
acquired by virtue of a title (NCC 620)
(2) Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, are
acquired only by virtue of a title (NCC 622)
(3) The absence of a document or proof showing the
origin of an easement which cannot be acquired
by prescription may be cured by a deed of
recognition by the owner of the servient estate or
by a final judgment (NCC 623)
(4) The existence of an apparent sign of easement
between two estates, established or maintained
by the owner of both, shall be considered as a
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title in order that the easement may continue
actively and passively.
Unless: at the time the ownership of the two
estates is divided, the contrary should be
provided in the title of conveyance of either of
them, or the sign aforesaid should be removed
before the execution of the deed. This provision
shall also apply in case of the division of a thing
owned in common by two or more persons. (NCC
624)
BY LAW (LEGAL EASEMENTS)
(1) Easements imposed by law have for their object
either public use or the interest of private persons
(NCC 634)
(2) These easements may be modified by agreement
of the interested parties, whenever the law does
not prohibit it or no injury is suffered by a third
person (NCC 636)
BY WILL OF THE OWNERS (VOLUNTARY EASEMENTS)
Every owner of a tenement or piece of land may
establish the easements which he may deem
suitable and best (NCC 688)
BY PRESCRIPTION
Continuous and apparent easements may be
acquired by prescription of 10 years (NCC 620)
LEGAL EASEMENTS
LAW GOVERNING LEGAL EASEMENTS
For public easements
(1) Special laws and regulations relating thereto (ex:
PD 1067 and PD 705)
(2) By the provisions of Chapter 2, Title VII, Book II,
NCC
For private legal easements
(1) By agreement of the interested parties whenever
the law does not prohibit it and no injury is
rd
suffered by a 3 person
(2) By the provisions of Chapter 2, title VII, Book II
VOLUNTARY EASEMENTS
(1) Every owner of a tenement or piece of land may
establish thereon the easements which he may
deem suitable, and in the manner and form
which he may deem best (NCC 688)
(2) The owner of a thing, the usufruct of which
belongs to another, may impose, without the
consent of the usufructuary, any servitudes which
will not injure the right of usufruct (NCC 689)
(3) Whenever the naked ownership belongs to one
person and the beneficial ownership to another,
no perpetual voluntary easement may be
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PROPERTY BAR OPERATIONS COMMISSION
established thereon without the consent of both
owners. (NCC 690)
(4) Consent of all co-owners is required to impose an
easement on an undivided tenement (NCC 691)
RIGHTS AND OBLIGATIONS OF OWNERS OF
DOMINANT AND SERVIENT ESTATES
RIGHT OF DOMINANT ESTATE OWNER
(1) To use the easement and exercise all rights
necessary for it (NCC 625, 626)
(a) Owner of the dominant estate is granted the
right to use the principal easement, and all
accessory servitudes
(b) Example: Easement of drawing water carries
with it the easement of right of way to the
place where water is drawn.
(c) Limitation: Only for the original immovable
and the original purpose
(2) To do at his expense, all necessary works for the
use and preservation of the easement (NCC 627)
Necessity of the works determine extent of such
works.
(3) In a right of way, to ask for change in width of
easement sufficient for needs (NCC 651)
Encarnacion v. Court of Appeals: The Court
granted the modification of the easement stating
that under the law, the needs of the dominant
property ultimately determine the width of the
passage. And these needs may vary from time to
time.
OBLIGATIONS OF DOMINANT ESTATE OWNER
(1) To use the easement for the benefit of immovable
and in the manner originally established (NCC
626)
If established for a particular purpose, the
easement cannot be used for a different one.
However, if established in a general way, without
specific purpose, the easement can be used for
all the needs of the dominant estate.
(2) To notify owner of servient before making repairs
and to make repairs in a manner least
inconvenient to servient estate [NCC 627(2)]
(3) Not to alter easement or render it more
burdensome
(a) Owner of dominant estate may make repairs
at his expense, but cannot alter the easement
or make it more burdensome. (NCC 627)
(b) Court allowed Central to use the right of way
to transport the additional sugar. This did not
make the easement more burdensome nor
did it alter it. What is prohibited is extending
the road or repairing it or depositing
excavations outside the area. But the
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additional use produced no such effects.
(Valderama v. North Negros)
(4) To contribute to expenses of works necessary for
use and preservation of servitude, if there are
several dominant estates, unless he renounces his
interest (NCC 628)
(a) The contribution is in proportion to the
benefits which each may derive from the work
(b) Anyone who does not wish to contribute may
exempt himself by renouncing the easement
for the benefit of the others
(c) If the owner of the servient estate should
make use of the easement in any manner
whatsoever, he shall also be obliged to
contribute to the expenses in the proportion
stated, saving an agreement to the contrary
RIGHT OF SERVIENT ESTATE OWNER
(1) To retain ownership and use of his property
(a) The owner of the servient estate retains the
ownership of the portion on which the
easement is established, and may use the
same in such a manner as not to affect the
exercise of the easement. (NCC 630)
(b) Servient owner must respect the use of the
servitude, but retains ownership and use of
the same, in a manner not affecting the
easement.
(2) To change the place and manner of the use of the
easement (NCC 629)
General rule: The owner of the servient estate
cannot impair the use of the servitude
Exception:
(a) By reason of the place/manner originally
assigned, the use of such easement has
become VERY INCONVENIENT to the owner
(b) The easement should prevent him from
making any important works, repairs or
improvements thereon
(c) Change must be done at his expense
(d) He offers another place or manner equally
convenient
(e) In such a way that no injury is caused by the
change to the owner of the dominant estate
or to those who may have a right to use the
easement
(3) To use the easement
May use the easement but must also contribute
proportionately to the expenses
OBLIGATIONS OF SERVIENT ESTATE OWNER
(1) Not to impair the use of the easement [NCC
629(1)]
(2) To contribute proportionately to expenses if he
uses the easement [NCC 628(2)]
Unless there is an agreement to the contrary
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PROPERTY BAR OPERATIONS COMMISSION
KINDS OF LEGAL EASEMENTS
(1) Natural drainage (NCC 637)
(2) Riparian banks (NCC 638)
(3) Drainage of buildings (NCC 674)
(4) Dam (NCC 639)
(5) Drawing water (NCC 640-41)
(6) Aqueduct (NCC 642-646)
(7) Sluice gate (647)
(8) Right of way (NCC 649-657)
(9) Party wall (NCC 658-666)
(10) Light and view (NCC 667-681)
(11) Intermediate distances (NCC 677-681)
(12) Nuisance (NCC 682-683)
(13)Lateral and subjacent support (684-687)
NATURAL DRAINAGE
(1) Lower estates are obliged to receive the waters
which naturally and without the intervention of
man descend from the higher estates (as well as
the stones or earth which they carry with them)
(2) The owner of the lower estate cannot construct
those which will impede this easement
(3) The owner of the higher estate cannot construct
those which will increase the burden.
RIPARIAN BANKS
(1) The banks of rivers and streams are subject
throughout their entire length and within a zone
of 3 meters along their margins, to the easement
of public use in the general interest of navigation,
floatage, fishing, and salvage.
(2) Estates adjoining the banks of navigable or
floatable rivers are subject to the easement of
towpath for the exclusive service of river
navigation and floatage.
(3) If it be necessary to occupy lands of private
ownership, the proper indemnity shall first be
paid.
DRAINAGE OF BUILDINGS
(1) The owner of a building is obliged to construct its
roof or covering in such manner that the rain
water shall fall on his own land or on a street or
public place, and NOT on the land of his
neighbor, even though the adjacent land may
belong to two or more persons, one of whom is
the owner of the roof.
(2) Even if it should fall on his own land, the owner
shall be obliged to collect the water in such a way
as not to cause damage to the adjacent land or
tenement.
DAM
Whenever it should be necessary to build a dam, and
the person who is to construct it is not the owner of
the banks, or lands which must support it, he may
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establish the easement of abutment of a dam, after
payment of the proper indemnity.
DRAWING WATER
(1) Compulsory easements for drawing water or for
watering animals can be imposed only for
reasons of public use in favor of a town or village,
after payment of the proper indemnity.
(2) Easements for drawing water and for watering
animals carry with them the obligation of the
owners of the servient estates to allow passage to
persons and animals to the place where such
easements are to be used, and the indemnity
shall include this service.
AQUEDUCT
(1) Any person who may wish to use upon his own
estate any water of which he can dispose shall
have the right to make it flow through the
intervening estates, with the obligation to
indemnify their owners, as well as the owners of
the lower estates upon which the waters may
filter or descend.
(2) Person desiring to make use of this right is
obliged to:
(a) To prove that he can dispose of the water and
that it is sufficient for the use for which it is
intended;
(b) To show that the proposed right of way is the
most convenient and the least onerous to
third persons;
(c) To indemnify the owner of the servient estate
in the manner determined by the laws and
regulations
(3) Easement of aqueduct for private interest cannot
be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already
existing
(4) This easement does not prevent the owner of the
servient estate from closing or fencing it, or from
building over the aqueduct in such manner as not
to cause the latter any damage, or render
necessary repairs and cleanings impossible
(5) This easement is considered as continuous and
apparent, even though the flow of the water may
not be continuous, or its use depends upon the
needs of the dominant estate, or upon a schedule
of alternate days or hours.
SLUICE GATE
(1) Constructing a stop lock or sluice gate in the bed
of the stream from which the water is to be taken,
for the purpose of improving an estate
(2) Such person may demand that the owners of the
banks permit its construction, after payment of
damages, including those caused by the new
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PROPERTY BAR OPERATIONS COMMISSION
easement to such owners and to the other
irrigators.
RIGHT OF WAY
Who may demand:
(1) The owner of the dominant estate
(2) Any person with the real right to cultivate or use
the immovable e.g. a usufructuary
Note: a lessee cannot demand such easement,
because the lessor is the one bound to maintain
him in the enjoyment of the property
Requisites:
(1) Dominant estate is surrounded by other
immovables owned by other persons
(2) There must absolutely be no access to a public
highway
(3) Even if there is access, it is difficult or dangerous
to use, or grossly insufficient
(a) Mere inconvenience in the use of an outlet
does not render the easement a necessity.
(b) An adequate outlet is one that is sufficient for
the purpose and needs of the dominant
owner, and can be established at a
reasonable expense.
(c) Does not necessarily have to be by land – an
outlet through a navigable river if suitable to
the needs of the tenement is sufficient.
(4) Isolation of the immovable is NOT due to the
dominant owner’s own acts e.g. if he constructs
building to others obstructing the old way
(5) Payment of indemnity
(a) If right of way is permanent and continuous
for the needs of the dominant estate = value
of the land + amount of damage caused to
the servient estate
(b) If right of way is limited to necessary passage
for cultivation of the estate and for gathering
crops, without permanent way = damage
caused by encumbrance.
Rules For Establishing The Right Of Way
(1) Must be established at the point LEAST
prejudicial to the servient estate (NCC 650)
(2) Insofar as consistent with the first rule, where the
distance from the dominant estate to a public
highway is shortest
(3) The criterion of least prejudice to the servient
estate must prevail over the criterion of shortest
distance although this is a matter of judicial
appreciation. While shortest distance may
ordinarily imply least prejudice, it is not always so
as when there are permanent structures
obstructing the shortest distance; while on the
other hand, the longest distance may be free of
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obstructions and the easiest or most convenient
to pass through. (Quimen v. CA)
(4) The fact that LGV had other means of egress to
the public highway cannot extinguish the said
easement, being voluntary and not compulsory.
The free ingress and egress along Mangyan Road
created by the voluntary agreement between the
parties is thus legally demandable with the
corresponding duty on the servient estate not to
obstruct the same. (La Vista Association v. CA)
(5) Width of the easement shall be that which is
sufficient for the needs of the dominant estate
(6) Easement may be changed from time to time
depending upon the needs of the dominant
tenement
(7) The width of the easement of right of way shall
be that which is sufficient for the needs of the
dominant estate, and may accordingly be
changed from time to time. (NCC 651)
(8) Necessary repairs for a permanent right of way
shall be made by the DOMINANT OWNER.
(9) A proportionate share of taxes shall be
reimbursed by the dominant owner to the
proprietor of the servient estate
(a) If the right of way is permanent, the necessary
repairs shall be made by the owner of the
dominant estate. A proportionate share of the
taxes shall be reimbursed by said owner to
the proprietor of the servient estate (NCC
654)
(10) In cases where the dominant estate needing the
right of way is acquired by sale, exchange or
partition and the Estate is surrounded by other
estates owned by the vendor, exchanger or co-
owner
(11) Vendor, exchanger or co-owner shall grant the
right of way WITHOUT INDEMNITY
(a) Granting the servitude without indemnity is a
tacit condition of the sale, exchange or
partition: each party receives something
(12) Donor (simple donation) must still be
indemnified for right of way
(a) Grantor receives nothing from the grantee,
therefore no implied condition as to a right of
way is constituted
(13)If the land of the grantor is the one which
becomes isolated, he may demand right of way
after paying an indemnity
(a) Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other
estates of the vendor, exchanger, or co-owner,
he shall be obliged to grant a right of way
without indemnity. In case of a simple
donation, the donor shall be indemnified by
the donee for the establishment of the right of
way. (NCC 652)
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PROPERTY BAR OPERATIONS COMMISSION
Extinguishment
(1) Owner has joined the dominant estate to another
abutting the public road
(2) A new road is opened giving access to the
isolated estate
(3) Extinguishment is NOT automatic. The owner of
the servient estate must ask for such
extinguishment
(4) Indemnity paid to the servient owner must be
returned:
(a) If easement is permanent: value of the land
must be returned
(b) If easement is temporary: nothing to be
returned
Special Rights Of Way
(1) Right of way to carry materials for the
construction, repair, improvement, alteration or
beautification of a building through the estate of
another
(2) Right of way to raise on another’s land
scaffolding or other objects necessary for the
work
(a) If it be indispensable for the construction,
repair, improvement, alteration or
beautification of a building, to carry materials
through the estate of another, or to raise
therein scaffolding or other objects necessary
for the work, the owner of such estate shall be
obliged to permit the act, after receiving
payment of the proper indemnity for the
damage caused him. (NCC 656)
(3) Right of way for the passage of livestock known
as animal path, animal trail, watering places,
resting places, animal folds (NCC 657)
(a) Easements of the right of way for the passage
of livestock known as animal path, animal
trail or any other, and those for watering
places, resting places and animal folds, shall
be governed by the ordinances and
regulations relating thereto, and, in the
absence thereof, by the usages and customs
of the place.
(b) Without prejudice to rights legally acquired,
the animal path shall not exceed in any case
the width of 75 meters, and the animal trail
that of 37 meters and 50 centimeters.
(c) Whenever it is necessary to establish a
compulsory easement of the right of way or
for a watering place for animals, the
provisions of this Section and those of Articles
640 and 641 shall be observed. In this case
the width shall not exceed 10 meters
PARTY WALL
Refers to all those mass of rights and obligations
emanating from the existence and common
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enjoyment of wall, fence, enclosures or hedges, by When existence of exterior sign is presumed (NCC
the owners of adjacent buildings and estates 660)
separated by such objects (1) Whenever in the dividing wall of buildings there is
a window or opening
Nature (2) Whenever the dividing wall is, on one side,
(1) A common wall which separates two estates, straight and plumb on all its facement, and on
built by common agreement at the dividing line the other, it has similar conditions on the upper
such that it occupies a portion of both estates on part, but the lower part slants or projects
equal parts outward
(2) A party wall is a co-ownership (a kind of (3) Whenever the entire wall is built within the
compulsory co-ownership) boundaries of one of the estates
(a) Each owner owns part of the wall but it (4) Whenever the dividing wall bears the burden of
cannot be separated from the other portions the binding beams, floors and roof frame of one
belonging to the others. A party wall has a of the buildings, but not those of the others
special characteristic that makes it more of an (5) Whenever the dividing wall between courtyards,
easement as it is called by law gardens, and tenements is constructed in such a
(b) An owner may use a party wall to the extent way that the coping sheds the water upon only
of the ½ portion on his property. one of the estates
(6) Whenever the dividing wall, being built of
Co-Ownership Party Wall masonry, has stepping stones, which at certain
intervals project from the surface on one side
Before division of shares, Shares of the co-owners only, but not on the other
a co-owner cannot point cannot be physically (7) Whenever lands enclosed by fences or live
to any definite portion of segregated but they can hedges adjoin others which are not enclosed
the property as belonging be physically identified
to him Note: The deposit of earth or debris on one side
alone is an exterior sign that the owner of that
None of the co-owners No such limitation
side is the owner of the ditch or drain. The
may use the community
presumption is an addition to those enumerated
property
in NCC 660.
for his exclusive benefit
because he would be
invading the rights of the
Demolition of building supported by party wall
others
(1) An owner may also renounce his part ownership
In a co-ownership, partial Any owner may free of a party wall if he desires to demolish his
renunciation himself from contributing building supported by the wall.
is allowed to the cost of repairs and (2) He shall bear all the expenses of repairs and work
construction of a party necessary to prevent any damage which the
wall by renouncing all his demolition may cause to the party wall.
rights thereto
Increasing height of party wall
When existence of easement of party wall presumed An owner is given the right to increase the height of a
(1) In dividing walls of adjoining buildings up to the party wall subject to the following conditions:
point of common elevation (1) He must do so at his own expense;
(2) In dividing walls of gardens or yards situated in (2) He must pay for any damage which may be
cities, or towns, or in rural communities caused thereby even if the damage is temporary;
(3) In fences, walls and live hedges dividing rural (3) He must bear the cost of maintaining the portion
lands added;
(4) He must pay the increased cost of preservation of
Note: may be rebutted by a title or exterior sign, the wall
or any other proof showing that the entire wall in
controversy belongs exclusively to one of the Proportional use of party wall
adjoining property-owners The part owners share in the expenses of
maintaining a party wall in proportion to the interest
of each

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LIGHT AND VIEW
Definition
(1) Easement of light (jus luminum) is the right to
admit light from the neighboring estate by virtue
of the opening of a window or the making of
certain openings
(2) Easement of view (jus prospectus) is the right to
make openings or windows, to enjoy the view
through the estate of another and the power to
prevent all constructions or works which would
obstruct such view or make the same difficult.
(a) Necessarily includes the easement of light
(b) It is possible to have light only without view
Nature
(1) Positive: Opening a window through a party wall
When a part owner of a party wall opens a
window therein, such act implies the exercise of
the right of ownership by the use of the entire
thickness of the wall = invasion of the right of the
other part owners / violation of the right to
proportional use of the party wall.
(2) Negative: Formal prohibition upon the owner of
the adjoining land or tenement
(a) When a person opens a window on his own
building, he does nothing more than
exercise an act of ownership on his property.
(i) Does not establish an easement
(b) Coexistent is the right of the owner of the
adjacent property to build on his own land,
even if such structures cover the window
(c) If the adjacent owner does not build
structures to obstruct the window, such is
considered mere tolerance and NOT a
waiver of the right to build.
(d) An easement is created only when the
owner opens up a window, prohibits or
restrains the adjacent owner from doing
anything, which may tend to cut off or
interrupt the light + prescriptive period
Easement against Direct view
(1) Acquired by the person who opens the window
(2) The following structures cannot be built without
following the prescribed distances
(a) Window, apertures, balconies and other
projections with a direct view upon or towards
an adjoining land must have a distance of 2
METERS between the wall and the contiguous
property.
(b) For structures with a side or oblique view (at
an angle from the boundary line), there
should be a distance of 60 centimeters.
(c) Measured from:
(i) The outer line of the wall if the openings
do not project
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PROPERTY BAR OPERATIONS COMMISSION
(ii) The outer line of the openings if they
project
(iii) The dividing line between the two
properties in cases of oblique view
(d) If distances are not complied with:
(i) Windows are considered unlawful
openings
(ii) Owner may be ordered by the Court to
close them
(iii) Even if the adjoining owner does not
object to the construction of such
structures at first, he cannot be held to
be in estoppel, except if 10-year period of
acquisitive prescription has passed.
(iv) Does not give rise to prescription
(v) Mere opening of the window in violation
of the distances does not give rise to the
easement of light and view by
prescription
(3) In buildings separated by a public way or alley,
not less than 3 meters wide, the distances
required (2 m, 60 cm) do not apply
(4) If an easement is acquired to have direct views,
balconies or belvederes, the owner of the servient
estate must not build at less than 3 meters from
the boundary line of the two tenements.
(a) The distances may be stipulated by the
parties, but should not be less than what is
prescribed by the law (2 meters and 60 cm)
Exception to Easement Vs. Direct View
(1) Owners of a wall (not a party wall) adjoining a
tenement of another can make openings to admit
light without complying with the distance
requirements SO LONG AS:
(a) Openings are made at the height of the
ceiling joists (horizontal beams) or
immediately under the ceiling
(i) Size: 30 cm square
(ii) With iron grating imbedded in the wall
(iii) With a wire screen
(2) But owner of the adjoining estate can close the
opening if:
(a) He acquires part ownership of the party wall
(b) He constructs a building or raises a wall on his
land, unless an easement of light has been
acquired
(3) If requirements are not complied with, the owner
of the adjoining estate may compel the closure of
the opening.
(4) The action to compel the closing of the opening
may prescribe if the opening is permitted without
protest.
(a) BUT prescription of the action to compel the
closure of the opening DOES NOT MEAN that
the servitude of light and view has been
acquired.
UP COLLEGE OF LAW
(b) Period of acquisitive prescription will only
start to run from the time the owner asserting
the servitude has forbidden the owner of the
adjoining tenement from doing something he
could lawfully do.
(c) THUS, although the action to compel the
closure might have prescribed, the owner of
the adjoining estate may still build on his own
land a structure which might obstruct the
view.
INTERMEDIATE DISTANCES (NCC 677)
NCC 677, in effect, establishes an easement in favor
of the State. The general prohibition is dictated by
the demands of national security.
The following must comply with the regulations or
customs of the place:
(1) Construction of aqueduct, well, sewer, etc. (678)
Constructions which by reason of their nature or
products are dangerous or noxious
(2) Planting of trees (NCC 679)
(a) No trees shall be planted near a tenement or
piece of land belonging to another except at
the distance authorized by the ordinances or
customs of the place
(b) In the absence of regulations:
(i) At least 2 meters from the dividing line
of the estates if tall trees are planted
(ii) At least 50 centimeters if shrubs or
small trees are planted
(c) In case of violation, a landowner shall have
the right to demand the uprooting of the
plant even if it has grown spontaneously.
Branches, roots, and fruits:
(1) If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard,
the owner of the latter shall have the right to
demand that they be cut-off
(2) If it be the roots of a neighboring tree which
should penetrate into the land of another, the
latter may cut them off himself within his
property
(3) Fruits naturally falling upon adjacent land belong
to the owner of said land.
NUISANCE
A nuisance is any act, omission, establishment,
business, condition of property, or anything else
which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
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PROPERTY BAR OPERATIONS COMMISSION
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of
water; or
(5) Hinders or impairs the use of property.
LATERAL AND SUBJACENT SUPPORT
(1) The proprietor is prohibited from making
dangerous excavations.
(a) No proprietor shall make such excavations
upon his land as to deprive any adjacent land
or building of sufficient lateral or subjacent
support.
(2) Easement of lateral and subjacent support is
deemed essential to the stability of buildings
(3) Support is lateral when the supported and
supporting lands are divided by a vertical plane.
(4) Support is subjacent when the supported land is
above and the supporting land is beneath it.
MODES OF ACQUIRING EASEMENT
BY TITLE
Juridical act which gives rise to the servitude (e.g.
law, donations, contracts or wills)
(1) If easement has been acquired but no proof of
existence of easement available, and easement is
one that cannot be acquired by prescription
The defect may be cured by:
(a) Deed of recognition by owner of servient estate:
By affidavit or a formal deed acknowledging
the servitude
(b) By final judgment: Owner of the dominant
estate must file a case in Court to have the
easement declared by proving its existence
through other evidence
(2) Existence of an apparent sign considered as title
Illustration: The presence of 4 windows was
considered an apparent sign which created a
negative easement of light and view (altius non
tollendi) i.e. not to build a structure that will
cover the windows. (Amor v. Florentino)
BY PRESCRIPTION
Requisites
(1) Easement must be continuous and apparent.
(2) Easement must have existed for 10 years.
(3) NO NEED for good faith or just title.
EXTINGUISHMENT OF EASEMENTS
(1) By merger in the same person of the ownership of
the dominant and servient estates
(2) By nonuser for ten years
(3) When either or both of the estates fall into such
condition that the easement cannot be used
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(4) By the expiration of the term or the fulfillment of
the condition, if the easement is temporary or
conditional
(5) By the renunciation of the owner of the dominant
estate;
(6) By the redemption agreed upon between the
owners of the dominant and servient estates
MERGER
Must be absolute, perfect and definite, not merely
temporary
(1) Absolute: Ownership of the property must be
absolute, thus not applicable to lease, usufruct,
etc.
(2) Perfect: Merger must not be subject to a
condition
(3) If the merger is temporary, there is at most a
suspension of the easement, but no
extinguishment.
BY NON-USER FOR 10 YEARS
(1) Owner of dominant estate does not exercise right
over easement.
(2) Inaction, not outright renunciation.
(3) Due to voluntary abstention by the dominant
owner, and not due to a fortuitous event
(4) Computation of the period
(a) Discontinuous easements: counted from the
day they ceased to be used
(b) Continuous easements: counted from the day
an act adverse to the exercise of the easement
took place
(i) E.g. in an easement of light and view,
the erection of works obstructing the
servitude would commence the period of
prescription
(5) Use by a co-owner of the dominant estate bars
prescription with respect to the others
(6) Servitudes not yet exercised cannot be
extinguished by non-user
(a) An easement must have first been used,
before it can be extinguished by inaction.
EXTINGUISHMENT BY IMPOSSIBILITY OF USE
(1) Impossibility referred to must render the entire
easement unusable for all time.
(2) Impossibility of using the easement due to the
condition of the tenements (e.g. flooding) only
suspends the servitude until it can be used again.
(3) Except: If the suspension exceeds 10 years, the
easement is deemed extinguished by non-user
EXPIRATION OF THE TERM OR FULFILLMENT OF
RESOLUTORY CONDITION
Applicable only to voluntary easements
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RENUNCIATION OF THE OWNER OF THE DOMINANT ESTATE
Must be specific, clear, express (distinguished from
non-user)
REDEMPTION AGREED UPON BETWEEN THE OWNERS
OTHER CAUSES NOT MENTIONED IN NCC 631
(1) Annulment and rescission of the title constituting
the voluntary easement
(2) Termination of the right of grantor of the
voluntary easement
(3) Abandonment of the servient estate
(a) Owner of the servient estate gives up
ownership of the easement (e.g. the strip of
land where the right of way is constituted) in
favor of the dominant estate.
(b) The easement is extinguished because
ownership is transferred to the dominant
owner, who now owns both properties.
(4) Eminent domain
(a) The government’s power to expropriate
property for public use, subject to the
payment of just compensation.
(5) Special cause for extinction of legal rights of way;
if right of way no longer necessary
(a) NCC 655
(i) If the right of way granted to a
surrounded estate ceases to be
necessary because its owner has joined it
to another abutting on a public road, the
owner of the servient estate may
demand that the easement be
extinguished, returning what he may
have received by way of indemnity. The
interest on the indemnity shall be
deemed to be in payment of rent for the
use of the easement.
(ii) The same rule shall be applied in case a
new road is opened giving access to the
isolated estate.
(iii) In both cases, the public highway must
substantially meet the needs of the
dominant estate in order that the
easement may be extinguished.
(b) Right of way ceases to be necessary:
(i) Owner of the of the dominant estate has
joined to another abutting on a public
road
(ii) A new road is opened giving access to
the isolated estate
(c) Requisite: the public highway must
substantially meet the needs of the dominant
estate in order that the easement may be
extinguished
(d) Owner of the servient estate may demand
that the easement be extinguished.
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(e) Owner of the servient estate must return

Nuisance Negligence
indemnity he received (value of the land)
where the cause of action apply where the cause of
is for continuing harm action is for harm
caused by continuing or resulting from one act
Nuisance recurrent acts which
cause discomfort or
which created
unreasonable risk of
an

annoyance to plaintiff in injury.

A nuisance is any act, omission, establishment, the use of his property.
business, condition of property, or anything else
which: CLASSES
(1) Injures or endangers the health or safety of ACCORDING TO NATURE
others; or (1) Nuisance per se or at law
(2) Annoys or offends the senses; or An act, occupation or structure which is a
(3) Shocks, defies or disregards decency or morality; nuisance at all times and under any
or circumstances, regardless of location or
(4) Obstructs or interferes with the free passage of surroundings.
any public highway or street, or any body of
water; or (2) Nuisance per accidens or in fact
(5) Hinders or impairs the use of property. (a) One that becomes a nuisance by reason of
circumstances and surroundings.
Note: To constitute a nuisance there must be an (b) It is not a nuisance by its nature but it may
arbitrary or abusive use of property or disregard of become so by reason of the locality,
commonly accepted standards set by society. surrounding, or the manner in which it is
conducted, managed, etc.
NUISANCE V. TRESPASS
Nuisance Trespass Per se Per accidence
Use of one’s own property Direct infringement of The wrong is established Proof of the act and its
in such a manner as to another’s right of by proof of the mere act. consequences.
cause injury to the property. It becomes a nuisance as
property or right or a matter of law.
interest of another, and
generally results from the
ACCORDING TO SCOPE OF INJURIOUS EFFECTS
commission of an act
Test: not the number of persons annoyed but the
beyond the limits of the
possibility of annoyance to the public by the invasion
property affected.
of its rights – the fact that it is in a public place and
Injury is consequential Injury is immediate annoying to all who come within its sphere.
(1) Public
NUISANCE V. NEGLIGENCE (a) The doing of or the failure to do something
that injuriously affects the safety, health or
Nuisance Negligence
morals of the public.
Whether it was Whether the defendant’s (b) It causes hurt, inconvenience or injury to the
unreasonable for the use of his property was public, generally, or to such part of the public
defendant to act as he unreasonable as to as necessarily comes in contact with it.
did in view of the plaintiff, without regard (2) Private
threatened danger or to foreseeability of injury. One which violates only private rights and
harm to one in plaintiff’s produces damages to but one or a few persons
position.
Liability for the resulting Liability is based on a Public Private
injury to others regardless want of proper care
of the degree of care or Affects the individual or
Affects the public at
skill exercised to avoid a limited number of
large
such injury. individuals only
Need not affect the
Principles ordinarily apply Principles ordinarily
whole community or

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Public Private LIABILITY OF TRANSFEREES

The grantee of land upon which there exists a
hurt and injure all
nuisance created by his predecessors in title is NOT
the public. It is
responsible therefore merely because he becomes
sufficient if it affects
the owner of the premises, or merely because he
the surrounding
permits it to remain.
community
generally or if the
He shall be liable if he knowingly continues the
injury is occasioned
nuisance. Generally, he is not liable for continuing it
to such part of the
in its original form, unless he has been notified of its
public as come in
existence and requested to remove it, or has actual
contact with it.
knowledge that it is a nuisance and injurious to the
rights of others.
(3) Mixed
NATURE OF LIABILITY
DOCTRINE OF ATTRACTIVE NUISANCE
All persons who participate in the creation or
One who maintains on his premises dangerous
maintenance of a nuisance are jointly and severally
instrumentalities or appliances of a character likely to
liable for the injury done.
attract children in play, and who fails to exercise
ordinary care to prevent children from playing
If 2 or more persons who create or maintain the
therewith or resorting thereto, is liable to a child of
nuisance act entirely independent of one another,
tender years who is injured thereby, even if the child
and without any community of interest, concert of
is technically a trespasser in the premises.
action, or common design, each is liable only so far
as his acts contribute to the injury.
Basis of liability – The attractiveness is an invitation
to children. Safeguards to prevent danger must
For joint liability, there must be some joint or
therefore be set up.
concurrent act or community of action or duty, or the
several wrongful acts done at several times must
Note: A swimming pool or water tank is not an
have concurred in their effects as one single act to
attractive nuisance, for while it is attractive, it cannot
produce the injury complained of.
be a nuisance, being merely an imitation of the work
of nature. (Hidalgo Enterprises v. Balandan)
RIGHT TO RECOVER DAMAGES
The abatement of a nuisance does not preclude the
LIABILITY IN CASE OF NUISANCE
right of any person injured to recover damages for its
WHO ARE LIABLE
past existence. (NCC 697)
Every successive owner or possessor of property who
fails or refuses to abate a nuisance in that property
Abatement and damages are cumulative remedies.
started by a former owner or possessor is liable
therefor in the same manner as the one who created
NO PRESCRIPTION
it. (NCC 696)
The action to abate a public or private nuisance is
NOT extinguished by prescription. [NCC. 1143(2)]
LIABILITY OF CREATOR OF NUISANCE
He who creates a nuisance is liable for the resulting
REGULATION OF NUISANCES
damages and his liability continues as long as the
PUBLIC NUISANCE
nuisance continues.
Remedies
(1) There must be a breach of some duty on the part
The remedies against a public nuisance are:
of the person sought to be held liable for
(1) A prosecution under the Penal Code or any local
damages resulting from a nuisance before an
ordinance: or
action will lie against him.
(2) A civil action; or
(2) No one is to be held liable for a nuisance which
(3) Abatement, without judicial proceedings.
he cannot himself physically abate without legal
(a) It must be reasonably and efficiently exercised
action against another for that purpose.
(b) Means employed must not be unduly
(3) Where several persons, acting independently,
oppressive on individuals, and
cause damage by acts which constitute a
(c) No more injury must be done to the property
nuisance, each is liable for the damage which he
or rights of individuals than is necessary to
has caused or for his proportionate share of the
accomplish the abatement.
entire damage.

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(d) No right to compensation if property taken or
destroyed is a nuisance.
Action for abatement
(1) The district health officer shall take care that one
or all of the remedies against a public nuisance
are availed of.
(2) If a civil action is brought by reason of the
maintenance of a public nuisance, such action
shall be commenced by the city or municipal
mayor.
(3) The district health officer shall determine
whether or not abatement, without judicial
proceedings, is the best remedy against a public
nuisance.
(4) A private person may file an action on account of
a public nuisance if it is especially injurious to
himself.
General rule: Individual has no right of action against
a public nuisance. The abatement proceedings must
be instituted in the name of the State or its
representatives.
Exception: An individual who has suffered some
special damage different from that sustained by the
general public may maintain a suit in equity for an
injunction to abate it, or an action for damages which
he has sustained.
Action becomes a tort if an individual has suffered
particular harm, in which case the nuisance is treated
as a private nuisance with respect to such person.
Requisites of the right of a private individual to abate
a public nuisance
(1) That demand be first made upon the owner or
possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district
health officer and executed with the assistance of
the local police; and
(4) That the value of the destruction does not exceed
P3000.
Rules:
(1) The right must be exercised only in cases of
urgent or extreme necessity. The thing alleged to
be a nuisance must be existing at the time that it
was alleged to be a nuisance.
(2) Summary abatement must be resorted to within
a reasonable time after knowledge of the
nuisance is acquired or should have been
acquired by the person entitled to abate.
(3) Person who has the right to abate must give
reasonable notice of his intention to do so, and
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PROPERTY BAR OPERATIONS COMMISSION
allow thereafter a reasonable time to enable the
other to abate the nuisance himself.
(4) Means employed must be reasonable and for any
unnecessary damage or force, the actor will be
liable. Right to abate is not greater than the
necessity of the case and is limited to the removal
of only so much of the objectionable thing as
actually causes the nuisance.
(5) Abatement must be approved by the district
health officer.
(6) Property must not be destroyed unless it is
absolutely necessary to do so.
(7) Right must always be exercised with the
assistance of local police so as not to disturb the
public peace.
PRIVATE NUISANCE
Remedies
The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
(a) The procedure for extrajudicial abatement of
a public nuisance by a private person be
followed
(b) Person extrajudicially abating a nuisance
liable for damages if:
(i) If he causes unnecessary injury
(ii) If an alleged nuisance is later declared
by the courts to be not a real nuisance
Remedies of property owner
A person whose property is seized or destroyed as a
nuisance may resort to the courts to determine
whether or not it was in fact a nuisance.
(1) Action for replevin
(2) Enjoin the sale or destruction of the property
(3) Action for the proceeds of its sale and damages if
it has been sold
(4) Enjoin private parties from proceeding to abate a
supposed nuisance
Modes of Acqiring Ownership
MODES OF ACQUIRING OWNERSHIP: (OLDTIPS)
(1) Occupation
(2) Law
(3) Donation
(4) Tradition
(5) Intellectual Property
(6) Prescription
(7) Succession
Mode is a specific cause which produces dominion
and other real rights as a result of the co-existence of
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special status of things, capacity and intention of The owner of a swarm of bees shall have a right to
persons and fulfillment of the requisites of law. pursue them to another’s land, indemnifying the
possessor of the latter for the damage.
Title is every juridical right which gives a means to
the acquisition of real rights but in itself is If the owner has not pursued the swarm, or ceases to
insufficient to produce them. do so within 2 consecutive days, the possessor of the
land may occupy or retain the same.
Ownership is not transferred by contract merely but
by tradition or delivery. Contracts only constitute The 20 days to be counted from their occupation by
titles or rights to transfer or acquisition of ownership, another person. This period having expired, they
while delivery is the mode of accomplishing the shall pertain to him who has caught and kept them.
same.
Occupation of domesticated animals
Mode Title Wild animals are possessed only while they are
under one's control; domesticated or tamed animals
Directly and immediately Serves merely to give the are considered domestic or tame if they retain the
produces a real right occasion for its acquisition habit of returning to the premises of the possessor.
or existence
Pigeons and fish
Cause Means
Pigeons and fish which from their respective
Proximate cause Remote cause breeding places pass to another pertaining to a
Essence of the right Means whereby that different owner shall belong to the latter, provided
which is to be created or “essence” is transmitted they have not been enticed by some artifice or fraud.
transmitted
Hidden treasure
He who by chance discovers hidden treasure in
OCCUPATION
another’s property: ½ shall be allowed to the finder.
Note: Ownership of land cannot be acquired by
occupation
If the finder is a trespasser, he shall not be entitled to
any share of the treasure.
REQUISITES
(a) Corporeal personal property
If the things found be of interest to science or the
(b) Property susceptible of appropriation
arts, the State may acquire them at their just price,
(c) Seizure with intent to appropriate
which shall be divided in conformity with the rule
(d) Res nullius (no owner) or res derelict (abandoned
stated
property)
(e) Observance of conditions prescribed by law
Lost movables; procedure after finding lost movables
Whoever finds a movable, which is not treasure, must
KINDS
return it to its previous possessor.
Of Animals
(1) Wild or feral animals – seizure (hunting/fishing)
If unknown, the finder shall immediately deposit it
in open season by means NOT prohibited
with the mayor of the city or municipality where the
(2) Tamed/domesticated animals – General Rule:
finding has taken place.
belong to the tamer, but upon recovering
freedom, are susceptible to occupation UNLESS
The finding shall be publicly announced by the
claimed within 20days from seizure by another
mayor for two consecutive weeks in the way he
(3) Tame/domestic animals – not acquired by
deems best.
occupation EXCEPT when ABANDONED
If the movable cannot be kept without deterioration,
Of Other Personal Property
or without expenses which considerably diminish its
(1) Abandoned – may be acquired
value, it shall be sold at a public auction eight days
(2) Lost
after the publication.
(3) Hidden treasure – finder gets ½ by occupation;
landowner gets ½ by accession; EXCEPT in CPG
Six months from the publication having elapsed
system, share goes to the partnership
without the owner having appeared, the thing found,
or its value, shall be awarded to the finder. The finder
SPECIAL RULES
Occupation of a swarm of bees

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and the owner shall be obliged, as the case may be, WHAT MAY NOT BE DONATED
to reimburse the expenses. Future property
(1) Donations cannot comprehend future property.
If the owner should appear in time, he shall be (2) “Future property” is understood anything which
obliged to pay, as a reward to the finder, one-tenth the donor cannot dispose of at the time of the
of the sum or of the price of the thing found. donation.

