2017 Suggested Answers

CIVIL LAW 2017
Source: https://www.scribd.com/document/366862159/CIV-2017-Bar-Suggested-
Answers-by-Rabuya
I.
State whether the following marital unions are valid, void, or voidable, and give the
corresponding justifications for your answer:
a. Ador and Becky’s marriage wherein Ador was afflicted with AIDS prior to the
marriage. (2%)
SUGGESTED ANSWER: Voidable. Under the Family Code, a marriage is voidable if either of
the party was afflicted with a sexually transmissible disease which is serious and incurable,
such as AIDS. Here, Ador was afflicted with AIDS at the time of the celebration of the
marriage, a sexually transmissible disease considered to be serious and incurable. [Basis:
Article 45(6), Family Code; discussed in p. 122, Vol. 1, Rabuya’s Civ Reviewer Book]
b. Carlos’ marriage to Dina which took place after Dina had poisoned her previous
husband Edu in order to free herself from any impediment in order to live with Carlos.
(2%)
SUGGESTED ANSWER: Void. Under the Family Code, a marriage is declared void by reason
of public policy when one, with the intention to marry the other, killed that other spouse or
his or her own spouse. Here, the wife killed her previous husband for the purpose of
marrying the second husband. [Basis: Article 38 (9), Family Code; discussed in p. 94, Vol. 1,
Rabuya’s Civ Reviewer Book]
c. Eli and Fely’s marriage solemnized seven years after the disappearance of Chona,
Eli’s previous spouse, after the plane she had boarded crashed in the West Philippine
Sea. (2%)
SUGGESTED ANSWER: If the marriage took place during the effectivity of the Family Code
and Chona is in fact alive, the subsequent marriage is void for being bigamous because Eli
failed to obtain a judicial declaration of presumptive death of the absentee spouse prior to
contracting the subsequent marriage. Under the Family Code, a judicial declaration of
presumptive death of the absentee is required to be obtained by the spouse present to make
the subsequent marriage valid. However, had Chona really died when the plane crashed, the
subsequent marriage of Eli is valid because the prior marriage was already terminated.
[Basis: Article 41, Family Code; Armas v. Calisterio, 330 SCRA 201 (2000); discussed in pp.
99-100, Vol. 1, Rabuya’s Civ Reviewer Book]
But if the subsequent marriage took place during the effectivity of the Civil Code, the
marriage is valid until annulled (voidable) because no judicial declaration of presumptive
death was required under the Civil Code.
d. David who married Lina immediately the day after obtaining a judicial decree
annulling his prior marriage to Elisa. (2%)
SUGGESTED ANSWER: Void. Under the Family Code, David is required to record the
judgment of annullment and the partition and distribution of the properties of the spouses,
as well as the delivery of the presumptive legitimes of their children, in the appropriate civil
registry and registries of property prior to contracting the second marriage; otherwise, the
subsequent marriage is void. [Basis: Article 35(6), in relation to Artcicles 53 and 52, Family
Code; discussed in p. 83, Vol. 1, Rabuya’s Civ Reviewer Book]
e. Marriage of Zoren and Carmina who did not secure a marriage license prior to their
wedding, but lived together as husband and wife for 10 years without any legal
impediment to marry. (2%)
SUGGESTED ANSWER: Valid because their marriage is exceptional and exempt from the
requirement of a marriage license. Under the Family Code, the marriage of a man and woman
who lived exclusively as husband and wife for at least five years and without impediment is
exempt from the requirement of a marriage license. [Basis: Article 34, Family Code;
discussed in pp. 57-58, Vol. 1, Rabuya’s Civ Reviewer Book]
II.
In 1960, Rigor and Mike occupied two separate but adjacent tracts of land in Mindoro.
Rigor’s tract was classified as timber land while Mike’s was classified as agricultural
land. Each of them fenced and cultivated his own tract continuously for 30 years. In
1991, the Government declared the land occupied by Mike as alienable and
disposable, and the one cultivated by Rigor as no longer intended for public use or
public service.
Rigor and Mike now come to you today for legal advice in asserting their right of
ownership of their respective lands based on their long possession and occupation
since 1960.
a. What are the legal consequences of the 1991 declarations of the Government
respecting the lands? Explain your answer. (2%)
SUGGESTED ANSWER:
As to the land occupied Mike, the same remains property of the public dominion. According
to jurisprudence, the classification of the property as alienable and disposable land of the
public domain does not change its status as property of the public dominion. There must be
an express declaration by the State that the public dominion property is no longer intended
for public service or the development of the national wealth or that the property has been
converted into patrimonial. Without such express declaration, the property, even if classified
as alienable or disposable, remains property of the public dominion. [Basis: Heirs of Mario
Malabanan v. Republic, 587 SCRA 172 (2009); Heirs of Mario Malabanan v. Republic, 704
SCRA 561 (2013); discussed in my FB wall on October 15 and 16, 2017 and pp. 338-344, Vol.
1, Rabuya’s Civil Law Reviewer]
As to the land occupied by Rigor, the declaration that it is no longer intended for public use
or public service converted the same into patrimonial property provided that such express
declaration was in the form of a law duly enacted by Congress or in a Presidential
Proclamation in cases where the President was duly authorized by law. According to
jurisprudence, when public land is no longer intended for public use, public service or for
the development of the national wealth it is thereby effectively removed from the ambit of
public dominion and converted into patrimonnial provided that the declaration of such
conversion must be made in the form of a law duly enacted by Congress or by a Presidential
proclamation in cases where the President is duly authorized by law to that effect. [Basis:
Heirs of Mario Malabanan v. Republic, 587 SCRA 172 (2009); Heirs of Mario Malabanan v.
Republic, 704 SCRA 561 (2013); discussed in my FB wall on October 15 and 16, 2017 and pp.
338-344, Vol. 1, Rabuya’s Civil Law Reviewer]
b. Given that, according to Section 48(b) of Commonwealth Act No. 141, in relation to
Section 14(1) of Presidential Decree No. 1529, the open, continuous, exclusive, and
notorious possession and occupation of alienable and disposable lands of the public
domain as basis for judicial confirmation of imperfect title must be from June 12,
1945, or earlier, may Mike nevertheless validly base his assertion of the right of
ownership on prescription under the Civil Code? Explain your answer. (4%)
SUGGESTED ANSWER:
No, because the land remains property of public dominion and, therefore, not susceptible to
acquisition by prescription.
According to jurisprudence, the classification of the subject property as alienable and

disposable land of the public domain does not change its status as property of the public
dominion. In order to convert the property into patrimonial, there must be an express
declaration by the State that the public dominion property is no longer intended for public
service or the development of the national wealth or that the property has been converted
into patrimonial. Without such express declaration, the property, even if classified as
alienable or disposable, remains property of the public dominion, and thus incapable of
acquisition by prescription. [Basis: Heirs of Mario Malabanan v. Republic, 587 SCRA 172
(2009); Heirs of Mario Malabanan v. Republic, 704 SCRA 561 (2013); discussed in my FB
wall on October 15 and 16, 2017 and pp. 338-344, Vol. 1, Rabuya’s Civil Law Reviewer]
Here, the declaration of the property into alienable and disposable land of the public domain
in 1991 did not convert the property into patrimonial in the absence of an express
declaration of such conversion into patrimonial in the form of a law duly enacted by Congress
or by a Presidential proclamation in cases where the President is duly authorized by law to
that effect.
c. Does Rigor have legal basis for his application for judicial confirmation of imperfect
title based on prescription as defined by the Civil Code given that, like Mike, his open,
continuous, exclusive, and notorious possession and occupation was not since June 12,
1945, or earlier, and his tract of land was timber land until the declaration in 1991?
Explain your answer. (4%)
SUGGESTED ANSWER:
None, because Rigor’s possession was short of the period required by the Civil Code for
purposes of acquisitive prescription which requires ten (10) years of continuous possession,
if possession was in good faith and with a just title, or thirty years, in any event.
While the property may be considered converted into patrimomial because of the 1991
declaration that it is no longer intended for public use or public service (provided that the
declaration be in the form of a law of a law duly enacted by Congress or by a Presidential
proclamation in cases where the President is duly authorized by law to that effect), Rigor
failed to complete the 30-year period required by law in case of extra-ordinary prescription.
Since the property was converted into patrimonial only in 1991, the period of presciption
commenced to run beginning that year only. Rigor’s possession prior to the conversion of
the property into patrimonial cannot be counted for the purpose of completing the
prescriptive period because prescription did not operate against the State at that time, the
property then being public dominion property.
Rigor may not likewise acquire ownership by virtue of the shorter 10-year ordinary
prescription because his possession was not in good faith and without a just title.
[Basis: Heirs of Mario Malabanan v. Republic, 587 SCRA 172 (2009); Heirs of Mario
Malabanan v. Republic, 704 SCRA 561 (2013); discussed in my FB wall on October 15 and
16, 2017 and pp. 338-344, Vol. 1, Rabuya’s Civil Law Reviewer]
III.
Josef owns a piece of land in Pampanga. The National Housing Authority (NHA) sought
to expropriate the property for its socialized housing project. The trial court fixed the
just compensation for the property at P50 million. The NHA immediately
deposited the same at the authorized depository bank and filed a motion for the
issuance of a writ of possession with the trial court. Unfortunately, there was delay in
the resolution of the motion. Meanwhile, the amount deposited earned interest.
When Josef sought the release of the amount deposited, NHA argued that Josef should
only be entitled to P50 million.
Who owns the interest earned? (3%)
SUGGESTED ANSWER:
The interest earned belongs to Josef because bank interest partakes of the nature of civil
fruits under Article 442 of the Civil Code and shall belong to the owner of the principal thing.
When the National Housing Authority deposited the P50 Million as payment for the just
compensation with an authorized depositary bank for the purpose of obtaining a writ of
possession, it is deemed to be a constructive delivery of the said amount to Josef. Since Josef
is entitled to the P50 Million and undisputably the owner of the said principal amount, the
interest yield, as accession, in a bank deposit should likewise pertain to the owner of the
money deposited. Being an attribute of ownership (jus fruendi), Josef’s right over the fruits,
that is the bank interests, must be respected. [Basis: Republic v. Holy Trinity Realty
Development Corp., G.R. No. 172410, April 14, 2008]
IV.
a. Distinguish antichresis from usufruct. (3%)
SUGGESTED ANSWER:
They are distinguished as follows:
(1) Antichresis is always a contract while usufruct need not arise from a contract because it
may also be constituted by law or by other acts inter vivos, such as donation, or in a last will
and testament, or by prescription.
(2) The subject matter of antichresis is always a real property while the subject matter of
usufruct may either be real property or personal property.
(3) Antichresis is an accessory contract or contract of security while usufruct is a real right.
(4) While in both, the fruits do not pertain to the owner, the usufructuary is entitled to enjoy
the fruits while the antichretic creditor has the obligation to apply the fruits to the payment
of the interest, if owing, and therefatre to the principal of the credit.
b. Distinguish commodatum from mutuum. (3%)
They are distinguished, as follows:
(1) As to subject matter: The subject matter of commodatum is ordinarily non-consumable

while the subject matter of mutuum is either money or consumable;
(2) As to compensation: Commodatum is essentially gratuitous while mutuum may be

gratuitous or with a stipulation to pay interest;
(3) As to right in subject matter: In commodatum, there is no transmission fo ownership of

the thing loaned while in mutuum, the borrower acquires ownership of the thing borrowed.
(4) As to duty of borrower: In commodatum, the same thing borrowed is required to be

returned while in mutuum, the borrower discharges himself, not by returning the identical
thing loaned, but by paying its equivalent in kind, quality and quantity. [Discussed in pp. 725-
726, Vol. 1, Rabuya’s Civil Law Reviewer]
V.
Jacob has owned a farm land in Ramos, Tarlac. In 2012, Liz surreptitiously entered
and cultivated the property. In 2014, Jacob discovered Liz’s presence in and
cultivation of the property. Due to his being busy attending to his business in Cebu, he
tolerated Liz’s cultivation of the property. Subsequently, in December 2016, Jacob
wanted to regain possession of the property; hence, he sent a letter to Liz demanding
that she vacate the property. Liz did not vacate despite the demand.
Jacob comes to enlist your legal assistance to bring an action against Liz to recover the
possession of the property.
What remedies are available to Jacob to recover possession of his property under the
circumstances? Explain your answer. (4%)
SUGGESTED ANSWER:
The remedy available to Jacob is accion publiciana, or an action for the recovery of the better
right of possession. It also refers to an ejectment suit filed after the expiration of one
year from accrual of the cause of action or from the unalwful withholding of possession of
the realty.
Since the entry made by Liz is through stealth, Jacob could have filed an action for forcible
entry. Ordinarily, the one-year period within which to bring an action for forcible entry is
generally counted from the date of actual entry on the land, except that when the entry is
through stealth, the one-year period is counted from the time the plaintiff learned thereof.
Here, since more than one year had elapsed since Jacob learned of the entry made by Liz
through stealth, the action that may be filed by Jacob is no longer forcible entry, but an accion
publiciana. [Basis: Canlas v. Tubil, 601 SCRA 147 (2009); Valdez v. CA, 489 SCRA 369 (2006);
discussed in pp. 353-354, Vol. 1, Rabuya’s Civil Law Reviewer]
VI.
Tyler owns a lot that is enclosed by the lots of Riley to the North and East, of Dylan to
the South, and of Reece to the West. The current route to the public highway is a
kilometer’s walk through the northern lot of Riley, but the route is a rough road that
gets muddy during the rainy season, and is inconvenient because it is only 2.5 meters
wide. Tyler’s nearest access to the public highway would be through the southern lot
of Dylan.
May Dylan be legally required to afford to Tyler a right of way through his property?
SUGGESTED ANSWER:
No, Dylan is not entitled to a grant of compulsory right of way because he has an adequate
outlet going to the public highway.
One of the requisites for a compulsory grant of right of way is that the estate of the claimant
of a right of way must be isolated and without adequate outlet to a public highway. The true
standard for the grant of compulsory right of way is “adequacy” of outlet going to a public
highway and not the convenience of the dominant estate.
In the case at bar, there is already an existing adquate outlet from the dominant estate to a
public highway. Even if said outlet be incovenient, the need to open up another servitude is
entirely unjustified. [Basis: Article 649, Civil Code; Dichoso, Jr. v. Marcos, 647 SCRA 495
(2011); Costabella Corp. v. CA, 193 SCRA 333 (1991); discussed in pp. 559-561, Vol. 1,
Rabuya’s Civil Law Reviewer]
VII.
Alice agreed to sell a parcel of land with an area of 500 square meters registered in
her name and covered by TCT No. 12345 in favor of Bernadette for the amount of
P900,000. Their agreement dated October 15, 2015, reads as follows:
I, Bernadette, agree to buy the lot owned by Alice covered by TCT No. 12345 for the
amount of P900,000 subject to the following schedule of payment:
Upon signing of agreement – P100,000
November 15, 2015 – P200,000
December 15, 2015 – P200,000
January 15, 2016 – P200,000
February 15, 2016 – P200,000
Title to the property shall be transferred upon full payment of P900,000 on or before
February 15, 2016.
After making the initial payment of P100,000 on October 15, 2015, and the second
installment of P200,000 on November 15, 2015, Bernadette defaulted despite
repeated demands from Alice.
In December 2016, Bernadette offered to pay her balance but Alice refused and told
her that the land was no longer for sale. Due to the refusal, Bernadette caused the
annotation of her adverse claim upon TCT No. 12345 on December 19, 2016. Later on,
Bernadette discovered that Alice had sold the property to Chona on February 5, 2016,
and that TCT No. 12345 had been cancelled and another one issued (TCT No. 67891)
in favor of Chona as the new owner.
Bernadette sued Alice and Chona for specific performance, annulment of sale and
cancellation of TCT No. 67891. Bernadette insisted that she had entered into a
contract of sale with Alice; and that because Alice had engaged in double sale, TCT No.
67891 should be cancelled and another title be issued in Bernadette’s favor.
a. Did Alice and Bernadette enter into a contract of sale of the lot covered by TCT No.
12345? Explain your answer. (4%)
SUGGESTED ANSWER:
No, because in the agreement between Alice and Bernadette the ownership is reserved in the
vendor and is not to pass to the vendee until full payment of the purchase price, which makes
the contract one of contract to sell and not a contract of sale.
Distinctions between a contract to sell and a contract of sale are well-established in

