Professional Documents
Culture Documents
03 CIVIL LAW Bar Q - A 1996 2017 PDF
03 CIVIL LAW Bar Q - A 1996 2017 PDF
tions and Answers family Code. The requisites of a valid marriage under Article 41 are as
follows: 1) the prior spouse had been absent for four consecutive
years, except when the disappearance is in danger of death which only
(1996-2017)
requires two years; 2) the present spouse had a well-founded belief
that the absent spouse was already dead; and 3) the spouse present
must institute a summary proceeding for declaration of presumptive
death. There is nothing in the facts that suggest that Eli instituted a
summary proceeding for declaration of presumptive death of her previ-
Table of Contents
ous spouse and this cannot be presumed. Thus, the exception under
PERSONS AND FAMILY RELATIONS ...................1 Article 35(4) is inapplicable and the subsequent marriage is void.
ALTERNATIVE ANSWER
PROPERTY ..........................................................25 If the marriage was celebrated under the New Civil Code, the marriage
would be valid, as no declaration of presumptive death is necessary
LAND TITLES AND DEEDS ................................. 45
under Article 391 of the said Code.
SUCCESSION ......................................................52 (d) SUGGESTED ANSWERS
The marriage is valid as there were no facts showing that David and
CONFLICT OF LAWS ...........................................64 Elisa have properties and children, which would render the marriage
void under Article 53 of the Family Code in relation to Article 52. In
OBLIGATIONS AND CONTRACTS ......................67 addition, David and Lina have no impediment to marry.
ALTERNATIVE ANSWER
SALES ..................................................................77 If the spouses have properties and children, the marriage is void under
Article 53 of the Family Code in relation to Article 52. For a marriage
PARTNERSHIP AND AGENCY ............................86
subsequent to a judgment of annulment of a previous marriage to be
CREDIT TRANSACTIONS ...................................89 valid, the properties of the spouses must have been partitioned and
distributed, the presumptive legitimes of children, if any, must have
REAL AND CHATTEL MORTGAGE .....................93 been delivered, and the aforementioned facts must be recorded in the
civil registry and registries ·of property. The marriage was entered into
TORTS AND DAMAGES ......................................97 the day after the obtaining of a judicial decree of annulment and it
would have been impossible for David to comply with' the requirements
in such a short time. Therefore, the marriage is void.
PERSONS AND FAMILY RELATIONS (e) If Zoren and Carmina lived together as husband and wife for 10
years prior to their marriage, then the marriage is valid, despite the
State whether the following marital unions are valid, void, or absence of the marriage license. An exception to the rule that a mar-
voidable, and give the corresponding justifications for your an- riage shall be void if solemnized without license under Article 35(3) is
swer:
that provided for under Article 34 of the Family Code. When a man and
(a) Ador and Becky's marriage wherein Ador was afflicted with woman have lived together as husband and wife for at least S years
AIDS prior to the marriage. (2%) and without any legal impediment to marry each other, they may cele-
(b) Carlos' marriage to Dina which took place after Dina had poi- brate the marriage without securing a marriage license.
soned her previous husband Edu in order to free herself from any
impediment in order to live with Carlos. (2%) Danny and Elsa were married in 2002. In 2012, Elsa left the conju-
(c) Eli and Fely’s marriage solemnized seven years after the dis- gal home and her two minor children with Danny to live with her
appearance of Chona, Eli’s previous spouse, after the plane she
paramour. In 2015, Danny sold without Elsa's consent a parcel of
had boarded crash in the West Philippine Sea. (2%) land registered in his name that he had purchased prior to. the
(d) David who married Lina immediately the day after obtaining a marriage. Danny used the proceeds of the sale to pay for his chil-
judicial decree annulling his prior marriage to Elisa. (2%)
dren's tuition fees. Is the sale valid, void or voidable? Explain
(e) Marriage of Zoren and Carmina who did not secure a marriage your answer. (3%) ’17—Q9
license prior to their wedding, but lived together as husband and
wife for 10 years without any legal impediment to marry. (2%) ’17
The sale of the parcel of land is void. There is no indication in the facts
—Q1 that Danny and Elsa executed a marriage settlement prior to their mar-
riage. As the marriage was celebrated during the effectivity of the Fam-
(a) The marriage is voidable, because Ador was afflicted with a serious ily Code and absent a marriage settlement, the property regime be-
and incurable sexually-transmitted disease at the time of marriage. For tween the spouses is the Absolute Community of Property (Article 75,
a marriage to be annulled under Article 45(6), the sexually-transmissi- FC).
ble disuse must be: 1) existing at the time of marriage; 2) found to be Under the Absolute Community of Property regime, the parcel of land
serious and incurable; and 3) unknown to the other party. Since Ador belongs to the community property as the property he had brought into
was afflicted with AIDS, which is a serious and incurable disease, and the marriage even if said property were registered in the name of Dan-
the condition existed at the time of marriage, the marriage is voidable, ny (Article 91, FC). In addition, said property do not fall under any of
provided that such illness was not known to Becky.
the exceptions under Article 92. Therefore, the sale of the property is
(b) The marriage of Carlos to Dina is void for reasons or public policy. void, because it was executed without the authority of the court or the
Article 38(9) of the Family Code provides that marriage between par- written consent of the other spouse (Article 96, 100, FC).
ties where one, with the intention to marry the other, killed that other
!1
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Section 1 of P.D. No. 755 states: "Section 1. Declaration of Nation-
al Policy. - It is hereby declared that the policy of the State is to ALTERNATIVE ANSWER:
provide readily available credit facilities to the coconut farmers at
preferential rates; that this policy can be expeditiously and effi- The petition should not be granted. A divorce obtained abroad by an
ciently realized by the implementation of the 'Agreement for the alien may be recognized in our jurisdiction, provided such decree is
Acquisition of a Commercial Bank for the Benefit of the Coconut valid according to the national law of the foreigner. However, the di-
Farmers' executed by the Philippine Coconut Authority, the terms vorce decree and the governing personal law of the alien spouse who
of which' Agreement’ are hereby incorporated by reference; x x x" obtained the divorce must be proven. Our courts do not take judicial
notice of foreign laws and judgments; hence, like any other evidentiary
A copy of the Agreement was not attached to the Presidential facts, both the divorce decree and the national law of the alien must be
Decree. alleged and proven according to our law on evidence (Republic v. Or-
becido, 366 SCRA 437 (20011). In this case, no evidence was ad-
D. No. 755 was published in the Official Gazette but the text of the duced to prove the divorce between Romeo and Juliet and the validity
Agreement described in Section I was not published. Can the of the same under IJ.S. law.
Agreement in question be accorded the status of a law? Explain.
(5%) ’16 – Q1 Leo married Lina and they begot a son. After the birth of their
child, Lina exhibited unusual behavior and started to neglect her
No, the Agreement cannot be accorded the status of a law. A law must son; she frequently went out with her friends and gambled in
be published to become effective. Article 2 of the Civil Code provides casinos. Lina later had extra-marital affairs with several men and
that laws shall take effect after fifteen (15) days following the comple- eventually abandoned Leo and their son. Leo was able to talk to
tion of their publication in the Official Gazette, unless it is otherwise the psychiatrist of Lina who told him that Lina suffers from de-
provided. The publication must be of the full text of the law since the mentia praecox, a form of psychosis where the afflicted person is
purpose of publication is to inform the public of the contents of the law prone to commit homicidal attacks. Leo was once stabbed by
(Tanada v. Tuvera, 136 SCR A 27 {1985/). In Nagkakaisang Maralita v. Lina but fortunately he only suffered minor injuries. Will a Petition
Military Shrine Services (675 SCRA 359 [2013/), the Supreme Court for Declaration of Nullity of Marriage filed with the court prosper?
held that the addendum to the Proclamation issued by President Mar- Explain. (5%) ‘16 – Q4
cos has no force and effect considering that the same was not pub-
lished in the Official Gazette. Moreover, the Supreme Court in Co- No, a Petition for Declaration of Nullity of Marriage under Article 36 of
juangco, Jr. v. Republic 686 SCRA 472 {2012], which is on all fours the Family Code will not prosper. Even if taken as true, the grounds
with this case, ruled that while the Agreement was incorporated by alleged are not sufficient to declare the marriage void under “psycho-
reference, it was not reproduced or attached as an annex to the law logical incapacity”. In Santos v. CA (240 SCRA 20 [1995J), the
and therefore cannot be accorded to the status of a law. Publication of Supreme Court explained that psychological incapacity must be char-
the full text of the law is indispensable for its effectivity. acterized by (a) gravity, (b) juridical antecedence, and (c) incurability.
The illness must be shown as downright incapacity or inability to per-
Romeo and Juliet, both Filipinos, got married. After a few years, form one’s marital obligations, not a mere refusal, neglect, difficulty, or
Juliet got word from her mother that she can go to the United much less, ill will.
States for naturalization. Juliet promised she will be back the
moment she becomes an American. After sometime, Romeo While Lina was not examined by a physician, the Supreme Court has
learned from a friend that Juliet already became a US citizen and ruled in Marcos v. Marcos (343 SCRA 755 12000]) that actual medical
even divorced him to marry a wealthy American businessman. examination need not be resorted to where the totality of evidence
Romeo filed a petition before the Regional Trial Court praying that presented is enough to sustain a finding of psychological incapacity.
an order be issued authorizing him to remarry pursuant to Article However, in this case, the pieces of evidence presented are not suffi-
26 of the Family Code. Decide the petition with reasons. (5%) ’16 – cient to conclude that indeed Lina is suffering from psychological inca-
Q3 pacity existing already before the marriage, incurable and serious
enough to prevent her from performing her essential marital obliga-
If the time of Juliet’s acquisition of U.S. citizenship preceded the time tions.
when she obtained the divorce decree, then the divorce decree can be
given effect in the Philippines, and consequently, Romeo will be capac- ALTERNATIVE ANSWER:
itated to remarry under Philippine law. On the other hand, if Juliet ob-
tained the divorce decree before she acquired U.S. citizenship, then No, a Petition for Declaration of Nullity of Marriage under Article 36 of
the foreign divorce decree cannot be recognized by Philippine courts. the Family Code will not prosper. However, a Petition for Annulment of
Marriage under Article 45 of the Family Code may prosper, on the
Article 26, paragraph 2 of the Family Code provides that where a mar- ground of unsound mind, assuming that Lina’s unsound mind existed
riage between a Filipino citizen and a foreigner is validly celebrated at the time of the celebration of the marriage.
and a divorce is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have ca- Bernard and Dorothy lived together as common-law spouses al-
pacity to remarry under Philippine law. In Republic v. Orbecido (472 though they are both capacitated to marry. After one year of co-
SCRA 114 [2005])i the Supreme Court ruled that Article 26, paragraph habitation, Dorothy went abroad to work in Dubai as a hair stylist
2 should be interpreted to include cases involving parties who, at the and regularly sent money to Bernard. With the money, Bernard
time of the celebration of the marriage were Filipino citizens, but later bought a lot. For a good price, Bernard sold the lot. Dorothy came
on, one of them becomes naturalized as a foreign citizen and obtains a to know about the acquisition and sale of the lot and filed a suit to
divorce decree. The reckoning point is not their citizenship at the time nullify the sale because she did not give her consent to the sale.
of celebration of marriage, but their citizenship at the time the divorce
decree is obtained abroad by the alien spouse capacitating him/her to [a] Will Dorothy's suit prosper? Decide with reasons. (2.5%)
remarry
!2
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
[b] Suppose Dorothy was jobless and did not contribute money to without the requisite marriage license and is therefore void ab initio.
the acquisition of the lot and her efforts consisted mainly in the The absence of the marriage license was certified to by the local civil
care and maintenance of the family and household, is her consent registrar who is the official custodian of these documents and who is in
to the sale a prerequisite to its validity? Explain. (2.5%) ’16 – Q5 the best position to certify as to the existence of these records. Also,
there is a presumption of regularity in the performance of official duty
Yes, Dorothy’s suit will prosper, unless the buyer is a buyer in good (Republic v. CA and Castro, 236 SCRA 257 /1994/).
faith and for value. The rule of co-ownership governs the property rela-
tionship in a union without marriage between a man and a woman who [b] No, it is not required that a judicial petition be filed to declare the
are capacitated to marry each other. Article 147 of the Family Code is marriage null and void when said marriage was solemnized before the
specifically applicable. Under this article, neither party can encumber effectivity of the Family Code. As stated in the cases of People v. Men-
or dispose by acts inter vivos of his or her share in the property ac- doza, 95 Phil. 845 (1954/ and People v. Aragon, 100 Phil. 1033 (1957/^
quired during cohabitation and owned in common, without the consent the old rule is that where a marriage is illegal and void from its perfor-
of the other, until after the termination of their cohabitation, thus, mance, no judicial is necessary to establish its invalidity.
Bernard may not validly dispose of the lot without the consent of
Dorothy as the lot was acquired through their work during their cohabi- ALTERNATIVE ANSWER:
tation.
[b] Irrespective of when the marriage took place, other than for purpos-
[NOTE: It is suggested that some credit be given to examinees who es of remarriage, no judicial action is necessary to declare a marriage
reason that Article 147 does not apply became under the facts given, an absolute nullity. For other purposes, such as but not limited to de-
Dorothy and Bernard were not living together as husband and wife]. termination of heirship, legitimacy or illegitimacy of a child, settlement
of estate, dissolution of property regime, or a criminal case for that
[b] Yes, if Dorothy was jobless and did not contribute money to the matter, the court may pass upon the validity of marriage even in a suit
acquisition of the lot, her consent is still a prerequisite to the validity of not directly instituted to question the same so long as it is essential to
the sale. Under the same article, a party who did not participate in the the determination of the case. This is without prejudice to any issue
acquisition by the other party of any property shall be deemed to have that may arise in the case. When such need arises, a final judgment of
contributed jointly in the acquisition thereof if the former’s efforts con- declaration of nullity is necessary even if the purpose is other than to
sisted in the care and maintenance of the family and the household. In remarry. The clause on the basis of a final judgment declaring such
this case, although the money used to buy the lot was solely from previous marriage void in Article 40 of the Family Code connotes that
Bernard, Dorothy’s care and maintenance of the family and household such final judgment need to be obtained only for purpose of remarriage
are deemed contributions in the acquisition of the lot. Article 147, 2nd (Ablaza v. Republic, 628 SCRA 27 120101).
paragraph is applicable, as the lot is deemed owned in common by the
common-law spouses in equal shares as the same was acquired dur- Marco and Gina were married in 1989. Ten years later, or in 1999,
ing their cohabitation, without prejudice to the rights of a buyer in good Gina left Marco and lived with another man, leaving their two chil-
faith and for value. dren of school age with Marco. When Marco needed money for
their children’s education he sold a parcel of land registered in
Brad and Angelina had a secret marriage before a pastor whose his name, without Gina’s consent, which he purchased before his
office is located in Arroeeros Street, City of Manila. They paid marriage. Is the sale by Marco valid, void or voidable? Explain
money to the pastor who took care of all the documentation. with legal basis. (4%) ‘15 - Q2
When Angelina wanted to go to the U.S., she found out that there
was no marriage license issued to them before their marriage. The sale is void. The marriage was celebrated during the effectivity of
Since their marriage was solemnized in 1995 after the effectivity the Family Code. In the absence of a marriage settlement, the property
of the Family Code, Angelina tiled a petition for judicial declara- relations between the spouses is governed by absolute community of
tion of nullity on the strength of a certification by the Civil Regis- property, whereby all the properties owned by the spouses at the time
trar of Manila that, after a diligent and exhaustive search, the al- of the celebration of the marriage, as well as whatever they may ac-
leged marriage license indicated in the marriage certificate does quire during the marriage, shall form part of the community property, as
not appear in the records and cannot be found. a rule (Art. 91, Family Code). The parcel of land sold is part of the
community property as Marco owned it before the marriage. In an ab-
[a] Decide the case and explain. (2.5%) solute community of property regime, the administration and enjoyment
[b] In ease the marriage was solemnized in 1980 before the effec- shall belong to both spouses jointly (Art. 96, Family Code). Neither
tivity of the Family Code, is it required that a judicial petition be spouse may dispose or encumber common properties without the au-
tiled to declare the marriage null and void? Explain. (2.5%) ’16 – thority of the court or the written consent of the other spouse, and in
Q19 the absence of such authority or consent, the disposition or encum-
brance shall be void (Art. 96, Family Code). Despite separation de
[a] I will grant the petition for judicial declaration of nullity of Brad and facto for more than 10 years, Gina remains Marco’s spouse, and her
Angelina’s marriage on the ground that there is a lack of a marriage consent is still required for the sale to be valid. Since Marco sold the lot
license. Article 3 of the Family Code provides that one of the formal without Gina’s consent, the sale is void.
requisites of marriage is a valid marriage license and Article 4 of the
same Code states that absence of any of the essential or formal requi- Julie had a relationship with a married man who had legitimate
sites shall render the marriage void ah initio. In Abbas v. Abbas, (689 children. A son was born out of that illicit relationship in 1981.
SCRA 646 12013/), the Supreme Court declared the marriage as void Although the putative father did not recognize the child in his
ah initio because there is proof of lack of record of marriage license. certificate of birth, he nevertheless provided the child with all the
The certification by the Civil Registrar of Manila that, after a diligent support he needed and spent time regularly with the child and his
and exhaustive search, the alleged marriage license indicated in the mother. When the man died in 2000, the child was already 18
marriage certificate does not appear in the records and cannot be years old so he filed a petition to be recognized as an illegitimate
found proves that the marriage of Brad and Angelina was solemnized child of the putative father and sought to be given a share in his
!3
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
putative father’s estate. The legitimate family opposed, saying
that under the Family Code his action cannot prosper because he No, Bert and Joe could not have jointly adopted the boy. Under the
did not bring the action for recognition during the lifetime of his Domestic Adoption Act, joint adoption is permitted, and in certain cases
putative father. mandated, for spouses. In this case, Bert and Joe are not spouses.
a) If you were the judge in this case, how would you rule? Mrs. L was married to a ship captain who worked for an in-
(4%) ‘15 - Q3a ternational maritime vessel, for her and her family’s support, she
would claim monthly allotments form her husband’s company.
I would rule against the illegitimate child. The action for recognition as One day, while en route from Hong Kong to Manila, the vessel
an illegitimate child based on the open and continuous possession of manned by Captain L encountered a severe typhoon at sea. The
the status of an illegitimate child may be brought during the lifetime of captain was able to send radio messages of distress to the head
the alleged parent (Art. 175, Family Code). Since the putative father office until all communications were lost. In the weeks that fol-
has already died, the action for recognition based on such ground, as lowed, the search operations yielded debris of the lost ship but
indicated by the support and regular spending of time with the child the bodies of the crew and the passengers were not recovered.
and mother, cannot prosper. The insurance company thereafter paid out the death benefits to
all the heirs of the passengers and crew. Mrs. L filed a complaint
b) Wishing to keep the peace, the child during the penden- demanding that her monthly allotments continue for the next four
cy of the case decides to compromise with his putative years until her husband may be legally presumed dead because
father’s family by abandoning his petition in exchange of his absence. If you were the magistrate, how would you rule?
for 1/2 of what he would have received as inheritance if (3%) ‘15 - Q5
he were recognized as an illegitimate child. As the
judge, would you approve such a compromise? (2%) ‘15 I would rule against Mrs. L. When a person disappears under circum-
- Q3b stances involving danger of death as enumerated in Article 391 of the
Civil Code, the death of the person is presumed to have taken place at
I would not approve the compromise. The compromise involved herein the beginning of the four year period provided in said article. In this
is a compromise of the civil status of the child, which is prohibited un- case, Captain L disappeared while on board a vessel lost during a sea
der Art. 2035 of the Civil Code. voyage, and thus is presumed dead when the vessel was lost at sea.
Hence, Mrs. L is not entitled to the monthly allotments for the next four
ALTERNATIVE ANSWER years.
I would approve the compromise. The subject matter of the compro- ALTERNATIVE ANSWER
mise between the parties is abandonment of the petition or the end of
the litigation between the parties, not the child’s civil status; there I would rule in favor of Mrs. L: A person missing under the circum-
would be no ruling as to civil status of the child. Hence, the prohibition stances as those of Captain L may not be legally considered as dead
against compromise of the civil status of persons in Art. 2035 of the until the lapse of the period fixed by law on presumption of death. To
Civil Code does not apply allow the argument that Captain L's death should be considered on the
very day of the occurrence of the event from which death is presumed
Bert and Joe, both male and single, lived together as common law would mean that no claim for death compensation benefits would ever
spouses and agreed to raise a son of Bert’s living brother as their prosper, since the heirs of a missing seaman have to wait for four
child without legally adopting him. Bert worked while Joe took years under Art. 391 before the seaman may be declared legally dead,
care of their home and the boy. In their 20 years of cohabitation and after four years, the prescriptive period for filing money claims
they were able to acquire real estate assets registered in their would lapse. (Pantollano vs. Korphil, G.R. 169575, March 30, 2011).
names as co-owners. Unfortunately, Bert dies of cardiac arrest,
leaving no will. Bert was survived by his biological siblings, Joe, Kardo met Glenda as a young lieutenant and after a whirlwind
and the boy. courtship, they were married. In the early part of his military ca-
reer, Kardo was assigned to different places all over the country
a) Can Article 147 on co-ownership apply to Bert and Joe, but Glenda refused to accompany him as she preferred to live in
whereby all properties they acquired will be presumed her hometown. They did not live together until the 12th year of
to have been acquired by their joint industry and shall their marriage when Kardo had risen up the ranks and was given
be owned by them in equal shares? (2%) ‘15 - Q4a his own command. They moved to living quarters in Fort Grego-
rio. One day, while Kardo was away on official business, one of
No, Article 147 of the Family Code is not applicable to the case of Bert his military aides caught Glenda having sex with the corporal
and Joe. Article 147 applies only when a “man and a woman, who are assigned as Kardo’s driver. The aide immediately reported the
capacitated to marry each other, live exclusively with each other as matter to Kardo who rushed home to confront his wife. Glenda
husband and wife without the benefit of marriage or under a void mar- readily admitted the affair and Kardo went her away in anger. Kar-
riage”. In this case, Bert and Joe are both men; they are also incapaci- do would later come to know the true extent of Glenda’s unfaith-
tated from marrying each other since in this jurisdiction, marriage may fulness from his aides, his household staff, and former neighbors
only take place between a man and a woman (Arts. 1 and 2, Family who informed him that Glenda has had intimate relations with
Code). various men throughout their marriage whenever Kardo was away
on assignment.
c) If Bert and Joe had decided in the early years of their Kardo filed a petition for declaration of nullity of marriage under
cohabitation to jointly adopt the boy, would they have Article 36. Based on interviews from Kardo, his aide, and the
been legally allowed to do so? Explain with legal basis? housekeeper, a psychologist testified that Glenda’s habitual infi-
(3%) ‘15- Q4c delity was due to her affliction with Histrionic Personality disor-
!4
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
der, an illness characterized by excessive emotionalism and un- one of its bank supervisors, although he was short of twelve (12)
controllable attention-seeking behaviour rooted in Glenda’s units to finish his Masters of Business Administration (MBA) de-
abandonment as a child by her father. Kardo himself, his aide, gree.
and his housekeeper also testified in court. The RTC granted the
petition, relying on the liberality espoused by Te v. Te and Azcue- Ariz became envious of the success of his wife. He started drink-
ta v. Republic. However, the OSG filed an appeal, arguing that ing alcohol until he became a drunkard. He preferred to join his
sexual infidelity was only a ground for legal separation and that barkadas; became a wife-beater; would hurt his children without
the RTC failed to abide by the guidelines laid down in the Molina any reason; and failed to contribute to the needs of the family.
case. How would you decide the appeal? (5%) ‘15 - Q6 Despite rehabilitation and consultation with a psychiatrist, his
ways did not change.
I would dismiss the appeal if the incapacity is incurable and so grave
as to prevent Glenda from performing her essential marital obligations. After 19 years of marriage, Paz, a devout Catholic, decided to
For the Histrionic Personality Disorder to be a ground for declaration of have their marriage annulled by the church. Through the testimo-
nullity of marriage under Article 36 of the Family Code, it must be char- ny of Paz and a psychiatrist, it was found that Ariz was a spoiled
acterized by (1) gravity; (2) juridical antecedence; and (3) incurability. brat in his youth, and was sometimes involved in brawls. In his
teens, he was once referred to a psychiatrist for treatment due to
The sexual infidelity in this case was not the ground for the declaration his violent tendencies. In due time, the National Appellate Matri-
of the nullity of the marriage , but merely the manifestation of Glenda’s monial Tribunal (NAMT) annulled to the union of Ariz and Paz due
incapacity to comply with her obligation to Kardo as a spouse, and her to the failure of Ariz to perform and fulfill his duties as a husband
inability to accord respect to the sanctity of their marriage, satisfying and as a father to their children. The NAMT concluded that it is for
the requisite of gravity. There was juridical antecedence since the psy- the best interest of Paz, Ariz, and their children to have the mar-
chologist testified that the incapacity already existed at the time of the riage annulled.
marriage, as it was rooted in Glenda’s abandonment as a child by her
father. The fact that Glenda was not personally examined is immaterial. In view of the NAMT decision, Paz decided to file a Petition for
As held by the Supreme Court, “there is no requirement that the re- Declaration of Nullity of Marriage of their civil wedding before the
spondent spouse be personally examined by a physician or psycholo- Regional Trial Court of Makati City using the NAMT decision and
gist as a condition sine qua non for the declaration of nullity of mar- the same evidence adduced in the church annulment proceedings
riage based on psychological incapacity. What matters is where the as a basis (5%).
totality of evidence presented in adequate to sustain a finding of psy-
chological incapacity.” (Marcos v. Marcos, G.R. 136490, Oct. 19, If you are the judge, will you grant the petition? Explain. ‘14 - Q1
2000). Moreover, it has been held by the Supreme Court that the Moli-
na doctrine should not be rigidly or strictly applied. Molina is not set in No, I will not grant the petition for declaration nullity of marriage.
stone and the interpretation of Article 36 must rely on a case-to-case
basis (Antonio vs. Keyes, G.R. 155800, March 10, 2006). In Republic v Molina (G.R. No. 1098763, February 13, 1997), the
Supreme Court ruled that while the interpretations given by the Nation-
ALTERNATIVE ANSWER al Appellate Matrimonial Tribunal (NAMT) of the Catholic Church in the
Philippines should be given great respect by our courts, they are not
I would grant the appeal. First, there was no showing that the incapaci- controlling or decisive. Its interpretation is not conclusive on the courts.
ty is incurable or that it was so grave that she could not perform her The courts are still required to make their own determination as to the
essential marital obligations. Also, as held in the case of Ochosa v. merits of the case, and not rely solely on the finding of the NAMT.
Olano, there was insufficient evidence that Glenda’s defects were al-
ready present at the inception of, or prior to, the marriage; her alleged It has been held that psychological incapacity as a ground for nullifying
psychological incapacity did not satisfy the jurisprudential requisite of a marriage is confined to the most serious cases of personality disor-
juridical antecedence, as laid down in Republic v. CA and Molina, G.R. ders clearly demonstrative of an utter insensitivity or inability to give
108763, Feb. 13, 1997. It was not shown how the psychologist arrived meaning and significance to marriage. The three essential requisites in
at the conclusion that Glenda's habitual infidelity was due to her afflic- order for psychological incapacity to be appreciated are: 1) gravity, 2)
tion with Histrionic Personality Disorder. It is possible that the psychol- judicial antecedence, and 3) incurability. In the present case, there was
ogist evaluated her condition only indirectly, from information gathered no showing that the psychological incapacity was existing at the time of
from Kardo and his witnesses, which evokes the possibility that the the celebration of the marriage.
information was biased in favor of Kardo’s cause. Although the
Supreme Court has held that personal examination of a party alleged Miko and Dinah started to live together as husband and wife with-
to be psychologically incapacitated is not a mandatory requirement out the benefit of marriage in 1984. Ten (10) years after, they sepa-
(Marcos v. Marcos, G.R. 136490, Oct. 19, 2000), it has also ruled that rated. In 1995, they decided to live together again, and in 1998,
to make conclusions and generalizations on a spouse’s psychological they got married.
condition based on the information fed by only one side, similar to the
case at bar, is not different from admitting hearsay evidence as proof of On February 17, 2001, Dinah filed a complaint for declaration of
the truthfulness of the content of such evidence (Padilla-Rumbaua v. nullity of her marriage with Miko on the ground of psychological
Rumbaua, 596 SCRA 157 [2009]). Mere sexual infidelity is not itself a incapacity under Article 36 of the Family Code. The court ren-
ground for dissolution of marriage under Article 36, even if habitual; at dered the following decision:
most, it can only be a ground for legal separation. 1. Declaring the marriage null and void;
2. Dissolving the regime of absolute community
Ariz and Paz were officemates at Perlas ng Silangan Bank (PSB). of property; and
They fell in love with each other and had a civil and church wed- 3. Declaring that a decree of absolute nullity of
ding. Meanwhile, paz rapidly climbed the corporate ladder of PSB marriage shall only be issued liquidation, parti-
and eventually became its Vice-President, while Ariz remained
!5
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
tion and distribution of the parties’ properties National Statistics Office (NSO) to file a petition for judicial
under Article 147 of the Family Code. recognition of the decree of divorce in the Philippines.
Dinah filed a motion for partial reconsideration questioning the Is it necessary for Ted to file a petition for judicial recognition of
portion of the decision on the issuance of a decree of nullity of the decree of divorce he obtained in Canada before he can con-
marriage only after the liquidation, partition and distribution of tract a second marriage in the Philippines? [4%] ‘14 - Q24
properties under Article 147 of the Code. If you are the judge, how
will you decide petitioner’s motion for partial reconsideration? No, it is not necessary for Ted to file a petition for judicial recognition of
Why? (4%) ‘14 - Q6 the decree of divorce he obtained in Canada before he can contract a
second marriage in the Philippines. Ted, who is already a foreigner
I will grant the motion of partial reconsideration. Section 19 (1) of the being a naturalized Canadian citizen, will be required to submit a cer-
Rule on Declaration of Absolute Nullity of Null Marriages and Annul- tificate of legal capacity to contract marriage issued by the proper
ment of Voidable Marriages, which require that the decree of nullity of diplomatic or consular officials to obtain a marriage license.
marriage be issued only after the liquidation, partition, and distribution
of properties, does not apply to declarations of nullity based on Art. 36 Mario, executed his last will and testament where he acknowl-
of the Family Code. The said rule only applies if there was a second edges the child being conceived by his live-in partner Josie as his
marriage which is void because of non-compliance with the require- own child; and that his house and lot in Baguio City be given to
ments of Article 40 of the Family Code. In the case of Dino v Dino his unborn conceived child. Are the acknowledgement and the
(G.R. No. 178044, January 19, 2011), the Court held that Sec. 19 (1) donation mortis causa valid? Why? [4%] ‘14 - Q25
only applies to Family Code, Articles 50 and 51, which are, subse-
quently applicable only to marriages which are declared void ab initio The acknowledgement of the unborn child is effective because a will
or annulled by final judgment under Articles 50 and 45 of the Family may still constitute a document which obtains an admission of illegiti-
Code. Since there is no previous marriage in this case and the mar- mate filiation. The donation to the conceived child is also valid provided
riage was nullified under Article 36 of the Family Code, Section 19 (1) that the child is born later on and that it comply with the formalities
of the said Rules does not apply. required of a will (Article 728, Civil Code). A fetus has a presumptive
personality for all purpose favorable to it provided it be born under the
On March 30, 2000, Mariano died intestate and was survived by conditions specified in Article 41. However, there has to be compliance
his wife, Leonora, and children, Danilo and Carlito. One of the with the formal requisite s for a valid last will and testament.
properties he left was a piece of land in Alabang where he built
his residential house. After his burial, Leonora and Mariano’s Spouses Esteban and Maria decided to raise their two (2) nieces,
children extrajudicially settled his estate. Thereafter, leonora and Faith and Hope, both
Danilo advised Carlito of their intention to partition the property. minors, as their own children after the parents of the minors died
Carlito opposed invoking Article 159 of the Family Code. Carlito in a vehicular accident.
alleged that since his minor child Lucas still resides in the
premises, the family home continues until that minor beneficiary Ten (10) years after, Esteban died. Maria later on married her boss
becomes of age. Daniel, a British national who had been living in the Philippines
for two (2) years.
Is the contention of Carlito tenable? (4%) ‘14 - Q17
With the permission of Daniel, Maria filed for petition for adoption
No, the contention of Carlito is not tenable. In the case of Patricio v. of Faith and Hope. She did not include Daniel as her co-petitioner
Dario (G.R. No. 170829, November 20, 2006), it was provided that to because for Maria, it was her former husband Esteban who raised
be a beneficiary of a family home three requisites must concur: (1) they the kids.
must be among the relationships enumerated in Article 154 of the Fam-
ily code; (2) they live in the family home, and (3) they are dependent If you are the judge, how will you resolve the petition? [4%] ‘14 -
for legal support upon the head of the family. In the said case, the par- Q28
tition of a family home is allowed despite the objection on the ground
that a minor grandchild still resides in the premises. Although the first I will deny the petition for adoption. According to R.A. 8552 or the Do-
two requisites are present in this case, the third is lacking because mestic Adoption Act of 1998, a husband and wife must jointly adopt
Lucas, the grandchild, is not dependent for legal support upon his except in the following cases: 1) If one spouse seeks to adopt the legit-
grandparents which is the head of the family who constituted the family imate child of the other; 2) If one spouse seeks to adopt his/her own
home in the case. Lucas still has parents who are legally obliged to illegitimate child, provided that the other spouse signified their consent
support him. Thus, he cannot be deemed as dependent for legal sup- thereto; or 3) If the spouse s are legally separated from each other.
port upon the head of the family, who is Mariano.
In this case, since Daniel and Maria do not fall under any of the excep-
Ted, married to Annie, went to Canada to work. Five (5) years lat- tions enumerated above, they must jointly adopt as required by law.
er. Ted became a naturalized Canadian citizen. He returned to the
Philippines to convince Annie to settle in Canada. Unfortunately, You are a Family Court judge and before you is a Petition for the
Ted discovered that Annie and his friend Louie were having an Declaration of Nullity of Marriage (under Article 36 of the Family
affair. Deeply hurt, Ted returned to Canada and filed a petition for Code) file by Maria against Neil. Maria claims that Neil is psycho-
divorce which is granted. In December 2013, Ted decided to marry logically incapacitated to comply with the essential obligations of
his childhood friend Corazon in the Philippines. In preparation for marriage because Neil is a drunkard, a womanizer, a gambler, and
the wedding, Ted went to the the Local Civil Registry of Quezon a Mama’s boy - traits that she never knew or saw when Neil was
City where his marriage contract with Annie was registered. He courting her. Although summoned, Neil did not answer Maria’s
asked the Civil Registry to annotate the decree of divorce on his petition and never appeared in court.
marriage contract with Annie. However, he was advised by the
!6
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
To support her petition, Maria presented three witnesses - Dr. Elsi vorable to the fetus, the donation did not take effect because the fetus
Chan, Ambrosia and herself. Dr. Chan testified on the psychologi- was not born in accordance with the NCC.
cal report on Neil that she prepared. Since Neil never acknowl-
edged nor responded to her invitation for interviews, her report is To be considered born, the fetus that had an intra-uterine life of less
solely based on her interviews with Maria and the spouses’ minor than seven (7) months should live for 24 hours from its complete deliv-
children. Dr. Chan concluded that Neil is suffering from Narcissis- ery from the mother’s womb. Since Angela had an intra-uterine life of
tic Personality Disorder, an ailment that she found to be already less than 7 months but did not live for 24 hours, she was not consid-
present since Neil’s early adulthood and one that is grave and ered born and, therefore, did not become a person. Not being a per-
incurable. Maria testified on the specific instances when she son, she had no juridical capacity to be a donee, hence, the donation
found Neil drunk, with another woman, or squandering the fami- to her did not take effect. The donation not being effective, the amount
ly’s resources in a casino. Ambrosia, the spouses’ current house- donated may be recovered. To retain it will be unjust enrichment.
hold help, corroborated Maria’s testimony.
b) The petitioner filed a petition for declaration of nullity of
On the basis of the evidence presented, will you grant the peti- marriage based allegedly on the psychological incapaci-
tion? (8%) ‘13 - Q1 ty of the respondent, but the psychologist was not able
to personally examine the respondent and the psycho-
No. The petition should be denied. logical report was based only on the narration of peti-
tioner. Should the annulment be granted? Explain. (5%)
The psychological incapacity under Article 36 of the Family Code must ‘12 - Q2b
be characterized by (a) gravity, (b) juridical antecedence, and (c) incur-
ability. It is not enough to prove that the parties failed to meet their The annulment cannot be granted solely on the basis of the psycho-
responsibilities and duties as married persons; it is essential that they logical report. For the report to prove the psychological incapacity of
must be shown to be incapable of doing so, due to some psychological the respondent, it is required that the psychologist should personally
(not physical) illness (Republic v. CA and Molina, G.R. No. 108763, examine the respondent and the psychological report should be based
February 13, 1997). on the psychologist’s independent assessment of the facts as to
whether or not the respondent is psychologically incapacitated.
In this case, the pieces of evidence presented are not sufficient to
conclude that indeed Neil is suffering from a psychological incapacity Since, the psychologist did not personally examine the respondent,
(Narcissistic Personality Disorder) existing already before the mar- and his report is based solely on the story of petitioner who has an
riage, incurable and serious enough to prevent Neil from performing interest in the outcome of the petition, the marriage cannot be annulled
his essential marital obligations. on the ground of respondent’s psychological incapacity if the said re-
port i the only evidence of respondent’s psychological incapacity.
Dr. Chan’s report contains mere conclusions. Being a drunkard, a
womanizer, a gambler and a Mama’s boy merely shows Neil’s failure to a) Maria, wife of Pedro, withdrew P 5 Million from their
perform his marital obligations. In a number of cases, the Supreme conjugal funds. With this money, she constructed a
Court did not find the existence of psychological incapacity in cases building on a lot which she inherited from her father. Is
where the respondents showed habitual drunkenness (Republic v. the building conjugal or paraphernal? Reasons. (5%) ‘12
Melgar, G.R. No. 139676, March 31, 2006), blatant display of infidelity - Q3a
and irresponsibility (Dedel v. CA, January 29, 2004), or being hooked
to gambling and drugs (Republic v. Tanyag-San Jose, G.R. No. It depends. If the value of the building is more than the value of the
168328, February 28, 2007). land, the building is conjugal and the land becomes conjugal property
under Article 120 of the Family Code. this is a case of reverse acces-
ALTERNATIVE ANSWER sion, where the building is considered as the principal and the land, the
accessory. If, on the other hand, the value of the land is more than the
Yes. The petition should be granted. value of the building, then the ordinary rule of accession applies where
the land is the principal and the building, the accessory. In such case,
The personal medical or psychological examination of respondent is the land remains paraphernal property and the building becomes para-
not a requirement for a declaration of psychological incapacity. It is the phernal property.
totality of the evidence presented which shall determine the existence
of psychological incapacity (Marcos v. Marcos, G.R. No. 136490, Oc- (NOTE: The rule on reverse accession is applicable only to the regime
tober 19, 2000). Dr. Chan’s report, corroborated by Maria’s and Am- of Conjugal Partnership of Gainss in both the Family Code and the
brosia’s testimony, therefore, sufficiently proven Neil’s psychological New Civil Code. The foregoing answer assumes that CPG is the
incapacity to assume his marital obligations. regime of the property relations of the spouses.)
b) Ricky donated P 1 Million to the unborn child of his b) Cipriano and Lady Miros married each other. Lady Miros
pregnant girlfriend, which she accepted. After six (6) then left for the US and there, she obtained American
months of pregnancy, the fetus was born and baptized citizenship. Cipriano later learned all about this includ-
as Angela. However, Angela died 20 hours after birth. ing the fact that Lady Miros has divorced him in America
Ricky sought to recover the P 1 Million. Is Ricky entitled and that she had remarried there. He then filed a petition
to recover? Explain. (5%) ‘12 - Q1b for authority to remarry, invoking Par. 2, Art. 26 of the
Family Code. Is Cipriano capacitated to re-marry by
Yes, Ricky is entitled to recover the P1 Million. The NCC considers a virtue of the divorce decree obtained by his Filipino
fetus a person for purposes favorable to it provided it is born later in spouse who was later naturalized as an American citi-
accordance with the provisions of the NCC. While the donation is fa- zen? Explain. (5%) ‘12 - Q3b
!7
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Yes, he is capacitated to marry. While the second paragraph of Article new husband. Monina, in a Motion for Reconsideration
26 of the Family Code is applicable only to a Filipino who married a argues that mere consent of her husband would suffice
foreigner at the time of the marriage, the Supreme Court ruled in the and that joint adoption is not needed, for the adoptees
case of Republic v. Orbecido GR No. 154i380, 5 Ovtober 2005, that are already emancipated.
the said provision equally applies to a Filipino who married another
Filipino, at the time of the marriage, but who was already a foreigner Is the trial court correct in dismissing the petitions for
when the divorce was obtained. adoption? Explain. (5%) ‘12- Q5a
a) After they got married, Nikki discovered that Christian Yes, the trial court was correct. At the time the petitions for adoptions
was having an affair with another woman. But Nikki de- were filed, petitioner had already remarried. Under the law, husband
cided to give it a try and lived with him for two (2) years. and wife shall adopt jointly , except in the cases enumerated in the law.