DONATION KINDS OF DONATIONS

Donation is an act of liberality whereby a person As to its taking effect
disposes gratuitously of a thing or right in favor of (1) Donation Inter Vivos (NCC 729)
another, who accepts it. Donation which shall take effect during the
lifetime of the donor, though the property shall
OTHER INSTANCES CONSIDERED AS DONATION not be delivered till after the donor's death
(1) When a person gives to another a thing or right
on account of the latter's merits or of the services Takes effect independently of the donor’s death
rendered by him to the donor, provided they do
not constitute a demandable debt Irrevocable EXCEPT for the ff grounds:
(2) When the gift imposes upon the donee a burden (a) Subsequent birth of the donor’s children
which is less than the value of the thing given (b) Donor’s failure to comply with imposed
conditions
NATURE (c) Donee’s ingratitude
(1) BILATERAL contract creating UNILATERAL (d) Reduction of donation by reason of
obligations on the donor’s part inofficiousness
(2) Requires CONSENT of BOTH donor and donee
though it produces obligations only on the side of (2) Donation by Reason of Marriage/ Donation Propter
the DONOR Nuptias (FC 86)
Requisites
Requisites (a) Must be made BEFORE the celebration of
(1) CONSENT and CAPACITY of the parties marriage
(2) ANIMUS DONANDI (intent to donate) (b) Made in CONSIDERATION of the marriage
(3) DELIVERY of thing donated (c) Made in FAVOR of ONE or BOTH of the future
(4) FORM as prescribed by law spouses
(5) IMPOVERISHMENT of donor’s patrimony and
ENRICHMENT on part of donee Ordinary v. Propter Nuptias
Ordinary Propter Nuptias
WHAT MAY BE DONATED
All present property or part thereof of the donor Express acceptance
(1) Provided he reserves, in full ownership or
usufruct, sufficient means for support of himself Necessary Not required
and all relatives entitled to be supported by As to minors
donor at the time of acceptance
(2) Provided that no person may give or receive by Can’t be made by minors May be made by minors
way of donation, more than he may give or (FC 78)
receive by will (NCC 752); also, reserves property As to future property
sufficient to pay donor’s debts contracted before
donation, otherwise, donation is in fraud of Cannot include future May include future
creditors (NCC 759, 1387) property property (same rule as
(3) If donation exceeds the disposable or free portion wills)
of his estate, donation is inofficious Limit as to donation of present property
(4) EXCEPTIONS:
(a) Donations provided for in marriage No limit to donation of If present property is
settlements between future spouses – not present property provided donated and property
more than 1/5 of present property legitimes are not impaired regime is ACP, limited to
(b) Donation propter nuptias by an ascendant 1/5
consisting of jewelry, furniture or clothing not Grounds for revocation
to exceed 1/10 of disposable portion
Law on donations FC 86

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Causes for revocation of donation propter nuptias: Inter vivos Mortis causa
(1) If the marriage is not celebrated or judicially
declared void ab initio, except donations of the donor the donor, the donation
made in the marriage settlements being effective only after
(2) When the marriage takes place without the the death of donor.
consent of the parents or guardian, as Acceptance during the
required by law; donor’s lifetime is
(3) When the marriage is annulled, and the premature and
donee acted in bad faith; ineffective because there
(4) Upon legal separation, the donee being the can be no contract
guilty spouse; regarding future
(5) If it is with a resolutory condition and the inheritance
condition is complied with;
(6) When the donee has committed an act of As to transfer of ownership for right of disposition
ingratitude as specified by the provisions of Ownership is immediately
the Civil Code on donations in general. transferred. Delivery of Ownership is transferred
Donation between spouses possession is allowed after death
GENERAL RULE: Every donation or grant of after death
gratuitous advantage, direct or indirect, between
the spouses during the marriage shall be void. As to revocation
The prohibition applies to persons living together Irrevocable – may be Revocable upon the
as husband and wife without a valid marriage revoked only for the exclusive will of the donor
reasons provided in CC
EXCEPTION: Moderate gifts which the spouses 760, 764, 765
may give each other on the occasion of any family
As to reduction or suppression
rejoicing.
When it is excessive or When it is excessive or
(3) Donation Mortis Causa (NCC 728) inofficious, being inofficious, it is reduced
(a) Becomes effective upon the death of donor preferred, it is reduced first, or even suppressed
(b) Donor’s death ahead of the donee is a only after the donations
suspensive condition for the existence of the mortis causa had been
donation reduced or exhausted

Characteristics: Note:
(a) Transferor retains ownership and control of (a) NATURE of the act, whether it’s one of
the property while alive disposition or of execution, is CONTROLLING
(b) Transfer is revocable at will before his death to determine whether the donation is mortis
(c) Transfer will be VOID if the transferor should causa or inter vivos.
survive the transferee (b) What is important is the TIME of TRANSFER
of ownership even if transfer of property
Inter Vivos v. Mortis Causa donated may be subject to a condition or a
Inter vivos Mortis causa term.
(c) Whether the donation is inter vivos or mortis
As to formalities causa depends on whether the donor
Executed and accepted Must be in the form of a intended to transfer ownership over the
with formalities will, with all the properties upon the execution of the deed.
prescribed by CC formalities for the validity (Gestopa v. CA; Austria-Magat v. CA)
of wills
As to cause or consideration
As to effectivity (1) Simple - made out of pure liberality or because of
Effective during the Effective after the death the merits of the donee
lifetime of the donor of the donor (2) Remuneratory - made for services already
rendered to the donor
As to acceptance (3) Onerous - imposes a BURDEN inferior in value to
Acceptance must be Acceptance must be property donated
made during the lifetime made after the death of (a) Improper - burden EQUAL in value to property
donated

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(b) Sub-modo or modal - imposes a prestation
upon donee as to how property donated will
be applied
(c) Mixed donations – e.g. sale for price lower
than value of property
As to effectivity or extinguishment
(1) Pure – donation is without conditions or periods
(2) Conditional – donation is subject to suspensive or
resolutory conditions
(3) With a term
FORMALITIES REQUIRED
How made and accepted
Movables (NCC 748)
(1) The donation of a movable may be made orally or
in writing.
(2) Oral donation: requires the simultaneous delivery
of the thing or of the document representing the
right donated.
(3) If the value of the movable donated exceeds
P5000, the donation and the acceptance should
be in writing, otherwise, donation is void
Immovables (NCC 749)
(1) Must be in a public instrument specifying
donated property and burdens assumed by the
done
(2) Acceptance must be either:
(a) In the same instrument or
(b) In another public instrument notified to the
donor in authentic form and noted in both
deeds
(3) Exceptions:
(a) Donations propter nuptias – need no express
acceptance
(b) Onerous donations – form governed by the
rules of contracts
Perfection
Acceptance
(1) Donation is perfected upon the donor’s learning
of the acceptance
(2) Acceptance may be made during the lifetime of
both donor and donee
Who May Accept
Donee: must accept personally or through an
authorized person with special power for the purpose
(NCC 745)
Time Of Acceptance
During lifetime of donor and donee
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PROPERTY BAR OPERATIONS COMMISSION
QUALIFICATIONS OF DONOR, DONEE
Who May Give Donations
All persons who may contract and dispose of their
property may make a donation (NCC 735)
NOTE:
(1) Donor’s capacity shall be determined as of the
time of the making of the donation. (NCC 737)
(2) Capacity to donate is required for donations inter
vivos and NOT mortis causa
(3) Donor’s capacity determined as of the time of the
donation. Subsequent incapacity is immaterial.
Who May Receive Donations
(1) All who are not specially disqualified by law (NCC
738)
(2) Minors and others who cannot enter into a
contract: acceptance made through their parents
or legal representatives (NCC 741)
(3) Donations made to conceived and unborn
children: accepted by those persons who would
legally represent them if they were already born
(NCC 737)
Who May Not Give or Receive Donations
By reason of public policy (NCC 739)
(1) Those made between persons guilty of adultery
or concubinage at the time of donation
(2) Those made between persons guilty of the same
criminal offense if the donation is made in
consideration thereof
(3) Those made to a public officer, his spouse,
descendants, and/or ascendants by reason of the
office
By reason of donee’s unworthiness [NCC 1032 and 1027
except (4)]
NCC 1032:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a
crime for which the law prescribes imprisonment
for six years or more, if the accusation has been
found groundless;
(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report
it to an officer of the law within a month, unless
the authorities have already taken action; this
prohibition shall not apply to cases wherein,
according to law, there is no obligation to make
an accusation;
(5) Any person convicted of adultery or concubinage
with the spouse of the testator;
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(6) Any person who by fraud, violence, intimidation,
or undue influence should cause the testator to
make a will or to change one already made;
(7) Any person who by the same means prevents
another from making a will, or from revoking one
already made, or who supplants, conceals, or
alters the latter's will;
(8) Any person who falsifies or forges a supposed will
of the decedent.
NCC 1027:
(a) The priest who heard the confession of the
testator during his last illness, or the minister of
the gospel who extended spiritual aid to him
during the same period
(b) The relatives of such priest or minister of the
gospel within the fourth degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister may
belong
(c) A guardian with respect to testamentary
dispositions given by a ward in his favor before
the final accounts of the guardianship have been
approved, even if the testator should die after the
approval thereof; nevertheless, any provision
made by the ward in favor of the guardian when
the latter is his ascendant, descendant, brother,
sister, or spouse, shall be valid
(d) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his
last illness
(e) Individuals, associations and corporations not
permitted by law to inherit
By reason of prejudice to creditors or heirs (voidable)
EFFECTS OF DONATION/LIMITATIONS
In general
(1) Donee may demand actual delivery of thing
donated
(2) Donee is SUBROGATED to rights of donor in the
property donated
(3) Donor NOT obliged to warrant things donated
EXCEPT in onerous donations in which case
donor is liable for eviction up to extent of burden
(ART. 754)
(4) Donor is liable for EVICTION or HIDDEN
DEFECTS in case of BF on his part (ART. 754)
(5) In donation propter nuptias, donor must
RELEASE property donated from mortgages and
other encumbrances UNLESS the contrary has
been stipulated
(6) Donations to several donees jointly – NO right of
accretion EXCEPT:
(a) Donor provides otherwise
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PROPERTY BAR OPERATIONS COMMISSION
(b) Donation to husband and wife jointly with
right of accretion UNLESS donor provides
otherwise
Special Provisions
Reservation by donor of power to dispose (in whole or in
part) or to encumber property donated (NCC 755)
(1) The right to dispose of some things donated, or of
some amount which shall be a charge thereon,
may be reserved by the donor
(2) But if he should die without having made use of
this right, the property or amount reserved shall
belong to the donee.
Donation of naked ownership to one donee and
usufruct to another (NCC 756)
(1) May be donated
(2) Provided all the donees are living at the time of
the donation
Conventional reversion in favor of donor or other person
(NCC 757)
(1) In favor of donor, for any case and circumstance
(2) In favor of other persons who must be living at
the time of donation
(3) If rule is violated, reversion is void but donation is
not nullified
Payment of donor’s debt (NCC 758)
(1) If expressly stipulated - donee to pay only debts
contracted before the donation unless specified
otherwise. But in no case shall donee be
responsible for debts exceeding value of property
donated unless clearly intended
(2) if there’s no stipulation - donee answerable only
for donor’s debt only in case donation is in fraud
of creditors
Illegal or impossible conditions (NCC 1183)
(1) Impossible conditions, those contrary to good
customs or public policy and those prohibited by
law shall annul the obligation which depends
upon them.
(2) If the obligation is divisible, that part thereof
which is not affected by the impossible or
unlawful condition shall be valid.
(3) The condition not to do an impossible thing shall
be considered as not having been agreed upon.
Double donations
Rule: Priority in time, priority in right
(1) If movable – one who first took possession in
good faith
(2) If immovable – one who recorded in registry of
property in good faith
(a) no inscription, one who first took
possession in good faith
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(b) in absence thereof, one who can
present oldest title
Excessive/Inofficious Donations
A donation in which a person gives or receives more
than what he may give or receive by will (NCC 752)
Donation inter vivos, made by a person having no
children or descendants, legitimate or legitimated by
subsequent marriage, or illegitimate, may be
revoked or reduced by the happening of any of these
events:
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate children,
even though they be posthumous;
(2) If the child of the donor, whom the latter believed
to be dead when he made the donation, should
turn out to be living;
(3) If the donor subsequently adopt a minor child
The donation shall be revoked or reduced insofar as
it exceeds the portion that may be freely disposed of
by will, taking into account the whole estate of the
donor at the time of the birth, appearance or
adoption of a child
In fraud of creditors (NCC 759)
(1) Donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did
not reserve sufficient property to pay his debts
prior to the donation
(2) Donee shall be responsible therefor only when
the donation has been made in fraud of creditors
VOID DONATIONS (NCC 739-740, 1027)
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the
donation;
NOTE: The action for declaration of nullity may
be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be
proved by preponderance of evidence in the same
action
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.

Inofficious Donations (4) Those made to persons incapacitated to succeed

(1) Shall be reduced with regard to the excess; by will [Art 1027]
(2) But this reduction shall not prevent the donations
from taking effect during the life of the donor, nor REVOCATION AND REDUCTION
shall it bar the donee from appropriating the
fruits Revocation Reduction
(3) Only those who at the time of the donor's death
Total, whether the
have a right to the legitime and their heirs and Made insofar as the
legitime is impaired or
successors in interest may ask for the reduction legitime is prejudiced
not
or inofficious donations
(4) If, there being two or more donations, the Benefits the donor’s heirs
disposable portion is not sufficient to cover all of (except when made on
Benefits the donor
them, those of the more recent date shall be the ground of the
suppressed or reduced with regard to the excess. appearance of a child)

Scope of amount (NCC 750-752) Reduction

(1) The donations may comprehend all the present
property of the donor, or part thereof
Provided he reserves, in full ownership or in
usufruct, sufficient means for the support of
himself, and of all relatives who, at the time of
the acceptance of the donation, are by law
entitled to be supported by the donor
(2) Donations cannot comprehend future property.
Future property is understood anything which the
donor cannot dispose of at the time of the
donation
(1) Inofficiousness
A donation in which a person gives or receives
more than what he may give or receive by will is
inofficious (NCC 752)
(2) Subsequent birth, reappearance of child or
adoption of minor by donor
Effects:
(1) Donation is VALID if not exceeding the free part
computed as of the birth, adoption or
reappearance of the child
(2) Donee must return the property or its value at the
time of the donation
(3) Fruits to be returned from the filing of the action

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(4) Mortgages by the donee are valid but may be Effect as to fruits (NCC 768)
discharged subject to reimbursement from the When the donation is revoked for any of the causes
donee stated in NCC 760, or by reason of ingratitude, or
when it is reduced because it is inofficious, donee
Extent of revocation – only to the extent of the shall not return the fruits except from the filing of the
presumptive legitime of the child complaint
(1) If the revocation is based upon noncompliance
Prescription – 4yrs with any of the conditions imposed in the
donation, the donee shall return not only the
Revocation property but also the fruits thereof which he may
Ingratitude have received after having failed to fulfill the
In the following cases: condition
(1) If the donee should commit some offense against
the person, the honor or the property of the
donor, or of his wife or children under his parental
authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even though he should prove it, unless the crime
or the act has been committed against the donee
himself, his wife or children under his authority;
(3) If he unduly refuses him support when the donee
is legally or morally bound to give support to the
donor.

Applies to all donations EXCEPT:

(1) Mortis causa
(2) Propter nuptias
(3) Onerous

Founded on moral duty – one who received a

donation must be grateful to his benefactor

Conviction NOT necessary

Time to file action for revocation – within 1yr from

knowledge of the offense

Who may file

Donor must bring action himself; not transmissible
to his heirs

Effect of revocation on alienations and encumbrances

(NCC 766)
(1) Alienations and mortgages effected before the
notation of the complaint for revocation in the
Registry of Property shall subsist
(2) Later ones shall be void

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What may be donated

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

(2) He reserves sufficient property at the time of the

donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors, and donee may be
liable for damages
What may not be donated
(1) Future property; those which the donor cannot
dispose of at the time of the donation (Article 751)
(2) More than what he may give or receive by will
(Article 752)

If exceeds: inofficious
Donations made to several persons jointly
No accretion – one donee does not get the share of Exception: those given to husband and wife, except
the other donees who did not accept (Article 753) when the donor otherwise provides
Donor
Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property (Article 735)
(1) Guardians and trustees with respect to the
property entrusted to them (Article 736)
Donor’s capacity is determined at the time of the (2) Made between person who are guilty of adultery
making of donation (Article 737) or concubinage (Article 739)

Made between persons found guilty of the same

criminal offense, in consideration thereof (Article 739)
Donee
Who are allowed to accept donations: Those who are Who are not allowed:
not specifically disqualified by law (Article 738) (1) Made between person who are guilty of adultery
or concubinage (Article 739)
Those who are allowed, with qualifications: (2) Made between persons found guilty of the same
(1) Minors and others who are incapacitated (see criminal offense, in consideration thereof (Article
Article 38), provided that their acceptance is done 739)
through their parents or legal representatives (3) Made to a public officer or his wife, descendant
(Article 741) and ascendants, by reason of his office (Article
(2) Conceived and unborn children, provided that the 739)
donation is accepted by those who would legally (4) Those who cannot succeed by will (Article 740)
represent them if they were already born
Those made to incapacitated persons, although
simulated under the guise of another contract (Article
743)
Acceptance of the donation
Who may accept (Article 745): When to accept: during the lifetime of the donor or
(1) Donee personally donee (Article 746)

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(2) Authorized person with a special power for the

purpose or with a general sufficient power
What the donee acquires with the thing
He shall be subrogated to all the rights and actions
that would pertain to the donor in case of eviction
(Article 754)
Obligation of the donor
No obligation to warrant (Article 754) Exception: when the donation is onerous
Obligation of the donee
If the donation so states, the donee may be obliged to Exception: when contrary intention appears
pay the debts previously contracted by the donor and
in no case shall he be responsible for the debts
exceeding the value of the thing donated (Article 758)
What may be reserved by the donor
Right to dispose of some of the things donated, or of If the donor dies without exercising this right
some amount which shall be a charge thereon
Reversion
The property donated may be restored or returned to Limitation to (2): the third person would be living at
(1) Donor or his estate; or the time of the donation
(2) Another person

Revocation/Reduction
Time of Action Transmissibility Effect Liability (Fruits)
Birth, appearance, adoption
Within 4 years from birth, Transmitted to children Property returned/ value Fruits returned from the
legitimation and adoption and descendants upon (if sold)/ redeem filing of the complaint
the death of donor mortgage with right to
recover
Non-compliance with condition
Within 4 years from non- May be transmitted to Property returned, Fruits received after
compliance donor’s heirs and may be alienations and having failed to fulfill
exercised against donee’s mortgages void subject to condition returned
heirs rights of third persons in
good faith
Ingratitude
Within 1 year after Generally not transmitted Property returned, but Fruits received from the
knowledge of the fact to heirs of donor/ donee alienations and filing of the complaint
mortgages effected returned
before the notation of the
complaint for revocation
in the registry of property
subsist
Failure to reserve sufficient means for support
At any time, by the donor Reduced to the extent Donee entitled
or relatives entitled to Not transmissible necessary to provide
support support

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Time of Action Transmissibility Effect Liability (Fruits)

Inofficiousness for being in excess of what the donor can give by will
Within 5 years from the Transmitted to donor’s Donation takes effect on Donee entitled
death of the donor heirs the lifetime of donor.
Reduction only upon his
death with regard to the
excess
Fraud against creditors
Rescission within 4 years Transmitted to creditor’s Returned for the benefit Fruits returned/ if
from the perfection of heirs or successors-in- of the creditor who impossible, indemnify
donation/ knowledge of interest brought the action creditor for damages
the donation

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TRADITION
CONCEPT
It is a derivative mode of acquiring ownership and
other real rights by virtue of which, there being
intention and capacity on the part of the grantor and
grantee and the pre-existence of said rights in the
estate of the grantor, they are transmitted to the
grantee through a just title.
REQUISITES
(1) Pre-existence in the estate of the grantor of the
right to be transmitted
(2) Just cause or title for the transmission
(3) Intention on the part of the grantor to grant and
on the part of the grantees to acquire
(4) Capacity to transmit and to acquire
(5) An act which gives it outward form, physically,
symbolically, or legally
PURPOSE
(1) Ownership is transferred, among other means, by
tradition.
(2) The delivery of a thing constitutes a necessary
and indispensable requisite for the purpose of
acquiring the ownership of the same by virtue of
a contract
KINDS
(1) Real Tradition: physical delivery
(2) Constructive Tradition: when the delivery of the
thing is not real or material but consists merely in
certain facts indicative of the same
(a) Symbolical Tradition: done through the
delivery of signs or things which represent
that which is being transmitted (e.g. keys or
title itself)
(b) Tradition by public instrument: consists in the
substitution of real delivery of possession by a
public writing with the delivery of a document
which evidences the transaction
(c) Tradicio longa manu: made by the grantor
pointing out to the grantee the thing to be
delivered
(d) Tradicio brevi manu: takes place when the
grantee is already in possession of the thing
(e.g. when the lessee buys the thing leased to
him)
(e) Tradicion constitutum possessorium: similar to
brevi manu but in the opposite sense – when
the owner alienates a thing but remains in
possession in another concept as lesee or
depositary
(3) Quasi tradition: delivery of incorporeal things or
rights by the use by the grantee of his rights with
the grantor’s consent
(4) Tradicion by operation of law: delivery which is not
included in the foregoing modes of delivery and
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PROPERTY BAR OPERATIONS COMMISSION
where the delivery is effected solely by virtue of
an express provision of law
Prescription
DEFINITION
By prescription, one acquires ownership and other
real rights through the lapse of time in the manner
and under the conditions laid down by law.
In the same way, rights and conditions are lost by
prescription.
It is a means of acquiring ownership and other real
rights or losing rights or actions to enforce such
rights through the lapse of time
RATIONALE
It is purely statutory in origin. It is founded on
grounds of public policy which requires for the peace
of society, that juridical relations susceptible of
doubt and which may give rise to disputes, be fixed
and established after the lapse of a determinate time
so that ownership and other rights may be certain for
those who have claim in them
KINDS OF PRESCRIPTION
(1) Acquisitive prescription
(2) Extinctive prescription
ACQUISITIVE PRESCRIPTION
(1) The acquisition of ownership and other real rights
through possession of a thing in the manner and
condition provided by law
(2) May be ordinary or extraordinary
(a) Ordinary: requires possession of things in
good faith and with just title for the time fixed
by law.
(b) Extraordinary: acquisition of ownership and
other real rights without need of title or of
good faith or any other condition
Prescription where possession in good faith converted
into possession in bad faith:
Ordinary
(1) Movables- 4 years
(2) Immovables- 10 years
Extraordinary:
(1) Movables- 8 years
(2) Immovables- 30 years
Note: Since the period of extraordinary prescription
for movables is two times longer than ordinary
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prescription (8:4) than ordinary prescription for NO PRESCRIPTION APPLICABLE

movables and three times longer (30:10) than that
for immovables, the period of possession in good
faith should be computed twice or thrice, as the case
may be, when tacked to the possession in bad faith.
As a mode of acquisition, prescription requires
existence of following:
(1) Capacity of the claimant to acquire by
prescription;
(2) A thing capable of acquisition by prescription;
(3) Adverse possession of the thing under certain
conditions; and
(4) Lapse of time provided by law
(5) Good faith of the possessor
(6) Proof of just title
BY OFFENDER
Movables possessed through a crime can never be
acquired through prescription by the offender
REGISTERED LANDS - PD 1529 (AMENDING AND
CODIFYING THE LAWS RELATIVE TO REGISTRATION OF
PROPERTY AND FOR OTHER PURPOSES)
No title to registered land in derogation of the title of
the registered owner shall be acquired by
prescription or adverse possession
RIGHTS NOT EXTINGUISHED BY PRESCRIPTION (NCC 1143)
(1) To demand a right of way, regulated in NCC 649
(2) To bring an action to abate a public or private
nuisance

Note: ACTION TO QUIET TITLE IF PLAINTIFF IS IN POSSESSION

(1) For extraordinary prescription, only first 4 are
required
(2) Possession has to be in the concept of an owner,
public, peaceful, and uninterrupted (UPPO)
EXTINCTIVE PRESCRIPTION
The loss or extinguishment of property rights or
actions through the possession by another of a thing
for the period provided by law or through failure to
bring the necessary action to enforce one’s right
within the period fixed by law
Acquisitive Prescription Extinctive Prescription
(1) When plaintiff is in possession of the property:
the action to quiet title does not prescribe
(2) The reason is that the owner of the property or
right may wait until his possession is disturbed or
his title is assailed before taking steps to
vindicate his right
VOID CONTRACTS
(1) The action or defense for the declaration of the
inexistence of a contract does not prescribe (NCC
1410)
(2) The title is susceptible to direct as well as to
collateral attack (Ferrer v. Bautista, 1994)

Requires positive action of Requires inaction of the ACTION TO DEMAND PARTITION

the possessor (a claimant) owner out of possession No prescription shall run in favor of a co-owner or co-
who is not the or neglect of one with a heir against his co-owners or co-heirs so long as he
Owner right to bring his action expressly or impliedly recognizes the co-ownership
(NCC 494)
Applicable to all kinds of
Applicable to ownership
rights, whether real or
and other real rights PROPERTY OF PUBLIC DOMINION
personal
Prescription, both acquisitive and extinctive, does not
Vests the property and Vests the property and run against the State in the exercise of its sovereign
raise a new title in the raise a new title in the function to protect its interest EXCEPT with respect
occupant occupant to its patrimonial property which may be the object
Results in the acquisition Merely results in the loss of prescription (NCC 1113)
of ownership or other real of a real or personal right,
rights in a person as well or bars the cause of action PRESCRIPTION DISTINGUISHED FROM LACHES
as the loss of said to enforce said right Prescription Laches
ownership or real rights in
another Concerned with the fact of Concerned with the effect
delay of delay
Can be proven under the Should be affirmatively
general issue without its pleaded and proved to A question or a matter of Principally a question of
being affirmatively bar the action or claim of time inequity of permitting a
pleaded the adverse party claim to be enforced, this
inequity being founded on
some subsequent change
in the condition or the

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Prescription Laches
relation of the parties
Statutory NOT statutory
Applies at law Applies at equity
Cannot be availed of Being a defense of equity,
unless it is especially need not be specifically
pleaded as an affirmative pleaded
allegation
Based on a fixed time NOT based on a fixed
time
PRESCRIPTION OR LIMITATION OF ACTIONS
TO RECOVER MOVABLES
(1) Prescribe 8 years from the time the possession
thereof is lost (NCC 1140)
(2) However, the action shall not prosper if it is
brought after 4 years when the possessor has
already acquired title by ordinary acquisitive
prescription (NCC 1132)
(3) If the possessor acquired the movable in good
faith at a public sale, the owner cannot obtain its
return without reimbursing the price paid
TO RECOVER IMMOVABLES
(1) Real actions prescribe after 30 years (NCC 1141)
(2) UNLESS the possessor has acquired ownership of
the immovable by ordinary acquisitive
prescription through possession of 10 years (NCC
1134)
(3) Action for reconveyance
(a) Based on fraud: prescribes 4 years from the
discovery of fraud
(b) Based on implied or constructive trust: 10 years
from the alleged fraudulent registration or
date of issuance of certificate of title over the
property
OTHER ACTIONS
(1) Action to foreclose mortgage: prescribes after 10
years from the time the obligation secured by the
mortgage becomes due and demandable
(2) Actions that Prescribe in 10 Years (NCC 1144)
(a) Upon a written contract
(b) Upon an obligation created by law
(c) Upon a judgment
The computation of the period of prescription of
any cause or right of action, which is the same as
saying prescription of the action, should start
from the date the cause of action accrues or from
the day the right of the plaintiff is violated.
(Nabus v. CA, 1991)
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PROPERTY BAR OPERATIONS COMMISSION
(3) Actions that Prescribe in 6 Years (NCC 1145)
(a) Upon an oral contract
(b) Upon a quasi-contract
(4) Actions that Prescribe in 4 Years (NCC 1145)
(a) Upon an injury to the rights of the plaintiff
(b) Upon a quasi-delict
BUT when the action arises from any act of any
public officer involving the exercise of powers
arising from Martial Law including the arrest,
detention and/or trial of the plaintiff, the same
must be brought within 1 year.
(5) Actions that Prescribe in One Year or Less (NCC
1147)
(a) For forcible entry or unlawful detainer
(b) For defamation
(6) Other Actions that Prescribe in 1 Year under the
Civil Code
(a) To recover possession de facto (NCC 554 (4)]
(b) To revoke a donation on the ground of
ingratitude (NCC 769)
(c) To rescind or recover damages if immovable is
sold with non-apparent burden or servitude
[NCC 1560 (3,4)]
(d) To enforce warranty of solvency in assignment
credits (NCC 629)
(7) Where Periods of Other Actions Not Fixed in the
Civil Code and in Other Laws
All other actions whose periods are not fixed in
the Civil Code or in other laws must be brought
within 5 years from the time the right of action
accrues (NCC 1149)
(8) Interruption (NCC 1155)
The prescription of actions is interrupted when:
(a) They are filed before the court
(b) When there is a written extrajudicial demand
by the creditors
(c) When there is any written acknowledgment of
the debt by the debtor
Civil actions are deemed commenced from the
date of the filing and docketing of the complaint
with the Clerk of Court [Cabrera v. Riano (1963)]
A written extrajudicial demand wipes out the
period that has already elapsed and starts anew
the prescriptive period [The Overseas Bank of
Manila v. Geraldez, (1979)]
Not all acts of acknowledgement of a debt
interrupt prescription. To produce such effect, the
acknowledgment must be “written”, so that the
payment, if not coupled with the communication
UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION

signed by the payor would interrupt the running

of the period of prescription [PNB v. Osete (1968)]