jurisprudence. In a contract of sale, the title to the property passes to the vendee upon the
delivery of the thing sold; in a contract to sell, ownership is, by agreement, reserved in the
vendor and is not to pass to the vendee until full payment of the purchase price. Otherwise
stated, in a contract of sale, the vendor loses ownership over the property and cannot recover
it until and unless the contract is resolved or rescinded; whereas, in a contract to sell, title is
retained by the vendor until full payment of the price. In the latter contract, payment of the
price is a positive suspensive condition, failure of which is not a breach but an event that
prevents the obligation of the vendor to convey title from becoming effective. [Saberon v.
Ventanilla, Jr., 722 SCRA 287 (2014); Spouses Torrecampo v. Alindogan, 545
Phil. 686 (2007); discussed in pp. 363-366, Vol. 2, Rabuya’s Civil Law Reviewer]
In the case at bar, the contract entered between the parties is a contract to sell because
ownership is retained by the vendor and is not to pass to the vendee until full payment of the
purchase price.
b. Did Alice engage in double sale of the property? Explain your answer. (4%)
SUGGESTED ANSWER:
NO, because there was no previous sale of the same property prior to its sale to Chona.
Despite the earlier transaction of Alice with Bernadette, the former is not guilty of double
sale because the previous transaction with Bernadette is charactrerized as a contract to sell.
In a contract to sell, there being no previous sale of the property, a third person buying such
property despite the fulfillment of the suspensive condition such as the full payment of the
purchase price, for instance, cannot be deemed a buyer in bad faith and the prospective
buyer cannot seek the relief of reconveyance of the property. There is no double sale in such
case. Title to the property will transfer to the buyer after registration because there is no
defect in the owner-sellers title per se, but the latter, of course, may be sued for damages by
the intending buyer. [Basis: Coronel v. CA, 263 SCRA 15 (1996); discussed in pp. 363-366,
Vol. 2, Rabuya’s Civil Law Reviewer]
VIII.
Pedro had worked for 15 years in Saudi Arabia when he finally decided to engage in
farming in his home province where his 10-hectare farmland valued at P2,000,000
was located. He had already P3,000,000 savings from his long stint in Saudi Arabia.
Eagerly awaiting Pedro’s arrival at the NAIA were his aging parents Modesto and
Jacinta, his common-law spouse Veneranda, their three children, and Alex, his child by
Carol, his departed legal wife. Sadly for all of them, Pedro suffered a stroke because of
his over-excitement just as the plane was about to land, and died without seeing any
of them.
The farmland and the savings were all the properties he left.
(a) State who are Pedro’s legal heirs, and the shares of each legal heir to the estate?
SUGGESTED ANSWER:
Pedro’s legal heirs are his legitimate child, Alex, and his three illegitimate chidlren with
Veneranda. Pedro’s chidlren with Veneranda are illegitimate because they were conceived
and born outside of a valid marriage. Alex, on the other hand, is a legitimate child because
she was conceived or born inside a valid marriage.
Pedro’s surviving parents are not legal heirs because they are excluded by Alex. In intestate
succession, the legitimate ascendants do not become legal heirs if there is a surviving
legitimate descendant, such as Alex in the problem. Veneranda is not a legal heir of Pedro
because she and Pedro were not married.
Ordinarily, the share of an illegitimate child in intestate succession is one-half of the share of
the legitimate child. Considering, however, that the three illegitimate chidlren will impair the
legitime of Alex if the foregoing formula is followed, Alex is entitled instead to get his
legitime, which is ½ of the estate, or P2.5 Million, while the remaining P2.5 Million is to be
divided equally among the three illegitimate children of Pedro. Their legitimes in this case
will likewise be their shares in intestate succession. [Discussed in pp. 944, Vol. 1, Rabuya’s
Civil Law Reviewer]
(b) Assuming that Pedro’s will is discovered soon after his funeral. In the will, he
disposed of half of his estate in favor of Veneranda, and the other half in favor of his
children and his parents in equal shares. Assuming also that the will is admitted to
probate by the proper court. Are the testamentary dispositions valid and effective
under the law on succession? Explain your answer. (4%)
SUGGESTED ANSWER:
No, because the testamentary dispositions impair the legitimes of Pedro’s compulsory heirs.
Following the provisions of the Civil Code, only Alex and Pedro’s three illegitimate children
are Pedro’s compulsory heirs. Since Alex is Pedro’s legitimate descendant and a primary
compulsory heir, she excludes Pedro’s parents as compulsory heirs, the latter being merely
secondary compulsory heirs. However, the three illegitimate chidlren are considered
concurring compulsory heirs who are also entitled to a share of the legitime.
Under the law, the legitime of Alex, being a legitimate descendant, is ½ of Pedro’s estate, or
P2.5 Million. The legitime of each of the illegitimate children is supposed to be ½ of the share
of Alex, or P1.25 Million each. Considering, however, that the remaining portion of the estate
is no longer sufficient to cover the supposed legitimes of the three illegitimate children, they
will simply share equally in the remaining P2.5 Million. Consequently, there is no disposable
free portion that Pedro may validly give to Veneranda or to his parents. Hence, the will is
intrinsically invalid. [Discussed in pp. 859, Vol. 1, Rabuya’s Civil Law Reviewer]
IX.
Danny and Elsa were married in 2002. In 2012, Elsa left the conjugal home and her
two minor children with Danny to live with her paramour. In 2015. Danny sold
without EIsa’s consent a parcel of land registered in his name that he had purchased
prior to the marriage. Danny used the proceeds of the sale to pay for his children’s
tuition fees.
Is the sale valid, void or voidable? Explain your answer. (3%)
SUGGESTED ANSWER:
The sale is void because the subject property is a community property which was sold
without the consent of one of the spouses.
Since the marriage of Danny and Elsa was celebrated during the effectivity of the Family Code
without a marriage settlement, their property regime is absolute community of property,
which is the property regime that applies by default under the Family Code in the absence of
a marriage settlement. Under the regime of absolute community, properties acquired by the
future spouses prior to the celebration of the marriage shall become community property
after the marriage. Hence the subject property is a community property.
Under the regime of absolute community, the disposition or encumbrance of community
property must have the written consent of the other spouse or the authority of the court
without which the disposition or encumbrance is void Here, the sale of the absolute
community property by the husband without the consent of the wife or the authority of the
court renders the sale void, whatever may be the reason for such sale. The husband should
have obtained court authorization in selling the community property for the purpose of using
the proceeds thereof to pay his children’s tuition fees. [[Basis: Articles 75, 91 and 96, Family
Code; discussed in pp. 145, 147 and 153, Vol. 1, Rabuya’s Civil Law Reviewer].
X.
Briefly explain whether the following contracts are valid, rescissible, unenforceable,
or void:
(a) A contract of sale between Lana and Andy wherein 16-year old Lana agreed to sell
her grand piano for 25,000.00. (2%)
SUGGESTED ANSWER: Voidable. Under the Civil Code, a contract where one of the parties is
incapable of giving consent to a contract is voidable. A minor, like Andy in this case, is
incapable of giving consent to a contract. Hence, the contract is voidable. [Basis: Articles
1390(1) and 1327, Civil Code; discussed in p. 278, Vol. 2, Rabuya’s Civil Law Reviewer]
(b) A contract of lease of the Philippine Sea entered by and between Mitoy and Elsa.
(2%)
SUGGESTED ANSWER: Void. Under the Civil Code, a contract whose cause, object or purpose
is contrary to law, morals, good customs, public order or public policy is void. The Philippine
Sea is either a property of public dominion (if within Philippine territory) or a common thing
(if outside of Philippine territory) and, therefore, outside the commerce of men. Hence, it
cannot be made the object of a contract. [Basis: Articles 1409(1) and 1347, Civil Code;
discussed in pp. 217-218, Vol. 2, Rabuya’s Civil Law Reviewer]
(c) A barter of toys executed by 12-year old Clarence and 10-year old Czar (2%)
SUGGESTED ANSWER: Unenforceable. Under the Civil Code, a contract where both parties
are incapable of giving consent to a contract is unenforceable. Here, both parties to the
contract are minors and, therefore, incapable of giving consent to a contract. [Basis: Articles
1403(3) and 1327, Civil Code; discussed in p. 278, Vol. 2, Rabuya’s Civil Law Reviewer]
(d) A sale entered by Barri and Garri, both minors, which their parents later ratified.
(2%)
SUGGESTED ANSWER: Valid. Under the Civil Code, while both parties to the contract are
minors and, therefore, incapable of giving consent, the ratification made by the parents of
both the contracting parties shall nonetheless validate the contract from the inception.
[Basis: Article 1407, Civil Code; discussed in p. 297, Vol. 2, Rabuya’s Civil Law Reviewer]
(e) Jenny’s sale of her car to Celestine in order to evade attachment by Jenny’s
creditors. (2%)
SUGGESTED ANSWER: Rescissible. Under the Civil Code, a contract undertaken in fraud of
creditors is rescissible when the latter cannot in any other manner collect the claims due
them. [Basis: Article 1381 (3), Civil Code; discussed in p. 256, Vol. 2, Rabuya’s Civil Law
Reviewer]
XI.
Zeny and Nolan were best friends for a long time already. Zeny borrowed 310,000.00
from Nolan, evidenced by a promissory note whereby Zeny promised to pay the loan
“once his means permit.” Two months later, they had a quarrel that broke their long-
standing friendship.
Nolan seeks your advice on how to collect from Zeny despite the tenor of the
promissory note. what will your advice be? Explain your answer. (3%)
SUGGESTED ANSWER:
I will advice Nolan to file first an action to fix the term or period because the fulfillment of
the obligation itself cannot be demanded unti after the court has fixed the period for
compliance therewith, and such period has arrived. Any action to compel performance
brought before that would be premature.
Under the Civil Code, when the debtor binds himself when his means permit to do so, the
obligation shall be deemed to be one with a period, but which period shall be fixed by the
court. In such a situation, the court is authorized to fix the period because the duration of the
period depends exclusively upon the will of the debtor. Any action filed prior to the
expiration of the period to be fixed by the court would be premature. [Basis: Articles 1180
and 1197, Civil Code; Concepcion v. People, 74 Phil. 63; Gonzales v. Jose, 66 Phil. 369;
dicussed in pp. 70-72, Vol. 2, Rabuya’s Civil Law Reviewer]
XII.
Krystal owns a parcel of land covered by TCT No. 12345 in Angeles City, Due to severe
financial constraints, Krystal was lorc based in the property to RBP Corporation, a
foreign corporation based in South Korea. Subsequently, RBP Corporation sold the
property to Gloria, one of its most valued clients.
Wanting her property back, Krystal, learning of the transfer of the property from RBP
Corporation to Gloria, sued both of them in the Regional Trial Court (RTC) for
annulment of sale and for reconveyance. She alleged that the sale by RBP Corporation
to Gloria was void because RBP Corporation was a foreign corporation prohibited by
the Constitution from acquiring and owning lands in the Philippines.
Will KrystaI’s suit for annulment of sale and reconveyance prosper? Explain your
answer. (4%)
SUGGESTED ANSWER:
No, because the flaw in the original transaction is considered cured by the subsequent
transfer of the property to a Filipino citizen who is constitutionally qualified to own land in
the Philippines.
While the Constitutuion prohibits an alien from acquiring or holding title to private lands or
to lands of the public domain in the Philippines, except only by way of hereditary succession,
jurisprudence is consistent that if land is invalidly transferred to an alien who subsequently
becomes a citizen or transfers it to a citizen, the flaw in the original transaction is considered
cured and the title of the transferee is rendered valid.
In the case at bar, the subsequent transfer of the property to Gloria, a Filipino citizen, has the
effect of curing the defect of the original transaction in favor of RBP Corporation because the
land has since become the property of a Filipino citizen who is constitutionally qualified to
own land. As such, the prior invalid transfer can no longer be assailed because the objective
of the constitutional provision -- to keep our land in Filipino hands -- has been served. [Basis:
United Church Board of World Ministries vs. Sebastian, 159 SCRA 446, 451- 452, March 30,
1988; per Cruz, J. See also Tejido vs. Zamacoma, 138 SCRA 78, August 7,
1985; Sarsosa vda. de Barsobiavs. Cuenco, 113 SCRA 547, April 16, 1982; Godinez vs. Fong
Pak Luen, 120 SCRA 223, January 27, 1983; Yap vs. Maravillas, 121 SCRA 244, March 28,
1983; De Castro vs. Tan, 129 SCRA 85, April 30, 1984]
XIII.
TRUE or FALSE – Explain your answers.
(a) All rights are considered as property. (2%)
SUGGESTED ANSWER: False, because rights which are not patrimonial in nature, such as the
right to liberty, the right to honor, family rights, etc., cannot be considered as property.
[Basis: II Tolentino, Civil Code of the Philippines, 1992 ed., pp. 4-5]
(b) A lessee cannot bring a case for quieting of title respecting the property that he
leases. (2%)
SUGGESTED ANSWER: False, because the action may be filed by anyone who has legal or
equitable title to, or interest in, the property which is the subject matter of the action. Hence,
any holder of interest to the property or right to possession of the land, including the interest
of a lessee, may bring an action for quieting of title. [Basis: Article 477, Civil Code]
(c) Only the city or municipal mayor can file a civil action to abate a public nuisance.
(2%)
SUGGESTED ANSWER: False, because under the law it is the district health officer and not
the chief executive of the local government who has been authorized to file a civil action to
abate a public nuisance. [Basis: Article 700, in relation to Article 699, Civil Code; Cruz v.
Pandacan Hiker’s Club, Inc., 778 SCRA 385 (2016), discussed in p. 601, Vol. 1, Rabuya’s Civil
Law Reviewer].
(d) Possession of a movable property is lost when the location of the said movable is
unknown to the owner. (2%)
SUGGESTED ANSWER: False, because 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. [Basis: Article 556, Civil Code; discussed in pp. 485-486, Vol. 1,
Rabuya’s Civil Law Reviewer]
(e) Continuous non-apparent easements can be acquired either through title or by

prescription. (2%)
SUGGESTED ANSWER: False, because only continuous and apparent easements can be
acquired either by virtue of a title or by prescription. [Basis: Article 620, Civil Code; discussed
in p. 533, Vol. 1, Rabuya’s Civil Law Reviewer]
XIV.
Plutarco owned land that borders on a river. After several years the action of the water
of the river caused the deposit of soil, and increased the area of Plutarco’s property by
200 square meters.
a. If Plutarco wants to own the increase in area, what will be his legal basis for doing
so? Explain your answer. (2%)
SUGGESTED ANSWER:
Plutarco acquires ownership over the increased area by virtue of accession. According to the
Civil Code, the accretion gradually receive from the effects of the current of the waters shall
belong to the owner of the lands adjoining the banks of rivers.
In order for the above rule to apply, however, the following requisites must be present: (1)
that the deposit of soil be gradual and imperceptible; (2) that it be made through the effects
of the current of the waters; and (3) that the land where accretion takes place is adjacent to
the banks of the rivers. All foregoing requirements are present in this case. Hence, Plutarco
aquires ownership over the increased area by operation of law. [Basis: Article 457, Civil
Code; Republic v. CA, 132 SCRA 514 (1984); discussed in pp. 402-405, Vol. 1, Rabuya’s Civil
Law Reviewer]
b. On the other hand, if the river dries up, may Plutarco validly claim a right of
ownership of the dried-up river bed? Explain your answer. (2%)
SUGGESTED ANSWER:
No, because the dried-up river bed shall continue to belong to the State as its property of
public dominion. As such, it is not susceptible to private appropriation and acquisitive
prescription. Therefore, Plutarco may not validly claim a right of ownership of the dried-up
river bed. [Republic v. Santos III, 685 SCRA 51 (2012); Celestial v. Cachopero, 431 SCRA
469 (2003); 657 SCRA 499 (2011); discussed in p. 409, Vol. 1, Rabuya’s Civil Law Reviewer]
XV.
Kevin signed a loan agreement with ABC Bank. To secure payment, Kevin requested
his girlfriend Rosella to execute a document entitled “Continuing Guaranty
Agreement” whereby she expressly agreed to be solidarily liable for the obligation of
Kevin.
Can ABC Bank proceed directly against Rosella upon Kevin’s default even without
proceeding against Kevin first? Explain your answer. (3%)
SUGGESTED ANSWER:
Yes, ABC Bank may proceed directly against Rosella upon Kevin’s default even without
proceeding against Kevin first because Rosella is a surety after she bound herself solidarily
with the principal debtor.
Notwithstanding the use of the word “guaranty” circumstances may be shown which convert
the contract into one of suretyship. Under the Civil Code, when the guarantor binds himself
solidarily with the principal debtor, the contract becomes one of suretyship and not of
guaranty proper. In a contract of suretyship, the liability of the surety is direct, primary and
absolute. He is directly and equally bound with the principal debtor. Such being the case, a
creditor can go directly against the surety although the principal debtor is solvent and is able
to pay or no prior demand is made on the principal debtor. [Basis: Article 2047, Civil Code;
Ong v. PCIB, 448 SCRA 705; discussed in pp. 810-812, Vol. 2, Rabuya’s Civil Law Reviewer]
In this case, since Rosella is a surety, ABC Bank can go directly against her even without
proceeding against the principal debtor because the surety insures the debt, regardless of
whether or not the principal debtor is financially capable to fulfil his obligation.
XVI.
Jovencio operated a school bus to ferry his two sons and five of their schoolmates from
their houses to their school, and back. The parents of the five schoolmates paid for the
service. One morning, Porfirio, the driver, took a short cut on the way to school
because he was running late, and drove across an unmanned railway crossing. At the
time, Porfirio was wearing earphones because he loved to hear loud music while
driving. As he crossed the railway tracks, a speeding PNR train loudly blared its horn
to warn Porfirio, but the latter did not hear the horn because of the loud music. The
train inevitably rammed into the school bus. The strong impact of the collision
between the school bus and the train resulted in the instant death of one of the
classmates of Jovencio’s younger son.
The parents of the fatality sued Jovencio for damages based on culpa contractual
alleging that Jovencio was a common carrier; Porfirio for being negligent; and the PNR
for damages based on culpa aquiliana.
Jovencio denied being a common carrier. He insisted that he had exercised the
diligence of a good father of a family in supervising Porfirio, claiming that the latter
had had no history of negligence or recklessness before the fatal accident.
(a) Did his operation of the school bus service for a limited clientele render Jovencio
a common carrier? Explain your answer. (3%)
SUGGESTED ANSWER:
Yes, because a common carrier is one who is engaged in the business of carrying or
transporting passengers or goods or both, or one who holds himself or itself out to the public
as being engaged in said business.
In Perena v. Zarate [679 SCRA 208 (2012)], the Court definitively ruled that the operators of
a school bus service are common carriers even if they are catering to a limited clientele
because of the following reasons: (1) they are engaged in transporting passengers generally
as a business, not just as a casual occupation; (2) they are undertaking to carry passengers
over established roads by the method by which the business was conducted; and (3) they
are transporting students for a fee.
The Court additionally explained that despite catering to a limited clientè le, they operate as
common carriers because they held themselves out as a ready transportation
indiscriminately to the students of a particular school living within or near where they
operated the service and for a fee. [Discussed and posted on my FB wall as early as October
23, 2017]
(b) In accordance with your answer to the preceding question, state the degree of
diligence to be observed by Jovencio, and the consequences thereof. Explain your
answer. (3%)
SUGGESTED ANSWER:
Being a common carrier, Jovencio is required to observe extraordinary diligence, and is