After two (2) years, Nikki filed an action for legal separa- The adoption cases of Michelle and James do not fall in any of the
tion on the ground of Christian’s sexual infidelity. Will exceptions provided in the law where a spouse is permitted to adopt
the action prosper? Explain. (5%) ‘12 - Q4a alone. Hance, Monina should adopt jointly with her husband Angel.
(Adoption of Michelle P. Lim, GR Nos. 168992-93, May 21, 2009).
Although the action for legal separation has not yet prescribed, the
prescriptive period being five years, if Christian’s affair with another b) Jambrich, an Austrian, fell in-love and lived together
woman was ended when Nikki decided to live with him again, Nikki’s with Descallar and bought their houses and lots at Agro-
action will not prosper because the action will surely be within five (5) Macro Subdivision. In the Contracts to Sell, Jambrich
years from the commission of the latest act of sexual infidelity. Every and Descallar were referred to as the buyers. When the
act of sexual liaison is a ground for legal separation. Deed of Absolute Sale was presented for registration
before the Register of Deeds, it was refused because
b) Honorato filed a petition to adopt his minor illegitimate Jambrich was an alien and could not acquire alienable
child Stephanie, alleging that Stephanie’s mother is lands of the public domain. After Jambrich and
Gemma Astorga Garcia; that Stephanie has been using Descallar separated, Jambrich purchased an engine and
her mother’s middle name and surname; and that he is some accessories for his boat from Borromeo. To pay
now a widower and qualified to be her adopting parent. for his debt, he sold his rights and interests in the Agro-
He prayed that Stephanie’s middle name be changed Macro properties to Borromeo.
from "Astorga" to "Garcia," which is her mother’s sur-
name and that her surname "Garcia" be changed to Borromeo discovered that titles to the three (3) lots have
"Catindig," which is his surname. This the trial court been transferred in the name of Descallar. Who is the
denied. Was the trial court correct in denying Hororato’s rightful owner of the properties? Explain. (5%) ‘12- Q5b
request for Stephanie’s use of her mother’s surname as
her middle name? Explain. (5%) ‘12 - Q4b It depends. On the assumption that the Family Code is the applicable
law, the ownership of the properties depends on whether or not Jam-
No, the trial court was not correct. There is no law prohibiting an illegit- brich and Descallar are capacitated to marry each other during their
imate child adopted by his natural father to use as middle name his cohabitation, and whether or not both have contributed funds for the
mother’s surname. The law is silent as to what middle name an acquisition of the properties.
adoptee may use. In the case of In re: Adoption of Stephanie Nathy
Astorga Garcia, GR No. 148311, March 31, 2005, the Supreme Court If both of the were capacitated to marry each other, Article 147 on Co-
ruled that the adopted child may use the surname of the natural mother ownership will apply to their property relations and and the properties
as his middle name because there is no prohibition in the law against in question are owned by them in equal shares even though all the
it. Moreover, it will also be for the benefit of the adopted child who shall funds used in acquiring the properties came only from the salaries or
preserve his lineage on his mother’s side and reinforce his right to wages, or the income of Jambrich from his business or profession. In
inherit from his mother and her family. Lastly, it will make the adopted such a case, while Jambrich is disqualified to own any part of the
child conform with the time-honored Filipino tradition of carrying the properties, his subsequent transfer of all his interest therein to Bor-
mother’s surname as the person’s middle name. romeo, a Filipino, was valid as it removed the disqualification. In such
case, the properties are owned by Borromeo and Descallar in equal
a) Spouses Primo and Monina Lim, childless, were en- shares
trusted with the custody of two (2) minor children, the
parents of whom were unknown. Eager of having chil- If, on the other hand, Jambrich and Descallar were not capacitated to
dren of their own, the spouses made it appear that they marry each other, Article 148 on Co-ownership governs their property
were the children’s parents by naming them Michelle P. relations. Under this regime, Jambrich and Descallar are co-owners of
Lim and Michael Jude Lim. Subsequently, Monina mar- the properties but only if both of them contributed in their acquisition. If
ried Angel Olario after Primo’s death. all the funds used in acquiring the properties in question came from
Jambrich, the entire property is his even though he is disqualified from
She decided to adopt the children by availing the owning it. His subsequent transfer to Borromeo, however, is walid as it
amnesty given under R.A. 8552 to those individuals who removed the disqualification. In such case, all of the properties are
simulated the birth of a child. She filed separate peti- owned by Borromeo. If, on the other hand, Descallar contributed to
tions for the adoption of Michelle, then 25 years old and their acquisition, the properties are co-owned by Descallar and Bor-
Michael, 18. Both Michelle and Michael gave consent to romeo in proportion to the respective contributions of Descallar and
the adoption. Jambrich.
!8
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
(NOTE: The facts of the problem are not exactly the same as in the tion of nullity of their marriage is what terminates the right of G to be
case of Borromeo vs. Descallar, GR No. 159310, February 24, 2000, supported by B as his spouse.
hence, the difference in the resulting answer)
Whether or not the two children can still ask support from B after
they had squandered the fund to answer for their educational
b) A petition for declaration of nullity of a void marriage expenses before they could obtain their college decrees. ’10 –
can only be filed by either the husband or the wife? Do Q5b
you agree? Explain your answer. (5%) ‘12- Q9b
YES, the two children can still ask for support for schooling or
Yes, I agree. Under the Rules promulgated by the Supreme Court, a training for some profession, trade or vocation, even beyond the age of
direct action for declaration of nullity may be filed by any of the spous- majority until they shall have finished or completed their education
(Article 194, Paragraph 2, Family Code; Javier v. Lucero, 94 Phil. 634
es.
[1954].) Their having squandered the money given to them for their
education will not deprive them of their right to complete an education,
ALTERNATIVE ANSWER: or to extinguish the obligation of the parents to ensure the future of
their children.
No, I do not agree. There are others who may file a petition for declara-
tion of nullity such as the other spouse in bigamous marriages. Gigolo entered into an agreement with Majorette for her to carry
in her womb in vitro fertilization in which he would thereafter pay
her P2 million and, in return, she would give custody of the baby
Under Article 26 of the Family Code, when a foreign spouse di-
to him. Majorette gives birth and delivers the baby to Gigolo fol-
vorces his/her Filipino spouse, the latter may not remarry by
lowing her receipt of the P2 million.
proving only that the foreign spouse has obtained a divorce
Remedy to regain custody; Whether or not Gigolo can demand
against her or him abroad. ’10 – Q1a
from Majorette the return of the money if her returns the money;
Who will exercise parental authority; Will the child be entitled to
In Garcia v. Garcia-Recio, 366 SCRA 437 [2001], the SC held that
support and inheritance from Gigolo. ’10 – Q6
for a Filipino spouse to have capacity to contract a subsequent mar-
riage, it must also be proven that the foreign divorce obtained by the
As her lawyer, I can file a petition for habeas corpus on behalf of
foreigner spouse gives such foreigner spouse capacity to remarry.
Majorette to recover custody of her child. Since she is the mother of
the child that was born out of wedlock, she has exclusive parental
Spouses B and G begot two offsprings. B begot a son by another
authority and custody over the child. Gigolo, therefore, has no right to
woman. G also begot a daughter by another woman.
have custody of the child and his refusal to give up custody will consti-
If G gives the surname of B to her daughter by another man, what
tute illegal detention for which habeas corpus is the proper remedy.
B can do to protect their legitimate children’s interests? ’10 – Q4a
Gigolo cannot recover the P2 million. Both he can Majorette are
guilty of violating the provision of the Anti-Child Abuse Law (R.A. No.
B can impugn the status of G’s daughter by another man as his
7610) on child trafficking. Being in pari delicto, the parties shall be left
legitimate daughter on the ground that for biological reason he could
where they are and Gigolo cannot recover the return of what he paid.
not have been the father of the child, a fact that may be proved by a
Majorette, the mother, can exercise parental authority. Since the
DNA test. Having been born during the marriage between B and G, G’s
child was born out of wedlock, the child is illegitimate and the mother
daughter by another man is presumed to be the child of B under Article
has the exclusive parental authority and custody over the child.
164 of the Family Code. In the same action to impugn, B can pray for
If Gigolo voluntary recognized the child as his illegitimate child in
the correction of the status of the said daughter in her record of birth.
accordance with Article 175 in relation to Article 172 of the Family
Code, the child is entitled to support and inheritance from Gigolo.
Consequences if B acquiesces to the use of his surname by G’s
daughter by another man. ’10 – Q4b
G and B were married on July 3, 1989. On March 4, 2000, the mar-
riage, which bore no offspring, was declared void ab initio under
If B acquiesces and does not file the petition to impugn the legiti-
Article 36 of the Family Code. At the time of the dissolution of the
macy of the child within the prescriptive period for doing so in Article
marriage, the couple possessed the following properties:
170 of the Family Code, G’s daughter by another man shall be conclu- • A house and low acquired by B on Aug. 3, 1988, one
sively presumed as the legitimate daughter of B by G.
(1/3) of the purchase price (representing down payment)
of which he paid; one third (1/3) was paid by G on Feb.
Whether or not G can still ask for support pendent lite during the
14, 1990 out of a cash gift given to her by her parents on
pendency of a petition for declaration of nullity of her marriage to
her graduation on Apr. 6, 1989; and the balance was paid
B and after the couple entered into a compromise agreement to
out of the spouses’ joint income; and
dissolve their absolute community property. ’10 – Q5a • An apartment unit donated to B by an uncle on June 19,
1987.
YES, G can still ask for support from B because during the pen-
1. Who owns the properties?
dency of the action, the marriage between them is considered still
subsisting (Article 68, Family Code.) Being considered still married to
Since the marriage was declared void ab initio in 2001, no Abso-
each other, B and G still have the obligation to support each other. The
lute Community Property or Conjugal Partnership was ever established
compromise agreement cannot operate to waive future support when
between B and G. Their property relation is governed by a “special co-
needed. (Article 2035, Civil Code.)
ownership” under Article 147 of the Family Code because they were
After the compromise agreement was approved by the court and
capacitated to marry each other. Under that Article 147, wages and
the properties of the marriage were distributed, there remained no
salaries of the “former spouses” earned during their cohabitation shall
more common properties of B and G. While Article 198 of the Family
be owned by them in equal shares while properties acquired thru their
Code appears to limit the source of support to the common properties
work or industry shall be owned by them in proportion to their respec-
of the said marriage, Article 94 and Article 121 indicate otherwise.
tive contributions. Care and maintenance of the family is recognized as
Under the said Articles, the spouses remain personally and solidarily
a valuable contribution. In the absence of proof as to the value of their
with their separate properties for support even though, for whatever
respective contributions, they shall share equally.
reason, there are no more community or partnership properties left.
If ownership over the house and lot was acquired by B on August
The judgment based on the compromise dissolving the property
3, 1988 at the time he bought it on instalment before he got married,
relations of B and G does not bar G from asking support pendent lite.
he shall remain owner of the house and lot but he must reimburse G
The dissolution of the property relations of the spouses did not termi-
for all the amounts she advanced to pay the purchase price and for her
nate the obligation between them to support each other. The declara-
one-half share in the last payment from their joint income. In such
!9
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
case, the house and low were not acquired during their cohabitation, In 1997, B and G started living together without the benefit of mar-
hence, are not co-owned by B and G. riage which produced on offspring, Venus. The couple acquired a
But if the ownership of the house and lot was acquired during the residential lot. Four years after, B and G contracted marriage
cohabitation, the house and lot will be owned as follows: without a license. Their marriage was later declared null and void
1. 1/3 of the house and lot is owned by B. He is an undivided due to the absence of a marriage license.
co-owner to that extent for his contribution in its acquisition 1. Who owns the residential lot?
in the form of the down payment he made before the cele-
bration of the marriage. The money he used to pay the down Since the marriage was declared null and void, no Absolute
payment was not earned during the co-habitation, hence, it Community Property or Conjugal Partnership was established between
is his exclusive property. B and G. Their properties are governed by a “special co-ownership”
2. 1/3 of the house and lot is owned by G. She is an undivided provision of Article 147 of the Family Code because they were capaci-
co-owner to the extent for her contribution in its acquisition tated to marry each other. The said Article provides that when a man
when she paid 1/3 of the purchase price using the gift from and woman who are capacitated to marry each other, live exclusively
her parents. Although the gift was acquired by G during her with each other as husband and wife without the benefit of marriage, or
cohabitation with B, it is her exclusive property. It did not under a void marriage: (1) their wages and salaries shall be owned by
consist of wage or salary or fruit of her work and industry. them in equal shares; and (2) property acquired by both of them
3. 1/3 of the house is co-owned by B and G because the pay- through their work or industry shall be governed by the rules on co-
ment came from their co-owned funds, i.e., their joint income ownership. In co-ownership, the parties are co-owners if they con-
during their cohabitation which is shared by them equally in tributed something of value in the acquisition of the property. Their
the absence of any proof to the contrary. share is in proportion to their respective contributions. In an ordinary
After summing up their respective shares, B and G are undivided co-ownership, the care and maintenance of the family is not recog-
co-owners of the house and lot in equal shares. nized as a valuable contribution for the acquisition of the property. In
As to the apartment, it is owned exclusively by B because he the Article 147 “special co-ownership” however, care and maintenance
acquired it before their cohabitation. Even if he acquired it during their is recognized as a valuable contribution which will entitle the contribu-
cohabitation it will still be his exclusive property because it did not tor to half of the property acquired.
come from his wage or salary, or from his work or industry. It was ac- Having been acquired during their cohabitation, the residential lot
quired gratuitously from his uncle. is presumed acquired through their joint work and industry under Arti-
cle 147, hence, B and G are co-owners of the said property in equal
2. Who owns the properties if B and G were married on shares.
July 3, 1987 and their marriage was dissolved in 2007. Article 147 also provides that when a party to the void marriage
’10 – Q7 was in bad faith, he forfeits his share in the co-ownership in favor of
the common children or descendants. In default of children and de-
The answer is the same as in letter A. Since the parties to the scendants, the forfeited share shall belong to the innocent party. In the
marriage which was later declared void ab initio were capacitated to foregoing problem, there is no showing that one party was in bad faith.
marry each other, the applicable law under the New Civil Code was Hence, both shall be presumed in good faith and no forfeiture shall
Article 144. This Article is substantially the same as Article 147 of the take place.
Family Code. Hence, the determination of ownership will remain the
same as in question A. And even assuming that the two provisions are 2. Is Venus legitimate, illegitimate or illegitimated? ’10 –
not the same, Article 147 of the Family Code is still the law that will Q10
govern the property relations of B and G because under Article 256 of
the Family Code has retroactive effect insofar as it does not prejudice Venus is illegitimate. She was conceived and born outside a valid
or impair vested or acquired rights under the New Civil Code of other marriage. Thus, she is considered illegitimate (Article 165, Family
laws. Applying Article 147 retroactively to the case of G and B will not Code.) While Venus was legitimated by the subsequent marriage of
impair any vested right. Until the declaration of nullity of the marriage her parents, such legitimation was rendered ineffective when the said
under the Family Code, B and G have not yet acquired any vested marriage was later on declared null and void due to absence of a mar-
right over the properties acquired during their cohabitation. riage license.
Under Article 178 of the Family Code, “legitimation shall take
Spouses Rex and Lea bore two children now aged 14 and 8. Dur- place by a subsequent valid marriage between parents. The annulment
ing the subsistence of their marriage, Rex begot a child by anoth- of a voidable marriage shall not affect the legitimation.” The inclusion of
er woman who is now 10 years of age. Lea filed a petition for legal the underscored portion in the Article necessarily implies that the Arti-
separation which was granted. cle’s application is limited to voidable marriages. It follows that when
Whose consent is needed in order for Rex to adopt his illegitimate the subsequent marriage is null and void, the legitimation must also be
child; What if there was no legal separation, can he still adopt. ’10 null and void. In the present problem, the marriage between B and G
– Q8 was not voidable but void. Hence, Venus has remained an illegitimate
child.
The consent of the 14-year old legitimate child, of the 10-year old
illegitimate child, and of the biological mother of the illegitimate child A dead child can be legitimated. ’09 – Q1e
are needed for the adoption (Sections 7 and 9, R.A. No. 8552). The
consent of Lea is no longer required because there was already a final TRUE. To be legitimated, the law does not require a child to be
decree of legal separation. alive at the time of the marriage of his/her parents (Article 177, FC.)
Rex can still adopt if he and Lea are not legally separated. But the Furthermore, Article 181 of the Family Code which states that the
consent of his spouse, of his the 14-year old legitimate child, of the 10- “(T)he legitimation of children who died before the celebration of mar-
year old illegitimate child, and of the biological mother of the illegiti- riage will benefit the descendants,” does not preclude instances where
mate child are needed for (Sections 7 and 9, R.A. No. 8552). such legitimation will benefit no one but the child’s ascendants or other
relatives.
18-year old Filipina Patrice had a daughter out of wedlock
(Laurie). At 26, Patrice married John, an American, who brought In December 2000, Michael and Anna, after obtaining a valid mar-
her to live with him in the U.S. John is willing to adopt Laurie. Can riage license, went to the Office of the Mayor of Urbano, Bulacan,
John file the petition for adoption. ’10 – Q9 to get married. The Mayor was not there, but the Mayor’s Secre-
tary asked Michael and Anna and their witnesses to fill up and
No, John cannot file the petition to adopt alone. Philippine law sign the required marriage contract forms. The secretary then told
requires husband and wife to adopt jointly except in certain situations them to wait, and went out to look out for the Mayor who was
enumerated in the law. The case of John does not fall in any of the attending a wedding in a neighboring municipality. When the sec-
exceptions (R.A. No. 8552.) retary caught up with the Mayor at the wedding reception, she
showed him the marriage contract forms and told him that the
!10
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
couple and their witnesses were waiting in his office. The Mayor would seem that he is not given the capacity to remarry. This is be-
forthwith signed all the copies of the marriage contract, gave cause Wilma was a Filipino at the time of her marriage to Harry.
them to the secretary who returned to the Mayor’s office. She In Republic v. Orbecido III, however, the Supreme Court ruled that
then gave the copies of the marriage contract to the parties, and a Filipino spouse is given the capacity to remarry even though the
told Michael and Anna that they were already married. Thereafter, spouse who obtained the divorce was Filipino at the time of the mar-
the couple lived together as husband and wife, and had 3 sons. riage, if the latter was already a foreigner when the divorce was ob-
1. Is the marriage of Michael and Anna valid, voidable, or tained abroad. According to the Court, to rule otherwise will violate the
void? equal protection clause of the Constitution.
The marriage is void because the formal requisite of marriage Four children, namely: Alberto, Baldomero, Caridad and Dioscoro,
ceremony was absent (Article 3, Family Code.) were born to the Spouses Conrado and Clarita de la Costa. The
children’s birth certificates were duly signed by Conrado, show-
2. What is the status of the 3 children of Michael and ing them to the couple’s legitimate children. Later, one Edilberto
Anna? de la Cruz executed a notarial document acknowledging Alberto
and Baldomero as his illegitimate children with Clarita. Edilberto
The children are illegitimate, having been born outside a valid died leaving substantial properties. In the settlement of his estate,
marriage. Alberto and Baldomero intervened claiming shares as the de-
ceased’s illegitimate children. The legitimate family opposed the
3. What property regime governs the properties acquired claim. Are Alberto and Baldomero entitled to share in the estate of
by the couple? ’09 – Q3 Edilberto? ’09 – Q5
The marriage being void, the property relationship that governed NO, Alberto and Baldomero are not entitled to share in Edilberto’s
their union is special co-ownership under Article 147 of the Family estate. They were not related at all to Edilberto. They were born during
Code. This is on the assumption that there was no impediment for the marriage of Conrado and Clarita, hence, are considered legitimate
them to validly marry each other. children of the said spouses. This status is conferred on them at birth
by law.
Harry married Wilma, a very wealthy woman. Barely 5 years into Under Philippine law, a person cannot have more than on natural
the marriage, Wilma fell in love with Joseph. Thus, Wilma went filiation. The legitimate filiation of a person can be changed only if the
into a small country in Europe, became a naturalized citizen of legitimate father will successfully impugn such status.
that country, divorced Harry, and married Joseph. A year there- In the problem, therefore, the filiation of Alberto and Baldomero as
after, Wilma and Joseph returned and established permanent the legitimate children of Conrado cannot be changed by their recogni-
residence in the Philippines. tion by Edilberto as his legitimate children. Before they can be con-
1. Is the divorce obtained by Wilma and Harry recognized ferred the status as Edilberto’s illegitimate children, Conrado must first
in the Philippines? impugn their legitimacy. Since Conrado has not initiated any action to
impugn their legitimacy, they continue to be the legitimate children of
As to Wilma, the divorce obtained by her is recognized as valid in Conrado. They cannot be the illegitimate children of Edilberto at the
the Philippines because she is now a foreigner. Philippine personal same time. Not being the illegitimate children of Edilberto, they have
laws do not apply to a foreigner. However, recognition of the divorce as no right to inherit from him.
regards Harry depends on the applicability of his case of the second
paragraph of Article 26 of the Family Code. If it is applicable, divorce is The statement that “if there is no marriage settlement, the salary
recognized and, therefore, he can remarry. However, if it is not applic- of the ‘spouse’ in an adulterous marriage belongs to the conjugal
able, divorce is not recognized as to him and, consequently, he cannot partnership of gains” is FALSE. ‘09 – Q11b
remarry.
In an adulterous relationship, the salary of a married partner be-
Another Suggested Answer: longs to the absolute community, or conjugal partnership, of such mar-
ried partner with her or her lawful spouse. Under Article 148 of the
YES, the divorce obtained by Wilma is recognized as valid in the Family Code, the property relations between the married partner and
Philippines. At the time she got the divorce, she was already a foreign his/her paramour is governed by ordinary co-ownership where the
national having been naturalized as a citizen of that “small country in partners become co-owners only when they contributed to the acquisi-
Europe.” Based on the precedents established by the Supreme Court tion of the property. The paramour is deemed to have not contributed in
(Bayot v. Court of Appeals, 570 SCRA 472 [2008]), divorce obtained by the earning of the salary of the married partner.
a foreigner is recognized in the Philippines if validly obtained in accor-
dance with his or her national law. Emmanuel and Margarita, American citizens and employees of the
US State Department, got married in Kenya where sterility is a
2. If Harry hires you as a lawyer, what legal recourse would ground for annulment of marriage. Thereafter, the spouses were
you advise him to take? assigned to the US Embassy in Manila. On the 1st year of the
spouses’ tour of duty in the Philippines, Margarita filed an annul-
I will advice Harry to: ment case against Emmanuel before a Philippine court on the
(1) Dissolve and liquidate his property relations with Wilma; and ground of her husband’s sterility at the time of the celebration of
(2) If he will remarry, file a petition for the recognition and en- the marriage.
forcement of the foreign judgment of divorce (Rule 39, Rules 1. Will the suit prosper?
of Court.)
NO, the suit will not prosper.
3. Harry tells you that he has fallen in love with another As applied to foreign nationals with respect to family relations and
woman, Elizabeth, and wants to marry her because after status of persons, the nationality principle set forth in Article 15 of the
all, Wilma is already married to Joseph. Can Harry legal- Civil Code will govern the relations of Emmanuel and Margarita. Since
ly marry Elizabeth? ’09 – Q4; ’02 – Q3a; ’99 – Q4; ’96 – they are American citizens, the governing law as to the ground for
Q5(1) annulment is not Kenyan law which Margarita invokes as support of
sterility as such ground; but should be U.S. law, which is the national
YES, he can validly marry Elizabeth, applying the doctrine laid law of both Emmanuel and Margarita as recognized under Philippine
down in Republic v. Orbecido III, 472 SCRA 114 [2005]. law. Hence, the Philippine court will not give due course to the case
Under the second paragraph of Article 26 of the Family Code, for based on Kenyan law. The nationality principle as expressed in the
the Filipino spouse to have capacity to remarry, the law expressly re- application of national law is established by precedents (Pilapil v. Ibay-
quires the spouse who obtained the divorce to be a foreigner at the Somera, 174 SCRA 653 [1989]; Garcia v. Garcia-Recio, 366 SCRA 437
time of the marriage. Applying this requirement to the case of Harry, it
!11
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
[2001]; Llorente v. Court of Appeals, 345 SCRA 592 [2000]; and Bayot was single when, in fact, he was not; and exemplary, to teach a
v. Court of Appeals, 570 SCRA 472 [2008].) lesson to like-minded Lotharios.
1. If you were the judge, would you award all the claims of
Another Suggested Answer: Nanette?
The forum has jurisdiction over an action for the annulment of If Rodolfo’s marriage could not have been possibly known to
marriage solemnized elsewhere but only when the party bringing the Nanette or there is no gross negligence on the part of Nanette, Rodolfo
action is domiciled in the forum. In this case, none of the parties to the could be held liable for moral damages.
marriage is domiciled in the Philippines. They are here as officials of If there is gross negligence in a suit for quasi-delict, exemplary
the US Embassy whose stay in the country is merely temporary, lasting damages could be awarded.
only during their fixed tour of duty. Hence, the Philippine courts have
no jurisdiction over the action. 2. Suppose Rodolfo later on acknowledges Rona and gives
her regular support, can he compel her to use his sur-
2. Assume Emmanuel and Margarita are both Filipinos. name?
After their wedding in Kenya, they come back and take
up residence in the Philippines. Can their marriage be NO, he has no right to compel to use his surname. The law does
annulled on the ground of Emmanuel’s sterility? ’09 – not give him the right that simply because he gave her support (R.A.
Q12 No. 9255.)
Under the Family Code, an illegitimate child was required to use
NO, the marriage cannot be annulled under Philippine law. Sterili- only the surname of the mother. Under R.A. No. 9255, otherwise
ty is not a ground for annulment of marriage under Article 45 of the known as the Revilla Law, however, the illegitimate child is given the
Family Code. option to use the surname of the illegitimate father when the latter has
recognized the former in accordance with law. Since the choice be-
Another Suggested Answer: longs to the illegitimate child, Rodolfo cannot compel Rona, if already
of age, to use his surname against her will. If Rona is still a minor, to
NO, the marriage cannot be annulled in the Philippines. use the surname of Rodolfo will require the consent of Rona’s mother
The Philippine court shall have jurisdiction over the action to an- who has sole parental authority over he,.
nul the marriage not only because the parties are residents of the
Philippines but because they are Filipino citizens. The Philippine court, 3. When Rona reaches seven (7) years old, she tells Rodol-
however, shall apply the law of the place where the marriage was cel- fo that she prefers to live with him, because he is better
ebrated in determining its formal validity (Article 26, Family Code; Arti- off financially than Nanette. If Rodolfo files an action for
cle 17, NCC.) the custody of Rona, alleging that he is Rona’s choice
Since the marriage was celebrated in Kenya in accordance with as custodial parent, will the court grant Rodolfo’s peti-
Kenyan law, the formal validity of such marriage is governed by tion? ’09 – Q15
Kenyan law and any issue as to the formal validity of that marriage
shall be determined by Kenyan law and not Philippine law. NO, because Rodolfo has no parental authority over Rona. He
However, while Kenyan law governs the formal validity of the who has the parental authority has the right to custody. Under the Fam-
marriage, the legal capacity of the Filipino parties is governed not by ily Code, the mother alone has parental authority over the illegitimate
Kenyan law but by Philippine law (Article 15, NCC.) Sterility of a party child. This is true even if the illegitimate father has recognized the child
as a ground for annulment of marriage is not a matter of form but of and even though he is giving support for the child. To acquire custody
legal capacity. Hence, the Philippine court must apply Philippine law in over Rona, Rodolfo should first deprive Nanette of parental authority if
determining the status of the marriage on the ground of absence or there is ground under the law, and in a proper court proceeding. In the
defect in the legal capacity of the Filipino parties. Since sterility does same action, the court may award custody of Rona to Rodolfo if it is for
not constitute absence or defect in the legal capacity of the parties her best interest.
under Philippine law, there is no ground to avoid or annul the marriage.
Hence, the Philippine court has to deny the petition. If Ligaya, a Filipino citizen residing in the United States, files a
petition for change of name before the District Court of NY, what
Rafael, a wealthy bachelor, filed a petition for the adoption of Dol- law shall apply? ’09 – Q20a
ly, a one-year old foundling who had a severe heart ailment. Dur-
ing the pendency of the adoption proceedings, Rafael died of New York law shall apply. The petition for change of name filed in
natural causes. The OSG files a MTD the petition on the ground New York does not concern the legal capacity or status of the petition-
that the case can no longer proceed because of the petitioner’s er. Moreover, it does not affect the Registry of any other country includ-
death. ing the country of birth of the petitioner. Whatever judgment is ren-
1. Should the case be dismissed? dered in that petition will have effect only in New York. The New York
2. Will your answer be the same if it was Dolly who died court cannot, for instance, order the Civil Registrar in the Philippines to
during the pendency of the adoption proceedings? ’09 – change its records. The judgment of the New York Court allowing a
Q13 change in the name of petitioner will be limited to the records of the
petitioner in New York and the use of the new name in all her transac-
It depends on the stage of the proceedings when Rafael died. tions in New York. Since the records and processes in New York are
If he died after all the requirements under the law have been the only ones affected, the New York Court will apply New York law in
complied with and the case is already submitted for resolution, the resolving the petition.
court may grant the petition and issue a decree of adoption despite the
death of the adopter (Section 10, R.A. No. 8552 [Domestic Adoption If Henry, an American citizen residing in the Philippines, files a
Law].) Otherwise, the death of the petitioner shall have the effect of petition for change of name before a Philippine court, what law
terminating the proceedings. shall apply? ’09 – Q20b
NO, if it was Dolly who died, the case should be dismissed. Her Philippine law will apply. The petition for change of name in the
death terminates the proceedings (Section 10, R.A. No. 8552 [Domes- Philippines will affect only the records of the petitioner and his transac-
tic Adoption Law].) tions in the Philippines. The Philippine court can never acquire jurisdic-
tion over the custodian in the US of the records of the petitioner. More-
Rodolfo, married to Sharon, had an illicit affair with his secretary, over, change of name has nothing to do with the legal capacity or sta-
Nanette, a 19-year old girl, and begot a baby girl, Rona. Nanette tus of the alien. Since Philippine records and transactions are the only
sued Rodolfo for damages: actual, for hospital and other medical ones affected, the Philippine court may effect the change only in ac-
expense in delivering the child to caesarean section; moral, cordance with the laws governing those records and transactions. That
claiming that Rodolfo promised to marry her, representing that he law cannot be put but Philippine law.
!12
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
hacked to death. The baby’s death could have been due to lack of
Ana had a husband, a Filipino citizen like her, who was among the nutrition.
passengers on board a commercial jet plane which crashed in the
Atlantic Ocean 10 years earlier and had never been heard of ever Another Alternative Answer
since. Believing that her husband had died, Ana married Adolf, a
divorced German national born of a German father and a Filipino Under Section 3(jj)(5), Rule 131 of the Rules of Court, if one is
mother residing in Stuttgart. To avoid being required to submit under 15 or above 60 and the age of the other is in between 15 and
the required certificate of capacity to marry from the German Em- 60, the latter is presumed to have survived.
bassy in Manila, Adolf stated in the application for marriage li- In the instant case, Marian was already 18 when she found out
cense that he was a Filipino citizen. With the marriage license that she was pregnant. She could be of the same age or maybe 19
stating that Adolf was a Filipino, the couple got married in cere- years of age when she gave birth.
mony officiated by the Parish Priest of Calamba, Laguna in a
beach in Nasugbu, Batangas, as the local parish priest refused to 3. Will Pietro, as surviving biological father of the baby be
solemnize marriages except in his church. Is the marriage valid? entitled to claim the proceeds of the life insurance on
’08 – Q1 the life of Marian? ’08 – Q2
NO, the marriage is not valid. Pietro, as the biological father of the baby shall be entitled to
Article 41 of the Family Code allows the present spouse to con- claim the proceeds of the life insurance on the life of Marian because
tract a subsequent marriage during the subsistence of his previous he is a compulsory heir of his child.
marriage provided that: (a) his priori spouse in the first marriage has
been absent for four consecutive years; (b) that the spouse present Roderick and Faye were high school sweethearts. When Roderick
had a well-founded belief that the absent spouse was already dead; was 18 and Faye, 16 years old, they started to live together as
and (c) the present spouse instituted a summary proceeding for the husband and wife without the benefit of marriage. When Faye
declaration of the presumptive death of the absent spouse. Otherwise, reached 18 years of age, her parents forcibly took her back and
the second marriage shall be null and void. arranged for her marriage to Brad. Although Faye lived with Brad
In the instant case, the husband of Ana was among the passen- after the marriage, Roderick continued to regularly visit Faye
gers on board a commercial jet plane which crashed in the Atlantic while Brad was away at work. During the marriage, Faye gave
Ocean. The body of the deceased husband was not recovered to con- birth to a baby girl, Laica. When Faye was 25 years old, Brad dis-
firm his death. Thus, following Article 41, Ana should have first secured covered her continued liaison with Roderick and in one of their
a judicial declaration of his presumptive death before she married heated arguments, Faye shot Brad to death. She lost no time in
Adolf. The absence of the said judicial declaration incapacitated Ana marrying her true love Roderick, without a marriage license,
from contracting her second marriage, making it void ab initio. claiming that they have been continuously cohabitating for more
than 5 years.
At age 18, Marian found out that she was pregnant. She insured 1. Was the marriage of Roderick and Faye valid?
her own life and named her unborn child as her sole beneficiary.
When she was already due to give birth, she and her boyfriend Article 4 of the Family Code provides that the absence of the
Pietro, the father of her unborn child, were kidnapped in a resort essential or formal requisites renders the marriage void ab initio. How-
in Bataan. The military gave chase and after 1 week, they were ever, no license shall be necessary for the marriage of man and a
found in an abandoned hut in Cavite. Marian and Pietro were woman who have lived together as husband and wife for at least 5
hacked with bolos. Marian and the baby she delivered were both years and without any legal impediment to marry each other. In Repub-
found dead, with the baby’s umbilical cord already cut. Pietro lic v. Dayot, G.R. No. 175581, March 28, 2008, reiterating the doctrine
survived. in Niñal v. Bayadog, 328 SCRA 122 [2000], this five year period is
1. Can Marian’s baby be the beneficiary of the life insur- characterized by exclusivity and continuity.
ance of Marian? In the present case, the marriage of Roderick and Faye cannot be
considered as a marriage of exceptional character, because there were
YES, the baby can be the beneficiary of the life insurance of Mar- two (2) legal impediments during their cohabitation: minority on the part
ian. of Faye, during the first two years of the cohabitation; and lack of legal
Article 40 of the Civil Code provides that “birth determines per- capacity, since Faye married Brad at the age of 18. The absence of a
sonality; but the conceived child shall be considered born for all pur- marriage license made the marriage of Faye and Roderick void ab
poses that are favourable to it, provided that it be born later with the initio.
conditions specified in Article 41.” Article 41 states that “for civil pur-
poses, the foetus is considered born if it is alive at the time it is com- 2. What is the filiation status of Laica?
pletely delivered from the mother’s womb. However, if the foetus had
an intra-uterine life of less than seven months, it is not deemed born if Laica is legitimate because children conceived or born during the
it dies within twenty-four hours after its complete delivery from the marriage of the parents are presumed to be legitimate (Article 164,
maternal womb. Family Code.)
The act of naming the unborn child as sole beneficiary in the in-
surance is favourable to the conceived child and therefore the foetus 3. Can Laica bring an action to impugn her own status on
acquires a presumptive or provisional personality. However, said pre- the ground that based on DNA results, Roderick is her
sumptive personality only becomes conclusive if the child is born alive. biological father?
The child need not survive for twenty-four hours as required under
Article 41 of the Code because “Marian was already due to give birth,” NO. Laica cannot bring an action to impugn her own status.
indicating that the child was more than seven months old. In Liyao, Jr. v. Tanhoti-Liyao, G.R. No. 138961, March 7, 2002,
the Supreme Court ruled that impugning the legitimacy of the child is
2. Between Marian and the baby, who is presumed to have strictly a personal right of the husband, except: (a) when the husband
died ahead? died before the expiration of the period fixed for bringing the action; (b)
if he should die after the filing of the complaint, without having desisted
Marian is presumed to have died ahead of the baby. therefrom; or (c) if the child was born after the death of the husband.
Article 43 of the Civil Code applies to persons who are called to Laica’s case does not fall under any of the exception.
succeed each other. The proof of death must be established by posi-
tive or circumstantial evidence derived from facts. It can never be es- 4. Can Laica be legitimated by the marriage of her biologi-
tablished from mere inference. cal parents? ’08 – Q3
In the present case, it is very clear that only Marian and Pietro
were hacked with bolos. There was no showing that baby was also NO. Laica cannot be legitimated by the marriage of her biological
parents because only children conceived or born outside of wedlock of
!13
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
parents who, at the time of the conception of the former, were not dis- All the children of Andrew are living with him. Andrew needs to get
qualified by any impediment to marry each other may be legitimated the written consent of Jon, Ryan, Vina, and Wilma, who are all ten (10)
(Article 177, Family Code.) years old or more. Sandy’s consent to Amy’s adoption is not necessary
because she was not legally adopted by Andrew. Jane’s consent is
Gianna was born to Andy and Aimee, who at the time of Gianna’s likewise not necessary because she is not a child of Andrew.
birth were not married to each other. While Andy was single at Sandy, an orphan since birth, is eligible for adoption under Sec-
that time, Aimee was still in the process of securing a judicial tion 8(f) of R.A. No. 8552, provided that Andrew obtains the written
declaration of nullity on her marriage to her ex-husband. Gianna’s consent of the other children mentioned above, including Amy and
birth certificate, which was signed by both Andy and Aimee, regis- Elena obtains the written consent of Jane, if she is over ten years old
tered the status of Gianna as “legitimate,” her surname carrying (Section 9(d), R.A. No. 8552.)
that of Andy’s, and that her parents were married to each other.
1. Can a judicial action for correction of Gianna’s birth 2. In his old age, can Andrew be legally entitled to claim
certificate be successfully maintained to (a) change her support from Amy, Jon, Ryan, Vina, Wilma and Sandy
status from “legitimate” to “illegitimate” and (b) change assuming that all of them have the means to support
her surname from that of Andy’s to Aimee’s maiden sur- him?
name?
Andrew, in his old age cannot be legally entitled to claim support
YES, a judicial action for correction of entries in Gianna’s birth because Article 195, par. 2 of the Family Code limits the giving of sup-
certificate can be successfully maintained to change her (a) status port to “legitimate ascendants and descendants.”
from “legitimate” to “illegitimate,” and (b) her surname from that of
Andy’s to Aimee’s maiden surname in accordance with Rule 108 of the 3. Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally
Rules of Court because said changes are substantive corrections. claim support from each other?
2. Instead of judicial action, can administrative proceed- Amy, Jon, Ryan, Vina, Wilma and Sandy cannot legally claim
ings be brought for the purpose of making the above support from each other because Article 195, par. 5 of the Family Code
corrections? limits the giving of support to “legitimate brothers and sisters, whether
of full or half blood.”
NO. An administrative proceeding cannot be brought for the pur-
pose of making the above corrections. 4. Can Jon and Jane legally marry? ’08 – Q5
R.A. No. 9048, otherwise known as the Clerical Error Act, autho-
rizes the city or municipal civil registrar or the consul general to correct YES. Jon and Jane can legally marry each other. Jon is an illegit-
a clerical or typographical error in an entry and/or change the first imate child of Andrew while Jane is the child of Elena from a previous
name or nickname in the civil register without need of a judicial order. relationship. Thus, their marriage is not one of the prohibited marriages
Errors that involve the change of nationality, age, status, surname or enumerated under Article 38 of the Family Code.
sex of petitioner are not included from the coverage of the said act
(Silverio v. Republic, 537 SCRA 373 [2007].) The statement that “If a man commits several acts of sexual infi-
delity, particularly in 2002, 2003, 2004, 2005, the prescriptive peri-
3. Assuming that Aimee is successful in declaring her mar- od to file for legal separation runs from 2002” is FALSE. ’07 –
riage void, and Andy and Aimee subsequently married Q7(2)
each other, would Gianna be legitimated? ’08 – Q4
The five-year prescriptive period for filing legal separation runs
Gianna cannot be legitimated by the subsequent marriage of from the occurrence of each act of sexual infidelity. Hence, the pre-
Andy and Aimee. scriptive period for the sexual infidelity committed runs from 2002; for
Article 177 of the Family Code provides that “only children con- the sexual infidelity committed in 2003, the prescriptive period runs
ceived and born outside of wedlock of parents, who, at the time of the from 2003 and so on. The action for legal separation for the last act of
conception of the former, were not disqualified by any impediment to sexual infidelity in 2005 will prescribe in 2010.
marry each other, may be legitimated.”