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Definition
ARTICLE 1156
Art. 1156. An obligation is a juridical necessity to give,
to do or not to do.
Elements of an Obligation
ELEMENTS OF AN OBLIGATION [De Leon, 2003]
(1) ACTIVE SUBJECT (Obligee/Creditor): The person
who has the right or power to demand the
prestation.
(2) PASSIVE SUBJECT (Obligor/Debtor): The person
bound to perform the prestation.
(3) PRESTATION (Object): The conduct required to
be observed by the debtor/obligor (to give, to do,
or not to do).
(4) VINCULUM JURIS (Juridical or Legal Tie; Efficient
Cause): That which binds or connects the parties
to the obligation.
Different Kinds of Prestations
(1) TO GIVE: real obligation; to deliver either (1) a
specific or determinate thing, or (2) a generic or
indeterminate thing.
(2) TO DO: positive personal obligation; includes all
kinds of work or service.
(3) NOT TO DO: negative personal obligation; to
abstain from doing an act; includes the obligation
not to give.
Classification of Obligations
FROM THE VIEWPOINT OF “SANCTION”:
(1) Civil obligation (or perfect obligation) – the
sanction is judicial process
(2) Natural obligation – the sanction is the law
(3) Moral obligation (or imperfect obligation) – the
sanction is conscience or morality
FROM THE VIEWPOINT OF SUBJECT MATTER:
(1) Real obligation – obligation to give
(2) Personal obligation – obligation to do or not to
do
OBLIGATIONS BAR OPERATIONS COMMISSION
FROM THE AFFIRMATIVENESS OR
NEGATIVENESS OF THE OBLIGATION:
(1) Positive/affirmative - obligation to give or to do
(2) Negative – obligation not to do or not to give
FROM THE VIEWPOINT OF PERSONS OBLIGED:
(1) Unilateral – only one of the parties is bound
(2) Bilateral – both parties are bound
(a) Reciprocal – performance by one is
dependent on the other
(b) Non-reciprocal – performance by one is
independent of the other [Paras, 2008]
Sources of Obligations, Arts.
1156-1157
SINGLE ACT OR OMISSION CAN GIVE RISE TO
DIFFERENT CAUSES OF ACTION
Barredo vs Garcia (1942):
“…[A] concurrence of scope in regard to negligent
acts does not destroy the distinction between the
civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extra-
contractual. The same negligent act causing
damages may produce civil liability arising from a
crime... or create an action for cuasi-delito or culpa
extra-contractual.”
NATURAL OBLIGATIONS
ARTICLE 1423
Art. 1423. Obligations are civil or natural. Civil
obligations give a right of action to compel their
performance. Natural obligations, not being based
on positive law but on equity and natural law, do not
grant a right of action to enforce their performance,
but after voluntary fulfillment by the obligor, they
authorize the retention of what has been delivered or
rendered by reason thereof. Some natural
obligations are set forth in the following articles.
ARTICLE 1424
Art. 1424. When a right to sue upon a civil obligation
has lapsed by extinctive prescription, the obligor who
voluntarily performs the contract cannot recover
what he has delivered or the value of the service he
has rendered.
ARTICLE 1425
Art. 1425. When without the knowledge or against
the will of the debtor, a third person pays a debt
which the obligor is not legally bound to pay because
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the action thereon has prescribed, but the debtor
later voluntarily reimburses the third person, the
obligor cannot recover what he has paid.
ARTICLE 1426
Art. 1426. When a minor between eighteen and
twenty-one years of age who has entered into a
contract without the consent of the parent or
guardian, after the annulment of the contract
voluntarily returns the whole thing or price received,
notwithstanding the fact the he has not been
benefited thereby, there is no right to demand the
thing or price thus returned.
ARTICLE 1427
Art. 1427. When a minor between eighteen and
twenty-one years of age, who has entered into a
contract without the consent of the parent or
guardian, voluntarily pays a sum of money or delivers
a fungible thing in fulfillment of the obligation, there
shall be no right to recover the same from the
obligee who has spent or consumed it in good faith.
ARTICLE 1428
Art. 1428. When, after an action to enforce a civil
obligation has failed the defendant voluntarily
performs the obligation, he cannot demand the
return of what he has delivered or the payment of the
value of the service he has rendered.
ARTICLE 1429
Art. 1429. When a testate or intestate heir voluntarily
pays a debt of the decedent exceeding the value of the
property which he received by will or by the law of
intestacy from the estate of the deceased, the
payment is valid and cannot be rescinded by the
payer.
ARTICLE 1430
Art. 1430. When a will is declared void because it has
not been executed in accordance with the formalities
required by law, but one of the intestate heirs, after
the settlement of the debts of the deceased, pays a
legacy in compliance with a clause in the defective
will, the payment is effective and irrevocable.
EXTRA-CONTRACTUAL OBLIGATIONS
QUASI-CONTRACTS
ARTICLE 2142
Art. 2142. Certain lawful, voluntary and unilateral
acts give rise to the juridical relation of quasi-
contract to the end that no one shall be unjustly
enriched or benefited at the expense of another.
OBLIGATIONS BAR OPERATIONS COMMISSION
ARTICLE 2143
Art. 2143. The provisions for quasi-contracts in this
Chapter do not exclude other quasi-contracts which
may come within the purview of the preceding article.
Negotiorum Gestio
ARTICLE 2144
Art. 2144. Whoever voluntarily takes charge of the
agency or management of the business or property
of another, without any power from the latter, is
obliged to continue the same until the termination of
the affair and its incidents, or to require the person
concerned to substitute him, if the owner is in a
position to do so. This juridical relation does not arise
in either of these instances:
(1)When the property or business is not neglected or
abandoned;
(2) If in fact the manager has been tacitly authorized
by the owner.
In the first case, the provisions of Articles 1317, 1403,
No. 1, and 1404 regarding unauthorized contracts
shall govern.
In the second case, the rules on agency in Title X of
this Book shall be applicable.
ARTICLE 2145
Art. 2145. The officious manager shall perform his
duties with all the diligence of a good father of a
family, and pay the damages which through his fault
or negligence may be suffered by the owner of the
property or business under management.
The courts may, however, increase or moderate the
indemnity according to the circumstances of each
case.
ARTICLE 2146
Art. 2146. If the officious manager delegates to
another person all or some of his duties, he shall be
liable for the acts of the delegate, without prejudice
to the direct obligation of the latter toward the
owner of the business.
The responsibility of two or more officious managers
shall be solidary, unless the management was
assumed to save the thing or business from
imminent danger.
ARTICLE 2147
Art. 2147. The officious manager shall be liable for
any fortuitous event:
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(1) If he undertakes risky operations which the owner
was not accustomed to embark upon;
(2) If he has preferred his own interest to that of the
owner;
(3) If he fails to return the property or business after
demand by the owner;
(4) If he assumed the management in bad faith.
ARTICLE 2148
Art. 2148. Except when the management was
assumed to save property or business from imminent
danger, the officious manager shall be liable for
fortuitous events:
(1) If he is manifestly unfit to carry on the
management;
(2) If by his intervention he prevented a more
competent person from taking up the
management.
ARTICLE 2149
Art. 2149. The ratification of the management by the
owner of the business produces the effects of an
express agency, even if the business may not have
been successful.
ARTICLE 2150
Art. 2150. Although the officious management may
not have been expressly ratified, the owner of the
property or business who enjoys the advantages of
the same shall be liable for obligations incurred in
his interest, and shall reimburse the officious
manager for the necessary and useful expenses and
for the damages which the latter may have suffered
in the performance of his duties.
The same obligation shall be incumbent upon him
when the management had for its purpose the
prevention of an imminent and manifest loss,
although no benefit may have been derived.
ARTICLE 2151
Art. 2151. Even though the owner did not derive any
benefit and there has been no imminent and
manifest danger to the property or business, the
owner is liable as under the first paragraph of the
preceding article, provided:
(1) The officious manager has acted in good faith,
and
(2) The property or business is intact, ready to be
returned to the owner.
ARTICLE 2152
Art. 2152. The officious manager is personally liable
for contracts which he has entered into with third
persons, even though he acted in the name of the
OBLIGATIONS BAR OPERATIONS COMMISSION
owner, and there shall be no right of action between
the owner and third persons. These provisions shall
not apply:
(1) If the owner has expressly or tacitly ratified the
management, or
(2) When the contract refers to things pertaining to
the owner of the business.
ARTICLE 2153
Art. 2153. The management is extinguished:
(1) When the owner repudiates it or puts an end
thereto;
(2) When the officious manager withdraws from the
management, subject to the provisions of Article
2144;
(3) By the death, civil interdiction, insanity or
insolvency of the owner or the officious manager.
Solutio Indebiti
ARTICLE 2154
Art. 2154. If something is received when there is no
right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.
ARTICLE 2155
Art. 2155. Payment by reason of a mistake in the
construction or application of a doubtful or difficult
question of law may come within the scope of the
preceding article.
ARTICLE 2156
Art. 2156. If the payer was in doubt whether the debt
was due, he may recover if he proves that it was not
due.
ARTICLE 2157
Art. 2157. The responsibility of two or more payees,
when there has been payment of what is not due, is
solidary.
ARTICLE 2158
Art. 2158. When the property delivered or money paid
belongs to a third person, the payee shall comply
with the provisions of Article 1984.
ARTICLE 2159
Art. 2159. Whoever in bad faith accepts an undue
payment, shall pay legal interest if a sum of money is
involved, or shall be liable for fruits received or which
should have been received if the thing produces
fruits.
He shall furthermore be answerable for any loss or
impairment of the thing from any cause, and for
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UP COLLEGE OF LAW
damages to the person who delivered the thing, until
it is recovered.
ARTICLE 2160
Art. 2160. He who in good faith accepts an undue
payment of a thing certain and determinate shall
only be responsible for the impairment or loss of the
same or its accessories and accessions insofar as he
has thereby been benefited. If he has alienated it, he
shall return the price or assign the action to collect
the sum.
ARTICLE 2161
Art. 2161. As regards the reimbursement for
improvements and expenses incurred by him who
unduly received the thing, the provisions of Title V of
Book II shall govern.
ARTICLE 2162
Art. 2162. He shall be exempt from the obligation to
restore who, believing in good faith that the payment
was being made of a legitimate and subsisting claim,
destroyed the document, or allowed the action to
prescribe, or gave up the pledges, or cancelled the
guaranties for his right. He who paid unduly may
proceed only against the true debtor or the
guarantors with regard to whom the action is still
effective.
ARTICLE 2163
Art. 2163. It is presumed that there was a mistake in
the payment if something which had never been due
or had already been paid was delivered; but he from
whom the return is claimed may prove that the
delivery was made out of liberality or for any other
just cause.
OTHER QUASI-CONTRACTS
ARTICLE 2164
Art. 2164. When, without the knowledge of the
person obliged to give support, it is given by a
stranger, the latter shall have a right to claim the
same from the former, unless it appears that he gave
it out of piety and without intention of being repaid.
ARTICLE 2165
Art. 2165. When funeral expenses are borne by a
third person, without the knowledge of those
relatives who were obliged to give support to the
deceased, said relatives shall reimburse the third
person, should the latter claim reimbursement.
ARTICLE 2166
OBLIGATIONS BAR OPERATIONS COMMISSION
Art. 2166. When the person obliged to support an
orphan, or an insane or other indigent person
unjustly refuses to give support to the latter, any
third person may furnish support to the needy
individual, with right of reimbursement from the
person obliged to give support. The provisions of this
article apply when the father or mother of a child
under eighteen years of age unjustly refuses to
support him.
ARTICLE 2167
Art. 2167. When through an accident or other cause a
person is injured or becomes seriously ill, and he is
treated or helped while he is not in a condition to
give consent to a contract, he shall be liable to pay
for the services of the physician or other person
aiding him, unless the service has been rendered out
of pure generosity.
ARTICLE 2168
Art. 2168. When during a fire, flood, storm, or other
calamity, property is saved from destruction by
another person without the knowledge of the owner,
the latter is bound to pay the former just
compensation.
ARTICLE 2169
Art. 2169. When the government, upon the failure of
any person to comply with health or safety
regulations concerning property, undertakes to do
the necessary work, even over his objection, he shall
be liable to pay the expenses.
ARTICLE 2170
Art. 2170. When by accident or other fortuitous event,
movables separately pertaining to two or more
persons are commingled or confused, the rules on
co-ownership shall be applicable.
ARTICLE 2171
Art. 2171. The rights and obligations of the finder of
lost personal property shall be governed by Articles
719 and 720.
ARTICLE 2172
Art. 2172. The right of every possessor in good faith to
reimbursement for necessary and useful expenses is
governed by Article 546.
ARTICLE 2173
Art. 2173. When a third person, without the
knowledge of the debtor, pays the debt, the rights of
the former are governed by Articles 1236 and 1237.
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ARTICLE 2174
Art. 2174. When in a small community a nationality of
the inhabitants of age decide upon a measure for
protection against lawlessness, fire, flood, storm or
other calamity, any one who objects to the plan and
refuses to contribute to the expenses but is benefited
by the project as executed shall be liable to pay his
share of said expenses.
ARTICLE 2175
Art. 2175. Any person who is constrained to pay the
taxes of another shall be entitled to reimbursement
from the latter.
QUASI-DELICTS
ARTICLE 2176
Art. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
ARTICLE 2177
Art. 2177. Responsibility for fault or negligence under
the preceding article is entirely separate and distinct
from the civil liability arising from negligence under
the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the
defendant.
ARTICLE 2178
Art. 2178. The provisions of Articles 1172 to 1174 are
also applicable to a quasi-delict.
ARTICLE 2179
Art. 2179. When the plaintiff's own negligence was
the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was
only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the
courts shall mitigate the damages to be awarded.
ARTICLE 2180
Art. 2180. The obligation imposed by Article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by
the minor children who live in their company.
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BAR OPERATIONS COMMISSION
Guardians are liable for damages caused by the
minors or incapacitated persons who are under their
authority and live in their company.
The owners and managers of an establishment or
enterprise are likewise responsible for damages
caused by their employees in the service of the
branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
The State is responsible in like manner when it acts
through a special agent; but not when the damage
has been caused by the official to whom the task
done properly pertains, in which case what is
provided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts
and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as
they remain in their custody.
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family
to prevent damage.
ARTICLE 2181
Art. 2181. Whoever pays for the damage caused by his
dependents or employees may recover from the
latter what he has paid or delivered in satisfaction of
the claim.
ARTICLE 2182
Art. 2182. If the minor or insane person causing
damage has no parents or guardians, the minor or
insane person shall be answerable with his own
property in an action against him where a guardian
ad litem shall be appointed.
ARTICLE 2183
Art. 2183. The possessor of an animal or whoever
may make use of the same is responsible for the
damage which it may cause, although it may escape
or be lost. This responsibility shall cease only in case
the damage should come from force majeure or from
the fault of the person who has suffered damage.
ARTICLE 2184
Art. 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who was
in the vehicle, could have, by the use of the due
diligence, prevented the misfortune. It is disputably
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presumed that a driver was negligent, if he had been
found guilty or reckless driving or violating traffic
regulations at least twice within the next preceding
two months.
If the owner was not in the motor vehicle, the
provisions of Article 2180 are applicable.
ARTICLE 2185
Art. 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has
been negligent if at the time of the mishap, he was
violating any traffic regulation.
ARTICLE 2186
Art. 2186. Every owner of a motor vehicle shall file
with the proper government office a bond executed
by a government-controlled corporation or office, to
answer for damages to third persons. The amount of
the bond and other terms shall be fixed by the
competent public official.
ARTICLE 2187
Art. 2187. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar goods
shall be liable for death or injuries caused by any
noxious or harmful substances used, although no
contractual relation exists between them and the
consumers.
(1) By the explosion of machinery which has not been
taken care of with due diligence, and the
inflammation of explosive substances which have
not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to
persons or property;
(3) By the falling of trees situated at or near
highways or lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed without
precautions suitable to the place.
ARTICLE 2192
Art. 2192. If damage referred to in the two preceding
articles should be the result of any defect in the
construction mentioned in Article 1723, the third
person suffering damages may proceed only against
the engineer or architect or contractor in accordance
with said article, within the period therein fixed.
ARTICLE 2193
Art. 2193. The head of a family that lives in a building
or a part thereof, is responsible for damages caused
by things thrown or falling from the same.
ARTICLE 2194
Art. 2194. The responsibility of two or more persons
who are liable for quasi-delict is solidary.

ARTICLE 2188
Art. 2188. There is prima facie presumption of
negligence on the part of the defendant if the death
or injury results from his possession of dangerous
Nature and Effect of
weapons or substances, such as firearms and poison, Obligations
except when the possession or use thereof is
indispensable in his occupation or business.
OBLIGATION TO GIVE
A DETERMINATE OR SPECIFIC THING
ARTICLE 2189
AN INDETERMINATE OR GENERIC THING
Art. 2189. Provinces, cities and municipalities shall be
liable for damages for the death of, or injuries Specific Thing Generic Thing Limited Generic
suffered by, any person by reason of the defective Thing
condition of roads, streets, bridges, public buildings, Particularly Object is When the
and other public works under their control or designated or designated only generic objects
supervision. physically by its class/ are confined to
segregated from genus/ species. a particular
ARTICLE 2190 all other of the Debtor can give class.
Art. 2190. The proprietor of a building or structure is same class; anything of the
responsible for the damages resulting from its total identified by same class as
or partial collapse, if it should be due to the lack of individuality. long as it is of
necessary repairs. the same kind.
Cannot be Can be
ARTICLE 2191 substituted. substituted by
any of the same
Art. 2191. Proprietors shall also be responsible for
class and same
damages caused:
kind.

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Duties of the Debtor Rights of the creditor

Duties of the Debtor Rights of the creditor
To Give Specific Thing (3) To pay for damages in what should not
(1) To preserve or take (1) To compel specific case of breach have been done,
care of the thing due performance because of :
(2) To deliver the thing (2) To recover damages (a) the very nature of
itself in case of breach of the act itself;
(3) To deliver the fruits of the obligation, (b) rights acquired by
the thing exclusive or in third persons who
(4) To deliver the addition to specific acted in good
accessions and performance faith;
accessories (3) Entitlement to fruits (c) when the effects
(5) To pay for damages in and interests from of the acts
case of breach the time the prohibited are
obligation to deliver definite in
arises character and will
not cease even if
To Give Generic Thing
the thing
(1) To deliver a thing of (1) To ask for
prohibited be
the quality intended by performance of the
undone.
the parties taking into obligation
consideration the (2) To ask that the
purpose of the obligation be
BREACH OF OBLIGATIONS
obligation and other complied with by a
COMPLETE FAILURE TO PERFORM
circumstances third person at the
(2) Creditor cannot expense of the
Substantial Breach Slight or Casual Breach
demand a thing of debtor
superior quality (3) To recover damages (1) Total breach (1) Partial breach
neither can the debtor in case of breach of (2) Amounts to non- (2) Obligation is partially
deliver a thing of obligation performance; basis for performed, or
inferior quality rescission (resolution) substantial
(3) To be liable for under Art. 1191 and for performance in good
damages in case of payment of damages. faith
breach (3) Gives rise to liability
for damages only
OBLIGATION TO DO OR NOT TO DO
DEFAULT, DELAY, OR MORA
Duties of the Debtor Rights of the creditor DEFAULT or DELAY (MORA): failure to perform an
obligation on time which constitutes breach of the
To do obligation [De Leon, 2003].
(1) To do it (1) To compel
Rules on Mora, Delay or Default
(2) To shoulder the performance
cost of having (2) To recover damages
someone else do it where personal Unilateral Obligations Reciprocal Obligations
(3) To undo what has qualifications of the
been poorly done debtor are involved General Rule: General Rule:
(4) To pay for “No demand, no delay.” Delay occurs from the
damages in case moment one party
of breach The mere expiration of fulfills his undertaking,
Not to do the period fixed by the while the other does not
parties is not enough in comply or is not ready to
(1) Not to do what should (1) To ask to undo what
order that the debtor comply in a proper
not be done should not be done
may incur in delay. manner with what is
(2) To shoulder the cost (2) To recover damages,
incumbent upon him.
of undoing what where it would be
Those obliged to deliver
should not have been physically or legally
or to do something incur No delay if neither party
done impossible to undo

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Unilateral Obligations Reciprocal Obligations Mora Solvendi Mora Accipiendi

in delay from the time performs his the debtor within the prestation.
the obligee judicially or undertaking [Art. 1169, period agreed upon. (3) Creditor refuses the
extrajudicially demands par. 2]. (3) Demand, judicial or performance without
from them the extra-judicial, by the just cause.
fulfillment of their creditor.
obligation [Art. 1169 par.
1]. Effects
(1) The debtor is liable for (1) The responsibility of
Exceptions: damages. the debtor is reduced
ARTICLE 1169 (2) The debtor is liable to fraud and gross
Art. 1169. par 2-3: even if the loss is due negligence.
xxx to fortuitous events. (2) The debtor is
However, the demand by the creditor shall not be (3) For determinate exempted from risk of
necessary in order that delay may exist: objects, the debtor loss of the thing
(1) When the obligation or the law expressly so shall bear the risk of which is borne by the
declares; or loss. creditor.
(2) When from the nature and the circumstances of (3) The expenses
the obligation it appears that the designation of incurred by the
the time when the thing is to be delivered or the debtor for the
service is to be rendered was a controlling motive preservation of the
for the establishment of the contract; (time is of thing after the mora
the essence) or shall be chargeable
(3) When demand would be useless, as when the to the creditor.
obligor has rendered it beyond his power to (4) If the obligation bears
perform. interest, the debtor
does not have to pay
In reciprocal obligations, neither party incurs in delay from the time of
if the other does not comply or is not ready to comply delay.
in a proper manner with what is incumbent upon (5) The creditor is liable
him. From the moment one of the parties fulfills his for damages.
obligation, delay by the other begins. (6) The debtor may
relieve himself of the
obligation by
(1) Mora solvendi- Delay on the part of the debtor to consigning the thing.
fulfill his obligation either to give (ex re) or to do
(ex persona)
FRAUD (DOLO) IN THE PERFORMANCE OF OBLIGATION
No Mora Solvendi in:
Fraud (dolo): deliberate or intentional evasion of the
(a) Negative obligations because delay is
normal fulfillment of an obligation [De Leon, 2003].
impossible [De Leon, 2003]
(b) Natural obligations [Tolentino, 1987]
Waiver of future fraud is void. [Art. 1171]
(2) Mora accipiendi- Delay on the part of the creditor
Past Fraud: Can be subject of a valid waiver by the
to accept the performance of the obligation.
aggrieved party. [De Leon, 2003]
(3) Compensatio morae- Delay of both parties in
reciprocal obligations. Effect: As if there is no
default. Woodhouse vs. Halili (1953):
“...[I]n order that fraud may vitiate consent, it must
be the dolo causante and not merely the dolo
Mora Solvendi Mora Accipiendi incidente, inducement to the making of the contract.
The false representation was used by plaintiff to get
Requisites from defendant a bigger share of net profits. This is
(1) Obligation must be (1) Debtor offers just incidental to the matter in agreement. Because
liquidated, due and performance. despite plaintiff’s deceit, respondent would have still
demandable. (2) Offer must be in entered into the contract.”
(2) Non-performance by compliance with the

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NEGLIGENCE (CULPA) IN THE PERFORMANCE OF ARTICLE 2000

OBLIGATION Art. 2000. The responsibility referred to in the two
Negligence or fault (culpa): Omission of that diligence preceding articles shall include the loss of, or injury
which is required by the nature of the obligation and to the personal property of the guests caused by the
corresponds with the circumstances of the person, of servants or employees of the keepers of hotels or
the time and of the place. [Art. 1173] inns as well as strangers; but not that which may
proceed from any force majeure. The fact that
DILIGENCE NORMALLY REQUIRED IS ORDINARY DILIGENCE travelers are constrained to rely on the vigilance of
OR DILIGENCE OF A GOOD FATHER OF A FAMILY; the keeper of the hotels or inns shall be considered
EXCEPTIONS IN ARTS. 1998-2002. in determining the degree of care required of him.
Diligence Required [De Leon, 2003] ARTICLE 2001
(a) By stipulation: that agreed upon by the parties.
(b) By law: in the absence of stipulation, that required Art. 2001. The act of a thief or robber, who has
by law in the particular case. entered the hotel is not deemed force majeure,
(c) Diligence of a good father of a family: if both the unless it is done with the use of arms or through an
contract and law are silent. irresistible force.
(d) Future Negligence: may be waived except in cases
where the nature of the obligation or the public ARTICLE 2002
requires another standard of care (i.e. Art. 2002. The hotel-keeper is not liable for
extraordinary diligence as for a common carrier) compensation if the loss is due to the acts of the
guest, his family, servants or visitors, or if the loss
Exceptions: arises from the character of the things brought into
ARTICLE 1733 the hotel.
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound Mandarin Villa Inc. v. CA (1996):
to observe extraordinary diligence in the vigilance Test of negligence: Did the defendant in doing the
over the goods and for the safety of the passengers alleged negligent act use the reasonable care and
transported by them, according to all the caution, which an ordinary and prudent person
circumstances of each case. would have used in the same situation? If not, then
he is guilty of negligence.
Such extraordinary diligence in the vigilance over the
goods is further expressed in Articles 1734, 1735, and
EXTENT OF DAMAGES TO BE AWARDED
1745, Nos. 5, 6, and 7, while the extraordinary
diligence for the safety of the passengers is further Bad Faith Good Faith
set forth in Articles 1755 and 1756. Debtor is liable for all Debtor is liable only for
damages, which can be the natural and probable
ARTICLE 1998 reasonably attributed to consequences of the
the non-performance of breach of obligation and
Art. 1998. The deposit of effects made by the
the obligation. Any waiver fortuitous events.
travelers in hotels or inns shall also be regarded as
or renunciation made in
necessary. The keepers of hotels or inns shall be
anticipation of such
responsible for them as depositaries, provided that
liability is null and void.
notice was given to them, or to their employees, of
the effects brought by the guests and that, on the
part of the latter, they take the precautions which Culpa Contractual Culpa Aquiliana
said hotel-keepers or their substitutes advised Negligence is merely Negligence is
relative to the care and vigilance of their effects. incidental in the substantive and
performance of an independent.
ARTICLE 1999 obligation.
Art. 1999. The hotel-keeper is liable for the vehicles, There is always a pre- There may or may not be
animals and articles which have been introduced or existing contractual a pre-existing
placed in the annexes of the hotel. relation. contractual obligation.
The source of obligation The source of obligation
of defendant to pay is the defendant’s
damages is the breach or negligence itself.
non-fulfillment of the

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Culpa Contractual Culpa Aquiliana (e) debtor has promised to deliver the same thing to
two or more persons who do not have the same
contract.
interest [Art. 1165 par. 3]
Proof of the existence of The negligence of the (f) the thing is lost due to the obligor’s fraud,
the contract and of its defendant must be negligence, delay or contravention of the tenor of
breach or non-fulfillment proved. the obligation [Art. 1170]
is sufficient prima facie (g) the obligation to deliver a specific thing arises
to warrant recovery. from a crime [Art. 1268]
Proof of diligence in the Proof of diligence in the (h) the object is a generic thing, i.e. the genus never
selection and supervision selection and perishes
of the employees is NOT supervision of the
available as defense. employee is a defense. Requisites for Exemption
(a) The event must be independent of the debtor’s
CONTRAVENTION OF THE TENOR OF OBLIGATION will (fraud or negligence).
Contravention of the tenor of obligation: Violation of (b) The event must be unforeseeable or inevitable.
the terms and conditions stipulated in the obligation, (c) The event renders it impossible for debtor to
which must not be due to a fortuitous event or force fulfill his obligation in a normal manner.
majeure [De Leon, 2003]. (d) The debtor must be free from any participation in
the aggravation of the injury to the creditor
“In any manner contravenes the tenor” means any [Tolentino, 1987; De Leon, 2003].
illicit act, which impairs the strict and faithful (e) It must be the only and sole cause, not merely a
fulfillment of the obligation, or every kind of proximate cause.
defective performance [Tolentino, 1987].

LEGAL EXCUSE FOR BREACH OF OBLIGATION - REMEDIES AVAILABLE TO CREDITOR IN CASE

FORTUITOUS EVENT; REQUISITES OF BREACH
Fortuitous event (force majeure): Any event which SPECIFIC PERFORMANCE
could not be foreseen, or which though foreseen is Performance by the debtor of the prestation itself.
inevitable [Art. 1174].
SUBSTITUTED PERFORMANCE BY A THIRD PERSON OF
A happening independent of the will of the debtor ANOTHER’S OBLIGATION TO DELIVER A GENERIC THING OR
and which makes the normal fulfillment of the OF AN OBLIGATION TO DO, UNLESS IT IS PURELY PERSONAL
obligation impossible [De Leon, 2003]. ACT.
Substituted performance: Someone else performs or
(1) Act of God: An accident, due directly or exclusively something else is performed at the debtor’s expense.
to natural causes without human intervention,
which by no amount of foresight, pains or care, RESCISSION (RESOLUTION IN RECIPROCAL OBLIGATIONS)
reasonably to have been expected, could have Right to rescind or cancel the contract.
been prevented. Rescission / Resolution Rescission [Art. 1380]
(2) Act of Man: Force majeure is a superior or [Art. 1191]
irresistible force, which is essentially an act of
Based on non-performance Based on lesion or fraud
man; includes unavoidable accidents, even if
or non-fulfillment of upon creditors.
there has been an intervention of human
obligation.
element, provided that no fault or negligence can
be imputed to the debtor. Action is instituted only by Action is instituted by
the injured party. either party or by a third
person.
Liability in case of Fortuitous Event
No person shall be responsible for fortuitous events, In some cases, court may Court cannot grant a
UNLESS: grant a term. period or term within
(a) expressly specified by law [Arts. 552 (2), 1942, which one must comply.
2147, 2148, 2159] Nonperformance by the Nonperformance by the
(b) liability specified by stipulation other party is important. other party is
(c) the nature of the obligations requires assumption immaterial.
DAMAGES, IN ANY EVENT
of risk [Art. 1174]
ARTICLE 1170
(d) debtor is guilty of concurrent or contributory
negligence Art. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence, or delay,

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and those who in any manner contravene the tenor

thereof, are liable for damages.
SUBSIDIARY REMEDIES OF CREDITORS [ART. 1177]
General rule: Contracts are binding only between the
parties thereto, their heirs, assignees, and the estate
[Art. 1311].
Exceptions: Accion subrogatoria and accion pauliana
ACCION SUBROGATORIA
Right of creditor to exercise all of the rights and
bring all of the actions which his debtor may have
against third persons; novation by change of debtor
[Art. 1291, par. 3].
Requisites:
(1) Debtor to whom the right of action properly
pertains must be indebted to the creditor
(2) The debt is due and demandable
(3) The creditor must be prejudiced by the failure of
the debtor to collect his own debt from third
persons, either through malice or negligence
(4) The debtor’s assets are insufficient (debtor is
insolvent)
(5) The right of action is not purely personal to the
debtor
ACCION DIRECTA [ARTS. 1652, 1608, 1729, 1893]
ARTICLE 1652
Art. 1652. The sublessee is subsidiarily liable to the
lessor for any rent due from the lessee. However, the
sublessee shall not be responsible beyond the
amount of rent due from him, in accordance with the
terms of the sublease, at the time of the extra-
judicial demand by the lessor.
Payments of rent in advance by the sublessee shall
be deemed not to have been made, so far as the
lessor’s claim is concerned, unless said payment
were effected in virtue of the custom of the place.
ARTICLE 1608
Art. 1608. The vendor may bring his action against
every possessor whose right is derived from the vendee,
even if in the second contract no mention should have
been made of the right to repurchase, without
prejudice to the provisions of the Mortgage Law and
the Land Registration Law with respect to third
persons.

ACCION PAULIANA ARTICLE 1729

Rescission, which involves the right of the creditor to Art. 1729. Those who put their labor upon or furnish
attack or impugn by means of a rescissory action any materials for a piece of work undertaken by the
act of the debtor which is in fraud and to the contractor have an action against the owner up to the
prejudice of his rights as creditor. amount owing from the latter to the contractor at the
time the claim is made. However, the following shall
Rescinds the contract entered into in fraud of not prejudice the laborers, employees and furnishers
creditors. of materials:
Requisites: (CASAL) 1. Payments made by the owner to the contractor
(1) There is a credit in favor of plaintiff prior to before they are due
alienation. 2. Renunciation by the contractor of any amount
(2) The debtor has performed a subsequent contract due him from the owner
conveying a patrimonial benefit to third person(s). This article is subject to the provisions of special
(3) The creditor has no other legal remedy to satisfy laws.
his claim.
(4) The debtor’s acts are fraudulent to the prejudice ARTICLE 1893
of the creditor. Art. 1893. In the cases mentioned in Nos. 1 and 2 of
(5) The third person who received the property is an the preceding article, the principal may furthermore
accomplice in the fraud. bring an action against the substitute with respect to
the obligations which the latter has contracted under
the substitution.
Accion Subrogatoria Accion Pauliana
Not necessary that Credit must exist before
Siguan v. Lim (1999):
creditor’s claim is prior to the fraudulent act
“Petitioner cannot invoke the credit of a different
the acquisition of the right
creditor to justify the rescission of the subject deed of
by the debtor
donation, because the only creditor who may benefit
No need for fraudulent Fraudulent intent is from the rescission is the creditor who brought the
intent required if the contract action; those who are strangers to the action cannot
rescinded is onerous benefit from its effects.”
No period for prescription Prescribes in 4 years
from the discovery of the
fraud

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Kinds of Civil Obligations POTESTIVE – CASUAL OR MIXED

Casual Condition: The fulfillment of the condition
depends upon chance and/or upon the will of a third
PURE, ARTS. 1179-1180 person [Art. 1182].
ARTICLE 1179
Art. 1179. Every obligation, whose performance does Mixed Condition: The fulfillment of the condition
not depend upon a future or uncertain event, or upon depends partly upon the will of a party to the
a past event unknown to the parties, is demandable obligation and partly upon chance and/or will of a
at once. third person.

Every obligation which contains a resolutory OBLIGATIONS SUBJECT TO POTESTATIVE SUSPENSIVE

condition shall also be demandable, without CONDITIONS ARE VOID [ART. 1182].
prejudice to the effects of the happening of the ARTICLE 1182
event. Art. 1182. When the fulfillment of the condition
depends upon the sole will of the debtor, the
ARTICLE 1180 conditional obligation shall be void. If it depends
Art. 1180. When the debtor binds himself to pay when upon chance or upon will of a third person, the
his means permit him to do so, the obligation shall obligation shall take effect in conformity with the
be deemed to be one with a period, subject to the provisions of this Code.
provisions of Article 1197.
Exclusively upon Exclusively upon Exclusively upon
Pure Obligation the Creditor’s the Debtor’s Will the Debtor’s Will
Its effectivity or extinguishment does not depend Will in case of a in case of a
upon the fulfillment or non-fulfillment of a condition Suspensive Resolutory
or upon the expiration of a term or period and Condition Condition
characterized by the quality of its being [Art. 1182] [Art. 1179, par.
IMMEDIATELY DEMANDABLE. 2]
Condition and Condition and Condition and
CONDITIONAL, ART. 1181 obligation are obligation are obligation are
ARTICLE 1180 valid. void because to valid because in
Art. 1181. In conditional obligations, the acquisition of allow such such situation,
rights, as well as the extinguishment or loss of those condition would the position of
already acquired, shall depend upon the happening be equivalent to the debtor is
of the event which constitutes the condition. sanctioning exactly the
obligations same as the
which are position of the
Conditional Obligation
illusory. It also creditor when
Its effectivity is subject to the fulfillment or non-
constitutes a the condition is
fulfillment of a condition, which is characterized to
direct suspensive. It
be a FUTURE and UNCERTAIN event.
contravention of does not render
the principle of the obligation
SUSPENSIVE CONDITION
mutuality of illusory.
Obligation shall only be effective upon the
contracts. There
fulfillment of the condition [Art.1181]. What is
is nothing to
acquired by the obligee upon the constitution of the
demand until
obligation is mere hope or expectancy, but is
the debtor
protected by law.
wishes to.
RESOLUTORY CONDITION
Obligation becomes demandable immediately after Osmeña v. Rama (1909):
its establishment or constitution. The rights are Defendant executed an endorsement saying that
immediately vested to the creditor, but always she’ll pay her debt if the house in which she lives is
subject to the threat or danger of extinction by the sold. Such condition depended upon her exclusive
happening of the resolutory condition [Tolentino, will; thus, it is void.
1987].
Hermosa v. Longara (1953):

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The condition that payment should be made by (3) The mere intention of the debtor to prevent,
Hermosa as soon as he receives funds from the sale without actually preventing fulfillment is not
of his property in Spain is a mixed condition. The sufficient. Constructive fulfillment will not hold
condition implies that the obligor already decided to when the debtor acts pursuant to a right. There is
sell the house and all that was needed to make the constructive fulfillment when:
obligation demandable is that the sale be (a) Intent of the obligor is to prevent fulfillment;
consummated and the price thereof remitted to the and
islands. There were still other conditions that had to (b) There is actual prevention of compliance.
concur to effect the sale, mainly that of the presence
of a buyer, ready, able and willing to purchase the Principle of Retroactivity in Suspensive Conditions
property under the conditions set by the intestate. Art.1187, par.1: Once the condition is fulfilled, its
effects must logically retroact to the moment when
the essential elements, which gave birth to the
EFFECT OF THE HAPPENING OF SUSPENSIVE CONDITION
obligation have taken place. The condition which is
(ART. 1187); RESOLUTORY CONDITION
imposed is only accidental, not an essential element
ARTICLE 1187
of the obligation. (This is applied only to consensual
Art. 1187. The effects of a conditional obligation to contracts. No application to real contracts which can
give, once the condition has been fulfilled, shall only be perfected by delivery.)
retroact to the day of the constitution of the
obligation. Nevertheless, when the obligation
imposes reciprocal prestations upon the parties, the To Give To Do/Not To Do
fruits and interests during the pendency of the
condition shall be deemed to have been mutually If reciprocal, the fruits and In obligations to do or
compensated. If the obligation is unilateral, the interests shall be deemed not to do, the court shall
debtor shall appropriate the fruits and interests to have been mutually determine the retroactive
received, unless from the nature and circumstances compensated as a matter effect of the condition
of the obligation it should be inferred that the of justice and convenience that has been complied
intention of the person constituting the same was [Art. 1187, par. 1]. with
different. [Art. 1187, par. 2].
If unilateral, the debtor The power of the court
In obligations to do and not to do, the courts shall shall appropriate the includes the
determine, in each case, the retroactive effect of the fruits and interests determination of whether
condition that has been complied with. received, unless from the or not there will be any
nature and circumstance retroactive effect. This
it should be inferred that rule shall likewise apply
Suspensive Condition the intention of the in obligations with a
persons constituting the resolutory condition [Art.
Before Fulfillment After Fulfillment same was different. 1190 par. 3].
The demandability and The obligation arises or Resolutory Condition
acquisition or effectivity of becomes effective.
the rights arising from the The obligor can be Before Fulfillment After Fulfillment
obligation is suspended. compelled to comply Preservation of creditor’s Whatever may have been
Anything paid by mistake with what is incumbent rights (Art. 1188, par. 1) paid or delivered by one
during such time may be upon him. also applies to obligations or both of the parties
recovered. with a resolutory upon the constitution of
condition. the obligation shall have
Doctrine of Constructive Fulfillment of Suspensive to be returned upon the
Conditions fulfillment of the
Art. 1186: The condition shall be deemed fulfilled condition. There is no
when the obligor actually prevented the obligee from return to the status quo.
complying with the condition, and that such However, when the
prevention must have been voluntary or willful in condition is not fulfilled,
character. rights are consolidated
(1) Applicable to suspensive conditions but not to and they become
resolutory conditions. absolute in character.
(2) The article can have no application to an external
contingency which is lawfully within the control of
the obligor.

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EFFECT OF LOSS OF SPECIFIC THING, OR DETERIORATION the obligation OR

OR IMPROVEMENT OF SPECIFIC THING BEFORE bringing an action for
FULFILLMENT OF SUSPENSIVE CONDITION [ART. 1189]; specific performance,
OR IN CASE OF A RESOLUTORY CONDITION IN AN with damages in either
OBLIGATION TO DO OR NOT TO DO [ART. 1190, PAR. 3] case.
Improvement
ARTICLE 1189 mprovement at the Improvement by the
Art. 1189. When the conditions have been imposed debtor’s expense, the thing’s nature or by time
with the intention of suspending the efficacy of an debtor shall ONLY have shall inure to the benefit
obligation to give, the following rules shall be observed usufructuary rights. of the creditor.
in case of the improvement, loss or deterioration of the
thing during the pendency of the condition: Loss, defined: “when [the thing] perishes, or goes out
of commerce, or disappears in such a way that its
(1) If the thing is lost without the fault of the debtor, existence is unknown or it cannot be recovered” [Art.
the obligation shall be extinguished; 1189, no. 2].

(2) If the thing is lost through the fault of the debtor,
he shall be obliged to pay damages; it is
understood that the thing is lost when it perishes,
or goes out of commerce, or disappears in such a
way that its existence is unknown or it cannot be
recovered;
(3) When the thing deteriorates without the fault of
the debtor, the impairment is to be borne by the
creditor;
(4) If it deteriorates through the fault of the debtor,
the creditor may choose between the rescission of
the obligation and its fulfillment, with indemnity
for damages in either case;
OBLIGATIONS WITH A PERIOD OR TERM
ARTICLE 1193
Art. 1193. Obligations for whose fulfillment a day
certain has been fixed, shall be demandable only when
that day comes.
Obligations with a resolutory period take effect at once,
but terminate upon arrival of the day certain.
A day certain is understood to be that which must
necessarily come, although it may not be known when.
If the uncertainty consists in whether the day will come
or not, the obligation is conditional, and it shall be
regulated by the rules of the preceding Section.

(5) If the thing is improved by its nature, or by time, Period or Term: Interval of time, which either
the improvement shall inure to the benefit of the suspends demandability or produces
creditor; extinguishment.
(6) If it is improved at the expense of the debtor, he The period must be: future, certain, and possible
shall have no other right than that granted to the [Tolentino, 1987].
usufructuary.
A fortuitous event does not interrupt the running of
ARTICLE 1190 the period. It only relieves the contracting parties
Art. 1190, par. 3. As for the obligations to do and not to from the fulfillment of their respective obligations
do, the provisions of the second paragraph of Article during the period.
1187 shall be observed as regards the effect of the
extinguishment of the obligation. Kinds of Period [Art. 1193]:
(1) Ex die - period with a suspensive effect.
Obligation becomes demandable after the lapse
Without Debtor’s With Debtor’s Fault/Act of the period.
Fault/Act (2) In diem - period with a resolutory effect.
Loss Obligation is demandable at once but is
Obligation is Obligation is converted extinguished upon the lapse of the period.
extinguished. into one of indemnity for
damages. ARTICLE 1180
Deterioration Art. 1180. When the debtor binds himself to pay when
Impairment to be borne Creditor may choose his means permit him to do so, the obligation shall be
by the creditor. between bringing an deemed to be one with a period, subject to the
action for rescission of provisions of Article 1197.