presumed to be at fault or to have acted negligently in case of the loss of the effects of
passengers, or the death or injuries to passengers.
In this case, Jovencio is liable for the death of the student because, acting as a common
carrier, he is already presumed to be negligent at the time of the accident because death had
occurred to the passenger. Here, Jovencio failed to fend off liability because he failed to prove
that he observed extraordinary diligence in ensuring the safety of the passengers. [Basis:
Perena v. Zarate, 679 SCRA 208 (2012); discussed and posted on my FB wall as early as
October 23, 2017]
(c) Assuming that the fatality was a minor of only 15 years of age who had no earning
capacity at the time of his death because he was still a student in high school, and the
trial court is minded to award indemnity, what may possibly be the legal and factual
justifications for the award of loss of earning capacity? Explain your answer. (4%)
SUGGESTED ANSWER:
The basis for the computation of the deceased’s earning capacity should be the minimum
wage in effect at the time of his death, pursuant to the ruling of the Court in Perena v. Zarate
[679 SCRA 208 (2012)]. In the same case, the Court also ruled that the computation of the
victim’s life expectancy rate should not be reckoned from his age of 15 years at the time of
his death, but on 21 years, his age when he would have graduated from college.
In the same case, the Court justified the indemnification of the victim’s loss of earning
capacity despite him having been unemployed because compensation of this nature is
awarded not for loss of time or earnings but for loss of the deceased’s power or ability to
earn money.
Source: https://www.scribd.com/document/365121971/Suggested-Answers-to-the-
2017-Bar-Examinations-Labor-and-Social-Legislation
SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS LABOR AND SOCIAL LEGISLATION: PART
ONE
I
A.
What are the accepted tests to determine the existence of an employer-employee relationship? (5%)
SUGGESTED ANSWER:
The four elements of an employment relationship are: (a) the selection and engagement of the
employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to
control the employee’s conduct. (Lakas sa Industriya ng Kapatirang Haligi ng Alyansa-Pinagbuklod ng
Manggagawang Promo ng Burlingame v. Burlingame Corporation, G.R. No. 162833, June 15, 2007, 524
SCRA 690, 695, citing Sy v. Court of Appeals, 398 SCRA 301, 307-308 (2003); Pacific Consultants
International Asia, Inc. v. Schonfeld, G.R. No. 166920, February 19, 2007, 516 SCRA 209, 228)
NOTE: The foregoing answer in can be found in page 332 of the book entitled Principles and Cases
Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on
employer-employee relation has been time and again the subject matter of bar questions, more
specifically during the 2016, 2014, 2012, 2011, 2010, 2008, 2002, 1996 and 1991 Bar Examinations.
B.
Applying the tests to determine the existence of an employer-employee relationship, is a jeepney
driver operating under the boundary system an employee of his jeepney operator or a mere lessee of
the jeepney? Explain your answer. (3%)
SUGGESTED ANSWER:
In a number of cases decided by the Supreme Court, (National Labor Union vs. Dinglasan, 98 Phil. 649,
652 (1996); Magboo vs. Bernardo, 7 SCRA 952, 954 (1963); Lantaco, Sr. vs. Llamas, 108 SCRA 502,
514 [1981]), it was ruled that the relationship between jeepney owners/operators on one hand and
jeepney drivers on the other under the boundary system is that of employer-employee and not of
lessor-lessee. It was explained that in the lease of chattels, the lessor loses complete control over the
chattel leased although the lessee cannot be reckless in the use thereof, otherwise he would be
responsible for the damages to the lessor. In the case of jeepney owners/operators and jeepney
drivers, the former exercise supervision and control over the latter. The management of the business
is in the owner’s hands. The owner as holder of the certificate of public convenience must see to it that
the driver follows the route prescribed by the franchising authority and the rules promulgated as
regards its operation. Now, the fact that the drivers do not receive fixed wages but get only that in
excess of the so-called “boundary” they pay to the owner/operator is not sufficient to withdraw the
relationship between them from that of employer and employee.
NOTE: The foregoing answer in can be found in pages 341-342 of the book entitled Principles and
Cases Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic
on employer-employee relation has been time and again the subject matter of bar questions, more
specifically during the 2016, 2014, 2012, 2011, 2010, 2008, 2002, 1996 and 1991 Bar Examinations.
II.
Procopio was dismissed from employment for stealing his co-employee Raul’s watch. Procopio filed a
complaint for illegal dismissal. The Labor Arbiter ruled in Procopio’s favor on the ground that Raul’s
testimony was doubtful, and, therefore, the doubt should be resolved in favor of Procopio. On appeal,
the NLRC reversed the ruling because Article 4 of the Labor Code – which states that all doubts in the
interpretation and implementation of the provisions of the Labor Code, including the implementing
rules and regulations, shall be resolved in favor of labor – applied only when the doubt involved the
“implementation and interpretation” of the Labor Code; hence, the doubt, which involved the
application of the rules on evidence, not the Labor Code, could not necessarily be resolved in favor of
Procopio. Was the reversal correct? Explain your answer. (3%)
SUGGESTED ANSWER:
In Peñaflor v. Outdoor Clothing Manufacturing, G.R. No. 177114, January 21, 2010, the Supreme Court
explained the application of Article 4 of the Labor Code regarding doubts on respondent’s evidence on
the voluntariness of petitioner’s resignation. Thus, the High Court said:
Another basic principle is that expressed in Article 4 of the Labor Code – that all doubts in the
interpretation and implementation of the Labor Code should be interpreted in favor of the
workingman. This principle has been extended by jurisprudence to cover doubts in the evidence
presented by the employer and the employee. (Fujitsu Computer Products Corporation of the
Philippines v. Court of Appeals, 494 Phil. 697 [2005]) As shown above, Peñaflor has, at very least,
shown serious doubts about the merits of the company’s case, particularly in the appreciation of the
clinching evidence on which the NLRC and CA decisions were based. In such contest of evidence, the
cited Article 4 compels us to rule in Peñaflor’s favor. Thus, we find that Peñaflor was constructively
dismissed given the hostile and discriminatory working environment he found himself in, particularly
evidenced by the escalating acts of unfairness against him that culminated in the appointment of
another HRD manager without any prior notice to him. Where no less than the company’s chief
corporate officer was against him, Peñaflor had no alternative but to resign from his employment.
(Unicorm Safety Glass, Inc. v. Basarte, 486 Phil. 493 [2004])
Article 4 regarding the application of Article 4 on doubts in the evidence was asked last 2009 Bar
Examination.
III.
A.
Andrew Manning Agency (AMA) recruited Feliciano for employment by Invictus Shipping, its foreign
principal. Meantime, AMA and Invictus Shipping terminated their agency agreement. Upon his
repatriation following his premature termination, Feliciano claimed from AMA and Invictus Shipping
the payment of his salaries and benefits for the unserved portion of the contract. AMA denied liability
on the ground that it no longer had any agency agreement with Invictus Shipping. Is AMA correct?
SUGGESTED ANSWER:
AMA is not correct. Section 10 of Republic Act 10022 provides that the liability of the
principal/employer and the recruitment/placement agency for any and all claims shall be joint and
several. This provision shall be incorporated in the contract for overseas employment and shall be a
condition precedent for its approval. Such liabilities shall continue during the entire period or
duration of the employment contract and shall not be affected by any substitution, amendment or
modification made locally or in a foreign country of the said contract.
Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano.
B.
As a rule, direct hiring of migrant workers is not allowed. What are the exceptions? Explain your
answer. (2.5%)
SUGGESTED ANSWER:
Direct Hires — workers directly hired by employers for overseas employment as authorized by the
Secretary of Labor and Employment and processed by the POEA, including:
1. Those hired by international organizations
2. Those hired members of the diplomatic corps.
3. Name hires or workers who are able to secure overseas employment opportunity with an employer
without the assistance or participation of any agency. [Labor Code, POEA Rules] (Section 1(i), Rule II,
Omnibus Rules and Regulations Implementing The Migrant Workers and Overseas Filipinos Act of
1995 as amended by Republic Act No. 10022)
The direct hires are exceptions to the ban on direct-hiring under Article 18 of the Labor Code.
direct hiring was asked last 2010 Bar Examination.
C.
Phil, a resident alien, sought employment in the Philippines. The employer, noticing that Phil was a
foreigner, demanded that eh first secures an employment permit from the DOLE. Is the employer
correct? Explain your answer. (2.5%)
SUGGESTED ANSWER:
The employer is not correct. According to Section 2, Department Order No. 97-09 Series of 2009,
issued on August 26, 2009 [Revised Rules for the Issuance of Employment Permits to Foreign
Nationals]one of the foreign nationals that are exempt from securing an employment permit is a
permanent permanent resident foreign nationals, probationary or temporary visa holders. Moreover,
the Labor Code speaks of non-resident aliens that are required to obtain an alien employment permit.
NOTE: The foregoing answer can be found in pages 270 and 271 of the book entitled Principles and
on alien employment permit has been time and again the subject matter of bar questions, more
specifically during the 2007 and 1995 Bar Examinations.
IV
The Regional Tripartite and Productivity Board (RTWPB) for Region 3 issued a wage order on
November 2, 2017 fixing the minimum wages for all industries throughout Region 3.
(a) Is the wage order subject to the approval of the National Wages and Productivity Commission
before it takes effect? (2%)
SUGGESTED ANSWER:
No. the National Wages and Productivity Commission function is to review the Wage Order issued by
the Regional Tripartite and Productivity Board (RTWPB) (See Section 4, Rule IV, NWPC GUIDELINES
NO. 01 Series of 2007, dated June 19, 2007)
NOTE: The foregoing answer can be found in page 558 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.
(b) The law mandates that no petition for wage increase shall be entertained within a period of 12
months from the effectivity of the wage order. Under what circumstances may the Kilusang Walang
Takot, a federation of labor organizations that publicly and openly assails the wage order as blatantly
unjust, initiate the review of the wage increases under the wage order without waiting for the end of
the 12-month period? Explain your answer. (3%)
SUGGESTED ANSWER:
If Kilusang Walang Takot feels aggrieved by the Wage Order issued by the Board it may appeal such
Order to the National Wages and Productivity Commission by filing a verified appeal with the Board
not later than ten (10) days from the date of publication of the Order on the grounds of non-
conformity with prescribed guidelines and/or procedures, questions of law and grave abuse of
discretion. (See Section 1, Rule IV, in relation to Section 2 Rule V, NWPC GUIDELINES NO. 01 Series of
2007, dated June 19, 2007)
NOTE: The foregoing answer can be found in pages 559-560 of the book entitled Principles and Cases
Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.
V
A.
Percival was a mechanic of Pacific Airlines. He enjoyed a meal break of one hour. However, during
meal breaks, he was required to be on stand-by for emergency work. During emergencies, he was
made to forego his meals or to hurry up eating. He demanded payment of overtime for work done
during his meal periods. Is Percival correct? Explain your answer. (3%)
SUGGESTED ANSWER:
Percival is correct. While as a rule the eight hour period does not include the meal break however, in
the case of Percival he was required to forego his meals or to hurry up eating. The meal period should
therefore be considered compensable hours of work and a work beyond eight hours. Percival is
therefore entitled to overtime time.
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.
B.
Distinguish a learner from an apprentice. (4%)
SUGGESTED ANSWER:
As to the agreement
In Apprenticeship, the agreement entered by the parties is known as Apprenticeship Agreement.
(Articles 58 [d], Labor Code); In learnership, the agreement entered by the parties is known as
Learnership Agreement (Article 75, Labor Code);
As to the period of agreement
In Apprenticeship, the agreement shall not be less than four (4) months and not more than six (6)
months; (Articles 58 [c] in relation to Article 61 and 3.10, TESDA Circular No. 16, Series of 2004); In
learnership, the agreement period shall not be more than three (3) months; (Article 75 (c), Labor
Code, 3.10, TESDA Circular No. 16, Series of 2004);
As to obligations to hire
In apprenticeship, the enterprise is not obliged to hire the apprentice after the apprenticeship period;
(Articles 61, Labor Code, 3.10, TESDA Circular No. 16, Series of 2004); In learnership, the enterprise is
obliged to hire the learner after the learnership period (Article 75 (d), Labor Code, 3.10, TESDA
Circular No. 16, Series of 2004);
As to pre-termination of the agreement
In apprenticeship, upon pre-termination of the agreement there is no regular employment by
operation of law; (Articles 57-72, Labor Code); In learnership, a learner allowed or suffered to work
during the first two (2) months shall be deemed regular employees if training is terminated by the
employer before the end of the stipulated period through no fault of the learners (Article 75 (d), Labor
Code);
As to the person hired
In apprenticeship, the persons hired as trainees is known as apprentice; (Articles 58 [a], Labor Code,
2, TESDA Circular No. 16, Series of 2004); In learnership, the persons hired as trainees is known as
learner (Articles 73, Labor Code, 2, TESDA Circular No. 16, Series of 2004);
As to the supplement on theoretical instructions
In apprenticeship, the training on the job is with compulsory related theoretical instructions; (Article
58 [a], Labor Code, Section 4 [j], R.A. 7796, and 2, TESDA Circular No. 16, Series of 2004); In
learnership, the practical training on the job may or may not be supplemented by related theoretical
instructions; (2, TESDA Circular No. 16, Series of 2004);
As to the reasons for hiring
In apprenticeship, the law did not provide any reasons where an apprentice may be hired (Articles
59-72, Labor Code); In learnership, the law provides the following reasons for hiring (1) when no
experienced workers are available; (2) the employment of learners is necessary to prevent
curtailment of employment opportunities; and (3) the employment does not create unfair competition
in terms of labor costs or impair or lower working standards (Article 74, Labor Code);
As to qualifications
In apprenticeship, the qualifications are (a) At least fifteen (15) years of age; (b) Possess vocational
aptitude and capacity for appropriate tests; and (c) Possess the ability to comprehend and follow oral
and written instructions and no justifications or reasons given by law for hiring; (Articles 59, Labor
Code); In learnership, the law did not provide such qualifications. However, reasons or justifications
for hiring are provided by law (Articles 74, Labor Code);
As to what occupations hired
In apprenticeship, the occupations involves “highly technical industries” which means trade, business,
enterprise, industry, or other activity, which is engaged in the application of advanced technology and
apprenticeable occupations must be approved by TESDA; (Articles 60, Labor Code and 3.3, TESDA
Circular No. 16, Series of 2004). In learnership, the occupations involves are semi-skilled and other
industrial occupations which are non-apprenticeable and learnable occupations must be approved by
TESDA (Articles 73, Labor Code and 3.3, TESDA Circular No. 16, Series of 2004).
Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on the
distinctions between apprentice and learner has been the subject matter of bar questions during the
2016 and 2012 Bar Examinations.
C.
Are there differences between a househelper and a homeworker? Explain your answer?
Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an
employment relationship such as, but not limited to, the following: general househelp, nursemaid or
“yaya”, cook, gardener, or laundry person while (b) “Industrial Homeworker” means a worker who is
engaged in industrial homework.
Cases Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.
VI.
A.
One Pacific Airline’s policies was to hire only single applicants as flight attendants, and considered as
automatically resigned the flight attendants at the moment they got married. Is the policy valid?
Explain your answer. (2.5%)
SUGGESTED ANSWER:
The policy is not valid. The policy is a violation of the Labor Code’s prohibition on stipulation against
marriage under Article 134. The requirement that a company policy must be reasonable under the
circumstances to qualify as a valid exercise of management prerogative was also at issue in the 1997
case of Philippine Telegraph and Telephone Company v. NLRC, G.R. No. 118978, May 23, 1997. In said
case, the employee was dismissed in violation of petitioner’s policy of disqualifying from work any
woman worker who contracts marriage. The Supreme held that the company policy violates the right
against discrimination afforded all women workers under Article 136 (now 134) of the Labor Code.
on stipulation against marriage has been time and again the subject matter of bar questions, more
specifically during the 2012, 2010, 1997 and 1995 Bar Examinations.
B.
Tarcisio was employed as operations manager and received a monthly salary of P25,000.00 through
his payroll account with DB Bank. He obtained a loan from Roberto to purchase a car. Tarcisio failed
to pay Roberto when the loan fell due. Roberto sued to collect, and moved to garnish Tarcisio’s payroll