In the present case, a legal impediment was existing at the time of The statement that “An individual, while single, purchases a
the conception of Gianna. Her mother, Aimee, was still in the process house and lot in 1990, and borrows money in 1992 to repair it. In
of securing a judicial declaration of nullity of her marriage to her ex- 1995, such individual gets married while the debt is still being
husband. paid. After the marriage, the debt is still the responsibility of such
individual” is FALSE. ’07 – Q7(3)
Despite several relationships with different women, Andrew re-
mained unmarried. His first relationship with Brenda produced a The absolute community of property is liable for ante-nuptial debts
daughter, Amy now 30 years old. His 2nd, with Carla, produced 2 of either spouse in so far as the same redounded to the benefit of the
sons: Jon and Ryan. His 3rd, with Donna, bore him 2 daughters: family (Article 94(7), Family Code.)
Vina and Vilma. His 4th, with Elena, bore him no children although
Elena has a daughter Jane, from a previous relationship. His last, Alternative Answer:
with Fe, produced no biological children but they informally
adopted without court proceedings, Sandy, now 13 years old, FALSE. The debt is already the responsibility of the community
whom they consider as their own. Sandy was orphaned as a baby property, because the property already constitutes absolute community
and was entrusted to them by the midwife who attended to of property under Article 91 of the Family Code which took effect in
Sandy’s birth. All the children, including Amy, now live with An- 1988 while the house and lot here involved was purchased in 1990.
drew in his house. There is no indication that the spouse who bought the property had
1. Is there any legal obstacle to the legal adoption of Amy legitimate descendants by a former marriage, which would exclude the
by Andrew? To the legal adoption of Sandy by Andrew house and lot from the community property (Article 92(3), Family
and Elena? Code.) If the spouses established a conjugal partnership, the property
belongs to the individual spouse if full ownership was vested before the
YES, there is a legal obstacle to the legal adoption of Amy by marriage (Article 118, Family Code.)
Andrew.
Under Section 9(d) of R.A. No. 8552, the New Domestic Adoption The statement that “The day after John and Marsha got married,
Act of 1998, the written consent of the illegitimate sons/daughters, ten John told her that he was impotent. Marsha continued to live with
(10) years of age or over, of the adopter, if living with said adopter and John for 2 years. Marsha is now estopped from filing an annul-
the latter’s spouse, if any, is necessary to the adoption. ment case against John” is FALSE. ’07 – Q7(4)
!14
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Marsha is not estopped from filing an annulment case against and was in fact caught in flagrante by his wife, he is not an “aggrieved”
John on the ground of his impotence, because she learned of his impo- spouse entitled to the relief. He who comes to court must come with
tence after the celebration of the marriage and not before. Physical clean hands. And even assuming that the attempt on his life by the wife
incapability to consummate the marriage is a valid ground for the an- is a ground for legal separation, he still not entitled to relief because of
nulment of marriage if such incapacity was existing at the time of the his infidelity. The law does not allow legal separation if both parties
marriage, continues and appears to be incurable. The marriage may be have given ground for legal separation.
annulled on this ground within five (5) years from its celebration (Article
45(5), Family Code.) Ed and Beth have been married for 20 years without children.
Desirous to have a baby, they consulted Dr. Canlas, a prominent
Amor gave birth to Thelma when she was 15 years old. Thereafter, medical specialist on human fertility. He advised Beth to undergo
Amor met David and they got married when she was 20 years old. artificial insemination. It was found that Ed’s sperm count was
David had a son, Julian, with his ex-girlfriend Sandra. Julian and inadequate to induce pregnancy. Hence, the couple looked for a
Thelma can get married. ’07 – Q7(5) willing donor. Andy, the brother of Ed, readily consented to do-
nate his sperm. After a series of tests, Andy’s sperm was medical-
TRUE. Julian and Thelma can get married. Marriages between ly introduced into Beth’s ovary. She became pregnant and 9
stepbrothers and stepsisters are not among the marriages prohibited months later, gave birth to a baby boy named Alvin.
under the Family Code. 1. Who is the father of Alvin?
Under Article 213 of the Family Code, no child under 7 years of Ed is the father of Alvin because Alvin was conceived and born
age shall be separated from the mother unless the court finds during the marriage of his mother to Ed. Under the law, the child born
compelling reasons to order otherwise. during the marriage of the mother to her husband is presumed to be
1. Explain the rationale of this provision. the legitimate child of the husband (Concepcion v. Almonte, 468 SCRA
438 [2005].) While it is true that there was no written consent by the
The rationale of the provision is that a child below 7 years of age husband to the artificial insemination, absence of such consent may
needs the love and care which only its mother can give. The welfare of only give the husband a ground to impugn the legitimacy of the child
the child is given the highest priority and interest of the child prevails but will not prevent the child from acquiring the status of legitimate
over procedural rules. child of the husband at the time of his birth.
Saul, a married man, had an adulterous relation with Tessie. With To establish Ed’s paternity over Alvin, two (2) requirements must
one of the trysts, Saul’s wife, Cecile, caught him in flagrante. obtain: (1) both spouses authorized or ratified the insemination in a
Armed with a gun, Cecile shot Saul in a fit of jealousy, nearly written document executed and signed by them before the birth of the
killing him. 4 years after the incident, Saul filed an action for legal child; and (2) the instrument is recorded in the civil registry together
separation against Cecile on the ground that she attempted to kill with the birth certificate of the child.
him.
1. If you were Saul’s counsel, how will you argue his case? Gigi and Ric, Catholics, got married when they were 18 years old.
Their marriage was solemnized on August 2, 1989 by Ric’s uncle,
If I were the counsel for Saul, I would argue that attempt by one a Baptist Minister, in Calamba Laguna. He overlooked the fact that
spouse against the life of the other is a valid ground for legal separa- his license to solemnize marriages expired the month before and
tion and that there is no need for conviction in a criminal case. that the parties do not belong to his congregation. After 5 years of
married life and blessed with 2 children, the spouses developed
2. If you were lawyer of Cecile, what will be your defense? irreconcilable differences, so they parted ways. While separated,
Ric fell in love with Juliet, a 16-year old and a Seventh-Day Adven-
If I were the lawyer of Cecile, I will interpose the defense that the tist. They decided to get married with the consent of Juliet’s par-
attempt on his life was without criminal intent but was impelled by pas- ents. She presented to him a birth certificate showing she is 18
sion and obfuscation. This is the reason why under the Revised Penal years old. Ric never doubted her age much less the authenticity
Code, even killing him when caught in the act would be justified. To be of her birth certificate. They got married in a Catholic Church in
a ground for legal separation, the attempt must be intentional and Manila a year later. Juliet gave birth to twins, Aissa and Aretha.
wrongful. 1. What is the status of the marriage between Gigi and Ric
– valid, voidable or void?
3. If you were the judge, how will you decide the case? ’06
– Q2 The marriage between Gigi and Eric is void because a minister
has no authority to solemnize a marriage between contracting parties
As judge, I will deny the petition. A petition for legal separation who were both not members of minister’s religious sect. Under the
may be filed only by the aggrieved spouse. Since Saul was unfaithful Family Code, a minister or a priest has authority to solemnize a mar-
!15
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
riage but only if one or both contracting parties are members of the (1) Legal separation on the grounds of subsequent bigamous
religious sect of the priest or minister. Since neither Ric nor Gigi was of marriage and sexual infidelity;
the Baptist Church because both of them were Catholics, the Baptist (2) Receivership of the conjugal or community property;
Minister did not have authority to solemnize their marriage. (3) Judicial declaration of property;
Ric and Gigi cannot claim that believed in good faith and that the (4) Petition for sole administration of the conjugal or community
Baptist Minister has the authority to solemnize the marriage and invoke property;
Article 35(2) of the Family Code to make the marriage valid. The provi- (5) Action for damages for abuse of right; and
sion of the Family Code applies only to a mistake of fact, and not to a (6) Action to declare the marriage of Ric and Juliet as null and
mistake of law. Hence, the fact that the Minister’s license was expired void and recover her share in the community property with
will not affect the validity of the marriage if Ric and Gigi believed in Ric, consisting of the portion shared by Ric in whatever
good faith that the Minister had a valid license. That would be a mis- property was commonly or jointly acquired by Ric and Juliet.
take of fact. However, believing that the Minister had authority to sol-
emnize the marriage even if none of the contracting parties was a Gemma filed a petition for the declaration of nullity of her mar-
member of the Minister’s religious sect is a mistake of law. This is be- riage with Arnel on the ground of psychological incapacity. She
cause the law expressly provides that the Minister has authority only if alleged that after 2 months of their marriage, Arnel showed signs
one or both contracting parties are members of the Minister’s religious of disinterest in her, neglected her and went abroad. He returned
sect. A mistake of law does not excuse from non-compliance therewith. to the Philippines after 3 years but did not even get in touch with
her. Worse, they met several time in social functions but he
Another Suggested Answer: snubbed her. When she got sick, he did not visit her even if he
knew of her confinement in the hospital. Meanwhile, Arnel met an
The marriage between Ric and Gigi is valid. Assuming that the accident which disabled him from reporting for work and earning
parents of Ric and Gigi did not give their consent to the marriage, the a living to support himself. Will Gemma’s suit prosper? ’06 – Q6
marriage would have been voidable. However, it was ratified when Ric
and Gigi continued cohabiting for 2 years after they attained the age of Gemma’s suit will not prosper.
21. It must be noted that they had 5 years of married life or until they The acts of Arnel complained of do not by themselves constitute
were 23 years old. psychological incapacity. It is not enough to prove the commission of
The fact the neither Ric nor Gigi was a Baptist would be just a those acts or the existence of his abnormal behaviour. It must be
mere irregularity in the authority of the Baptist Minister to solemnize shown that those acts or that behavior was a manifestation of a serious
the marriage. Hence, it would have no adverse effect on the validity mental disorder and that it is the root cause why he was not able to
thereof. Also, the fact that the license of the Baptist Minister was ex- perform the essential duties of married life. It must also be shown that
pired will not have any effect on the validity of the marriage because such psychological incapacity, as manifested in those acts of that be-
Ric and Gigi can be presumed to have believed in good faith that the havior, was existing at the time of the celebration of the marriage.
Minister had a valid license. In this case, there was no showing that Arnel was suffering from a
serious mental disorder, that his behavior was a manifestation of that
2. What is the status of the marriage between Ric and Juli- disorder, and that such disorder prevented him from complying with his
et – valid, voidable or void? duties as a married person.
The marriage between Ric and Juliet is void because Juliet was Marvin, a Filipino, and Shelly, an American, both residents of Cali-
below 18 years of age. Under the Family Code, the requisite age for fornia, decided to get married in their local parish. 2 years after
legal capacity to contract marriage is 18 years old and a marriage by a their marriage, Shelly obtained a divorce in California. While in
party who is below 18 years old is void under all circumstances. Boracay, Marvin met Manel, a Filipina, who was vacationing there.
Hence, even though Juliet’s parents have given their consent to the Marvin fell in love with her. After a brief courtship and complying
marriage and even though Ric believed in good faith that she was 18 with all the requirements, they got married in Hong Kong to avoid
years old, the marriage is void. publicity, it being Marvin’s 2nd marriage. Is his marriage to Manel
valid? ’06 – Q7
3. Suppose Ric himself produced the falsified birth certifi-
cate to persuade Juliet to marry him despite her minori- YES, the marriage of Marvin and Manel is valid. While Marvin was
ty and assured her that everything is in order. He did not previously married to Shelly, the divorce obtained by Shelly in Califor-
divulge to her his prior marriage with Gigi. What action, nia capacitated Marvin to contract the subsequent marriage to Manel
if any, can Juliet take against him? under the 2nd paragraph of Article 26 of the Family Code which pro-
vides that where a marriage between a Filipino citizen and a foreigner
(a) Juliet may file an action to declare her marriage null and void is validly celebrated and a divorce is validly obtained abroad by the
on the ground that she was not of marrying age; alien spouse capacitating him or her to remarry, the Filipino spouse
(b) She may also file a criminal case against Ric for bigamy shall likewise have capacity to remarry under Philippine law.
because he contracted the marriage with her without a judi-
cial declaration of nullity of his first marriage with Gigi; Zirxthoussous de los Santos filed a petition for change of name
(c) She may also filed a criminal case for falsification, perjury, or with the Office of Civil Registrar of Mandaluyong City under the
illegal marriage as the case may be; administrative proceedings provided in R.A. No. 9048. He alleged
(d) In case the facts and evidence will warrant, she may also file that his first name sounds ridiculous and is extremely difficult to
a criminal case for seduction. In all these cases, Juliet may spell and pronounce. After complying with the requirements of
recover damages. the law, the Civil Registrar granted his petition and changed his
first name Zirxthoussous to “Jesus.” His full name now reads
4. If you were the counsel for Gigi, what action/s will you “Jesus de los Santos.” Jesus de los Santos moved to General
take to enforce and protect her interests? ’06 – Q4 Santos to work in an MNC. There, he fell in love and married Mary
Grace de los Santos. She requested him to have his first name
As counsel for Gigi, I will file an action for the declaration of nullity change because his new name “Jesus de los Santos” is the same
of Gigi’s marriage to Ric on the ground of absence of authority of the as that of her father who abandoned her family and became a
Baptist Minister to solemnize the marriage between Ric and Gigi who notorious drug lord. She wanted to forget him. Hence, Jesus filed
were both non-members of the Baptist Church. another petition with the Office of the Local Civil Registrar to
change his first name to “Roberto.” He claimed that the change is
Another Suggested Answer: warranted because it will eradicate all vestiges of infamy of Mary
Grace’s father. Will the petition for the change of name of Jesus
As counsel for Gigi, and on the basis of the legal presumption that de los Santos to Roberto de los Santos under R.A. No. 9048 pros-
her marriage to Ric is valid, I will file the following actions: per? ’06 – Q14
!16
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
NO, the petition will not prosper. Under R.A. No. 9048, the extra- partnership and a separation of their properties because it was not
judicial correction of entry or change of first name may be availed on approved by the court. To be valid, and agreement by parties to dis-
only once. solve their conjugal partnership and to separate their properties during
the marriage has to be approved by the court.
What entries in the Civil Registry may be changed or corrected
without a judicial order? ’06 – Q15(1) 2. Discuss the effect/s of the said settlements on the prop-
erties acquired by the spouses.
Under R.A. No. 9048, as amended by R.A. No. 10172, the entries
in the civil registry which may be changed or corrected without a judi- Since the marriage settlement was binding between the parties,
cial order are: conjugal partnership of gains was the regime of their property relations.
1. Clerical or typographical errors; and Under the regime of conjugal partnership of gains, all properties ac-
2. Change of first name; or quired by the spouses during the marriage, jointly or by either one
3. Change of the day and month in date of birth or sex of a them, through their work or industry are conjugal. Therefore, the resi-
person where it is patently clear that there was a clerical or dential house and lot, and the condominium unit are conjugal having
typographical error or mistake in the entry. been jointly acquired by the couple during the marriage.
Inasmuch as the subsequent agreement on dissolution of the
May an illegitimate child, upon adoption by her natural father, use conjugal partnership and separation of property was invalid, conjugal
the surname of her natural mother as her middle name? ’06 – partnership subsisted between the parties. Therefore, the mansion and
Q15(2) the agricultural land are also conjugal having been acquired by one of
the spouses during the marriage.
YES, an illegitimate child who is adopted by his natural father may
carry the surname of his biological mother as his middle name. The 3. What properties may be held answerable for Mila’s
Supreme Court has ruled that there is no law allowing or prohibiting obligations? ’05 – Q1
such child from doing so. What is not prohibited by law is allowed.
Likewise, the use of the surname of the mother, even of legitimate The marriage settlement cannot prejudice third parties, such as
children is in accord with Filipino customs and traditions and will serve the creditors, because it was not registered with the local civil registrar
the best interest of the child who will not be confused by wondering where the marriage was recorded. To bind third parties, the Family
why he has no middle name (In the Matter of the Adoption of Code requires registration of the marriage settlement of not only with
Stephanie Nathy Astorga Garcia, 454 SCRA 541 [2005].) the proper register of deeds but also with the local civil registrar where
the marriage was recorded. Hence, if the rules on conjugal partnership
Article 36 of the Family Codes provides that “a marriage contract- will prejudice the creditors, the rules on absolute community will be
ed by any party who, at the time of the celebration, was psycho- applied instead. However, insofar as debts by one spouse without the
logically incapacitated to comply with the essential marital obliga- consent of the other are concerned, the rule is the same for both con-
tions of marriage, shall be void.” Choose the spouse listed below jugal partnership and absolute community. The partnership or commu-
who is psychologically incapacitated. nity is liable for debts contracted by one spouse but only to the extent
1. Nagger; that it benefited the family.
2. Gay or lesbian; Therefore, if the debts contracted by Mila redounded to the bene-
3. Congenital sexual pervert; fit of the family, all the conjugal partnership properties are liable to pay
4. Gambler; them but only to the extent the family was benefited. The separate
5. Alcoholic. ’06 – Q16(2) properties of Mila may be held answerable for Mila’s debts and obliga-
tions that did not redound to the benefit of the family.
The gay or lesbian is psychologically incapacitated. Being gay or
lesbian is a mental disorder which prevents the afflicted person from In 1985, Sonny and Lulu, both Filipino citizens, were married in
performing the essential duties of married life. He or she will not be the Philippines. In 1987, they separated, and Sonny went to Cana-
able to perform his duty of sexual consortium with his or her spouse da, where he obtained a divorce in the same year. He then married
due to his or her sexual preference for a person of the same sex. another Filipina, Auring, in Canada on January 1, 1988. They had
However, the law requires that the disorder or state of being gay or two sons, James and John. In 1990, after failing to hear from
lesbian must be existing at the time of the celebration of the marriage. Sonny, Lulu married Tirso, by whom she had a daughter, Verna. In
1991, Sonny visited the Philippines where he succumbed to heart
Gabby and Mia got married in QC on July 10, 1990. Prior thereto, attack.
they executed a marriage settlement whereby they agreed on the 1. Discuss the effect of the divorce by Sonny and Lulu in
regime of CPG. The marriage settlement was registered in the Canada.
Register of Deeds of Manila, where Mila was a resident. In 1992,
they jointly acquired a residential lot, as well as a condominium in The divorce obtained by Sonny in Canada was not valid because
Makati. In 1995, they decided to change their property relations to he and his wife were both Filipino citizens. Divorce between a Filipino
complete separation of property. Mila consented, as she was en- couple is not valid under Philippine law even though they are living
gaged in a lucrative business. The spouses then signed a private abroad (Article 15, Civil Code.)
document dissolving their conjugal partnership and agreeing on a
complete separation of property. Thereafter, Gabby acquired a 2. Explain the status of the marriage between Sonny and
mansion in Baguio and a 5-hectare agricultural land in Mindoro, Auring.
which he registered exclusively in his name. In the year 2000,
Mila’s business venture failed, and her creditors sued her for P10 Since the divorce obtained by Sonny was void, his marriage to
million. After obtaining a favorable judgment, the creditors sought Auring was necessarily void ab initio because of his subsisting mar-
to execute on the spouses’ house and lot and condominium, as riage to Lulu (Article 41, Family Code.)
well as Gabby’s mansion and agricultural land.
1. Discuss the status of the 1st and amended marriage 3. Explain the status of the marriage between Lull and Tir-
settlements. so.
The first marriage settlement was valid because it was in writing, The marriage between Lulu and Tirso is also void ab initio be-
signed by the parties and executed before the celebration of the mar- cause Lulu is still validly married to Sonny.
riage.
The subsequent agreement of the parties was void as a modifica- 4. Explain the status the respective filiation of James, John
tion of their marriage settlement. To be valid, the modification must be and Verna.
executed before the celebration of the marriage. The subsequent
agreement of the parties did not effect a dissolution of their conjugal
!17
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
James and John are the illegitimate children of Sonny and Auring death. The Family Code makes this provision applicable to the action
because they were conceived and born outside a valid marriage. Verna for recognition filed by an illegitimate child. Joey has the right to invoke
is an illegitimate child of Lulu and Tirso having been born conceived this provision because it does not impair any vested rights (Article 175,
and born to the invalid marriage of Lulu and Tirso. Verna cannot be Family Code.)
presumed as the legitimate child of Sonny because of the supervening
marriage between Lulu and Tirso even though such marriage is void ab In 1984, Eva, a Filipina, went to work as a nurse in the US. There
initio. The case of Liyao v. Liyao, is not applicable because in that case she met and fell in love with Paul, an American citizen and they
the wife begot a child by another man during her marriage with her got married in 1985. Eva acquired American citizenship in 1987.
estranged husband but no marriage was celebrated between the wife During their sojourn in the Philippines in 1990, they filed a joint
and the father of the child. The child in that case was presumed to be petition for the adoption of Vicky, a 7-year old daughter of Eva’s
the legitimate child of the estranged husband. sister. The government, through the OSG, opposed the petition on
the ground that the petitioners, being both foreigners are disqual-
5. Who are the heirs of Sonny? ’05 – Q2 ified to adopt Vicky.
1. Is the government’s opposition tenable?
The heirs of Sonny are his wife Lulu, and his 2 illegitimate chil-
dren James and John. The void remarriage to Lulu to Tirso did not YES, the position of the government is tenable.
incapacitate her to succeed Sonny. Foreigners are disqualified to adopt unless they fall in any of the
exceptions provided for in the law. Eva and Paul are both foreigners.
Steve was married to Linda, with whom he had a daughter, Tintin. Eva falls in one of the exceptions. She is qualified to adopt because
Steve fathered a son with Dina, his secretary of 20 years, whom she is a former Filipino citizen who wishes to adopt a relative by con-
Dina named Joey, born on September 20, 1981. Joey’s birth cer- sanguinity. Unfortunately, Paul is not qualified to adopt because he
tificate did not indicate his father’s name. Steve died on August does not fall in any of the exceptions. Hence, they cannot adopt jointly.
13, 1993, while Linda died on December 3, 1993, leaving their le- When husband and wife are adopting jointly, both of them must be
gitimate daughter, Tintin, as sole heir. On May, 16, 1994, Dina filed qualified to adopt in their own right. Eva cannot, alone by herself, adopt
a case on behalf, praying that the latter be declared an acknowl- her niece because husband and wife must adopt jointly unless they fall
edged illegitimate son of Steve and Joey be given his share in in any of the exceptions provided for in the law. They cannot adopt
Steve’s estate, which is now being solely held by Tintin. Tintin set separately because they do not fall in any of the exceptions. Hence,
up the defense that an action for recognition shall only be filed whether separately or jointly, Eva and Paul cannot adopt Vicky in the
during the lifetime of the presumed parents and that the excep- Philippines (Domestic Adoption Law [R.A. No. 8552].)
tions under Article 285 of the Civil Code do not apply to him since
the said article has been repealed by the Family Code. In any 2. Would your answer be the same if they sought to adopt
case, according to Tintin, Joey’s birth certificate does not show Eva’s illegitimate daughter?
that Steve is his father.
1. Does Joey have a cause of action against Tintin for No, my answer would be different.
recognition and partition? Eva is qualified to adopt her illegitimate daughter, because she
falls in one of the exceptions that allow foreigners to adopt. She is a
YES, Joey has a cause of action against Tintin. While the Family former Filipino citizen adopting her relative by consanguinity. Eva can
Code has repealed the provisions of the New Civil Code on proof of adopt separately because her case is also an exception to the rule that
filiation, said repeal did not impair vested rights. Joey was born an husband and wife should adopt jointly.
illegitimate child in 1981. As an illegitimate child, he had acquired at
birth, the right to prove his filiation in accordance with the provisions of 3. Supposing that they filed the petition to adopt Vicky in
the New Civil Code in force at that time. Under the New Civil Code, an 2000, will your answer be the same? ’05 – Q5
illegitimate child may file an action to compel his recognition even after
the death of the putative father when the father died during the minority YES, my answer will be the same.
of the child. While the Family Code has repealed this provision, it will The new law on Domestic Adoption allows a foreigner to adopt in
not operate to prejudice Joey who has already acquired a vested right the Philippines if he has been residing in the Philippines for at least
thereto. three (3) years prior to the filing of the petition unless the law waives
the residency requirement. Paul and Eva have not resided in the
2. Are the defenses set up by Tintin tenable? Philippines for the last 3 years. However, Eva will qualify for waiver
because she was a former Filipino citizen who wishes to adopt a rela-
The defenses of Tintin are not tenable. tive by consanguinity within the 4th degree. Unfortunately, Paul will not
The fact that Joey’s birth certificate does not show that Steve was qualify to adopt because he does not fall in any of the instances for
his father is of no moment. The law does not require such mention. waiver to apply. They cannot adopt jointly because she does not fall in
Besides the New Civil Code provides that when the father did not sign any of the exceptions that allow husband and wife to adopt separately.
the birth certificate, his name should not be disclosed therein. While it
is true that capacity to inherit is determined at the time of death of the Hans, a German national, and his Filipino wife, Rhoda, are perma-
decedent and that filiation is an element of capacity to inherit, filiation is nent residents of Canada, they desire so much to adopt Magno,
determined not at the time of the death of the decedent but at the time an 8-year old orphaned boy and a baptismal godson of Rhoda.
of the birth of the child who is born with a status. Such status may Since the accidental death of Magno’s parents in 2004, he has
subsequently change such as legitimation, but legitimation is deemed been staying with his aunt who, however, could hardly afford to
to retroact to the time of birth. In the same manner, recognition when feed her own family. Unfortunately, Hans and Rhoda cannot come
given voluntarily by the father, or decreed by the court, retroacts to the to the Philippines to adopt Magno although they possess all the
time of the child’s birth. qualifications as adoptive parents. Is there a possibility for them
to adopt Magno? ’05 – Q6
3. Supposing that Joey died during the pendency of the
action, should the action be dismissed? ’05 – Q4 Under R.A. No. 8043 establishing the rules for inter-country adop-
tion of Filipino children, the spouses may file an application to adopt a
If Joey filed the action and died when the New Civil Code was still Filipino child with the Inter-Country Adoption Board (ICAB) after they
in force, his action would be dismissed because the action was not have been determined eligible and fit to adopt by the State Welfare
transmissible to the heirs of the illegitimate child (Conde v. Abaya, 13 Agency or a licensed adoption agency in Canada. The Canadian
Phil. 249 [1909].) But if the action was filed after the effectivity of the agency will forward the required supporting documents to the ICAB for
Family Code, and Joey died during the pendency of the action for matching with a Filipino child. The spouses, after filing a petition with
recognition, it should not be dismissed. the ICAB, shall be issued the Placement Authority and when all the
Under the present Family Code, an action commenced by a legit- travel documents of the child who is declared eligible for adoption as
imate child to claim his legitimate filiation is not extinguished by his determined by the ICAB are ready, the adoptive parents or any one of
!18
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
them shall personally fetch the child in the Philippines for adoption in
the court of foreigner’s country. It is said that “equity follows the law.” What do you understand by
this phrase, and what are its basic implications? ’03 – Q1
Distinguish between substitute parental authority and special
parental authority. ’04 – Q2a(1) “Equity follows the law” means that courts exercising equity juris-
diction are bound by rules of law and have no arbitrary discretion to
In substitute parental authority, the parents lose their parental disregard them (Arsenal v. Intermediate Appellate Court, 143 SCRA 40
authority in favor of a substitute who acquires it to the exclusion of the [1986].) Equity is applied only in the absence of but never against
parents. statutory law (Toyota Motor Phil. v. Court of Appeals, 216 SCRA 236
In special parental authority, the parents or anyone exercising [1992].)
parental authority does not lose parental authority. Those who are
charged with special parental authority exercise authority only during Gene and Jane, Filipinos, met and got married in England while
the time that the child is in their custody or supervision. both were taking up post-graduate courses there. A few years
Substitute parental authority displaces parental authority while after their graduation, they decided to annul their marriage. Jane
special parental authority concurs with parental authority. filed an action to annul her marriage to Jean in England on the
ground of the latter’s sterility, a ground for annulment of marriage
RN and DM, without any impediment to marry each other, had in England. The English Court decreed the marriage annulled.
been living without the benefit of church blessings. Their com- Returning to the Philippines, Gene asked you whether or not he
mon-law union resulted in the birth of ZMN. 2 years later, they got would now be free to marry his former girlfriend. What would your
married in a civil ceremony. Could ZMN be legitimated? ’04 – Q3a legal advice be? ’03 – Q2
ZMN was legitimated by the subsequent marriage of RN and DM NO, Gene is not free to marry his former girlfriend. His marriage
because at the time he was conceived, RN and DM could have validly to Jane, if valid according to the forms and solemnities of British law, is
married each other. Under the Family Code, children conceived and valid here (Article 17, 1st Par., NCC.) However, since Gene and Jane
born outside of wedlock of parents who, at the time of the former’s are still Filipinos, although living in England, the dissolution of their
conception, were not disqualified by any impediment to marry each marriage is still governed by Philippine law (Article 15, NCC.) Since
other are legitimated by the subsequent marriage of the parents. sterility is not one the grounds for the annulment of a marriage under
Article 45 of the Family Code, the annulment of Gene’s marriage to
PH and LV are HK Chinese. Their parents are now Filipino citizens Jane on that ground is not valid in the Philippines (Article 17, NCC.)
who live in Manila. While still students in MNS State, they got
married although they are 1st cousins. It appears that both in HK Miss Universe, from Finland, came to the Philippines on a tourist
and in MNS State, 1st cousins could marry legally. They plan to visa. While in this country, she fell in love with and married a Fil-
reside and set up business in the Philippines. But they have been ipino doctor. Her tourist visa expired and after the maximum ex-
informed, however, that the marriage of 1st cousins is considered tension allowed therefor, the BID is presently demanding that she
void from the beginning by reason of public policy. They seek immediately leave the country but she refuses to do so, claiming
your advice on whether their civil status will be adversely affected that she is already a Filipino citizen. Can the BID still order the
by Philippine domestic law. What is your advice? ’04 – Q7a deportation of Miss Universe? ’03 – Q3
My advice is as follows: YES, the BID can order the deportation of Miss Universe.
The civil status of PH and LV will not be adversely affected by The marriage of an alien woman to a Filipino does not automati-
Philippine law because they are nationals of Hong Kong and not Fil- cally make her a Filipino citizen. She must first prove in an appropriate
ipino citizens. proceeding that she does not have any disqualification for Philippine
Being foreigners, their status, condition and legal capacity in the citizenship (Yung Uan Chu v. Republic, 159 SCRA 593 [1988].) Since
Philippines are governed by the law of Hong Kong, the country of Miss Universe is still a foreigner, despite her marriage to a Filipino
which they are citizens. Since their marriage is valid under Hong Kong doctor, she can be deported upon expiry of her allowable stay in the
law, it shall be valid and respected in the Philippines. Philippines.
BONI and ANNE met while working overseas. They became If a pregnant woman passenger of a bus were to suffer an abor-
sweethearts and got engaged to be married on New Year’s Eve tion following a vehicular accident due to the gross negligence of
aboard a cruise ship in the Caribbean. They took the proper li- the bus driver, may she and her husband claim damages from the
cense to marry in NYC, where there is a Filipino consulate. But as bus company for the death of their unborn child? ’03 – Q4
planned, the wedding ceremony was officiated by the captain of
the Norwegian-registered vessel in a private suite among selected NO, the spouses cannot recover actual damages in the form of
friends. Back in Manila, Anne discovered that Boni had been mar- indemnity for the loss of life of the unborn child. This is so because the
ried in Bacolod 5 years earlier but divorced in Olso only last year. unborn child is not yet considered a person and the law allows indem-
His 1st wife was also a Filipina but now based in Sweden. Boni nity only for the loss of life of persons. The mother, however, may re-
himself is a resident of Norway where he and Anne planned to live cover damages for the bodily injury she suffered from the loss of the
permanently. fetus which is considered a part of her internal organs. The parents
Anne attains your services to advise her on whether her marriage may also recover damages for injuries that are inflicted directly against
to Boni is valid under Philippine law. Is there anything else she them, e.g., moral damages for mental anguish that attended the loss of
should do under the circumstances? ’04 – Q10a the unborn child. Since there is gross negligence, exemplary damages
can also be recovered (Geluz v. Court of Appeals, 2 SCRA 801 [1961].)
If Boni is still a Filipino citizen, his legal capacity is governed by
Philippine law (Article 15, Civil Code.) Under Philippine law, his mar- Which of the following remedies, i.e., (a) declaration of nullity of
riage to Anne is void because of a prior existing marriage which was marriage; (b) annulment of marriage; (c) legal separation; and/or
not dissolved by the divorce decreed in Oslo. Divorce obtained abroad (d) separation of property, can an aggrieved spouse avail himself/
by a Filipino is not recognized. herself avail of –
If Boni was no longer a Filipino, the divorce is valid. Hence, his 1. If the wife discovers after the marriage that her husband
marriage to Anne is valid if celebrated in accordance with the law of the as AIDS;
place where it was celebrated. Since the marriage was celebrated
aboard a vessel of Norwegian registry, Norwegian law applies. If the Since AIDS is a serious and incurable sexually transmissible dis-
Ship Captain has authority to solemnize the marriage aboard his ship, ease, the wife may file an action for annulment of the marriage on this
the marriage is valid and shall be recognized in the Philippines. ground whether such fact was concealed or not from the wife, provided
As to the second question, if Boni is still a Filipino citizen, Anne that the disease was present at the time of the marriage. The marriage
can file an action for declaration of nullity of her marriage to him.
!19
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
is voidable even though the husband was not aware that he had the boy’s injury: the teacher, the school authorities, or the guilty
disease at the time of marriage. boy’s parents? ’03 – Q8
2. If the wife goes abroad to work as a nurse and refuses The school, its administrators, and teachers have special parental
to come home after the expiration of her 3 year contract authority and responsibility over the minor child while under their su-
there; pervision, instruction or custody (Article 218, FC.) They are principally
and solidarily liable for the damages caused by the acts or omissions
If the wife refuses to come home for three (3) months after the of the unemancipated minor unless they exercised the proper diligence
expiration of her contract, she is presumed to have abandoned her required under the circumstances (Article 219, FC.)
husband and may file an action for judicial separation of property. If the In the problem, the teacher and the school authorities are liable
refusal continues for more than one (1) year from the expiration of her for the blindness of the victim, because the student who caused it was
contract, the husband may file an action for legal separation under under their special parental authority and they were negligent. They
Article 55(10) of the Family Code on the ground of abandonment of were negligent because they were chatting in the corridor during the
petitioner by respondent without justifiable cause for more than one (1) class period when the stabbing incident occurred. The incident could
year. The wife is deemed to have abandoned the husband when she have been prevented had the teacher been inside the classroom at
leaves the conjugal dwelling without any intention of returning (Article that time. The guilty boy’s parents are subsidiarily liable under Article
101, FC.) The intention not to return cannot be presumed during the 3- 219 of the Family Code.
year period of her contract.
On May 1, 1975, Facundo married Petra, by whom he had a son
3. If the husband discovers after the marriage that his wife Sotero. Petra died on July 1, 1996, while Facundo died on January
has been a prostitute before they got married; 1, 2002. Before his demise, Facundo had married, on July 1, 2000,
Querica. Having lived together as husband and wife since July 1,
If the husband discovers after the marriage that his wife was a 1990, Facundo did not secure a license marriage but executed the
prostitute before they got married, he has no remedy. requisite affidavit for the purpose. To ensure that his inheritance
No misrepresentation or deceit as to character, health, rank, for- rights are not adversely affected by his father’s 2nd marriage,
tune or chastity shall constitute fraud as legal ground for an action for Sotero now brings suit to seek a declaration of the nullity of mar-
the annulment of marriage (Article 46, FC.) riage of Facundo and Querica, grounded on the absence of a valid
marriage license. Querica contends that there was no need for a
4. If the husband has a serious affair with his secretary marriage license in view of her having lived continuously with
and he refuses to stop notwithstanding advice from Facundo for 5 years before their marriage and that Sotero has no
relatives and friends; and legal personality to seek a declaration of nullity of the marriage
since Facundo is now deceased.
The wife may file an action for legal separation. The husband’s 1. Is the marriage of Facundo and Querica valid, despite
sexual infidelity is a ground for legal separation (Article 55, FC.) She the absence of marriage license?
may also file an action for judicial separation of property for failure of
her husband to comply with his marital duty of fidelity (Articles 135(4) The marriage with Querica is void. The exemption from the re-
and 101, FC.) quirement of a marriage license under Article 34, Family Code, re-
quires that the man and woman must have lived together and husband
5. If the husband beats up his wife every time he comes and wife for at least five (5) years and without any legal impediment to
home drunk. ’03 – Q6 marry each other during those five (5) years. The cohabitation of Fa-
cundo and Querica for six years from 1990 to July 1, 1996 when Petra
The wife may file an action for legal separation on the ground of died was one with a legal impediment. On the other hand, the cohabi-
repeated physical violence on her person (Article 55(1), FC.) She may tation thereafter until the marriage on July 1, 2000, although free from
also file an action for judicial separation of property for failure of the legal impediment, did not meet the 5-year cohabitation requirement,
husband to comply with his marital duty to comply with his marital duty
of mutual respect (Articles 135(4) and 101, FC.) She may also file an 2. Does Sotero have the personality to seek a declaration
action for judicial declaration of nullity of the marriage if the husband’s of nullity of the marriage, especially now that Facundo is
behavior constitutes psychological incapacity at the time of the cele- already deceased? ’02 – Q1
bration of the marriage.
A void marriage may be questioned by any interested party in any
Lina, a former Filipina who became an American citizen after her proceeding where the resolution of the issue is material. Being a com-
marriage to an American husband, would like to adopt in the pulsory heir, Sotero has the personality to question the validity of the
Philippines, jointly with her husband, one of her minor brothers. marriage of Facundo and Querica. Otherwise, his participation in the
Assuming that all the required consents have been obtained, estate of Facundo would be affected (Niñal v. Bayadog, 328 SCRA 122
could the contemplated joint adoption in the Philippines prosper? [2000].)
’03 – Q7; ’96 – Q6(2)
Give a brief definition or explanation of the term “psychological
YES. Lina and her American can jointly adopt a minor brother of incapacity” as a ground for the declaration of nullity of a mar-
Lina because she and her husband are both qualified to adopt. Lina, riage. ’02 – Q2a
as a former Filipino citizen, can adopt her minor brother under Section
7(b)(i) of R.A. No. 8552 (Domestic Adoption Act of 1998), or under “Psychological incapacity” is a mental disorder of the most serious
Article 184(3)(a) of the Family Code. The alien husband can now adopt type showing the incapability of one or both spouses to comply with the
under Section 7(b) of R.A. No. 8552. The Supreme Court has held in essential marital obligations of love, respect, cohabitation, mutual help
several cases that when husband and wife are required to adopt jointly, and support, trust and commitment. It must be characterized by [juridi-
each of them must be qualified to adopt in his or her own right (Repub- cal] antecedence, gravity and incurability and its root cause must be
lic v. Toledano, 233 SCRA 9 [1994].) However, the American husband clinically identified or examined (Santos v. Court of Appeals, 240 SCRA
must comply with the requirements of the law including the residency 20 [1995].)
requirement of three (3) years. Otherwise, the adoption will not be
allowed. If exiting at the inception of marriage, would the state of being of
unsound mind or the concealment of dug addition, habitual alco-
If during class hours, while the teacher was chatting with other holism, homosexuality or lesbianism be considered indicia of
teachers in the school corridor, a 7-year male pupil stabs the eye psychological incapacity? ’02 – Q2b
of another boy with a ball pen during a fight, causing permanent
blindness to the victim, who could be liable for damages for the In the case of Santos v. Court of Appeals, 240 SCRA 20 [1995],
the Supreme Court held that being of unsound mind, drug addiction,
!20
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
habitual alcoholism, lesbianism or homosexuality may be indicia of For 5 years since 1989, Tony, a bank VP, and Susan, an entertain-
psychological incapacity, depending on the degree of severity of the er, lived together as husband and wife without the benefit of mar-
disorder. However, the concealment of drug addition, habitual alco- riage although they were capacitated to many each other. Since
holism, lesbianism or homosexuality is a ground of annulment mar- Tony's salary was more than enough for their needs, Susan
riage. stopped working and merely "kept house". During that period,
Tony was able to buy a lot and house in a plush subdivision.
If drug addition, habitual alcoholism, lesbianism or homosexuality However, after 5 years, Tony and Susan decided to separate.
should occur only during the marriage, would these constitute 1. Who will be entitled to the house and lot?
grounds for a declaration of nullity or for legal separation, or
would they render the marriage voidable? ’02 – Q2c Tony and Susan are entitled to the house and lot as co-owners in
equal shares. Under Article 147 of the Family Code, when a man and a
In accordance with law, if drug addition, habitual alcoholism, les- woman who are capacitated to marry each other lived exclusively with
bianism or homosexuality should occur only during the marriage, they: each other as husband and wife, the property acquired during their
1) Will not constitute as grounds for declaration of nullity (Arti- cohabitation are presumed to have been obtained by their joint efforts,
cle 36, Family Code); work or industry and shall be owned by them in equal shares. This is
2) Will constitute as grounds for legal separation (Article 55, true even though the efforts of one of them consisted merely in his or
FC); her care and maintenance of the family and of the household.