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(3) Debtor by his own acts Impaired said guaranties

Term/Period and Condition Distinguished or securities after their establishment, and when
through a fortuitous event they disappear, unless
Term/Period Condition he immediately gives new ones equally
Interval of time which is Fact or event which is satisfactory
future and certain future and uncertain (4) Debtor Violates any undertaking, in consideration
of which the creditor agreed to the period
(5) Debtor attempts to Abscond
Must necessarily come, May or may not happen (6) By Law or stipulation
although it may not be (7) Parties stipulate an Acceleration Clause
known when
In the cases provided, the obligation becomes
Exerts an influence upon Exerts an influence upon
immediately due and demandable even if the period
the time of demandability the very existence of the
has not yet expired. The obligation is thus converted
or extinguishment of an obligation itself
into a pure obligation [Tolentino, 1987].
obligation
No retroactive effect Has retroactive effect
RESOLUTORY PERIOD
unless there is an
Obligation is demandable at once but is
agreement to the contrary
extinguished upon the lapse of the period.
When it is left exclusively When it is left exclusively
to the will of the debtor, to the will of the debtor,
the existence of the the very existence of the DEFINITE OR INDEFINITE PERIOD
obligation is not affected obligation is affected (1) INSTANCES WHEN COURTS MAY FIX THE PERIOD (ART.
1197)
SUSPENSIVE PERIOD Art. 1197: As a general rule, the court is not
Benefit of the Period authorized to fix a period for the parties [De Leon,
Presumption: The period in an obligation is 2003].
presumed to be established for the benefit of both
the creditor and debtor, UNLESS from the tenor of Araneta v. Phil. Sugar Estates, provides—
the obligation or other circumstances, it shall appear First, the Court shall determine:
that the period has been established in favor of (a) If the obligation does not fix a period, but from its
either the creditor or debtor [Art. 1196]. nature and circumstances, it can be inferred that
a period was intended.
(b) If the period is void, such as when it depends
upon the will of the debtor.
(c) If the debtor binds himself when his means
permit him to do so.
Period for the Benefit of either Creditor or Debtor
Second, it must decide what period was “probably
Creditor Debtor
contemplated by the parties”.
Creditor may demand the Debtor may oppose any
fulfillment or premature demand on the Art. 1197 does not apply to contract of services and to
performance of the part of the obligee for the pure obligations.
obligation at any time performance of the
but the obligor cannot obligation, or if he so The court, however, to prevent unreasonable
compel him to accept desires, he may renounce interpretations of the immediate demandability of
payment before the the benefit of the period pure obligations, may fix a reasonable time in which
expiration of the period. by performing his the debtor may pay [Tolentino, 1987].
obligation in advance.
(2) CREDITOR MUST ASK COURT TO SET THE PERIOD,
If Period Given for the Benefit of Debtor Alone BEFORE HE CAN DEMAND PAYMENT.
When Debtor Loses Right to Use Period
Art.1198: I GIV A LA— THE ONLY ACTION THAT CAN BE MAINTAINED BY THE
(1) Debtor becomes Insolvent, unless he gives a CREDITOR UNDER ART. 1197 IS THE ACTION TO ASK THE
guaranty or security for his debt, after obligation COURTS TO FIX THE TERM WITHIN WHICH THE DEBTOR
is contracted MUST COMPLY WITH HIS OBLIGATION. THE FULFILLMENT OF
(2) Debtor fails to furnish the Guaranties or securities THE OBLIGATION ITSELF CANNOT BE DEMANDED UNTIL
promised AFTER THE COURT HAS FIXED THE PERIOD FOR

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COMPLIANCE THEREWITH, AND SUCH PERIOD HAS The effect of the notice is to limit the obligation to
ARRIVED. the object or prestation selected. Notice of selection
or choice may be in any form provided it is sufficient
ALTERNATIVE OR FACULTATIVE to make the other party know that the selection has
DIFFERENCE BETWEEN ALTERNATIVE AND FACULTATIVE been made. It can be:
OBLIGATIONS (a) oral
(b) in writing
Alternative Obligations Facultative Obligations (c) tacit
Several objects are due. Only one object is due. (d) any other equivocal means
May be complied with by May be complied with by
delivery of one of the the delivery of another Choice of the debtor when communicated to the
objects or by performance object or by the creditor does not require the latter’s concurrence.
of one of the prestations performance of another
which are alternatively prestation in substitution When the choice is rendered impossible through the
due. of that which is due. creditor’s fault, the debtor may bring an action to
Choice may pertain to Choice pertains only to rescind the contract with damages [Art. 1203].
debtor, creditor, or third the debtor.
person. Obligation is converted into a simple obligation
when:
(a) The person with the right of choice has
Loss/impossibility of all Loss/impossibility of the
communicated his choice [Art. 1201].
object/prestation due to object/prestation due to
(b) Only one prestation is practicable [Art. 1202].
fortuitous event shall fortuitous event is
extinguish the obligation. sufficient to extinguish
Facultative Obligation
The loss/impossibility of the obligation.
Only one prestation has been agreed upon but the
one of the things does not
debtor may render another in substitution [De Leon,
extinguish the obligation.
2003]. Debtor always has the right of choice.
Culpable loss of any of Culpable loss of the
the objects alternatively object which the debtor
Effect of Loss of Substitute
due before the choice is may deliver in
made may give rise to substitution before the
liability on the part of the substitution is effected Before Substitution is After Substitution is
debtor. does not give rise to any Made Made
liability on the part of the If due to bad faith or fraud The loss or deterioration
debtor. of obligor: obligor is liable. of the substitute on
account of the obligor’s
delay, negligence, or
If due to the negligence of fraud, renders the
Alternative Obligations
the obligor: obligor is not obligor liable because
Several prestations are due but the performance of
liable. once the substitution is
one is sufficient [De Leon, 2003].
made, the obligation is
converted into a simple
Right of Choice:
one with the substituted
Art. 1200: Belongs to the debtor, UNLESS:
thing as the object of
(1) when it is expressly granted to the creditor
the obligation.
(2) when it is expressly granted to a third person

Limitations to the right of choice: EFFECT OF LOSS OF SPECIFIC THINGS OR IMPOSSIBILITY OF

(1) impossible prestations PERFORMANCE OF ALTERNATIVE, THROUGH FAULT OF
(2) unlawful prestations DEBTOR/CREDITOR OR THROUGH FORTUITOUS EVENTS
(3) those which could not have been the object of the Art. 1204: Debtor’s Choice
obligation
(4) only one prestation is practicable [Art. 1202; De Fortuitous Event Debtor’s Fault
Leon, 2003] All Lost
When choice shall produce effect
Art. 1201: Choice shall produce no effect except from
the time it has been communicated.

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Debtor is released from Creditor shall have a PRESUMPTION OF JOINT OBLIGATION

the obligation. right to indemnity for Presumption: Obligation is presumed joint if there is
damages based on the a concurrence of several creditors, of several debtors,
value of the last thing or of several creditors and debtors in one and the
which disappeared or same obligation (Art. 1207).
service which become Exceptions:
impossible. (1) When the obligation expressly states that there is
Some solidarity
Debtor to deliver that Debtor to deliver that (2) When the law requires solidarity i.e. quasi-delicts
which he shall choose which the creditor shall (3) When the nature of the obligation requires
from among the choose from among the solidarity
remainder. remainder without (4) When the nature or condition is imposed upon
damages. heirs or legatees, and the testament expressly
One Remains makes the charge or condition in solidum
Debtor to deliver that Debtor to deliver that (5) When the solidary responsibility is imputed by a
which remains. which remains. final judgment upon several defendants

PRESUMPTION OF EQUAL DIVISION

Art. 1205: Creditor’s Choice Presumption: Credit or debt shall be presumed to be
divided into as many equal shares as there are
creditors or debtors.
Fortuitous Event Debtor’s Fault
Joint creditor cannot act in representation of the
All Lost others, neither can a joint debtor be compelled to
Debtor is released from Creditor may claim the answer for the liability of others.
the obligation. price/value of any of
them with indemnity for EACH CREDIT IS DISTINCT FROM ONE ANOTHER,
damages. THEREFORE A JOINT DEBTOR CANNOT BE REQUIRED TO PAY
Some THE SHARE OF ANOTHER DEBTOR, ALTHOUGH HE MAY PAY
Debtor to deliver that Creditor may claim any IF HE WANTS TO [ART. 1208].
which he shall choose of those subsisting
from among the without a right to EFFECT OF INSOLVENCY OF A JOINT DEBTOR [ART. 1209].
remainder. damages OR price/value Each creditor can demand only for the payment of
of the thing lost with his proportionate share of the credit, while each
right to damages. debtor can be liable only for the payment of his
One Remains proportionate share of the debt.
Creditor may claim the Creditor may claim the
remaining thing without remaining thing without Principal Effects of Joint Liability
a right to damages OR a right to damages OR (1) Demand by one creditor upon the debtor,
the price/value of the the price/value of the produces the effects of default only with respect
thing lost with right to thing lost with right to to the creditor who demanded and the debtor on
damages. damages. whom the demand was made, but not with
respect to others.
(2) Interruption of prescription by the judicial
demand of one creditor upon a debtor does not
benefit the other creditors nor interrupt the
Joint and Solidary Obligation prescription as to other debtors.
(3) Vices of each obligation arising from the personal
JOINT (DIVISIBLE) OBLIGATION defect of a particular debtor or creditor do not
One where a concurrence of several creditors, or of affect the obligation or right of the others.
several debtors, or of several creditors and debtors, (4) Insolvency of a debtor does not increase the
by virtue of which, each of the creditors has a right to responsibility of his co-debtors, nor does it
demand, and each of the debtors is bound to render authorize a creditor to demand anything from his
compliance with his proportionate part of the co-debtors.
prestation which constitute the object of the (5) Defense of res judicata is not extended from one
obligation (obligacion mancomunada). debtor to another.

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JOINT (INDIVISIBLE) OBLIGATION SOLIDARY OBLIGATION

OBLIGATION CANNOT BE PERFORMED IN PARTS BUT
DEBTORS ARE BOUND JOINTLY
ARTICLE 1209
Art. 1209. If the division is impossible, the right of the
creditors may be prejudiced only by their collective
acts, and the debt can be enforced only by
proceeding against all the debtors. If one of the
latter should be insolvent, the others shall not be
liable for his share.
Art. 1209: No creditor can act in representation of the
other; no debtor can be compelled to answer for the
liability of the others.
If there are two or more debtors, the fulfillment of or
compliance with the obligation requires the
concurrence of all the debtors, although each for his
own share and for the enforcement of the obligation
Plurality of Creditors: If one or some of the creditors
demands the prestation, the debtor may legally
refuse to deliver to them, he can insist that all the
creditors together receive the thing, and if any of
them refuses to join the others, the debtor may
deposit the thing in court by way of consignation
[Tolentino, 1987].
IN CASE OF FAILURE OF ONE OF THE JOINT DEBTORS TO
PERFORM HIS PART (SHARE), THERE IS DEFAULT BUT
ONLY THE GUILTY DEBTOR SHALL BE LIABLE FOR DAMAGES
In case of breach where one of the joint debtors fails
to comply with his undertaking, the obligation can no
longer be fulfilled or performed.
Consequently, it is converted into one of indemnity
for damages.
In case of insolvency of one of the debtors, the others
shall not be liable for his share. To hold otherwise
would destroy the joint character of the obligation.
An obligation where there is concurrence of several
creditors, or of several debtors, or of several creditors
and several debtors, by virtue of which, each of the
creditors has the right to demand, and each of the
debtors is bound to render, entire compliance with the
prestation which constitutes the object of the
obligation (obligacion solidaria).
ANYONE OF THE SOLIDARY CREDITORS MAY COLLECT OR
DEMAND PAYMENT OF WHOLE OBLIGATION; THERE IS
MUTUAL AGENCY AMONG SOLIDARY DEBTORS (ARTS.
1214, 1215)
ARTICLE 1214
Art. 1214. The debtor may pay any one of the solidary
creditors; but if any demand, judicial or extrajudicial,
has been made by one of them, payment should be
made to him.
ARTICLE 1215
Art. 1215. Novation, compensation, confusion or
remission of the debt, made by any of the solidary
creditors or with any of the solidary debtors, shall
extinguish the obligation, without prejudice to the
provisions of Article 1219.
Active solidary obligation (solidarity among creditors):
Each creditor has the authority to claim and enforce
the rights of all, with the resulting obligation of
paying everyone of what belongs to him.
Creation of a relationship of mutual agency among
co-creditors.
A solidary creditor cannot assign his rights without
the consent of the others [Art. 1213].
Each debtor may pay to any solidary creditor, but if
any demand, judicial or extrajudicial, has been made
by one of them, payment must be made to him [Art.
1214]

Mixed solidary obligation (solidarity among creditors

Joint Divisible Obligations
In case of breach of
obligation by one of the
debtors, damages due
must be borne by him
alone.
Joint Indivisible
Obligations
In case of breach where
one of the joint debtors
fails to comply with his
undertaking, the
obligation can no longer
be fulfilled or performed.
Thus, the action must be
converted into one for
indemnity for damages.
and debtors): Solidarity is not destroyed by the fact
that the obligation of each debtor is subject to
different conditions or periods. The creditor can
commence an action against anyone of the debtors
for the compliance with the entire obligation minus
the portion or share which corresponds to the debtor
affected by the condition or period.
ANY OF THE SOLIDARY DEBTORS MAY BE REQUIRED TO
PAY THE WHOLE OBLIGATION; THERE IS MUTUAL
GUARANTY AMONG SOLIDARY DEBTORS [ARTS. 1216,
1217, 1222]

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ARTICLE 1216 (2) Those personal to him

Art. 1216. The creditor may proceed against any one of (3) Those pertaining to his own share
the solidary debtors or some or all of them (4) Those personally belonging to other co-debtors
simultaneously. The demand made against one of but only as regards that part of the debt for which
them shall not be an obstacle to those which may the latter are responsible.
subsequently be directed against the others, so long as
the debt has not been fully collected. Demand Upon a Solidary Payment by a Debtor
Debtor
ARTICLE 1217 The demand made Full payment made by
against one of them shall one of the solidary
Art. 1217. Payment made by one of the solidary debtors
not be an obstacle to debtors extinguishes the
extinguishes the obligation. If two or more solidary
those which may obligation [Art. 1217].
debtors offer to pay, the creditor may choose which
subsequently be directed
offer to accept.
against the others so long
as the debt has not been
He who made the payment may claim from his co-
fully collected [Art. 1216].
debtors only the share which corresponds to each, with
The creditor may proceed If two or more solidary
the interest for the payment already made. If the
against any one of the debtors offer to pay, the
payment is made before the debt is due, no interest for
solidary debtors or all creditor may choose
the intervening period may be demanded.
simultaneously [Art. 1216]. which offer to accept
[Art. 1217].
When one of the solidary debtors cannot, because of
A creditor’s right to The solidary debtor who
his insolvency, reimburse his share to the debtor
proceed against the made the payment shall
paying the obligation, such share shall be borne by all
surety exists have the right to claim
his co-debtors, in proportion to the debt of each.
independently of his right from his co-debtors the
to proceed against the share which corresponds
ARTICLE 1222
principal to them with interest,
Art. 1222. A solidary debtor may, in actions filed by UNLESS barred by
the creditor, avail himself of all defenses which are prescription or illegality
derived from the nature of the obligation and of [Art. 1218].
those which are personal to him, or pertain to his
own share. With respect to those which personally When a solidary debtor pays the entire obligation,
belong to the others, he may avail himself thereof the resulting obligation of the co-debtors to
only as regards that part of the debt for which the reimburse him becomes joint.
latter are responsible.
If payment was made before the debt became due,
Passive solidary obligation (solidarity among debtors): no interest during the intervening period may be
Each debtor can be made to answer for the others, demanded [Art. 1217 par. 2].
with the right on the part of the debtor-payor to When one of the solidary debtors cannot reimburse
recover from the others their respective shares. his share to the debtor paying the obligation due to
insolvency, such share shall be borne by all his co-
Creation of a relationship of mutual guaranty among debtors, in proportion to the debt of each [Art. 1217,
co-debtors. par. 2].
The total remission of the debt in favor of a debtor
releases all the debtors. Inchausti v. Yulo (1914):
Debtors obligated themselves solidarily, so creditor can
All the debtors are liable for the loss of the thing bring its action against any of them. Remission of any
due, even if such loss is caused by the fault of only part of the debt, made by the creditor in favor of one of
one of them, and for delay, even if it is caused by just the solidary debtors, inures to the benefit of the rest of
one of them. them.
The interruption of prescription as to one debtor
affects all the others; but the renunciation by one Each one of the solidary creditors may do whatever
debtor of prescription already had does not prejudice maybe useful to the others, but not anything
the others. prejudicial to them [Art. 1212]; however, any novation,
Defenses Available to a Solidary Debtor [Art. 1222] compensation, confusion or remission of debt
(1) Those derived from the nature of the obligation executed by any solidary creditor shall extinguish the

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obligation without prejudice to his liability for the
shares of the other solidary creditors
ARTICLE 1212
Art. 1212. Each one of the solidary creditors may do
whatever may be useful to the others, but not
anything which may be prejudicial to the latter.
ARTICLE 1215
Art. 1215. Novation, compensation, confusion or
remission of the debt, made by any of the solidary
creditors or with any of the solidary debtors, shall
extinguish the obligation, without prejudice to the
provisions of Article 1219.
ARTICLE 1219
Art. 1219. The remission made by the creditor of the
share which affects one of the solidary debtors does
not release the latter from his responsibility towards
the co-debtors, in case the debt had been totally
paid by anyone of them before the remission was
effected.
Effects of Prejudicial and Beneficial Acts [Art.1212]
(1) Each one of the solidary creditors may do
whatever may be useful or beneficial to the
others, but not anything which may be prejudicial
to the latter.
(2) As far as the debtors are concerned, a prejudicial
act performed by a solidary creditor is binding.
(3) As between the solidary creditors, the creditor
who performed such act shall incur the obligation
of indemnifying the others for damages.
Indivisibility Solidarity
It refers to the prestation It refers to the legal tie
which constitutes the or vinculum, and
object of the obligation. consequently, to the
subjects or parties of
the obligation.
Plurality of subjects is not Plurality of subjects is
required. indispensable.
In case of breach, When there is liability
obligation is converted into on the part of the
indemnity for damages debtors because of the
because the indivisibility of breach, the solidarity
the obligation is among the debtors
terminated. remains.
The indivisibility of an obligation does not necessarily
give rise to solidarity. Nor does solidarity itself imply
indivisibility [Art. 1211].
OBLIGATIONS BAR OPERATIONS COMMISSION
DIVISIBLE AND INDIVISIBLE, ART. 1225
Divisible Obligations
Ones which are susceptible to partial performance,
that is, the debtor can legally perform the obligation
by parts and the creditor cannot demand a single
performance of the entire obligation [Tolentino,
1987].
Indivisible Obligations
Ones which cannot be validly performed in parts
[Tolentino, 1987].
(a) Divisibility/indivisibility refers to the performance
of the prestation and not to the thing which is the
object thereof. The thing may be divisible, yet the
obligation may be indivisible.
(b) When the obligation has for its object the
execution of a certain number of days of work, the
accomplishment of work by metrical units, or
analogous things which by their nature are
susceptible of partial performance, it shall be
divisible [Art.1225, par. 2].
(c) Even though the object or service may be
physically divisible, an obligation is indivisible if
so provided by law or intended by the parties.
(d) In obligations not to do, divisibility or indivisibility
shall be determined by the character of the
prestation in each particular case.
(e) When there is plurality of debtors and creditors,
the effect of divisibility/indivisibility of the
obligation depend upon whether the obligation is
joint or solidary.
(f) A joint indivisible obligation gives rise to
indemnity for damages from the time any one of
the debtors does not comply with his undertaking
[Art. 1224].
Effect
Creditor cannot be compelled to receive partially the
prestation in which the obligation consists; neither
may the debtor be required to make the partial
payment [Art. 1248], UNLESS:
(1) The obligation expressly stipulates the contrary.
(2) The different prestations constituting the objects
of the obligation are subject to different terms
and conditions.
(3) The obligation is in part liquidated and in part
unliquidated.
OBLIGATIONS WITH A PENAL CLAUSE, ARTS.
1226, 1228-1230
ARTICLE 1226
Art. 1226. In obligations with a penal clause, the
penalty shall substitute the indemnity for damages
and the payment of interests in case of
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noncompliance, if there is no stipulation to the
contrary. Nevertheless, damages shall be paid if the
obligor refuses to pay the penalty or is guilty of fraud in
the fulfillment of the obligation.
The penalty may be enforced only when it is
demandable in accordance with the provisions of this
Code.
ARTICLE 1228
Art. 1228. Proof of actual damages suffered by the
creditor is not necessary in order that the penalty may
be demanded.
ARTICLE 1229
Art. 1229. The judge shall equitably reduce the penalty
when the principal obligation has been partly or
irregularly complied with by the debtor.
Even if there has been no performance, the penalty
may also be reduced by the courts if it is iniquitous or
unconscionable.
ARTICLE 1230
Art. 1230. The nullity of the penal clause does not carry
with it that of the principal obligation.
The nullity of the principal obligation carries with it
that of the penal clause.
Penal Clause: An accessory undertaking to assume
greater liability in case of breach [De Leon, 2003]. It
is attached to an obligation in order to ensure
performance. The enforcement of the penalty can be
demanded by the creditor only when the non-
performance is due to the fault or fraud of the
debtor.
If the principal obligation is void, the penal clause
shall also be void. However, the nullity of the penal
clause does not carry with it the nullity of the
principal obligation [Art.1230].
Purposes of Penalty
(1) Funcion coercitiva de garantia - to insure the
performance of the obligation.
(2) Funcion liquidatoria - to liquidate the amount of
damages to be awarded to the injured party in
case of breach of the principal obligation
(compensatory).
(3) Function estrictamente penal - to punish the
obligor in case of breach of the principal
obligation (punitive).
OBLIGATIONS BAR OPERATIONS COMMISSION
Chartacteristics of Penalty
(1) The penalty shall substitute the indemnity for
damages and payment of interest in case of non-
compliance [Art. 1226], UNLESS:
(a) There is a stipulation to the contrary
(b) The obligor refuses to pay the penalty
(c) The obligor is guilty of fraud
(2) Debtor cannot exempt himself from the
performance of the principal obligation by paying
the stipulated penalty unless this right has been
expressly reserved for him [Art. 1227].
(3) Creditor cannot demand the fulfillment of the
principal obligation and demanding the
satisfaction of the penalty at the same time
unless the right has been clearly granted to him
[Art. 1227]. Tacit or implied grant is admissible.
(a) If the creditor has chosen fulfillment of the
principal obligation and the performance
thereof becomes impossible without his fault,
he may still demand the satisfaction of the
penalty.
(b) If there was fault on the part of the debtor,
creditor may demand not only the satisfaction
of the penalty but also the payment of
damages.
(c) If the creditor chooses to demand the
satisfaction of the penalty, he cannot
afterwards demand the fulfillment of the
obligation.
Proof of Actual Damage
Art. 1228: That proof of actual damages is not
necessary is applicable only to the general rule
stated in Art. 1226, but not to the exceptions. The
penalty is exactly identical with what is known as
“liquidated damages” in Art. 2226.
When Penalty may be Reduced [Art. 1229]:
(1) If the principal obligation has been partly
complied with.
(2) If the principal obligation has been irregularly
complied with.
(3) If the penalty is iniquitous or unsconscionable
even if there has been no performance.
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Extinguishment of
Obligations
PAYMENT, ARTS. 1236-1238
ARTICLE 1236
Art. 1236. The creditor is not bound to accept payment
or performance by a third person who has no interest
in the fulfillment of the obligation, unless there is a
stipulation to the contrary.
Whoever pays for another may demand from the
debtor what he has paid, except that if he paid without
the knowledge or against the will of the debtor, he can
recover only insofar as the payment has been
beneficial to the debtor.
ARTICLE 1237
Art. 1237. Whoever pays on behalf of the debtor
without the knowledge or against the will of the latter,
cannot compel the creditor to subrogate him in his
rights, such as those arising from a mortgage,
guaranty, or penalty.
ARTICLE 1238
Art. 1238. Payment made by a third person who does
not intend to be reimbursed by the debtor is deemed
to be a donation, which requires the debtor's consent.
But the payment is in any case valid as to the creditor
who has accepted it.
DATION IN PAYMENT [ART. 1245]
ARTICLE 1245
Art. 1245. Dation in payment, whereby property is
alienated to the creditor in satisfaction of a debt in
money, shall be governed by the law of sales.
Delivery and transmission of ownership of a thing by
the debtor to the creditor as an accepted equivalent
of the performance of the obligation (dacion en
pago).
FORM OF PAYMENT [ART. 1249]
ARTICLE 1249
Art. 1249. The payment of debts in money shall be
made in the currency stipulated, and if it is not
possible to deliver such currency, then in the currency
which is legal tender in the Philippines.
The delivery of promissory notes payable to order, or
bills of exchange or other mercantile documents shall
produce the effect of payment only when they have
been cashed, or when through the fault of the creditor
they have been impaired.
OBLIGATIONS BAR OPERATIONS COMMISSION
In the meantime, the action derived from the original
obligation shall be held in the abeyance.
EXTRAORDINARY INFLATION OF DEFLATION [ART. 1250]
ARTICLE 1236
Art. 1250. In case an extraordinary inflation or
deflation of the currency stipulated should
supervene, the value of the currency at the time of
the establishment of the obligation shall be the basis
of payment, unless there is an agreement to the
contrary.
APPLICATION OF PAYMENT [ART. 1252-1254]
Application of Payment [Art. 1252]
Designation of the debt to which should be applied a
payment made by a debtor who owes several debts
to the same creditor.
Rules on Application
(1) Preferential right of debtor - debtor has the right
to select which of his debts he is paying.
(2) The debtor makes the designation at the time he
makes the payment.
(3) If not, the creditor makes the application, by so
stating in the receipt that he issues, unless there
is cause for invalidating the contract.
(4) If neither the creditor nor debtor exercises the
right to apply, or if the application is not valid, the
application is made by operation of law.
(5) If debt produces interest, the payment is not to be
applied to the principal unless the interests are
covered.
(6) When no application can be inferred from the
circumstances of payment, it is applied: (a) to the
most onerous debt of the debtor; or (b) if debts
due are of the same nature and burden, to all the
debts in proportion
(7) Rules of application of payment may not be
invoked by a surety or solidary guarantor.
Reparations Commission vs. Universal Deep Sea
Fishing Corp. (1978):
Rules on application of payment cannot be made
applicable to a person whose obligation as a mere
surety is both contingent and singular. There must
be full and faithful compliance with the terms of the
contract.
TENDER OF PAYMENT AND CONSIGNATION [ARTS. 1256-
1261]
Tender of payment: Manifestation made by the
debtor to the creditor of his desire to comply with his
obligation, with offer of immediate performance.
(1) Preparatory act to consignation
(2) Extrajudicial in character
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Consignation: Deposit of the object of obligation in a Requisites and Effects

competent court in accordance with the rules Application of Tender and
prescribed by law whenever the creditor unjustly Dation
Payment Consignation
refuses payment or because of some circumstances Requisites
which render direct payment to the creditor (1) Plurality of (1) Should not (1) There is a
impossible or inadvisable. debts be prejudicial debt due
(1) Principal act which constitutes a form of payment (2) Debts are of to other (2) Consignation
(2) Judicial in character the same creditors is made
kind (2) Should not because of
When Tender and Refusal Not Required [Art. 1259] (3) Debts are constitute a some legal
(1) Creditor is absent or unknown, or does not owed to the pactum cause
appear at the place of payment. same creditor commissoriu (3) Previous
(2) Creditor is incapacitated to receive the thing due and by the m notice of
at the time of payment. same debtor consignation
(3) Without just cause, creditor refuses to give (4) All debts was given to
receipt. must be due those
(4) Two or more persons claim the same right to (5) Payment persons
collect. made is not interested in
(5) Title of the obligation has been lost. sufficient to the
cover all performance
Effects of Withdrawal by Debtor [Arts. 1260- 1261] debts of the
(1) Before approval of the court - Obligation remains obligation
in force. (4) Amount or
(2) After approval of the court or acceptance by the thing due
creditor, with the consent of the latter - was placed
Obligation remains in force, but guarantors and at the
co-debtors are liberated. Preference of the disposal of
creditor over the thing is lost. the court
(3) After approval of the court or acceptance by the (5) After the
creditor, and without creditor’s consent - consignation
Obligation subsists, without change in the liability has been
of guarantors and co-debtors, or the creditor’s made, the
right of preference. persons
interested
What constitutes valid consignation were notified
In order that the consignation of the thing due may thereof
release the obligor, it must first be announced to the
persons interested in the fulfilment of the obligation.

The consignation shall be ineffectual if it is not made

strictly in consonance with the provisions which Effects
regulate payment. [Art. 1257]. Payment of debt Extinguishment If accepted by
designated as to of debt as an the creditor or
How consignation is made corresponding equivalent of the declared
Consignation shall be made by depositing the things amount performance of properly made
due at the disposal of judicial authority, before whom the obligation by the Court:
the tender of payment shall be proved, in a proper (1) Debtor is
case, and the announcement of the consignation in released in
other cases. same manner
as if he had
The consignation having been made, the interested performed the
parties shall also be notified thereof. obligation at
the time of
Who bears the expenses consignation
The expenses of consignation, when properly made, (2) Accrual of
shall be charged against the creditor. [Art. 1259] interest is
suspended

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Application of Tender and Effects of Loss

Dation
Payment Consignation Obligation to Deliver a Obligation to Deliver a
from the Specific Thing Generic Thing
moment of Extinguishment of the Loss of a generic thing
consignation. obligation if the thing was does not extinguish an
(3) Deterioration destroyed without fault of obligation, EXCEPT in
or loss of the the debtor and before he case of delimited generic
thing or has incurred delay. things, where the kind or
amount class is limited itself, and
consigned, the whole class perishes.
occurring
without the Action against third persons - creditor shall have all
fault of the rights of action the debtor may have against
debtor, must third persons by reason of the loss.
be borne by
creditor from Presumption: The loss was due to the debtor’s fault,
the moment UNLESS there is proof to the contrary.
of deposit
Any increment Other cases where loss is attributed to debtor:
or increase in (1) Law provides that the debtor shall be liable even
the value of the if the loss is due to fortuitous events [Arts. 1942,
thing after 1979, 2147, 2159].
consignation (2) Obligor is made liable by express stipulation.
inures to the (3) Nature of the obligation requires an assumption
benefit of the of risk.
creditor. (4) Fault or negligence concurs with the fortuitous
event.
Payment by Cession [Art. 1255] (5) Loss occurs after delay.
The debtor may cede or assign his property to his (6) Debtor has promised to deliver the same thing to
creditors in payment of his debts. This cession, two or more different parties.
unless there is stipulation to the contrary, shall only (7) Obligation arises from a criminal act.
release the debtor from responsibility for the net (8) Borrower in commodatum: saves his own things
proceeds of the things assigned. The agreements and not the thing of the creditor during a
which, on the effect of the cession, are made fortuitous event.
between the debtor and his creditors shall be
governed by special laws. In Reciprocal Obligations
Extinguishment of the obligation due to loss of the
Cession or assignment of rights in favor of creditors thing or impossibility of performance affects both the
(1) Process by which debtor transfers property to his creditor and debtor; the entire juridical relation is
creditors so that the latter may sell them and extinguished.
thus apply the proceeds to their credits.
(2) What is given to creditors is not ownership (as Partial loss
distinguished from dacion en pago) but only Art. 1264: Partial loss due to a fortuitous event does
authority to sell. not extinguish the obligation; thing due shall be
(3) Debtor is released only for the net proceeds delivered in its present condition, without any liability
unless there is a stipulation to the contrary. on the part of the debtor, UNLESS the obligation is
extinguished when the part lost was of such extent
as to make the thing useless.
LOSS OF DETERMINATE THING DUE OR
IMPOSSIBILITY OR DIFFICULTY OF Loss of the thing when in possession of the debtor:
PERFORMANCE, ARTS. 1262, 1266-1267 Loss was due to the debtor’s fault. Burden of
Loss explaining the loss of the thing falls upon him,
A thing is lost when it perishes, goes out of UNLESS due to a natural calamity: earthquake, flood,
commerce or disappears in such a way that its storm, etc.
existence is unknown or it cannot be recovered [Art.
1189, no. 2] Subjective impossibility: Where there is no physical or
legal loss, but the thing belongs to another, the

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UP COLLEGE OF LAW
performance by the debtor becomes impossible. The
debtor must indemnify the creditor for damages.
Impossibility of Performance [Arts. 1266-1267]
When prestation becomes legally or physically
impossible (by fortuitous event or force majeure), the
debtor is released. Impossibility must have occurred
without fault of debtor, and after the obligation has
been constituted.
Partial Impossibility
(1) Courts shall determine whether it is so important
as to extinguish the obligation.
(2) If debtor has performed part of the obligation
when impossibility occurred, creditor must pay
the part done as long as he benefits from it.
(3) If debtor received full payment from creditor, he
must return excess amount corresponding to part
which was impossible to perform.
Doctrine of Unforeseen Events
When the service has become so difficult as to be
manifestly beyond the contemplation of all the
parties, the obligor may be released in whole or in
part [De Leon, 2003].
Requisites
(1) Event could not have been foreseen at the time of
the constitution of the contract.
(2) Event makes performance extremely difficult but
not impossible.
(3) Event not due to any act of the parties.
(4) Contract is for future prestation.
CONDONATION OR REMISSION OF DEBT, ART.
1270
ARTICLE 1270
Art. 1270. Condonation or remission is essentially
gratuitous, and requires the acceptance by the obligor.
It may be made expressly or impliedly.
One and the other kind shall be subject to the rules
which govern inofficious donations. Express
condonation shall, furthermore, comply with the forms
of donation.
Condonation
An act of liberality, by virtue of which, without
receiving any equivalent, creditor renounces the
enforcement of the obligation. The obligation is
extinguished either in whole or in such part of the
same to which remission refers.
Requisites:
(1) Debt must be existing and demandable.
(2) Renunciation must be gratuitous; without any
consideration.
(3) Debtor must accept the remission.
OBLIGATIONS BAR OPERATIONS COMMISSION
Effect
Art. 1273: Renunciation of the principal debt shall
extinguish the accessory obligations, but remission
of the latter leaves the principal obligation in force.
EXPRESS – FORMALITY OF DONATION [ART. 1270]
Made formally; in accordance with forms of ordinary
donations.
IMPLIED [ARTS. 1271, 1272, 1274]
Presumptions [Arts. 1271, 1272, 1274]
(1) Whenever the private document in which the debt
is found is in the possession of the debtor, it shall
be presumed that the creditor delivered it
voluntarily, unless the contrary is proved.
(2) Delivery of a private document evidencing credit
made voluntarily by the creditor to the debtor
implies the renunciation of the action of creditor
against the latter.
(3) Accessory obligation of pledge has been remitted
when thing after its delivery is found in the
possession of the debtor or third person.
CONFUSION, ARTS. 1275-1272
Confusion - The meeting in one person of the
qualities of creditor and debtor of the same
obligation.
Requisites
(1) It should take place between principal debtor and
creditor.
(2) It must be complete and definite – Parties must
meet all the qualities of creditor and debtor in the
obligation/ in the part affected.
Effects [Arts. 1275- 1277]:
(1) The obligation is extinguished from the time the
characters of the debtor and creditor are merged
in the same person.
(2) In joint obligations, confusion does not extinguish
the obligation except as regards the
corresponding share of the creditor or debtor in
whom the two characters concur.
(3) In solidary obligations, confusion in one of the
solidary debtors extinguishes the entire
obligation.
Obligation is not extinguished when confusion takes
place in the person of subsidiary debtor (e.g.
guarantor), but merger in the person of the principal
debtor shall benefit the former.
COMPENSATION
Compensation - Offsetting of two obligations which
are reciprocally extinguished if they are of the same
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value, or extinguished to the concurrent amount if of obligations of a depositary or of a bailee in

different values. commodatum.

Neither can compensation be set up against a creditor

Compensation Confusion who has a claim for support due by gratuitous title,
There must always be Involves only one without prejudice to the provisions of paragraph 2 of
two obligations. obligation. Article 301.