account. The latter vigorously objected and argued that slaries were exempt from garnishment. Is
Tarcisio correct? Explain your answer. (3%)
SUGGESTED ANSWER:
Tarciso is not correct. In Gaa v. Court of Appeals, G.R. No. L-44169 December 3, 1985, the Supreme
Court ruled that Article 1708 used the word "wages" and not "salary" in relation to "laborer" when it
declared what are to be exempted from attachment and execution. The monthly salary of Tarcisio is
therefore subject to garnishment.
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on the
distinction between salary and wage has been the subject matter of bar questions during the 1994 Bar
Examination.
VII
Dr. Crisostomo entered into a retainer agreement with AB Hotel and Resort whereby he would
provide medical services to the guests and employees of AB Hoteland Resort, which, in turn, would
provide the clinic premises and medical supplies. He received a monthly retainer fee of P60,000.00,
plus a 70% share in the service charges from AB Hoteland Resort’s guests availing themselves of the
clinic’s services. The clinic employed nurses and allied staff, whose salaries, SSS contributions and
other benefits he undertook to pay. AB Hotel and Resort issued directives giving instructions to him
on the replenishment of emergency kits and forbidding the clinic staff from receiving cash payments
from guests. In time, the nurses and the clinic staff claimed entitlement to rights as regular employees
of AB Hotelnad Resort, but the latter refused on the ground that Dr. Crisostomo, who was their
employer, was an independent contractor. Rule, with reasons. (4%)
SUGGESTED ANSWER:
The test of independent contractorship was applied in the case of Polyfoam-RGC International
Corporation v. Concepcion, G.R. No. 172349, June 13, 2012. Thus, the High Court ruled:
The test of independent contractorship is “whether one claiming to be an independent contractor has
contracted to do the work according to his own methods and without being subject to the control of
the employer, except only as to the results of the work.” (San Miguel Corporation v. Aballa, G.R. No.
149011, June 28, 2005, 461 SCRA 392, 421) In San Miguel Corporation v. Semillano, G.R. No. 164257,
July 5, 2010, 623 SCRA 114 the Court laid down the criteria in determining the existence of an
independent and permissible contractor relationship, to wit:
“x x x [W]hether or not the contractor is carrying on an independent business; the nature and extent
of the work; the skill required; the term and duration of the relationship; the right to assign the
performance of a specified piece of work; the control and supervision of the work to another; the
employer’s power with respect to the hiring, firing and payment of the contractor’s workers; the
control of the premises; the duty to supply the premises, tools, appliances, materials, and labor; and
the mode, manner and terms of payment.” (San Miguel Corporation v. Semillano, supra, at p. 124;
Sasan, Sr. v. National Labor Relations Commission 4th Division, supra at p. 691)
Applying the above-test, the nurses are employees of Dr. Crisostomo. The facts had clearly stated that
Dr. Crisostomo was the one paying the salaries of the nurses and even reported them for SSS
coverage. The element of payment of wages is present.
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on the
distinction between salary and wage has been the subject matter of bar questions during the 1994 Bar
Examination. The problem can also be resolved by characterizing the relationship of Dr. Crisostomo
and AB Hoteland Resort as to whether it is a legitimate contracting or labor-only contracting. The
topic on contracting/subcontracting has been time and again the subject matter of bar questions,
more specifically during the 2016, 2014, 2013, 2012, 2011, 2009, 2004, 2002, 2001, 2000, 1997 and
1994 Bar Examinations.
VIII
Marciano was hired as Chief Engineer on board the vessel M/V Australia. His contract of employment
was for nine months. After nine months, he was re-hired. He was hired a third time after another nine
months. He now claims entitlement to the benefits of a regular employee based on his performed
tasks usually necessary and desirable to the employer’s business for a continuous period of more than
one year. Is Marciano’s claim tenable? Explain.
SUGGESTED ANSWER:
Marciano’s claim is not tenable. The Supreme Court squarely passed upon the issue in Millares v.
NLRC, G.R. No. 110524, July 29, 2002, where one of the issues raised was whether seafarers are
regular or contractual employees whose employment are terminated every time their contracts of
employment expire. The Supreme Court explained:
[I]t is clear that seafarers are considered contractual employees. They can not be considered as
regular employees under Article 280 of the Labor Code. Their employment is governed by the
contracts they sign everytime they are rehired and their employment is terminated when the contract
expires. Their employment is contractually fixed for a certain period of time. They fall under the
exception of Article 280 whose employment has been fixed for a specific project or undertaking the
completion or termination of which has been determined at the time of engagement of the employee
or where the work or services to be performed is seasonal in nature and the employment is for the
duration of the season. We need not depart from the rulings of the Court in the two aforementioned
cases which indeed constitute stare decisis with respect to the employment status of seafarers.
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the seafarers has been time and
again the subject matter of bar questions, more specifically during the 2014 and 2002 Bar
Examinations.
IX
Section 255 (245) of the Labor Code recognizes three categories of employees , namely: managerial,
supervisory, and rank-and-file.
(a) Give the characteristics of each category of employees, and state whether the employees in each
category may organized and form unions. Explain your answer. (5%)
SUGGESTED ANSWER:
Under Article 255 [245] of the Labor Code the following are provided:
Managerial employees are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in the collective bargaining unit of the
rank-and-file employees but may join, assist or form separate collective bargaining units and/or
legitimate labor organizations of their own.
The rank-and-file union and the supervisors’ union operating within the same establishment may join
the same federation or national union.
(b) May confidential employees who assist managerial employees, and who act in a confidential
capacity or have access to confidential matters being handled by persons exercising managerial
functions in the field of labor relations form, or assist, or join labor unions? Explain your answer?
(2.5%)
SUGGESTED ANSWER:
No. In Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, Inc., G.R. No. 162025,
August 3, 2010, the High Court explained, who are those confidential employees covered by the
prohibition to join, form and assist any labor organization under Article 245 [now 255] of the Labor
Code, as follows:
Confidential employees are defined as those who (1) assist or act in a confidential capacity, (2) to
persons who formulate, determine, and effectuate management policies in the field of labor relations.
The two (2) criteria are cumulative, and both must be met if an employee is to be considered a
confidential employee that is, the confidential relationship must exist between the employee and his
supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations.
The exclusion from bargaining units of employees who, in the normal course of their duties, become
aware of management policies relating to labor relations is a principal objective sought to be
accomplished by the confidential employee rule. (San Miguel Corp. Supervisors and Exempt
Employees Union v. Laguesma, G.R. No. 110399, August 15, 1997, 277 SCRA 370, 374-375, citing
Westinghouse Electric Corp. v. NLRB (CA6) 398 F2d 669 (1968), Ladish Co., 178 NLRB 90 (1969) and
B.F. Goodrich Co., 115 NLRB 722 [1956])
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the confidential employees
covered by the prohibition has been time and again the subject matter of bar questions, more
specifically during the 2014, 2011, 2009, 2002 and 1999 Bar Examinations.
X.
A.
The labor sector has been loudly agitating for the end of labor-only contracting, as distinguished from
job contracting. Explain these two kinds of labor contracting, give the effect of a finding that one is a
labor-only contractor. Explain your answers. (4%)
SUGGESTED ANSWER:
The Supreme Court in Polyfoam-RGC International Corporation vs. Concepcion, G.R. No. 172349, June
13, 2012 citing Sasan, Sr. v. National Labor Relations Commission 4th Division, G.R. No. 176240,
October 17, 2008, 569 SCRA 670 distinguished permissible job contracting or subcontracting from
“labor-only” contracting, to wit:
“Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees
to put out or farm out to a contractor or subcontractor the performance or completion of a specific
job, work or service within a definite or predetermined period, regardless of whether such job, work
or service is to be performed or completed within or outside the premises of the principal. A person is
considered engaged in legitimate job contracting or subcontracting if the following conditions concur:
(a) The contractor or subcontractor carries on a distinct and independent business and undertakes to
perform the job, work or service on its own account and under its own responsibility according to its
own manner and method, and free from the control and direction of the principal in all matters
connected with the performance of the work except as to the results thereof;
(b) The contractor or subcontractor has substantial capital or investment; and
(c) The agreement between the principal and contractor or subcontractor assures the contractual
employees entitlement to all labor and occupational safety and health standards, free exercise of the
right to self-organization, security of tenure, and social and welfare benefits.
In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or
subcontractor merely recruits, supplies or places workers to perform a job, work or service for a
principal. In labor-only contracting, the following elements are present:
(a) The contractor or subcontractor does not have substantial capital or investment to actually
perform the job, work or service under its own account and responsibility; and
(b) The employees recruited, supplied or placed by such contractor or subcontractor are performing
activities which are directly related to the main business of the principal.” (Sasan, Sr. v. National Labor
Relations Commission 4th Division, supra, at pp. 689-690. [Citations omitted])
In PCI Automation Center, Inc. v. NLRC, G.R. No. 115920, January 29, 1996, the effect of a finding that
one is a labor-only contractor was ruled as follows:
In legitimate job contracting, no employer-employee relationship exists between the employees of the
job contractor and the principal employer. Even then, the principal employer becomes jointly and
severally liable with the job contractor for the payment of the employees’ wages whenever the
contractor fails to pay the same. In such case, the law creates an employer-employee relationship
between the principal employer and the job contractor’s employees for a limited purpose, that is, to
ensure that the employees are paid their wages. Other than the payment of wages, the principal
employer is not responsible for any claim made by the employees. (Philippine Bank of
Communications vs. NLRC, 146 SCRA 347 [1986])
On the other hand, in labor-only contracting, an employer-employee relationship is created by law
between the principal employer and the employees of the labor-only contractor. In this case, the
labor-only contractor is considered merely an agent of the principal employer. The principal
employer is responsible to the employees of the labor-only contractor as if such employees had been
directly employed by the principal employer. The principal employer therefore becomes solidarily
liable with the labor-only contractor for all the rightful claims of the employees. (Philippine Bank of
Communications vs. NLRC, 146 SCRA 347 [1986])
Thus, in legitimate job contracting, the principal employer is considered only an indirect employer,
(Article 107, Labor Code, as amended) while in labor-only contracting, the principal employer is
considered the direct employer of the employees. (last paragraph of Article 106, Labor Code, as
amended)
In short, the legitimate job contractor provides services while the labor-only contractor provides only
manpower. The legitimate job contractor undertakes to perform a specific job for the principal
employer while the labor-only contractor merely provides the personnel to work for the principal
employer.
NOTE: The foregoing answer can be found in pages 507508 of the book entitled Principles and Cases
Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on job-contracting and labor-
only contracting has been time and again the subject matter of bar questions, more specifically during
the 2014, 2013, 2012, 2011, 2009, 2004, 2002, 2001, 2000, 1997 and 1994 Bar Examinations.
B.
What are the grounds for validly terminating the services of an employee based on a just cause? (5%)
SUGGESTED ANSWER:
An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer
or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing. (Art. 297 [282], Labor Code)
Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the just cause for
termination has been time and again the subject matter of bar questions, more specifically during the
2015, 2014, 2013, 2012, 2011, 2009, 2008, 2006, 2003, 2001, 1995, 1996, 1995, 1999 Bar
Examinations.
C.
Give the procedure to be observed for validly terminating the services of an employee based on a just
cause? (4%)
SUGGESTED ANSWER:
As defined in Article 297 of the Labor Code, as amended, the requirement of two written notices
served on the employee shall observe the following:
(a) The first written notice should contain:
1. The specific causes or grounds for termination as provided for under Article 297 of the Labor Code,
as amended, and company policies, if any;
2. Detailed narration of the facts and circumstances that will serve as basis for the charge against the
employee. A general description of the charge will not suffice; and
3. A directive that the employee is given opportunity to submit a written explanation within a
reasonable period.
“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of
the notice to give the employee an opportunity to study the accusation, consult or be represented by a
lawyer or union officer, gather data and evidence, and decide on the defenses against the complaint.
(Unilever v. Rivera, G.R. No. 201701, June 3, 2013; Section 12, DOLE Department Order 18-A)
(b) After serving the first notice, the employer should afford the employee ample opportunity to be
heard and to defend himself/herself with the assistance of his/her representative if he/she so desires,
as provided in Article 299 (b) of the Labor Code, as amended.
“Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the
employee to answer the charges against him/her and submit evidence in support of his/her defense,
whether in a hearing, conference or some other fair, just and reasonable way. A formal hearing or
conference becomes mandatory only when requested by the employee in writing or substantial
evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances
justify it. (Perez v. PT&T, G.R. No. 152048, April 7, 2009, Section 12, DOLE Department Order 18-A)
(c) After determining that termination of employment is justified, the employer shall serve the
employee a written notice of termination indicating that: (1) all circumstances involving the charge
against the employee have been considered; and (2) the grounds have been established to justify the
severance of their employment.
The foregoing notices shall be served personally to the employee or to the employee’s last known
address. (Section 5, 5.1, Rule I-A, D.O. No. 147-15, Series of 2015)
Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the procedural due
process has been time and again the subject matter of bar questions, more specifically during the
2012, 2009, 2006, 1999 and 1998 Bar Examinations.
XI
A.
The modes of determining the exclusive bargaining agent of the employees in a business are: (a)
voluntary recognition; (b) certification election; and (c) consent election. Explain how they differ from
one another. (4%)
SUGGESTED ANSWER:
Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the
employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the
Regional Office in accordance with Rule VII, Section 2 of these Rules. Certification Election” or Consent
Election refers to the process of determining through secret ballot the sole and exclusive
representative of the employees in an appropriate bargaining unit for purposes of collective
bargaining or negotiation. A certification election is ordered by the Department, while a consent
election is voluntarily agreed upon by the parties, with or without the intervention by the
Department. (Rule I, Section 1, Book V, Rules to Implement the Labor Code)
Cases Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the representation
issue has been time and again the subject matter of bar questions, more specifically during the 2006,
2004, and 2000 Bar Examinations.
B.
Marcel was the Vice President for Finance and Administration and a member of the Board of Directors
of Mercedes Corporation. He brought a complaint for illegal suspension and illegal dismissal against
Mercedes Corporation, which moved to dismiss the complaint on the ground that the complaint
pertained to the jurisdiction of the RTC due to the controversy being intracorporate based on his
positions in the corporation. Marcel countered that he had only been removed as Vice President for
Finance and Administration, not as a member of the Board of Directors. He also argued that his
position was not listed as among the corporate offices in Mercedes Corporation’s by-law. Is the
argument of Marcel correct? Explain your answer. (2.5%)
SUGGESTED ANSWER:
Marcel’s contention is correct. It is settled in Matling Industrial and Commercial Corporation v. Coros,
G.R. No. 157802, 13 October 2010, cited in Marc II Marketing Inc. v. Joson, G.R. No. 171993, December
12, 2011, where it held, thus:
Conformably with Section 25, a position must be expressly mentioned in the [b]y-[l]aws in order to be