3) Will not constitute as grounds to render the marriage void-
able (Articles 45 and 46, FC.) 2. Would it make any difference if Tony could not marry
Susan because he was previously married to Alice from
A German couple filed a petition for adoption of a minor Filipino whom he is legally separated? ’00 – Q2
child with the RTX of Makati under the provisions of the Child and
Youth Welfare Code which allowed aliens to adopt. Before the YES, it would make a difference. Under Article 148 of the Family
petition could be heard, the Family Code, which repealed the Code, when the parties to the cohabitation could not marry each other
Child and Youth Welfare Code, came into effect. Consequently, because of an impediment, only those properties acquired by both of
the OSG filed a MTD the petition, on the ground that the Family them through their actual joint contribution of money, property, or In-
Code prohibits aliens from adopting. If you were the judge, how dustry shall be owned by them in common in proportion to their respec-
will you rule on the motion? ’01 – Q2 tive contributions. The efforts of one of the parties in maintaining the
family and household are not considered adequate contribution in the
The motion to dismiss the petition for adoption should be denied. acquisition of the properties.
The law that should govern the action is the law in force at the time of Since Susan did not contribute to the acquisition of the house and
filing of the petition. At that time, it was the Child and Youth Welfare lot, she has no share therein. If Tony cohabited with Susan after his
Code that was in effect, not the Family Code. Petitioners have already legal separation from Alice, the house and lot is his exclusive property.
acquired a vested right on their qualification to adopt which cannot be If he cohabited with Susan before his legal separation from Alice, the
taken away by the Family Code (Republic v. Miller, G.R. No. 125932, house and lot belongs to his community or partnership with Alice.
April 21, 1999, citing Republic v. Court of Appeals, 205 SCRA 356
[1992]) Cristy and her late husband Luis had 2 children, Rose and
Patrick, One summer, her mother-in-law, aged 70, took the 2 chil-
[Note: If the examinee based his answer on the current law, R.A. dren, then aged 10 and 12, with her on a boat trip to Cebu. Unfor-
No. 8552, his answer should be considered correct. This question is tunately, the vessel sank en route, and the bodies of the 3 were
based on the repealed provision of the Family Code on Adoption.] never found. None of the survivors ever saw them on the water.
On the settlement of her mother-in-law's estate, Cristy files a
As finance officer of K and Co., Victorino arranged a loan of P5M claim for a share of her estate on the ground that the same was
from PNB for the corporation. However, he was required by the inherited by her children from their grandmother in representation
bank to sign a Continuing Surety Agreement to secure the repay- of their father, and she inherited the same from them. Will her
ment of the loan. The corporation failed to pay the loan, and the action prosper? ’00 – Q3b
bank obtained a judgment against it and Victorino, jointly and
severally. To enforce the judgment, the sheriff levied on a farm NO, her action will not prosper. Since there was no proof as to
owned by the conjugal partnership of Victorino and his wife Elsa. who died first, all the three are deemed to have died at the same time
Is the levy proper or not? ’00 – Q1a and there was no transmission of rights from one to another, applying
Article 43 of the New Civil Code.
The levy is not proper there being no showing that the surety
agreement executed by the husband redounded to the benefit of the Alternative Answer:
family. An obligation contracted by the husband alone is chargeable
against the conjugal partnership only when it was contracted for the NO, her action will not prosper. Under Article 43 of the New Civil
benefit of the family. When the obligation was contracted on behalf of Code, inasmuch as there is no proof as to who died first, all the three
the family business, the law presumes that such obligation will redound are presumed to have died at the same time and there could be no
to the benefit of the family. However, when the obligation was to guar- transmission of rights among them. Her children not having inherited
antee the debt of a third party, as in the problem, the obligation is pre- from their grandmother, Cristy has no right to share in her mother-in-
sumed for the benefit of the third party, not the family. Hence, for the law's estate. She cannot share in her own right as she is not a legal
obligation under the surety agreement to be chargeable against the heir of her mother-in-law. The survivorship provision of Rule 131 of the
partnership it must be proven that the family was benefited and that the Rules of Court does not apply to the problem. It applies only to those
benefit was a direct result of such agreement (Ayala Investment & cases where the issue involved is not succession.
Development Corp. v. Court of Appeals, 286 SCRA 272 [1998].)
Sometime in 1990, Sarah, born a Filipino but by then a naturalized
On April 15, 1980, Rene and Angelina were married to each other American citizen, and her American husband Tom, filed a petition
without a marriage settlement. In 1985, they acquired a parcel of in the RTC of Makati, for the adoption of the minor child of her
land in QC. On June 1, 1990, when Angelina was away in Baguio, sister, a Filipina. Can the petition be granted? ’00 – Q5
Rene sold the said lot to Marcelo. Is the sale void or voidable? ’00
– Q1b It depends. If Tom and Sarah have been residing in the Philip-
pines for at least 3 years prior to the effectivity of R.A. No. 8552, the
The sale is void. Since the sale was executed in 1990, the Family petition may be granted. Otherwise, the petition cannot be granted
Code is the law applicable. Under Article 124 of the FC, the sale of a because the American husband is not qualified to adopt.
conjugal property by a spouse without the consent of the other is void. While the petition for adoption was filed in 1990, it was considered
refilled upon the effectivity of R.A. No. 8552, the Domestic Adoption Act
!21
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
of 1998. This is the law applicable, the petition still being pending in the marriage is void, unless it was contracted with either or both parties
lower court. believing in good faith that the mayor had the legal authority to solem-
Under the Act, Sarah and Tom must adopt jointly because they do nize this particular marriage (Article 35, par. 2, Family Code.)
not fall in any of the exceptions where one of them may adopt alone.
When husband and wife must adopt jointly, the Supreme Court has Alternative Answer:
held in a line of cases that both of them must be qualified to adopt.
While Sarah, an alien, is qualified to adopt under Section 7(b)(1) of the The marriage is valid. Under the Local Government Code, the
Act for being a former Filipino citizen who seeks to adopt a relative authority of a mayor to solemnize marriages is not restricted within his
within the 4th degree of consanguinity or affinity, Tom, an alien, is not municipality implying that he has the authority even outside the territory
qualified to adopt, their petition has to be denied. However, if they have thereof. Hence, the marriage he solemnized outside his municipality is
been residents of the Philippines three years prior to the effectivity of valid. And even assuming that his authority is restricted within his mu-
the Act and continue to reside here until the decree of adoption is en- nicipality, such marriage will nevertheless, be valid because solemniz-
tered, they are qualified to adopt the nephew of Sarah until Section ing the marriage outside said municipality is a mere irregularity apply-
7(b) thereof, and the petition may be granted. ing by analogy the case of Navarro v. Domagtoy, 259 SCRA 129
[1996]. In this case, the Supreme Court held that the celebration by a
Elated that her sister who had been married for 5 years was preg- judge of a marriage outside the jurisdiction of his court is a mere irreg-
nant for the 1st time, Alma donated P100,000 to the unborn child. ularity that did not affect the validity of the marriage notwithstanding
Unfortunately, the baby died 1 hour after delivery. May Alma re- Article 7 of the Family Code which provides that an incumbent member
cover the P100.000 that she had donated to said baby before it of the judiciary is authorized to solemnize marriages only within the
was born considering that the baby died? Stated otherwise, is the court’s jurisdiction.
donation valid and binding? ’99 – Q1
What do you understand by “presumptive legitime,” in what case
The donation is valid and binding, being an act favorable to the or cases must the parent deliver such legitime to the children,
unborn child, but only if the baby had an intra-uterine life of not less and what are the legal effects in each case if the parent fails to do
than seven months and provided there was due acceptance of the so? ’99 – Q5
donation by the proper person representing said child. If the child had
less than seven months of intra-uterine life, it is not deemed born since PRESUMPTIVE LEGITIME is not defined in the law. Its definition
it died less than 24 hours following its delivery, in which ease the dona- must have been taken from Act No. 2710, the Old Divorce Law, which
tion never became effective since the donee never became a person, required the delivery to the legitimate children of “the equivalent of
birth being determinative of personality. what would have been due to them as their legal portion if said spouse
had died intestate immediately after the dissolution of the community of
What is the status of the following marriages and why? property.” As used in the Family Code, presumptive legitime is under-
1. A marriage between two 19-year olds without parental stood as the equivalent of the legitimate children's legitimes assuming
consent; that the spouses had died immediately after the dissolution of the
community of property.
The marriage is voidable. The consent of the parties to the mar- Presumptive legitime is required to be delivered to the common
riage was defective. Being below 21 years old, the consent of the par- children of the spouses when the marriage is annulled or declared void
ties is not full without the consent of their parents. The consent of the ab initio and possibly, when the conjugal partnership or absolute com-
parents of the parties to the marriage is indispensable for its validity. munity is dissolved as in the case of legal separation. Failure of the
parents to deliver the presumptive legitime will make their subsequent
2. A marriage between two 21-year olds without parental marriage null and void under Article 53 of the Family Code.
advice;
Two (2) months after the death of her husband who was shot by
Between 21-year olds, the marriage is valid despite the absence unknown criminal elements on his way home from office, Rose
of parental advice, because such absence is merely an irregularity married her childhood boyfriend, and seven (7) months after said
affecting a formal requisite – i.e., the marriage license – and does not marriage, she delivered a baby. In the absence of any evidence
affect the validity of the marriage itself. This is without prejudice to the from Rose as to who is her child's father, what status does the
civil, criminal, or administrative liability of the party responsible therefor. law give to said child? '99 – Q6a
3. A marriage between 2 Filipino 1st cousins in Spain where The child is legitimate of the second marriage under Article 168(2)
such marriage is valid; of the Family Code which provides that a “child born after one hundred
eighty days following the celebration of the subsequent marriage is
By reason of public policy, the marriage between Filipino first considered to have been conceived during such marriage, even though
cousins is void [Article 38, par. (1), Family Code], and the fact that it is it be born within three hundred days after the termination of the former
considered a valid marriage in a foreign country in this case, Spain— marriage.”
does not validate it, being an exception to the general rule in Article 26
of said Code which accords validity to all marriage solemnized outside Nestor is the illegitimate son of Dr. Perez. When Dr. Perez died,
the Philippine x x x and valid there as such. Nestor intervened in the settlement of his father's estate, claiming
that he is the illegitimate son of said deceased, but the legitimate
4. A marriage between two Filipinos in HK before a notary family of Dr. Perez is denying Nestor's claim. What evidence or
public; pieces of evidence should Nestor present so that he may receive
his rightful share in his father's estate? ’99 – Q5b
It depends. If the marriage before the notary public is valid under
Hong Kong Law, the marriage is valid in the Philippines. Otherwise, the To be able to inherit, the illegitimate filiation of Nestor must have
marriage that is invalid in Hong Kong will be invalid in the Philippines. been admitted by his father in any of the following:
(1) The record of birth appearing in the civil register;
5. A marriage solemnized by a town mayor 3 towns away (2) A final judgment;
from his jurisdiction. ’99 – Q3 (3) A public document signed by the father; or
(4) A private handwritten document signed by the father.
Under the Local Government Code, a town mayor may validly (Article 175 in relation to Article 172 of the Family Code.)
solemnize a marriage but said law is silent as to the territorial limits for
the exercise by a town mayor of such authority. However, by analogy, Jaime, who is 65, and his son, Willy, who is 25, died in a plane
with the authority of members of the Judiciary to solemnize a marriage, crash. There is no proof as to who died first. Jaime's only surviv-
it would seem that the mayor did not have the requisite authority to ing heir is his wife, Julia, who is also Willy's mother. Willy's sur-
solemnize a marriage outside of his territorial jurisdiction. Hence, the viving heirs are his mother, Julia and his wife, Wilma.
!22
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
1. In the settlement of Jaime's estate, can Wilma success- gal property and not exclusive property in accordance with the principle
fully claim that her late husband, Willy had a hereditary of "reverse accession" provided for in Article 158, Civil Code.
share since he was much younger than his father and,
therefore, should be presumed to have survived longer? Another Answer:
NO, Wilma cannot successfully claim that Willy had a hereditary Sofia, being her deceased son's legal heir concurring with his
share in his father's estate. Under Article 43, Civil Code, two persons surviving spouse (Articles 985, 986 and 997, Civil Code), may rightfully
“who are called to succeed each other” are presumed to have died at claim that the house and lot are not conjugal but belong to the heredi-
the same time, in the absence of proof as to which of them died first. tary estate of Bob. The value of the land being more than the cost of
This presumption of simultaneous death applies in cases involving the the improvement (Article 120, Family Code.)
question of succession as between the two who died, who in this case
are mutual heirs, being father and son. 2. Will your answer be the same if Bob died before August
3, 1988? ’99 – Q6
2. Suppose Jaime had a life insurance policy with his wife,
Julia, and his son, Willy, as the beneficiaries. Can Wilma YES, the answer would still be the same. Since Bob and Issa
successfully claim that one-half of the proceeds should contracted their marriage way back in 1970, then the property relations
belong to Willy's estate? ’99 – Q3 that will govern is still the relative community or conjugal partnership of
gains (Article 119, Civil Code). It will not matter if Bob died before or
YES, Wilma can invoke the presumption of survivorship and claim after August 3, 1988 (effectivity date of the Family Code), what matters
that one-half of the proceeds should belong to Willy's estate, under is the date when the marriage was contracted. As Bob and Issa con-
Sec. 3(jj), par. 5, Rule 131, Rules of Court, as the dispute does not tracted their marriage way back in 1970, the property relation that gov-
involve succession. Under this presumption, the person between the erns them is still the conjugal partnership of gains (Article 158, Civil
ages of 15 and 60 years is deemed to have survived one whose age Code.)
was over 60 at the time of their deaths. The estate of Willy endowed
with juridical personality stands in place and stead of Willy, as benefi- Another Answer:
ciary.
If Bob died before August 3, 1988, which is the date the Family
In 1973, Mauricio, a Filipino pensioner of the US Government, Code took effect, the answer will not be the same. Article 158 Civil
contracted a bigamous marriage with Erlinda, despite the fact that Code would then apply. The land would then be deemed conjugal,
his 1st wife, Carol, was still living. In 1975, Mauricio and Erlinda, along with the house, since conjugal funds were used in constructing it.
jointly bought a parcel of rice land, with the title being placed The husband's estate would be entitled to a reimbursement of the
jointly in their names. Shortly thereafter, they purchased another value of the land from conjugal partnership funds.
property (a house and lot) which was place in her name alone as
the buyer. In 1981, Mauricio died, and Carol promptly filed an ac- How would you compare the Civil Law system in its governance
tion against Erlinda to recover both the rice land and the house and trend with that of the Common Law system? ’97 – Q1
and lot, claiming them to be conjugal property of the 1st marriage.
Erlinda contends she and the late Mauricio were co-owners of the As regards “governance”:
rice land; and with respect to the house and lot, she claims she is Governance in Civil Law is codal, statutory and written law. It is
the exclusive owner. Assuming that she fails to prove that she additionally derived from case law. Common law is basically derived
had actually used her own money in either purchase, how do you from case law.
decide the case? ’98 – Q5 As regards “trend”:
Civil law is now tending to rely more and more on decisions of the
Carol’s action to recover both the rice land and the house and lot courts explaining the laws. Common law is now codifying laws more
is well-founded. Both are conjugal property, in view of the failure of and more. So they are now merging towards similar systems.
Erlinda, the wife in a bigamous marriage, to prove that her money was
used in the purchases made. The Supreme Court in a case applied Additional Answers:
Article 148 of the Family Code, despite the fact that the husband’s
death took place prior to the effectivity of said law. However, even un- COMMON LAW refers to the traditional part of the law as distinct
der Article 144 of the Civil Code, the same conclusion would have from legislation; it refers to the universal part of law as distinct from
been reached in view of the bigamous nature of the second marriage. particular local customs (Encyclopedia Americana, Vol. 7.)
On the other hand, CIVIL LAW is understood to be that branch of
In 1970, Bob and Issa got married without executing a marriage law governing the relationship of persons in respect of their personal
settlement. In 1975, Bob inherited from his father a residential lot and private interests as distinguished from both public and in-
upon which, in 1981, he constructed a two-room bungalow with ternational laws.
savings from his own earnings. At that time, the lot was worth In common law countries, the traditional responsibility has for the
P800.000 while the house, when finished cost P600,000. In 1989, most part been with the judges; in civil law countries, the task is pri-
Bob died, survived only by his wife, Issa and his mother, Sofia. marily reposed on the lawmakers. Contemporary practices, however,
Assuming that the relative values of both assets remained at the so indicate a trend towards centralizing that function to professional
same proportion: groups that may indeed, see the gradual assimilation in time of both
1. State whether Sofia can rightfully claim that the house systems (Vitug, Civil Law and Jurisprudence, p. XX.)
and lot are not conjugal but exclusive property of her
deceased son. In Civil Law, the statutes theoretically take precedence over court
decisions interpreting them; while in Common Law, the court decisions
Since Bob and Issa got married in 1970, then the law that governs resolving specific cases are regarded as law rather than the statutes
is the New Civil Code (Persons), in which case, the property relations themselves which are, at the start, merely embodiments of case law.
that should be applied as regards the property of the spouses is the Civil Law is code law or written law, while Common Law is case law.
system of relative community or conjugal partnership of gains (Article Civil Law adopts the deductive method – from the general to the par-
119, Civil Code). By conjugal partnership of gains, the husband and ticular, while the Common Law uses the inductive approach – from the
the wife place in a common fund the fruits of their separate property particular to the general. Common Law relies on equity. Civil Law an-
and the income from their work or Industry (Article 142, Civil Code). In chors itself on the letter of the law. The civilists are for the judge-proof
this instance, the lot inherited by Bob in 1975 is his own separate law even as the Common Law Is judge-made law. Civil Law judges are
property, he having acquired the same by lucrative title (Par. 2, Article merely supposed to apply laws and not interpret them.
148, Civil Code). However, the house constructed from his own sav-
ings in 1981 during the subsistence of his marriage with Issa is conju- In the context that the term “prejudicial question” is used in Civil
Law, state its:
!23
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
1. Concept; in consonance with the rules on co-ownership. Hence, Luis
gets 2/5 while Rizza gets 3/5 of P500,000;
A prejudicial question is one which must be decided first before a c. The car worth P100,000 shall be exclusively owned by Riz-
criminal action may be instituted or may proceed because a decision za, the same having been donated to her by her parents.
therein is vital to the judgment in the criminal case. In the case of Peo-
ple v. Adelo Aragon (L-5930, February 17, 1954), the Supreme Court 2. What would your answer be (to the above question) had
defined it as one which arises in a case, the resolution of which ques- Luis and Rizza been living together all the time, i.e.,
tion is a logical antecedent of the issues involved in said case and the since 20 years ago, under a valid marriage? ’97 – Q4
cognizance of which pertains to another tribunal (Paras, Vol. 1, Civil
Code Annotation, 1989 ed. p, 194.) The property relations between Luis and Rizza, their marriage
having been celebrated 20 years ago (under the Civil Code) shall be
2. Requisites; governed by the conjugal partnership of gains, under which the hus-
band and wife place in a common fund the proceeds, products, fruits
1. The prejudicial question must be determinative of the case and income from their separate properties and those acquired by either
before the court. or both spouses through their efforts or by chance, and upon dissolu-
2. Jurisdiction to try said question must be lodged in another tion of the marriage or of the partnership, the net gains or benefits
tribunal. obtained by either or both spouse shall be divided equally between
them (Article 142, Civil Code.)
Additional Answer: Thus:
a. The salary of Luis deposited in the bank in the amount of
1. The civil action involves an issue similar or intimately related P200,000 and the house and lot valued at P500,000 shall be
to the issue raised in the criminal action; and divided equally between Luis and Rizza;
2. The resolution of such issue determines whether or not the b. However, the car worth P100,000 donated to Rizza by her
criminal action may proceed. parents shall be considered to her own paraphernal property,
having been acquired by lucrative title (par. 2, Article 148,
3. Consequences. ’97 – Q3 Civil Code.)
The criminal case must be suspended. Thus, in a criminal case Under what conditions, respectively, may drug addiction be a
for damages to one's property, a civil action that involves the owner- ground, if at all, for:
ship of said property should first be resolved (De Leon v. Mabanag, 38 1. A declaration of nullity of marriage;
Phil. 202.)
1. The drug addiction must amount to psychological incapacity
Luis and Rizza, both 26 years of age and single, live exclusively to comply with the essential obligations of marriage;
with each other as husband and wife without the benefit of mar- 2. It must be antecedent (existing at the time of marriage),
riage, Luis is gainfully employed, Rizza is not employed, stays at grave and incurable:
home, and takes charge of the household chores. After living 3. The case must be filed before August 1, 1988. Because if
together for a little over 20 years, Luis was able to save from his they got married before August 3, 1988, it must be filed be-
salary earnings during that period the amount of P200,000 pres- fore August 1, 1988.
ently deposited in a bank. A house and lot worth P500,000 was
recently purchased for the same amount by the couple. Of the 2. An annulment of the marriage contract; and
P500,000 used by the common-law spouses to purchase the
property, P200,000 had come from the sale of palay harvested 1. The drug addiction must be concealed;
from the hacienda owned by Luis and P300,000 from the rentals 2. It must exist at the time of marriage;
of a building belonging to Rizza. In fine, the sum of P500,000 had 3. There should be no cohabitation with full knowledge of the
been part of the fruits received during the period of cohabitation drug addiction;
from their separate property, a car worth P100.000.00 being used 4. The case is filed within five (5) years from discovery.
by the common-law spouses, was donated just months ago to
Rizza by her parents. Luis and Rizza now decide to terminate their 3. Legal separation between the spouses? ’97 – Q5
cohabitation, and they ask you to give them your legal advice on
the following: 1. There should be no condonation or consent to the drug ad-
1. How, under the law should the bank deposit of P200,000 diction;
the house and lot valued at P500,000 and the car worth 2. The action must be filed within five (5) years from the occur-
P100,000 be allocated to them? rence of the cause;
3. Drug addiction arises during the marriage and not at the time
Article 147 of the Family Code provides in part that when a man of marriage.
and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or Is there any difference in their legal effect between ignorance of
under a void marriage, their wages and salaries shall be owned by the law and ignorance or mistake of fact? '96 - Q1(1)
them in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules of co- YES, there is a difference. While ignorance of the law is not an
ownership. excuse for not complying with it, ignorance of fact eliminates criminal
In the absence of proof to the contrary, properties acquired while intent as long as there is no negligence. In addition, mistake on a
they lived together shall be presumed to have been obtained by their doubtful or difficult question of law may be the basis of good faith (Arti-
joint efforts, work or industry, and shall be owned by them in equal cle 526, NCC.) Mistake of fact may, furthermore, vitiate consent in a
shares. A party who did not participate in the acquisition by the other contract and make it voidable (Article, 1390, NCC.)
party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the former's efforts consisted in the care and Alternative Answer:
maintenance of the family and of the household.
Thus: Yes, ignorance of the law differs in legal effect from ignorance or
a. The wages and salaries of Luis in the amount of P200,000 mistake of fact. The former does not excuse a party from the legal
shall be divided equally between Luis and Rizza; consequences of his conduct while the latter does constitute an excuse
b. The house and lot valued at P500,000 having been acquired and is a legal defense.
by both of them through work or industry shall be divided
between them in proportion to their respective contribution, Distinguish juridical capacity from capacity to act. ’96 – Q1(2)
!24
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
JURIDICAL CAPACITY is the fitness to be the subject of legal sect, then the marriage is valid under Article 35 (2), FC. In that case,
relations while CAPACITY TO ACT is the power or to do acts with legal the party in good faith is acting under a mistake of fact, not a mistake
effect. The former is inherent in every natural person and is lost only of law,
through death while the latter is merely acquired and may be lost even
before death (Article 37, NCC.) 2. Would your answer be the same if it should turn out that
the marriage license was spurious? '96 – Q4
Alternative Answer:
NO, the answer would not be the same. The marriage would be
Juridical capacity, as distinguished from capacity to act: (a) the void because of the absence of a formal requisite. In such a case,
former is passive while the latter is active, (b) the former is inherent in there was actually no valid marriage license.
a person while the latter is merely acquired, (c) the former is lost only
through death while the latter may be lost through death or restricted Bert and Baby were married to each other on December 23, 1988.
by causes other than death, and (d) the former can exist without ca- 6 months later, she discovered that he was a drug addict. Efforts
pacity to act while the latter cannot exist without juridical capacity. to have him rehabilitated were unsuccessful. Can Baby ask for
annulment of marriage, or legal separation? ’96 – Q5(2)
On April 15, 1983, Jose, an engineer, and Marina, a nurse, were
married to each other in a civil ceremony in Boac, Marinduque. 6 NO, Baby cannot ask for annulment of her marriage or for legal
months after their marriage, Jose was employed in an oil refinery separation because both these actions had already prescribed.
in Saudi Arabia for a period of 3 years. When he returned to the While concealment of drug addiction existing at the time of mar-
Philippines, Marina was no longer living in their house, but in riage constitutes fraud under Article 46 of the FC which makes the
Zamboanga City, working in a hospital. He asked her to come marriage voidable under Article 45 of the FC, the action must, howev-
home, but she refused to do so, unless he agreed not to work er, be brought within 5 years from the discovery thereof under Article
overseas anymore because she cannot stand living alone. He 47(3), FC, Since the drug addiction of Bert was discovered by Baby in
could not agree as in fact, he had signed another 3-year contract. June 1989, the action had already prescribed in June of 1994.
When he returned in 1989, he could not locate Marina anymore. In Although drug addiction is a ground for legal separation under
1992, Jose filed an action served by publication in a newspaper of Articles 55(5) and 57 of the FC requires that the action must be
general circulation. Marina did not file any answer, a possible brought within 5 years from the occurrence of the cause. Since Bert
collusion between the parties was ruled out by the Public Prose- had been a drug addict from the time of the celebration of the mar-
cutor. Trial was conducted and Marina neither appeared nor pre- riage, the action for legal separation must have been brought not later
sented evidence in her favor. If you were the judge, will you grant than 23 December 1993. Hence, Baby cannot, now, bring the action for
the annulment? '96 – Q3 legal separation.
As judge, I will not grant the annulment. The facts do not show On the occasion of Digna's marriage to George, her father gave
any taint of personality disorder on the part of the wife Marina so as to her a donation propter nuptias of a car. Subsequently, the mar-
lend substance to her husband's averment of psychological incapacity riage was annulled because of the psychological immaturity of
within the meaning of Article 36 of the Family Code. In Santos v. Court George. May Digna's father revoke the donation and get back the
of Appeals (240 SCRA 20 [1995]), this particular ground for nullity of car? '96 – Q6(1)
marriage was held to be limited only to the most serious cases of per-
sonality disorders clearly demonstrative of utter sensitivity or inability to NO, Digna's father may not revoke the donation because Digna
give meaning and significance to the marriage. Marina's refusal to was not in bad faith, applying Article 86(3) of the Family Code.
come home to her husband unless he agreed not to work overseas, far
from being indicative of an insensitivity to the meaning of marriage, or Alternative Answer:
of a personality disorder, actually shows a sensitive awareness on her
part of the marital duty to live together as husband and wife. Mere No, the donation cannot be revoked. The law provides that a donation
refusal to rejoin her husband when he did not accept the condition by reason of marriage may be revoked by the donor if among other
imposed by her does not furnish any basis for concluding that she was cases, the marriage is judicially declared void ab initio [par. (1) Article
suffering from psychological incapacity to discharge the essential mari- 86. Family Code], or when the marriage is annulled and the donee
tal obligations.
acted in bad faith [par. (3), Id.]. Since the problem states that the mar-
Mere intention to live apart does not fall under Article 36, FC.
Furthermore, there is no proof that the alleged psychological incapacity riage was annulled and there is no intimation of bad faith on the part of
existed at the time of the marriage. the donee Digna, the conclusion is that the donor cannot revoke the
donation.
On Valentine's Day 1996, Ellas and Fely, both single and 25 years
of age, went to the city hall where they sought out a fixer to help
them obtain a quickie marriage. For a fee, the fixer produced an PROPERTY
ante-dated marriage license for them, issued by the Civil Regis-
trar of a small remote municipality. He then brought them to a
licensed minister in a restaurant behind the city hall, and the lat-
ter solemnized their marriage right there and then. In 1960, Rigor and Mike occupied two separate but adjacent tracts
1. Is their marriage valid, void or voidable?
of land in Mindoro. Rigor's tract was classified as timber land
The marriage is valid. The irregularity in the issuance of a valid while Mike's was classified as agricultural land. Each of them
license does not adversely affect the validity of the marriage. The mar- fenced and cultivated his own tract continuously for 30 years. In
riage license is valid because it was in fact issued by a Civil Registrar 1991', the Government declared the land occupied by Mike as
(Articles 3 and 4, FC.) alienable and disposable, and the one cultivated by Rigor as no
longer intended for public use or public service.
Alternative Answer: Rigor and Mike now come to you today for legal advice in assert-
It depends. If both or one of the parties was a member of the ing their right of ownership of their respective lands based on
religious sect of the solemnizing officer, the marriage is valid. If none of their long possession and occupation since 1960.
the parties is a member of the sect and both of them were aware of the (a) What are the legal consequences of the 1991 declarations of
fact, the marriage is void. They cannot claim good faith in believing that the Government respecting the lands? Explain your answer. (2%)
the solemnizing officer was authorized because the scope of the au- (b) Given that, according to Section 48(b) of Commonwealth Act
thority of the solemnizing officer is a matter of law. If, however, one of No. 141, in relation to Section 14(1) of Presidential Decree No.
the parties believed in good faith that the other was a member of the
!25
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
1529, the open, continuous, exclusive, and notorious possession complete the 30-year period required by law in case of extraordinary
and occupation of alienable and disposable lands of the public prescription. Since the property was converted into patrimonial only in
domain as basis for judicial confirmation of imperfect title must 1991, the period of prescription commenced to run beginning that year
be from June 12, 1945, or earlier, may Mike nevertheless validly only. Rigor's possession prior to the conversion of the property into
base his assertion of the right of ownership on prescription under patrimonial cannot be counted for the purpose of completing the pre-
the Civil Code? Explain your answer. (4%) scriptive period because prescription did not operate against the State
(c) Does Rigor have legal basis for his application for judicial at that time, the property then being public dominion property (Heirs of
confirmation of imperfect title based on prescription as defined Mario Malabanan v. Republic, G.R. No. 179987, April 29, 2009 and
by the Civil Code given that, like Mike, his open, continuous, ex- September J, 2013). Rigor may not likewise acquire ownership by
clusive, and notorious possession and occupation was not since virtue of the shorter 10-year ordinary prescription because his posses-
June 12, 1945, or earlier, and his tract of land was timber land sion was not in good faith and without just title.
until the declaration in 1991. Explain your answer. (4%) ’17—Q2
Josef owns a piece of land in Pampanga. The National Housing
(a) As to the land occupied by Mike, the same remains a property of Authority (NHA) sought to expropriate the property for its social-
the public dominion. According to jurisprudence, the classification of ized housing project. The trial court fixed the just compensation
the property as alienable and disposable land of the public domain for the property at P50 million. The NHA immediately deposited
does not change its status as property of the public dominion. There the same at the authorized depository bank and filed a mol ion for
must be an express declaration by the State that the public dominion the issuance of a writ of possession with the trial court. Unfortu-
property is no longer intended for public service or the development of nately, there was delay in the resolution of the motion. Meanwhile,
the national wealth or that the property has been converted into patri- the amount deposited earned interest.
monial. Without such express declaration, the property, even if classi- When Josef sought the release of the amount deposited NHA
fied as alienable or disposable, remains property of the public (Heirs of argued that Josef should only be entitled to P50 million.
Mario Malabanan v. Republic,G.R. No. 179987, April 29, 2009 and Who owns the interest earned? (3%) ’17—Q3
September 3, 2013).
As to the land occupied by Rigor, the declaration that it is no longer Josef owns the interest earned. In Republic v. Holy Trinity Realty De-
intended for public use or public service converted the same into pat- velopment Corp., (G.R. No. 172410, Aprill4, 2008), the Supreme Court
rimonial property provided that such express declaration was in the, has declared that upon deposit by the appropriator of the amount fixed
form of a law duly enacted by Congress or in a Presidential Proclama- for just compensation, the owner whose property is sought to be ex-
tion in cases where the President was duly authorized by law. Accord- propriated becomes the owner of the deposited amount. Any interest,
ing to jurisprudence, when public land is no longer intended for public therefore, that accrues to such deposit belongs to the owner by right of
use, public service or for the development of the national wealth it is accession. In the case at bar, Josef became the owner of the amount
thereby effectively removed from the ambit of public dominion and deposited by NHA; thus, any interest that accrues therefrom pertains to
converted into patrimonial provided that the declaration of such con- Josef by right of accession.
version must be made in the form of a law duly enacted by Congress [Note: In the case of NPC v. Heirs of Ramoran, G.R. No. 193455, June
or by a Presidential proclamation in cases where the President is duly 13, 2016, the Supreme Court ruled that the imposable rate of interest
authorized by law to that effect (Heirs of Mario Malabanan v. Republic, is 12% per annum from the time of the taking until June 30, 2013, and
G.R No. 179987, April 29, 2009, and September 3, 2013). 6% per annum from July 1, 2013 until full payment].
(b) No, because the land remains property of public dominion and,
therefore, not susceptible to acquisition by prescription. According to Jacob has owned a farm land in Ramos, Tarlac. In 2012, Liz sur-
jurisprudence, the classification of the subject property as alienable reptitiously entered and cultivated the property. In 2014, Jacob
and disposable land of the public domain does not change its status as discovered Liz's presence in and cultivation of the property. Due
property of the public dominion. In order to convert the property into to his being busy attending to his business in Cebu, he tolerated
patrimonial, there must be an express declaration by the State that the Liz's cultivation of the property. Subsequently, in December 2016,
public dominion property is no longer intended for public service or the Jacob wanted to regain possession of the property; hence, he
development of the national wealth or that the property has been con- sent a letter to Liz demanding that she vacate the property. Liz did
verted into patrimonial. Without such express declaration, the property, not vacate despite the demand.
even if classified as alienable or disposable, remains property of the Jacob comes to enlist your legal assistance to bring an action
public dominion, and thus incapable of acquisition by prescription against Liz to recover the possession of the property.
(Heirs of Marlo Malabanan v. Republic, G.R. No. 179987, April 29, What remedies are available to Jacob to recover possession of
2009 and September 3, 2013). his property under the circumstances? Explain your answer. (4%)
Here, the declaration of the property into alienable and disposable land ’17—Q5
of the public domain in 1991 did not convert the property into patrimo-
nial in the absence of an express declaration of such conversion into SUGGESTED ANSWER
patrimonial in the form of a law duly enacted by Congress or by a Pres- The remedy available to Jacob is accion publiciana, or an action for the
idential proclamation in cases where the President is duly authorized recovery of the better right of possession or possession as a real right.
by law to that effect. It also refers to an ejectment suit filed after the expiration of one year
(c) None, because Rigor's possession was short of the period required from accrual of the cause of action or from the unlawful withholding of
by the Civil Code for purposes of acquisitive prescription which re- possession of the really.
quires ten (10) years of continuous possession, if possession was in Since the entry made by Liz is through stealth, Jacob could have filed
good faith and with a just title, or thirty years, an any event. While an action for forcible entry. Ordinarily, the one-year period within which
property may, be considered converted into patrimonial because of the to bring an action for forcible entry is generally counted from the date
1991 declaration that it is no longer intended for public use or public of actual entry on the land, except that when the entry is through
service (provided that the declaration be in the form of a law duly en- stealth, the one-year period is counted from the time the plaintiff
acted by Congress or by a Presidential proclamation in cases where learned thereof. Here, since more than one year had elapsed since
the President is duly authorized by law to that effect), Rigor failed to Jacob learned of the entry made by Liz through stealth, the action that
!26
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
may be filed by Jacob is no longer forcible entry, but an accion publi- ing Gloria’s title valid and defeating Krystal’s action for annulment and
ciana (Canlas v. Tubil, G.R. No. 184285, September 25, 2009; Valdez reconveyance.
v. CA, G.R. No. 132424, May 4, 2006).
ALTERNATIVE ANSWER TRUE or FALSE- Explain your answers.
Jacob can file an action for unlawful detainer against Liz to regain pos- (a) All rights are considered as property. (2%)
session of the property. An action for unlawful detainer is proper when (b) A lessee cannot bring a case for quieting of title respecting the
the defendant’s initial right to possession of the property has terminat- property that he leases. (2%)
ed but he unlawfully withholds possession thereof. It has to be filed (c) Only the city or municipal mayor can file a civil action to abate
within one year from the termination of his right to possession. Al- a public nuisance. (2%)
though Liz surreptitiously entered in 2012, her possession became (d) Possession of a movable property is lost when the location of
lawful when Jacob discovered it and allowed her to continue posses- the said movable is unknown to the owner. (2%)
sion by tolerance in 2014. Liz’ right to possession terminated in De- (e) Continuous non-apparent easements can be acquired either
cember 2016 when Jacob demanded her to vacate the property. Since through title or by prescription. (2%) ’17—Q13
today is November 2017, it is still within one year from the termination
of Liz’ right to possession. Therefore, Jacob can file an action for un- (a) False. Only right which are patrimonial in character can be consid-
lawful detainer. ered property. Rights which are not patrimonial, such as the right to
liberty, the right to honor, family rights, and political rights cannot be
Tyler owns a lot that is enclosed by the lots of Riley to the North considered property.
and East, of Dylan to the South, and of Reece to the West. The (b) SUGGESTED ANSWER
current route to the public highway is a kilometer's walk through True. The plaintiff must have a legal or equitable title to the real proper-
the northern lot of Riley, but the route is a rough road that gets ty in question or some interest therein, (or must be possession thereof,
muddy during the rainy season, and is inconvenient because it is so that the action may be in prescriptible (Article 476-477, Civil Code).
only 2.5 meters wide. Tyler's nearest access to the public highway SUGGESTED ALTERNATIVE ANSWER
would be through the southern lot of Dylan. False. If the property lease is a movable property, like a car, an air-
May Dylan be legally required to afford to Tyler a right of way plane or a ship, the lessee cannot bring the action to quiet title. The
through his property? Explain your answer. (4%) ’17—Q6 property • subject matter of the action to quiet title should be real prop-
erty only (Art. 477, NCC).
Dylan may not be legally required to afford Tyler a right of way through (c) False. Article. 703 of the New Civil Code provides that a private
his property, because Tyler already has an adequate outlet to the pub- person may file an action on account of a public nuisance, if it is espe-
lic highway through his Riley's lot. cially injurious to himself. Thus, a private person may file a civil action
One of the requisites for a compulsory grant of right of way is that the to abate a public nuisance that is especially injurious to him.
estate of the claimant of a right of way must be isolated and without (d) False. Article 556 of the Civil Code provides that the possession of
adequate outlet to a public highway. The true standard for the grant of movables is not deemed lost so long as they remain under the control
compulsory right of way is "adequacy" of outlet going to a public high- of the possessor, even though for the time being he. may not know
way and not the convenience of the dominant estate. In the case at their whereabouts. Possession of a movable, therefore, is lost only
bar, there is already an existing adequate outlet from the dominant when possessor loses control over it.
estate to a public highway. Even if said outlet be inconvenient, the (e) False. Article 620 if the Civil Code provides that continuous and
need to open up another legal easement or servitude is entirely unjusti- apparent easement are acquired either by virtue of a title or by pre-
fied (Article 649, NCC; Dichoso Jr. v. Marcos, G.R. No. 180282, April scription of ten years. Continuous non-apparent easements and dis-
11, 2011; Costabella Corp. v. CA, G.R. No. 80511, January 25, 1991). continuous ones, whether apparent or not, maybe acquired only be
virtue of a title (Art. 622, NCC). An easement must be both continuous
Krystal owns a parcel of land covered by TCT No. 12345 in Ange- and apparent in order to be subject to acquisition by prescription.
les City, Due to severe financial constraints, Krystal was forced to
sell the property to RBP Corporation, a foreign corporation based Plutarco owned land that borders on a river. After several years
in South Korea. Subsequently, RBP Corporation sold the property the action of the water of the river caused the deposit of soil, and
to GIoria, one of its most valued clients. increased the area of Plutarco's property by 200 square meters.
Wanting her property back, Krystal, learning of the transfer of the (a) If Plutarco' wants to own the increase in area, what will be his
property from RBP Corporation to Gloria, sued both of them in the legal basis for doing so? Explain your answer. (2%)
Regional Trial Court (RTC) for annulment of sale and for recon- (b) On the other hand, if the river dries up. may Plutarco validly
veyance. She alleged that the sale by RBP Corporation to Gloria claim a right of ownership of the dried-up river bed? Explain your
was void because RBP Corporation was a foreign corporation answer. (2%) '17--Q14
prohibited by the Constitution from acquiring and owning lands in
the Philippines. (a) Plutarco's legal basis for owning the Increase in area would be by
Will Krystal's suit for annulment of sale and reconveyance pros- accretion under Article 457 of the New Civil Code, which says that the
per? Explain your answer. (4%) ’17—Q12 accretion of soil which is gradually received from the effects of the
current of the waters belongs to the owner or land adjoining the banks
Krystal's suit will not prosper. The Supreme Court, in Borromeo v. of the river.