There are two persons There is only one person ARTICLE 1288
who are mutually whom the characters of Art. 1288. Neither shall there be compensation if one of
debtors and creditors of the creditor and debtor the debts consists in civil liability arising from a penal
each other in two meet. offense.
separate obligations,
each arising from the ARTICLE 1289
same cause.
Art. 1289. If a person should have against him several
Compensation: debts which are susceptible of compensation, the rules
on the application of payments shall apply to the order
Requisites Effects of the compensation.
(1) Each obligor is bound (1) Effects rise from the
ARTICLE 1290
principally, and at the moment all the
same time a principal requisites concur. Art. 1290. When all the requisites mentioned in Article
creditor of the other (2) Debtor claiming its 1279 are present, compensation takes effect by
(2) Both debts must benefits must prove operation of law, and extinguishes both debts to the
consist in a sum of compensation; once concurrent amount, even though the creditors and
money, or if the things proven, effects debtors are not aware of the compensation.
due are FUNGIBLE, of retroact from the
the same kind & moment when the (2) AGREEMENT [ART. 1282]
quality requisites concurred. Parties agree to compensate their mutual
(3) Both debts are due (3) Both debts are obligations even when some requisite in Art. 1279 is
(4) Debts are liquidated extinguished to the lacking.
and demandable concurrent amount,
(5) There must be no even though the (3) VOLUNTARY [ART. 1282]
retention or creditors and debtors ARTICLE 1282
controversy over either are not aware of the Art. 1282. The parties may agree upon the
of the debts, compensation. compensation of debts which are not yet due.
commenced by third (4) Accessory obligations
persons and are also extinguished. (4) JUDICIAL [ART. 1283]
communicated in due Decreed by court when there is counterclaim;
time to the debtor effective upon final judgment
(6) Compensation is not
prohibited by law
KINDS
ARTICLE 1283
(1) LEGAL COMPENSATION [ARTS. 1286-1290]
Takes place by operation of law Art. 1283. If one of the parties to a suit over an
obligation has a claim for damages against the
ARTICLE 1286
other, the former may set it off by proving his right to
said damages and the amount thereof.
Art. 1286. Compensation takes place by operation of
law, even though the debts may be payable at different
(5) FACULTATIVE
places, but there shall be an indemnity for expenses of
When it can be claimed by one of the parties who,
exchange or transportation to the place of payment.
however, has the right to object to it.
ARTICLE 1287
Compensation which can only be set up at the option
Art. 1287. Compensation shall not be proper when one of a creditor, when legal compensation cannot take
of the debts arises from a depositum or from the place because some legal requisites in favor of the
creditor are lacking. Creditor may renounce his right

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to compensation, and he himself may set it up. As Effects

opposed to conventional compensation, facultative In General If Original If New Obligation
compensation is unilateral and does not depend Obligation is Void is Void
upon the agreement of the parties. Old Novation is void if New obligation is
obligation is the original void, the old
OBLIGATIONS NOT COMPENSABLE [ARTS. 1287-1288] extinguished obligation was obligation
Compensation is prohibited in: and replaced void, except when subsists, unless
(1) Contracts of depositum by the new annulment may the parties
(2) Contracts of commodatum one be claimed only intended that the
(3) Future support due by gratuitous title stipulated. by the debtor, or former relations
(4) Civil liability arising from a penal offense when ratification shall be
(5) Obligations due to the government validates acts that extinguished in
(6) Damage caused to the partnership by a partner are voidable [Art. any event [Art.
1298] 1297]
NOVATION, [ARTS. 1291-1304] 1. Original 1. New obligation
Extinguishment of an obligation by the substitution obligation is void: void: No novation
or change of the obligation by a subsequent one No novation 2. New obligation
which extinguishes or modifies the first either by 2. Original voidable:
changing the object or principal conditions, or by obligation Novation is
substituting the person of the debtor, or by voidable: Effective effective
subrogating a third person in the rights of the if contract is
creditor. A juridical act of dual function—it ratified before
extinguishes an obligation, and at the same time, it novation.
creates a new one in lieu of the old.
Accessory obligations are also extinguished, but may
Requisites subsist only insofar as they may benefit third persons
(1) A previous valid obligation who did not give their consent to the novation OR
(2) Agreement of all the parties to the new obligation those who may be affected, upon agreement
(3) Extinguishment of the old obligation between the parties.
(4) Validity of the new obligation
Original or new obligation with suspensive or resolutory
Novation is not presumed. condition
Express novation: Parties must expressly disclose Art. 1299: If original obligation was subject to a
their intent to extinguish the old obligation by suspensive or resolutory condition, the new
creating a new one. obligation shall be under the same condition, unless
Implied novation: No specific form is required. There it is otherwise stipulated.
must be incompatibility between the old and new
obligation or contract. Compatible Conditions Incompatible
Conditions
California Bus Line v. State Investment [2003]: (a) Fulfillment of both (a) Original
In the absence of an unequivocal declaration of conditions: new obligation obligation is
extinguishment of the pre-existing obligation, only becomes demandable extinguished,
proof of incompatibility between the old and new (b) Fulfillment of condition while new
obligation would warrant a novation by implication. concerning the original obligation exists
obligation: old obligation (b) Demandability
is revived; new obligation shall be subject
Test of Incompatibility loses force to fulfillment/
Whether or not the old and new obligation can stand
(c) Fulfillment of condition nonfulfillment of
together, each one having an independent existence.
concerning the new the condition
No incompatibility exists when they can stand obligation: no novation; affecting it
together. Hence, there is no novation. Incompatibility requisite of a previous
exists when they cannot stand together. Hence, there
valid and effective
is novation.
obligation lacking

Objective Novation
(1) Change of the subject matter
(2) Change of cause or consideration

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(3) Change of the principal conditions or terms Conventional Assignment of credit

subrogation
Subjective Novation Debtor’s consent is Debtor’s consent is not
(1) Substitution of the Debtor: Consent of creditor is necessary. required.
an indispensable requirement both in Extinguishes an Refers to the same right
expromision and delegacion. obligation and gives which passes from one
rise to a new one. person to another, without
Expromision Delegacion modifying or extinguishing
Initiative for change does Debtor (delegante) the obligation.
not emanate from the offers or initiates the Defects/vices in the Defects/vices in the old
debtor, and may change, and the creditor old obligation are obligation are not cured.
even be made without (delegatorio) accepts a cured.
his knowledge. third person (delegado)
as consenting to the (b) Legal subrogation: by operation of law
substitution. Legal subrogation is not presumed, except in the
Requisites following circumstances:
(1) Consent of the Consent of old debtor, (1) When creditor pays another creditor who is
creditor and the new new debtor, and creditor preferred, even without the debtor’s knowledge
debtor (2) When a third person not interested in the
(2) Knowledge or obligation pays with the express or tacit approval
consent of the old of the debtor
debtor is not required (3) When, even without the knowledge of the debtor,
Effects a person interested in the fulfillment of the
(1) Old debtor is (1) Insolvency of the new obligation pays, without prejudice to the effects of
released debtor revives the confusion as to the latter’s share
(2) Insolvency of the new obligation of the old
debtor does not debtor if it was Effects
revive the old anterior and public, Total Partial
obligation in case the and known to the old
(1) Transfers to the person (1) A creditor, to whom
old debtor did not debtor.
subrogated the credit partial payment
agree to expromision (2) New debtor can
with all the rights has been made,
(3) If with knowledge demand
thereto appertaining, may exercise his
and consent of old reimbursement of the
either against the debtor right for the
debtor, new debtor entire amount he has
or third persons. remainder, and
can demand paid from the original
(2) Obligation is not shall be preferred
reimbursement of the debtor. He may
extinguished, even if the to the person
entire amount paid compel creditor to
intention is to pay it. subrogated in his
and with subrogation subrogate him to all
(3) Defenses against the old place in virtue of
of creditor’s rights. of his rights.
creditor are retained, the partial
(4) If without knowledge
unless waived by the payment.
of the old debtor, new
debtor.
debtor can demand
reimbursement only
up to the extent that
the latter has been
benefited without
subrogation of
creditor’s rights.

(2) Subrogation of a third person in the rights of the

creditor
(a) Conventional subrogation: by agreement of
the parties;

Requisites: the consent of the third person, and of the

original parties (Art. 1301).

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Essential Requisites position to deliberate whether or not he would

purchase the yacht and invitation to a proposal being
made to him, which might be accepted by him or
ARTICLE 1318 not”
Art. 1318. There is no contract unless the following
requisites concur: OFFER TERMINATES upon:
(1) Consent of the contracting parties; (a) Rejection by the offeree
(2) Object certain which is the subject matter of the (b) Incapacity (death, civil interdiction, insanity, or
contract; insolvency) of the offeror or offeree before
(3) Cause of the obligation which is established. acceptance is conveyed
(c) Counter-offer
(d) Lapse of the time stated in the offer without
CONSENT
acceptance being conveyed
(a) The meeting of the minds between the parties on
(e) Revocation of the offer before learning of
the subject matter and the cause of the contract.
acceptance
(b) The manifestation of the meeting of the offer and
(f) Supervening illegality before acceptance [J.B.L.
the acceptance upon the thing and the cause
Reyes]
which are to constitute the contract.
Requisites of Consent:
ACCEPTANCE
(1) It must be manifested by the concurrence of the
Requisites:
offer and acceptance [Arts. 1319-1326].
(a) Unqualified and unconditional, i.e. it must
(2) The contracting parties must possess the
conform with all the terms of the offer, otherwise
necessary legal capacity [Arts. 1327-1329].
it is a counter-offer (Art. 1319)
(3) It must be intelligent, free, spontaneous, and real
(b) Communicated to the offeror and learned by him
(not vitiated) [Arts. 1330-1346].
(Arts. 1319, 1322). If made through an agent, the
offer is accepted from the time the acceptance is
CONCURRENCE OF OFFER AND ACCEPTANCE
communicated to such agent.
Offer: a unilateral proposition which one party makes (c) Express/implied, but is not presumed.
to the other for the celebration of the contract
[Tolentino]. OPTION CONTRACT: A preparatory contract in which
one party grants to the other, for a fixed period, the
Requisites: option to decide whether or not to enter into a
(a) Definite principal contract [Art. 1324].
(b) Intentional
(c) Complete
With consideration Without consideration
Invitation to make offers (advertisements)
(a) Business advertisements of things for sale are
Offeror cannot Offeror may withdraw by
NOT definite offers, just invitations to make an
unilaterally withdraw his communicating
offer, UNLESS the contrary appears (Art. 1325).
offer. withdrawal to the offeree
(b) Advertisements for bidders are invitations to
before acceptance.
make proposals, the advertiser is NOT bound to
accept the lowest or highest bid; UNLESS the
contrary appears. The bidder is the offeror (Art. LEGAL CAPACITY
1326). Persons Incapacitated to Give Consent
(c) Statements of intention: no contract results even (a) Minors, UNLESS, the minor’s consent is operative
if accepted. in contracts:
(1) For necessaries [Art.1427]
(2) Where the minor actively misrepresents his
Rosenstock v. Burke (1924):
age (estoppel)
FACTS: Elser, in a letter, informed Burke that he was
Mercado v. Espiritu, 1917: Minors held in estoppel
“in a position and is willing to entertain” the
through active misrepresentation.
purchase of the yacht under some terms.
Bambalan v. Maramba, 1928: There is no estoppel if
the minority was known by the other party.
HELD: “The word “entertain” applied to an act does
(b) Insane or demented persons, UNLESS they
not mean the resolution to perform said act, but
contract during a lucid interval.
simply a position to deliberate for deciding to
(c) Deaf-mutes who do not know how to read AND
perform or not to perform said act. It was merely a
write.

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Disqualified to contract [art. 1329]:

(a) Those under civil interdiction for transactions inter Martinez v. HSBC (1910):
vivos [RPC Art. 34]. The conveyance of several properties by the wife to her
(b) Undischarged insolvents [Insolvency Law, Sec. husband’s creditors, though reluctant, is still consent.
24]. She assented to the requirements of the defendants in
(c) Husband and wife cannot donate to each other order that the civil and criminal actions against them
[Art. 123, FC], nor sell if the marriage is under ACP would be dropped. A contract is valid even though one
[Art.1490]. of the parties entered into it against his wishes and
(d) The ff. cannot purchase [Art. 1491]: desires, or even against his better judgment.
(1) The guardian: his ward’s property
(2) The agent: the principal’s property (3) Violence
(3) Executors and administrators: property under Irresistible force used to extort consent (J.B.L. Reyes).
administration
(4) Public officers-state: property under their (4) Undue Influence
administration When a person takes improper advantage of his
(5) Justices, judges, prosecutors, clerks of court, power over the will of another, depriving the latter of
lawyers: property attached in litigation. a reasonable freedom of choice [Art. 1337].
Circumstances:
VICES OF CONSENT (a) Relationship of the parties (family, spiritual,
(1) Mistake confidential etc.)
Inadvertent and excusable disregard of a (b) That the person unduly influenced was suffering
circumstance material to the contract [J.B.L. Reyes]. from infirmity (mental weakness, ignorance etc.)
(Art.1337).
In order that mistake may invalidate consent, it
should refer to the substance of the thing which is (5) Fraud
the object of the contract, or to those conditions When through insidious words or machinations of
which have principally moved one or both parties to one of the contracting parties, the other is induced to
enter into the contract [Art.1331]. enter into a contract which, without them, he would
not have agreed to [Art. 1338].
Mistake which vitiates consent is an error of fact, and
not an error of law. Ignorance of the law excuses no ARTICLE 1339
one from compliance therewith (Art. 3); but the
Art. 1339. Failure to disclose facts, when there is a
modern tendency is to allow an excusable mistake of
duty to reveal them, as when the parties are bound
law to be invoked as vitiating consent (Tolentino).
by confidential relations, constitutes fraud.
Mistake of Fact Mistake of Law Mutual Mistake
ARTICLE 1340
When one or When one or (1) Must be as
both contracting both parties to the legal Art. 1340. The usual exaggerations in trade, when the
parties believe arrive at an effect of an other party had an opportunity to know the facts, are
that a fact exists erroneous agreement not in themselves fraudulent.
when in reality it conclusion on (2) Must be
does not, or vice the mutual ARTICLE 1341
versa. interpretation of (3) Real Art. 1341. A mere expression of an opinion does not
a question of purpose of signify fraud, unless made by an expert and the other
law or its legal the parties party has relied on the former's special knowledge,
effects. must have
been ARTICLE 1342
frustrated
Art. 1342. Misrepresentation by a third person does
not vitiate consent, unless, such misrepresentation
(2) Intimidation
has created substantial mistake and the same is
When one of the contracting parties is compelled by
mutual.
a reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon
the person or property of his spouse, descendants or ARTICLE 1343
ascendants, to give his consent [Art. 1335]. Art. 1343. Misrepresentation made in good faith is
not fraudulent but may constitute error.

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SIMULATION OF CONTRACTS takes place when the (b) Aleatory contract, where one of the contracting
parties do not really want the contract they have parties assumes the risk that the thing will never
executed to produce the legal effects expressed by come into existence, e.g. insurance.
its wordings. It may be absolute or relative [Arts.
1345-1346]. CAUSE
DEFINITION
The essential and impelling reason why a party
Absolute Simulation Relative Simulation assumes an obligation (Manresa). Motive, on the
other hand, is the particular reason for a contracting
No real transaction is Real transaction is hidden. party which does not affect the other.
intended.
Fictitious contract. Disguised contract. REQUISITES:
Void. Bound as to hidden 1. Must exist at the time of the contract is entered
agreement, so long as it into [Arts. 1352, 1409, par. 3].
does not prejudice a third 2. Must be lawful (ibid).
person and is not contrary 3. Must be true or real [Art.1353].
to law, morals, good
customs, public order or CAUSE IN
public policy. Onerous Renumeratory Pure
Contracts Contracts Beneficence
OBJECT The undertaking The service or Mere
DEFINITION: or the promise benefit which is liberality of
The subject matter; the thing, right or service which of the thing or remunerated the
is the subject matter of the obligation arising from service by the benefactor
the contract [Tolentino]. other party

REQUISITES: In Villaroel v. Estrada (1940), where a moral

(a) Must be within the commerce of men [Art. 1347] obligation is based upon a previous civil obligation,
(b) Must not be impossible, legally or physically which has already been barred by the statute of
[Art.1348] limitations at the time the contract is entered into, it
(c) For things as object of contract, must be in constitutes a sufficient cause or consideration to
existence or capable of coming into existence support a contract (natural obligation).
[See Arts. 1461, 1493, 1495]
(d) Must be determinate or determinable, without BUT,
the need of a new contract between the parties In Fisher v. Robb (1939), if the moral obligation arises
[Arts. 1349, 1460, par.2] wholly from ethical consideration, it cannot
constitute a sufficient cause to support an onerous
All things or services may be the object of contracts, contract, as when the promise is made on the
EXCEPT: erroneous belief that one was morally responsible for
(a) Things which are outside the commerce of men the failure of an enterprise (moral obligation).
(b) Intransmissible rights
(c) Future inheritance except in cases authorized by
law Cause Effect
(d) Impossible things or services
(e) Objects which are indeterminable as to their kind, Lack of Cause – If there is no cause
the genus should be expressed absence or total lack whatsoever, contract is VOID;
of cause a fictitious sale is VOID.
In order that a thing, right, or service, may be the
object of a contract, it should be in existence at the NOTE: Cause must exist at
moment of the celebration of the contract, or at the time of the perfection of
least, it can exist subsequently or in the future. the contract; it need not exist
later.
A FUTURE THING may be the object of a contract,
such contract may be interpreted as a: Contrary to law, If cause is unlawful,
(a) Conditional contract, where 3its efficacy should morals, good transaction is VOID.
depend upon the future existence of the thing. customs, public policy

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Cause Effect
and public order If parts of a contract are
illegal but the rest are
supported by lawful cause,
claimant of such has the
burden of showing proof;
otherwise, the whole contract
is VOID.
Contract with illegal cause
may still produce effect in
certain cases where parties
are not of equal guilt: (1)
innocent party can’t be
compelled to perform his
obligation and he may
recover what has already
been given; (2) if both parties
are guilty, neither can sue the
other, the law leaving them
as they are (in pari delicto).
Falsity of cause – Contract with a false cause is
cause is stated but is merely revocable/voidable.
untrue
Parties are given a chance to
show that a cause really
exists, and that said cause is
true and lawful.
Lesion or inadequacy Inadequacy of cause shall not
of cause – cause is invalidate the contract except
not proportionate to when: (1) there is fraud,
object mistake, undue influence (2)
when parties intended a
donation
Liguez v. CA (1957):
In making the donation in question, Lopez was not
moved exclusively by the desire to benefit Liguez, but
also to secure her cohabiting with him, so that he
could gratify his sexual impulses. The donation was
an onerous transaction and clearly predicated upon
an illicit causa.
Kinds of Contracts
CONSENSUAL
Contracts which are perfected by mere consent of
the parties regarding the subject matter and the
cause of the contract [Art.1315].
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REAL
Contracts which are perfected not merely by consent
but by delivery, actual or constructive, of the object of
the obligation [Art.1316]. Example: contract of
pledge, commodatum, mutuum.
FORMAL OR SOLEMN
Contracts for which a special form is necessary for its
perfection [Art. 1356].
DONATIONS (ARTS. 748-749)
ARTICLE 748
Art. 748. The donation of a movable may be made
orally or in writing.
An oral donation requires the simultaneous delivery
of the thing or of the document representing the
right donated.
If the value of the personal property donated exceeds
five thousand pesos, the donation and the
acceptance shall be made in writing, otherwise, the
donation shall be void.
ARTICLE 749
Art. 749. In order that the donation of an immovable
may be valid, it must be made in a public document,
specifying therein the property donated and the
value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of
donation or in a separate public document, but it
shall not take effect unless it is done during the
lifetime of the donor.
If the acceptance is made in a separate instrument,
the donor shall be notified thereof in an authentic
form, and this step shall be noted in both
instruments.
PARTNERSHIP WHERE REAL PROPERTY IS CONTRIBUTED
(ARTS. 1771, 1773)
ARTICLE 1771
Art. 1771. A partnership may be constituted in any
form, except where immovable property or real rights
are contributed thereto, in which case a public
instrument shall be necessary.
ARTICLE 1773
Art. 1773. A contract of partnership is void, whenever
immovable property is contributed thereto, if an
inventory of said property is not made, signed by the
parties, and attached to the public instrument.
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ANTICHRESIS (ART. 2134) Formal/Solemn Contract Special Form Required

ARTICLE 2134 by Law
Art. 2134. The amount of the principal and of the P500 (Art. 748).
interest shall be specified in writing; otherwise, the (3) Partnerships where real Must be in public
contract of antichresis shall be void. property contributed instrument; otherwise
the contract of
partnership is void
AGENCY TO SELL REAL PROPERTY OR AN INTEREST
(Art.1771, 1773).
THEREIN (ART. 1874)
(4) Contracts of antichresis The principal loan and
ARTICLE 1874
the interest, if any,
Art. 1874. When a sale of a piece of land or any must be specified in
interest therein is through an agent, the authority of writing; otherwise, the
the latter shall be in writing; otherwise, the sale shall contract of antichresis
be void. is void (Art. 2134).
(5) Agency to sell real Authority of the agent
STIPULATION TO CHANGE INTEREST (ART. 1956) property or any interest must be in writing;
ARTICLE 1956 therein otherwise, the sale is
Art. 1956. No interest shall be due unless it has been null and void
expressly stipulated in writing. (Art.1874).
(6) Stipulation to pay Must be expressly
interest on loans, interest made in writing
STIPULATION LIMITING COMMON CARRIER’S DUTY OF for the use of money (Art.1956).
EXTRAORDINARY DILIGENCE TO ORDINARY DILIGENCE
(ART. 1744) (7) Stipulation limiting Must be (1) in writing,
ARTICLE 1744
common carrier’s duty of signed by the shipper
Art. 1744. A stipulation between the common carrier extraordinary diligence to or owner; (2)
and the shipper or owner limiting the liability of the ordinary diligence supported by a
former for the loss, destruction, or deterioration of valuable consideration;
the goods to a degree less than extraordinary and (3) reasonable,
diligence shall be valid, provided it be: just and not contrary
to public policy.
(1) In writing, signed by the shipper or owner; (8) Chattel mortgage Must be recorded in
the Chattel Mortgage
(2) Supported by a valuable consideration other than Register (Art. 2140).
the service rendered by the common carrier; and (9) Transfer of large cattle Requires transfer of
the certificate of
(3) Reasonable, just and not contrary to public policy. registration (Rev. Adm.
Code, Sec. 523).
CHATTEL MORTGAGE
ARTICLE 2140
Art. 2140. By a chattel mortgage, personal property is
recorded in the Chattel Mortgage Register as a
security for the performance of an obligation. If the
Formality
movable, instead of being recorded, is delivered to STATUTORY BASIS
the creditor or a third person, the contract is a pledge ARTICLE 1356
and not a chattel mortgage.
Art. 1356. Contracts shall be obligatory, in whatever
form they may have been entered into, provided all
SALE OF LARGE CATTLE the essential requisites for their validity are present.
Summary of Formal or Solemn Contracts However, when the law requires that a contract be in
Formal/Solemn Contract Special Form Required some form in order that it may be valid or
by Law enforceable, or that a contract be proved in a certain
(1) Donations of real Must be in a public way, that requirement is absolute and indispensable.
property instrument (Art.749). In such cases, the right of the parties stated in the
(2) Donations of personal Must be in a written following article cannot be exercised.
property contract if the
donation exceeds

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GENERALLY, form is not required. It is enough that
there be consent, subject matter and cause
(Art.1318).
EXCEPTIONS:
(1) Formal contracts and
(2) Real contracts
When Form is Important:
(a) For Validity – e.g. for formal or solemn contracts
(b) For Enforceability – e.g. for agreements
enumerated under the Statute of Frauds
(Art.1403)
(c) For Convenience – e.g. for contracts enumerated
in Art. 1385
ARTICLE 1357
Art. 1357. If the law requires a document or other
special form, as in the acts and contracts
enumerated in the following article, the contracting
parties may compel each other to observe that form,
once the contract has been perfected. This right may
be exercised simultaneously with the action upon the
contract. (1279a)
This article applies only when form is needed for
convenience, not for validity or enforceability. Thus,
before the contracting parties may be compelled to
execute the needed form, it is essential that the
contract be: (1) perfected or valid (Art.1357) and (2)
enforceable under the Statute of Frauds (Art.1356).
ARTICLE 1358
Art. 1358. The following must appear in a public
document:
(1) Acts and contracts which have for their object the
creation, transmission, modification or
extinguishment of real rights over immovable
property; sales of real property or of an interest
therein a governed by Articles 1403, No. 2, and 1405;
(2) The cession, repudiation or renunciation of
hereditary rights or of those of the conjugal
partnership of gains;
(3) The power to administer property, or any other
power which has for its object an act appearing or
which should appear in a public document, or should
prejudice a third person;
(4) The cession of actions or rights proceeding from
an act appearing in a public document.
All other contracts where the amount involved
exceeds five hundred pesos must appear in writing,
even a private one. But sales of goods, chattels or
things in action are governed by Articles, 1403, No. 2
and 1405.
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The necessity for the public document in the
contracts enumerated under this article is only for
convenience, not for validity or enforceability.
Fule v. Court of Appeals (1998):
Article 1358, which requires the embodiment of
certain contracts in a public instrument, is only for
convenience, and registration of the instrument only
adversely affects third parties.
Defective Contracts
FOUR KINDS OF DEFECTIVE CONTRACTS
(PARAS):
(a) RESCISSIBLE: Valid until rescinded. All essential
requisites of a contract exist but there is injury or
damage to one of the parties or to third persons –
external or extrinsic defect consisting of an
economic damage or lesion.
(b) VOIDABLE: Valid until annulled, unless ratified.
Defect is more or less intrinsic, as in the case of
vitiated consent.
(c) UNENFORCEABLE: Cannot be sued upon or
enforced, unless it is ratified. Intermediate ground
between voidable and void contracts.
(d) VOID: No legal effect at all and cannot be ratified
or validated.
RESCISSIBLE CONTRACTS (ART. 1381)
ARTICLE 1381
Art. 1381. The following contracts are rescissible:
Those which are entered into by guardians whenever
the wards whom they represent suffer lesion by more
than one-fourth of the value of the things which are
the object thereof;
Those agreed upon in representation of absentees, if
the latter suffer the lesion stated in the preceding
number;
Those undertaken in fraud of creditors when the
latter cannot in any other manner collect the claims
due them;
Those which refer to things under litigation if they
have been entered into by the defendant without the
knowledge and approval of the litigants or of
competent judicial authority;
All other contracts specially declared by law to be
subject to rescission.
ARTICLE 1382
Art. 1382. Payments made in a state of insolvency for
obligations to whose fulfillment the debtor could not
be compelled at the time they were effected, are also
rescissible.
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Definition Art. 1191 – Rescission or Art. 1381 – Rescission by

(1) Process designated to render inefficacious a Resolution reason of lesion
contract validly entered into and normally damages for the breach subordinated to the
binding, by reason of external conditions, causing is purely secondary. existence of an economic
an economic prejudice to a party or to his prejudice. Hence, where
creditors (Scaevola). the defendant makes
(2) Remedy granted by law to the contracting parties good the damages
and to third persons in order to secure reparation caused, the action cannot
for damages caused them by a contract, even if be maintained or
the contract is valid, by means of the restoration continued.
of things to their condition prior to the
celebration of said contract (Manresa) VOIDABLE CONTRACTS
(3) Relief to protect one of the parties or a third ARTICLE 1390
person from all injury and damages which the Art. 1390. The following contracts are voidable or
contract may cause, to protect some preferential annullable, even though there may have been no
right [Aquino v. Tañedo (1919)]. damage to the contracting parties:
(1) Those where one of the parties is incapable of
DIFFERENCE FROM RESCISSION (RESOLUTION) UNDER giving consent to a contract;
ART. 1191 (2) Those where the consent is vitiated by mistake,
ARTICLE 1191 violence, intimidation, undue influence or fraud.
Art. 1191. The power to rescind obligations is implied
in reciprocal ones, in case one of the obligors should These contracts are binding, unless they are
not comply with what is incumbent upon him. annulled by a proper action in court. They are
susceptible of ratification.
The injured party may choose between the
fulfillment and the rescission of the obligation, with Three Ways or Modes of Convalidating a Voidable
the payment of damages in either case. He may also Contract [Jurado]
seek rescission, even after he has chosen fulfillment, (1) By prescription of the action for annulment
if the latter should become impossible. (Art.1391)
(2) By ratification or confirmation (Art. 1392-1396)
The court shall decree the rescission claimed, unless (3) By loss of the thing which is the object of the
there be just cause authorizing the fixing of a period. contract through the fraud or fault of the person
who is entitled to institute the action for the
This is understood to be without prejudice to the annulment (Art.1401)
rights of third persons who have acquired the thing,
in accordance with Articles 1385 and 1388 and the ARTICLE 1391
Mortgage Law.
Art. 1391. The action for annulment shall be brought
within four years.
Congregation of the Religious Virgin Mary v. Orola
(2008): This period shall begin:
Art. 1191 – Rescission or Art. 1381 – Rescission by
Resolution reason of lesion In cases of intimidation, violence or undue influence,
Applies only to Does not apply to from the time the defect of the consent ceases.
reciprocal obligations, reciprocal obligation, and
such that a party’s therefore, action is not In case of mistake or fraud, from the time of the
breach thereof partakes based on a breach of an discovery of the same.
of a tacit resolutory obligation.
condition which entitles And when the action refers to contracts entered into
the injured party to by minors or other incapacitated persons, from the
rescission. time the guardianship ceases.
Predicated on breach of Predicated on injury to
faith. economic interests of the UNENFORCEABLE CONTRACTS
party plaintiff/lesion. ARTICLE 1403
Principal action that is Subsidiary action.
retaliatory in character. Art. 1403. The following contracts are unenforceable,
unless they are ratified:
The reparation of The cause of action is

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(1) Those entered into in the name of another person
by one who has been given no authority or legal
representation, or who has acted beyond his
powers;
(2) Those that do not comply with the Statute of
Frauds as set forth in this number. In the
following cases an agreement hereafter made
shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be
in writing, and subscribed by the party charged,
or by his agent; evidence, therefore, of the
agreement cannot be received without the
writing, or a secondary evidence of its contents:
(a) An agreement that by its terms is not to be
performed within a year from the making
thereof;
(b) A special promise to answer for the debt,
default, or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to
marry;
(d) An agreement for the sale of goods, chattels
or things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in
action or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in
his sales book, at the time of the sale, of the
amount and kind of property sold, terms of
sale, price, names of the purchasers and
person on whose account the sale is made, it
is a sufficient memorandum;
(e) An agreement of the leasing for a longer
period than one year, or for the sale of real
property or of an interest therein;
(f) A representation as to the credit of a third
person.
(3) Those where both parties are incapable of giving
consent to a contract.
Definition of Unenforceable Contracts
Those that cannot be enforced in court or sued upon
by reason of certain defects provided by law until and
unless they are ratified according to law [De Leon].
Kinds of Unenforceable Contracts:
(1) Unauthorized contracts – those entered into by
one who has no authority or legal representation
or who has acted beyond his powers [Art.1403,
par.1].
(2) Those which did not comply with the Statute of
Frauds [Art.1403, par.2].
(3) Those where both parties are incapable of giving
consent to a contract [Art.1403, par.3].
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General Rules of Application of Statute of Frauds
(a) The Statute of Frauds is a Rule of Exclusion, i.e.
oral evidence might be relevant to the
agreements enumerated therein and might
therefore be admissible were it not for the fact
that the law excludes said oral evidence.
(b) The defense of the Statute of Frauds may be
waived [Art.1405].
(c) Applies only to executory contracts, not partially
or completely executed (consummated)
contracts.
(d) The Statute of Frauds cannot apply if the action is
neither for damages because of the violation of an
agreement nor for the specific performance of said
agreement [Lim vs. Lim, 10 Phil 635].
(e) The Statute of Frauds is exclusive, that is, it
applies only to the agreements or contracts
enumerated therein [See Quintos v. Morata
(1930)].
(f) The Statute of Frauds is a personal defense, that
is, a contract infringing it cannot be assailed by
third persons [Art.1408].
(g) Contracts infringing the Statute of Frauds are not
void, they are merely unenforceable [Art.1403].
(h) The Statute of Frauds does not determine the
credibility or weight of evidence. It merely
concerns itself with the admissibility thereof.
(i) The Statute of Frauds does not apply if it is
claimed that the contract does not express the
true agreement of the parties. As long as the true
or real agreement is not covered by the Statute of
Frauds, it is provable by oral evidence [Cayuga v.
Santos].
VOID CONTRACTS
ARTICLE 1409
Art. 1409. The following contracts are inexistent and
void from the beginning:
Those whose cause, object or purpose is contrary to
law, morals, good customs, public order or public
policy;
Those which are absolutely simulated or fictitious;
Those whose cause or object did not exist at the time
of the transaction;
Those whose object is outside the commerce of men;
Those which contemplate an impossible service;
Those where the intention of the parties relative to
the principal object of the contract cannot be
ascertained;
Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the
right to set up the defense of illegality be waived.
Definition of Void Contract [De Leon]
Those which, because of certain defects, generally
produce no effect at all. They are considered as
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inexistent from its inception or from the very ARTICLE 1346

beginning.
Special Classification of Void Contracts (Paras)
(1)INEXISTENT CONTRACTS: like those where
essential formalities are not complied with
(a) Example: A donation of land in a private
instrument
(b) This produces no effect whatsoever.
(2) ILLEGAL OR ILLICIT CONTRACTS:
(a) Example: A donation made because of an
immoral condition, such as illicit sexual
intercourse
(b) In some way, the donation produces some
effect in that that he who gave the donation
cannot get back what he has given.
Non-Existing Cause or Object [Paras]
Paragraph 3 speaks of contracts “whose object or
cause did not exist at the time of the transaction.”
This is not exactly correct because there can be valid
contracts involving future property; example, sale of
future or after-acquired property. Thus, Mr. Justice J.
B. L. Reyes notes: “Did not exist at the time of the
transaction” should be “Could not come into
existence because the object may legally be a future
thing.”
Art. 1346. An absolutely simulated or fictitious
contract is void. A relative simulation, when it does
not prejudice a third person and is not intended for
any purpose contrary to law, morals, good customs,
public order or public policy binds the parties to their
real agreement.
Effect of Simulated Contract
(a) If ABSOLUTELY simulated, the contract is void for
utter lack of consent.
(b) If RELATIVELY simulated, the hidden or intended
contract is generally binding (Onglengco v.
Ozaeta).
Stipulations must not be contrary to MANDATORY
AND PROHIBITIVE LAWS.
(1) Pactum commissorium [Arts. 2088, 2130, 1390]
A stipulation in a contract of mortgage or pledge
which provides that the mortgagee will
automatically own the property mortgaged in case
the mortgagor fails to pay the loan is VOID [Art.
2088]
(2) Pactum de non alienando [Art. 2130]
A stipulation forbidding the owner from alienating
the immovable mortgaged shall be VOID [Art.2130].
(3) Pactum leonina [Art. 1799]
A stipulation which excludes one or more partners
from any share in the profits or losses is VOID
[Art.1799]

Rescissible Voidable Unenforceable Void

Defect
Damage to a party or to a third Vitiation of Without or in excess of Absolute lack of essential
person. consent authority, or doesn’t requisite in fact or in law.
comply with Statute of
Fraud, or both parties are
incapacitated.
Effect
Valid until rescinded. Valid until Cannot be enforced by Does not produce any
annulled. court action. effect.
Grounds
1381 – 1382 1390 1403 1409
Necessity of Damage
Necessary. Not necessary.
Ratification
Can’t be ratified. May be ratified. Can’t be ratified.
Prescription
Prescriptible. - Imprescriptible.
Assailability by third persons
Assailable by a party or by a third Assailable only by a party. Assailable by a party or by a
party who is damaged. third party who is damaged.

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Effects of Contracts
STATUTORY BASIS
ARTICLE 1311
Art. 1311. Contracts take effect only between the
parties, their assigns and heirs, except in case where
the rights and obligations arising from the contract
are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not
liable beyond the value of the property he received
from the decedent.

If a contract should contain some stipulation in favor

of a third person, he may demand its fulfillment
provided he communicated his acceptance to the
obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The
contracting parties must have clearly and
deliberately conferred a favor upon a third person.

GENERAL RULE: Contracts are generally effective

only between the parties, their assigns and their
heirs (principle of relativity).