considered as a corporate office. Thus, the creation of an office pursuant to or under a [b]y-[l]aw
enabling provision is not enough to make a position a corporate office. [In] Guerrea v. Lezama
[citation omitted] the first ruling on the matter, held that the only officers of a corporation were those
given that character either by the Corporation Code or by the [b]y-[l]aws; the rest of the corporate
officers could be considered only as employees or subordinate officials.
xxx
It is relevant to state in this connection that the SEC, the primary agency administering the
Corporation Code, adopted a similar interpretation of Section 25 of the Corporation Code in its
Opinion dated November 25, 1993 [citation omitted], to wit:
Thus, pursuant to the above provision (Section 25 of the Corporation Code), whoever are the
corporate officers enumerated in the by-laws are the exclusive Officers of the corporation and the
Board has no power to create other Offices without amending first the corporate [b]y-laws. However,
the Board may create appointive positions other than the positions of corporate Officers, but the
persons occupying such positions are not considered as corporate officers within the meaning of
Section 25 of the Corporation Code and are not empowered to exercise the functions of the corporate
Officers, except those functions lawfully delegated to them. Their functions and duties are to be
determined by the Board of Directors/Trustees. (Matling Industrial and Commercial Corporation v.
Coros, supra at 26-27) [Emphasis supplied.]
With the given circumstances and in conformity with Matling Industrial and Commercial Corporation
v. Coros, Marcel was not a corporate officer of Mercedes Corporation because his position as Vice
President for Finance and Administration was not specifically mentioned in the roster of corporate
officers in its corporate by-laws.
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the on whether an position is a
corporate officer has been time and again the subject matter of bar questions, more specifically during
the 2015, 2014, 2011 and 1996 Bar Examinations.
C.
State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators in labor disputes?
(4%)
SUGGESTED ANSWER:
The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and original
jurisdiction to hear and decide all unresolved grievances arising from:
1. The implementation or interpretation of the collective bargaining agreements; (Article 274 [261],
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor Code)
2. The interpretation or enforcement of company personnel policies which remain unresolved after
exhaustion of the grievance procedure; (Article 274 [261], Labor Code, Section 4, Rule XIX, Book V,
Omnibus Rules Implementing the Labor Code)
3. Wage distortion issues arising from the application of any wage orders in organized
establishments; (par. 4, Article 124, Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
Implementing the Labor Code)
4. The interpretation and implementation of the productivity incentive programs under RA 6971.
5. Upon agreement of the parties, shall also hear and decide all other labor disputes including unfair
labor practices and bargaining deadlocks. (Article 275. [262], Labor Code, Section 4, Rule XIX, Book V,
Omnibus Rules Implementing the Labor Code)
6. Violations of a Collective Bargaining Agreement, except those which are gross in character, shall no
longer be treated as unfair labor practice and shall be resolved as grievances under the Collective
Bargaining Agreement; (Article 274. [261], Labor Code)
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on jurisdiction of the voluntary
arbitrators or panel of voluntary arbitrators has been time and again the subject matter of bar
questions, more specifically during the 2008, 2001, 1997 and 1995 Bar Examinations.
XII
A.
Juanito initiated a case for illegal dismissal against Mandarin Company. The Labor Arbiter decided in
his favor, and ordered his immediate reinstatement with full backwages and without loss of seniority
and other benefits. Mandarin Company did not like to allow him back in its premises to prevent him
from influencing his co-workers to move against the interest of the company; hence, it directed his
payroll reinstatement and paid his full backwages and other benefits even as it appealed to the NLRC.
A few months later, the NLRC reversed the ruling of the Labor Arbiter and declared that Juanito’s
dismissal was valid. The reversal ultimately became final.
May Mandarin Company recover the backwages and other benefits paid to Juanito pursuant to the
decision of the Labor Arbiter in view of the reversal by the NLRC? Rule, with reasons. (2.5%)
SUGGESTED ANSWER:
Mandarin Company cannot recover the backwages and other benefits paid to Juanito pursuant to the
decision of the Labor Arbiter despite the reversal by the NLRC. The refund doctrine has already been
reversed in Garcia v. Philippine Airlines, Inc., G. R. No. 164856, July 20, 2009, where the Supreme
Court then stressed that as opposed to the abovementioned Genuino v. National Labor Relations
Commission, G.R. Nos. 142732-33 & 142753-54, December 4, 2007, 539 SCRA 342 the social justice
principles of labor law outweigh or render inapplicable the civil law doctrine of unjust enrichment.
Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on refund doctrine was
asked for the first time for this year’s bar examinations.
B.
Gene is a married regular employee of Matibay Corporation. The employee and Matibay Corporation
had an existing CBA that provided for funeral or bereavement aid of P15,000.00 in case of the death of
a legal dependent of a regular employee. His widowed mother, who had been living with him and his
family for many years, died; hence, he claimed the funeral aid. Matibay Corporation denied the claim
on the basis that she had not been his legal dependents as the term legal dependent was defined by
the Social Security Law.
(a) Who may be the legal dependents of Gene under the Social Security Law? (2.5%)
SUGGESTED ANSWER:
Section 8 (e) of the Social Security Law provides that the dependents shall be the following:
(1) The legal spouse entitled by law to receive support from the member;
(2) The legitimate, legitimated or legally adopted, and illegitimate child who is unmarried, not
gainfully employed, and has not reached twenty-one (21) years of age, or if over twenty-one (21)
years of age, he is congenitally or while still a minor has been permanently incapacitated and
incapable of self-support, physically or mentally; and
(3) The parent who is receiving regular support from the member.
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on
dependents has been time and again the subject matter of bar questions, more specifically during the
2014 and 2002 Bar Examinations.
(b) Is Gene entitled to the funeral aid for the death of his widowed mother? Explain your answer.
(2%)
SUGGESTED ANSWER:
Gene is entitled to the funeral aid for the death of his widowed mother under CBA. This is because the
said CBA clearly provided for funeral or bereavement aid of P15,000.00 in case of the death of a legal
dependent of a regular employee. But in so far as the SSS law is concerned, the only way that Gene can
recover is that if he will qualify as the primary beneficiary of his widowed mother provided he has the
restrictions on the definition of dependent children.
Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano in so far as the
definition of beneficiary in relation to dependents are concerned.
C.
Rosa was granted vacation leave by her employer to spend three weeks in Africa with her family.
Prior to her departure, the General Manager of the company requested her to visit the plant of the
company in Zimbabwe in order to derive best manufacturing practices useful to the company. She
accepted the request because the errand would be important to the company and Zimbabwe was
anyway in her itinerary. It appears that she contracted a serious disease during the trip. Upon her
return, she filed a claim for compensation, insisting that she had contracted the disease while serving
the interest of her employer.
Under the Labor Code, the sickness or death of an employee, to be compensable, must have resulted
from an illness either definitely, accepted as an occupational disease by the Employee’s Compensation
Commission, or caused by employment subject to proof that the risk of contracting the same is
increased by working conditions.
Is the serious disease Rosa contracted during her trip to Africa compensable? Explain your answer.
(2.5%)
SUGGESTED ANSWER:
In Government Service Insurance System vs. Besitan, G.R. No. 178901, November 23, 2011, explained
the concept of increased theory as follows:
Corollarily, for the sickness or resulting disability or death to be compensable, the claimant must
prove either (1) that the employee’s sickness was the result of an occupational disease listed under
Annex “A” of the Amended Rules on Employees’ Compensation, or (2) that the risk of contracting the
disease was increased by his working conditions.
Certainty is not required only probability
Under the increased risk theory, there must be a reasonable proof that the employee’s working
condition increased his risk of contracting the disease, or that there is a connection between his work
and the cause of the disease. (Castor-Garupa v. Employees’ Compensation Commission, G.R. No.
158268, April 12, 2006, 487 SCRA 171, 180) Only a reasonable proof of work-connection, not direct
causal relation, however, is required to establish compensability of a non-occupational disease.
(Government Service Insurance System v. Cordero, G.R. Nos. 171378 & 171388, March 17, 2009, 581
SCRA 633, 640) Probability, and not certainty, is the yardstick in compensation proceedings; thus, any
doubt should be interpreted in favor of the employees for whom social legislations, like PD No. 626,
were enacted. (Government Service Insurance System v. Corrales, G.R. No. 166261, June 27, 2008, 556
SCRA 230, 243-244)
Applying the above ruling, Rosa must present a reasonable proof that her working condition
increased his risk of contracting the disease, or that there is a connection between his work and the
cause of the disease otherwise the same is not compensable.
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on
compensation proceedings has been time and again the subject matter of bar questions, more
specifically during the 2012, 2005 and 1996 Bar Examinations.
.
XIII
A.
Given that the liability for an illegal strike is individual, not collective, state when the participating
union officers and members may be terminated from employment because of the illegal strike.
SUGGESTED ANSWER:
The following are the effects of participation in an illegal strike and commission of illegal acts during
strike:
1. Any union officer who knowingly participates in an illegal strike; and
2. Any worker or union officer who knowingly participates in the commission of illegal acts during a
strike may be declared to have lost his employment status; (Third paragraph, Article 279 (a) [264 (a)],
Labor Code)
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the effects of participation in
illegal strike has been time and again the subject matter of bar questions, more specifically during the
2015, 2014, 2012, 2010, 2008, 2007, 2006, 1997, 1995 and 1994 Bar Examinations.
B.
A sympathetic strike is stoppage of work to make common cause with other strikers in another
establishment or business. Is the sympathetic strike valid? Explain your answer. (1%)
SUGGESTED ANSWER:
The illegal stoppage of work by way of sympathetic strike has been settled in the case of Biflex Phils.
Labor Union (NAFLU) v. Filflex Industrial and Manufacturing Cororation, G.R. No. 155679, 19
December 2006, where it was ruled that stoppage of work due to welga ng bayan is in the nature of a
general strike, an extended sympathy strike. It affects numerous employers including those who do
not have a dispute with their employees regarding their terms and conditions of
employment.Employees who have no labor dispute with their employer but who, on a day they are
scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage.
Even if petitioners joining the welga ng bayan were considered merely as an exercise of their freedom
of expression, freedom of assembly or freedom to petition the government for redress of grievances,
the exercise of such rights is not absolute. For the protection of other significant state interests such
as the right of enterprises to reasonable returns on investments, and to expansion and growth
enshrined in the 1987 Constitution must also be considered, otherwise, oppression or self-destruction
of capital in order to promote the interests of labor would be sanctioned. And it would give
imprimatur to workers joining demonstrations/rallies even before affording the employer an
opportunity to make the necessary arrangements to counteract the implications of the work stoppage
on the business, and ignore the novel principle of shared responsibility between workers and
employers aimed at fostering industrial peace. There being no showing that petitioners notified
respondents of their intention, or that they were allowed by respondents, to join the welga ng bayan
on October 24, 1990, their work stoppage is beyond legal protection.
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on sympathetic strike has been the
subject matter of bar questions during the 2004 Bar Examinations.
C.
Due to business recession, Ballistic Company retrenched a part of its workforce. Opposing the
retrenchment, some of the affected employees staged a strike. Eventually, the retrenchment was
found to be justified, and the strike was declared illegal; hence, the leaders of the strike, including the
retrenched employees, were declared to have lost their employment status.
Are the striking retrenched employees still entitled to separation pay under Sec. 298 (283) of the
Labor Code despite the illegality of their strike? Explain your answer. (2%)
SUGGESTED ANSWER:
The strikers including the union officers should be paid their separation pay by virtue of
retrenchment notwithstanding the illegal strike was declared illegal. The issue on entitlement to
separation pay due to authorized cause and the ground for termination due to knowingly
participating in illegal strike are distinct and different.
XIV
Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary of Labor assumed
jurisdiction over the 3-day old strike in Armor Steel Plates, Inc., one of the country’s bigger
manufacturers of steel plates, and ordered all the striking employees to return to work. The striking
employees ignored the order to return to work.
(a) What conditions may justify the Secretary of Labor to assume jurisdiction? (2.5%)
SUGGESTED ANSWER:
Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute causes or is likely to cause a strike or
lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and decide it or certify the same to the National Labor
Relations Commission (NLRC) for compulsory arbitration. (Section 1, Operational Guidelines of
Department Order No. 40-G-03, Series of 2010, dated February 24, 2011)
For a valid exercise of the assumption of jurisdiction authority, any of the following conditions must
be present:
a. Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over
the labor dispute; or
b. After a conference called by the Office of the Secretary of Labor and Employment on the propriety
of the issuance of the Assumption or Certification Order, motu proprio or upon a request or petition
by either party to the labor dispute. In the said conference. the parties shall also be encouraged to
amicably settle the dispute. (Section 2, Operational Guidelines of Department Order No. 40-G-03,
Series of 2010, dated February 24, 2011)
Labor Relations, First Edition 2016, by Atty. Voltaire T. Duano. The topic on the assumption of
jurisdiction has been time and again the subject matter of bar questions, more specifically during the
2012, 2004 and 1996 Bar Examinations.
(b) What are the consequences of the assumption of jurisdiction by the Secretary of Labor, and of the
disobedience to the return to work? Explain your answer. (2.5%)
The consequences of assumption of jurisdiction are as follows:
a. If a strike or lockout has not taken place, the parties are enjoined to conduct any untoward action
that may lead to a strike or lockout.
b. if a strike or lockout has already taken place, all striking and locked out workers shall, within
twenty-four (24) hours from receipt of an Assumption or Certiﬁcation Order, immediately return to
work and the employer shall immediately resume operations and readmit all workers under the same
terms and conditions prevailing before the strike.
c. At any point in time, the parties are not prevented from submitting the dispute to Voluntary
Arbitration with the Secretary of Labor and Employment or his/her duly authorized representative as
Voluntary Arbitrator or Panel of Voluntary Arbitrators. (Section 3, Operational Guidelines of
Department Order No. 40-G-03, Series of 2010, dated February 24, 2011)
While the consequence of disobedience to the return to work has been ruled in the case of Manila
Hotel Employees Association v. Manila Hotel Corporation, G.R. No. 154591, March 5, 2007. In holding
that defiance of the assumption order or a return-to work order by a striking employee, whether a
union officer or a member, is an illegal act and, therefore, a valid ground for loss of employment
status. The High Court explained:
The law explicitly prohibits such acts.
ART. 263. STRIKES, PICKETING, AND LOCKOUTS
x x x x (omitted)
ART. 264. PROHIBITED ACTIVITIES
(a) x x x x
(omitted)
More to the point, the Court has consistently ruled in a long line of cases spanning several decades
that once the SOLE assumes jurisdiction over a labor dispute, such jurisdiction should not be
interfered with by the application of the coercive processes of a strike or lockout. Defiance of the
assumption order or a return-to work order by a striking employee, whether a union officer or a
member, is an illegal act and, therefore, a valid ground for loss of employment status. (Grand
Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel, Restaurant and Allied Industries
(GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 SCRA 688, 710; Telefunken Semiconductors
Employees Union-FFW v. Court of Appeals, G.R. Nos. 143013-14, 18 December 2000, 348 SCRA 565,
582; Federation of Free Workers v. Inciong, G.R. No. 49983, 20 April 1982, 208 SCRA 157, 165)
POLITICAL LAW 2017