Descallar (G.R. No. 159310, February 24, 2009, 580 SCRA 175), reit- The requisites in order that the reparian owner will own the alluvion
erated the consistent ruling that if land is invalidly transferred to an deposited through the process of accretion are as follows:
alien who subsequently becomes a Filipino citizen or transfers it to a (1) the deposit should be gradualand imperceptible,
Filipino, the flaw in the original transaction is considered cured and the (2) the cause of the accretion is the current of the river and is not artifi-
title of the transferee is rendered valid. cial or man-made, and
In this case, RBP, being a foreign corporation is prohibited from acquir- (3) the land where the accretion takes place-is adjacent to the river
ing private land, making the sale of Krystal to RBP void ab initio. How- bank.
ever, the subsequent transfer to a Filipino citizen cure the defect, mak-
!27
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
In Plutarco's case, all three requisites are met, as the accretion took
place over several years, was caused by the action of the river, and the ALTERNATIVE ANSWER:
land he owned borders a river; therefore, he owns the Increase in area
by virtue of accretion. Arthur’s possession should be reckoned from the date the Ternate lot
(b) Rivers and their natural beds, being of public dominion (Article was declared alienable and disposable land of the public domain.
502(1) Civil Code), are not subject to appropriation or accretion. The
dried-up riverbed remains to be of public dominion and Plutarco cannot In Zarate v. Director of Lands, (G.R. No. 131501, July 14, 2004), the
validly claim a right ownership over it (Republic v. Santos, G.R. No. Supreme Court, citing the case of Bracewell v. CA, (G.R. No. 107427,
160453, November 12,2012). Jan. 25, 2000) ruled that “possession of the property prior to the classi-
fication thereof as alienable or disposable, cannot be credited as part
Benjamin is the owner of a titled lot which is bounded on the of the thirty (30)-year required under Section 48(b) of CA No. 141, as
amended.
north by the Maragondon River. An alluvial deposit of two (2)
hectares was added to the registered area. Daniel took posses-
sion of the portion formed by accretion and claims that he has In Heirs of Malabanan v. Republic (G.R. No. 179987, September 3,
2010), the Supreme Court explained that the possession of Arthur
been in open, continuous and undisturbed possession of said
should be reckoned only from the date lots A and D were declared as
portion since 1923 as shown by a tax declaration. In 1958, Ben-
jamin filed a Complaint for Quieting of Title and contends that the alienable and disposable by the State and not from the date of actual
alluvium belongs to him as the riparian owner and that since the possession. Section 48(b) of the Public Land Act used the words
"lands of the public domain" or "alienable and disposable lands of the
alluvium is, by law, part and parcel of the registered property, the
same may be considered as registered property. Decide the case public domain" to clearly signify that lands otherwise classified, i.e.,
and explain. (5%) ’16 – Q7 mineral, forest or timber, or national parks, and lands of patrimonial or
private ownership, are outside the coverage of the Public Land Act.
I will decide in favor of Daniel and dismiss the action to quiet title filed What the law does not include, it excludes. The use of the descriptive
by Benjamin. Under Article 457 of the Civil Code, the owner of lands phrase "alienable and disposable" further limits the coverage of Sec-
tion 48(b) to only the agricultural lands of the public domain. Section
adjoining the banks of rivers belong the accretion which they gradually
48(b) of the Public Land Act, in relation to Section 14(1) of the Property
receive from the effects of the current of the waters. The accretion
however, does not automatically become registered land. It must be Registration Decree, presupposes that the land subject of the applica-
tion for registration must have been already classified as agricultural
brought under the Torrens system of registration by Benjamin, the
land of the public domain in order for the provision to apply. Thus, ab-
reparian owner. Since he did not, the then increment, not being regis-
tered land, was open to acquisition through prescription by third per- sent proof that the land is already classified as agricultural land of the
sons, like Daniel (Grande v. Court of Appeals, 5 SCRA 524 [1962]; public domain, the Regalian Doctrine applies, and overcomes the pre-
sumption that the land is alienable and disposable as laid down in
Cureg v. Intermediate Appellate Court, 177 SCRA 313 [1989]).
Section 48(b) of the Public Land Act. (Heirs of Malabanan v. Republic,
On February 28, S998, Arthur filed an application for registration G.R. No. 179987September 3, 2013)
of title of a lot in Ternate, Cavite before the Regional Trial Court of
Naic, Cavite under Section 48(b) of Commonwealth Act No. 141 The basis of the 30 year open continuous and notorious possession in
(CA 141) for judicial confirmation of imperfect title. Section 48(b) the concept of owner of A and D land is extraordinary acquisitive pre-
scription of immovable property. Lands classified as forest, mineral,
of CA 141 requires possession counted from June 12, 1945.
Arthur presented testimonial and documentary evidence that his and national parks are properties of public dominion which cannot be
possession and that of his predecessors-in- interest started in acquired by acquisitive prescription.
1936. The lot was declared alienable and disposable (A and D) in
Macario bought a titled lot from Ramon, got the title and took
1993 based on a PENRO certification and a certified true copy of
the original classification made by the DENR Secretary. possession of the lot. Since Macario did not have the money to
pay the taxes, fees and registration expenses, he was not able to
register the Deed of Absolute Sale. Upon advice, he merely exe-
The government opposed the application on the ground that the
lot was certified A and D only in 1993 while the application was cuted an Affidavit of Adverse Claim and had it annotated at the
instituted only in 1998. Arthur’s possession of five (5) years from back of the title. A few years after, he received a Notice of Levy on
Attachment and Writ of Execution in favor of Alex. The notice, writ
the date of declaration does not comply with the 30-year period
required under CA 141. Should the possession of Arthur be reck- and certificate of sale were annotated at the back of the title still
oned from the date when the lot was declared A and D or from the in Ramon's name. Alex contends that since the Affidavit of Ad-
verse Claim is effective only for 30 days from the date of its regis-
date of actual possession of the applicant? Explain. (5%) ’16 –
Q14 tration, then its validity has expired. Macario posits that the anno-
tation of his adverse claim is notice to the whole world of his pur-
chase of the lot in question. Who has the superior right over the
Arthur’s possession should be reckoned from the date of his actual
disputed property - Macario or Alex? Explain. (5%) ’16 – Q17
possession, by himself and his predecessors-in-interest, since 1936.
Under Section 48(b) of CA 141, as amended by PD No. 1973, the
Macario is preferred since the registration of his adverse claim was
length of the requisite possession was changed from possession for
made ahead of the notice of levy and writ of execution in favor of Alex.
“thirty (30) years immediately preceding the filing of the application” to
possession “since June 12, 1945 or earlier”. But possession is different Macario’s adverse claim, coupled with the fact that he was in posses-
from classification. As held in Maiabanan v. Republic, 587 SCRA 172 sion of the disputed property, are circumstances which should have put
Alex on constructive notice that the property being offered to him had
[2009/, it is only necessary that the land be already classified as A and
D “at the time the application for registration is filed” to make public the already been sold to another (Citing v Enrile, G.R. No. 156076 12008]).
release of the property for alienation or disposition. But the possession The contention that the adverse claim is effective only for 30 years is
puerile. In Sajonas v. Court of Appeals, 258 (SCRA 79 ]1996])y the
of Arthur even prior to the classification of the land as A and D shall be
counted in determining the period of possession. Court held that the adverse claim does not ipso facto lose its validity
!28
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
since an independent action is still necessary to render it ineffective. to keep the co-ownership for 20 years. Are Y and Z correct? Ex-
Until then, the adverse claim shall continue as a prior lien on the prop- plain. (3%) ‘15 - Q8
erty.
Y and Z are partly correct. As a general rule, no co-owners shall be
Mr. and Mrs. X migrated to the US with all their children. As they obliged to remain in the co-ownership, and each co-owner may de-
had no intention of coming back, they offered their house and lot mand at any time the partition of the thing owned in common. Howev-
for sale to their neighbours, Mr. and Mrs. A (the buyers) who er, as one of the exceptions to the general rule, an agreement to keep
agreed to buy the property for P8 Million. Because Mr. and Mrs. A the thing undivided for a certain period of time, not exceeding ten
needed to obtain a loan from a bank first, and since the sellers years, shall be valid (Art. 494, CC). In this case, X, Y, and Z stipulated
were in a hurry to migrate, the latter told the buyers that they for a period of indivision of 20 years, which exceeds the maximum
could already occupy the house, renovate it as it was already in a allowed by law. The stipulation would be void only as to the period
state of disrepair, and pay only when their loan is approved and beyond such maximum of ten years. Hence, X cannot yet ask for the
released. While waiting for the loan approval, the buyers spent P1 partition, as there remains two years for the agreement to remain in
Million is repairing the house. A month later, a person carrying an force.
authenticated special power of attorney from the sellers demand-
ing that the buyer either immediately pay for the property in full Jose, single, donated a house and lot to his only niece, Maria,
now or vacate it and pay damages for having made improvements who was of legal age and who accepted the donation. The dona-
on the property without a sale having been perfected. tion and Maria’s acceptance thereof were evidenced by a Deed of
Donation. Maria then lived in the house and lot donated to her,
a) What are the buyers’ options or legal rights with respect religiously paying real estate taxes thereon. Twelve years later,
to the expenses they incurred in improving the property when Jose had already passed away, a woman claiming to be an
under the circumstances? (3%)‘15 - Q7a illegitimate daughter of Jose filed a complaint against Maria.
Claiming rights as an heir, the woman prayed that Maria be or-
The sale was perfected and Spouses A acquired ownership over the dered to reconvey the house and lot to Jose’s estate. In her com-
house and lot upon delivery. Payment of the price was subject to an plaint she alleged that the notary public who notarized the Deed
indefinite period, that is, after the approval of the bank loan. As owners, of Donation had an expired notarial commission when the Deed of
they have the right to make improvements on the said properties, and Donation was executed by Jose. Can Maria be made to reconvey
to retain the same. Even assuming for the sake of argument that the the property? What can she put up as a defense? (4%) ‘15 - Q9
sale was not perfected and Spouses A had not acquired ownership
over the house and lot because of a notarized deed of sale, or in case Maria cannot be made to reconvey the property, in order for a donation
of rescission, they may be considered builders in good faith since their of an immovable to be valid, it must he made in a public document (Art.
entered into the property believing in good faith that they were the 749, Civil Code). Since the notary public before whom the deed of
owners of the property in question. As builders in good faith, they are donation was acknowledged had an expired notarial commission, the
entitled to reimbursement for necessary and useful expenses incurred deed of donation remained a private instrument; hence, the donation
upon the property, and may retain the property until reimbursement was void. However, assuming that the donation is not inofficious, Maria
therefor (Art. 448 and 546 Civil Code). The improvements in question can put up the defense of prescription. Since she possessed the house
are necessary and useful since the house was already in a state of and lot in the concept of an owner and in good faith that she had just
disrepair. title to the property by virtue of the donation, she became the owner of
the property by virtue of acquisitive prescription 10 years after she took
b) Can the buyers be made to immediately vacate on the possession thereof, assuming that the land on which the house was
ground that the sale was not perfected? Explain briefly. built was not registered land. (Arts. 1117, 1118, 1127 and 1134, Civil
(3%) ‘15 - Q7b Code).
No, the buyers may not be made to vacate the properties. A contract of The Roman Catholic Church accepted a donation of a real proper-
sale is a consensual contract which is perfected at the moment there is ty located in Lipa City. A deed of donation was executed, signed
a meeting of the minds upon the thin which is the object of the contract by the donor, Don Mariano, and the donee, the Church, as repre-
and upon the price (Art. 1475, Civil Code). In this case, the sale was sented by Fr. Damian. Before the deed could be notarized, Don
already since there was already a meeting of the minds as to the ob- Mariano died.
ject of the sale, which is the house and lot, and as to the price, which is
P8 Million. The fact that there was no payment yet is immaterial since it Is the donation valid? (4%) ‘14 - Q3
is not a requisite for the perfection of the contract.
The donation is void. Article 749 of the Civil Code provides that a dona-
Even assuming that the sale was rescinded, the buyers may still not be tion of an immovable must be made in a public instrument to be valid.
made to vacate the properties. Since the buyers made necessary and In this case, it is clear that the deed of donation never became a public
useful improvements upon the properties, they have the right to retain instrument because the donor died before it could be notarized. The
the properties in question until the full reimbursement of such expens- deed of donation cannot be notarized after the death of the donor since
es (Arts. 448 and 546, Civil Code). it is now impossible for him to acknowledge before a notary public. The
donation was never perfected. Thus, the donation is void for not com-
X, Y, Z are siblings who inherited a 10-storey building from their plying with the formalities required by law.
parents. They agreed in writing to maintain it as a co-owned
property for leasing out and to divide the net profits among them- Mr. Bong owns several properties in Pasig City. He decided to
selves equally for a period of 20 years. On the 8th year, X wanted build a condominium named Flores de Manila in one of his lots.
to get out of the co-ownership so he could get his 1/3 share in the To fund the project, he obtained a loan from the National Bank
property. Y and Z refused, saying X is bound by their agreement (NB) secured by a real estate mortgage over the adjoining proper-
ty which he also owned.
!29
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
the owner of the land are Spouses Manuel. Spouses Manuel owns
During construction, he built three (3) pumps on the mortgaged one-half of the hidden treasure since ownership is not transferred to
property to supply water to the condominium. After one (1) year, the borrower but is retained by the lender in a contract of commoda-
the project was completed and the condominium was turned over tum. The other half shall belong to Maria as the finder.
to the buyers. However, Mr. Bong failed to pay his loan obligation
to NB. Thus, NB foreclosed the mortgaged property where the ALTERNATIVE ANSWER:
pumps were installed. During the sale on public auction of the
mortgaged property, Mr. Simon won in the bidding. When Mr. Si- Since it does not come within the purview of hidden treasure, the
mon attempted to take possession of the property, the condo- spouses Manuel have the right to claim ownership over the chest as
minium owners, who in the meantime constituted themselves into well as its contents.
Flores de Manila Inc. (FMI), claimed that they have earlier filed a
case for the declaration of the existence of an easement before Spouses Magtanggol managed and operated a gasoline station
the Regional Trial Court (RTC) of Pasig City and prayed that the on a 1,000 sq.m. lot which they leased from Francisco Bigla-awa.
easement be annotated in the title of the property foreclosed by The contract was for a period of three [3] years. When the con-
NB. FMI further claimed that when Mr. Bong installed the pumps tract expired, Francisco asked the spouses to peacefully vacate
in his adjoining property, a voluntary easement was constituted in the premises. The spouses ignored the demand and continued
favor of FMI. with the operation of the gasoline station.
Will the action prosper? (4%) ‘14 - Q15 One month after, Francisco, with the aid of a group of armed men,
caused the closure of the gasoline station by constructing fences
Yes, the action will prosper. Article 624 of the Civil Code provides that around it.
when an apparent sign of easement exists between two estates estab-
lished or maintained by the owner of both, it shall be considered as a Was the act of Francisco and his men lawful? Why? ‘14 - Q18
title to the easement should the owner of two properties alienate one of
them, unless at the time the ownership between the two estates is No, the act of Francisco and his men were not lawful. Even when one
divided the contrary is provided in the deed of transfer or the apparent has a right, such as the right to enjoy his property and to exclude any-
sign of easement is removed before the execution of the deed (Privati- one else from the enjoyment of such, a person cannot take the law
zation and Management Office v. Legaspi Towers 300, Inc., G.R. No. unto his own hands and must still file the proper action in court. Even
147957, July 22, 2009, 593 SCRA 382). In this case, neither any show- though Francisco had the right to fence his property as a part of his
ing that the apparent sign of the easement was removed before the right to enjoy it. Spouses Magtanggol are covered by Art. 539 which
sale on public auction, nor that there was an agreement that the provides that every possessor has a right to be respected in his pos-
easement will no longer continue; hence, the entitlement of FMI to the session despite the lapse of their lease. Although there is no apparent
easement subsists. force or intimidation employed, fencing off the property would prevent
Spouses Magtanggol from entering and possessing the property. The
A congregation for religious women, by way of commodatum, is proper recourse of Francisco is to invoke the aid of a competent court
using the real property owned and registered in the name of and file an action for unlawful detainer.
Spouses Manuel as a retreat house.
Fe, Esperanza and Caridad inherited from their parents a 500
Maria, a helper of the congregation discovered a chest in the sq.m. lot which they leased to Maria for three (3) years. One year
backyard. When she opened the chest, it contained several pieces later, Fe, claiming to have the authority to represent her siblings
of jewelry and money. (4%) Esperanza and Caridad, offered to sell the leased property to
Maria which the latter accepted. The sale was not reduced into
(A) Can the chest containing the pieces of jewelry and mon- writing, but Maria started to make partial payments to Fe, which
ey be considered as a hidden treasure?‘14 - Q16A the latter received and acknowledged. After giving the full pay-
ment, Maria demanded for the execution of a deed of absolute
Yes, the chest containing the pieces of jewelry and money may be sale which Esperanza and Caridad refused to do. Worst, Maria
considered as hidden treasure as long as they are hidden and un- learned that the siblings sold the same property to Manuel. This
known and the lawful ownership of it does not appear as provided in compelled Maria to file a complaint for the annulment of the sale
Article 439 of the Civil Code. with specific performance and damages.
ALTERNATIVE ANSWER: If you are the judge, how will you decide the case? [4%] ‘14 - Q27
No, the chest containing the pieces of jewelry and money many not be I will decide in favor of Maria but only as to the share of Fe, and dis-
considered as hidden treasure. In the case at bar, there is no indication miss the complaint with respect to Esperanza and Caridad. The prop-
that the chest was hidden, only that the helper discovered it in the erty in question is co-owned by Fe, Esperanza and Caridad, since it
backyard. And since it is clear that the property where the chest was has not yet been divided among them. Article 493 of the Civil Code
found belongs to the Spouses Manuel, they are presumed the owner of provides that each co-owner shall have full ownership of his part and of
the chest where the jewelry was found. The lawful ownership of the the fruits and benefits pertaining thereto, and he may therefore alien-
chest is apparent. ate, assign, or mortgage it, provided that the effect of such alienation
or mortgage shall be limited to the portion which may be allotted to him
(B) Who has the right to claim ownership of it? ‘14 - Q16B in the division upon the termination of the co-ownership. The sale by
Fe to Maria would therefore be binding on her ⅓ interest, but not in ⅔
Under Article 438 of the Civil Code, when the discovery of hidden trea- interest of Esperanza and Caridad because their shares were not
sure is made on the property of another, one-half thereof shall be al- validly sold to Maria in the absence of a written authority to Fe to sell
lowed to the finder provided the finder is not a trespasser. In this case, their respective portions to Maria as required by Article 1874 of the
!30
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Civil Code. Fe can only sell whatever property right she has, i,e, ⅓ tarily, and irrevocably donate to her my one-hectare rice
ideal portion or undivided interest in the 500 sq.m. lot. land covered by TCT No. 11550, located in San Fernan-
do, Pampanga. This donation shall take effect upon my
The sale to Manuel is valid as to the ⅔ share of Esperanza and Cari- death.”
dad.
The deed also contained Jennifer’s signed acceptance, and an
Anselmo is the registered owner of a land and a house that his attached notarized declaration by Josefa and Jennifer that the
friend Boboy occupied for a nominal rental and on the condition land will remain in Josefa’s possession and cannot be alienated,
that Boboy would vacate the property on demand. With Anselmo’s encumbered, sold or disposed of while Josefa is still alive.
knowledge, Boboy introduced renovations consisting of an addi- Advise Jennifer on whether the deed is a donation inter vivos or
tional bedroom, a covered veranda, and a concrete block fence, at mortis causa and explain the reasons supporting your advice.
his own expense. (8%) ‘13 - Q5
Subsequently, Anselmo needed the property as his residence and The donation is a donation inter vivos.
thus asked Boboy to vacate and turn it over to him. Boboy, de-
spite an extension, failed to vacate the property, forcing Anselmo When the donor intends that the donation shall take effect during the
to send him a written demand to vacate. lifetime of the donor, though the property shall not be delivered until
after the donor’s death, this shall be a donation inter vivos (Art. 729,
In his own written reply, Boboy signified that he was ready to Civil Code).
leave but Anselmo must first reimburse him for the value of the
improvements he introduced on the property as he is a builder in The Civil Code favors inter vivos transmissions. Moreover, mortis
good faith. Anselmo refused, insisting that Boboy cannot ask for cause donations should follow the formalities of a will (Art. 728, Civil
reimbursement as he is a mere lessee. Boboy responded by re- Code). Here, there is no showing that such formalities were followed.
moving the improvements and leaving the building in its original Thus, it is favorable to Jennifer that the deed is a donation inter vivos.
state. - Furthermore, what is most significant in determining the type of dona-
tion is the absence of stipulation that the donor could revoke the dona-
(A) Resolve Boboy’s claim that as a builder in good faith, he tion; on the contrary, the deeds expressly declare them to be “ir-
should be reimbursed the value of the improvements he revocable”, a quality absolutely incompatible with the idea of mortis
introduced. (4%) ‘13 - Q4A causa conveyances where revocability is of the essence of the act to
the extent that a testator cannot lawfully wavie or restrict his right of
Boboy’s claim that he is a builder in good faith has no legal basis. A revocation. The provisions of the deed of donation which state that the
builder in good faith is someone who occupies the property in the con- same will only take effect upon the death if the donor and that there is
cept of an owner. The provisions on builder-planter-sower under the a prohibition to alienate, encumber, dispose or sell the same should be
Civil Code cover cases in which the builder, planter and sower believe harmonized with the expressed irrevocability (Austria-Magat v. CA,
themselves to be owners of the land, or at least, to have a claim of title G.R. No. 106755, February 1, 2002).
thereto.
ALTERNATIVE ANSWER
As Boboy is a lessee of the property, even if he was paying nominal
rental, Article 1678 of the Civil Code is applicable. Under this provision, The donation is a donation mortis causa.
if the lessee makes in good faith useful improvements which are suit-
able to the use for which the lease is intended, without altering the The deed clearly states that the donation shall take effect upon the
form or substance of the property leased, the lessor upon the termina- death of the donor, Josefa. The donor, moreover, retained ownership of
tion of the lease shall pay the lessee one-half of the value of the im- the subject property as it was declared that the property cannot be
provements at that time. Should the lessor refuse to reimburse said alienated, encumbered, sold or disposed of while the donor is still
amount, the lessee may remove the improvements, even though the alive.
principal thing may suffer thereby. As the nature is in the nature of a mortis causa disposition, the formali-
ties of a will should have been complied with under Article 728 of the
(B) Can Boboy be held liable for damages for removing the Civil Code, otherwise, the donation is void and would produce no effect
improvements over Anselmo’s objection? (4%) ‘13 - Q4B (The National Treasury of the Philippines v. Vda. De Meimban, G.R.
No. L-61023, August 22, 1984).
No. Boboy cannot be held liable for damages.
In 2005, Andres built a residential house on a lot whose only ac-
The lessor, Anselmo, refused to reimburse one-half of the value of the cess to the national highway was a pathway crossing Brando’s
improvements, so the lessee, Boboy may remove the same, even property. Andres and others have been using this pathway (Path-
though the principal thing may suffer damage thereby. If in removing way A) since 1980.
the useful improvements Boboy caused more impairment on the prop-
erty leased than is necessary, he will be liable for damages (Art. 1678, In 2006, Brando fenced off his property thereby blocking Andres’
Civil Code). access to the national highway. Andre demanded that part of the
fence be removed to maintain his old access route to the highway
Josefa executed a deed of donation covering a one-hectare rice (Pathway A), but Brando refused, claiming that there was another
land in favor of her daughter, Jennifer. The deed specifically pro- available pathway (Pathway B) for ingress and egress to the
vides that: highway. Andres countered that Pathway B has defects, is cir-
cuitous, and is extremely inconvenient to use.
“For and in consideration of the love and service Jen-
nifer has shown and given to me, I hereby freely, volun-
!31
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
To settle their dispute, Andres and Brando hired Damian, a ge- the houses Rodriguez, not on Lot A that they purchased. They
odetic and civil engineer, to survey and examine the two path- spent P1,000,000 for the house.
ways and the surrounding areas, and to determine the shortest
and the least prejudicial way through the servient estates. After As their lawyer, advise the spouses Dela Cruz on their right and
the survey, the engineer concluded that pathway B is the longer obligations under the given circumstances, and the resources
route and will need improvements and repairs, but will not signifi- and options open to them to protect their interests. ‘13 - Q8
cantly affect the use of Brando’s property. On the other hand,
Pathway A that had long been in place is the shortest route but Based on the facts stated, the spouses Dela Cruz as builders and the
would significantly affect the use of Brando’s property. In light of spouses Rodriguez as landowners, are both in good faith. The spous-
the engineer’s findings and the circumstances of the case, re- es Dela Cruz are builders in good faith because before constructing
solve the parties’ right of way dispute. ‘13 - Q7 the house, they exercised due diligence by asking the agent of CRC
the location of Lot A, and they relied on the information given by the
Andres is not entitled to the easement of right of way for Pathway A. agent who is presumed to know the identity of the lot purchased by the
Pathway B must be used. Dela Cruz spouses (Pleasantville v. CA, G.R. No. 79688, February 1,
1996, 253 SCRA 10). On the other hand, there is no showing that the
The owner of a dominant estate may validly obtain a compulsory right landowners, spouses Rodriguez, acted in bad faith. The facts do not
of way only after he has established the existence of four requisites, to show that the building was done with their knowledge and without op-
wit: position on their part (Art. 453, Civil Code). Good faith is always pre-
sumed (Art. 527, Civil Code).
1. the dominant estate is surrounded by other immovable and
is without adequate outlet to a public highway; The owner of the land on which anything has been built sown or plant-
2. after payment of the proper indemnity; ed in good faith shall have the right :
3. the isolation was not due to the proprietor’s own acts; and 1. to appropriate as his own the works after payment of the
4. the right of way claimed is at a point least prejudicial to the indemnity provided for in Articles 546 and 548, or
servient estate, and insofar as consistent with this rule, 2. to oblige the one who built to pay the price of the land.
where the distance from the dominant estate to the public
highway may be the shortest (Art. 650, Civil Code). However, the builder cannot be obliged to buy the land if its value is
considerably more than that of the building. In such a case, he shall
However, the Supreme Court has consistently ruled that in case both pay reasonable rent if the owner of the land does not choose to appro-
criteria cannot be complied with, the right of way shall be established priate the building or trees after proper indemnity (Art. 448, Civil Code).
at the point least prejudicial to the servient estate. The house constructed by the spouses Dela Cruz is considered as a
useful expense, since it increased the value of the lot. As such, should
The first and fourth requisites are not complied with. First, there is the spouses Rodriguez decide to appropriate the house, the spouses
another available outlet to the national highway (Pathway B). Second, Dela Cruz are entitled to the right of retention pending reimbursement
the right of way obtained (Pathway A) is not the least prejudicial to of the expenses they incurred or the increase in value which the thing
Brando’s property, as evidenced by the reports of the geodetic and civil may have acquired by reason of the improvement (Art. 546, Civil
engineer. Code). Thus, the spouses Dela Cruz may demand P1,000,000 as
When there is already an existing adequate outlet from the dominant payment of the expenses in building the house or increase in value of
estate to a public highway, even if the said outlet, for one reason or the land because of the house as a useful improvement, as may be
another, be inconvenient, the need to open up another servitude is determined by the court from the evidence presented during the trial
entirely unjustified (Costabella Corp. v. CA, G.R. No. 80511, January (Depra v. Dumlao, G.R. No. L-57348, May 16, 1995, 136 SCRA 475);
25, 1991). The rule that the easement of right of way shall be estab- Technogas Phils. v. CA, G.R. No. 108894, February 10, 1997, 268
lished at the point least prejudicial to the servient estate is controlling SCRA 5).
(Quimen v. CA, G.R. No. 112331, May 29, 1996).
A had a 4-storey building which was constructed by Engineer B.
[NOTE: It is not clear from the problem if there exists an easement in After 5 years, the building collapsed resulting in injuries to some
favor of the lot belonging to Andres and If Brando’s lot is burdened as a lessees. The lessees can proceed against the owner for breach of
contract and against the engineer for tort. ’10 – Q2b
servient estate by a right of way. If there is such an easement burden-
ing Brando’s lot, was it created as a legal easement or as a voluntary The lessees can sue both A and B.
easement. If the use of Pathway A was only by tolerance, then Brando The lessee may proceed against A for breach of contract, and
may close it. Andres must ask for the constitution of a legal easement against B for tort or statutory liability.
through Brando’s lot by proving the four requisites required by Articles Under Article 1654(2) of the New Civil Code, the lessor is obliged
649 and 650 of the Civil Code.] to make all the necessary repairs in order to keep the leased property
suitable for the use to which it has been devoted. Consequently, under
Article 1659 NCC, the proprietor of a building or structure is responsi-
Ciriaco Realty Corporation (CRC) sold to the spouses Dela Cruz a
ble for damages resulting from its total or partial collapse, if it is due to
500-square meter land (Lot A) in Paranaque. The land now has a the lack of necessary repairs.
fair market value of P1,200,00. CRC likewise sold to the spouses Under Article 1723 NCC, the engineer or architect who drew up
Rodriguez, a 700-square meter land (Lot B) which is adjacent to the plans and specifications for a building is liable for damages if within
Lot A. Lot B has a present fair market value of P1,500,00. 15 years from the completion of the structure, the same should col-
lapse by reason of defect in those plans and specifications, or due to
The spouses Dela Cruz constructed a house on Lot B, relying on the defects in the ground. This liability may be enforced against the
architect or engineer even by a third party who has no privity of con-
the representation of the CRC sales agent that it is the property tract with the architect or engineer under Article 2192 NCC.
they purchased. Only upon completion of their house did the
spouses Dela Cruz discover that they had built on Lot B owned by O, owner of Lot A, learning that Japanese soldiers may have
buried gold and other treasures at the adjoining vacant lot B be-
!32
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
longing to spouses X & Y, excavating in Lot B where she suc- owner of the servient estate from executing an act which would
ceeded in unearthing gold and precious stones. O is not entitled be lawful without the easement. ’09 – Q11c
to any share. ’10 – Q2b
TRUE. In negative easements, acquisitive prescription runs from
The general rule is that the treasure shall belong to spouses X the moment the owner of the dominant estate forbade, by an instru-
and Y, the owners of Lot B. Under Article 438 (NCC), the exception is ment acknowledged before a notary public, the owner of the servient
that when the discovery of the hidden treasure is made on the property estate from executing an act which would be lawful without the ease-
of another and by chance, one-half thereof shall belong to the owner of ment (Article 621, NCC.)
the land and the other-half is allowed to the finder.
In the problem, the finding of the treasure was not by chance The renunciation by a co-owner of his undivided share in the co-
because O knew that the treasure was in Lot B. While a trespasser is owned property in lieu of the performance of his obligation to
also not entitled to any share, and there is no indication in the problem contribute to taxes and expenses for the preservation of the
whether or not O was a trespasser, O is not entitled to a share be- property constitutes dacion en pago. ’09 – Q11d
cause the finding was not by chance.”
TRUE. Under the Civil Code, a co-owner may renounce his share
A executed a Deed of Donation in favor of B, a bachelor, covering in the co-owned property in lieu of paying for his share in the taxes and
a parcel of land. B was however, out of the country; How accep- expenses for the preservation of the co-owned property. In effect, there
tance of donation be made. ’10 – Q2c is dacion en pago because the co-owner is discharging his monetary
obligation by paying it with his non-monetary interest in the co-owned
Since the donation covered an immovable property, the donation property. The fact that he is giving up his entire interest simply means
and the acceptance must be in a public instrument. An e-mail is not a that he is accepting the value of his interest as equivalent to his share
public document. in the taxes and expenses of preservation.
Likewise, the donation may not be accepted by B’s father with
whom he lives or by his mother who has a general power of attorney. Marciano is the owner of a parcel of land through which a river
The acceptance by the donee’s father alone or mother alone, even runs out into the sea. The land had been brought under the Tor-
though in a public document, is not sufficient because the father and rens System, and is cultivated by Ulpiano and his family as farm-
mother did not have a special power of attorney for that purpose. Un- workers therein. Over the years, the river brought silt and sedi-
der Article 745 (NCC), the donee must accept the donation personally, ment from its sources up in the mountains and forests so that
or through an authorized person with a special power of attorney for gradually the land owned by Marciano increased in are by 3
the purpose; otherwise, the donation shall be void. hectares. Ulpiano built 3 huts on this additional area, where he
B cannot also accept the donation anytime convenient to him. and his 2 married children live. On this same area, Ulpiano and
Under Article 749 NCC, the donee may accept the donation only dur- his family planted peanuts, monggo beans and vegetables. Ulpi-
ing the lifetime of the donor. ano also regularly paid taxes on the land, as shown by tax decla-
rations, for over 30 years. When Marciano learned of the increase
Franz was the owner of Lot E which was surrounded by 4 lots in the size of the land, he ordered Ulpiano to demolish the huts,
including Lot C. He promised Ava that if he bought Lot E, he and demanded that he be paid his share in the proceeds of the
would give her a right of way in Lot C. Ava bought Lot E and Franz harvest. Marciano claims that under the Civil Code, the alluvium
gave her a right of way in Lot C which Ava used in cultivating Lot belongs to him as a registered riparian owner to whose land the
E. She went abroad and upon her return 10 years later, the right of accretion attaches, and that his right is enforceable against the
way was no longer available since Franz has sold Lot C to Julia whole world?
who had it fenced. 1. Is Marciano correct?
1. Does AVA have a right to demand from Julia the activa-
tion of her right of way? Marciano’s contention is correct. Since the accretion was deposit-
ed on his land by the action of the waters of the river and he did not
YES. Ava the right to demand from Julia the activation of the right construct any structure to increase the deposition of soil and silt, Mar-
of way, for the following reasons: ciano automatically owns the accretion. His real right of ownership is
1) An easement of right of way is a real right which attaches to, enforceable against the whole world including Ulpiano and his two
and is inseparable from, the estate to which it belongs. married children. Although Marciano’s land is registered, the 3 hectares
2) The sale of the property includes the easement or servitude, of land deposited through accretion was not automatically registered.
even if the deed of sale is silent on the matter. As unregistered land, it is subject to acquisitive prescription by third
3) The vendee of the property in which a servitude or easement persons.
exists cannot close or put up obstructions thereon to prevent Although Ulpiano and his children live in the 3 hectare unregis-
the dominant estate from using it. tered land owned by Marciano, they are farmworkers; therefore they
4) Ava’s working abroad for more than ten (10) years should are possessors not in the concept of owners but in the concept of mere
not be construed as non-user, because it cannot be implied holders. Even if they possessed the land for more than 30 years, they
from the facts that she or those whom she left behind to cannot become the owners thereof through extraordinary acquisitive
cultivate the lot no longer use the right of way. prescription, because the law requires possession in the concept of
Note: Since a right of way is a discontinuous easement, the period of owner. Payment of taxes and tax declarations are not enough to make
10 years of non-user shall be computed from the day it ceased to be their possession one in the concept of owner. They must repudiate the
used under Art. 634, CC. possession in the concept of holder by executing unequivocal acts of
5) Renunciation or waiver of an easement must be specific, repudiation amounting to the ouster of Marciano, known to Marciano
clear, expenses and made in a public instrument in accor- and must be proven by clear and convincing evidence. Only then
dance with Article 1358 of the New Civil Code. would his possession become adverse.
2. Assuming Ava opts to demand a right of way from any 2. What rights, if any, does Ulpiano have against Mar-
of the owners of Lots A, B and D, can she do that? ’10 – ciano? ’09 – Q16
Q13
Although Ulpiano is a possessor in bad faith, because he knew he
Yes. Ava has the option to demand a right of way on any of the does not own the land, he will lose the three huts he built in bad faith
remaining lots of Franz more so after Franz sold Lot C to Julia. The and make an accounting of the fruits he gathered. He has the right to
essential elements of a legal right of way under Article 649 and 650 of deduct from the value of the fruits the expenses of production, gather-
the New Civil Code are complied with. ing and preservation of the fruits (Article 443, NCC.)
He may also ask for reimbursement of the taxes he has paid, as
Acquisitive prescription of a negative easement runs from the these are charges on the land owned by Marciano. This obligation is
time of the dominant estate forbids, in a notarized document, the based on a quasi-contract (Article 2175, NCC.)
!33
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
2. Can Bobby legally insist on purchasing the land? ’08 –
The Ifugao Arms is a condominium project in Baguio City. A Q6
strong earthquake occurred which left huge cracks in the outer
walls of the building. As a result, a number of condominium units NO. Bobby cannot insist on purchasing the land. Being in bad
were rendered unfit for use. May Edwin, owner of one of the con- faith, he has no option to pay the price of the lot (Article 450, Civil
dominiums affected, legally sue by partition by sale of the whole Code.)
project? ’09 – Q18
Anthony bought a piece of untitled agricultural land from Bert.
YES, Edwin may legally sue for partition by sale of the whole Bert, in turn, acquired the property by forging Carlo’s signature in
condominium project under the following conditions: (a) the damage or a deed of sale over the property. Carlo had been in possession of
destruction caused by the earthquake has rendered one-half (1/2) or the property for 8 years, declared it for tax purposes, and reli-
more of the units therein untenantable, and (b) that the condominium giously paid all taxes due on the property. Anthony is not aware
owners holding an aggregate of more than thirty (30%) percent interest of the defect in Bert’s titled, but has been in actual possession of
of the common areas are opposed to the restoration of the condomini- the property from the time he bought it from Bert, who had never
um project (Section 8(b), R.A. No. 472 “Condominium Act.”) been in possession. Anthony has since then been in possession
of the property for one year.
In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese 1. Can Anthony acquire ownership of the property by ac-
citizen, a parcel of land in Binondo. Chua died in 1990, leaving quisitive prescription? How many more years does he
behind his wife and 3 children, one of whom, Julian, is a natural- have to possess it to acquire ownership?
ized Filipino citizen. 6 years after Chua’s death, the heirs executed
an EJ settlement of estate, and the parcel of land was allocated to YES, Anthony can acquire ownership of the property through
Julian. In 2007, Luciano filed suit to recover the land sold to Chua, acquisitive prescription. In the present case, Anthony is a buyer/pos-
alleging that the sale was void because it contravened the Consti- sessor in good faith because he was not aware of the defect in Bert’s
tution which prohibits the sale of private lands to aliens. Julian title (Article 526, Civil Code.) As such, Anthony can acquire ownership
moved to dismiss the suit on grounds of pari delicto, laches and and other real rights over immovable property through open, continu-
acquisitive prescription. Decide. ’09 – Q19 ous possession of ten (10) years (Article 1134, Civil Code.) Anthony
needs nine (9) more years of possession, in addition to his one (1)
The case must be dismissed. Julian, who is naturalized Filipino year of possession in good faith.
citizen and to whom the property was allocated in an extra-judicial
partition of the estate, is now the new owner of the property. The defect 2. If Carlo was able to legally recover his property, can he
in ownership of the property has already been cured by its transfer to require Anthony to account for all the fruits he has har-
Julian. It has been validated by the transfer of the property to a Filipino vested from the property while in possession?
citizen. Hence, there is no more violation of the Constitution because
the subject real property is now owned by a Filipino citizen (Halili v. If Carlo is able to legally recover his property, he cannot require
Court of Appeals, 287 SCRA 265 [1998].) Further, after the lapse of 35 Anthony to account for all the fruits he has harvested from the property.
years, laches has set in and the motion to dismiss may be granted, for Anthony is entitled to the fruits harvested in good faith before his pos-
the failure of Luciano to question the ownership of Chua before its session was legally interrupted (Article 544, Civil Code.)
transfer to Julian.
3. If there are standing crops on the property when Carlo
Alex died without a will, leaving only an undeveloped and untitled recovers possession, can Carlo appropriate them? ’08 –
lot in Taguig. He is survived by his wife and 4 children. His wife Q7
told his children that she is waiving her share in the property, and
allowed Bobby, the eldest son who was about to get married, to YES, Carlo can appropriate only a portion of the standing crops
construct his house on ¼ of the lot, without however obtaining on the property once he recovers possession. Anthony, being a pos-
the consent of his siblings. After settlement of Alex’s estate and sessor in good faith, shall have the right to a part of the expenses of
partition among the heirs, it was discovered that Bobby’s house cultivation, and to a part of the net harvest of the standing crops, both
was constructed on the portion allocated to his sister, Cathy. in proportion to the time of possession (Article 545, Civil Code.)