EXCEPTIONS
(a) Obligations arising from the contract are not
transmissible by nature, stipulation or law
[Art.1311].
(b) Where there is a stipulation pour autrui.
STIPULATION POUR AUTRUI (definition):
stipulation in favor of a third person conferring
clear and deliberate favor which is merely art of
the contract entered into by parties, neither of
whom acted as agent of third person.
(c) Third person induces another to violate his
contract (Art. 1314).
(d) Where third persons may be adversely affected by
a contract where they did not participate [see
Arts. 1312, 2150, 2151].
(e) Where law authorizes creditor to sue on a
contract entered into by his debtor [accion
directa, Art. 1313]

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Introduction
DEFINITION OF SALES – ARTS. 1458, 1470
Art. 1458. By the contract of sale one of the
contracting parties obligates himself to transfer the
ownership and to deliver a determinate thing, and
the other to pay therefor a price certain in money or
its equivalent.
A contract of sale may be absolute or conditional.
ESSENTIAL REQUISITES OF A CONTRACT OF
SALE – ART. 1505
ESSENTIAL ELEMENTS OF A VALID CONTRACT OF SALE
[CORONEL V. COURT OF APPEALS, 1996]:
(4) Consent or meeting of the minds to transfer
ownership in exchange for the price
(a) Being a consensual contract, the contract of
sale is perfected at the moment there is a
“meeting of the minds” upon the thing which
is the object of the contract and upon the
price. [Art. 1475]
(b) Requisites: (1) Capacity, (2) Offer and
acceptance, and (3) No vitiation of consent
(5) Determinate subject matter
(6) Price certain in money or its equivalent
STAGES OF CONTRACT OF SALE
PHASES OF A SALE CONTRACT [VILLANUEVA]:
(1) Preparation, conception or generation stage –
period of negotiation and bargaining, ending at
the moment of agreement of the parties.
(2) Perfection or “birth” of the contract – moment
when the parties come to agree on the terms of
the contract; and
(3) Consummation or “death” of the contract –
process of fulfillment or performance of the terms
agreed upon in the contract.
OBLIGATIONS CREATED – ART. 1165
Art. 1165. When what is to be delivered is a
determinate thing, the creditor, in addition to the
right granted him by Article 1170, may compel the
debtor to make the delivery.
If the thing is indeterminate or generic, he may ask
that the obligation be complied with at the expense
of the debtor.
If the obligor delays, or has promised to deliver the
same thing to two or more persons who do not have
the same interest, he shall be responsible for any
fortuitous event until he has effected the delivery.
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SALES BAR OPERATIONS COMMISSION
(1) Specific or Determinate Thing – capable of
particular designation, e.g. this car, the car with
plate no. XNY 200
(2) Generic or Indeterminate Thing – refers only to a
class, to a genus, and cannot be pointed out with
particularity, e.g. a car (GENUS NUNQUAM
PERIT)
NATURE OF OBLIGATIONS CREATED PER DEFINITION IN
ART.1458 [VILLANUEVA]:
(1) For the SELLER:
(a) To transfer ownership and
(b) To deliver possession of the subject matter
(2) For the BUYER: To pay the price
CHARACTERISTICS OF A CONTRACT OF SALE
(1) Consensual – perfected by mere consent.
(2) Bilateral and Reciprocal – imposes obligations on
both parties to the relationship. Consequently,
power to rescind is implied.
(3) Principal – can stand on its own and does not
depend on another contract for validity, as
contrasted from an accessory contract.
(4) Onerous – imposes valuable consideration as
prestation, as distinguished from a gratuitous
contract.
(5) Commutative – because a thing for value is
exchanged for equal value, as contrasted from an
aleatory contract.
(6) Nominate – given a particular name by law
SALE IS TITLE AND NOT MODE
Delivery or Tradition is the mode to transfer
ownership and possession to the buyer.
When a contract of sale is perfected, the seller is
merely obligated to transfer ownership and to deliver
the property. Transfer of ownership is effected only
upon delivery.
Equatorial Realty Dev. v. Mayfair Theater (2001): Sale
is merely title that creates the obligation on the part
of the seller to transfer ownership and deliver
possession, but on its own, sale is not a mode that
transfers ownership.
SALE DISTINGUISHED FROM OTHER
CONTRACTS
DONATION
Sale Donation
Onerous Gratuitous
Perfected by mere Must comply with the
consent formalities required by
law. [Art 745, CC]
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When the price of the contract of sale is simulated, There is a novation of the contract of loan into a
the sale may be void but the act may be shown to contract of sale when the creditor agrees to accept a
have been in reality a donation or some other thing in payment of the debt. Hence, if the thing
contract. [Art.1471, CC] given in payment turns out to belong to another, the
creditor’s remedy should be governed by the law on
BARTER sales, not loan. [Baviera]
Sale Barter
Bilateral promise to buy and sell [Asked in 80, 91]
Consideration is price in Consideration is A promise to buy and sell a determinate thing for a
money or its equivalent another thing price certain is reciprocally demandable. [Art 479,
CC]
Barter is a contract where one of the parties binds
himself to give one thing in consideration of the Like a sale, the thing must be determinate and the
other’s promise to give another thing [Art.1638, CC] price, certain.
If consideration consists partly in money and partly in CONTRACT OF SALE/CONTRACT TO SELL
another thing, the intention of the parties determines
whether the contract is one of sale or barter: Contract of Sale Contract to sell
If manifest intention is not clear: Barter when Ownership is Ownership is only
the value of thing is more than the amount of transferred upon transferred upon full
money or its equivalent; otherwise, sale. delivery payment of price
[Art.1468] Non-payment is a Full payment is a
resolutory condition positive suspensive
condition, hence non-
CONTRACT FOR A PIECE OF WORK payment would not
Contract for a Piece of give rise to the
Sale
Work obligation to transfer
Goods are Goods are ownership
manufactured or manufactured for
procured in the ordinary customer upon his Conditional Contract of
course of business special order Contract to sell
Sale
For the general market, For a specific Sale is already No perfected sale yet
whether on hand or not customer perfected
A subsequent buyer is A subsequent buyer is
The fact that the object were made by the seller only presumed to be a buyer presumed to be a
when customers placed their orders, does not alter in bad faith buyer in good faith
the nature of the contract of sale, for it only accepted
such orders as called for the employment of such
materials as it ordinarily manufactured or was in a
position habitually to manufacture such. [Celestino
Co & Co vs. Collector, 1956] Parties to a Contract of Sale
When each product or system executed is always
CAPACITY OF PARTIES – ARTS. 1489-1492
UNIQUE and could not mass-produce the product
All persons who have capacity to enter into
because of its very nature, such is a contract for a obligations may enter into a contract of sale [Art
piece of work. [Commissioner vs. Engineering
1489, CC]
Equipment and Supply Co., 1975]
KINDS OF INCAPACITY
DACION EN PAGO
(1) Absolute incapacity
Sale Dacion en pago (2) Relative incapacity
No pre-existing debt Pre-existing debt (3) Specific incapacity/Special disqualifications
Creates an obligation Extinguishes the
obligation (mode of ABSOLUTE INCAPACITY – ARTS. 1327, 1397, 1399
payment)
Price is more freely Price is value of the (MIND-CI) [ART. 1327, CC]
agreed upon, fixed by thing given (1) Minors
the parties (2) Insane or Demented

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UP COLLEGE OF LAW
(3) Deaf-mutes who do not know how to write
(4) Civil Interdiction
(5) Judicially-declared Incompetents (Art. 39)
(a) Prodigals
(b) Imbeciles
(c) Absence & presumption of death
(d) Persons not of unsound mind but by reason of
age, disease, weak mind, and other similar
causes, cannot take care of themselves and
manage their property without outside aid
(Easy prey for deceit and exploitation)
RELATIVE INCAPACITY: MARRIED PERSONS
(1) HUSBAND AND WIFE [ART. 1490, CC]
General Rule: Cannot sell property to each other
Exceptions:
(1) Separation of property in marriage settlement,
OR
(2) Judicial separation of property.
(2) ALIENAGE [ART. 39, CC]
General Rule: Aliens are disqualified from
purchasing or acquiring real property.
Exception: If acquisition is through hereditary
succession
(3) TRUSTEESHIP [ART. 39]
SPECIAL DISQUALIFICATIONS – ARTS. 1491-1492
SPECIFIC INCAPACITY/ SPECIAL DISQUALIFICATIONS (ART.
1491, CC) (AGE-PLJ)
(1) Agents
Cannot purchase or acquire property whose
administration or sale was entrusted to them
Exception: Principal gives consent.
(2) Guardian
Cannot purchase property of person under his
guardianship
Rationale: Guardianship is a trust of the highest
order, and the trustee cannot be allowed to have
any inducement or neglect his ward’s interest.
[Phil Trust Co v Roldan, 1956]
(3) Executors and Administrators
Cannot acquire or purchase property of estate
under their administration
(4) Public Officers and Employees
Cannot acquire or purchase property of State/any
of its subdivisions, GOCC or administration, the
administration of which was entrusted to them.
Includes judges and government experts who, in
any manner whatsoever take part in the sale.
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SALES BAR OPERATIONS COMMISSION
(5) Lawyers
Cannot acquire or purchase property or rights in
litigation in which they take part by virtue of their
profession
Rationale: Lawyers may have undue influence
over client; greed may get the better of the
sentiments of loyalty and disinterestedness.
[Valencia v Cabanting, 1991]
Prohibition is definite and permanent and cannot
be cured by ratification. [Rubias v Batiller, 1973]
Exceptions: An assignment to a lawyer by his
client of an interest in the property does not
violate Art 1491, where:
(1) A judgment has been rendered and has
become final; and
(2) In case of contingency fee arrangements: the
interest of the lawyer may be annotated as an
adverse claim on the property awarded to his
client [Director of Lands v Ababa, 1979]
(6) Justices, Judges, prosecuting attorneys, clerks and
other officers and employees connected with the
administration of justice
Cannot acquire or purchase property or rights in
litigation or levied upon on execution before the
court within whose jurisdiction or territory they
exercise their respective functions.
Rationale: to prevent fraud and to surround their
profession with prestige.
Prohibition applies only on sales or assignment
during the pendency of litigation involving the
property. [Macariola v Asuncion, 1963]
Art 1492: The prohibitions in the two preceding
articles (Arts. 1490, 1491) are applicable to sales in
legal redemption, compromises and renunciations.
EFFECTS OF INCAPACITY
(1) Absolute Incapacity
(a) If both parties are incapacitated:
UNENFORCABLE [Art. 1403 (3)]
(b) If only 1 party is incapacitated: VOIDABLE
(c) If necessaries are sold and delivered to an
incapacitated person: pay a reasonable price
therefor. [Art 1489, CC]
“Necessaries” – those which are indispensable for
sustenance, dwelling, clothing, medical
attendance, education and transportation. [Art
194, Family Code]
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(2) Relative Incapacity (b) Church

Sale between spouses is VOID. (c) Narcotics or dangerous drugs except upon
Rationale: prescription (RA 6425, the dangerous drugs
(1) To protect 3rd persons who may have act of 1972)
contracted with the spouse (2) When right is not intransmissible [Art 1347, CC]
(2) To avoid undue advantage of the dominant
spouse over the weaker spouse. Sale of future inheritance is void. [Art. 1347, CC]—
(3) To avoid circumvention of the prohibition The rights to succession are transmitted from the
against donations between spouses. [Medina v moment of the death of the decedent [Art. 777, CC].
CIR, 1961] Thus, one cannot sell or promise to sell what he
expects to inherit from a living person. [Rivero v.
Such prohibition shall likewise apply to common Serrano, 1950]
law spouses. [Calimlim-Canulas v Fortun, 1984]
BUT if already sold to a third person who relied When the subject matter is illicit, the contract of sale
on the title of his immediate seller, reconveyance is void [Art. 1409 (7)]
to the seller spouse is no longer available [Cruz v
CA, 1997] EXISTING, FUTURE, CONTINGENT
The goods which form the subject of a contract of sale
(3) Specific Incapacity/ Special Disqualifications may either be—
Contracts expressly prohibited by law are void (1) EXISTING goods owned or possessed by the
and cannot be ratified. Neither can the right to seller;
set-up the defense of illegality be waived. [Art. (2) Goods to be manufactured, raised, OR acquired
1409 (7), CC] by the seller – “FUTURE GOODS”;
(3) Goods whose acquisition by the seller depends
Sales entered into by guardians, administrators, upon a CONTINGENCY which may or may not
and agents (specific incapacities) in violation of happen. [Art 1462, CC]
Art. 1491 may be ratified by means of and in the (4) Things having POTENTIAL existence may be the
form of a new contract when the cause of nullity object of a contract of sale. [Art 1461, CC]
has ceased to exist. Ratification is valid only from
date of execution of the new contract and does Sale of MERE hope or Sale of VAIN hope or
not retroact. expectancy expectancy
Valid BUT subject to Void
Those entered into by public officers/employees, condition that the thing
justices and judges, and lawyers in violation of will come into existence Example: Sale of a
Art. 1491 are inexistent and void from the falsified raffle ticket
beginning. [Rubias v Batiller, 1973]. Example: “Next catch” which will never win.
of a fisherman.
Valid BUT subject to Void
condition that the thing
will come into existence Example: Sale of a
Subject Matter Example: “Next catch”
falsified raffle ticket
which will never win.
of a fisherman.
REQUISITES OF A VALID SUBJECT MATTER –
ARTS. 1459-1465
(1) Licit Emptio Rei Speratei Emptio Spei
(2) Existing, Future, Contingent Valid Void
(3) Determinate or determinable Contract is dependent Parties intend the
upon the existence of contract to exist at all
MUST BE LICIT [ART. 1459] the thing events
The thing is licit when— (a) If the thing does not (a) Buyer will have to
(1) Within the commerce of man [Art 1347, CC] come into existence: pay the price even
Example of properties that are not within the contract is if the thing does
commerce of man: considered as not not actually come
(a) Those belonging to the State or its political made and there is no into existence
subdivisions intended for public use or public obligation to pay the
service. (Art 420, CC). price

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UP COLLEGE OF LAW
Emptio Rei Speratei Emptio Spei
In case of doubt, the presumption is in favor of
emptio rei speratae since it is more in keeping
with the commutative character of the contract.
DETERMINATE OR DETERMINABLE
A thing is DETERMINATE when it is particularly
designated or physically segregated from all others
of the same class. [Art 1460, CC]
A thing is DETERMINABLE when it is capable of
being made determinate at the time the contract
was entered into without the necessity of a new or
further agreement between the parties. [Art 1460, CC]
Failure to state the exact location of the land does
not make the subject matter indeterminate, so long
as it can be located. [Camacho v CA, 2007]
The fact that the exact area of the land specified in
the contract of sale is subject to the result of a survey
does not render the subject matter indeterminate.
[Heirs of Juan San Andres v. Rodriguez, 2000]
PARTICULAR KINDS
(1) Future Goods
Sale of future goods or those goods which are to
be manufactured, raised, or acquired by seller
after the perfection of the sale is valid (Art 1462,
CC). “Future goods” are those capable of future
existence.
(2) Sale of Undivided Interest or Share
(a) Sole owner of a thing may sell an undivided
interest therein. [Art 1463, CC] e.g.: a fraction
(½) or percentage (50%), or “my share in the
property.”
(b) The sale of an undivided share in a specific
mass of fungible goods makes the buyer a co-
owner of the entire mass in proportion to the
amount he bought. [Art 1464,CC]
(c) Co-owner cannot sell more than his share
[Yturralde v CA, 1972]
(3) Sale of Things in Litigation
(a) Sale of things under litigation entered into by
defendant, without the approval of the
litigants or the court is rescissible. [Art 1381
(4)]
(b) NO RESCISSION where the thing is legally in
the possession of 3rd persons who did not act
in bad faith [Art 1385 (2)]
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SALES BAR OPERATIONS COMMISSION
(4) Things Subject to Resolutory Condition
Sale of things subject to a resolutory condition
may be the object of a contract of sale. [Art 1465,
CC]
Examples:
(a) things acquired under legal or conventional
right of redemption; or
(b) subject to reserva troncal,
(5) Quantity of Subject Matter not determinate
The fact that the quantity is not determinate shall
not be an obstacle to the existence of the
contract provided it is possible to determine the
same, without the need of a new contract
between the parties. [Art. 1349, CC]
Obligations of the Seller to
Transfer Ownership
SALE BY A PERSON NOT THE OWNER AT TIME
OF DELIVERY – ARTS. 1462, 1505, 1459
General Rule: Ownership is not acquired by the buyer.
One cannot give what one does not have. NEMO
DAT QUOD NON HABET [Art 1505, CC]
Exceptions: (RE-ROM)
(1) Seller has a Right to transfer ownership
(a) Seller need not be the owner of the thing at
the time of perfection of the contract. It is
sufficient that seller has a right to transfer
ownership thereof at the time it is delivered.
[Art. 1459]
(b) One who sells something he does not own yet
is bound by the sale when he acquires the
thing later [Bucton vs Gabar, 1974]
(2) Estoppel: Owner is, by his conduct, precluded
from denying the seller’s authority to sell. [Art.
1434]
(3) Registered land bought in good faith
(a) General rule: Buyer need not go beyond the
Torrens title
(b) Exception: When he has actual knowledge of
facts and circumstances that would impel a
reasonably cautious man to make further
inquiry
(4) Order of courts; Statutory Sale
UP COLLEGE OF LAW
(a) In execution sale, the buyer merely steps into
the shoes of the judgment debtor [Rule 39,
sec. 33, ROC]
(5) When goods are purchased in Merchant’s store,
Fair, or Market [Art 1505, CC]
(a) The policy of the law has always been that
where the rights and interest of the vendor
clash with that of an innocent buyer for value,
the latter must be protected. [Sun Brothers
and Co. vs. Velasco, 1958]
SALE BY A PERSON HAVING A VOIDABLE TITLE
– ARTS. 1506, 559
(1) True owner may recover the thing when the ff.
requisites concur:
(a) Subject matter is movable
(b) Owner has either lost the thing or has been
unlawfully deprived. [Art 559, CC]
(2) Reimbursement is necessary before owner can
recover when:
(a) Buyer acted in good faith
(b) Acquired at a public auction [Art 559, CC]
(3) Recovery no longer possible when:
(a) Buyer in good faith
(b) Acquired it at a merchant’s store, fair or
market. [Art 1506, CC]
Price
MEANING OF PRICE – ARTS. 1469-1474
Price signifies the sum stipulated as the equivalent
of the thing sold and also every incident taken into
consideration for the fixing of the price put to the
debit of the buyer and agreed to by him [Inchausti v.
Cromwell, 1911]
REQUISITES FOR A VALID PRICE
(Ce-MoRe)
(1) Certain or ascertainable at the time of perfection
(2) In Money or its equivalent
(a) Example of “equivalent”: Letters of credit
(b) If price is partly in money and partly in another
thing: Determine manifest intention of the
parties to see whether it was barter or sale.
[Art 1468,CC]
(c) If intention does not clearly appear, it shall be
considered a barter if the value of the thing
exceed the amount of money or its equivalent.
[Art 1468,CC]
(3) Real
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SALES BAR OPERATIONS COMMISSION
When buyer has an intention to pay and the seller
has an expectation to receive the price
(a) If simulated: Sale is VOID; BUT act may be
shown to have been a donation or some other
act or contract. [Art 1471, CC]
(b) An admission of non-payment of any centavo
in exchange of a property in a contract of sale
renders the sale VOID. [Labagala vs. Santiago,
2001]
(c) If Price is false – when the real consideration
is not the price stated in the contract:
i. Sale is void
ii. UNLESS proved to be founded on another
true and lawful price [Art 1353, CC]
HOW PRICE IS DETERMINED
(1) Fixed by agreement of the parties
(a) Fixing of price cannot be left to the discretion
of one of the parties
(b) BUT if such is accepted by the other, sale is
perfected. [Art 1473, CC]
(2) Determination is left to the judgment of a
specified person
(a) If unable or unwilling: Sale is inefficacious
UNLESS parties subsequently agree about the
price.
(b) If in bad faith/by mistake: Courts may fix price
(c) If 3rd person is prevented from fixing price by
fault of seller or buyer: Innocent party may
avail of remedies.
(3) The price is made in reference to another thing, or
when the price fixed is the price of the commodity
on a definite day, or in a particular exchange or
market, OR when the amount fixed is above or
below the price on such day, exchange or market.
[Art 1472, CC]
INADEQUACY OF PRICE – ARTS. 1355, 1470
General Rule: Does not affect a contract of sale. [Art.
1470, CC]
The stipulation in a contract of sale which states that
the consideration is “P1 and other valuable
considerations” does not make the contract void.
Gross inadequacy of price does not affect the
contract of sale except that it may indicate a defect
in consent. [Bagnas v. C.A., 1989]
Exceptions:
(1) It may indicate a defect in consent such as fraud,
mistake, or undue influence
(2) It may indicate that the contract was in reality a
donation or some other act or contract
(3) Inadequacy would make the contract of sale
rescissible where a contract was entered into by
the guardian of a ward or a representative of an
absentee, without the court’s approval, and the
UP COLLEGE OF LAW SALES BAR OPERATIONS COMMISSION

owner suffers lesion by more than ¼ of the value
of the thing sold. [Art 1381 (1) (2), CC]
WHEN NO PRICE AGREED – ART. 1474
(1) Sale is inefficacious [Art. 1474, CC]
(2) But if the thing or part thereof has been delivered
and appropriated by the buyer, he must pay a
reasonable price therefor.
(a) What is a reasonable price is a question of fact
dependent on the circumstances of each
particular case. [Art 1474, CC]
(b) The reasonableness of a price may be
determined on the basis of a company’s
balance sheet showing the book value or fair
market value of its shares. [Philippine Free
Press vs. CA, 2005]
MANNER OF PAYMENT MUST BE AGREED UPON
Disagreement on the manner of payment is
tantamount to a failure to agree on the price. [Toyota
Shaw vs. CA, 1995]
EARNEST MONEY VS. OPTION MONEY – ART.
1482
Earnest Money Definition: paid in advance of the
purchase price agreed upon by the parties in a
contract of sale, given by the buyer to the seller, to
bind the latter to the bargain. [Asked in 93, 02]
(a) The contract of sale is perfected at the
moment there is meeting of the minds upon
the thing which is the object of the contract
and upon the price. [Art. 1475, par.1, CC]
(b) From that moment, the parties may
reciprocally demand performance, subject to
the provisions of law governing the form of
contracts. [Art. 1475, par. 2, CC]
(c) A private instrument signed by the defendant
reciting that he bought from the plaintiff a
property at a specific address for a specific
price to be paid as soon as a bill of sale is
signed is not a mere draft but a perfected
agreement and hence, obligatory, even if there
was no statement as to area or price per
meter. [Goyena v. Tambunting, 1902]
General Rule: Offer may be withdrawn at any time
without even communicating such withdrawal to the
interested buyer.
Exception: When the offerer has allowed the offeree a
certain period to accept, the offer may be withdrawn
at any time before acceptance by communicating
such withdrawal. [Art 1324, CC]
Exception to the exception: Cannot be withdrawn
within a certain period if offer is founded upon a
consideration. [Art 1324 and 1479, CC]

Option Money vs. Earnest Money [Limson vs. CA, (2) OPTION CONTRACT – ARTS. 1479, 1324
2001] (a) Definition
Option Money Earnest Money i. An accepted unilateral promise to buy or
sell supported by a consideration distinct
Separate and distinct Part of purchase price from the price (Art 1479, CC)
consideration from the [Art 1482, CC] ii. An option contract is a privilege existing in
purchase price one person, for which he had paid a
Given when sale is not Given only when there consideration, which gives him the right to
yet perfected is already a sale buy, for example, certain merchandise or
When given, the would- When given, the buyer certain specified property, if he chooses, at
be-buyer is not required is bound to pay the any time within the agreed period, at a fixed
to buy, but may even balance price. [De la Cavada vs. Diaz, 1918]
forfeit it depending on iii. An option is not of itself a purchase, but
the terms of the option merely secures the privilege to buy.
Grantee of option is still Buyer manifests his iv. A consideration for an optional contract is
undecided whether or earnest desire to buy just as important as the consideration for
not to buy or sell the the property any other kind of contract. If there was no
property [Baviera] consideration for the option, then it cannot
be enforced any more than any other
contract where no consideration exists.
[Baviera]

Formation of Contract of Sale (b) Difference from Sale

Sale Option Contract
PREPARATORY – ART. 1479
Bilateral Unilateral: gives a right
(1) OFFER – ART. 1475
to buy or to sell, but
In General:
imposes no obligation

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st
Sale Option Contract Option Contract Right of 1 Refusal
on the part of the buy or sell only a right to match
option-holder, aside the 1st offer to buy
from the consideration should the grantor
for the offer decide to sell
Sale of property Sale of right to
purchase (4) MUTUAL PROMISE TO BUY AND SELL – ART. 1479
A promise to buy and sell a determinate thing for a
(3) RIGHT OF FIRST REFUSAL price certain is reciprocally demandable. [Art 1479]

As to enforceability The promise made by one party is the consideration

If the right to the first offer is embodied in the for the promise made by the other. [Baviera]
contract, it should be executed according to the
terms stipulated. The right should be enforced PERFECTION – ARTS. 1475, 1319, 1325, 1326
according to the law on contracts and not on the
panoramic and indefinite rule on human relations. WHEN PERFECTED
This juridical relation is not amorphous nor is it (1) Contract of sale is a consensual contract, hence
merely preparatory. [Equatorial Realty Development perfected at the moment of the meeting of the
vs. Mayfair, 1996] minds of the parties as to the object of the
contract and the price. [Art 1475,CC]
When the grantee fails to exercise the right (2) It is the proof of all the essential elements of the
Only after the grantee fails to exercise its right of 1st contract of sale, and not the mere giving of
priority under the same terms and conditions within earnest money, which establishes the existence of
the period agreed upon, could the grantor validly a perfected sale. [Platinum Plans Phils. vs.
offer to sell the property to a 3rd person under the Cucueco, 2006]
same terms as offered to the grantee. [Paranaque
Kings vs. CA, 1997] EFFECT OF PERFECTION
From the moment of the perfection of the contract of
As to the effects of the violation of the right sale, the parties may reciprocally demand
(a) A sale made in violation of a right of first refusal is performance, subject to the provisions of the Statute
valid but rescissible, and may be the subject of an of Frauds. [Art 1475, CC]
action for specific performance. [Rosencor Devt.
Corp. Vs. Inquing, 2001] FORM AND OFFER
(b) However, before the sale to the 3rd person may (a) Offer must be certain as to the object and price
be rescinded, he must have been actually or [Art. 1319, CC]
constructively aware of the right of 1st refusal at
the time he bought it. (b) Business advertisements of things for sale are not
(c) The sanction for the enforcement of the right of offers but mere invitations to make an offer
first refusal against third persons is based on Art. Exception: If otherwise provided [Art. 1325, CC]
19 of NCC, as no real right was created on the
property. (c) Advertisements for bidders are simply invitations
to make proposals (Asked in 80)
Difference from Sale Advertiser is not bound to accept the highest or
Sale
st
Right of 1 Refusal lowest bid.
Exception: Unless the contrary appears [Art. 1326,
Bilateral Unilateral CC]
Price and other terms of Price and other terms
payment are certain are yet to be agreed FORMALITIES OF THE CONTRACT – ART. 1403
upon (D) (E)
The thing to be sold must be determinate General rule: No form required as to validity since sale
is perfected by consent of the parties.
Distinction from Option Contract
st
Option Contract Right of 1 Refusal The sale may be [Art.1483, CC]:
Separate consideration No need for a separate (1) Written
is necessary consideration (2) Oral
(3) Partly written and partly oral
Grantee has the right to No right to buy or sell,

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(4) Inferred from the conduct of the parties Where to Deliver

Exceptions:
(1) Statute of Frauds [Art,1403 (2),CC]
(a) Contract or some memorandum thereof must
be in writing and subscribed by the party or his
agent, otherwise contract is unenforceable;
unless ratified by failure to object to oral
evidence or acceptance of benefits under the
contract
(b) Statute of Frauds covers:
i. Sale of goods, chattels, or things in action at
a price not less than P500
ii. Sale not to be performed within 1 year
iii. Sale of real property or an interest therein
[Art 1358, CC]
(c) Applies only to executory contracts, not to
contracts either totally or partially performed.
[Iñigo v. Estate of Maloto, 1967]
(1) A hierarchy is followed (STOR):
(a) Stipulation
(b) Usage of trade
(c) Seller’s place of business (office)
(d) Seller’s residence
(2) In case of specific goods, which the parties knew
to be at some other place when the contract was
perfected, that place is the place of delivery
(3) If goods are at the time of sale possessed by a
third person, then there is no delivery until he
acknowledges to the buyer that he holds the
goods for the buyer.
When to Deliver
Absent a stipulation as to time, delivery must be
made within a reasonable time; demand or tender of
delivery shall be made at a reasonable hour.

(2) Sale of realty by an agent WHEN DELIVERY DOES NOT TRANSFER TITLE
Agent’s authority must be in writing, otherwise the (1) SALE ON APPROVAL, TRIAL, OR SATISFACTION
sale is void [Art.1874, CC] General Rule: Title remains with the seller

(3) Sale of large cattle Exceptions:

To be valid, transfer of large cattle must be (a) Buyer signifies his approval or acceptance to
registered with the municipal treasurer [Sec. 529, the seller or does any other act adopting the
Revised Administrative Code] transaction
(b) Retains the goods without giving notice of
rejection after the time fixed has expired; if no
time has been fixed, after the expiration of a
Transfer of Ownership reasonable time [Art 1502, CC]

Difference between Sale on Approval and Sale on

MANNER OF TRANSFER – ARTS. 1477, 1496-1501 Return
Obligation to transfer ownership and to deliver is
Sale on Approval Sale on Return
implied in every contract of sale [Arts. 1458-1459]
Ownership does not Ownership passes
Transfer of ownership requires delivery [Art. 1495] pass upon delivery upon delivery, but
buyer may revest
GENERAL CONCEPTS ownership in the seller
by returning or
Delivery comprises 2 obligations in Art. 1495: tendering the goods
(1) Actual duty to deliver within the time fixed in
(2) Transfer of ownership – can only be the contract
accomplished via delivery Depends on the Depends on the will of
character or quality of the buyer
What to Deliver goods
(1) Thing sold [Art. 1495] Subject to a suspensive Subject to a resolutory
(2) Fruits [Art. 1164 & 1537] condition condition
(3) Accessions and accessories [Art. 1166 & 1537] Risk of loss remains Risk of loss remains
(a) Improvements by seller at his expense grants with the seller with the buyer
him a usufructuary right.
(b) No indemnification Express Reservation
(c) But he may remove it to the extent that there If it was stipulated that ownership in the thing shall
is no damage [Art. 1538] not pass to the purchaser until he has fully paid the
price [Art 1478, CC]

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Implied Reservation
The following are instances when there is an implied
reservation of ownership:
(a) Goods are shipped, but by the bill of lading
goods are deliverable to the seller or his
agent, or to the order of the seller or his agent
(b) Bill of lading is retained by the seller or his
agent.
(c) When the seller of the goods draws on the
buyer for the price and transmits the bill of
exchange and bill of lading to the buyer, and
the latter does not honor the bill of exchange
by returning the bill of lading to the seller.
(2) WHEN SALE NOT VALID
eg. When the thing sold is a public property
(3) WHEN SELLER IS NOT THE OWNER
General Rule: Ownership is not acquired by the
buyer. One cannot give what one does not have.
[Art 1505, CC]
Exceptions: (RE-ROM)
(a) Seller has a Right to transfer ownership
i. Seller need not be the owner of the thing at
the time of perfection of the contract. It is
sufficient that seller has a right to transfer
ownership thereof at the time it is delivered.
[Art. 1459]
ii. One who sells something he does not own
yet is bound by the sale when he acquires
the thing later [Bucton vs Gabar, 1974]
(b) Estoppel: Owner is, by his conduct, precluded
from denying the seller’s authority to sell. [Art.
1434]
(c) Registered land bought in good faith
i. General rule: Buyer need not go beyond the
Torrens title
iii. Exception: When he has actual knowledge
of facts and circumstances that would impel
a reasonably cautious man to make further
inquiry
(d) Order of courts; Statutory Sale
In execution sale, the buyer merely steps into
the shoes of the judgment debtor [Rule 39,
sec. 33, ROC]
(e) When goods are purchased in Merchant’s
store, Fair, or Market [Art 1505, CC]
The policy of the law has always been that
where the rights and interest of the vendor
clash with that of an innocent buyer for value,
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SALES BAR OPERATIONS COMMISSION
the latter must be protected. [Sun Brothers
and Co. vs. Velasco, 1958]
(4) SALE BY PERSON HAVING A VOIDABLE TITLE
(a) True owner may recover the thing when the ff.
requisites concur:
i. Subject matter is movable
ii. Owner has either lost the thing or has been
unlawfully deprived. [Art 559, CC]
(b) Reimbursement is necessary before owner can
recover when:
i. Buyer acted in good faith
ii. Acquired at a public auction [Art 559, CC]
(c) Recovery no longer possible when:
i. Buyer in good faith
ii. Acquired it at a merchant’s store, fair or
market. [Art 1506, CC]
KINDS OF DELIVERY
(1) ACTUAL DELIVERY
(a) When deemed made: when the thing sold is
placed in the control and possession of the
vendee [Art. 1497]
(b) Not always essential to passing of title [Art.
1475]
(c) Parties may agree when and on what
conditions the ownership shall pass to the
buyer [E.g.: Art 1478 where ownership will only
pass after full payment of the price]
(2) CONSTRUCTIVE DELIVERY
(a) Execution of public instrument [Art 1498, par.
1]
General rule: produces the same legal effects of
actual delivery.
Exceptions:
i. The intention of the parties is otherwise.
ii. At the time of execution, the subject
matter was not subject to the control of
the seller which must subsist for a
reasonable length of time after execution.
[Pasagui v Villablanca, 1975]
“Control” over thing sold must be such that seller is
capable of physically transferring it to buyer
(b) Symbolic Delivery
i. Delivery of keys of the place or depositary
where the movable is stored or kept. [Art
1498, CC]
ii. Unless otherwise agreed, when symbolic
delivery has been made, the seller is not
obliged to remove tenants to place the
buyer in actual possession of the property
as he has already complied with his
obligation to transfer ownership of and
deliver the thing sold. [Power Commercial
UP COLLEGE OF LAW
and Industrial Corp. v. CA, 1997; Sabio v. The
International Corporate Bank, Inc., 2001]
(c) Tradition Longa Manu (Long Hand)
i. Delivery of thing by mere agreement.
ii. Example: Seller points to the property
without actually transferring physical
possession thereof.
iii. When an employer assigned all its rights
and title to all surplus property salvaged by
the contractor, tradition longa manu takes
place. Delivery is upon the moment a thing
is salvaged. [Board of Liquidators v. Floro,
1960]
(d) Tradition Brevi Manu (Short Hand)
MOVABLE is delivered when the buyer had the
thing already in his possession before the sale
took place, not as owner but as lessee,
borrower, or depositary.
(e) Tradition Constitutum Possessorium
Seller continues to be in possession of the
property sold, by virtue of a lease contract
agreement with the vendee.
(f) Delivery to a Common Carrier
General Rule: Delivery to the courier or carrier
is tantamount to delivery to buyer.
Exceptions
i. Seller reserved title by the form of the bill of
lading, with intent to remain the owner, not
merely for the purpose of securing payment,
OR
ii. Contrary intention appears in the contract
(i.e. seller is required to deliver goods to
buyer at the point of destination)
iii. F.O.B. (Free on Board or Freight on Board):
When seller bears the expenses of
transportation up to the F.O.B. point.
iv. C.I.F. (Cost, Insurance, Freight): Price quoted
includes the costs of the goods, insurance,
and freight charges on the goods up to the
point of destination.
v. F.A.S. (Free Alongside): Seller bears the
expenses of transportation until he delivers
the goods alongside a vessel at a named
port.
DOUBLE SALES – ART. 1544
General Rule: Prior tempore, potior jure (“he who is
first in time is preferred in right”) applies.
Requisites [Cheng v Genato, 1998]:
(1) 2 or more valid sales;
(2) Same subject matter;
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SALES BAR OPERATIONS COMMISSION
(3) 2 or more buyers with conflicting interests at
odds over the rightful ownership of the thing sold;
(4) Same seller
RULES GOVERNING SALE OF MOVABLES, IMMOVABLES AND
UNREGISTERED LANDS
(1) Sale of Movables
Ownership shall be transferred to the person who
may have first taken possession in good faith.
(2) Immovables
(a) Ownership belongs to the person who:
i. In good faith first recorded it in the Registry
of Property; OR
ii. If there is no inscription, ownership passes
to the person who in good faith was first in
possession; OR
iii.In the absence thereof, to the person who
presents the oldest title, PROVIDED there is
good faith.
“Oldest Title” – any public document showing
acquisition of the land in good faith. To
constitute “title,” the transmission of
ownership must appear in a public document
[Art. 1358 (1)]
Examples: Deed of Sale, Deed of Donation,
Deed of Trust
(b) Registration includes any entry made in the
Primary Entry Book of the registry, including
both registration in its ordinary and strict
sense and cancellation, annotation, and even
marginal notes. [Cheng v. Genato, 1998]
i. Pencilled entries on the title are not
considered registration [AFPMBAI v. Court of
Appeals, 1999].
(3) Sale by Virtue of Execution and Attachment
Art. 1544 does NOT apply to the sale of
unregistered land at an execution sale because a
buyer of unregistered land at an execution sale
only steps into the shoes of the judgment debtor,
and merely acquires the latter's interest in the
property sold as of the time the property was
levied upon. [Carumba v. CA, 1970]
(4) Sale of Unregistered Land
(a) Instrument or deeds establishing,
transmitting, acknowledging, modifying or
extinguishing rights with respect to lands not
registered under the Land Registration Act or
the Spanish Mortgage Law, are required to be
registered in the Registry of Property to
prejudice 3rd persons, although such
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registration is understood to be “w/o Annotation of Adverse

Lis Pendens
prejudice to a 3rd party with a better right”. Claim
[PD 1528 Sec 113] causes which may not adjudged invalid or
(b) Art. 1544 applies to unregistered land subject to be attributable to the unmeritorious by the
a conventional sale (because of Art. 1358) but claimant Court
NOT to unregistered land subject to judicial Both are intended to protect the interest of a
sale. claimant by notifying and cautioning other
persons that said property is subject to a claim.
PROPERTY REGISTRATION DECREE
(1) REQUISITES FOR REGISTRATION OF DEED OF SALE IN The two are not contradictory or repugnant to one
GOOD FAITH another; nor does the existence of one automatically
nullify the other, and if any of the registrations
Purchaser in good faith should be considered unnecessary or superfluous, it
(a) General Characteristics would be the notice of lis pendens [A. Doronila
i. One who buys the property of another, Resources Development Inc v CA, 1988]
without notice that some other person has a
right to or interest in such property, and (2) ACCOMPANIED BY VENDORS DUPLICATE CERTIFICATE
who pays a full and fair price for the sale, at OF TITLE, PAYMENT OF CAPITAL GAINS TAX, AND
the time of the purchase or before he has DOCUMENTARY TAX REGISTRATION FEES
notice of the claim/interest of some other Must be accompanied by:
person in the property. [Agricultural and (a) Vendor’s duplicate certificate of title
Home Extension Development Group v CA, (b) Payment of capital gains tax – 6% of the
1992] selling price or zonal value, whichever is
higher
(b) Presumption (c) Documentary tax registration fees – 1.5% of the
General Rule: As a rule, he who asserts the selling price or zonal value, whichever is
status of a purchaser in good faith and for higher
value has the burden of proving such
assertion. This onus probandi cannot be
discharged by mere invocation of the legal
presumption of good faith, i.e., that everyone
is presumed to act in good faith [Mathay v CA, Risk of Loss
1998]
GENERAL RULE – ARTS. 1263, 1189
When buyer is presumed to be in bad faith: Res perit domino: Owner bears risk of loss
i. Annotation of adverse claim: Places any BASIS: Ownership is not transferred until delivery.
subsequent buyer of the registered land in
bad faith. [Balatbat v CA, 1996] WHEN LOSS OCCURRED BEFORE PERFECTION
ii. Annotation of Lis Pendens: Buyer cannot be Such loss is borne by seller
considered an innocent purchaser for value
where it ignored the lis pendens on the title. WHEN LOSS OCCURRED AT TIME OF
iii.A purchaser of a parcel of land cannot close PERFECTION – ARTS. 1493 AND 1494
his eyes to facts which should put a Loss must have occurred before the contract was
reasonable man upon his guard, such as entered into, without the knowledge of both parties
when the property subject of the purchase is
in the possession of persons other than the Partial Loss (Or loss
seller. A buyer who could not have failed to which results in
know or discover that the land sold to him Total Loss
substantial change in
was in the adverse possession of another is character)
a buyer in bad faith. (Heirs of Ramon Contract is ineffective. Buyer may withdraw
Durano v Uy, 2010) from the contract
 Because there can OR
Annotation of Adverse be no contract without Buy the remainder at a
Lis Pendens
Claim an object proportionate price
May be cancelled even May be cancelled only
before the action is in one instance, i.e., WHEN LOSS OCCURRED AFTER PERFECTION
finally terminated for after the claim is BUT BEFORE DELIVERY

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Seller bears risk of loss Goods are deliverable By delivery of the

Buyer does not bear risk of loss until goods are to bearer document to another
delivered to him
Endorsed in blank by
WHEN OWNERSHIP IS TRANSFERRED – ART. the person to whose
1504 order the goods were
WHEN OWNERSHIP IS TRANSFERRED TO THE BUYER, THE supposed to be
GOODS ARE AT THE BUYER’S RISK delivered
(1) Where delivery of the goods has been made to Goods are deliverable By indorsement of
the buyer or to a bailee for the buyer, in to the order of a such person [Art. 1509,
pursuance of the contract and the ownership in specified person CC]
the goods has been retained by the seller merely
to secure performance by the buyer of his WHO MAY NEGOTIATE IT? [ART.1512, CC]
obligations under the contract, the goods are at (1) Owner
the buyer’s risk from the time of such delivery (2) Person to whom the possession or custody of the
(2) Where actual delivery has been delayed through document has been entrusted by the owner
the fault of either the buyer or seller the goods (a) If bailee undertakes to deliver the goods to
are at the risk of the party in fault. [Art 1504, CC] such person
(b) If document is in such form that it may be
negotiated by delivery

Documents of Title A PERSON TO WHOM A DOCUMENT HAS BEEN NEGOTIATED

ACQUIRES—
(1) Rights of the vendor
DEFINITION – ART. 1636 (2) Rights of the original consignee
A document used in the ordinary course of business
in the sale or transfer of goods, as proof of the NON-NEGOTIABLE DOCUMENTS OF TITLE
possession or control of the goods, or authorizing or Goods described in a non-negotiable document of
purporting to authorize the possessor of the title are deliverable only to a specified person.
document to transfer or receive, either by
endorsement or by delivery, goods represented by Carrier will not deliver the goods to any holder of the
such document. [Art. 1636] document or to whom such document may have
been endorsed by the consignee.
Examples: bill of lading, quedan, warehouse receipts,
trust receipts Must present the deed of sale or donation in his
favor.
PURPOSE OF DOCUMENTS OF TITLE
(1) As evidence of possession or control of goods
“Negotiation” [negotiable document of title] VS.
described therein
“Transfer” [non-negotiable document of title]:
(2) As a medium of transferring title and possession
over the goods described therein without having Negotiation (Art. 1508) Transfer
to effect actual delivery thereof [Villanueva] Delivery of a negotiable The assignment of
(3) The custody of a negotiable warehouse receipts document of title to rights of the consignee
issued to the order of the owner, or to bearer, is a another if by the terms of a non-negotiable
representation of title upon which bona fide thereof, the goods are document of title to
purchasers for value are entitled to rely, despite deliverable to bearer, or another; or
breaches of trust or violations of agreement on when the document
the part of the apparent owner. [Siy Cong Bieng was endorsed in blank Document of title was
vs. HSBC, 56 Phil 598] by the person to whose ordered sold or
order the goods are assigned, without
NEGOTIABLE DOCUMENTS OF TITLE deliverable. indorsement.
Definition: A document of title which states that the
goods referred to therein will be delivered to the In a negotiable Transferee does not
bearer, or to the order of any person named in such document of title, the acquire a better title
document [Art. 1508, CC] buyer may acquire a than his transferor
better title than his
Terms of the Document How negotiated transferor.