Source: https://www.scribd.com/document/366322352/2017-Political-Law-Bar-Qa-Final
2017 BAR EXAMINATIONS

POLITICAL LAW Questions and Suggested Answers
Article XVII: Amendments and Revision

I.
A priority thrust of the Administration is the change of the form of government from unitary to
federal. The change can be effected only through constitutional amendment or revision.
(a) What are the methods of amending the Constitution? Explain briefly each method. (3%)
(b) Cite at least three provisions of the Constitution that need to be amended or revised to effect the
change from unitary to federal, and briefly explain why? (3%)
Suggested Answers:
(a) The following are the methods of amending the Constitution:
(i) By Constitutional Convention, where Article XVII, Section 3 of the Constitution

states, "The Congress may, by a vote of two-thirds of all its Members, call a
constitutional convention, or by a majority vote of all its Members, submit to the
electorate the question of calling such a convention." Both houses shall vote
separately, and the members includes all those within the jurisdiction of the
Congress.
(ii) By Constitutional Assembly, composed of all members of the bicameral Philippine

Congress (Senate and the House of Representatives). It is convened by Congress to
propose amendments to the 1987 constitution. Under Article XVII of the
Constitution of the Philippines, amendments pass upon a vote of three fourths of all
members of Congress, but it is not clear if the Congress should vote as a single body
or as separate houses.
(iii) Amendments to the Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district must be represented by at
least three per centum of the registered votes therein. No amendment under this
section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
(b) The following Constitutional provisions that should be amended to effect the change from
unitary to federal are:
(i) Section 1, Article II which states, "The Philippines is a Democratic and Republican State,
sovereignty resides in the people and all government authorities emanates from them";
This provision should be amended and the phrase “Democratic and Republican state”
should be changed into Federal Democratic State.
(ii) Section 1, Article VI which states, "The Legislative Department shall be composed of the
House of Senate and the House of Representatives"; The Bicameral composition of the
Legislative department should transformed into a Unicameral system.
(iii) Section 1, Article VII which states that, "Executive powers shall be vested to the
President"; There shall be a local government as may provided by law"; In this provision,
the executive powers should reside into a Prime Minister selected from the members of
the parliament.
Article XVI, Section 3: State Immunity from Suit

II.
A.
Under the doctrine of immunity from suit, the State cannot be sued without its consent. How may the
consent be given by the State? Explain your answer. (3%)
B.
The doctrine of immunity from suit in favor of the State extends to public officials in the performance
of their official duties. May such officials be sued nonetheless to prevent or to undo their oppressive
or illegal acts, or to compel them to act? Explain your answer. (3%)
C.
Do government-owned or -controlled corporations also enjoy the immunity of the State from suit?
Suggested answers:
(A) The consent to be sued is given by the State either expressly or impliedly.
There is express consent when there is a law enacted by the Congress expressly granting to sue the
State or any of its agencies.
There is implied consent when the State enters into a private contract, unless the contract is merely
incidental to the performance of a governmental function; when the State enters into an operation
that is essentially a business operation, unless the business operation is merely incidental to the
performance of a governmental function; or when the State sues a private party, unless the suit is
entered into only to resist a claim.
(B) Yes. Although the immunity from suit of the State can be extended to public officials in the
performance of their official functions and duties, the rule is not absolute at all.
The suit against the government officer must be in a case in which the ultimate liability will belong to
the officer, not to the government. Public officials cannot hid under the veil of state immunity for the
acts performed in connection with official duties where they have acted ultra vires or where there is
a showing of bad faith or grave and patent negligence. In this case, the public official may be
prevented or ordered to undo the oppressive or illegal act or compelled to perform an act which is
legal. It is not the public official per se but his performance in line with his duty which is being
compelled or prevented thru petition for mandamus or prohibition.
(C) Yes. Government-Owned or-Controlled Corporations enjoy immunity from suit as they are
regarded as instruments of the State.
However, the rule does accept exemptions such as when the law creating the GOCC provides for its
suability or when it enters into a commercial contract, acts on its proprietary capacity, sues or files a
counterclaim , confiscates property in expropriation, acts thru an agent or gives it consent to be sued.
Public International Law: Treaty: Pacta sunt servanda, Rebus sic stantibus
III.
State A and State B, two sovereign states, enter into a 10-year mutual defense treaty. After five years,
State A finds that the more progressive State B did not go to the aid of State A when it was threatened
by its strong neighbor State C. State B reasoned that it had to be prudent and deliberate in reacting to
State C because of their existing trade treaties.
(a) May State A now unilaterally withdraw from its mutual defense treaty with State B? Explain your
answer. (2.5%)
(b) What is the difference between the principles of pacta sunt servanda and rebus sic stantibus in
international law? (2.5%)
(c) Are the principles of pacta sunt servanda and rebus sic stantibus relevant in the treaty relations
between State A and State B? What about in the treaty relations between State B and State C? Explain
your answer. (2.5%)
Suggested Answers:
(a) State A cannot unilaterally withdraw from its treaty obligations under the principle of pacta
sunt servanda upon which signatory States who entered in treaty must comply with its
obligation in good faith.
However, in invoking the principle of rebus sic stantibus, State A can unilaterally withdraw from its
treaty obligation with State B, on the ground that in such withdrawal from the treaty, State A is
protecting its existence from harm.
(b) Pacta sunt servanda as generally accepted principle of international law, requires compliance
of treaty obligations of signatory states in good faith irrespective of constrains in its
enforcement, while rebus sic stantibus demands the unitary withdrawal or severance in the
enforcement of state's treaty obligations, when impossibility to comply intervenes. Under
this principle of international law, if the change in fundamental circumstance affects a
signatory state, and to comply with the treaty provisions would seriously jeopardize its own
existence, a withdrawal is allowed because its fundamental right to exist is stronger than its
duty to comply with the treaty.
(c) Yes. State A and B who are both signatories to the Mutual Defense Treaty must comply with
their treaty agreements as it is a norm in International law applying the principle of pacta
sunt servanda.
State B is also correct in invoking the principle of rebus sic stantibus in his relationship with State A.
The principle of rebus sic stantibus can be invoked by a signatory state in a treaty when there is a
vital change in the fundamental circumstance, and said change and circumstance will affect the
signatory state that for it to continue to comply with his treaty obligation would seriously jeopardize
its own existence. Also the change in the fundamental circumstance has not been foreseen by state B
during the time it entered into a treaty agreement with state A.
As to the relations between State b and State C, both as signatories to their trade treaties must
comply with their treaty obligations under the principle of pacta sunt servanda. However both states
cannot invoke the principle of Rebus sic stantibus since there is no fundamental change or
circumstances present that could affect or jeopardize their existence as a sovereign state.
Article VII, Section 19: Pardoning power of the President

IV.
A.
What is the pardoning power of the President under *Art. VIII, Sec. 19 of the Constitution?
Is the exercise of the power absolute? (4%)(*Should have been Article VII)
B.
Distinguish pardon from amnesty. (4%)
Suggested Answers:
(A) The pardoning power of the President under the 1987 Constitution includes pardon,
amnesty, commutation, reprieves, remit fines and forfeitures after conviction by final
judgment.
(B) Pardon can be granted by the President to offending criminals while amnesty may be given
to political offenders;
The former does not requires concurrence by the Congress while the latter does;
Pardon does not erase the crime committed but only the penalty and the civil liability attached to it.
Amnesty obliterates the effects of the offense hence the grantee is cleanse from the commission of
the offense;
Finally, pardon is given individually while amnesty is collectively granted.

Public International Law: Right of Legation a.k.a. Right of Diplomatic Intercourse
V.
(a) What is the right of legation, and how is it undertaken between states? Explain your answer. (2%)
(b) Under this right, may a country like Malaysia insist that the Philippines establishes a consulate in
Sabah to look after the welfare of the Filipino migrants in the area? Explain your answer. (2%)
Suggested Answers:
(a) Right of legation, also known as the right of diplomatic intercourse, refers to the right of the
State to send and receive diplomatic missions, which enables States to carry on friendly
intercourse. It is not a natural or inherent right, but exists only by common consent. No legal
liability is incurred by the State for refusing to send or receive diplomatic representatives.
Governed by the Vienna Convention on Diplomatic Relations (1961).
The exercise of the right of legation is one of the most effective ways of facilitating and promoting
intercourse among nations. Through the active right of sending diplomatic representatives and the
passive right of receiving them, States arew able to deal more directly and closely with each other in
the improvement of their mutual intercourse.
(b) No. Malaysia cannot insist as it is not a natural or inherent right. The right of legation is
purely consensual. The Philippines should give its consent. No legal liability is incurred by
refusing to send or to receive a diplomatic representative.
Article VII, Section 3:

VI.
A.
The President appoints the Vice President as his Administration's Housing Czar, a position that
requires the appointee to sit in the Cabinet. Although the appointment of the members of the Cabinet
requires confirmation by the Commission on Appointment (CA), the Office of the President does not
submit the appointment to the CA. May the Vice President validly sit in the Cabinet? (2.5%)
Suggested Answer:
(A) Yes, as it is prescribed under Article VII, Section 3 (2) which states that “The Vice-President
may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.”
Article VI, Section 25 (5): Congress’ Power of the Purse, cross-border transfers:
in re: Araulo vs AquinoG.R. No. 209287, July 1, 2014
B.
The Executive Department has accumulated substantial savings from its appropriations. Needing
₱3,000,000.00 for the conduct of a plebiscite for the creation of a new city but has no funds
appropriated soon by the Congress for the purpose, the COMELEC requests the President to transfer
funds from the savings of the Executive Department in order to avoid a delay in the holding of the
plebiscite.
May the President validly exercise his power under the 1987 Constitution to transfer funds from the
savings of the Executive Department, and make a cross-border transfer of ₱3,000,000.00 to the
COMELEC by way of augmentation? Is your answer the same if the transfer is treated as aid to the
COMELEC? Explain your answer. (4%)
Suggested Answer:
(B) In Araullo vs Aquino (GR No. 209287, July 1, 2014), the Supreme Court (SC) declared as
unconstitutional the following act and practice under the DAP, to wit: “The funding of
Programs, Activities and Projects (PAPs) that are not covered by any appropriation in the
General Appropriations Act (GAA) since augmentation can only be made from one existing
item to another existing item into the budget.”
However, in a resolution dated February 3, 2015, the Sc partially granted the Motion for
reconsideration filed by the Office of the Solicitor General and allowed the funding of PAPs not
covered by any appropriation in the GAA.
Cross-border transfers are illegal as it was ruled in the Araullo case where the SC declared that the
cross-border transfers of the savings of the executive to augment the appropriations of other offices
outside the executive is an unconstitutional act.
.
Article VI, Sections 24 and 25: The Congress’ Power of the Purse:
General Appropriations Act: Limitations:
VII.
Give the limitations on the power of the Congress to enact the General Appropriations Act? Explain
your answer. (5%)
Suggested Answer:
As an implied limitation, an appropriation law in order to be valid must be devoted for public
purpose. No public money shall be spent for private gains only. For example, an appropriation for the
construction of roads inside a private subdivision is not allowed. (Pascual vs. Secretary of Public
Works and Communications).
Also, the following are the limitations on the power of the Congress to enact the General
Appropriations Act set forth in the 1987Constitution:
All appropriations bill shall originate from the House of Representatives.
Discretionary funds appropriated for particular officials shall be disbursed only for public purpose
to be supported by appropriate vouchers and subject to guidelines as may be prescribed by law.
Special appropriations bill shall specify the purpose for which it is intended and shall be supported
by funds actually available as certified by the National Treasurer, or to be raised by a corresponding
revenue proposal included therein.
The Congress shall not increase the general appropriations recommended by the President. Form,
content and manner of preparation of the budget shall be prescribed by law.
No "riders" or irrelevant provisions shall be included in the general appropriations bill.
The procedure in approving the appropriations for the Congress shall strictly follow the same
procedure for approving appropriations for other departments and agencies.
Transfer of appropriations shall not be allowed but the President, Senate President, Speaker of the
House of Representatives, Chief Justice and heads of Constitutional Commissions may be authorized
to augment any item in the general appropriations law for their respective agencies from savings in
other items of their respective appropriations.
Prohibition against the use of public funds or property for sectarian purposes.
Old general appropriations act is deemed re-enacted if the Congress fails to pass a new general
appropriations bill.
All money collected on any tax levied for a special purpose shall be treated as a special fund and
paid out for such purpose only.
Article XII, Section 2: Jure Regalia: Regalian Doctrine.
VIII.
A bank acquired a large tract of land as the highest bidder in the foreclosure sale of the mortgaged
assets of its borrower. It appears that the land has been originally registered under the Torrens
system in 1922 pursuant to the provisions of the Philippine Bill of 1902, the organic act of the
Philippine Islands as a colony of the USA. Sec. 21 of the Philippine Bill of 1902 provided that "all
valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed, are
hereby declared to be free and open to exploration, occupation and purchase, and the land in which they
are found to occupation and purchase, by citizens of the United States, or of said Islands." Sec. 27 of the
law declared that a holder of the mineral claim so located was entitled to all the minerals that lie
within his claim, but he could not mine outside the boundary lines of his claim.
The 1935 Constitution expressly prohibited the alienation of natural resources except agricultural
lands. Sec. 2, Art. XII of the 1987 Constitution contains a similar prohibition, and proclaims that all
lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State. This provision enunciates the Regalian Doctrine.
May the Government, on the basis of the Regalian Doctrine enunciated in the constitutional
provisions, deny the bank its right as owner to the mineral resources underneath the surface of its
property as recognized under the Philippine Bill of 1902? Explain your answer. (5%)
Suggested Answer:
No. The government may not deny the mineral right vested upon the bank.
Pursuant to the Philippine Bill of 1902, therefore, once a mining claim was made or a mining patent
was issued over a parcel of land in accordance with the relative provisions of the Philippine Bill of
1902, such land was considered private property and no longer part of the public domain. The
claimant or patent holder was the owner of both the surface of the land and of the minerals found
underneath.
Since the 1902 Philippine Bill recognized private ownership over the minerals underneath, the
subsequent ratification of 1935 and 1987 Constitutions cannot take it away for vested right had
already set in.
Public International Law: Treaties: Diplomatic Immunity: Extradition proceedings
Article II, Section 2:
IX.
A.
Ambassador Robert of State Alpha committed a very serious crime while he headed his foreign
mission in the Philippines. Is he subject to arrest by Philippine authorities? Explain your answer.
(3%)
B.
Extradition is the process pursuant to a treaty between two State parties for the surrender by the
requested State to the custody of the requesting State of a fugitive criminal residing in the former.
However, extradition depends on the application of two principles - the principle of specialty and
the dual criminality principle. Explain these principles. (4%)
C.
The President signs an agreement with his counterpart in another country involving reciprocity in
the treatment of each country's nationals residing in the other's territory. However, he does not
submit the agreement to the Senate for concurrence.
Sec. 21, Art. VII of the Constitution provides that no treaty or international agreement shall be valid
and effective without such concurrence.
Is the agreement signed by the President effective despite the lack of Senate concurrence? Explain
your answer. (4%)
Suggested Answers:
(A) As a general rule, he is not subject to arrest. Being an Ambassador of a foreign State he is
immune from arrest and exempted from criminal prosecution by virtue of their diplomatic
immunity, which is also absolute in nature. Through their diplomatic immunity, they are
exempted from criminal prosecutions except when the very serious crime relates to crimes
against international law.
(B) In principle of specialty, a person extradited to the requesting state may be tried and
punished only for the offense for which extradition had been sought and granted.
While in principle of dual criminality, the crime subject of request for extradition must be punishable
in both the requesting state and the requested state.
(C) Yes. The agreement entered into by the President is executive agreement which needs no
concurrence of the Senate, not a treaty or international agreement as provided in Sec. 21, Art.
VII of the Constitution.
Article VI: Legislative Department: Enrolled Bill doctrine: Bill Enactment.

X.
A.
Under the enrolled bill doctrine, the signing of a bill by both the Speaker of the House of
Representatives and the President of the Senate and the certification by the secretaries of both
Houses of Congress that the bill was passed on a certain date are conclusive on the bill's due
enactment. Assuming there is a conflict between the enrolled bill and the legislative journal, to the
effect that the enrolled bill signed by the Senate President and eventually approved by the President
turned out to be different from what the Senate actually passed as reflected in the legislative journal.
(a) May the Senate President disregard the enrolled bill doctrine and consider his signature as invalid
and of no effect? (2.5%)
(b) May the President thereafter withdraw his signature? Explain your answer. (2.5%)
Suggested Answers:
(a) No. The enrolled bill became a law already. It has to be repealed by a subsequent law, except
when the signature was attained due to fraud or other illegal circumstances which appears
that the enrolled bill is totally different from that which was intended as reflected in the
journal.
(b) Yes, in this extra ordinary situation, the President may withdraw his signature to avoid
constitutional or legal impediment
B.
Sec. 26(2), Art. VI of the Constitution provides that no bill passed by either House of Congress shall
become a law unless it has passed three readings on separate days and printed copies of it in its final
form have been distributed to the Members of the House three days before its passage.
Is there an exception to the provision? Explain your answer. (3%)
Suggested Answer:
(B) Yes, there is an exception to the abovementioned provision. When the President certifies the
urgency and necessity of the enactment of a bill into law to meet a public calamity or
emergency or for the advancement of the people, the (1) printing requirement and (2)
readings on separate days may be dispensed. However, this does not guarantee that a bill will
be passed. It only speeds up the procedure.
Artcile VI, Section 17: Jurisdiction of Electoral Tribunals.