Cathy asked Bobby to demolish his house and vacate the portion
allotted to her. In lieu of demolition, Bobby offered to purchase Adam, a building contractor, was engaged by Blas to construct a
from Cathy the lot portion on which his house was constructed. house on a lot which he (Blas) owns. While digging on the lot in
At that time, the house was valued at P300,000 while the portion order to lay down the foundation of the house, Adam hit a very
of the lot on which the house was constructed was valued at hard object. It turned out to be the vault of the old Banco de las
P350,000. Islas Filipinas. Using a detonation device, Adam was able to open
1. Can Cathy lawfully ask for the demolition of Bobby’s the vault containing old notes and coins which were in circulation
house? during the Spanish era. The notes and coins were valued at P100
YES, Cathy can lawfully ask for the demolition of Bobby’s house. million because of their historical value and the coins’ silver and
Where there are two or more heirs, the whole estate of the dece- nickel content. The following filed legal claims over the notes and
dent is, before partition, owned in common by such heirs, subject to coins: (a) Adam, as finder; (b) Blas, as owner of the property
the payment of debts of the deceased (Article 1078, Civil Code.) Under where they were found; (c) BPI, as successor-in-interest of the
the ruled on co-ownership, “none of the co-owners shall, without the owner of the vault; and (d) the Philippine Government because of
consent of the others, make alteration in the things owned in common, their historical value.
even though benefits for all would result therefrom.” In Cruz v. Cata- 1. Who owns the notes and coins?
pang, G.R. No. 164110, February 2008, the Court held that “alterations
include any act of strict dominion or ownership such as construction of The notes and coins are no longer owned by Bank of Philippine
a house.” Islands, which either lost or abandoned the vault and its contents, and
In the present case, if Alex is the real owner of the underdevel- it has not taken any effort to search, locate or recover the vault. In any
oped and untitled land in Taguig, co-ownership is created among his case, since the vault is now in the actual possession of Adam, BPI may
wife and four children over said property upon his death. Since the attempt, in a judicial to recover, to rebut the presumption of ownership
construction of the house by Bobby was done without obtaining the in favor of Adam and Blas (Article 433, Civil Code.)
consent of his siblings, the alteration effected is illegal. Bobby is con- Hidden treasure is any hidden and unknown deposit of money,
sidered to be in bad faith and as a sanction for his conduct, he can be jewelry, or other precious objects, the lawful ownership of which does
compelled by Cathy to demolish or remove the structure at his own not appear. Given the age and importance of the items found, it would
expense. be safe to consider the vault, notes and coins abandoned by BPI and
its predecessor (Article 439, Civil Code.) It belongs to the owner of the
land on which it is found. When the discovery is made on the property
!34
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
of another, or of the State and by chance, on-half of it shall belong to natural and actual continuity of the accretion to the land of the riparian
the finder who is not a trespasser (Article 438, Civil Code.) In the owner caused by the natural ebb and flow of the current of the river
present case, Adam, as finder, and Blas, as owner of the land, are (Delgado v. Samonte, CA-G.R. No, 34979-R, August 10, 1966.)
entitled to share 50-50 in the treasure.
The government can only claim if it can establish that the notes Distinguish between occupation and possession. ’07 – Q1a; ’97 –
and coins are of interest to science or the arts, then it must pay just Q9a
price of the things found, to be divided equally between Adam and Blas
(Article 438, Civil Code.) Occupation can take place only with respect to property without
an owner while possession can refer to all kinds of property, whether
2. Assuming that either or both Adam and Blas are ad- with an owner or without an owner. Occupation itself, when proper,
judged as owners, will the notes and coins be deemed confers ownership but possession does not by itself give rise to owner-
part of their absolute community or conjugal partner- ship (Tolentino, Commentaries and Jurisprudence on the Civil Code of
ship of gains with their respective spouses? ’09 – Q8 the Philippines [1999 ed.], Vol. II, p. 489.)
If either or both Adam and Blas are adjudged as owners, the 1st Alternative Answer:
notes and coins shall be deemed part of their absolute community or
conjugal partnership of gains with their respective spouses (Article 117, Occupation is an original mode of acquiring ownership (Article
par. 4, Family Code.) 712, NCC.) Things appropriable by nature which are without an owner,
such as animals that are the object of hunting and fishing, hidden trea-
The properties of Jessica and Jenny, who are neighbors, lie along sures and abandoned movables, are acquired by occupation (Article
the banks of the Marikina River. At certain times of the year, the 713, NCC.) However, ownership of a piece of land cannot be acquired
river would swell and as the water recedes, soil, rocks and other by occupation (Article 714, NCC.)
materials are deposited on Jessica’s and Jenny’s properties. This On the other hand, possession is the holding of a thing or the
pattern of river swelling, receding and depositing soil and other enjoyment of a right, as provided in Article 523 of the New Civil Code.
materials being deposited on the neighbors’ properties have gone Possession can be in the concept of an owner or in the concept of a
on for many years. Knowing this pattern, Jessica constructed a holder (Article 525, NCC.)
concrete barrier about 2 meters from her property line and ex-
tended towards the river, so that when the water recedes, soil and 2nd Alternative Answer:
other materials are trapped within this barrier. After several years,
the area between Jessica’s property line to the concrete barrier Occupation is a mode of acquiring dominion by the seizure of
was completely filled with soil, effectively increasing Jessica’s corporeal things which have no owner, with the intention of acquiring
property by 2 meters. Jenny’s property, where no barrier was the ownership thereof. It is an original mode of acquiring ownership
constructed, also constructed, also increased by one meter along upon seizure of a res nullius by the occupant who has the intention to
the side of the river. become the owner thereof.
1. Can Jessica and Jenny legally claim ownership over the Possession, on the other hand, is the holding of a thing or the
additional 2 meters and one meter, respectively, of land enjoyment of a right (Article 532, NCC.) Possession may be the real
deposited along their properties? right of possession or jus possessionis or it can be merely the right to
possess or jus possidendi, which are among the basic rights of owner-
Only Jenny can legally claim ownership over the additional one ship. If the real right of possession is possession in the concept of an
meter of land deposited along her property. owner, but subject to certain limitations, it may ripen into full ownership
Article 457 of the Civil Code provides that “to the owners of lands of the thing or property through acquisitive prescription depending on
adjoining the banks of the river belong the accretion which they gradu- whether it is a case of ordinary or extraordinary prescription and
ally receive from the effects of the current of the water.” Where the land whether the property is movable or immovable.
is not formed solely by the natural effect of the water current of the
river bordering the land but is also the consequence of the direct and Distinguish between illegal and impossible conditions in a simple
deliberate intervention of man, it is man-made accretion and a part of donation v. Illegal and impossible conditions in an onerous dona-
the public domain (Tiongco v. Director of Lands, 16 C.A. Rep 211, cited tion. ’07 – Q1b; ’97 – Q9b
in Nazareno v. Court of Appeals, G.R. No. 98045, June 26, 1996.)
Thus, Jessica cannot legally claim ownership of the additional 2 meters Illegal and impossible conditions in a simple donation are consid-
of land along her property because she constructed a concrete barrier ered not written. Such conditions shall, therefore, be disregarded but
about 2 meters from her property causing deposits of soil and other the donation remains valid (Article 727, NCC.)
materials when the water recedes. In other words, the increase in her On the other hand, illegal and impossible conditions imposed in
property was not caused by nature but was man-made. an onerous donation shall annul the donation (Article 1183, NCC.) This
is so, because onerous donations are governed by the law on con-
2. If Jessica’s and Jenny’s properties are registered, will tracts (Article 733, NCC.)
the benefit of such registration extend to the increased
area of their properties? Manila Petroleum owned and operated a petroleum operation
facility off the coast of Manila. The facility was located on a float-
If the properties of Jessica and Jenny are registered, the benefit ing platform made of wood and metal, upon which was perma-
of such registration does not extend to the increased are of their prop- nently attached the heavy equipment for the petroleum operations
erties. Accretion does not automatically become registered land be- and living quarters of the crew. The floating platform likewise
cause there is a specific technical description of the lot in its Torrens contained a garden area, where trees, plants and flowers were
title. There must be a separate application for registration of the alluvial planted. The platform was tethered to a ship, the MV 101, which
deposits under the Torrens system (Grande v. Court of Appeals, G.R. was anchored to the seabed.
No. L-17652, June 30, 1962.) 1. Is the platform movable or immovable property?
3. Assume the two properties are on a cliff adjoining the The platform is an immovable property under Article 415(9), NCC,
shore of the Laguna Lake. Jessica and Jenny had a ho- which provides that “docks and structures which, though floating, are
tel built on the properties. They had the earth and rocks intended by their nature and object to remain at a fixed place on a
excavated from the properties dumped on the adjoining river, lake or coast.” Since the floating platform is a petroleum opera-
shore, giving rise to a new patch of dry land. Can they tion facility, it is intended to remain permanently where it is situated,
validly claim to the patch of land? ’08 – Q9 even if it is tethered to a ship which is anchored to the seabed.
NO, Jessica and Jenny cannot validly lay claim to the patch of 2. Are the equipment and living quarters movable or im-
land because in order to acquire land by accretion, there should be a movable property?
!35
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
you were George’s legal counsel, what steps will you take? ’06 –
The equipment and living quarters of the crew are immovable Q8
property under Article 415(3), NCC, which classifies as an immovable
“everything attached to an immovable in a fixed manner, in such a way As George’s counsel, I will give Manny a written demand to va-
that it cannot be separated therefrom, without breaking the material or cate within a definite period, say 15 days. After the lapse of the 15-day
deterioration of the object.” Both the equipment and the living quarters period, I will file an action for unlawful detainer to recover the posses-
are permanently attached to the platform which is also an immovable. sion of the apartment from Manny. Manny’s occupation of the property
The equipment can also be classified as an immovable under was by mere tolerance of his parents. When all the co-heirs/co-owners
Article 415(5), NCC because such equipment are “machinery, recepta- assigned the 2-door apartment to Janine in the extrajudicial partition,
cles, instruments or implements intended by the owner of the tenement Janine became the sole owner of the same. He continued to occupy
for an industry or works which may be carried on in a building or on a the same under the same familial arrangement. Upon the sale of the
piece of land and which tend directly to meet the needs of the said property to George, Manny’s lawful occupation of the property was
industry or works.” It is logically assumed that the petroleum industry terminated and Manny’s refusal to sign the lease contract and to va-
may be carried on in a piece of building or on a piece of land and the cate the premises after the period to vacate lapsed made his occupa-
platform is analogous to a building. tion unlawful; hence, entitling George to the remedy of unlawful detain-
er.
3. Are the trees, plants and flowers immovable or movable
property? ’07 – Q2 A drug lord and his family reside in a small bungalow where they
sell shabu and other prohibited drugs. When the police found the
The trees, plants and flowers planted in the garden area of the illegal trade, they immediately demolished the house because
platform are immovable property under Article 415(2), NCC which according to them, it was a nuisance per se that should be abat-
classifies as an immovable property “trees, plants and growing fruits, ed. Can this demolition be sustained? ’06 – Q9
while they are attached to the land or form an integral part of an im-
movable.” The garden forms an integral part of an immovable, the NO, the demolition cannot be sustained. The house cannot be
petroleum operation facility. considered as nuisance per se.
To be considered as nuisance per se, the act occupation, or struc-
In 1986, Jennifer and Brad were madly in love. In 1989, because a ture must be a nuisance at all times and under any circumstance, re-
certain Picasso painting reminded Brad of her, Jennifer acquired gardless of the location or surrounding. Since the demolished house
it and placed it in his bedroom. In 1990, Brad and Jennifer broke was not a nuisance during times that it was not being used for selling
up. While Brad was mending his broken heart, he met Angie and drugs, it cannot be considered as nuisance per se.
fell in love. Because the Picasso painting reminded Angie of him, Moreover, in the abatement of a nuisance, whether judicially or
Brad in his bequeathed the painting to Angie. Brad died in 1995. extra-judicially, the abatement should not inflict unnecessary damage
Saddened by Brad’s death, Jennifer asked for the Picasso paint- or injury. In this case, what may be considered as nuisance per se is
ing as a remembrance of him. Angie refused and claimed that not the structure itself but the use of the house for the selling of shabu.
Brad, in his will, bequeathed the painting to her. Is Angie correct? However, the demolition of the house is not necessary to abate the
’07 – Q8 sale of shabu that community. To demolish the house is an unneces-
sary damage and injury.
NO. Angie is not correct. The Picasso painting was not given or
donated by Jennifer to Brad. She merely “placed it in his bedroom.” Spouses Alfredo and Raquel were active members of a religious
Hence, she is still the owner of the painting. Not being the owner of the congregation. They donated a parcel of land in favor of that con-
Picasso painting, Brad cannot validly bequeath the same to Angie gregation in a duly notarized Deed of Donation, subject to the
(Article 930, NCC.) condition that the Minister shall construct thereon a place of wor-
Even assuming that the painting was impliedly given or donated ship within 1 year from the acceptance of the donation. In an affi-
by Jennifer to Brad, the donation is nevertheless void for not being in davit he executed in behalf of the congregation, the Minister ac-
writing. The Picasso painting must be worth more than 5,000 pesos. cepted the donation. The Deed of Donation was not registered
Under Article 748, NCC, the donation and acceptance of a movable with the Registry of Deeds. However, instead of constructing a
worth more than 5,000 pesos must be in writing, otherwise the dona- place of worship, the Minister constructed a bungalow on the
tion is void. The donation being void, Jennifer remained the owner of property he used as his residence. Disappointed with the Minister,
the Picasso painting and Brad could not have validly disposed of said the spouses revoked the donation and demanded that he vacate
painting in favor of Angie in his will. the premises immediately. But the minister refused to leave,
claiming that aside from using the bungalow as his residence, he
Alternative Answer: is also using it as a place of worship on special occasions. Under
the circumstances, can Alfredo evict the Minister and recover
Yes, Angie is correct. Even assuming that there was a void dona- possession of the property? If you were the couple’s counsel,
tion because the donation was not in writing, Brad, who was in uninter- what action will you take to protect the interests of your client?
rupted possession of the Picasso painting from 1989 to 1995, or lasting ’06 – Q11
for six (6) years prior to his death, had already acquired ownership of
the painting through acquisitive prescription. Under Article 1132 of the As counsel for the couple, I may file an action for reconveyance of
Civil Code, ownership of movables prescribes through continuous the property on the ground that the donation was not perfected. It was
possession for four (4) years in good faith and for eight (8) years with- not perfected because although it was made in a public instrument and
out need of any other condition. A void donation may be the basis of was accepted by the donee in a separate public document, the donee
possession in the concept of owner and of just titled for purposes of failed to notify the donor of such acceptance in an authentic form be-
acquisitive prescription. fore the donation was revoked under Article 749 of the Civil Code.
Such notification was necessary for the donation to become valid and
Alberto and Janine migrated to the US, leaving behind their 4 binding.
children, one of whom was Manny. They own a duplex apartment
and allowed Manny to live in one the units. While in the US, Alber- Another Suggested Answer:
to died. His widow and all his children executed an EJS of Alber-
to’s estate wherein the 2-door apartment was assigned by all the Assuming that the donation is valid on the ground that it was an
children to their mother, Janine. Subsequently, she sold the prop- onerous donation, and therefore, the law on contracts applied even as
erty to George. The latter required Manny to sign a Lease Con- to its form, I may filed an action for the revocation of the donation un-
tract so that he and his family could continue occupying the unit. der Article 764 of the Civil Code for non-compliance with the condition
Manny refused to sign the contract alleging that his parents al- imposed on the donation. In donating the land, the intention of the
lowed him and his family to continue occupying the premises. If couple was for the land to become the site of a church, or place of
worship, for their congregation. This is why the couple have imposed,
!36
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
as a condition of the donation, the construction of a church or a place private land and hinders or impairs the owner’s use of his or her own
of worship, within 1 year form the acceptance of the donation. The property, then it would constitute a private nuisance.
construction of a residential bungalow which is used as a place of wor-
ship only on special occasions is not substantial compliance with such 2. A swimming pool;
condition. Hence, the donation may be revoked for failure to comply
with the condition. A swimming pool is not a nuisance and is an exception to the
Upon the filing of the case, I will file a notice of lis pendens with attractive nuisance doctrine (Hidalgo v. Guillermo, 91 Phil. 488 [1952].)
the Register of Deeds for annotation of the TCT to ensure against the It generally does not cause an injury, harm or prejudice to an individual
transfer of the land to an innocent purchaser for value. or the public (Article 694, par. 1, Civil Code.)
Don was the owner of an agricultural land with no access to a 3. A house of prostitution;
public road. He has been passing through the land of Ernie with
the latter’s acquiescence for over 20 years. Subsequently, Don A house of prostitution is a public nuisance because it shocks or
subdivided his property into 20 residential lots and sold them to disregards the decency or morality of the community (Article 694, par.
different persons. Ernie blocked the pathway and refused to let 3, Civil Code.)
the buyers pass through his land.
1. Did Don acquire an easement of right of way? 4. A noisy or dangerous factory in a private land; and
Don did not acquire an easement of right of way. His passage A noisy or dangerous factory even if built on private land may be
through Ernie’s land was by mere acquiescence or tolerance. He can- considered a nuisance if it offends the senses of the owners of the
not claim to have acquired the easement of right of way by prescrip- adjacent property or poses a danger to their safety (Article 694, par. 1,
tion, because this easement is discontinuous although apparent. Only Civil Code.) This kind of nuisance may be classified as a public nui-
continuous and apparent easements can be acquired by prescription of sance if it affects and annoys those who come within its sphere.
10 years of uninterrupted use and enjoyment.
5. Uncollected garbage. ’05 – Q8
2. Could Ernie close the pathway and refuse to let the buy-
ers pass? Uncollected garbage can be injurious to health and even the envi-
ronment. It is thus, considered a public nuisance.
As there is no right of way existing in favour of Don’s land, Ernie
could close the pathway. The lot buyers may request Ernie to establish Under a written contract dated December 1, 1989, Victor leased
a right of way as voluntary easement by entering into a contract with his land to Joel for a period of 5 years at a monthly rental of
Ernie, or file an action to constitute a legal easement by proving com- P1,000 to be increased to P1,200 and P1,500 on the 3rd and 5th
pliance with the four (4) requisites for a creating a legal easement un- year respectively. On January 1, 1991, Joel subleased the land to
der Articles 649 and 650 of the New Civil Code. Conrad for a period of 2 years at a monthly rental of P1,500. On
December 31, 1992, Joel assigned the lease to Ernie, who acted
3. What are the rights of the lot buyers, if any? ’05 – Q6 on the belief that Joel was the rightful owner and possessor of
the said lot. Joel has been faithfully paying the stipulated rentals
The lot buyers have the right to: to Victor. When Victor learned on May 15, 1992 about the sublease
1. Ask for a constitution of legal easement of right of way; and assignment, he sued Joel, Conrad and Ernie for rescission of
2. Require Don to provide a right of way. Under Section 29 of the contract of lease and for damages.
P.D. No. 957, the owner or developer of a subdivision without 1. Will the action prosper?
access to any existing road must secure a right of way;
3. Formally complain to the Housing and Land Use Regulatory YES, the action for the rescission of the lease will prosper be-
Board regarding Don’s failure to comply with P.D. No. 957, cause Joel cannot assign the lease without the consent of Victor (Arti-
specifically: cle 1649, Civil Code.) But Joel may sublet to Conrad because there is
a. Failure to provide a right of way; no express prohibition (Article 1650, Civil Code; Alipio v. Court of Ap-
b. Failure to convert the land from agricultural to peals, 341 SCRA 441 [2000].)
residential under the Agrarian Law; and Victor can rescind the contract of lease with Joel, and the as-
c. Failure to secure a license to sell. signment of the lease to Ernie, on the ground of violation of law and of
4. Commence criminal prosecution for violation of the penal contract. The sublease to Conrad remained valid for two (2) years from
provisions of P.D. No. 957. January 1, 1991, and had not yet lapsed when the action was filed on
May 15, 1992.
State whether each of the following is a nuisance, and if so, give
its classification, whether public or private. 2. In case of rescission, discuss the rights and obligations
1. A squatter’s hut; of the parties. ’05 – Q14
According to Article 694 of the Civil Code, a nuisance is any act, In case of rescission, the rights and obligations of the parties
omission, establishment, business condition of property, or anything should be as follows:
else which: At the time that Victor filed suit on May 15, 1992, the assignment
(1) Injures or endangers the health and safety of others; or had not yet lapsed. It would lapse on December 1, 1994, the very
(2) Annoys or offends the senses; or same date that the 5-year basic lease would expire. Since the assign-
(3) Shocks, defies, or disregards decency or morality; or ment is void, Victor can get the property back because of the violation
(4) Obstructs or interferes with the free passage of any public of the lease. Both Joel and Ernie have to surrender possession and
highway or street, or any body of water; or are liable for damages. But Conrad has not yet incurred any liability on
(5) Hinders or impairs the use of property. the sublease which still subsisted at the time of the filing of the action
A nuisance may be either public or private. Under Article 695 of on May 15, 1992.
the Civil Code, a public nuisance affects a community or neighborhood Ernie can file a cross-claim against Joel for damages on account
or any considerable number of persons, although the extent of the of the rescission of the contract of assignment. Conrad can file a
annoyance, danger or damage upon individuals may be unequal. A counter-claim against Victor for damages for lack of causes of action at
private nuisance, on the other hand, is one that violates only private the time of the filing of the suit.
rights and produces damage to but one or a few persons.
TX filed a suit for ejectment against BD for non-payment of con-
A squatter’s hut, being an illegal construction, constitutes a public dominium rentals amounting to P150,000. During the pendency of
nuisance per se, if it poses problems of health and sanitation (City of the case, BD offered and TX accepted the full amount due as
Manila v. Garcia, 19 SCRA 41 [1967].) If the squatter’s hut is built on a rentals from BD, who then filed a MTD the ejectment suit on the
!37
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
ground that the action is already extinguished. Is BD’s contention 1. Who has the better right over the 200-square meter area
correct? ’04 – Q1b that has been added to Mario’s registered land, Mario or
Andres?
BD’s contention is not correct. TX can still maintain the suit for
ejectment. The acceptance by the lessor of the payment by the lessee Mario has a better right over the 200-square meters increase in
of the rentals in arrears even during the pendency of the ejectment area by reason of accretion, applying Article 457 of the New Civil
case does not constitute a waiver or abandonment of the ejectment Code, which provides that “to the owners of lands adjoining the banks
case (Spouses Clutario v. Court of Appeals, 216 SCRA 341 [1992].) of rivers belong the accretion which they gradually receive from the
effects of the current of the waters.”
Dr. ALX is a scientist honored for work related to the human Andres cannot claim that the increase in Mario’s land is his own,
genome project. Among his pioneering efforts concern stem cell because such is an accretion and not a result of the sudden detach-
research for the cure of Alzheimer’s disease. Under corporate ment of a known portion of his land and its attachment to Mario’s land,
sponsorship, he helped developed a microbe that ate and digest- a process called “avulsion.” He can no longer claim ownership of the
ed oil spills in the sea. Now he leads a college team for cancer portion of this registered land which was gradually and naturally erod-
research in MSS State. The team has experimented on a mouse ed due to the current of the river, because he had lost it by operation of
whose body cells replicates and bear cancerous tumor. Called law. That portion of the land has become part of the public domain.
“oncomouse”, it is a life-form useful for medical research and it is
a novel creation. Its body cells do not naturally occur in nature 2. May a 3rd person acquire said 200-square meter land by
but are the product of man’s intellect, industry and ingenuity. prescription? ’03 – Q9
However, there is a doubt whether local property laws and ethics
would allow rights of exclusive ownership on any life-form. Dr YES, a third party may acquire by prescription the 200 square
ALX needs your advice: meters increase in area because it is not included in the Torrens Title of
1. Whether the reciprocity principle in private international the riparian owner. Hence, this does not involve the imprescriptibility
law could be applied in our jurisdiction? conferred by Section 47, P.D. No. 1529. The fact that the riparian land
is registered does not automatically make the accretion thereto a regis-
The reciprocity principle in private international law may be ap- tered land (Grande v. Court of Appeals, 115 Phil. 521 [1962]; Jagualing
plied in our jurisdiction. Section 3 of R.A. 8293, the Intellectual Proper- v. Court of Appeals, 194 SCRA 607 [1991].)
ty Code, provides for reciprocity, as follows: “Any person who is a na-
tional, or who is domiciled, or has a real and effective industrial estab- In 1950, Dr. Alba donated a parcel of land to Central University on
lishment in a country which is a party to any convention, treaty or the condition that the latter must establish a medical college on
agreement relating to intellectual property rights or the repression of land to be named after him. In the year 2000, the heirs of Dr. Alba
unfair competition, to which the Philippines is also a party, extends filed an action to annul the donation and for the reconveyance of
reciprocal rights to nationals of the Philippines by law, shall be entitled the property donated to them for their failure, after 50 years, of
to benefits to the extent necessary to give effect to any provision of the University to establish on the property a medical school
such convention, treaty or reciprocal law, in addition to the rights to named after their father. The University opposed the action on the
which any owner of an intellectual property right is otherwise entitled ground of prescription and also because it had not used the
by this Act.” property for some purpose other than that stated in the donation.
To illustrate: the Philippines may refrain from imposing a require- Should the opposition of the University to the action of Dr. Alba’s
ment of local incorporation or establishment of a local domicile for the heirs be sustained? ’03 – Q10
protection of industrial property rights of foreign nationals (citizens of
Canada, Switzerland, US) if the countries of said nationals refrain from The donation may be revoked.
imposing said requirement on Filipino citizens. The non-establishment of the medical college on the donated
property was a resolutory condition imposed on the donation by the
2. Whether there are legal and ethical reasons that could donor. Although the Deed of Donation did not fix the time for the estab-
frustrate his claim of exclusive ownership over the life- lishment of the medical college, the failure of the donee to establish the
form called “oncomouse” in Manila? ’04 – Q3b medical college after fifty (50) years from the making of the donation
should be considered as occurrence of the resolutory condition, and
There is no legal reason why “oncomouse” cannot be protected the donation may now be revoked.
under the law. Among those excluded from patent protection are “plant While the general rule is that in case the period is not fixed in the
varieties or animal breeds, or essentially biological process for the agreement of the parties, the period must be fixed by the court before
production of plants and animals” (Section 22.4, Intellectual Property the obligation may be demanded, the period of fifty (50) years was
Code, R.A. No. 8293.) The “oncomouse” in the problem is not an es- more than enough time for the donee to comply with the condition.
sentially biological process for the production of animals. It is a real Hence, in this case, there is no more need for the court to fix the period
invention because its body cells do not naturally occur in nature but are because such procedure would serve no other purpose but to delay
the product of man’s ingenuity, intellect and industry. compliance with the condition (Central Philippine University v. Court of
The breeding of oncomouse has novelty, inventive step and in- Appeals, 246 SCRA 511 [1995.)
dustrial application. These are the three requisites of patentability (Sec-
tion 29, IPC.) May a person donate something that does not belong to him? ’03
There are no ethical reasons why Dr. ALX and his college tem – Q15b
cannot be given exclusive ownership over their invention. The use of
such genetically modified mouse, useful for cancer research, out- As a general rule, a person cannot donate something which he
weighs considerations for animal rights. cannot dispose of at the time of the donation (Article 751, Civil Code.)
There are no legal and ethical reasons that would frustrate Dr.
ALX’s claim of exclusive ownership over “oncomouse.” Animals are X constructed a house on a lot which he was leasing from Y. Lat-
property capable of being appropriated and owned. In fact, one can er, X executed a chattel mortgage over said house in favor of Z as
own pet dogs or cats, or any other animal. If wild animals are capable security for a loan obtained from the latter. Still later, X acquired
of being owned, with more reason animals technologically enhanced or ownership of the land where his house was constructed, after
corrupted by man’s invention or industry are susceptible to exclusive which he mortgaged both house and land in favor of a bank,
ownership by the inventor. which mortgage was annotated on the TCT. When X failed to pay
his loan to the bank, the latter, being the highest bidder at the
Andres is a riparian owner of a parcel of registered land. His land, foreclosure sale, foreclosed the mortgage and acquired X’s house
however, has gradually diminished in are due to the current of the and lot. Learning of the proceedings conducted by the bank, Z is
river, while the registered land of Mario on the opposite bank had now demanding that bank reconvey to him X’s house or pay X’s
gradually increased in area by 200-square meters. loan to him plus interests. Is Z’s demand against the bank valid
and sustainable? ’03 – Q19
!38
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
of man, descends from a higher estate to a lower estate. However,
NO. Z’s demand is not valid. Hernando has constructed a waste disposal lagoon for his piggery and
A building is immovable or real property whether it is erected by it is this waste water the flows downwards to Lauro’s land. Hernando
the owner of the land, by a usufructuary, or by a lessee. It may be has, thus, interrupted the flow of water and has created and is main-
treated as a movable by the parties to a chattel mortgage but such is taining a nuisance.
binding only between them and not on third parties (Evangelista v. Alto Under Article 697, NCC, abatement of a nuisance does not pre-
Surety Co., Inc., 103 Phil. 401 [1958].) clude recovery of damages by Lauro even for the past existence of a
In this case, since the bank is not a party to the chattel mortgage, nuisance. The claim for damages may also be premised on Article
it is not bound by it. As far as the Bank is concerned, the chattel mort- 2191(4), NCC.
gage does not exist. Moreover, the chattel mortgage is void because it
was not registered. Assuming that it is valid, it does not bind the Bank Another Answer:
because it was not annotated on the title of the land mortgaged to the
bank. Z cannot demand that the Bank pay him the loan Z extended to Hernando is not correct. Article 637 of the Civil Code provides
X, because the Bank was not privy to such loan transaction. that the owner of the higher estate cannot make works which will in-
crease the burden on the servient estate (Remman Enterprises v.
Antonio, Bart and Carlos are brothers. They purchased from their Court of Appeals, 330 SCRA 145 [2000].) The owner of the higher
parents specific portions of a parcel of land as evidenced by 3 estate may be compelled to pay damages to the owner of the lower
separate deeds of sale, each deed referring to a particular lot in estate.
metes and bounds. When the deeds were presented for registra-
tion, the Register of Deeds could not issue separate certificates of Mike built a house on his lot in Pasay City. 2 years later, a survey
title due to the absence of a subdivision plan. The new title had to disclosed that a portion of the building actually stood on the
be issued, therefore, in the names of the brothers as co-owners of neighboring land of Jose, to the extent of 40 square meters. Jose
the entire property. The situation has not changed up to now, but claims that Mike is a builder in bad faith because he should know
each of the brothers has been receiving rentals exclusively from the boundaries of his lot, and demands that the portion of the
the lot actually purchased by him. Antonio sells his lot to a 3rd house which encroached on his land should be destroyed or re-
person, with notice to his brothers. To enable to secure a new title moved. Mike replies that he is a builder in good faith and offers to
in his name, the deed of sale was made to refer to an undivided buy the land occupied by the building instead.
interest in the property of the seller (Antonio), with the metes and 1. Is Mike a builder in good faith or bad faith?
bounds of the lot being stated. Bart and Carlos reacted by signify-
ing their exercise of the right of redemption as co-owners. Anto- YES, Mike is a builder in good faith. There is no showing that
nio, in his behalf and in behalf of the buyer, contends that they when he built his house, he knew that a portion thereof encroached on
are no longer co-owners, although the title covering the property Jose's lot. Unless one is versed in the science of surveying, he cannot
has remained in their names as such. determine the precise boundaries or location of his property by merely
May Bart and Carlos still redeem the lot sold by Antonio? ’02 – Q4 examining his title. In the absence of contrary proof, the law presumes
that the encroachment was done in good faith (Tecnogas Philippines
NO, they may not redeem because there was no co-ownership Manufacturing Corp. v. Court of Appeals, 268 SCRA 5, 15 [1997].)
among Antonio, Bart and Carlos to start with. Their parents already
partitioned the land in selling portions to them. The situation is the Alternative Answer:
same as in the case of Si v. Court of Appeals, (342 SCRA 653 [2000].)
Mike cannot be considered a builder in good faith because he
Senen and Peter are brothers. Senen migrated to Canada early built his house without first determining the corners and boundaries of
while still a teenager. Peter stayed on in Bulacan to take care of his lot to make sure that his construction was within the perimeter of
their widowed mother and continued to work on the family farm his property. He could have done this with the help of a geodetic engi-
even after her death. Returning to the country some 30 years after neer as an ordinary prudent and reasonable man would do under the
he had left, Senen seeks a partition of the farm to get his share as circumstances.
the only co-heir of Peter. Peter interposes his opposition, inter-
posing that acquisitive prescription has already set in and that 2. Whose preference should be followed? ’01 – Q3
estoppel lies to bar the action for partition, citing his continuous
possession for at least 10 years, for almost 30 years in fact. It is None of the preferences shall be followed.
undisputed that Peter has never openly claimed sole ownership The preference of Mike cannot prevail because under Article 448
of the property. If he had the intention to do so, Senen was com- of the Civil Code, it is the owner of the land who has the option or
pletely ignorant of it. Will Senen’s action prosper? ’02 – Q5 choice, not the builder. On the other hand, the option belongs to Jose,
he cannot demand that the portion of the house encroaching on his
Senen’s action will prosper. Article 494 of the Civil Code provides land be destroyed or removed because this is not one of the options
that “no prescription shall run in favor of a co-owner or co-heir against given by law to the owner of the land. The owner may choose between
his co-owner or co-heirs so long as he expressly or impliedly recog- the appropriation of what was built after payment of indemnity, or to
nizes the co-ownership.” Peter has never renounced the co-ownership compel the builder to pay for the land if the value of the land is not
nor notified Senen of his having repudiated the same. considerably more than that of the building. Otherwise, the builder shall
pay rent for the portion of the land encroached.
Lauro owns an agricultural land planted mostly with fruit trees.
Hernando owns an adjacent land devoted to his piggery business Alternative Answer:
which is 2 meters higher in elevation. Although Hernando has
constructed a waste disposal lagoon for his piggery, it is inade- Jose's preference should be followed. He may have the building
quate to contain the waste water containing pig manure, and it removed at the expense of Mike, appropriate the building as his own,
often overflows and inundates Lauro’s plantation. This has in- oblige Mike to buy the land and ask for damages in addition to any of
creased the acidity of the soil, causing the trees to wither and die. the three options (Articles 449, 450, 451, CC.)
Lauro sues for damages caused to his plantation. Hernando in-
vokes his right to the benefit of a natural easement in favor of his For many years, the Rio Grande River deposited soil along its
higher estate, which imposes upon the lower estate of Lauro the bank, beside the titled land of Jose. In time, such deposit reached
obligation to receive the waters descending from the higher es- an area of one thousand square meters. With the permission of
tate. Is Hernando correct? ’02 – Q6 Jose, Vicente cultivated the said area. 10 years later, a big flood
occurred in the river and transferred the 1000 square meters to
Hernando is wrong. the opposite bank, beside the land of Agustin. The land trans-
It is true that Lauro’s land is burdened with the natural easement ferred is now contested by Jose and Agustin as riparian owners
to accept or receive the water which, naturally and without interruption
!39
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
and by Vicente who claims ownership by prescription. Who owner's office. 2 months later, Anastacia died, leaving her mother
should prevail? ’01 – Q4 Rosa as her sole heir. Rosa filed an action to annul the donation
on the ground that Amanda did not give her consent in the deed
Jose should prevail. The disputed area, which is an alluvion, be- of donation or in a separate public instrument. Amanda replied
longs by right of accretion to Jose, the riparian owner (Article 457, CC). that the donation was an onerous one because she had to pay
When, as given in the problem, the very same area" was "transferred" unpaid installments and taxes; hence her acceptance may be
by flood waters to the opposite bank, it became an avulsion and own- implied. Who is correct? '00 – Q7b
ership thereof is retained by Jose who has two years to remove it (Arti-
cle 459, CC). Vicente's claim based on prescription is baseless since Rosa is correct because the donation is void. The property donat-
his possession was by mere tolerance of Jose and, therefore, did not ed was an immovable. For such donation to be valid, Article 749 of the
adversely affect Jose's possession and ownership (Article 537, CC). New Civil Code requires both the donation and the acceptance to be in
Inasmuch as his possession is merely that of a holder, he cannot ac- a public instrument. There being no showing that Amanda's accep-
quire the disputed area by prescription. tance was made in a public instrument, the donation is void.
The contention that the donation is onerous and, therefore, need
Emma bought a parcel of land from Equitable-PCI Bank, which not comply with Article 749 for validity is without merit. The donation is
acquired the same from Felisa, the original owner. Thereafter, not onerous because it did not impose on Amanda the obligation to pay
Emma discovered that Felisa had granted a right of way over the the balance on the purchase price or the arrears in real estate taxes.
land in favor of the land of Georgina, which had no outlet to a Amanda took it upon herself to pay those amounts voluntarily. For a
public highway, but the easement was not annotated when the donation to be onerous, the burden must be imposed by the donor on
servient estate was registered under the Torrens system. Emma the donee. In the problem, there is no such burden imposed by the
then filed a complaint for cancellation of the right of way, on the donor on the donee. The donation not being onerous, it must comply
ground that it had been extinguished by such failure to annotate. with the formalities of Article 749.
How would you decide the controversy? ’01 – Q5
Demetrio knew that a piece of land bordering the beach belonged
The complaint for cancellation of easement of right of way must to Ernesto. However, since the latter was studying in Europe and
fail. The failure to annotate the easement upon the title of the servient no one was taking care of the land, Demetrio occupied the same
estate is not among the grounds for extinguishing an easement under and constructed thereon nipa sheds with tables and benches
Article 631 of the Civil Code. which he rented out to people who want to have a picnic by the
Under Article 617, easements are inseparable from the estate to beach. When Ernesto returned, he demanded the return of the
which they actively or passively belong. Once it attaches, it can only be land. Demetrio agreed to do so after he has removed the nipa
extinguished under Article 631, and they exist even if they are not stat- sheds. Ernesto refused to let Demetrio remove the nipa sheds on
ed or annotated as an encumbrance on the Torrens title of the servient the ground that these already belonged to him by right of acces-
estate (II Tolentino 326, 1987 ed.) sion. Who is correct? '00 - Q2a
Anastacia purchased a house and lot on installments at a housing 2. In the meantime that Pedro is not yet paid, who is enti-
project in QC. Subsequently, she was employed in California and tled to the rentals of the building, Pedro or Pablo? ’00 –
a year later, she executed a deed of donation, duly authenticated Q9b
by the Philippine Consulate in L.A., California, donating the house
and lot to her friend Amanda. The latter brought the deed of dona- Pablo is entitled to the rentals of the building. As the owner of the
tion to the owner of the project and discovered that Anastacia left land, Pablo is also the owner of the building being an accession there-
unpaid installments and real estate taxes. Amanda paid these so to. However, Pedro who is entitled to retain the building is also entitled
that the donation in her favor can be registered in the project to retain the rentals. He, however, shall apply the rentals to the indem-
!40
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
nity payable to him after deducting reasonable cost of repair and main- tract between him and A, and that he has not been remiss in the
tenance. payment of rent. Will the action prosper? ’00 – Q19a
Ambrosio died, leaving his 3 daughters, Belen, Rosario and Sylvia YES, the action will prosper. Under Article 1651 of the Civil Code,
a hacienda which was mortgaged to PNB due to the failure of the the sublessee is bound to the lessor for all acts which refer to the use
daughters to pay the bank, the latter foreclosed the mortgage and and preservation of the thing leased in the manner stipulated between
the hacienda was sold to it as the highest bidder. 6 months later, the lessor and the lessee.
Sylvia won the grand prize at the lotto and used part of it to re-
deem the hacienda from the bank. Thereafter, she took posses- In 1995, Mark leased the rice land of Narding in Nueva Ecija for an
sion of the hacienda and refused to share its fruits with her sis- annual rental of P1,000 per hectare. In 1998, due to the El Nino
ters, contending that it was owned exclusively by her, having phenomenon, the rice harvest fell to only 40% of the average har-
bought it from the bank with her own money. Is she correct or vest for the previous years. Mark asked Narding for a reduction of
not? ’00 – Q10a the rental to P500.00 per hectare for that year but the latter re-
fused. Is Mark legally entitled to such reduction? ’00 – Q19b
Sylvia is not correct. The 3 daughters are the co-owners of the
hacienda being the only heirs of Ambrosio. When the property was NO, Mark is not entitled to a reduction. Under Article 1680 of the
foreclosed, the right of redemption belongs also to the 3 daughters. Civil Code, the lessee of a rural land is entitled to a reduction of the
When Sylvia redeemed the entire property before the lapse of the re- rent only in case of loss of more than ½ of the fruits through ex-
demption period, she also exercised the right of redemption of her co- traordinary and unforeseen fortuitous events. While the drought
owners on their behalf. As such she is holding the shares of her two brought about by the “El Nino” phenomenon may be classified as ex-
sisters in the property, and all the fruits corresponding thereto, in trust traordinary, it is not considered as unforeseen.
for them. Redemption by one co-owner inures to the benefit of all
(Adille v. Court of Appeals, 157 SCRA 455 [1988].) Sylvia, however, is Alternative Answer:
entitled to be reimbursed the shares of her two sisters in the redemp-
tion price. Yes, Mark is entitled to a reduction of the rent. His loss was more
than ½ of the fruits and the loss was due to an extraordinary and un-
Felix cultivated a parcel of land and planted it to sugar cane, be- foreseen fortuitous event. The “El Nino” phenomenon is extraordinary
lieving it to be his own. When the crop was 8 months old and har- because it is uncommon; it does not occur with regularity. And neither
vestable after 2 more months, a resurvey of the land showed that could the parties have foreseen its occurrence. The event should be
it really belonged to Fred. What are the options available to Fred? foreseeable by the parties so that the lessee can change the time for
'00 – Q10b his planting, or refrain from planting, or take steps to avoid the loss. To
be foreseeable, the time and the place of the occurrence, as well as
As to the pending crops planted by Felix in good faith, Fred has the magnitude of the adverse effects of the fortuitous event must be
the option of allowing Felix to continue the cultivation and to harvest capable of being predicted. Since the exact place, the exact time, and
the crops, or to continue the cultivation and harvest the crops himself. the exact magnitude of the adverse effects of the “El Nino” phe-
In the latter option, however, Felix shall have the right to a part of the nomenon are still unpredictable despite the advances in science, the
expenses of cultivation and to a part of the net harvest, both in propor- phenomenon is considered unforeseen.
tion to the time of possession (Article 545 NCC.)