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WARRANTIES OF SELLER OF DOCUMENTS OF
TITLE – ART. 1516
A PERSON WHO NEGOTIATES A DOCUMENT OF TITLE
WARRANTS—
(1) Genuineness of document
(2) Legal right to negotiate or transfer
(3) No knowledge of fact which would impair the
validity or worth of the document
(4) Right to transfer the title to the goods and
merchantability or fitness for a particular
purpose, whenever such warranties would have
been implied
HE DOES NOT WARRANT THAT—
(1) Common carrier will fulfill its obligation to deliver
the goods
(2) Previous indorsers will fulfill their obligation [Art.
1516-1517, CC]
GOODS IN THE HANDS OF THE CARRIER COVERED BY A
NEGOTIABLE DOCUMENT CANNOT BE ATTACHED OR LEVIED
UPON, UNLESS—
(1) Document is first surrendered to the carrier; or
(2) Impounded by the court; or
(3) Its negotiation is enjoined. [Art. 1519-1520,CC]
RULES ON LEVY/GARNISHMENT OF GOODS –
ARTS. 1514, 1519, 1520
Goods in the hands of the carrier covered by a
negotiable document cannot be attached or levied
upon, UNLESS—
(1) Document is first surrendered to the carrier; or
(2) Impounded by the court; or
(3) Its negotiation is enjoined. [Art. 1519-1520,CC]
The levy of an attachment of execution upon the
goods by a creditor of the transferor may defeat the
title of the transferee and the right to acquire the
obligation of such bailee when:
(1) It was done prior to the notification to such bailee
by the transferor of a non-negotiable document
of title or
(2) By a notification to such bailee by the transferor
or a subsequent purchaser from the transferor of
a subsequent sale of the goods by the transferor.
[Art 1514 (3rd par)]
A creditor whose debtor is the owner of a negotiable
document of title shall be entitled to such aid from
courts in regard to property which cannot be readily
attached or levied by ordinary legal process [Art
1520]
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SALES BAR OPERATIONS COMMISSION
Remedies of an Unpaid Seller
DEFINITION OF UNPAID SELLER – ART. 1525
A seller is considered to be an unpaid seller if the
whole price has not been paid or tendered, or when
check received as a conditional payment was
dishonored by non-payment or insolvency of the
buyer [Baviera]
Term also includes:
(1) The agent of the seller to whom the bill of lading
was endorsed,
(2) The consignor or agent who had paid the price or
is responsible for the price
(3) Any other person who is in the position of a seller
(i.e. buyer who paid the price and had a right to
return the goods). [Baviera]
REMEDIES OF UNPAID SELLER
JUDICIAL REMEDIES OF AN UNPAID SELLER
(1) Action for the price or specific performance [Art.
1595]—
Conditions:
(a) The goods has passed to the buyer
(b) Price is payable on a certain day, irrespective
of delivery of the goods
(c) Buyer can set up the defense that seller could
not or did not intend to deliver the goods
(d) Seller was notified by the buyer of his
repudiation of the contract after the seller has
completed the manufacture of the goods or
had procured the goods to be delivered and
the goods could not readily be resold for a
reasonable price
(2) Action for damages for non-acceptance, if buyer
wrongfully neglects or refuses to accept and pay
for the goods (Art. 1596)
Measure of damages: Estimated loss directly and
naturally resulting in the ordinary course of
events from the buyer’s breach
(a) Where there is available market for goods:
Difference between the contract price and the
market price at the time the goods ought to
have been accepted or if no time was fixed, at
the time of refusal to accept
(b) If the resale was made with diligence: resale
price is evidence of market value, taking into
account whether or not the goods could be
readily sold
(c) Where labor/expense was necessary for seller to
fulfill his obligation: Labor performed and
expenses made by seller before receiving
notice of buyer’s repudiation or countermand
UP COLLEGE OF LAW
(d) Profit that the seller would have made if sale
had been fully performed
(3) Rescission by giving the buyer notice of the
election to rescind [Art. 1597]
Under this rule, rescission would bar an action on
the contract because it means cancellation of the
contractual obligations between the parties.
[Baviera]
(4) Special rule for sale of movables by installments –
Recto Law [Arts. 1484, 1485]
Applies in cases of:
(a) Sale of movables in installment
i. The rule is intended to apply to sales of
movables, the price of which is payable in
two or more installments, but not to
straight-term sales where the price is
payable in full, after making a down
payment because the law aims to protect
improvident buyers who may be tempted to
buy beyond their means. [Levy Hermanos vs.
Gervacio, 1939]
(b) Lease of personal property with option to buy
i. When lessor has deprived the lessee of the
possession or enjoyment of the thing (Ex.:
When lessor files a complaint for replevin
against lessee)
ii. Also applies when seller assigns his credit
to someone else
ALTERNATIVE REMEDIES OF THE UNPAID SELLER UNDER
RECTO LAW
(a) Specific Performance
(b) Cancellation of sale: If vendee fails to pay 2 or
more installments
i. When the seller cancels the sale by
repossessing the property sold, he is barred
from exacting payment for its price.
(c) Foreclosure of Chattel Mortgage: If vendee fails
to pay 2 or more installments
i. If seller chooses this remedy, he shall have no
further action to recover any unpaid balance,
and any stipulation to the contrary shall be void
ii. What Art 1484 (3) prohibits is “further action
against the purchaser to recover any unpaid
balance of the price;” and although this Court
has construed the word “action” to mean “any
judicial or extrajudicial proceeding by virtue of
which the vendor may lawfully be enabled to
exact recovery of the supposed unsatisfied
balance of the purchase price from the
purchaser or his privy,” there is no occasion at
this stage to apply the restrictive provision of
the said article because there has not yet been
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SALES BAR OPERATIONS COMMISSION
a foreclosure sale resulting in a deficiency. The
payment of the sum of P1,250 of Sapinoso was
a voluntary act on his part and did not result
from a “further action” instituted by Northern
Motors. [Motors vs. Sapinoso, 1970]
iii.The purpose of the law is to remedy the abuses
committed in foreclosure of chattel
mortgages. It prevents mortgagees from
seizing the mortgaged property, buying it at
foreclosure sale for a low price and then
bringing the suit against the mortgagor for a
deficiency judgment. The almost invariable
result of this procedure was that the mortgagor
found himself minus the property and still
owing practically the full amount of his original
indebtedness. [Bachrach Motor Co., Inc. v.
Millan, 1935]
iv.Remedies are ALTERNATIVE, not cumulative,
i.e. exercise of one bars exercise of the others.
[Nonato vs. IAC, 1985]
Performance of Contract
DELIVERY OF THING SOLD
(1) SALE OF MOVABLES – ARTS. 1522, 1537, 1480
(a) When Quantity less than expected
i. Buyer may reject all
ii. Buyer accepts with knowledge of seller’s
inability to deliver the rest – buyer pays at
contract price
iii.Buyer has used or disposed prior to knowing
seller’s inability to deliver the rest – buyer
pays fair value
(b) Quantity more than expected
i. If divisible, buyer may reject excess
ii. If indivisible, buyer may reject all
(c) Quality different or different goods
i. If divisible, buyer may accept the goods
compliant with contract and reject those
that are not
ii. If indivisible, buyer may reject all [Art. 1522]
(d) Sale of specific mass of goods
i. In the sale of fungibles where the measure
or weight has not been agreed upon nor is
there a fixed rate based upon a
measurement, the subject matter of the
sale is a determinate object – the specific
mass; seller is merely required to deliver
such mass even if actual quantity falls short
of parties’ estimate [Art. 1480]
(e) Delivery by installments
i. By default, buyer is not bound to accept
delivery of goods by installments
UP COLLEGE OF LAW
ii. In a contract of delivery by installment to be
paid by installment as well, delay or breach
may not necessarily mean breach of the
entire contract; depending on the
circumstances, breach may be severable and
the aggrieved party is entitled to damages
and not rescission. [Art. 1583]
(2) SALE OF IMMOVABLES – ARTS. 1539, 1543
(a) Sale at a fixed rate per unit of measure
i. Seller bound to deliver entire land
ii. If the area is less than that stated, buyer
may rescind or demand a proportionate
reduction in price
iii.If a part of the land is not of the quality
stated in the contract, buyer may rescind or
demand a proportionate reduction in price
iv.Buyer may only avail of rescission if the area
deficiency is 10% or more of total area or if
the inferior value of the part of the land
exceeds 10% of the price agreed upon. [Art.
1539]
v. If the area turns out to be greater than that
stated, buyer may accept area included and
reject the excess or accept all and pay a
proportionate increase in price [Art. 1540]
(b) Sale for a lump sum
i. Follows the same rule as the sale of a
specific mass which is explained above
ii. There is no change in price even if area or
number turns out to be greater or lesser
than that stated [Art. 1542]
iii.Exception: when the excess or deficiency is
no longer reasonable [Asian v Jalandoni,
1923: 644 m2 was unreasonable]
iv.Exception to the exception: when buyer
expressly assumes risk on actual area of the
land. [Garcia v Veloso, 1941]
v. If the price per unit or measure is not
provided for in the contract, then the rules
of lump sum sale should prevail. [Sta. Ana v
Hernandez, 1966]
(3) INSPECTIONS AND ACCEPTANCE
Inspections
Right of Inspection: The buyer has reasonable
opportunity to examine the goods upon delivery.
If there is a stipulation that delivery is
preconditioned on payment, then buyer has no
right of inspection until he has paid. [Art.1584]
Exception: in case such right of inspection is
permitted by agreement or usage of trade.
Acceptance
Accept Delivery—
(1) Form
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SALES BAR OPERATIONS COMMISSION
(a) Express: buyer intimates acceptance
(b) Implied:
i. Goods are delivered to the buyer and he
does any act in relation to the goods
delivered that is inconsistent with the
ownership of the seller.
ii. After the lapse of a reasonable time, the
buyer retains the goods without
intimating to the seller that he has
rejected them. [Art.1585]
(2) Effect of Refusal to accept
(a) If buyer refuses to accept goods, having
the right to do so, he is not bound to return
them to the seller, it being sufficient that
he notifies the seller of his refusal to
accept
i. If he voluntarily constitutes himself a
depositary of the goods, he shall be
liable as such. [Art.1587]
ii. Unjust refusal to accept still results to
transfer of ownership. In such case, title
to the goods passes to the buyer from
the moment they are placed at his
disposal, except if ownership has been
reserved by the seller [Art.1588]
PAYMENT OF PRICE
PAY THE PRICE OF THE THING SOLD (ART. 1582)—
Payment of interest:
Buyer is liable for interest when: (SFD)
(1) Interest is stipulated;
(2) Thing sold produces fruits or income;
(3) Buyer is in default - interest accrues from the
time of judicial or extrajudicial demand for
payment
Suspension of payments:
Buyer may suspend payment when:
(1) His ownership or possession of the thing is
disturbed; OR
(2) He has reasonable grounds to fear such
disturbance by a vindicatory action or a
foreclosure of mortgage
Exceptions: buyer cannot suspend payment
when:
(1) Seller gives security for the return of the price in a
proper case
(2) It has been stipulated that, notwithstanding any
such contingency, the buyer shall be bound to
pay [Art. 1590]
(a) Suspension may continue until the seller has
caused the disturbance or danger to cease
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(b) However, a mere act of trespass shall not Condition Warranty

authorize the suspension of the payment.
[Art.1590] thing or some other seller’s obligations as
circumstance to the subject matter
Sale of real property
(1) In the sale of immovable property, buyer may pay If seller has promised that the condition should
even beyond the expiration of the period agreed happen or be performed, the buyer may treat the
upon, as long as no demand for rescission of the nonperformance of the condition as a breach of
contract has been made upon him either warranty. [Art.1545]
judicially or by a notarial act, despite a stipulation
providing for ipso jure rescission [Art.1592] EXPRESS WARRANTIES
(2) After demand, court may not grant him a new For there to be express warranty, the following
term [Heirs of Escanlar, et.al. v. CA, 1997] requisites must concur: (APIR)
(3) R.A. 6552 (Maceda Law) applies to sale or (1) An affirmation of fact or any promise relating to
financing of real estate on installment [Rillo v. the thing sold;
Court of Appeals,1997] (2) The natural tendency of such affirmation or
(a) Buyer is awarded a grace period of 1 month promise is to induce the buyer to buy;
per year of installments paid or 60 days, (3) The buyer buys the thing relying thereon. [Art.
whichever is higher, within which he may pay 1546]
without additional interest (4) Made before the sale not upon delivery or any
i. May be used once every 5 years of the life of other point
the contract or any of its extensions
(b) If contract is to be cancelled, seller must first: An express warranty can be made by and also be
i. Give a 30-day notice of cancellation, and binding on the seller even in the sale of a second
ii. Refund cash surrender value to buyer; hand article. [Moles v. IAC, 1989]
iii. CSV is equivalent to 50% of total payments
made including deposits, options and Dealer’s or Trader’s
Express Warranty
down-payments plus 5% for every year in Talk
excess of 5 years of the life of the contract What is specifically (a) Affirmation of the
or any of its extensions. represented as true in value of the thing
said document cannot or statement of the
be considered as mere seller’s opinion only
dealer's talk. [Moles v. is not a warranty
IAC, 1989] unless:
Warranties i. The seller made
it as an expert;
Definition: A statement or representation made by ii. It was relied
the seller contemporaneously and as part of the upon by the
contract of sale, having reference to the character, buyer. [Art.1546]
quality, or title of the goods, and by which he (b) Ordinarily, what
promises or undertakes to ensure that certain facts does not appear
are or shall be as he then represents. on the face of the
written instrument
CONDITION V. WARRANTY [Moles v. IAC, 1989]
Condition Warranty EXPRESS WARRANTY DISTINGUISHED FROM FALSE
Pertains to and affects Goes into the REPRESENTATION
the existence of the performance of an Express Warranty False Representation
obligation obligation and may, in
itself, be an obligation Concealment of facts When concealment of
Non-happening does Non-fulfillment does not necessarily facts comes with an
not amount to breach constitutes breach of amount to false active misstatement of
of contract contract representation fact or a partial
Must be stipulated Stipulation or statement of fact such
operation of law that withholding of
that unsaid portion
May attach either to the Always relates to the
makes that which is
seller’s duty to deliver subject matter or the
stated absolutely false

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Express Warranty False Representation (c) Final judgment based on a right prior to the
sale or an act imputable to the vendor
(d) Seller is summoned and made co-defendant in
However, buyer who the suit for eviction at the instance of the
fails to inspect buyer. [Power Commercial and Industrial Corp.
condition of property v. CA, 1997]
despite ample
opportunity to do so IMPLIED WARRANTY AGAINST ENCUMBRANCE/NON-
when there is no APPARENT SERVITUDES
opposition on the part Requisites for breach:
of seller to inspect (1) Thing sold is an immovable
cannot later on allege (2) Burden or servitude encumbering the thing sold
false representation. is:
[Phil Mftg Co. v Go (a) Non-apparent to the naked eye
Jucco, 1926] (b) Not mentioned in the agreement
(c) Of such nature that it must be presumed that
Reason: buyer’s duty the buyer would not have bought it had he
to inspect remains been aware of it
despite false (d) Not recorded in the Registry of Property unless
representation by the there is an express warranty that the thing is
seller; he has the duty free from all burdens and encumbrances
to exercise due [Art.1560]
diligence.
IMPLIED WARRANTY AGAINST HIDDEN DEFECTS
IMPLIED WARRANTIES – ART. 1547
Requisites for breach:
(1) The defect renders the thing sold unfit for the use
(TODS)
for which it was intended OR diminishes its
(1) Implied Warranty of Title
fitness for such use to such an extent that had the
(2) Implied Warranty against Encumbrance/Non-
buyer been aware thereof, he would not have
Apparent Servitudes
bought it or would have paid a lower price;
(3) Implied Warranty against Hidden Defects [Art.
(2) The defect is not patent or visible;
1547]
(3) The buyer is not an expert who, by reason of his
(a) Implied warranty as to Merchantable Quality
trade or profession, should have known the defect
and Fitness of Goods
(4) The seller is aware of the hidden fault or defect,
(b) Implied warranty against Redhibitory Defect
OR even if he is not aware thereof, if there is no
in the Sale of Animals [Art. 1572]
stipulation to the contrary [Arts.1561 &1566]
(c) Quality and Fitness of Goods in Sale by
Sample or Description
IMPLIED WARRANTY AS TO MERCHANTABLE QUALITY AND
(4) Other Warranties
FITNESS OF GOODS
IMPLIED WARRANTY OF TITLE
Merchantable Quality:
(1) Implied warranty arises by operation of law and (1) Where the goods are brought by description from
need not be stipulated in the contract of sale. a seller who deals in goods of that description
(2) Warranty of Seller’s Right to Sell: Seller warrants [Art.1562]
his right to sell at the time the ownership is to (2) In a sale by sample, if the seller is a dealer in
pass. goods of that kind and the defect is not apparent
(a) Inapplicable to a sheriff, auctioneer, mortgagee, on reasonable examination of the sample
pledgee, or other person professing to sell by [Art.1566]
virtue of authority in fact or law. [Art. 1547]
(3) Warranty against Eviction: seller warrants that Fitness for a particular purpose:
buyer, from the time ownership passes, shall have (1) Where the buyer expressly or impliedly makes
and enjoy legal and peaceful possession of the known to the seller the particular purpose for
thing. Its requisites are: which the goods are acquired AND it appears
(a) Buyer is deprived of the whole or a part of the that the buyer relied on the seller’s skill or
thing sold; judgment [Art.1562(1)]
(b) Eviction is by final judgment

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IMPLIED WARRANTY AGAINST REDHIBITORY DEFECT IN THE
SALE OF ANIMALS (ART. 1572)
Redhibitory defect- a hidden defect of animals of
such nature that expert knowledge is not sufficient to
discover it, even in a case where a professional
inspection has been made
No warranty in case of [Art. 1574]:
(a) Animals sold at fairs or public auctions
(b) Livestock sold as condemned
The following sales are void [Art. 1575]:
(a) Sale of animals suffering from contagious
diseases
(b) Sale of animals unfit for the purpose for which
they are acquired as stated in the contract
Veterinarian liable if he fails to discover or disclose
the hidden defect through ignorance or bad faith [Art
1576]
Seller liable if animal dies within 3 days after its
purchase due to a disease that existed at the time of
sale. [Art 1578]
EFFECTS OF WARRANTIES
(1) Natural tendency is to induce buyer to purchase
the subject matter
(2) Buyer purchases subject matter relying thereon
(3) Seller liable for damages in case of breach
(following the general rule on rescission of
contracts)
(2) Remedies:
(a) Accept goods + demand diminution/
extinction of price
(b) Accept goods + damages
(c) Refuse to accept goods + damages
(d) Rescind (Refuse to accept or return or offer to
return) + recover price paid
(3) Rescission not available when buyer:
(a) Knew of breach of warranty when he accepted
the goods without protest
(b) Fails to notify the seller about election to
rescind within a reasonable period of time
(c) Fails to return or offer to return the goods to
the seller in substantially a good condition as
they were when delivered, unless deterioration
was due to breach of warranty
(4) Measure of damages: Difference between value
of goods at the time of delivery and the value they
would have had if they had answered to the
warranty
(5) Effects of rescission:
(a) Buyer no longer liable for price
i. Entitled to the return of any part of price
paid, concurrently with or immediately after
an offer to return the goods
(b) If seller refuses to accept offer to return
goods: buyer deemed as bailee for seller and
has right of lien to secure payment of part of
price paid

EFFECTS OF WAIVERS IMPLIED WARRANTY AGAINST EVICTION [ARTS. 1555,

Only applicable to waiver of warranty against 1556]
eviction; parties may increase or decrease warranty Total Eviction Partial Eviction
against eviction but the effect depends on good/bad
Enforce liability for Enforce liability
faith of the seller:
eviction (demand VICED)
(1) Seller in bad faith and there is warranty against
OR
eviction – null and void
Demand from seller: Rescind
(2) Buyer without knowledge of a particular risk and
(VICED) (a) If he would not
made general renunciation of warranty – not
(a) Value of thing sold have bought the
waiver but merely limits liability of seller in case
at time of eviction thing sold without
of eviction (pay value of subject matter at the
(b) Income or fruits, if the part lost;
time of eviction)
he has been (b) BUT he must
(3) Buyer with knowledge of risk of eviction assumed
ordered to deliver return the thing
its consequences and made a waiver – vendor not
them to the party without other
liable
who won the encumbrances
(4) Waiver to a specific case of eviction – wipes out
eviction suit than those which it
warranty as to that specific risk but not as to
(c) Costs of eviction had when he
eviction caused by other reasons
suit and in a proper acquired it
case, suit against
BUYER’S OPTIONS IN CASE OF BREACH OF
seller for warranty
WARRANTY – ART. 1599
(d) Expenses of the
contract, if buyer
EXPRESS WARRANTY has paid them
(1) Prescriptive period: Period specified in express (e) Damages and
warranty OR 4 years, if no period is specified

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Total Eviction Partial Eviction Due to fortuitous event

Due to hidden fault
or fault of buyer
interests, and (a) Buyer may demand
ornamental price and expenses
expenses, IF sale BUT NOT damages
was made in bad
faith
Prescriptive period: 6 months from delivery
(1) Rules:
IMPLIED WARRANTY AGAINST REDHIBITORY DEFECTS OF
(a) Buyer need not appeal from decision to hold
ANIMALS
seller liable for eviction
(1) Remedies
(b) When adverse possession commenced before
sale, but prescription period completed after (a) Withdraw from contract + damages
transfer: seller is not liable (b) Demand a proportionate reduction of the
(c) If property sold for nonpayment of taxes due price + damages
and not made known to the buyer before the
sale: seller liable (2) If sale is rescinded:
(d) Judgment debtor also responsible for eviction (a) Buyer must return animal in the condition in
in judicial sales, unless it is otherwise decreed which it was sold and delivered
in the judgment (b) Buyer shall be liable for injury due to his
negligence.
(2) If there is waiver of warranty:
(a) Seller acted in bad faith: Waiver is void, seller (3) Prescriptive period: 40 days from delivery
liable for eviction
(b) Buyer made waiver without knowledge of risks WARRANTY IN SALE OF CONSUMER GOODS [RA 7394,
of eviction: Seller liable only for the value of SEC.68]
the thing sold at time of eviction If implied warranty accompanies express warranty,
(c) Buyer made waiver with knowledge of risks: both will be of equal duration.
Seller not liable; buyer assumed the
consequences Express Warranty Implied Warranty
(1) Demand repair (1) Retain the goods
IMPLIED WARRANTY AGAINST ENCUMBRANCES [ART. within 30 days and recover
1560] (a) Extendible for damages
(1) Rescission: Within 1 year from execution of deed causes beyond OR
of sale OR the control of (2) Reject the goods,
(2) Damages: Within 1 year from execution of deed of the warrantor cancel contract
sale or discovery of the burden or servitude (2) Demand refund of and recover from
price minus seller so much of
IMPLIED WARRANTY AGAINST HIDDEN DEFECTS [ARTS. amount directly the purchase price
1567-1571] attributable to the as has been paid +
(1) If thing is not lost: use of the damages
(a) Withdraw from contract (accion redhibitoria) + consumer prior to
damages the discovery of the
(b) Demand a proportionate reduction of the non-conformity
price (accion quanti minoris) + damages

(2) If thing is lost:

Due to fortuitous event
Due to hidden fault
If seller aware of
or fault of buyer
Demand:
Breach of Contract
defect, buyer may (a) Price paid minus
General Remedies [Art. 1191, CC]
demand: value of thing
The following remedies arise from the bilateral
(a) Return of price when it was lost
nature of the contract of sale:
(b) Refund of expenses (b) Damages, if seller
(1) Specific performance
(c) Damages acted in bad faith
(2) Rescission
If seller not aware of
General rule: Rescission of a contract will not be
defect:
permitted for a slight or casual breach, but only

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for such substantial and fundamental breach as
would defeat the very object of the parties in
making the agreement. [Song Fo & Co. vs.
Hawaiian-Philippine Co., 1925]
(3) Damages
Neither party incurs in delay if the other does not
comply or is not ready to comply in a proper
manner with what is incumbent upon him [Art
1169, CC]
Prescriptive periods
(1) 10 years if based on written contract
(2) 6 years if based on oral contract
REMEDIES OF THE SELLER – ARTS. 1636, 1594
(1) SALE OF MOVABLES
Extrajudicial or Self-Help Remedies- No need to
resort to the courts as long as possession of the
goods has not yet passed to the buyer
(a) Possessory lien over the goods
Right to retain possession of goods until
payment or tender of the whole price, or
unless he agrees to sell on credit [Arts. 1526-
1529, 1503, 1535]
When available:
(1) Goods are sold without stipulation as to
credit
(2) Goods are sold on credit, but term of credit
has expired
(3) Buyer becomes INSOLVENT
When lost:
(1) Seller delivers goods to carrier or other
bailee for transmission to the buyer under
a straight or non-negotiable bill of lading
(2) Buyer/his agent lawfully obtains
possession of goods
(3) Seller waives it
(a) But it is not lost with respect to the
remainder of the goods when only
partial delivery is made (unless such is
symbolic delivery of the whole)
(b) It is not lost by the mere fact that seller
obtained a judgment for the price
When revived:
Goods are returned by the buyer in a wrongful
repudiation of the contract
(b) Right of stoppage in transitu
An extension of the lien for the price; entitles
unpaid seller to resume possession of the
goods while they are in transit before the
goods come in possession of the vendee [Arts.
1530-1532, 1535, 1636[2]]
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SALES BAR OPERATIONS COMMISSION
Available when: Vendee becomes INSOLVENT
When are goods in transit?
(1) From the time of delivery to the carrier or
other bailee by the seller, for the purpose
of transmission to the buyer, until the
buyer or his agent takes such delivery from
the carrier.
(2) Even when goods have reached their
ultimate destination, if buyer rejects them
and carrier retains possession
(a) To terminate transit by delivery to a
middleman, delivery must be to keep,
not to transport.
When are goods no longer in transit?
(1) Buyer obtained delivery of the goods
before they have reached their ultimate
destination
(2) Goods have arrived at ultimate destination,
but carrier refuses to deliver
(3) Carrier enters into a new contract with the
buyer upon arrival of the goods at their
ultimate destination
How exercised?
(1)By obtaining actual possession of the
goods
(2) By giving notice of his claim to the
carrier/other bailee who has possession of
the goods
(a) Carrier must redeliver goods to seller,
or according to his instructions
(b) Carrier not obliged to redeliver until the
negotiable document of title, if any, has
been surrendered for cancellation
Seller’s right to stoppage in transitu is not
affected even if buyer has sold or disposed of
the goods unless the seller has given his
assent thereto.
(c) Special right of resale
Available to unpaid seller who has a right of
lien or who has stopped the goods in transitu
[Art. 1533]
Purpose: For seller to liquidate his damages
(1) He must do so within a reasonable time
and in such manner as to obtain the best
price possible.
(2) Resale is deemed to be a fair sale if it is
undertaken in accordance with
established business practices, with no
attempt to take advantage of the original
buyer.
UP COLLEGE OF LAW
(3) Resale may be in a private or public sale,
but seller cannot buy directly or indirectly.
(4) For resale to be valid, buyer need not be
notified of an intention to resell or the
time and place of the resale.
Effects:
(1) Seller is no longer liable to the original
buyer upon the contract of sale or for any
profit made by the resale
(2) Buyer at resale acquires good title as
against the original owner
(3) In case resale is at a loss, seller is entitled
to recover the difference from the original
buyer
(4) Seller may recover damages from original
buyer for breach of contract
(d) Special right to rescind:
RETURN of the title over the undelivered
goods to the seller, and right to recover
DAMAGES for breach of contract [Art. 1534]
Available to unpaid seller who has a right of
lien or who has stopped the goods in transitu
When available:
(1) Seller expressly reserved his right to
rescind in case buyer defaults
(2) Buyer has been in default in payment for
an unreasonable time
Transfer of title shall not be held to have been
rescinded by the unpaid seller until he
manifests by notice to the buyer or some other
overt act an intention to rescind.
(e) When the whole of the price has not been paid
or tendered;
(f) When a bill of exchange or other negotiable
instrument has been received as conditional
payment and the condition on which it was
received has been broken by reason of the
dishonor of the instrument, the insolvency of
the buyer, or otherwise.
RECTO LAW: SALE OF MOVABLES ON
INSTALLMENT – ARTS. 1484-1486
Applies in cases of:
(1) Sale of movables in installment
(a) The rule is intended to apply to sales of
movables, the price of which is payable in 2 or
more installments, but not to straight-term
sales where the price is payable in full, after
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SALES BAR OPERATIONS COMMISSION
making a down payment because the law
aims to protect improvident buyers who may
be tempted to buy beyond their means. [Levy
Hermanos vs. Gervacio, 1939]
(2) Lease of personal property with option to buy
(a) When lessor has deprived the lessee of the
possession or enjoyment of the thing (Ex.:
When lessor files a complaint for replevin
against lessee)
(b) Also applies when seller assigns his credit to
someone else
Alternative Remedies of the unpaid seller under Recto
Law
(1) Specific Performance
(2) Cancellation of sale: If vendee fails to pay 2 or
more installments
(a) When the seller cancels the sale by
repossessing the property sold, he is barred
from exacting payment for its price.
(3) Foreclosure of Chattel Mortgage: If vendee fails
to pay 2 or more installments
(a) If seller chooses this remedy, he shall have no
further action to recover any unpaid balance,
and any stipulation to the contrary shall be
void
(b) What Art 1484 (3) prohibits is “further action
against the purchaser to recover any unpaid
balance of the price;” and although this Court
has construed the word “action” to mean “any
judicial or extrajudicial proceeding by virtue of
which the vendor may lawfully be enabled to
exact recovery of the supposed unsatisfied
balance of the purchase price from the
purchaser or his privy,” there is no occasion at
this stage to apply the restrictive provision of
the said article because there has not yet been
a foreclosure sale resulting in a deficiency.
The payment of the sum of P1,250 of Sapinoso
was a voluntary act on his part and did not
result from a “further action” instituted by
Northern Motors. [Motors vs. Sapinoso, 1970]
(c) The purpose of the law is to remedy the
abuses committed in foreclosure of chattel
mortgages. It prevents mortgagees from
seizing the mortgaged property, buying it at
foreclosure sale for a low price and then
bringing the suit against the mortgagor for a
deficiency judgment. The almost invariable
result of this procedure was that the
mortgagor found himself minus the property
and still owing practically the full amount of
his original indebtedness. [Bachrach Motor
Co., Inc. v. Millan, 1935]
(d) Remedies are ALTERNATIVE, not cumulative,
i.e. exercise of one bars exercise of the others.
[Nonato vs. IAC, 1985]
UP COLLEGE OF LAW
(1) SALE OF IMMOVABLES
(a) PD 957, sec. 23, 24
Non-forfeiture of payments
(1) No installment payment made by the buyer
shall be forfeited in favor of the owner or
developer of the condominium or subdivision
project, after due notice, when the buyer
desists from paying due to the failure of the
developer or owner to develop the project
according to the approved plans or within the
time limit stated.
(2) Buyer’s Remedy: At his option, he may
reimburse the total amount paid including
amortization interest with interest thereon at
the legal rate
(3) If the buyer fails to pay the installments for
reasons other than the failure of the owner or
developer to develop the project, his rights
shall be governed by RA 6552.
(b) Maceda Law: Sale of Immovables on
Installment
RA 6552: An Act To Provide Protection for Buyers
of Real Estate on Installment Payments
DOES not apply to:
(1) Industrial lots
(2) Commercial buildings
(3) Sale to tenants under Agricultural Reform
Code [RA 3844]
Imposes ADDITIONAL REQUIREMENTS FOR A
VALID RESCISSION:
(1) If buyer has paid at least 2 years of
installments: (GRN)
(a) Grace period: 1 month per year of
installment payments made. BUT buyer
may only avail of it only once in every 5
years
(b) Refund of Cash Surrender Value (CSV):
50% of total amount paid + 5% for every
year after the 1st 5 years of installments
i. BUT not greater than 90% of total
amount paid
(c) Notice of cancellation of demand for
rescission by notarial act is effective 30
days from the buyer’s receipt thereof and
upon full payment of CSV
(2) If buyer has paid less than 2 years: (GN)
(a) Grace period: at least 60 days
(b) Notice of cancellation or demand for
rescission by notarial act, effective 30 days
upon receipt thereof
(3) Down payments, deposits, or options on the
contract shall be included in the total number
of installments made
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SALES BAR OPERATIONS COMMISSION
(4) Seller may go to court for judicial rescission in
lieu of a notarial act of rescission
(5) During the grace period, buyer shall have the
right:
(a) To sell or assign his rights, to be evidenced
in a notarial instrument
(b) To update his account
(c) To pay in advance any installment, or the
full unpaid balance of the price, without
any interest
In the sale of immovables
(1) Rescission for Anticipatory Breach [Art. 1591]
(a) Available when seller has reasonable
grounds to fear the loss of the immovable
property sold and its price
(b) Example: Buyer destroys the building sold,
there being no security therefor, and buyer
becomes insolvent
(c) Court has no discretion to compel the
seller to wait for the expiration of the
period to pay, or to grant the buyer more
time to pay
(2) Specific Performance + Damages [Art. 1191]
(a) Seller may choose between specific
performance and rescission, with damages
in either case
(b) Court has discretion, for a just cause, to
give the buyer more time to pay even if the
seller chooses rescission
(3) Rescission + Damages [Art. 1191]
(a) If seller chose specific performance, and
such becomes impossible, he may still
avail of rescission
(b) If absolute sale, seller must make a
demand for rescission
i. Judicially, OR
ii. By a notarial act
(c) Necessary even if automatic rescission is
stipulated
(d) Effect of lack of demand: Buyer can still pay
(e) Effect of demand: Court may not grant
buyer a new term
REMEDIES OF THE BUYER
General rule: Courts will refuse to decree specific
performance with respect to chattels, because
damages are a sufficient remedy
Exception: Buyer is entitled to the specific thing
which to him has special value and which he cannot
readily obtain in the market OR where damages
would not furnish a complete and adequate remedy
[Baviera]
(1) SALE OF MOVABLE
(1) Remedy for breach of obligation to preserve
If thing is lost—
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(1) Without fault of seller: No breach; Obligation of price OR

is extinguished OR Accept the whole and
(2) Through fault of seller (or through fortuitous Rescission, if: pay at contract rate
event, if seller is liable): Damages (a) Lack in area is at
least 1/10 of what is
A thing is lost when it— stated, or inferior
(1) Perishes value of thing sold
(2) Goes out of commerce exceeds 1/10 of
(3) Disappears in such a way that its existence is price
unknown or it cannot be recovered (b) Buyer would not
have bought the
If thing deteriorates property has he
been aware of the
Without fault of seller Through fault of seller inferior quality or
NO BREACH. Rescission + damages smaller area
Impairment shall be OR
borne by buyer Specific performance + This rule also applies to judicial sales [Art. 1541]
damages (b) If for a lump sum:
Everything is within
Not everything is within
(2) Remedy for breach of obligation to deliver boundaries, even if less or
boundaries
more than stated area
No remedy Proportional reduction in
Delivery of wrong quantity [Art. 1522]—
Goods are less than Where both the area and price
More the boundaries of the OR
what was contracted
immovable are declared, Rescission
Reject the goods Reject the excess (Or
the area covered within
OR the whole, if indivisible)
the boundaries of the
Accept and pay OR
immovable prevails over
(a) At contract rate if Accept the whole and
the stated area. (Rudolf
buyer accepts pay at contract rate
Lietz, Inc. v. CA, 2005)
knowing that
seller won’t
Prescriptive period: 6 months, counted from date of
perform in full
delivery
(b) At fair value: If
goods were used
before knowing
that seller won’t
be able to perform
in full
Extinguishment of Sale
CAUSES – ARTS. 1600, 1231
Art. 1464. Civil Code. In the sale of an undivided Generally, extinguished by the same causes as all
share of a specific mass of fungible goods, if the other obligations [Arts.1600, 1231]
mass contains less than the number, weight, or
measure bought, the buyer becomes the owner of (P-PLAN-C3-R3)
the whole mass and the seller is bound to make (1) Payment/performance
good the deficiency from goods of the same kind and (2) Prescription
quality, UNLESS a contrary intent appears. (3) Loss of thing due
(4) Annulment
(2) SALE OF IMMOVABLES (5) Novation
Real Estate [Arts. 1539-1543] (6) Condonation/remission
(a) If at the rate of a certain price per unit of (7) Confusion/merger
measure or number: (8) Compensation
(9) Rescission
Less (in area or quality) (10) Resolutory condition fulfilled
than what was agreed More (11) Redemption (Conventional or Legal)
upon:
Proportional reduction Reject the excess