XI.
Sec. 17, Art. VI of the Constitution establishes an Electoral Tribunal for each of the Houses of
Congress, and makes each Electoral Tribunal "the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members." On the other hand, Sec. 2(1), C (Commission
on Elections), Art. IX of the Constitution grants to the COMELEC the power to enforce and administer
all laws and regulations "relative to the conduct of an election, plebiscite, initiative, referendum, and
recall."
Considering that there is no concurrence of jurisdiction between the Electoral Tribunals and the
COMELEC, state when the jurisdiction of the Electoral Tribunals begins, and the COMELEC's
jurisdiction ends. Explain your answer. (4%)
Suggested Answer:
The jurisdiction of the Electoral Tribunal as the sole judge of all contests relating to the election,
returns and qualifications of its members commences when the said members have already been (1)
validly proclaimed, (2) taken oath and (3) assumed office. Here, the jurisdiction of the COMELEC as
the sole judge of all contests relating to the election, returns and qualifications also ceases.
In the absence of any of the mentioned requisites, the jurisdiction of the COMELEC as the sole
judge of all contests relating to the election, returns and qualifications continues.
In short, pre-proclamation is under the jurisdiction of the COMELEC and it ends after post
proclamation of the winning candidates.
Article IX-D, Sec. 2(1):

XII.
The Congress establishes by law Philippine Funds, Inc., a private corporation, to receive foreign
donations coming from abroad during national and local calamities and disasters, and to enable the
unhampered and speedy disbursements of the donations through the mere action of its Board of
Directors. Thereby, delays in the release of the donated funds occasioned by the stringent rules of
procurement would be avoided. Also, the releases would not come under the jurisdiction of the
Commission on Audit (COA).
(a) Is the law establishing Philippine Funds, Inc. constitutional? Explain your answer. (3%)
(b) Can the Congress pass the law that would exempt the foreign grants from the jurisdiction of the
COA? Explain your answer. (3%)
Suggested Answers:
(a) No. All GOCCs should be subject to COA regardless of their incorporation. Funds received by
the government by means of any of its proprietary act, or through its power of taxation, or
through any gratuitous act shall accrue to the national treasury. All funds accrued to the
national treasury are public funds, subject to the jurisdiction of COA. The Congress are the
only governmental department vested with the power of appropriation and such power
cannot be delegated to any department or instrumentalities of the government.
(b) No. All donations especially foreign aids/grants cannot be without the jurisdiction of COA.
Article VII, Section 18: Commander-in-Chief clause: Command Responsibility

XIII.
Command responsibility pertains to the responsibility of commanders for crimes committed by
subordinate members of the armed forces or other persons subject to their control in international
wars or domestic conflicts. The doctrine has now found application in civil actions for human rights
abuses, and in proceedings seeking the privilege of the writ of amparo.
(a) What are the elements to be established in order to hold the superior or commander liable under
the doctrine of command responsibility? (4%)
(b) May the doctrine of command responsibility apply to the President for the abuses of the armed
forces (AFP and PNP) given his unique role as the commander-in-chief of all the armed forces?
Suggested Answers:
(a) In the decided case of Saez vs Macapagal-Arroyo, , citing the decision in Noriel rodriguez vs
Macapagal-Arroyo, G.R. No. 191805, November 15, 2011, the following elements must be
established to to hold someone liable under the doctrine of command responsibility: (i) The
existence of a superior-subordinate relationship between the accused as superior and the
perpetrator of the crime as his subordinate; (ii) the superior knew or had reason to know
that the crime was about to be or had been committed; and (iii)the superior failed to take the
necessary and reasonable measures to prevent the criminal acts or punish the perpetrators
itself.
(b) Yes, the President may be held liable for the abuses made by the armed forces under the
doctrine command responsibility. It is stated in the decision held by the Supreme Court in the
case of Saez vs Macapagal-Arroyo, Gr No. 183533, Sept. 25, 2012, that “pursuant to the
doctrine of command responsibility, the President, as the Commander-in-Chief of the AFP,
can be held liable for affront against the petitioners life, liberty and security as long as
substantial evidence exist to show that she had exhibited involvement in or can be imputed
with knowledge of the violations, or had failed to exercise necessary and reasonable diligence
in conducting the necessary investigations required under the rules.”
Article VI, Section 25 (6), and Section 29 (2)
XIV.
To fulfill a campaign promise to the poor folk in a far-flung area in Mindanao, the President
requested his friend, Pastor Roy, to devote his ministry to them. The President would pay Pastor Roy
a monthly stipend of ₱50,000.00 from his discretionary fund, and would also erect a modest house of
worship in the locality in an area of the latter's choice.
Does the President thereby violate any provisions of the Constitution? Explain your answer. (3%)
Suggested Answer:
Yes, the President has violated the provision under Section 25(6), Article VI of the Constitution
under which, it provides that discretionary funds appropriated for particular officials shall be
disbursed only for public purpose. The act of the President in relation to his discretionary funds id an
act of spending for his personal benefit which is contrary to public interest.
Also, the President also violated the provision under Section 29 (2), Article VI of the Constitution
which states that “No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or
dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government orphanage or leprosarium. ”
Article VIII, Section 3: Fiscal Autonomy of the Judiciary.
Article XI, Section 9: Qualifications of Ombudsman.
Article XI, Section 3: Impeachment: Initiation
XV.
A.
According to Sec. 3, Art. VIII of the Constitution, the Judiciary shall enjoy fiscal autonomy. What does
the term fiscal autonomy signify? Explain your answer. (3%)
B.
May a complaint for disbarment against the Ombudsman prosper during her incumbency? Explain
your answer. (3%)
C.
Sec. 3, Art. XI of the Constitution states that "[n]o impeachment proceedings shall be initiated against
the same official more than once within a period of one year."
What constitutes initiation of impeachment proceedings under the provision? (3%)
Suggested Answers:
(A) Fiscal autonomy signifies the independence of judiciary to utilize the funds allocated therein.
It refers to the independence of a branch of government to utilize the funds allocated to it in
order to attain its governmental objective.
Fiscal autonomy means that the approved annual appropriations of the Judiciary shall be released
automatically without imposing any condition before releasing the funds.
Furthermore, in the case of the Judiciary, the Congress is prohibited from reducing the
appropriations below the amount appropriated for them for the previous year.
(B) No. The Ombudsman is immune from suits. The Ombudsman should be ousted first through
impeachment to remove the immunity and only then the disbarment case will go through.
For the disbarment case to prosper, the Ombudsman must first be removed from office via
impeachment. (Ombudsman vs. CA and Mojica, G.R. No. 146486. March 4, 2005)
An impeachable Officer who is a member of the Philippine Bar cannot be disbarred without first
being impeached (Jarque v. Desierto, AC No. 4509)
(C) It is held in the case of Francisco vs House of Representatives 415 SCRA 44; G.R. No. 160261; 10
Nov 2003, that an impeachment complaint is initiated when a verified complaint is filed and
referred to the Committee on Justice for action.
-NOTHING FOLLOWS-
ERmedial aw
Source: https://www.juristsbar.com.ph/index.php/news/207-suggested-answers-to-2017-remedial-
law-bar-examination-questions
SUGGESTED ANSWERS TO 2017 REMEDIAL LAW BAR EXAMINATION QUESTIONS