Because of confusion as to the boundaries of the adjoining lots
In 1955, Ramon and his sister Rosario inherited a parcel of land in that they bought from the same subdivision company, X con-
Albay from their parents. Since Rosario was gainfully employed in structed a house on the adjoining lot of Y in the honest belief that
Manila, she left Ramon alone to possess and cultivate the land. it is the land that he bought from the subdivision company.
However, Ramon never shared the harvest with Rosario and was 1. What are the respective rights of X and Y with respect to
even able to sell ½ of the land in 1985 by claiming to be the sole X's house?
heir of his parents. Having reached retirement age in 1990
Rosario returned to the province and upon learning what had The rights of Y, as owner of the lot, and of X, as builder of a house
transpired, demanded that the remaining half of the land be given thereon, are governed by Article 448 of the Civil Code which grants to
to her as her share. Ramon opposed, asserting that he has al- Y the right to choose between two remedies: (a) appropriate the house
ready acquired ownership of the land by prescription, and that by indemnifying X for its value plus whatever necessary expenses the
Rosario is barred by laches from demanding partition and recon- latter may have incurred for the preservation of the land, or (b) compel
veyance. Decide the conflicting claims. ’00 – Q17 X to buy the land if the price of the land is not considerably more than
the value of the house. If it is, then X cannot be obliged to buy the land
Ramon is wrong on both counts: prescription and laches. but he shall pay reasonable rent, and in case of disagreement, the
His possession as co-owner did not give rise to acquisitive pre- court shall fix the terms of the lease.
scription. Possession by a co-owner is deemed not adverse to the
other co-owners but is, on the contrary, deemed beneficial to them 2. Suppose X was in good faith but Y knew that X was con-
(Pangan v. Court of Appeals, 166 SCRA 375 [1988].) Ramon's posses- structing on his (Y's) land but simply kept quiet about it,
sion will become adverse only when he has repudiated the co-owner- thinking perhaps that he could get X's house later. What
ship and such repudiation was made known to Rosario. Assuming that are the respective rights of the parties over X's house in
the sale in 1985 where Ramon claimed he was the sole heir of his this case? ’99 – Q9
parents amounted to a repudiation of the co-ownership; the prescrip-
tive period began to run only from that time. Not more than 30 years Since the lot owner Y is deemed to be in bad faith (Article 453), X
having lapsed since then, the claim of Rosario has not as yet pre- as the party in good faith may (a) remove the house and demand in-
scribed. demnification for damages suffered by him, or (b) demand payment of
The claim of laches is not also meritorious. Until the repudiation of the value of the house plus reparation for damages (Article 447, in
the co-ownership was made known to the other co-owners, no right relation to Article 454). Y continues as owner of the lot and becomes,
has been violated for the said co-owners to vindicate. Mere delay in under the second option, owner of the house as well, after he pays the
vindicating the right, standing alone, does not constitute laches. sums demanded.
A leased his house to B with a condition that the leased premises May a lessee sublease the property leased without the consent of
shall be used for residential purposes only. B subleased the the lessor, and what are the respective liabilities of the lessee and
house to C who used it as a warehouse for fabrics. Upon learning sub-lessee to the lessor in case of such sublease? ’99 – Q14a
this, A demanded that C stop using the house as a warehouse,
but C ignored the demand, A then filed an action for ejectment YES, provided that there is no express prohibition against sub-
against C, who raised the defense that there is no privity of con- leasing.
!41
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Under the law, when in the contract of lease of things there is no for his generosity and to inform him that he was sending by mail
express prohibition, the lessee may sublet the thing leased without his letter of acceptance. Pedro never received that letter because
prejudice to his responsibility for the performance of the contract to- it was never mailed. On August 14, 1997, Pedro received a
ward the lessor (Article 1650, NCC.) telegram from Iloilo informing him that Jose had been killed in a
In case there is a sublease of the premises being leased, the road accident the day before (August 13, 1997.)
sublessee is bound to the lessor for all the acts which refer to the use 1. Is there a perfected donation?
and preservation of the thing leased in the manner stipulated between
the lessor and the lessee (Article, 1651, NCC.) None. There is no perfected donation. Under Article 748 of the
The sublessee is subsidiarily liable to the lessor for any rent due Civil Code, the donation of a movable may be made orally or in writing.
from the lessee. However, the sublessee shall not be responsible be- If the value of the personal property donated exceeds five thousand
yond the amount of the rent due from him (Article 1652, NCC.) pesos, the donation and the acceptance shall be made in writing.
As to the lessee, the latter shall still be responsible to the lessor Assuming that the value of the thing donated, a vintage sports
for the rents; bring to the knowledge of the lessor every usurpation or car, exceeds P5,000.00 then the donation and the acceptance must be
untoward act which any third person may have committed or may be in writing. In this instance, the acceptance of Jose was not in writing.
openly preparing to carry out upon the thing leased; advise the owner Therefore, the donation is void.
the need for all repairs; to return the thing leased upon the termination Upon the other hand, assuming that the sports car costs less than
of the lease just as he received it, save what has been lost or impaired P5,000.00 then the donation maybe oral, but still, the simultaneous
by the lapse of time or by ordinary wear and tear or from an inevitable delivery of the car is needed and there being none, the donation was
cause; responsible for the deterioration or loss of the thing leased, never perfected.
unless he proves that it took place without his fault.
2. Will your answer be the same if Jose did mail his accep-
Under what circumstances would an implied new lease or a tacita tance letter but it was received by Pedro in Manila days
reconduccion arise? '99 – Q14b after Jose's death? ’98 – Q8
An implied new lease or tacita reconduccion arises if at the end of YES, the answer is the same. If Jose's mail containing his accep-
the contract the lessee should continue enjoying the thing leased for tance of the donation was received by Pedro after the former's death,
fifteen (15) days with the acquiescence of the lessor, and unless a then the donation is still void because under Article 734 of the Civil
notice to the contrary by either parties has previously been given (Arti- Code, the donation is perfected the moment the donor knows of the
cle 1670, NCC.) In short, in order that there may be tacita reconduc- acceptance by the donee. The death of Jose before Pedro could re-
cion there must be expiration of the contract; there must be continua- ceive the acceptance indicates that the donation was never perfected.
tion of possession for 15 days or more; and there must be no prior Under Article 746, acceptance must be made during the lifetime of
demand to vacate. both the donor and the donee.
Using a falsified manager's check, Justine, as the buyer, was able Ernesto donated in a public instrument a parcel of land to
to take delivery of a second hand car which she had just bought Demetrio, who accepted it in the same document. It is there de-
from United Car Sales Inc. The sale was registered with the LTO. A clared that the donation shall take effect immediately, with the
week later, the seller learned that the check had been dishonored, donee having the right to take possession of the land and receive
but by that time, Justine was nowhere to be seen. It turned out its fruits but not to dispose of the land while Ernesto is alive as
that Justine had sold the car to Jerico, the present possessor well as for 10 years following his death. Moreover, Ernesto also
who knew nothing about the falsified check. In a suit by United reserved in the same deed his right to sell the property should he
Car Sales against Jerico for recovery of the car, plaintiff alleges it decide to dispose of it at any time – a right which he did not exer-
had been unlawfully deprived of its property through fraud and cise at all. After his death, Ernesto's heirs seasonably brought an
should, consequently, be allowed to recover it without having to action to recover the property, alleging that the donation was void
reimburse the defendant for the price the latter had paid. Should as it did not comply with the formalities of a will. Will the suit
the suit prosper? ’98 – Q4 prosper? ’98 – Q9
The suit should prosper as to the recovery of the car. However, YES, the suit will prosper as the donation did not comply with the
since Jerico was not guilty of any fraud and appears to be an innocent formalities of a will. In this instance, the fact that the donor did not in-
purchaser for value, he should be reimbursed for the price he paid. tend to transfer ownership or possession of the donated property to the
This is without prejudice to United Car Sales, Inc. right of action donee until the donor's death, would result in a donation mortis causa
against Justine. As between two innocent parties, the party causing the and in this kind of disposition, the formalities of a will should be com-
injury should suffer the loss. Therefore, United Car Sales, Inc. should plied with, otherwise, the donation is void. In this Instance, donation
suffer the loss. mortis causa embodied only in a public instrument without the formali-
ties of a will could not have transferred ownership of disputed property
Alternative Answer: to another.
Yes, the suit will prosper because the criminal act of estafa should Alternative Answer:
be deemed to come within the meaning of unlawful deprivation under
Article 559, Civil Code, as without it plaintiff would not have parted with One of the essential distinctions between a donation inter vivos
the possession of its car. and a donation mortis causa is that while the former is irrevocable, the
latter is revocable. In the problem given, the clauses or conditions
Another Answer: mentioned in the deed of donation, except one, are consistent with the
rule of irrevocability and would have sustained the view that the dona-
Under the law on Sales, when the thing sold is delivered by the tion is inter vivos and therefore valid. The lone exception is the clause
seller to the buyer without reservation of ownership, the ownership is which reserves the donor's right to sell the property at any time before
transferred to the buyer. Therefore in the suit of United Car Sales, Inc. his death. Such a reservation has been held to render the donation
against Jerico for the recovery of the car, the plaintiff should not be revocable and, therefore, becomes a donation mortis causa (Puig v.
allowed to recover the car without reimbursing the defendant for the Peñaflorida, 15 SCRA 276, 286 [1965].) That the right was not exer-
price that the latter paid (EDCA Publishing and Distributing Corp. v. cised is immaterial; its reservation was an implied recognition of the
Santos, 184 SCRA 614 [1990].) donor's power to nullify the donation anytime he wished to do so. Con-
sequently, it should have been embodied in a last will and testament.
On July 27, 1997, Pedro mailed in Manila a letter to his brother, The suit for nullity will thus prosper.
Jose, a resident of Iloilo, offering to donate a vintage sports car
which the latter had long been wanting to buy from the former. On Distinguish between:
August 5, 1997, Jose called Pedro by cellular phone to thank him 1. Continuous and discontinuous easements;
!42
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
ership of the warehouse, files a complaint to annul the amended
CONTINUOUS EASEMENTS are those the use of which is or Deed of Sale before the RTC of QC, where he resides, against
may be incessant, without the intervention of any act of man, while both the PNB and Pablo. The PNB filed a MTD the complaint for
DISCONTINUOUS EASEMENTS are those which are used at intervals improper venue contending that the warehouse is real property
and depend upon the acts of man (Article 615, Civil Code.) under Article 415(1) of the Civil Code and therefore the action
should have instead been filed in Malolos, Bulacan. Pedro claims
2. Apparent and non-apparent easements; and otherwise. The question arose as to whether the warehouse
should be considered as real or as personal property.
APPARENT EASEMENTS are those which are made known and If consulted, what would your legal advice be? ’97 – Q6
are continually kept in view by external signs that reveal the use and
enjoyment of the same, while NON-APPARENT EASEMENTS are The warehouse which is a construction adhered to the soil is an
those which show no external indication of their existence (Article 615, immovable by nature under Article 415(1) of the Civil Code and the
Civil Code.) proper venue of any case to recover ownership of the same, which is
what the purpose of the complaint to annul the amended Deed of Sale
3. Positive and negative easements. ’98 – Q16 amounts to, should be the place where the property is located, or the
RTC of Bulacan.
POSITIVE EASEMENTS are those which impose upon the owner
of the servient estate the obligation of allowing something to be done Additional Answers:
or of doing it himself, while NEGATIVE EASEMENTS are those which
prohibit the owner of the servient estate from doing something which Buildings are always immovable property, and even in the in-
he could lawfully do if the easement did not exist (Article 615, Civil stances where the parties to a contract seem to have dealt with it sep-
Code.) arate and apart from the land on which it stood in no wise does it
change its character as immovable property. A building is an immov-
Distinguish usufruct from commodatum and state whether these able even if not erected by the owner of the land. The only criterion is
may be constituted over consumable goods. ’98 – Q18(1) union or incorporation with the soil (Ladera v. Hodges (CA) 48 O.G.
4374) (Reyes and Puno, Outline of Philippine Civil Law, Vol. 2, p. 7.)
USUFRUCT is a right given to a person (usufructuary) to enjoy
the property of another with the obligation of preserving its form and The warehouse built by Pedro on the mortgaged property is real
substance (Article 562, Civil Code) property within the context of Article 415 of the New Civil Code, al-
On the other hand, COMMODATUM is a contract by which one of though it was built by Pedro after the foreclosure sale without the
the parties (bailor) delivers to another (bailee) something not consum- knowledge and consent of the new owner which makes him a builder
able so that the latter may use it for a certain time and return it. in bad faith, this does not alter the character of the warehouse as a
In usufruct, the usufructuary gets the right to the use and to the real property by incorporation. It is a structure which cannot be re-
fruits of the same, while in commodatum, the bailee only acquires the moved without causing injury to the land. So, my advice to Pedro is to
use of the thing loaned but not its fruits. file the case with the RTC of Bulacan, the situs of the property,
Usufruct may be constituted on the whole or a part of the fruits of
the thing. (Article 564, Civil Code.) It may even be constituted over Marcelino, a treasure hunter as just a hobby, has found a map
consumables like money (Alunan v. Veloso, 52 Phil. 545.) On the other which appears to indicate the location of hidden treasure. He has
hand, in commodatum, consumable goods may be subject thereof only an idea of the land where the treasure might possibly be found.
when the purpose of the contract is not the consumption of the object, Upon inquiry, Marcelino learns that the owner of the land, Leopol-
as when it is merely for exhibition (Article 1936, Civil Code.) do, is a permanent resident of Canada, Nobody, however, could
give him Leopoldo's exact address. Ultimately, anyway, he enters
Another Answer: the land and conducts a search. He succeeds. Leopoldo learning
of Marcelino's "find", seeks to recover the treasure from Marceli-
There are several points of distinction between usufruct and no but the latter is not willing to part with it. Failing to reach an
commodatum. agreement, Leopoldo sues Marcelino for the recovery of the
Usufruct is constituted by law, by contract, by testamentary suc- property. Marcelino contests the action. How would you decide
cession, or by prescription (Article 1933, Civil Code.) the case? ‘97 – Q7
Usufruct creates a real right to the fruits of another's property,
while commodatum creates only a purely personal right to use anoth- I would decide in favor of Marcelino since he is considered a find-
er's property, and requires a stipulation to enable the bailee to "make er by chance of the hidden treasure, hence, he is entitled to one-half
use" of the fruits (Articles 1939 & 1940, Civil Code.) (½) of the hidden treasure. While Marcelino may have had the intention
Usufruct maybe onerous while commodatum is always or essen- to look for the hidden treasure, still he is a finder by chance since it is
tially gratuitous (Articles 1933 & 1935, Civil Code.) enough that he tried to look for it. By chance in the law does not mean
The contract constituting usufruct is consensual, while commoda- sheer luck such that the finder should have no intention at all to look
tum is a real contract (perfected only by delivery of the subject matter for the treasure. By chance means good luck, implying that one who
thereof). However, both involve the enjoyment by a person of the prop- intentionally looks for the treasure is embraced in the provision. The
erty of another, differing only as to the extent and scope of such en- reason is that it is extremely difficult to find hidden treasure without
joyment (jus fruendi in one and jus utendi in the other); both may have looking for it deliberately. Marcelino is not a trespasser since there is
as subject matter either an immovable or a movable; and, both maybe no prohibition for him to enter the premises, hence, he is entitled to half
constituted over consumable goods (Articles 574 & 1936, Civil Code.) of the treasure.
A consumable thing may be the subject-matter of an abnormal
usufruct but in a normal usufruct, the subject-matter may be used only Alternative Answers:
for exhibition. A commodatum of a consumable thing may be only for
the purpose of exhibiting, not consuming it. Marcelino did not find the treasure by chance because he had a
map, he knew the location of the hidden treasure and he intentionally
Pedro is the registered owner of a parcel of land situated in Malo- looked for the treasure, hence, he is not entitled to any part of the trea-
los, Bulacan. In 1973, he mortgaged the land to the PNB to secure sure.
a loan of P100,000. For Pedro's failure to pay the loan, the PNB
foreclosed on the mortgage in 1980, and the land was sold at pub- Marcelino appears to be a trespasser and although there may be
lic auction to PNB for being the highest bidder. PNB secured title a question of whether he found it by chance or not, as he has found
thereto in 1987. In the meanwhile, Pedro, who was still in posses- the hidden treasure by means of a treasure map, he will not be entitled
sion of the land, constructed a warehouse on the property. In to a finder's share. The hidden treasure shall belong to the owner.
1988, the PNB sold the land to Pablo, the Deed of Sale was
amended in 1989 to include the warehouse. Pedro, claiming own-
!43
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
The main rule is that hidden treasure belongs to the owner of the It is the owner of the land who has the right to acquire the chapel
land, building or other property on which it is found. If it is found by without paying indemnity, plus damages, or to require Bartolome to
chance by a third person and he is not a trespasser, he is entitled to remove the chapel, plus damages or to require Bartolome to buy the
one-half (½). If he is a trespasser, he loses everything. land, without any option to refuse to buy it (Articles 449 and 458,
NCC.)
On 1 January 1980, Minerva, the owner of a building, granted If Eric acted in bad faith, then his bad faith cancels the bad faith of
Petronila a usufruct over the property until 1 June 1998 when Bartolome, and both will be taken to have acted in good faith (Article
Manuel, a son of Petronila, would have reached his 30th birthday. 453, NCC.)
Manuel, however, died on 1 June 1990 when he was only 26 years
old. Minerva notified Petronila that the usufruct had been extin- 3. A usufructuary of the land.
guished by the death of Manuel and demanded that the latter va-
cate the premises and deliver the same to the former. Petronila Bartolome has the right to remove the improvement if it is possi-
refused to vacate the place on the ground that the usufruct in her ble to do so without causing damage to the property (Article 579,
favor would expire only on 1 June 1998 when Manuel would have NCC.) He may also set off the improvement against any damages
reached his 30th birthday and that the death of Manuel before his which the property held in usufruct suffered because of his act or the
30th birthday did not extinguish the usufruct. Whose contention acts of the assignee (Article 580, NCC.)
should be accepted? '97 – Q8
4. A lessee of the land. ’96 – Q7
Petronila's contention is correct. Under Article 606 of the Civil
Code, a usufruct granted for the time that may elapse before a third The owner of the land, as lessor, can acquire the improvement by
person reaches a certain age shall subsist for the number of years paying one-half (½) of its value. Should the lessor refuse to reimburse
specified even if the third person should die unless there is an express said amount, the lessee may remove the improvement, even though
stipulation in the contract that states otherwise. In the case at bar, the principal thing may suffer damage thereby (Article 1678, NCC.)
there is no express stipulation that the consideration for the usufruct is
the existence of Petronila's son. Thus, the general rule and not the David is the owner of the subdivision in Sta. Rosa, Laguna, with-
exception should apply in this case. out an access to the highway. When he applied for a license to
establish the subdivision, David represented that he will purchase
Will the death of the lessee extinguish the lease agreement? ’97 – a rice field located between his land and the highway, and develop
Q17a it into an access road. But when the license was already granted,
he did not bother to buy the rice field, which remains unutilized
NO. The death of the lessee will not extinguish the lease agree- until the present. Instead, he chose to connect his subdivision
ment, since lease is not personal in character and the right is transmis- with the neighboring subdivision of Nestor, which has an access
sible to the heirs (Heirs of Dimaculangan v. Intermediate Appellate to the highway. Nestor allowed him to do this, pending negotia-
Court, 170 SCRA 393 [1989].) tions on the compensation to be paid. When they failed to arrive
at an agreement, Nestor built a wall across the road connecting
Bartolome constructed a chapel on the land of Eric. What are with David's subdivision. David filed a complaint in court, for the
Bartolome’s rights if he were: establishment of an easement of right of way through the subdi-
1. A possessor of the land in good faith. vision of Nestor which he claims to be the most adequate and
practical outlet to the highway.
A chapel is a useful improvement. Bartolome may remove the 1. What are the requisites for the establishment of a com-
chapel if it can be removed without damage to the land, unless Eric pulsory easement of a right of way?
chooses to acquire the chapel. In the latter case, Bartolome has the
right to the reimbursement of the value of the chapel with the right of Article 649, NCC. The owner, or any person who by virtue of a
retention until he is reimbursed (Article 448 in relation to Articles 546 real right may cultivate or use any immovable which is surrounded by
and 547, NCC.) other immovables pertaining to other persons and without adequate
outlet to a public highway, is entitled to demand a right of way through
Alternative Answer: the neighboring estates, after payment of the property indemnity.
Should this easement be established in such a manner that its
Assuming that Eric acted in good faith, Bartolome’s rights will use may be continuous for all the needs of the dominant estate, estab-
depend upon what option Eric chooses. Eric, the owner of the land, lishing a permanent passage, the indemnity shall consist of the value
may choose to acquire the chapel, which is a useful expense or to sell of the land occupied and the amount of the damage caused to the
the land to the builder (Bartolome.) servient estate.
If Eric chooses to acquire the chapel, he has the right of retention In case the right of way is limited to the necessary passage for the
until paid. cultivation of the estate surrounded by others and for the gathering of
If Eric chooses to sell the land to Bartolome, Bartolome may its crops through the servient estate without a permanent way, the
refuse to buy the land if the value of the land is considerably more than indemnity shall consist in the payment of the damage cause by such
the value of the building, in which case, there will be a forced lease encumbrance
between them. This easement is not compulsory if the isolation of the immovable
is due to the proprietor's own acts.
Additional Answer: The easement of right of way shall be established at the point
least prejudicial to the servient estate, and insofar as consistent with
If Eric acted in bad faith, then Bartolome has the right of absolute this rule, where the distance from the dominant estate to a public
removal of the chapel, plus damages. However, if Eric chooses to ac- highway may be the shortest (Article 650, NCC: Vda. de Baltazar v.
quire the chapel, then Bartolome has the right of reimbursement, plus Court of Appeals, 245 SCRA 333 [1995].)
payment of damages, with right of retention (Article 454 in relation to
Article 447, NCC.) Alternative Answer:
2. A possessor of the land in bad faith. The requisites for a compulsory easement of right of way are: (a)
the dominant estate is surrounded by other immovables and is without
Bartolome, under Article 449 of the NCC, loses whatever he built, an adequate outlet to a public street or highway; (b) proper indemnity
without any right to indemnity. must be paid; (c) the isolation must not be due to the acts of the owner
of the dominant estate; and (d) the right of way claimed is at a point
Alternative Answer: least prejudicial to the servient estate and, insofar as is consistent with
this rule, where the distance to the street or highway is shortest.
!44
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
2. Is David entitled to a right of way in this case? Why or of legal age among his four children. He told his son he was to
why not? ’96 – Q8 hold those assets for his siblings until they become adults them-
selves. X then got married. After 5 years, Mr. A asked X to transfer
NO, David is not entitled to the right of way being claimed. The the titles over three properties to his three siblings, leaving two
isolation of his subdivision was due to his own act or omission because
properties for himself. To A’s surprise, X said that he can no
he did not develop into an access road the rice field which he was
supposed to purchase according to his own representation when he longer be made to transfer the properties to his siblings because
applied for a license to establish the subdivision (Floro v. Llenado, 244 more than 5 years have passed since the titles were registered in
SCRA 713 [1995].) his name. Do you agree? Explain. (4%) ‘15 - Q19
Sometime in 1955, Tomas donated a parcel of land to his step- No, I don’t agree with X. This is clear case of an implied trust provided
daughter Irene, subject to the condition that she may not sell, in Article 1453 of the Civil Code which states that “when property is
transfer or cede the same for 20 years. Shortly thereafter, he died.
conveyed to a person in reliance upon his declared intention to hold it
In 1965, because she needed money for medical expenses, Irene
sold the land to Conrado. The following year, Irene died, leaving for, or transfer it to another or the grantor, there is an implied trust in
as her sole heir a son by the name of Armando. When Armando favor of the person for whose benefit it is contemplated.” In this case, A
learned that the land which he expected to inherit had been sold is the trustor, X is the trustee, and the three other children of A are the
by Irene to Conrado, he filed an action against the latter for an- beneficiaries. A and/or his three children may file an action to compel X
nulment of the sale, on the ground that it violated the restriction to transfer title in favor his three siblings within ten (10) years from the
imposed by Tomas. Conrado filed a MTD, on the ground that Ar- time the cause of action accrues upon an obligation created by law
mando did not have the legal capacity to sue. If you were the
when the children attains the age of majority (Art. 1144, Civil Code).
Judge, how will you rule on this motion to dismiss? '96 – Q9
As judge, I will grant the motion to dismiss. Armando has no per- Mr. and Mrs. Roman and Mr. and Mrs. Cruz filed an application for
sonality to bring the action for annulment of the sale to Conrado. Only registration of a parcel of land which after due proceedings was
an aggrieved party to the contract may bring the action for annulment granted by the RTC acting as a land registration court. However,
thereof (Article 1397, NCC). While Armando is heir and successor-in- before the decree of registration could be issued, the spouses
interest of his mother (Article 1311, NCC), he (standing in place of his Roman and the spouses Cruz sold the lot to Juan. In the notarized
mother) has no personality to annul the contract. Both are not aggriev-
deed of sale, the sellers expressly undertook to submit the deed
ed parties on account of their own violation of the condition of, or re-
striction on, their ownership imposed by the donation. Only the donor of sale to the land registration court so that the title to the proper-
or his heirs would have the personality to bring an action to revoke a ty would be directly issued in Juan’s name.
donation for violation of a condition thereof or a restriction thereon
(Garrido v. Court of Appeals, 236 SCRA 450 [1994].) Consequently, a) Is such a stipulation valid? (2%) ‘15 - Q20a
while the donor or his heirs were not parties to the sale, they have the
right to annul the contract of sale because their rights are prejudiced by Yes, the stipulation is valid. Section 22 of P.D. 1529 expressly provides
one of the contracting parties thereof (DBP v. Court of Appeals, 96
SCRA 342; Teves v. PHHC, 23 SCRA 114.) Since Armando is neither that “after the filing of the application and before the issuance of the
the donor nor heir of the donor, he has no personality to bring the ac- decree of registration, the land therein described may still be the sub-
tion for annulment. ject of dealings in whole or in part, in which case the interested party
shall present to the court the pertinent instruments together with a
Alternative Answer: subdivision plan approved by the Director of Lands in case of transfer
of portions thereof and the court, after notice to the parties, shall order
As judge, I will grant the motion to dismiss. Compliance with a
such land registered subject to the conveyance or encumbrance creat-
condition imposed by a donor gives rise to an action to revoke the
donation under Article 764, NCC. However, the right of action belongs ed by said instruments, or order that the decree of registration be is-
to the donor, is transmissible to his heirs, and may be exercised sued in the name of the person to whom the property has been con-
against the donee's heirs. Since Armando is an heir of the donee, not veyed by said instruments”.
of the donor, he has no legal capacity to sue for revocation of the do-
nation. Although he is not seeking such revocation but an annulment of b) Distinguish a direct attack from a collateral attack on a
the sale which his mother, the donee, had executed in violation of the title. (2%) ‘15 - Q20b
condition imposed by the donor, an action for annulment of a contract
may be brought only by those who are principally or subsidiarily oblig-
ed thereby (Article 1397, NCC). As an exception to the rule, it has been An action is deemed an attack on a title when the object of the action is
held that a person not so obliged may nevertheless ask for annulment to nullifv the title, and thus challenge the judgment pursuant to which
if he is prejudiced in his rights regarding one of the contracting parties the title was decreed. The attack is direct when the object of the action
(DBP v. Court of Appeals, 96 SCRA 342 and other cases) and can is to annul or set aside the judgment, or enjoin its enforcement. The
show the detriment which would result to him from the contract in attack is indirect or collateral when in an action to obtain a different
which he had no intervention (Teves v. PHHC, 23 SCRA 1141.) relief, an attack on the judgment is nevertheless made an incident
Such detriment or prejudice cannot be shown by Armando. As a forced
thereof.
heir, Armando's interest in the property was, at best, a mere expectan-
cy. The sale of the land by his mother did not impair any vested right.
c) If the title in Item XX.A is issued in the names of the orig-
The fact remains that the premature sale made by his mother (prema-
inal sellers, would a motion filed by Juan in the same
ture because only half of the period of the ban had elapsed) was not
case to correct or amend the title in order to reflect as
voidable at all, none of the vices of consent under Article 1391 of the
owner be considered a collateral attack? (2%) ‘15 - Q20c
NCC being present. Hence, the motion to dismiss should be granted.
No, it cannot he considered a collateral attack. A collateral attack exists
when an attack on an incidental matter is made on the judgment in an
LAND TITLES AND DEEDS
action to obtain a different relief. In this case, Juan's motion to correct
or amend the title in order to reflect his name would not be attacking
Mr. A. a businessman, put several real estate properties under the the judgment directing the issuance of the title in the names of the
name of his eldest son X because at that time, X was the only one
!45
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
sellers; rather, his motion impliedly admits the validity of the title of the stay was uncontested by others. He has also conscientiously and
sellers or his predecessors-in-interest. continuously paid the realty taxes on the land.
On March 27, 1980, Cornelio filed an application for land registra- Michael died in 2000 and Manuel - as Michael’s only son and heir-
tion involving a parcel of agricultural land that he had bought now wants to secure and register title to the land in his own
from Isaac identified as Lot No. 2716 with an area of one (1) name. He consults you for legal advice as he wants to perfect his
hectare. During the trial, Cornello claimed that he and his prede- title to the land and secure its registration in his name. -
cessors-in-interest had been in open, continuous, uninterrupted,
public and adverse possession and occupation of the land for (A) What are the laws that you need to consider in advising
more than thirty (30) years. He likewise introduced in evidence a Manuel on how he can perfect his title and register the
certification dated February 12, 1981 citing a presidential declara- land in his name? Explain the relevance of these laws to
tion to the effect on June 14, 1980, agricultural lands of the public your projected course of action. ‘13 - Q10a
domain, including the subject matter of the application, were de-
clared alienable and disposable agricultural land. [4%] [NOTE: With all due respect, it is recommended that the examiner
accept and give full credit to any of the answers given in each of the
(A) It you are the judge, will you grant the application for following paragraphs].
land registration of Cornello?‘14 - Q22A
I would advise Manuel to file an application for registration under Sec.
I will not grant the application for registration. Under the law, specially 14 or Pres. Decree No. 1529, or the Property Registration Decree
Section 48 (b) of the Public Land Act (C.A. No. 14), as amended by (PRD), specifically Sec. 14(1) which requires (a) that the land applied
P.D. No. 1073, and Section 14 {1} of the Property Registration Decree for forms part of the alienable and disposable (A&D) portion of the
(P.D. No. 1529), it is required that the applicant, by himself or through public domain and (b) that the applicant has been in open, continuous
his predecessors-in-interest, has been in open, continuous, exclusive and notorious possession and occupation thereof under a bona fide
and notorious possession and occupation of alienable and disposable claim of ownership since June 12, 1945, or earlier. However, it is only
land of the public domain under a bonafide claim of ownership since necessary that the land is already declared A&D land “at the time the
June 12, 1945, or earlier. Interpreting Section 14 {1} of P.D. No. 1529, application for registration is filed” (Malabanan v. Republic, G.R. No.
the Supreme Court held that it merely requires the property sought to 180067, June 30, 2009).
be registered as already alienable and disposable at the time the ap-
plication for registration is filed and not during the entire period of pos- Manuel could also invoke Sec. 14 (2) of the same Decree, which al-
session, or since June 12, 1945 (Republic v. Naguit, G.R. No. lows registration through ordinary acquisitive prescription for thirty
14-14057, January 17, 2005; Malabanan v. Republic, G.R. No. years, provided, however, that the land is “patrimonial” in character,
179987, September 3, 2013). In this case, the land applied for by Cor- i.e., already declared by the government (a) as A & D land, and (b) no
nelio was declared alienable and disposable agricultural land only on longer needed for public use or public service (Malabanan, supra).
June 14, 1980, or almost three (3) months from the date of the filing of
his application on March 27, 1980. Hence, his application for registra- Manuel could also file an application for “confirmation of imperfect or
tion cannot be granted. incomplete title” through “judicial legalization” under Sec. 48(b) of
Commonwealth Act No. 141, or the Public Land Act (PLA). But, as held
(B) Can Cornello acquire said agricultural land through ac- in Malabanan, there is no substantial difference between this provision
quisitive prescription, whether ordinary or ex- and Sec. 14(1) of the PRD. Both refer to agricultural lands already
traordinary? ‘14 - Q22B classified as alienable and disposable at the time the application is
filed, and require possession and occupation since June 12, 1945. The
Neither can Cornelio acquire the land through acquisitive prescription, only difference is that under the PRD, there already exists a title which
whether ordinary (possession for (10) years in good faith or with just is to be confirmed, wheareas under the PLA, the presumption is that
title) not extraordinary (possession for thirty (30) years regardless of land is still public land (Republic v. Aquino, G.R. No. L-33983, January
good faith or just title). As a rule, properties of public dominion cannot 27, 1983).
be acquired by prescription. The exception is Section 14 (2) of P.D. No.
1829 which allows a qualified individual to apply for the registration of Manuel may also invoke “vested rights” acquired under Rep. Act No.
property which has been acquired by prescription under existing laws. 1942, dated June 2, 1957, which amended Sec. 48(b) of the PLA by
Article 1113 of the Civil Code provides the foundation for the applica- providing for a prescriptive period of thirty years for judicial confirma-
tion of Section 14 (2) to the effect that only when land of the public tion of imperfect title. It must only be demonstrated that possession
domain is patrimonial and hence, private in character, can said land be and occupation commended on January 24, 1947 and the 30-year
susceptible to acquisitive prescription. But in order that land of the period was completed prior to the effectivity of PD No. 1073 on Jan-
public domain may become patrimonial property, , there must be an uary 25, 1977. PD No. 1073 now requires possession and occupation
express declaration by the State that such land is no longer needed for since June 12, 1945 (Republic v. Espinosa, G.R. No. 171514, July 18,
public service or for the development of the national wealth to convert 2012).
it as such, hence the land cannot be the subject of acquisition through
prescription. Another alternative is for Manuel to secure title through administrative
proceedings under the homestead or free patent provisions of the PLA.
Manuel was born on 12 March 1940 in a 1000-square meter prop- The title issued has the same efficacy and validity as a title issued
erty where he grew up helping his father, Michael, cultivate the through judicial proceedings, but with the limitation that the land cannot
land. Michael has lived on the property since the land was opened be sold or disposed of within five years from the issuance of patent
for settlement at about the time of the Commonwealth Govern- (Sec. 119, CA No. 141, as amended).
ment in 1935, but for some reason never secured any title to the
property other than a tax declaration in his name. He has held the (B) What do you have to prove to secure Manuel’s objec-
property through the years in the concept of an owner and his tives and what documentation are necessary? ‘13 - Q10b
!46
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Manuel has the burden to overcome the presumption of State owner- 3. Who owns the movables inside the house? ’08 – Q19
ship by “well-nigh incontrovertible” evidence (Ong v. Republic, G.R. No.
Delma owns the movables because when she acquired the house
175746, March 12, 2008). Accordingly, he must show that the land is
and lot from Juliet, all the furnitures and appliances therein were in-
already classified as A & D “at the time the application for registration is cluded in the sale. As owner of the real property, Delma also owns the
filed” and that he has been in “possession and occupation thereof” in movables found therein (Article 542, Civil Code.)
the manner required by law since June 12, 1945, or earlier.
BLPDC is a development company engaged in developing subdi-
Manuel may tack his possession to that of his predecessor-in-interest visions, condominium units and industrial estates. In order to
(Michael) by the testimony of disinterested and knowledgeable eyewit- replenish its inventories, it embarked on an aggressive land bank-
ing program. It employed “scouts” who roam all over the Philip-
nesses. Overt acts of possession may consist in introducing valuable
pines to look for an conduct investigations on prospective sites
improvements like fencing the land, constructing a residential house for acquisition and development, whether developed, semi-devel-
thereon, cultivating the land and planting fruit bearing trees, declaring oped or raw land. The management of BPLDC asks you as the
the land for taxation purposes and paying realty taxes, all of which are company counsel to prepare a manual containing a summary of
corroborative proof of possession. the pertinent laws and regulations relating to land registration
and acquisition of title to the land. The manual should include the
To identify the land, he must submit the tracing cloth plan or a duly- following items:
1. What is the governing law?
certified blueprint or whiteprint copy thereof (Director of Lands v.
Reyes, G.R. No. L-27594, November 28, 1975; Director of lands v. CA The governing law is the Land Registration Act, as amended by
and Iglesia ni Cristo, G.R. No. L-56613, March 14, 1988). the Property Registration Decree (Act No. 496, as amended by P.D.
No. 1529.)
And to show the classification of the land as A&D, the application must
be accompanied by (1) a CENRO or PENRO certification; and (2) a 2. What properties are not registrable?
certified true copy of the original classification approved by the DENR Supply this information. ’07 – Q4
Secretary (Republic v. Bantigue Point Development Corp., G.R. No.
The following properties are not registrable.
162322, March 14, 2012). A presidential or legislative act may also be 1. Properties of the public dominion;
considered. 2. Properties for public use or public service;
3. Inalienable lands of the public domain;
Juliet offered to sell her house and lot, together with all the furni- 4. Military installations, civil and quasi-public lands; and
ture and appliances therein, to Delma. Before agreeing to pur- 5. All lands not classified as alienable and disposable.
chase the property, Delma went to the Register of Deeds (ROD) to
verify Juliet’s titled. She discovered that while the property was Alternative Answer:
registered in Juliet’s name under the Land Registration Act, as
amended by the Property Registration Decree, it was mortgaged 1. Properties of public dominion intended for public use, like
to Elaine to secure a debt of P80,000. Wanting to buy the property, roads, canals, rivers, torrents, ports and bridges constructed by
Delma told Juliet to redeem the property from Elaine, and gave the State, banks, shores, roadsteads, and the like, are incapable
her an advance payment to be used for purposes of releasing the of private appropriation, much less registration (Article 420, NCC.)
mortgage on the property. When the mortgage was released, Juli- This includes public markets, public plazas, municipal streets and
et executed a Deed of Absolute Sale over the property which was public buildings (Municipality of Antipolo v. Zapanta, 133 SCRA
duly registered with the ROD, and a new TCT was issued in Del- 820 [1986]; Martinez v. Court of Appeals, 56 SCRA 647 [1974];
ma’s name. Delma immediately took possession over the house Navera v. Quicho, 5 SCRA 454 [1962].)
and lot and the movables therein. Thereafter, Delma went to the 2. Lands proclaimed or classified as forest or timberland, min-
Assessor’s Office to get a new tax declaration under her name. eral lands and national parks. Under Section 2, Article XII of the
She was surprised to find out that the property was already de- Constitution, these lands are inalienable.
clared for tax purposes in the name of XYZ Bank which had fore- 3. Lands that have been reserved by law of Presidential
closed the mortgage before it was sold to her. XYZ Bank was also proclamation for military, civil or for public or quasi-public purpose.
the purchaser in the foreclosure sale of the property. At that time, Under Section 88, Chapter XII of the Public Land Act, such lands
the property was still unregistered but XYZ Bank registered the shall be inalienable and shall not be subject to occupation, entry,
Sheriff’s Deed of Sale in the day book of the ROD under Act. No. sale, lease or other disposition.
3344 and obtained a tax declaration in its name. 4. In general, all lands of the public domain that have not been
1. Was Delma a purchaser in good faith? classified as alienable and disposable under the Public Land Act.
5. Lands that form part of the seabed, riverbed or lakebed.
YES, Delma is a purchaser in good faith. These lands are not susceptible to private appropriation.
In the present case, before Delma bought the property, she went 6. Foreshore lands or that strip of lands that lies between the
to the Register of Deeds to verify Juliet’s title. When she discovered high and low water marks and alternatively wet and dry according
that the property was mortgaged to Elaine, she gave an advance pay- to the flow of the tide belong to the public domain, and can only
ment so that Juliet could release the mortgage. It was only after the be acquired by lease if not needed by the government for public
mortgage was released and free from the claims of other persons that or quasi-public purposes.
Delma bought the property. Thus, Delma is a purchaser in good faith 7. Lands reclaimed by the government from the sea, lakes or
(Mathay v. Court of Appeals, 295 SCRA 556 [1998].) other bodies of water are disposable or acquisible only by lease
and not otherwise, under the Public Land Act.
2. Who as between Delma and XYZ Bank has a better right
to the house and lot? Rod, the owner of an FX taxi, found in his vehicle an envelope
containing TCT No. 65432 over a lot registered in Cesar’s name.