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CONVENTIONAL REDEMPTION – ART. 1601 (c) Necessary and useful expenses made on the
thing sold
DEFINITION (2) Complying with any other stipulation agreed
(1) Vendor reserves the right to repurchase the thing upon, if any.
sold, with the obligation to comply with the
provisions of Article 1616 and other stipulations The general rule in redemption is that it is not
which may have been agreed upon. [Art 1601,CC] sufficient that a person offering to redeem manifests
(2) Available when the seller reserves the right to his desire to do so. The statement of intention must
repurchase the thing sold in the same instrument be accompanied by an actual and simultaneous
of sale as one of the stipulations of the contract tender of payment for the full amount of the
[Villarica v CA, 1968] repurchase price. [BPI Family Savings Bank, Inc. v.
Veloso, 2004]
PERIOD
General Rule: Follow period stipulated in contract, Tender of payment is enough (i.e., consignation is
but should not exceed 10 years. not necessary), if made on time, as a basis for action
(1) If no period stipulated, then it shall be four years against the buyer to compel him to resell. But that
from the execution of the contract tender does not in itself relieve the buyer from his
(2) But vendor may still exercise the right to obligation to pay the price when redemption is
repurchase within thirty days from the time final allowed by the court. [Paez v. Magno, 1949]
judgment was rendered in a civil action on the
basis that the contract was a true sale with right EFFECT OF REDEMPTION
to repurchase (1) The seller shall receive the thing free from all
charges or mortgages constituted by the buyer
BY WHOM EXERCISED BUT he shall respect leases executed by the
(1) Vendor buyer in good faith and in accordance with local
(2) His heirs, assigns or agents custom.
(3) Creditor, if he has exhausted the property of the (2) If there are growing fruits at the time of sale and at
vendor the time of redemption: no reimbursement or
(4) Co-owners of an immovable, if they sold their prorating if the buyer did not pay indemnity at the
interests to the same person, may only redeem time of sale
their respective shares (3) If there were no growing fruits at the time of sale,
(a) Vendee cannot be compelled to agree to a but some exist at the time of redemption: fruits
partial redemption prorated (buyer entitled to part corresponding to
(b) If the co-owners sold their interest to the same time he possessed the land in the last year,
person who previously bought the share of a counted from the anniversary of the date of sale)
co-owner subject to a right of redemption,
then the latter may be compelled to redeem EFFECT OF NON-REDEMPTION
the whole property Ownership is consolidated in the buyer BUT the
consolidation shall not be recorded in the Registry of
FROM WHOM TO REDEEM property without a judicial order, after the vendor has
(1) Vendee a retro been duly heard.
(2) His heirs, assigns or agents
(3) Subsequent purchaser of property, even if the RIGHT TO REDEEM VS. OPTION TO PURCHASE (VILLANUEVA)
right to redeem was not mentioned in the Right to Redeem Option to Purchase
subsequent contract; except if registered land,
where the right to redeem must be annotated on Not a separate contract Generally a principal
the title but part of a main contract and may be
(4) If several heirs, then the right of redemption can contract of sale, and created independent of
be exercised against each heir for his share of the cannot exist unless another contract
property reserved at the time of
the perfection of the
HOW EXERCISED
main contract of sale
(1) By returning the ff. to the buyer: (PEN) Does not need its Must have a
(a) Price of the sale; separate consideration consideration separate
(b) Expenses of the contract and other legitimate to be valid and effective and distinct from the
payments made by reason of the sale; purchase price to be
valid and effective [Arts.

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Right to Redeem Option to Purchase
1324 and 1479]
The maximum period for The period of the option
the exercise of the right contract may be beyond
to repurchase cannot the 10-year period
exceed 10 years
Requires in addition a May be exercised by
tender of payment of the notice of its exercise to
amount required by law, the offeror
including consignment
thereof if tender of
payment cannot be
made effectively on the
buyer
EQUITABLE MORTGAGE – ARTS. 1602-1604
Definition: An equitable mortgage is defined as one
which, although lacking in some formality, or form or
words, or other requisites demanded by a statute,
nevertheless reveals the intention of the parties to
charge real property as security for a debt, and
contains nothing impossible or contrary to law.
[Molina v. CA, 2003]
The Valdehuezas having remained in possession of
the land and the realty taxes having been paid by
them, the contracts which purported to be pacto de
retro transactions are presumed to be equitable
mortgages, whether registered or not, there being no
third parties involved. [Tan v. Valdehueza, 2003]
A pactum commissorium is a stipulation enabling the
mortgagee to acquire ownership of the mortgaged
properties without need of foreclosure proceedings
which is a nullity being contrary to the provisions of
Article 2088 of the Civil Code. The inclusion of such
stipulation in the deed shows the intention to
mortgage rather than to sell. [Legaspi v. Spouses
Ong, 2005]
A pactum commissorium is contrary to the nature of
a true pacto de retro sale since ownership of the
property sold is immediately transferred to the
vendee a retro upon execution of the sale, subject
only to the repurchase of a vendor a retro within the
stipulated period.
DISTINGUISHED FROM OPTION TO BUY – ART.
1602
PRESUMPTION THAT A CONTRACT IS AN EQUITABLE
MORTGAGE ARISES WHEN (5P-R)— ART. 1602
(1) Price unusually inadequate;
(2) Possession retained by the seller as lessee or
otherwise;
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SALES BAR OPERATIONS COMMISSION
(3) Period of redemption extended (or granted anew)
upon or after the expiration of the right to
repurchase;
(4) Part of the purchase price retained by the seller;
(5) Payment of taxes on the thing sold borne by the
seller;
(6) Any other case where it may be fairly inferred that
the Real intention of the parties is for the
transaction to secure a debt or other obligation.
FOR THE PRESUMPTION OF AN EQUITABLE MORTGAGE TO
ARISE UNDER ART. 1602, 2 REQUISITES MUST CONCUR
(MOLINA V. CA, 2003)
(1) That the parties entered into a contract
denominated as a contract of sale, and
(2) That their intention was to secure an existing
debt by way of a mortgage.
In case of doubt, a contract purporting to be a sale
with right to repurchase shall be construed as an
equitable mortgage [Art. 1603]
RATIONALE BEHIND PROVISION ON EQUITABLE MORTGAGE
(1) Circumvention of usury law
(2) Circumvention of prohibition against pactum
commissorium – creditor cannot appropriate the
things given by way of pledge or mortgage since
remedy is foreclosure.
REMEDIES OF APPARENT VENDOR
(1) If the instrument does not reflect the true
agreement: remedy is reformation
(2) If decreed to be an equitable mortgage: any
money, fruits or other benefit to be received by
the buyer as rent or otherwise considered as
interest.
(3) If decreed as a true sale with right to purchase:
seller may redeem within 30 days from finality of
judgment, even if the period for redemption has
expired.
PERIOD OF REDEMPTION – ART. 1606
Art. 1606. The right referred to in Article 1601, in the
absence of an express agreement, shall last four
years from the date of the contract.
Should there be an agreement, the period cannot
exceed ten years.
However, the vendor may still exercise the right to
repurchase within thirty days from the time final
judgment was rendered in a civil action on the basis
that the contract was a true sale with right to
repurchase.
UP COLLEGE OF LAW SALES BAR OPERATIONS COMMISSION

Period of Redemption LEGAL REDEMPTION – ART. 1619

(a) No stipulation: 4 years from the date of contract DEFINITION
(b) When there is agreement: Period not to exceed (1) Right to be subrogated:
10 years (a) upon the same terms and conditions
(c) General Rule: Period starts to run from the date stipulated in the contract,
of the execution of the contract (b) in the place of one who acquires a thing by
(d) Exception: When the efficacy of the sale is purchase or dation in payment, or by any other
subject to a suspensive condition, period transaction whereby ownership is transmitted
should be counted not from the date appearing by onerous title [Art 1619, CC]
on the instrument, but from the date when the (2) Applies to transfers of ownership by onerous title
condition is fulfilled, marking the where subrogation is possible. Hence, it cannot
consummation of the sale [Tolentino citing apply to barter or to transfer by gratuitous title or
Manresa]. hereditary succession.
(3) Applies to sales with pacto de retro [Baviera citing
Additional 30 days for Repurchase MANRESA]
The last paragraph of Art. 1606 giving the vendor the
right to repurchase within 30 days from the time of MANNER
the rendition of final judgment applies only where (1) a formal offer to redeem or
the nature and the character of the transaction, (2) filing of an action in court together with the
whether as a pacto de retro or an equitable consignation of the redemption price within the
mortgage, was put in issue before the court reglementary period
[Gonzales v. De Leon, 4 SCRA 332].
PERIOD TO REDEEM
EXERCISE OF THE RIGHT TO REDEEM – ART. To whom granted Period
1616
The seller can avail himself of the right of repurchase (a) Co-owner [Art 1620] 30 days from notice
by returning to the buyer: (a) In writing
(a) the price of the sale (b) Adjoining owner of (b) By the seller
(b) the expenses of the contract and any other Rural Land [Art 1621] (c) Of the actual
legitimate payments made by reason of the execution and
sale (c) Adjoining owner of delivery of the deed
(c) the necessary and useful expenses made on urban land [Art. 1622] of sale
the thing sold [Art.1616].
Actual knowledge of the
How redemption is exercised sale is immaterial ,
(a) The vendor de retro must complete the absent any showing that
repurchase before the expiration of the the co-owner has been
redemption period [Panganiban v. Cuevas, 7 shown a copy of the
Phil 477]. deed of sale through a
(b) A sincere or genuine tender of payment is written communication.
enough. The deposit of the amount of the [Doromal v. CA, 1975]
repurchase money with the Clerk of Court was
simply and additional security [Legazpi v. Court The law did not provide
of Appeals, 1986] for a particular mode of
(c) When tender of payment cannot be validly written notice, thus any
made because the buyer cannot be located, it compliance with “written
becomes imperative for the seller a retro to file notice” should suffice,
a suit for consignation with the courts of the including the giving of a
redemption price [Catangcatang v. Legayada, copy of the deed of sale.
1978]. [Conejero v. CA, 1966]
(d) If the offer or tender of payment for repurchase Debtor in case a credit or 30 days from the date
is refused, it is not necessary for the vendor a incorporeal right in the assignee demands
retro to consign in court or make judicial litigation is sold payment from debtor
deposit of the repurchase price [Rosales v. [Art.1634]
Reyes, 25 Phil 495]. Taxpayer in case of tax 1 year from date of
sale [Sec. 215, NIRC] forfeiture
Judgment debtor, 1 year from the date of

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To whom granted Period

Rationale: Public Policy, since co-ownership is a
successor–in- interest, or registration of the hindrance to the development and administration
creditor with subsequent certificate of sale of the property. [Baviera]
lien, in case of execution
sale [Rule 39, Sec.27, (2) Redemption by Adjoining Land-owners of rural
ROC] land [Art. 1621]
Debtor-mortgagor, 1 year from the date of
successors-in- interest, the sale The ff. Requisites must concur:
judicial/judgment (a) A piece of rural land is alienated
creditor, any person (b) Area does not exceed one hectare
having a lien on the
property, in case of
extrajudicial foreclosure When not applicable:
of mortgage [Act No. (a) The grantee does not own any rural land
3135. Sec. 6.] (b) Adjacent lands are separated by brooks,
drains, roads and other apparent servitudes
Debtor-mortgagor in 90 days from finality of
for the benefit of other estates
case of judicial judgment
foreclosure of real estate
mortgage IF the Order of preference if two or more wishes to
mortgagee is a bank or a exercise the right:
banking institution. [The (a) Owner with smaller land area
General Banking Law of (b) If same land area, then the one who first
2000] requested the redemption
Agricultural lessee w/o 2 years from the
knowledge of sale of registration of the sale What constitutes “rural” or “urban” is to be
landholding [Agrarian determined from the character of the community
Land or vicinity in which it is found, and NOT from the
Reform Code, Sec.12] nature of the land itself nor the purpose to which
it is devoted. [Ortega v. Orcine, 1971]
INSTANCES OF LEGAL REDEMPTION
(3) Redemption by adjoining land-owners of urban
(1) Redemption by Co-owners [Art. 1621] land (applies only to small portions of urban land)
A co-owner of a thing may exercise the right of [Art. 1621]
redemption in case the shares of all the co-
owners or any of them are sold to a third person Right of Pre-emption Right of Redemption
(a) “Third person” refers to all persons who are
not heirs of the vendor, by will or intestate Owner of any adjoining If the resale has been
succession land has a right of pre- perfected, the owner of
(b) The right is available not only to original co- emption at a reasonable the adjoining land shall
owners, but to those who had later acquired price when: have a right of
the share of the co-owner (a) Urban land is so redemption, also at a
(c) But the right of redemption may be exercised small and so situated reasonable price
by a co-owner only when part of the that a major portion
community property is sold to a stranger. of it cannot be used Priority if 2 or more
When the portion is sold to another co-owner, for any practical adjoining owners want to
the right does not arise because a new purpose w/in a redeem: owner whose
participant is not added to the co-ownership reasonable time; intended use of the land
[Fernandez v. Tarun, 2002] (b) Was bought merely appears to be best
for speculation; justified
If the price of the alienation is grossly excessive, (c) Was resold
the redemptioner shall pay only a reasonable Arises before sale Arises after sale
one. No rescission because no There can be rescission
Should two or more co-owners desire to exercise sale exists yet of the original sale
the right, they may also do so in proportion to the The action is directed Action is directed against
share they may respectively have in the thing against prospective buyer
owned in common. seller

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Who may redeem

(4) Redemption of Credit
Available when it is sold while in litigation (From (a) within 1 year months favor of a bank
the time the complaint is answered) from the after the (a) within 1 year
date of the sale after the
NOT available when the assignment is in favor of: sale sale (not
(a) Co-heir/co-owner of right assigned available in
(b) Creditor in payment of his credit case of a
(c) Possessor of a tenement or piece of land corporate
which is subject to the right assigned mortgagor)
Amount of redemption
How exercised: reimburse the assignee for the: (a) Amount of the purchase
(a) Price paid (b) Interest at 1% per month from the time of the sale
(b) Judicial expenses incurred up to the time of redemption
(c) Interest on the price from date of payment (c) Any assessment or taxes which the purchaser
may have paid
(5) Under the Public Land Act
Coverage: (7) Under the Agrarian Land Reform Code
(a) Every conveyance of land acquired under a Lessees right of pre-emption
free patent or homestead (a) The agricultural lessee shall have the
(b) The ownership of the land must have been preferential right to buy under the same
transferred to another. If the transaction is a reasonable terms and conditions, in case the
mere promise to sell, there is no right yet to lessor decides to hold the landholding
redeem (b) Conditions:
(c) This refers to conveyances made after the i. The landholding must be pre-empted by
prohibited 5 years from the issuance of the the DAR
patent or grant ii. When two or more lessees, each shall have
preferential right only to the extent of the
Period: area cultivated by him
(a) Within 5 years from the date of conveyance (c) Period: 180 days from notice in writing
(b) If pacto de retro sale, the period to redeem
cannot be less than 5 years Lessees right of redemption
(a) Sec. 12 RA 3844: In case landholding is sold to
Who may redeem: 3rd person without the knowledge of the
(a) General Rule: Applicant, widow, or heirs lessee, the latter shall have the right to
(b) Exception: land is sold to another member of redeem the same at a reasonable price and
the family of the applicant, or his direct consideration
descendant or heir (b) Period: within 180 days from notice in writing
(c) From whom: Subsequent purchasers
AGE REDEMPTION – ART. 1619
(6) Redemption in Foreclosure and Execution Sales
Art. 1619. Legal redemption is the right to be
Who may redeem subrogated, upon the same terms and conditions
In extra judicial In execution sales stipulated in the contract, in the place of one who
foreclosure (a) Judgment debtor acquires a thing by purchase or dation in payment, or
(a) Debtor (b) Successor in interest by any other transaction whereby ownership is
(b) Successor in interest (c) Creditor having a lien transmitted by onerous title.
(c) Judicial or judgment on the property sold
creditor of said by attachment,
debtor judgment or
(d) - Junior mortgage on the
encumbrancer property subsequent
to the judgment
Period to redeem
Extra judicial Execution sale If land is
foreclosure (a) within 12 mortgaged in

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UP COLLEGE OF LAW
The Law on Sale of
Subdivision and
Condominium (PD 957)
DEFINITIONS
DEFINITION OF "SALE" OR "SELL"
(a) include every disposition, or attempt to dispose,
for a valuable consideration, of a subdivision lot,
including the building and other improvements
thereof, if any, in a subdivision project or a
condominium unit in a condominium project.
(b) also include a contract to sell, a contract of
purchase and sale, an exchange, an attempt to
sell, an option of sale or purchase, a solicitation of
a sale, or an offer to sell, directly or by an agent,
or by a circular, letter, advertisement or
otherwise.
(c) privilege given to a member of a cooperative,
corporation, partnership, or any association
and/or the issuance of a certificate or receipt
evidencing or giving the right of participation in,
or right to, any land in consideration of payment
of the membership fee or dues, shall be deemed
a sale within the meaning of this definition.
DEFINITION OF "BUY" OR "PURCHASE"
(a) include any contract to buy, purchase, or
otherwise acquire for a valuable consideration a
subdivision lot, including the building and other
improvements, if any, in a subdivision project or a
condominium unit in a condominium project.
"Owner" shall refer to the registered owner of the
land subject of a subdivision or a condominium
project.
"Developer" shall mean the person who develops or
improves the subdivision project or condominium
project for and in behalf of the owner thereof.
"Dealer" shall mean any person directly engaged as
principal in the business of buying, selling or
exchanging real estate whether on a full-time or
part-time basis.
"Broker" shall mean any person who, for commission
or other compensation, undertakes to sell or
negotiate the sale of a real estate belonging to
another.
"Salesman" shall refer to the person regularly
employed by a broker to perform, for and in his
behalf, any or all functions of a real estate broker.
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SALES BAR OPERATIONS COMMISSION
REQUIREMENTS FOR OWNERS AND DEVELOPERS
(1) Registration of projects
(subdivision/condominium) with the NHA
(2) Registration of the owner
(3) License to sell of owner or dealer with
performance bond [PB, exceptions in Section 7]
Registration of projects [Section 4, PD 957]
The registered owner of a parcel of land who wishes
to convert the same into a subdivision project shall
submit his subdivision plan to the National Housing
Authority. The same procedure shall be followed in
the case of a plan for a condominium project except
that NHA also approves the building thereon in
accordance with the National Building Code.
Registration of owner [Section 4, PD 957]
The owner or the real estate dealer interested in the
sale of lots or units, respectively, in such subdivision
project or condominium project shall register the
project with the Authority by filing therewith a sworn
registration statement.
Publication and issuance of registration certificate
[Section 4, PD 957]
A notice of the filing of the registration statement at
the expense of the applicant-owner or dealer, in two
newspapers general circulation, one published in
English and another in Pilipino, once a week for two
consecutive weeks. Notice shall state that
subdivision lots or condominium units are open to
inspection during business hours by interested
parties. The project shall be deemed registered upon
completion of the publication requirement. The fact
of registration shall be evidenced by a registration
certificate issued to the applicant-owner or dealer.
License to sell [Section 5, PD 957]
The registration certificate does NOT authorize the
owner or dealer to sell any unit. They must first
obtain a license to sell within two weeks from the
registration of the project. The license to sell is
issued upon examination of the registration
statement filed by the owner or dealer showing that:
(1) the owner or dealer is of good repute
(2) that his business is financially stable
(3) that the proposed sale of subdivision lots or
condominium units to the public would not be
fraudulent
Performance bond [Section 6, PD 957]
A license to sell can only be issued by the NHA if the
owner or dealer files a performance bond
guaranteeing the construction and maintenance of
UP COLLEGE OF LAW
the roads, gutters, drainage, sewerage, water system,
lighting systems, and full development of the
subdivision project or the condominium project and
the compliance by the owner or dealer with the
applicable laws and rules and regulations. The bond
shall be executed in favor of the Republic of the
Philippines and shall authorize the Authority to use
the proceeds thereof for the purposes of its
undertaking in case of forfeiture as provided in this
Decree.
When license to sell and performance bond not
required [Section 7, PD 957]
A license to sell and performance bond shall not be
required in any of the following transactions:
(a) Sale of a subdivision lot resulting from the
partition of land among co-owners and co-heirs.
(b) Sale or transfer of a subdivision lot by the original
purchaser thereof and any subsequent sale of the
same lot.
(c) Sale of a subdivision lot or a condominium unit by
or for the account of a mortgagee in the ordinary
course of business when necessary to liquidate a
bona fide debt.
Grounds for suspension of license to sell [Section 8,
PD 957]
(1) misleading, incorrect, inadequate, or incomplete
information in registration statement
(2) fraud upon prospective buyers on the sale or
offering for a sale
Note: suspension is confidential unless orer of
suspension has been violated.
Grounds for revocation of registration certificate and
license to sell [Section 9, PD 957]
(1) Insolvency of owner/dealer
(2) Violation of owner of PD 957 or its IRR or any
undertaking of his/its performance bond
(3) Has been or is engaged or is about to engage in
fraudulent transactions
(4) Misrepresentation in any prospectus, brochure,
circular or other literature about the subdivision
project or condominium project that has been
distributed to prospective buyers
(5) Bad business repute of owner/dealer
(6) Does not conduct his business in accordance with
law or sound business principles
Requirement for Dealers, Brokers, and Salesmen
(DBS)
Registration
Dealers, brokers, and salesmen (DBS) must be
registered (Section 11, PD 957)
Requisites of registration:
(1) Good reputation and compliance with NHA rules
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SALES BAR OPERATIONS COMMISSION
(2) Payment of prescribed fee
(3) Filing of bond or other security (amount fixed by
NHA) conditioned upon his faithful compliance
with provisions of PD 957
When registration of DBS terminates
(1) Termination of employment with dealer or broker
(2) Expiration (31st day of Dec each year)
Registration of DBS may be renewed not less than
30 nor more than 60 days before Jan 1 and by
payment of fee. If renewal is not within said period, it
shall be treated as an original application.
Revocation of registration as DBS [Section 12, PD 957]
Grounds
(1) Has violated any provision of this Decree or any
rule or regulation made hereunder; or
(2) Has made a material false statement in his
application for registration; or
(3) Has been guilty of a fraudulent act in connection
with any sale of a subdivision lot or condominium
unit; or
(4) Has demonstrated his unworthiness to transact
the business of dealer, broker, or salesman, as
the case may be.
The NHA may suspend the DBS' registration pending
hearing of the case. The suspension or revocation of
the registration of a dealer or broker (DB) shall carry
with it all the suspension or revocation of the
registration of all his salesmen (S).
Characteristics of sale of a condominium or
subdivision unit and similar contracts
(1) Contracts to sell, deeds of sale, and other similar
instruments must be registered with the Register
of Deeds
(2) Mortgages on unit or lot by owner/developer
needs prior written approval by NHA for the
protection of buyers
(3) Advertisements by owner of developer become
part of sales warranties enforceable against
owner or developer
(4) No forfeiture of installments already paid by
buyer if buyer stops paying because of failure by
owner or developer to develop subdivision or
condominium
(5) Failure to pay installments governed by Maceda
Law [RA 6552]
(6) Title is issued to the buyer upon full payment
(7) Realty tax is paid by owner or developer while not
fully paid; but if the buyer occupies the unit/lot,
the owner/developer may recover the taxes from
the buyer
(8) Owner or developer cannot demand any other
charges allegedly for community benefit (may be
done by homeowner's association)
UP COLLEGE OF LAW
Registration of sale, etc [Section 17, PD 957]
All contracts to sell, deeds of sale and other similar
instruments relative to the sale or conveyance of the
subdivision lots and condominium units, whether or
not the purchase price is paid in full, shall be
registered by the seller in the Office of the Register
of Deeds of the province or city where the property is
situated.
Mortgages on unit or lot by owner or developer
[Section 18, PD 957]
(a) Need prior written approval of the NHA
(b) Must show that proceeds of mortgage will be
used for development of the condominium or
subdivision
(c) Value of each lot or unit determined by the buyer
(if there is one) and the buyer shall be notified
before release of loan
(d) Buyer may pay directly to mortgagee
Advertisements by the owner or developer [Section 19,
PD 957]
(a) Must reflect real facts, must not mislead or
deceive public
(b) Owner or developer shall be liable for any
misrepresentation as to facilities, etc.
(c) Advertisements shall form part of the sales
warranties enforceable against the owner or
developer
(d) Failure to comply with sales warranties is
punishable under PD 957
Non-forfeiture of payments (Section 23, PD 957)
No installment payment made by a buyer in a
subdivision or condominium project for the lot or unit
he contracted to buy shall be forfeited in favor of the
owner or developer when the buyer, after due notice
to the owner or developer, desists from further
payment due to the failure of the owner or developer
to develop the subdivision or condominium project
according to the approved plans and within the time
limit for complying with the same. Such buyer may,
at his option, be reimbursed the total amount paid
including amortization interests but excluding
delinquency interests, with interest thereon at the
legal rate.
Failure to pay installments [Section 24, PD 957]
The rights of the buyer in the event of this failure to
pay the installments due for reasons other than the
failure of the owner or developer to develop the
project shall be governed by Republic Act No. 6552
[Maceda Law].
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SALES BAR OPERATIONS COMMISSION
Issuance of title [Section 25, PD 957]
The owner or developer shall deliver the title of the
lot or unit to the buyer upon full payment of the lot
or unit. No fee, except those required for the
registration of the deed of sale in the Registry of
Deeds, shall be collected for the issuance of such
title. In the event a mortgage over the lot or unit is
outstanding at the time of the issuance of the title to
the buyer, the owner or developer shall redeem the
mortgage or the corresponding portion thereof
within six months from such issuance in order that
the title over any fully paid lot or unit may be secured
and delivered to the buyer in accordance herewith.
Realty tax [Section 26, PD 957]
Real estate tax and assessment on a lot or unit shall
de paid by the owner or developer without recourse
to the buyer for as long as the title has not passed
the buyer; Provided, however, that if the buyer has
actually taken possession of and occupied the lot or
unit, he shall be liable to the owner or developer for
such tax and assessment effective the year following
such taking of possession and occupancy.
No other charges [Section 27, PD 957]
No owner or developer shall levy upon any lot or
buyer a fee for an alleged community benefit. Fees to
finance services for common comfort, security and
sanitation may be collected only by a properly
organized homeowners association and only with the
consent of a majority of the lot or unit buyers actually
residing in the subdivision or condominium project.
The Condominium Act (RA
4726)
DEFINITION OF A CONDOMINIUM
Sec. 2. A condominium is an interest in real property
consisting of separate interest in a unit in a
residential, industrial or commercial building and an
undivided interest in common, directly or indirectly,
in the land on which it is located and in other
common areas of the building. A condominium may
include, in addition, a separate interest in other
portions of such real property. Title to the common
areas, including the land, or the appurtenant
interests in such areas, may be held by a corporation
specially formed for the purpose (hereinafter known
as the "condominium corporation") in which the
holders of separate interest shall automatically be
members or shareholders, to the exclusion of others,
in proportion to the appurtenant interest of their
respective units in the common areas.
UP COLLEGE OF LAW
(a) separate interest in a unit in a residential,
industrial or commercial building
(b) undivided interest in the land on which the
building is located and other common areas
i. common areas may not be partitioned even by
judicial decree [Section 7]
(c) title to land and common areas held by
condominium corporation - owners of separate
interest are automatically
members/shareholders, exclusively.
OTHER DEFINITIONS
Sec. 3. As used in this Act, unless the context
otherwise requires:
(a) "Condominium" means a condominium as
defined in Section 2.
(b) "Unit" means a part of the condominium
project intended for any type of independent use
or ownership, including one or more rooms or
spaces located in one or more floors (or part or
parts of floors) in a building or buildings and such
accessories as may be appended thereto.
(c) "Project" means the entire parcel of real property
divided or to be divided in condominiums,
including all structures thereon,
(d) "Common areas" means the entire project
excepting all units separately granted or held or
reserved.
(e) "To divide" real property means to divide the
ownership thereof or other interest therein by
conveying one or more condominiums therein but
less than the whole thereof.
TRANSFERS OR CONVEYANCES OF A UNIT OR
AN APARTMENT, OFFICE OR STORE, OR OTHER
SPACE THEREIN [SECTION 5, RA 4726]
(a) Transfer or conveyance of a unit or a space therein
includes the transfer or conveyance of the
i. undivided interests in common areas
ii. membership or shareholding in the
condominium corporation
(b) Proviso: only Filipino citizens or corporations at
least 60% of the capital stock are owned by
Filipino citizens may be the transferee of common
areas in cases where the common areas are owned
by the owners of separate units as co-owners (not
by condominium corporation)
(c) Exception to proviso: hereditary succession
RIGHTS OF A CONDOMINIUM UNIT OWNER
(ASIDE FROM RIGHTS ARISING FROM
OWNERSHIP) [SECTION 6]
(1) Absolute right to sell or dispose of his
condominium unless the master deed unless
there is a right of first refusal in favor of
condominium owners
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(2) Exclusive right to mortgage, pledge or encumber
his condominium and to have the same appraised
independently of the other condominiums but
any obligation incurred by such condominium
owner is personal to him
PARTITION BY SALE [SECTION 8]
This is an action that may be brought by one or more
persons owning condominiums in a condominium
project for the partition of the project by the sale
thereof. The effect is as if the owners of all the
condominiums in such project were co-owners of the
entire project in the same proportion as their
interests as their interests in the common areas.
A partition by sale can only be done upon showing
any of the following:
(1) That three years after damage or destruction to
the project which renders material part thereof
unfit for its use prior thereto, the project has not
been rebuilt or repaired substantially to its state
prior to its damage or destruction
(2) That damage or destruction to the project has
rendered one-half or more of the units therein
untenantable and that condominium owners
holding in aggregate more than thirty percent
interest in the common areas are opposed to
repair or restoration of the project
(3) That the project has been in existence in excess of
fifty years, that it is obsolete and uneconomic,
and that condominium owners holding in
aggregate more than fifty percent interest in the
common areas are opposed to repair or
restoration or remodeling or modernizing of the
project
(4) That the project or a material part thereof has
been condemned or expropriated and that the
project is no longer viable, or that the
condominium owners holding in aggregate more
than seventy percent interest in the common
areas are opposed to continuation of the
condominium regime after expropriation or
condemnation of a material portion thereof
(5) That the conditions for such partition by sale set
forth in the declaration of restrictions, duly
registered in accordance with the terms of the
Condominium Act, have been met
DECLARATION OF RESTRICTIONS BY OWNER OF
PROJECT - PRECONDITION TO CONVEYANCE
[SECTION 9]
(a) The owner must register with the Register of
Deeds a declaration of restrictions before the
conveyance of any condominium in the project
(b) The restrictions constitute a lien upon each
condominium in the project and shall insure to
and bind all condominium owners in the project
UP COLLEGE OF LAW
(c) The lien may be enforced by any condominium
owner or by the management body of the project
ASSESSMENT IN ACCORDANCE WITH
DECLARATION OF RESTRICTIONS [SECTION 20]
This is the "tax imposition power" of the
condominium corporation. If unpaid, the
management body may cause a notice of
assessment to be registered with the Register of
Deeds, which may be released only upon payment of
the assessed fees. This lien is superior to all other
subsequent liens except real property taxes liens and
other liens provided for in the declaration of
restrictions.
HOW LIEN ENFORCED AFTER NON-PAYMENT
OF ASSESSED FEES [SECTION 20]
Judicial or extra-judicial foreclosure of real property
mortgages, where the management body may bid
unless disallowed by the declaration of restrictions.
CONTENTS OF A DECLARATION OF
RESTRICTIONS [SECTION 9]
(1) Provisions for the management of the project by
any of the ff bodies:
(a) Condominium corporation
(b) Association of condominium owners
(c) Board of governors elected by condominium
owners
(d) Management agent elected by the owners or
by the board named in the declaration
(2) Provisions for voting majorities quorums, notices,
meeting date, and other rules governing such
body or bodies
(3) Powers of the management body
(4) Maintenance of insurance policies (fire, casualty,
workmen's compensation, etc)
(5) Maintenance, utility, gardening and other services
for the common areas
(6) Amendment of the restrictions
(7) Reasonable assessment to meet expenditures
(8) And many other provisions - the common thread
is the management and maintenance of the
common areas and the manner of exercise of the
management body's powers
INVOLUNTARY DISSOLUTION OF THE
CONDOMINIUM CORPORATION [SECTION 12]
In case of involuntary dissolution, the common areas
held by the corporation shall be transferred pro-
indiviso and in proportion to their interest to the
members/stockholders of the corporation, subject to
the rights of creditors of the corporation. The
common areas remain in undivided co-ownership.
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POWER OF ATTORNEY HELD BY CORPORATION
IN CASE OF VOLUNTARY DISSOLUTION OF
CONDOMINIUM CORPORATION [SECTION 15]
The condominium corporation is deemed to hold a
power of attorney from all members/stockholders to
sell and dispose of their separate interests in the
project. To liquidate, the condominium corporation
will sell the entire project as if it owned the whole
project itself, subject to the corporate and individual
condominium creditors.
SALE, EXCHANGE, LEASE, OR DISPOSITION BY
CORPORATION OF THE COMMON AREAS
[SECTION 16]
Generally not allowed unless authorized by
affirmative vote of all of the stockholders/members.
STOCKHOLDER/MEMBER DEMANDING
PAYMENT FOR SHARES OR INTEREST AKA
APPRAISAL RIGHT [SECTION 17]
By-laws of the condominium corporation shall
provide that any shareholder/member demanding
payment for his share or interest must also consent to
sell his separate interest in the project to the
corporation or any buyer of the corporation's choice.
REQUIREMENTS FOR REGISTRATION OF
CONVEYANCE WITH THE REGISTER OF DEEDS
[SECTION 18]
(1) Certificate of the management body of the
project that the conveyance is in accordance with
the declaration of restrictions
REALTY TAX ON CONDOMINIUMS [SECTION 25]
Each condominium separately owned shall be
separately assessed, for purposes of real property
taxation and other tax purposes to the owners
thereof and the tax on each such condominium shall
constitute a lien solely thereon.