I.
What trial court outside Metro Manila has exclusive original jurisdiction over the following
cases? Explain briefly your answers.
(a) An action filed on November 13, 2017 to recover the possession of an apartment unit being
occupied by the defendant by mere tolerance of the plaintiff, after the former ignored the last demand
to vacate that was duly served upon and received by him on July 6,2016.
(b) A complaint in which the principal relief sought is the enforcement of a seller's contractual
right to repurchase a lot with an assessed value of P15,000.00.
SUGGESTED ANSWER:
(a)
It would be either the MTC or the RTC depending upon the assessed value of the apartment
unit.
Under B.P. Blg. 129, jurisdiction over real actions is vested in the MTC if the assessed value of
the real property involved does not exceed P20,000 and in the RTC if such assessed value exceeds
P20,000. The action to recover possession can no longer be one for unlawful detainer since it was
brought beyond one year from the last demand to vacate.
(b)
Exclusive original jurisdiction is vested in the MTC.
The Supreme Court has held that where the ultimate relief sought by an action is the assertion
of title to real property, the action is a real one and not one incapable of pecuniary estimation. [Brgy.
Piapi v. Talip, 7 Sep 2005]
Here the ultimate relief sought by the complaint is the assertion of title since the seller seeks to
exercise his right to repurchase. Hence the action is a real one and jurisdiction is vested in the MTC
since the assessed value does not exceed P20,000.
Alternative Answer:
(b)
Exclusive original jurisdiction is vested in the Regional Trial Court.
The Supreme Court has held that an action to enforce the right of redemption is one which is
incapable of pecuniary estimation and thus within the exclusive original jurisdiction of the RTC
pursuant to B.P. Blg. 129. [Heirs of Bautista v. Lindo, 10 March 2014]
II.
Santa filed against Era in the RTC of Quezon City an action for specific performance praying for
the delivery of a parcel of land subject of their contract of sale. Unknown to the parties, the case was
inadvertently raffled to an RTC designated as a special commercial court. Later, the RTC rendered
judgment adverse to Era, who, upon realizing that the trial court was not a regular RTC, approaches
you and wants you to file a petition to have the judgment annulled for lack of jurisdiction.
What advice would you give to Era? Explain your answer. (4%)
SUGGESTED ANSWER:
The advice I would give to Era is that the petition for annulment of judgment on lack of
jurisdiction will not prosper.
The Supreme Court has held that a special commercial court is still a court of general
jurisdiction and can hear and try a non-commercial case. [Concorde Condominium Inc. v. Baculio, 17
Feb 2016, Peralta, J.].
Hence the special commercial court had jurisdiction to try and decide the action for specific
performance and to render a judgment therein.
Ill.
Answer the following briefly:
(a) What elements should concur for circumstantial evidence to be sufficient for conviction?
(b) When is bail a matter of judicial discretion?
(c) Give at least two instances when a peace officer or a private person may make a valid
warrantless arrest.
(d) What is a tender of excluded evidence?
SUGGESTED ANSWER:
(a)
The following elements should concur for circumstantial evidence to be sufficient for
conviction:
a) There is more than one circumstance.
b) The facts from which the inferences are derived are proven.
c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. [S4 R133]
(b)
Bail is a matter of judicial discretion:
(1) Before conviction by the RTC of an offense punishable by death, reclusion perpetua, or life
imprisonment.
(2) After conviction by the RTC of an offense not punishable by death, reclusion perpetua, or
life imprisonment. [S4 & 5 R114]
(c)
The following are the instances when a peace officer or a private person may make a valid
warrantless arrest:
(1) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;
(2) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has committed it (jpp);
and
(3) When the person to be arrested is an escaped prisoner. [S5 R113]
(d)
Tender of excluded evidence is the remedy of a party when the evidence he has offered is
excluded by the court.
If documentary or object evidence is excluded by the court, the offeror may have the
same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for
the record the name and other personal circumstances of the witness and the substance of the
proposed testimony. (S40 R132).
IV.
Give brief answers to the following:
(a) What is the doctrine of hierarchy of courts?
(b) What is the Harmless Error Rule in relation to appeals?
(c) When does a public prosecutor conduct an inquest instead of a preliminary investigation?
SUGGESTED ANSWERS
(a)
The doctrine of hierarchy of courts provides that where there is a concurrence of jurisdiction by
courts over an action or proceeding, there is an ordained sequence of recourse to such courts
beginning from the lowest to the highest. A direct invocation of the Supreme Court’s original
jurisdiction should be allowed only when there are special and important reasons therefor. [Montes
v. Court of Appeals, G.R. No. 143797, 4 May 2006]
(b)
The harmless error rule in relation to appeals provides that the appellate court should not
reverse a judgment as a result of any error or defect which does not affect the substantial rights of the
parties. [See S6 R51; Bersamin, Appeal & Review in the Philippines 362]
(c)
Under the Rules of Criminal Procedure, the public prosecutor conducts an inquest instead of a
preliminary investigation when a person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation. [S6 R112]
V.
After working for 25 years in the Middle East, Evan returned to the Philippines to retire in
Manila, the place of his birth and childhood. Ten years before his retirement, he bought for cash in his
name a house and lot in Malate, Manila. Six months after his return, he learned that his house and lot
were the subject of foreclosure proceedings commenced by ABC Bank on the basis of a promissory
note and a deed of real estate mortgage he had allegedly executed in favor of ABC Bank five years
earlier.
Knowing that he was not in the country at the time the promissory note and deed of mortgage
were supposedly executed, Evan forthwith initiated a complaint in the RTC of Manila praying that the
subject documents be declared null and void.
ABC Bank filed.a motion to dismiss Evan's complaint on the ground of improper venue on the
basis of a stipulation in both documents designating Quezon City as the exclusive venue in the event of
litigation between the parties arising out of the loan and mortgage.
Should the motion to dismiss of ABC Bank be granted? Explain your answer.
SUGGESTED ANSWER:
No, the motion to dismiss of ABC Bank should not be granted.
In a case involving similar facts, the Supreme Court held that a party is not bound by a venue
stipulation where he directly assails on the ground of forgery the validity of the contracts containing
the venue stipulation. The reason is that such a party cannot be expected to comply with the venue
stipulation since his compliance therewith would mean an implicit recognition of the validity of the
contracts he assails. [Briones v. Cash Asia Credit Corp., 14 January 2015, Perlas-Bernabe, J.]
VI.
Hanna, a resident of Manila, filed a complaint for the partition of a large tract of land located in
Oriental Mindoro. She impleaded her two brothers John and Adrian as defendants but did not implead
Leica and Agatha, her two sisters who were permanent residents of Australia.
Arguing that there could be no final determination of the case without impleading all
indispensable parties, John and Adrian moved to dismiss the complaint.
Does the trial court have a reason to deny the motion? Explain your answer.
SUGGESTED ANSWER:
Yes, the trial court has a reason to deny the motion to dismiss.
Under the Rules of Civil Procedure, non-joinder of parties, even indispensable ones, is not a
ground of a motion to dismiss. [S11 R3; Vesagas v. CA, 371 SCRA 508 (2001)]
VII.
Elise obtained a loan of P3 Million from Merchant Bank. Aside from executing a promissory note
in favor of Merchant Bank, she executed a deed of real estate mortgage over her house and lot as
security for her obligation. The loan fell due but remained unpaid; hence, Merchant Bank filed an
action against Elise to foreclose the real estate mortgage. A month after, and while the foreclosure suit
was pending, Merchant Bank also filed an action to recover the principal sum of P3 Million against
Elise based on the same promissory note previously executed by the latter.
In opposing the motion of Elise to dismiss the second action on the ground of splitting of a
single cause of action, Merchant Bank argued that the ground relied upon by Elise was devoid of any
legal basis considering that the two actions were based on separate contracts, namely, the contract of
loan evidenced by the promissory note, and the deed of real estate mortgage.
Is there a splitting of a single cause of action? Explain your answer.
SUGGESTED ANSWER:
Yes, there is a splitting of a single cause of action.
Under the Rules of Civil Procedure, there is a splitting of a single cause of action if two or more
suits are instituted on the basis of the same cause of action. [S4 R2]. A cause of action is the act or
omission by which a party violates a right of another. [S2 R2].
Here, both suits, the foreclosure and the collection suit, arose from the same cause of action,
that is, the non-payment by Elise of her P3 million loan from Merchant Bank. The fact that the two
actions were based on separate contracts is irrelevant, what matters is that both actions arose from
the same cause of action.
VIII.
A.
Laura was the lessee of an apartment unit owned by Louie. When the lease expired, Laura
refused to vacate the property. Her refusal prompted Louie to file an action for unlawful detainer
against Laura who failed to answer the complaint within the reglementary period.
Louie then filed a motion to declare Laura in default. Should the motion be granted? Explain
your answer.
B.
Agatha filed a complaint against Yana in the RTC in Makati City to collect P350,000.00, an
amount representing the unpaid balance on the price of the car Yana had bought from Agatha.
Realizing a jurisdictional error in filing the complaint in the RTC, Agatha filed a notice of dismissal
before she was served with the answer of Yana. The RTC issued an order confirming the dismissal.
Three months later, Agatha filed another complaint against Yana based on the same cause of
action this time in the MeTC of Makati City. However, for reasons personal to her, Agatha decided to
have the complaint dismissed without prejudice by filing a notice of dismissal prior to the service of
the answer of Yana. Hence, the case was dismissed by the MeTC.
A month later, Agatha refiled the complaint against Yana in the same MeTC.
May Yana successfully invoke the Two-Dismissal Rule to bar Agatha’s third complaint? Explain
your answer.
SUGGESTED ANSWER:
(A)
No, a Motion to declare the defendant in default is a prohibited motion in ejectment cases
pursuant to S13.8 R70.
(B)
No, Yana may not successfully invoke the Two-Dismissal Rule to bar Agatha’s third complaint
Under the Two-Dismissal Rule, the notice of dismissal operates as an adjudication upon the
merits provided it is filed by a plaintiff who has once dismissed in a competent court an action based
on or including the same claim. [S1 R17]
Here the first dismissal by the plaintiff was not in a competent court as the RTC in Makati City
did not have subject-matter jurisdiction over an action seeking to recover P350,000. Hence Agatha’s
third complaint is not barred by the Two-Dismissal Rule.
IX.
Abraham filed a complaint for damages in the amount of P750,000.00 against Salvador in the
RTC in Quezon City for the latter's alleged breach of their contract of services. Salvador promptly filed
his answer, and included a counterclaim for P250,000.00 arising from the allegedly baseless and
malicious claims of Abraham that compelled him to litigate and to engage the services of counsel, and
thus caused him to suffer mental anguish.
Noting that the amount of the counterclaim was below the exclusive original jurisdiction of the
RTC, Abraham filed a motion to dismiss vis-a-vis the counterclaim on that ground.
Should the counterclaim of Salvador be dismissed? Explain your answer.
SUGGESTED ANSWER:
No, the counterclaim of Salvador should not be dismissed on the ground of lack of jurisdiction.
In an original action before the RTC, the RTC has jurisdiction over a compulsory counterclaim
regardless of its amount. [See S7 R6]
Here Salvador’s counterclaim for damages arising from the alleged malicious and baseless
claims of Abraham is a compulsory counterclaim as it arises from Abraham’s complaint. Hence the
RTC has jurisdiction over Salvador’s counterclaim even if it did not exceed the jurisdictional amount
of P400,000.
X.
On the basis of an alleged promissory note executed by Harold in favor of Ramon, the latter filed
a complaint for P950,000.00 against the former in the RTC of Davao City. In an unverified answer,
Harold specifically denied the genuineness of the promissory note.
During the trial, Harold sought to offer the testimonies of the following: (1) the testimony of an
NBI handwriting expert to prove the forgery of his signature; and (2) the testimony of a credible
witness to prove that if ever Harold had executed the note in favor of Ramon, the same was not
supported by a consideration.
May Ramon validly object to the proposed testimonies? Give a brief explanation of your answer.
SUGGESTED ANSWER:
1) Ramon may validly object to the proposed testimony of an NBI handwriting expert to prove
forgery.
Under S8 R8, the genuineness and due execution of an actionable document is deemed admitted
by the adverse party if he fails to specifically deny such genuineness and due execution.
Here the genuineness and due execution of the promissory note, which is an actionable
document, was impliedly admitted by Harold when he failed to deny the same under oath, his answer
being unverified. Hence Harold is precluded from setting up the defense of forgery and thus Ramon
may object to the proposed testimony seeking to prove forgery.
2) Ramon may not validly object to the proposed testimony showing that the note was not
supported by a consideration.
The Supreme Court has held that an implied admission under S8 R8 does not preclude the
adverse party from introducing evidence that the actionable document was not supported by a
consideration. The reason is that such evidence is not inconsistent with the implied admission of
genuineness and due execution. [Acabal v. Acabal, 31 March 2005]
The fact that the defense of lack of consideration is inconsistent with Harold’s defense of
forgery is also not objectionable.
Under the Rules of Civil Procedure, a party may set forth two or more statements of defense
alternatively or hypothetically. [S2 R8]
XI.
A.
Teddy filed against Buboy an action for rescission of a contract for the sale of a commercial lot.
After having been told by the wife of Buboy that her husband was out of town and would not be back
until after a couple of days, the sheriff requested the wife to just receive the summons in behalf of her
husband. The wife acceded to the request, received the summons and a copy of the complaint, and
signed for the same.
(a) Was there a valid service of summons upon Buboy? Explain your answer briefly.
(b) If Buboy files a motion to dismiss the complaint based on the twin grounds of lack of
jurisdiction over his person and prescription of the cause of action, may he be deemed to have
voluntarily submitted himself to the jurisdiction of the court? Explain your answer briefly. (3%)
B.
What is the mode of appeal applicable to the following cases, and what issues may be raised
before the reviewing court/tribunal?
(a) The decision or final order of the National Labor Relations Commission.
(b) The judgment or final order of the RTC in the exercise of its appellate jurisdiction.
SUGGESTED ANSWER:
A.
(a)
No, there was no valid service of summons upon Buboy.
The Supreme Court has held that in order that there will be valid substituted service of
summons, the sheriff must have exerted diligent efforts to effect personal service of summons within
a reasonable time.
Here there were no such diligent efforts on the part of the sheriff since he effected substituted
service on his very first try. Hence there was no valid service of summons upon Buboy.
(b)
No, Buboy may not be deemed to have voluntarily submitted himself to the jurisdiction of the
court.
Under the Rules of Civil Procedure, the inclusion in a motion to dismiss of other grounds aside
from lack of personal jurisdiction shall not be deemed a voluntary appearance. [S20 R14]
B.
(a)
There is no mode of appeal from a decision or final order of the NLRC, since such decision or
final order is final and executory pursuant to the Labor Code. [Art. 223].
The remedy of the aggrieved party is to file a special civil action for certiorari with the Court of
Appeals. [St. Martin Funeral Home v. NLRC, 295 SCRA 494]. Such special civil action may raise
questions both of fact and law. [Aggabao v. COMELEC, 449 SCRA 400].
(b)
The mode of appeal applicable to judgments or final orders of the RTC in the exercise of its
appellate jurisdiction is a petition for review under R42. The petition may raise questions both of fact
and law. [S2 R42]
XII.
A.
Judgment was rendered against defendant Jaypee in an action for unlawful detainer. The
judgment ordered Jaypee to vacate and to pay attorney's fees in favor of Bart, the plaintiff.
To prevent the immediate execution of the judgment, would you advise the posting of
a supersedeas bond as counsel for Jaypee?
Explain your answer briefly.
B.
A temporary restraining order (TRO) was issued on September 20, 2017 by the RTC against
defendant Jeff enjoining him from entering the land of Regan, the plaintiff.
On October 9, 2017, upon application of Regan, the trial court, allegedly in the interest of justice,
extended the TRO for another 20 days based on the same ground for which the TRO was issued.
On October 15, 2017, Jeff entered the land subject of the TRO.
May Jeff be liable for contempt of court? Why?
SUGGESTED ANSWER:
(A)
No, as counsel for Jaypee I would not advise the posting of a supersedeas bond.
Under the R70, a supersedeas bond is necessary to prevent immediate execution only if the
judgment awarded rents, damages, and costs.
Here the judgment only ordered Jaypee to vacate and to pay attorney’s fees. A supersedeas
bond is not required to cover attorney’s fees. [Once v. Gonzalez, 31 March 1977]. Hence the posting of
a supersedeas bond is not required.
(B)
No, Jeff may not be liable for contempt.
Under the Rule on Preliminary Injunction, a TRO is effective only for a period of 20 days from
service on the person sought to be enjoined. It is deemed automatically vacated if the application for
preliminary injunction is denied or not resolved within the said period and no court shall have the
authority to extend or renew the TRO on the same ground for which it was issued. [S5 R58]
Here the extension of the TRO by the RTC was invalid since it was for the same ground for
which the TRO was issued. Hence the TRO was deemed automatically vacated and thus Jeff may not
be liable for contempt for ignoring it.
XIII.
Police officers arrested Mr. Druggie in a buy-bust operation and confiscated from him 10
sachets of shabu and several marked genuine peso bills worth P5,000.00 used as the buy-bust money
during the buy-bust operation.
At the trial of Mr. Druggie for violation of R.A. No. 9165 (Comprehensive Dangerous Drug Act
of 2002), the Prosecution offered in evidence, among others, photocopies of the confiscated marked
genuine peso bills. The photocopies were offered to prove that Mr. Druggie had engaged at the time of
his arrest in the illegal selling of dangerous drugs.
Invoking the Best Evidence Rule, Atty. Maya Bang, the defense counsel, objected to the
admissibility of the photocopies of the confiscated marked genuine peso bills.
Should the trial judge sustain the objection of the defense counsel? Briefly explain your answer.
SUGGESTED ANSWER:
No, the trial judge should not sustain the objection that invokes the best evidence rule.
The Supreme Court has held that the best evidence rule applies only to documentary evidence,
not to object or testimonial evidence.
Here the marked money is object not documentary evidence since it is being offered to prove
not its contents but its existence and use in the buy-bust operation. [People v. Tandoy, 192 SCRA 28
(1990)]
XIV.
Immediately before he died of gunshot wounds to his chest, Venancio told the attending
physician, in a very feeble voice, that it was Arnulfo, his co-worker, who had shot him. Venancio added
that it was also Arnulfo who had shot Vicente, the man whose cadaver was lying on the bed beside
him.
In the prosecution of Arnulfo for the criminal killing of Venancio and Vicente, are all the
statements of Venancio admissible as dying declarations? Explain your answer.
SUGGESTED ANSWER:
No, not all the statements of Venancio are admissible as dying declarations.
Under the Rules on Evidence, a dying declaration is admissible as an exception to the hearsay
rule provided that such declaration relates to the cause of the declarant’s death.
Venancio’s statement that it was Arnulfo who shot him is admissible as a dying declaration. The
same related to Venancio’s own demise. It may be inferred that Venancio had consciousness of his
impending death since he suffered gunshot wounds to his chest which would necessarily be mortal
wounds.
However, Venancio’s statement that it was Arnulfo who shot Vicente is not admissible as a
dying declaration since it did not relate to the cause of the declarant’s death but to the death of
another person.
XV.
In an attempt to discredit and impeach a Prosecution witness in a homicide case, the defense
counsel called to the stand a person who had been the boyhood friend and next-door neighbor of the
Prosecution witness for 30 years. One question that the defense counsel asked of the impeaching
witness was: "Can you tell this Honorable Court about the general reputation of the prosecution witness
in your community for aggressiveness and violent tendencies?"
Would you, as the trial prosecutor, interpose your objection to the question of the defense
counsel? Explain your answer.
SUGGESTED ANSWER:
Yes, I as the trial prosecutor, would interpose my objection to defense counsel’s question on the
ground of improper impeachment.
Under the Law on Evidence, an adverse party’s witness may be properly impeached by
reputation evidence provided that it is to the effect that the witness’s general reputation for honesty,
truth, or integrity was bad. [S11 R132] The reputation must only be on character for truthfulness or
untruthfulness. [Cordial v. People, 166 SCRA 17]
Here the evidence is not on the Prosecution witness’s general reputation for honesty, truth, or
integrity but on his aggressive and violent tendencies. The evidence had nothing to do with the
witness’s character for truthfulness or untruthfulness. Hence the impeachment was improper.
XVI.
Engr. Magna Nakaw, the District Engineer of the DPWH in the Province of Walang Progreso, and
Mr. Pork Chop, a private contractor, were both charged in the Office of the Ombudsman for violation
of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) under a conspiracy theory.
While the charges were undergoing investigation in the Office of the Ombudsman, Engr. Magna
Nakaw passed away. Mr. Pork Chop immediately filed a motion to terminate the investigation and to
dismiss the charges against him, arguing that because he was charged in conspiracy with the
deceased, there was no longer a conspiracy to speak of and, consequently, any legal ground to hold
him for trial had been extinguished.
Rule on the motion to terminate filed by Mr. Pork Chop, with brief reasons.
SUGGESTED ANSWER:
Mr. Pork Chop’s motion to terminate the investigation before the Office of the Ombudsman is
denied.
In a case involving similar facts, the Supreme Court held that the death of a co-conspirator, even
if he was the lone public officer, did not mean that the allegation of conspiracy to violate the Anti-Graft
Law could no longer be proved or that the alleged conspiracy was already expunged. The only thing
extinguished by the death of a co-conspirator was his criminal liability. His death did not extinguish
the crime nor did it remove the basis of the charge of conspiracy between him and private
respondent. [People v. Go, 25 March 2014, Peralta, J.]
XVII.
Juancho entered a plea of guilty when he was arraigned under an information for homicide. To
determine the penalty to be imposed, the trial court allowed Juancho to present evidence proving any
mitigating circumstance in his favor. Juancho was able to establish complete self-defense.
Convinced by the evidence adduced by Juancho, the trial court rendered a verdict of acquittal.
May the Prosecution assail the acquittal without infringing the constitutional guarantee against
double jeopardy in favor of Juancho? Explain your answer.
SUGGESTED ANSWER:
Yes, the Prosecution may assail the acquittal without infringing upon the constitutional
guarantee against double jeopardy.
Under the Rules of Criminal Procedure, a requirement for a first jeopardy to attach is that there
must have been a valid plea by the accused. Said rules also provide that when the accused pleads
guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of guilty
shall be entered for him.
Here Juancho’s plea of guilty was deemed withdrawn when he presented exculpatory evidence
to the effect that he acted in self-defense. Hence his plea of guilty was deemed withdrawn and a plea
of guilty should have been entered for him by the court, which however was not done.
Since there was no standing plea, a first jeopardy did not attach and thus the Prosecution may
assail the acquittal without infringing upon Juancho’s right against double jeopardy. [People v.
Balisacan, 31 August 1966]
XVIII.
Tomas was criminally charged with serious physical injuries allegedly committed against
Darvin. During the pendency of the criminal case, Darvin filed a separate civil action for damages
based on the injuries he had sustained.
Tomas filed a motion to dismiss the separate civil action on the ground of litis
pendentia, pointing out that when the criminal action was filed against him, the civil action to recover
the civil liability from the offense charged was also deemed instituted. He insisted that the basis of the
separate civil action was the very same act that gave rise to the criminal action.
Rule on Tomas' motion to dismiss, with brief reasons.
SUGGESTED ANSWER:
Tomas’s motion to dismiss on the ground of litis pendentia should be denied.
In cases of physical injuries, a civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil action shall proceed independently of
the criminal action (Art. 33, Civil Code; S3 R111) and hence may not be dismissed on the ground of
litis pendentia.
XIX.
Boy Maton, a neighborhood tough guy, was arrested by a police officer on suspicion that he was
keeping prohibited drugs in his clutch bag. When Boy Maton was searched immediately after the
arrest, the officer found and recovered 10 sachets of shabu neatly tucked in the inner linings of the
clutch bag. At the time of his arrest, Boy Maton was watching a basketball game being played in the
town plaza, and he was cheering for his favorite team. He was subsequently charged with illegal
possession of dangerous drugs, and he entered a plea of not guilty when he was arraigned.
During the trial, Boy Maton moved for the dismissal of the information on the ground that the
facts revealed that he had been illegally arrested. He further moved for the suppression of the
evidence confiscated from him as being the consequence of the illegal arrest, hence, the fruit of the
poisonous tree.
The trial court, in denying the motions of Boy Maton, explained that at the time the motions
were filed Boy Maton had already waived the right to raise the issue of the legality of the arrest. The
trial court observed that, pursuant to the Rules of Court, Boy Maton, as the accused, should have
assailed the validity of the arrest before entering his plea to the information. Hence, the trial court
opined that any adverse consequence of the alleged illegal arrest had also been equally waived.
Comment on the ruling of the trial court. (5%)
SUGGESTED ANSWER:
The ruling of the court denying the motion for dismissal of the information on the ground of
illegal arrest is proper.
Under the Rules of Criminal Procedure, the accused’s failure to file a motion to quash before
plea is a waiver of the objection to lack of personal jurisdiction or of the objection to an illegal arrest.
[S9 R117]
Here Boy Maton entered a plea without filing a motion to quash on the ground of lack of
personal jurisdiction. Hence he is deemed to have waived the ground of illegal arrest which is
subsumed under lack of personal jurisdiction.
However, the ruling denying the motion to suppress evidence is not correct.
The Supreme Court has held that a waiver of an illegal, warrantless arrest does not carry with it
a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. [People v.
Racho, 3 Aug 2010]. A waiver of an illegal arrest is not a waiver of an illegal search. [Villanueva v.
People, 17 Nov 2014, Sereno, C.J.] The Constitution provides that evidence seized in violation of the
right against illegal search is inadmissible in evidence.
Hence the evidence seized was by virtue of an illegal search since the arrest was illegal. Hence
such evidence may be suppressed.
-oOo-

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CIVIL LAW 2017

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TRUE or FALSE – Explain your answers.

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SUGGESTED ANSWERS TO 2017 REMEDIAL LAW BAR EXAMINATION QUESTIONS

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(b) When is bail a matter of judicial discretion?

(d) What is a tender of excluded evidence?

a) There is more than one circumstance.

Bail is a matter of judicial discretion:

Give brief answers to the following:

(a) What is the doctrine of hierarchy of courts?

(b) What is the Harmless Error Rule in relation to appeals?

No, the motion to dismiss of ABC Bank should not be granted.

Is there a splitting of a single cause of action? Explain your answer.

Yes, there is a splitting of a single cause of action.

Should the counterclaim of Salvador be dismissed? Explain your answer.

No, there was no valid service of summons upon Buboy.

Explain your answer briefly.

May Jeff be liable for contempt of court? Why?

No, Jeff may not be liable for contempt.

Rule on Tomas' motion to dismiss, with brief reasons.

Tomas’s motion to dismiss on the ground of litis pendentia should be denied.

Comment on the ruling of the trial court. (5%)

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