Between Delma and XYZ Bank, Delma has a better right in the Posing as Cesar, Rod forged Cesar’s signature on a Deed of Sale
house and lot. After the release of the mortgage, the Deed of Absolute in Rod’s favor. Rod registered the said document with the Regis-
Sale was registered and a new titled was issued in Delma’s name. Act ter of Deeds, and obtained a new title in his name. After a year, he
No. 3344 is applicable exclusively to instruments resulting from sold the lot to Don, a buyer in good faith and for value, who also
agreement of parties thereto and does apply to deeds of a sheriff con- registered the lot in his name.
veying to a purchaser unregistered lands sold to him under execution 1. Did Rod acquire title to the land?
(Williams v. Suñer, 49 Phil. 534.)
!47
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Rod did not acquire title to land covered by TCT No. 65432 of Louie, before leaving for the US, entrusted to his cousin Dewey
Cesar. A forged deed is an absolute nullity and conveys no title. an application for registration, under the Land Registration Act, of
a parcel of land located in Bacolod. A year later, Louie returned to
2. Discuss the rights of Don, if any, over the property. the Philippines and discovered that Dewey registered the land
obtained an OCT over the property in his (Dewey’s) name. Com-
Don acquired a good title to the land. Under the Torrens system, a pounding the matter, Dewey sold the land to Huey, an innocent
forged deed can be the root of a good title. Since the certificate of title purchaser for value. Louie filed an action for reconveyance of the
was already transferred to Rod, upon the subsequent transfer thereof parcel of land against Huey.
to Don, an innocent purchaser in good faith, Don acquired a good title 1. Is the action pursued by Louie the proper remedy?
to the land. The registration of the land in the name of Rod was con-
clusive notice to the whole world. Persons dealing with registered land An action for reconveyance against Huey is not the proper reme-
have the legal right to rely on the face of the Torrens title and to dis- dy, because Huey is an innocent purchaser for value. The proper re-
pense with the need to look beyond the certificate and investigate the course is for Louie to go after Dewey for damages by reason of the
title of the vendor appearing in the certificate in the absence of facts fraudulent registration and subsequent sale of the land. If Dewey is
and circumstances that would impel a reasonably cautious man to insolvent, Louie may file a claim against the Assurance Fund (Heirs of
make such inquiry. This is the “Mirror Principle” of the Torrens system. Pedro Lopez v. De Castro, 324 SCRA 591 [2000] citing Spouses Ed-
uarte v. Court of Appeals, 323 Phil. 462, 467 [1996].)
3. In an ejectment case filed by Don against Cesar, can the
latter ask for the cancellation of Don’s title considering 2. Assuming that conveyance is the proper remedy, will the
that he (Cesar) is the rightful owner of the lot? ’05 – Q13 action prosper if the case was filed beyond one year, but
within ten years, from the entry of the decree of registra-
Cesar cannot ask for the cancellation of Don’s title in the eject- tion? ’03 – Q20
ment case filed by Don against him. Under Section 48 of P.D. No.
1529, the Property Registration Decree, a Torrens title shall not be YES, the remedy will prosper because the action prescribes in ten
subject to collateral attack. It cannot be altered, modified or cancelled (10) years, not within one (1) year when a petition for the reopening of
except in a direct proceeding in accordance with law. The ejectment the registration decree may be filed. The action for reconveyance is
proceeding does not provide the proper forum for the cancellation of distinct from the petition to reopen the decree of registration (Grey Alba
Don’s title. While Cesar’s counterclaim for cancellation of Don’s title v. De la Cruz, 17 Phil. 49 [1910].) There is no need to reopen the regis-
may be considered a direct attack, the same should nevertheless be tration proceedings, but the property should just be conveyed to the
denied on procedural grounds because a Municipal or Metropolitan real owner.
Trial Court is without jurisdiction to cancel a Torrens title. The action for reconveyance is based on implied or constructive
trust, which prescribes in ten (10) years from the date of issuance of
JV, owner of a parcel of land, sold it to PP. But the deed of sale the original certificate of title. This rule assumes that the defendant is in
was not registered. 1 year later, JV sold the parcel of land again to possession of the land. Where it is the plaintiff who is in possession of
RR, who succeeded to register the deed and to obtain a transfer the land, the action for reconveyance would in in the nature of a suit for
certificate of title over the property in his own name. Who has a quieting of title which action is imprescriptible (David v. Malay, 318
better right over the parcel of land, RR or PP? ’04 – Q4a SCRA 711 [1999].)
It depends on whether or not RR is an innocent purchaser for Sancho and Pacifico are co-owners of a parcel of land. Sancho
value. sold the property to Bart. Pacifico sued Sancho and Bart for an-
Under the Torrens System, a deed or instrument operates only as nulment of the sale and reconveyance of the property based on
a contract between the parties and as evidence of authority to the Reg- the fact that the sale included his ½ pro-indiviso share. Pacifico
ister of Deeds to make the registration. It is the registration of the deed had a notice of lis pendens annotated on the title covering the
or the instrument that is the operative act that conveys or affects the property. After trial, the court declared Bart the owner of the
land (Section 51, P.D. 1529.) property and ordered the cancellation of the notice of lis pendens.
In cases of double sale of titled land, it is a well-settled rule that The notice of lis pendens could not be cancelled immediately
the buyer who first registers the sale in good faith acquires a better because the title over the property was with a bank to which the
right to the land (Article 1544, Civil Code.) property had been mortgaged by Bart. Pacifico appealed the case.
Persons dealing with property covered by Torrens title are not While the appeal was pending and with notice of lis pendens still
required to go beyond what appears on its face (Orquiola v. Court of not cancelled, Bart sold the property to Carlos, who immediately
Appeals, 386 SCRA 301 [2002]; Domingo v. Roces, 401 SCRA 197 caused the cancellation of the notice of lis pendens, as well as
[2003].) Thus, absent any showing that RR knew about, or ought to the issuance of a new title in his name.
have known the prior sale of the land to PP or that he acted in bad 1. Is Carlos (a) a purchaser in good faith, or (b) a transfer-
faith, and being first to register the sale, RR acquired a good and a ee pendente lite?
clean title as against PP.
Carlos is a buyer in bad faith. The notice of lis pendens was still
In 1970, the spouses Juan and Juana de la Cruz, then Filipinos, annotated at the back of the title at the time he bought the land from
bought a parcel of unregistered land in the Philippines on which Bart. The uncancelled notice of lis pendens operates as a constructive
they built a house which became their residence. In 1986, they notice of its contents as well as interests, legal and equitable, included
migrated to Canada and became Canadian citizens. Thereafter, in therein. All persons charged with the knowledge of what it contains.
1990, they applied, opposed by the Republic, for the registration In an earlier case, it was held that a notice of adverse claim re-
of the aforesaid land in their names. Should the application of the mains effective and binding notwithstanding the lapse of 30 days from
spouses de la Cruz be granted over the Republic’s opposition? its inscription in the registry. This ruling is even more applicable in a lis
’03 – Q18 pendens.
Carlos is a transferee pendente lite insofar as Sancho’s share in
YES, the application should be granted. the co-ownership is concerned because the land was transferred to
As a rule, the Constitution prohibits aliens from owning private him during the pendency of the appeal.
lands in the Philippines. This rule, however, does not apply to the
spouses Juan and Juana de la Cruz because at the time they acquired 2. If your answer is (a), how can the right of Pacifico as co-
ownership over the land, albeit imperfect, they were still Filipino citi- owner be protected? ’02 – Q11
zens. The application for registration is a mere confirmation of the
imperfect title which the spouses have already acquired before they Pacifico can protect his right as a co-owner by pursuing his ap-
became Canadian citizens (Republic v. Court of Appeals, 235 SCRA peal; asking the Court of Appeals to order the re-annotation of the lis
567 [1994].) pendens on the title of Carlos; and by invoking his right of redemption
of Bart’s share under Article 1620 of the Civil Code.
!48
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Cesar bought a residential unit from High Rise Co. and paid the An action for the annulment of Jorge's Original Certificate of Title
price in full. He moved into the unit, but somehow he was not will prosper on the following grounds:
given the Condominium Certificate of Title covering the property. 1) Under Chapter IX of C.A, No. 141, otherwise known as the
Unknown to him, High Rise subsequently mortgaged the entire Public Land Act, foreshore lands are disposable for residential,
condominium building to Metrobank as security for a loan of P500 commercial, industrial or similar purposes, and only by lease
million. High Rise failed to pay the loan and the bank foreclosed when not needed by the government for public service;
the mortgage. At the foreclosure sale, the bank acquired the 2) If the land is suited or actually used for fishpond or aquacul-
building, being the highest bidder. When Cesar learned about ture purposes, it comes under the Jurisdiction of the Bureau of
this, he filed an action to annul the foreclosure sale insofar as his Fisheries and Aquatic Resources (BFAR) and can only be ac-
unit was concerned. The bank put up the defense that it relied on quired by lease. (P.D. No. 705);
the condominium certificates of title presented by High Rise, 3) Free Patent is a mode of concession under Section 41,
which were clean. Hence, it was a mortgagee and buyer in good Chapter VII of the Public Land Act, which is applicable only for
faith. Is this defense tenable or not? ’01 – Q16 agricultural lands.
4) The certificate of the district forester that the land is already
Metrobank's defense is untenable. “alienable and disposable” simply means that the land is no
As a rule, an innocent purchaser for value acquires a good and a longer needed for forest purposes, but the Bureau of Lands could
clean title to the property. However, it is settled that one who closes his no longer dispose of it by free patent because it is already cov-
eyes to facts that should put a reasonable man on guard is not an ered by a lease contract between BFAR and Regina. That con-
innocent purchaser for value. In the present problem the bank is ex- tract must be respected.
pected, as a matter of standard operating procedure, to have conduct- 5) The free patent of Jorge is highly irregular and void ab initio,
ed an ocular inspection, of the promises before granting any loan. Ap- not only because the Bureau has no statutory authority to issue a
parently, Metrobank did not follow this procedure. Otherwise, it should free patent over a foreshore area, but also because of the false
have discovered that the condominium unit in question was occupied statements made in his sworn application that he has occupied
by Cesar and that fact should have led it to make further inquiry. Under and cultivated the land since July 4, 1945, as required by the free
the circumstances, Metrobank cannot be considered a mortgagee and patent law. Under Section 91 of the Public Land Act, any patent
buyer in good faith. concession or title obtained thru false representation is void ab
initio. In cases of this nature, it is the government that shall insti-
Mario sold his house and lot to Carmen for P1M payable in 5 tute annulment proceedings considering that the suit carries with
equal annual installments. The sale was registered and title was it a prayer for the reversion of the land to the state. However,
issued in Carmen's name. Carmen failed to pay the last 3 install- Regina is a party in interest and the case will prosper because
ments and Mario filed an action for collection, damages and at- she has a lease contract for the same land with the government.
torney’s fees against her. Upon filing of the complaint, he caused
a notice of lis pendens to be annotated on Carmen's title. Is the In 1979, Nestor applied for and was granted a Free Patent over a
notice of lis pendens proper or not? ’01 – Q20 parcel of agricultural land with an area of 30 hectares, located in
General Santos City. He presented the Free Patent to the Register
The notice of lis pendens is not proper for the reason that the of Deeds, and he was issued a corresponding Original Certificate
case filed by Mario against Carmen is only for collection, damages, of Title (OCT) No. 375, Subsequently, Nestor sold the land to Ed-
and attorney's fees. die. The deed of sale was submitted to the Register of Deeds and
Annotation of a lis pendens can only be done in cases involving on the basis thereof, OCT No. 375 was cancelled and TCT No.
recovery of possession of real property, or to quiet title or to remove 4576 was issued in the name of Eddie. In 1986, the Director of
cloud thereon, or for partition or any other proceeding affecting title to Lands filed a complaint for annulment of OCT No. 375 and TCT
the land or the use or occupation thereof. The action filed by Mario No. 4576 on the ground that Nestor obtained the Free Patent
does not fall on anyone of these. through fraud. Eddie filed a MTD on the ground that he was an
innocent purchaser for value and in good faith and as such, he
Republic Act 1899 authorizes municipalities and chartered cities has acquired a title to the property which is valid, unassailable
to reclaim foreshore lands bordering them and to construct and indefeasible. Decide the motion. ’00 – Q12
thereon adequate docking and harbor facilities. Pursuant thereto,
the City of Cavite entered into an agreement with the Fil-Estate The motion of Nestor to dismiss the complaint for annulment of
Realty Co., authorizing the latter to reclaim 300 hectares of land OCT No. 375 and TCT No. 4576 should be denied for the following
from the sea bordering the city, with 30% of the land to be re- reasons:
claimed to be owned by Fil-Estate as compensation for its ser- 1) Eddie cannot claim protection as an innocent purchaser for value
vices. The OSG questioned the validity of the agreement on the nor can he interpose the defense of indefeasibility of his title,
ground that it will mean reclaiming land under the sea which is because his TCT is rooted on a void title. Under Section 91 of CA
beyond the commerce of man. The City replies that this is autho- No. 141, as amended, otherwise known as the Public Land Act,
rized by R.A. 1899 because it authorizes the construction of statements of material facts in the applications for public land
docks and harbors. Who is correct? ’00 – Q8a must be under oath. Section 91 of the same act provides that
such statements shall be considered as essential conditions and
The Solicitor General is correct. The authority of the City of Cavite parts of the concession, title, or permit issued, any false state-
under R.A. No. 1899 to reclaim land is limited to foreshore lands. The ment therein, or omission of facts shall ipso facto produce the
Act did not authorize it to reclaim land from the sea. "The reclamation cancellation of the concession. The patent issued to Nestor in this
being unauthorized, the City of Cavite did not acquire ownership over case is void ab initio not only because it was obtained by fraud
the reclaimed land. Not being the owner, it could not have conveyed but also because it covers 30 hectares which is far beyond the
any portion thereof to the contractor. maximum of 24 hectares provided by the free patent law;
2) The government can seek annulment of the original and transfer
Regina has been leasing foreshore land from the Bureau of Fish- certificates of title and the reversion of the land to the state. Ed-
eries and Aquatic Resources for the past 15 years. Recently, she die's defense is untenable. The protection afforded by the Torrens
learned that Jorge was able to obtain a free patent from the Bu- System to an innocent purchaser for value can be availed of only
reau of Agriculture, covering the same land, on the basis of a if the land has been titled thru judicial proceedings where the
certification by the District Forester that the same is already issue of fraud becomes academic after the lapse of one (1) year
"alienable and disposable". Moreover, Jorge had already regis- from the issuance of the decree of registration. In public land
tered the patent with the Register of Deeds of the province, and grants, the action of the government to annul a title fraudulently
he was issued an OCT for the same. Regina filed an action for obtained does not prescribe such action and will not be barred by
annulment of Jorge's title on the ground that it was obtained the transfer of the title to an innocent purchaser for value.
fraudulently. Will the action prosper? ’00 – Q9b
!49
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
The spouses X and Y mortgaged a piece of registered land to A, Public Land Act, the Court of Appeals has ruled that "the homesteader
delivering as well the OCT to the latter, but they continued to pos- suffers the loss of the fruits realized by the vendee who in turn forfeits
sess and cultivate the land, giving ½ of each harvest to A in par- the improvement that he has introduced into the land" (Obot v. San-
tial payment of their loan to the latter, A, however, without the dadillas, 69 O.G., April 35, 1966.)
knowledge of X and Y, forged a deed of sale of the aforesaid land
in favor of himself, got a TCT in his name, and then sold the land Juan and his sister Juana inherited from their mother 2 parcels of
to B, who bought the land relying on A's title, and who thereafter farmland with exactly the same areas. For convenience, the TCTs
also got a TCT in his name. It was only then that the spouses X covering both lots were placed in Juan's name alone. In 1996,
and Y learned that their land had been titled in B's name. May said Juan sold to an innocent purchaser one parcel in its entirety
spouses file an action for reconveyance of the land in question without the knowledge and consent of Juana, and wrongfully kept
against b? ’99 – Q10 for himself the entire price paid.
1. What rights of action, if any, does Juana have against
The action of X and Y against B for reconveyance of the land will and/or the buyer?
not prosper because B has acquired a clean title to the property being
an innocent purchaser for value. When, for convenience, the Torrens title to the two parcels of land
A forged deed is an absolute nullity and conveys no title. The fact were placed in Joan's name alone, there was created an implied trust
that the forged deed was registered and a certificate of title was issued (a resulting trust) for the benefit of Juana with Juan as trustee of one-
in his name, did not operate to vest upon an ownership over the prop- half undivided or ideal portion of each of the two lots. Therefore, Juana
erty of X and Y. The registration of the forged deed will not cure the can file an action for damages against Joan for having fraudulently
infirmity. However, once the title to the land is registered in the name of sold one of the two parcels which he partly held in trust for Juana's
the forger and title to the land thereafter falls into the hands of an inno- benefit. Juana may claim actual or compensatory damage for the loss
cent purchaser for value, the latter acquires a clean title thereto. A of her share in the land; moral damages for the mental anguish, anxi-
buyer of a registered land is not required to explore beyond what the ety, moral shock and wounded feelings she had suffered; exemplary
record indicates on its face in quest for any hidden defect or inchoate damage by way of example for the common good, and attorney's fees.
right which may subsequently defeat his right thereto. This is the “mir- Juana has no cause of action against the buyer who acquired the
ror principle” of the Torrens system which makes it possible for a land for value and in good faith, relying on the transfer certificate of title
forged deed to be the root of a good title. showing that Juan is the registered owner of the land.
Besides, it appears that spouses X and Y are guilty of contributory
negligence when they delivered this OCT to the mortgagee without Another Answer:
annotating the mortgage thereon. Between them and the innocent
purchaser for value, they should bear the loss. Under Article 476 of the Civil Code, Juana can file an action for
quieting of title as there is a cloud in the title to the subject real proper-
Alternative Answer: ty. Second, Juana can also file an action for damages against Juan,
because the settled rule is that the proper recourse of the true owner of
If the buyer B, who relied on the teller A's title, was not aware of the property who was prejudiced and fraudulently dispossessed of the
the adverse possession of the land by the spouses X and Y, then the same is to bring an action for damages against those who caused or
latter cannot recover the property from B. B has in his favor the pre- employed the same. Third, since Juana had the right to her share in
sumption of good faith which can only be overthrown by adequate the property by way of inheritance, she can demand the partition of the
proof of bad faith. However, nobody buys land without seeing the thing owned in common, under Article 494 of the Civil Code, and ask
property, hence, B could not have been unaware of such adverse pos- that the title to the remaining property be declared as exclusively hers.
session. If after learning of such possession, B simply closed his eyes However, since the farmland was sold to an innocent purchaser
and did nothing about it, then the suit for reconveyance will prosper as for value, then Juana has no cause of action against the buyer consis-
the buyer's bad faith will have become evident. tent with the established rule that the rights of an innocent purchaser
for value must be respected and protected notwithstanding the fraud
In 1950, the Bureau of Lands issued a Homestead patent to A. 3 employed by the seller in securing his title (Eduarte v. Court of Ap-
years later, A sold the homestead to B. A died in 1990, and his peals, 253 SCRA 391 [1996].)
heirs filed an action to recover the homestead from B on the
ground that its sale by their father to the latter is void under Sec- Additional Answer:
tion 118 of the Public Land Law. B contends, however, that the
heirs of A cannot recover the homestead from him anymore be- Juana has the right to recover (a) her one-half share in the pro-
cause their action has Cesar bought a residential condominium ceeds of the sale with legal interest thereof, and (b) such damages as
unit from High prescribed and that furthermore, A was in pari she may be able to prove as having been suffered by her, which may
delicto. Decide. ’99 – Q12 include actual or compensatory damages as well as moral and exem-
plary damages due to the breach of trust and bad faith (Imperial v.
The sale of the land by A to B 3 years after issuance of the home- Court of Appeals, 259 SCRA 65 [1996].). Of course, if the buyer knew
stead patent, being in violation of Section 118 of the Public Land Act, is of the co-ownership over the lot he was buying, Juana can seek (c)
void from its inception. The action filed by the heirs of B to declare the reconvenyance of her one-half share instead but she must implead the
nullity or inexistence of the contract and to recover the land should be buyer as co-defendant and allege his bad faith in purchasing the entire
given due course. lot. Finally, consistent with the ruling in Imperial, Juana may seek in-
B's defense of prescription is untenable because an action which stead (d) a declaration that she is now the sole owner of the entire
seeks to declare the nullity or inexistence of a contract does not pre- remaining lot on the theory that Juan has forfeited his one-half share
scribe (Article 1410, NCC; Banaga v. Soler, 2 SCRA 765 [1961].) therein.
On the other hand, B's defense of pari delicto is equally unten-
able. While as a rule, parties who are in pari delicto have no recourse Additional Answer:
against each other on the principle that a transgressor cannot profit
from his own wrongdoing, such rule does not apply to violations of Juana can file an action for damages against Juan for having
Section 118 of the Public Land Act because of the underlying public fraudulently sold one of the two parcels which he partly held in trust for
policy in the said Act "to conserve the land which a homesteader has Juana's benefit. Juana may claim actual or compensatory damage for
acquired by gratuitous grant from the government for himself and his the loss of her share in the land; moral damages for the mental an-
family". In keeping with this policy, it has been held that one who pur- guish, anxiety, moral shock and wounded feelings she had suffered;
chases a homestead within the five-year prohibitory period can only exemplary damage by way of example for the common good, and
recover the price which he has paid by filing a claim against the estate attorney's fees.
of the deceased seller (Labrador v. Delos Santos, 66 Phil. 579 [1938]) Juana has no cause of action against the buyer who acquired the
under the principle that no one shall enrich himself at the expense of land for value and in good faith, relying on the transfer certificate show-
another. Applying the pari delicto rule to violation of Section 118 of the ing that Juan is the registered owner of the land.
!50
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
fees were paid as evidenced by official receipt. However, no trans-
2. Since the 2 lots have the same area, suppose Juana files fer of certificate of title was issued to Renren because the original
a complaint to have herself declared sole owner of the certificate of title in Robyn's name was temporarily misplaced
entire remaining second lot, contending that her brother after fire partly gutted the Office of the Register of Deeds. Mean-
had forfeited his share thereof by wrongfully disposing while, the land had been possessed by Robyn's distant cousin,
of her undivided share in the 1st lot. Will the suit pros- Mikaelo, openly, adversely and continuously in the concept of
per? ’98 – Q7 owner since 1960. It was only in April 1998 that Renren sued
Mikaelo to recover possession. Mikaelo invoked a) acquisitive
Juana's suit to have herself declared as sole owner of the entire prescription and b) laches, asking that he be declared owner of
remaining area will not prosper because while Juan's act in selling the the land. Decide the case by evaluating these defenses. '98 – Q20
other lot was wrongful. It did not have the legal effect of forfeiting his
share in the remaining lot. On acquisitive prescription:
However, Juana can file an action against Juan for partition or Renren's action to recover possession of the land will prosper.
termination of the co-ownership with a prayer that the lot sold be adju- In 1965, after buying the land from Robyn, he submitted the Deed
dicated to Juan, and the remaining lot be adjudicated and reconveyed of Sale to the Registry of Deeds for registration together with the own-
to her. er's duplicate copy of the title, and paid the corresponding registration
fees. Under Section 56 of P.D. No. 1529, the Deed of Sale to Renren is
Another Answer: considered registered from the time the sale was entered in the Day
Book (now called the Primary Entry Book).
The suit will prosper, applying the ruling in Imperial v. Court of For all legal intents and purposes, Renren is considered the regis-
Appeals cited above. Both law and equity authorize such a result, said tered owner of the land. After all, it was not his fault that the Registry of
the Supreme Court. Deeds could not issue the corresponding transfer certificate of title.
Strictly speaking, Juana's contention that her brother had forfeited Mikaelo's defense of prescription cannot be sustained. A Torrens
his share in the second lot is incorrect. Even if the two lots have the title is imprescriptible. No title to registered land in derogation of the
same area, it does not follow that they have the same value. Since the title of the registered owner shall be acquired by prescription or ad-
sale of the first lot on the Torrens title in the name of Juan was valid, all verse possession (Section 47, P.D. No, 1529.)
that Juana may recover is the value of her undivided interest therein, The right to recover possession of registered land likewise does
plus damages. In addition, she can ask for partition or reconveyance of not prescribe because possession is just a necessary incident of own-
her undivided interest in the second lot, without prejudice to any ership.
agreement between them that in lieu of the payment of the value of
Juana's share in the first lot and damages, the second lot be recon- On laches:
veyed to her. Mikaelo's defense of laches, however, appears to be more sus-
tainable. Renren bought the land and had the sale registered way back
Alternative Answer: in 1965. From the facts, it appears that it was only in 1998 or after an
inexplicable delay of 33 years that he took the first step asserting his
The suit will not prosper, since Juan's wrongful act of pocketing right to the land. It was not even an action to recover ownership but
the entire proceeds of the sale of the first lot is not a ground for divest- only possession of the land. By ordinary standards, 33 years of neglect
ing him of his rights as a co-owner of the second lot. Indeed, such or inaction is too long and maybe considered unreasonable. As often
wrongdoing by Juan does not constitute, for the benefit of Juana, any held by the Supreme Court, the principle of imprescriptibility some-
of the modes of acquiring ownership under Article 712, Civil Code. times has to yield to the equitable principle of laches which can convert
even a registered land owner's claim into a stale demand.
Section 70 of P.D. No. 1529, concerning adverse claims on regis- Mikaelo's claim of laches, however, is weak insofar as the ele-
tered land, provides a 30-day period of effectivity of an adverse ment of equity is concerned, there being no showing in the facts how
claim, counted from the date of its registration. Suppose a notice he entered into the ownership and possession of the land.
of adverse claim based upon a contract to sell was registered on
March 1, 1997 at the instance of the BUYER, but on June 1, 1997, On 10 September 1965, Melvin applied for a free patent covering
or after the lapse of the 30-day period, a notice of levy on execu- two lots - Lot A and Lot B - situated in Santiago, Isabela. Upon
tion in favor of a JUDGMENT CREDITOR was also registered to certification by the Public Land Inspector that Melvin had been in
enforce a final judgment for money against the registered owner. actual, continuous, open, notorious, exclusive and adverse pos-
Then, on June 15, 1997 there having been no formal cancellation session of the lots since 1925, the Director of Land approved
of his notice of adverse claim, the BUYER pays to the seller-own- Melvin's application on 04 June 1967. On 26 December 1967, OCT
er the agreed purchase price in full and registers the correspond- No. P-2277 was issued in the name of Melvln.
ing deed of sale. Because the annotation of the notice of levy is On 7 September 1971, Percival filed a protest alleging that Lot B
carried over to the new title in his name, the BUYER brings an which he had been occupying and cultivating since 1947 was
action against the JUDGMENT CREDITOR to cancel such annota- included in the Free Patent issued in the name of Melvin. The
tion, but the latter claims that his lien is superior because it was Director of Lands ordered the investigation of Percival's protest.
annotated after the adverse claim of the BUYER had ipso facto The Special Investigator who conducted the investigation found
ceased to be effective. Will the suit prosper? ’98 – Q19 that Percival had been in actual cultivation of Lot B since 1947.
On 28 November 1986, the OSG filed in behalf of the Republic a
The suit will prosper. While an adverse claim duly annotated at complaint for cancellation of the free patent and the OCT issued
the back of a title under Section 70 of P.D. No. 1529 is good only for 30 in the name of Melvin and the reversion of the land to public do-
days, cancellation thereof is still necessary to render it ineffective, main on the ground of fraud and misrepresentation in obtaining
otherwise, the inscription thereof will remain annotated as a lien on the the free patent. On the same date, Percival sued Melvin for the
property. While the life of adverse claim is 30 days under P.D. No. reconveyance of Lot B.
1529, it continuous to be effective until it is canceled by formal petition Melvin filed his answers interposing the sole defense in both cas-
filed with the Register of Deeds. es that the Certificate of Title issued in his name became incon-
The cancellation of the notice of levy is justified under Section 108 trovertible and indefeasible upon the lapse of one year from the
of P.D. No. 1529 considering that the levy on execution cannot be en- issuance of the free patent.
forced against the buyer whose adverse claim against the registered Given the circumstances, can the action of the OSG and the case
owner was recorded ahead of the notice of levy on execution. for reconveyance filed by Percival possibly prosper? ’97 – Q20
In 1965, Renren bought from Robyn a parcel of registered land “If fraud be discovered in the application which led to the issuance
evidenced by a duly executed deed of sale. The owner presented of the patent and Certificate of Title, this Title becomes ipso facto null
the deed of sale and the owner's certificate of title to the Register and void. Thus, in a case where a person who obtained a free patent,
of Deeds. The entry was made in the daybook and corresponding knowingly made a false statement of material and essential facts in his
!51
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
application for the same, by stating therein that the lot in question was
part of the public domain not occupied or claimed by any other person, If I were the judge, I will give due course to the petition of the
his title becomes ipso facto canceled and consequently rendered null heirs of Gavino despite the opposition of Marilou for the following rea-
and void.” sons:
“It is to the public interest that one who succeeds In fraudulently Judicial reconstitution of a certificate of title under R.A. No. 26
acquiring title to public land should not be allowed to benefit therefrom partakes of a land registration proceeding and is perforce a proceeding
and the State, through the Solicitor General, may file the correspond- in rem. It denotes restoration of an existing instrument which has been
ing action for annulment of the patent and the reversion of the land lost or destroyed in its original form and condition. The purpose of
involved to the public domain” (Dinero v. Director of Lands; Kayaban v. reconstitution of title or any document is to have the same reproduced,
Republic, L-33307, 8-20-73; Director of Lands v. Hon. Pedro Samson after proceedings. In the same form they were when the loss or de-
Animas, L-37682, 3-29-74.) struction occurred.
This action does not prescribe. If the Court goes beyond that purpose, it acts without or in excess
With respect to Percival's action for reconveyance, it would have of jurisdiction. Thus, where the Torrens Title sought to be reconstituted
prescribed, having been filed more than ten (10) years after registra- is in the name of Gavino, the court cannot receive evidence proving
tion and issuance of an O.C.T. in the name of Melvin, were it not for the that Marilou is the owner of the land. Marilou's dominical claim to the
inherent infirmity of the latter's title. Under the facts, the statute of limi- land should be ventilated in a separate civil action before the Regional
tations will not apply to Percival because Melvin knew that a part of the Trial Court in its capacity as a court of general jurisdiction.
land covered by his title actually belonged to Percival. So, instead of References: Heirs of Pedro Pinate v. Dulay, 187 SCRA 12-20 [1990];
nullifying in toto the title of Melvin, the court, in the exercise of equity Bunagan v. CFI Cebu Branch VI, 97 SCRA 72 [1980]; Republic v. IAC,
and jurisdiction, may grant prayer for the reconveyance of Lot B to 157 SCRA 62, 66 (1988); Margolles v. Court of Appeals, 230 SCRA
Percival who has actually possessed the land under a claim of owner- 709 [1994]; Republic v. Feliciano, 148 SCRA 924.
ship since 1947. After all, if Melvin's title is declared void ab initio and
the land is reverted to the public domain, Percival would just the same
be entitled to preference right to acquire the land from the government.
Besides, well settled is the rule that once public land has been in open, SUCCESSION
continuous, exclusive and notorious possession under a bona fide
Pedro. had worked for 15 years in Saudi Arabia when he finally
claim of acquisition of ownership for the period prescribed by Section
48 of the Public Land Act, the same ipso jure ceases to be public and decided to engage in farming in his home province where his 10-
in contemplation of law acquired the character of private land. Thus, hectare farmland valued at P2,000,000. was located. He had al-
reconveyance of the land from Melvin to Percival would be the better ready P3,000,000 savings from his long stint in Saudi Arabia.
procedure (Vitale v. Anore, 90 Phil. 855; Peña, Land Titles and Deeds, Eagerly awaiting Pedro's arrival at the NAIA were his aging par-
1982, Page 427) ents Modesto and Jacinta, his common-law spouse Veneranda,
their three children, and Alex, his chold by Carol, his departed
Alternative Answer:
legal wife. Sadly for all of them, Pedro suffered a stroke because
The action of the Solicitor General should prosper, considering of his over-excitement just as the plane was about to land, and
that the doctrine of indefeasibility of title does not apply to free patent died without seeing any of them.
secured through fraud. A certificate of title cannot be used as shield to The farmland and ihc savings were all the properties he left.
perpetuate fraud. The State is not bound by the period of prescription (a) State who are Pedro's legal heirs, and the shares of each legal
stated in Section 38 of Act No. 496 (Director of Lands v. Abanilla, 124 heir to the estate? Explain your answer. (4%)
SCRA 358 [1983].) (b) Assuming that Pedro’s will is discovered soon after his funer-
The action for reconveyance filed by Percival may still prosper
provided that the property has not passed to an innocent third party for al. In the will, he disposed of half of his estate in favor of
value (Dablo v. Court of Appeals, 226 SCRA 618 [1993]), and provided Veneranda, and the other half in favor of his children and his par-
that the action is filed within the prescriptive period of ten years (Tale v. ents in equal shares. Assuming also that the will is admitted to
Court of Appeals, 208 SCRA 266.) Since the action was filed by Perci- probate by the proper court. Are the testamentary dispositions
val 19 years after the issuance of Melvin's title, it is submitted that the valid and effective under the law on succession? Explain your
same is already barred by prescription. answer. (4%) ’17—Q8
Alternative Answer (to 2nd part of question):
(a) Pedro's legal heirs are Alex, who is his legitimate child by his de-
The action for reconveyance filed by Percival will prosper, be- ceased wife (Article 979, NCC), and his three children by Veneran da,
cause the land has ceased to be public land and has become private who are his illegitimate children (Article 873, NCC). Modesto and Jac-
land by open, continuous, public, exclusive possession under a bona inta, his parents, are excluded by Alex, his legitimate child. Veneranda,
fide claim of ownership for more than thirty years, and Percival is still in as a common-law spouse, is not among Pedro's legal heirs. Assuming
possession of the property at present. His action for reconveyance can that the farmland and savings are the exclusive properties of Pedro,
be considered as an action to quiet title, which does not prescribe if the
Pedro's estate amounts to P5,000,000. Alex is entitled to one-half of
plaintiff is in possession of the property (Olviga v. Court of Appeals,
G.R. No. 1048013, October 21, 1993.) Pedro's estate, amounting to P2,500,000, while three illegitimate chil-
dren divide the remaining one-half equally, such that each will receive
In 1989, the heirs of Gavino, who died on August 10, 1987, filed a P833,333.33.
petition for reconstitution of his lost or destroyed Torrens Title to (b) The testamentary dispositions are invalid insofar as they impair the
a parcel of land in Ermita, Manila. This was opposed by Marilou legitimes or Pedro's compulsory heirs. Pedro s compulsory heirs are
who claimed ownership of the said land by a series of sales. She Alex and his three illegitimate children (Article 887, NCC). Alex as Pe-
claimed that Gavino had sold the property to Bernardo way back
dro's sole legitimate child, is entitled to a legitime to one-half of his
in 1941 and as evidence thereof, she presented a Tax Declaration
in 1948 in the name of Bernardo, which cancelled the previous father’s estate, amounting to P2,500,000 (Article 888, NCC). The three
Tax Declaration in the name of Gavino. Then she presented two illegitimate children or Pedro are theoretically entitled to a legitime
deeds of sale duly registered with the Register of Deeds, the first equal to one-hair of tee legitime of Alex, amounting to P1,250,000 each
one executed by Bernardo in 1954 selling the same property to or P3,750,000 total, but as this exceeds the balance or the estate
Carlos, and the second one executed by Carlos in 1963, selling amounting to P2,500,000, the latter amount must be divided equally
the same property to her. She also claimed that she and her pre- among the three, amounting to P833,333.33 each. The other testa-
decessors in interest have been in possession of the property
mentary dispositions to Veneranda and Pedro's parents, may not be
since 1948. If you were the judge, how will you decide the peti-
tion? '96 – Q17 given effect, as there is nothing left or the estate to distribute.
!52
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
[Note: If the farmland and the P3M savings were acquired during the When Mark (Reservista) died, the property passed to Princess as sole
cohabitation of Pedro and Veneranda, these are owned in common by reservatario^ thus extinguishing the reserva troncaL Upon Princess’s
both of them (Art. 147, Family Code). One-half of the P5M belongs to death, the property was transmitted ah intestato to her father Jojo.
Veneranda as her share m the co-ownership]. Transmission to Jojo is by the ordinary rules of compulsory and intes-
tate succession, not by reserva troncaL because the reserva was ex-
Don Ricardo had 2 legitimate children - Tomas and Tristan. Tristan tinguished upon the transmission of the property to Princess, this mak-
has 3 children. Meanwhile, Tomas had a relationship with Nancy, ing Princess the absolute owner subject to no reserva.
who was also single and had the legal capacity to marry. Nancy
became pregnant and gave birth to Tomas, Jr. After the birth of Alden and Stela were both former Filipino citizens. They were
Tomas, Jr., his father, Tomas, died. Later, Don Ricardo died with- married in the Philippines but they later migrated to the United
out a will and Tristan opposed the motion of Tomas, Jr. to be de- States where they were naturalized as American citizens. In their
clared an heir of the deceased since he is an illegitimate child. union they were able to accumulate several real properties both in
Tomas, Jr. countered that Article 992 of the Civil Code is unconsti- the US and in the Philippines. Unfortunately, they were not
tutional for violation of the equal protection of the laws. He ex- blessed with children. In the US, the executed a joint will institut-
plained that an illegitimate child of an illegitimate parent is al- ing their common heirs to divide their combined estate in equal
lowed to inherit under Articles 902, 982 and 990 of the Civil Code shares, the five siblings of Alden and the seven siblings of Stela.
while he - an illegitimate child of a legitimate father - cannot. Civil Alden passed away in 2013 and a year later, Stela also died. The
Law commentator Arturo Tolentino opined that Article 992 created siblings of Alden were all citizens of the US instituted probate
an absurdity and committed an injustice because while the illegit- proceedings in a US court impleading the siblings of Stela who
imate descendant of an illegitimate child can represent, the illegit- were all in the Philippines.
imate descendant of a legitimate child cannot. Decide the case
and explain. (5%) ’16 – Q16 a) Was the joint will executed by Alden and Stela who were
both former Filipinos valid? Explain with legal basis.
I will deny the motion of Tomas, Jr. to be declared as an heir of the (3%) ‘15 - Q1a
deceased. Tomas Jr., being an illegitimate child of the deceased legiti-
mate son, Tomas, cannot inherit ab intestate from the deceased, Don The joint will shall be valid if it was executed in accordance with U.S.
Ricardo, because of the iron curtain rule under Article 992 of the Civil law. At the time of the will’s execution, Alden and Stela were U.S. citi-
Code. zens. The will of an alien who is abroad produces effect in the Philip-
pines if made with the formalities prescribed by the place of the law in
Tomas cannot argue that Article 992 is violative of the equal protection which he resides, or according to the formalities observed in his coun-
clause because equal protection simply requires that all persons or try. (Art. 816, Civil Code). Art. 819 of the Civil Code does not apply as it
things similarly situated should be treated alike, both as to rights con- refers specifically to the invalidity of joint wills “executed by Filipinos in
ferred and responsibilities imposed (Ichong v. Hernandez 101 Phil. a foreign country”.
1155 [May 31, 1957]). It, however, does not require the universal appli-
cation of the laws to all persons or things without distinction. What it b) Can the joint will produce legal effect in the Philippines
simply requires is equality among equals as determined according to a with respect to the properties of Alden and Stela found
valid classification. Indeed, the equal protection clause permits classifi- here? If so, how? ‘15 - Q1b
cation.
The joint will may produce legal effect in the Philippines if it was validly
Princess married Roberto and bore a son, Onofre. Roberto died in executed in accordance with the laws of the U.S. To be given legal
a plane crash. Princess later married Mark and they also had a effect in the Philippines, it must be probated in this country. Since the
son - Pepito. Onofre donated to Pepito, his half-brother, a lot in will was executed abroad by aliens, it must comply with Article 17 or
Makati City worth P3, 000,000.00. Pepito succumbed to an illness Article 816 of the Civil Code. Under Article 17, the forms and solemni-
and died intestate. The lot given to Pepito by Onofre was inherited ties of contracts, wills, and other public instruments shall be governed
by his father, Mark. Mark also died intestate. Lonely, Princess by the laws of the country in which they are executed. Under Article
followed Mark to the life beyond. The claimants to the subject lot 816, the will of an alien who is abroad produces effect in the Philip-
emerged - Jojo, the father of Princess; Victor, the father of Mark; pines if made with the formalities prescribed by the place of the law in
and Jerico, the father of Roberto. which he resides, or according to the formalities observed in his coun-
try, or in conformity with those which this Code prescribes.
Who among the three (3) ascendants is entitled to the lot? Ex-
plain. (5%) ’16 – Q20 Since Alden and Stela were both naturalized American citizens at the
time of the execution of the will, they are allowed to execute a will in
Jojo, Princess’s father, is entitled to the lot. accordance with the formalities prescribed by the law of their country,
where they reside, or Philippine law.
This is a clear case of reserva troncaL The Origin is Onofre. The
Prepositus is Pepito. The mode of transmission from Onofre to Pepito Moreover, Article 16(2) requires a will to be intrinsically in accordance
is donation (hence, by gratuitous title). The Reservista is Mark, who with the national law of the testator, hence should also be in accor-
acquired it from his descendant (son) Pepito by legitime and intestacy dance with US law. However, Alden’s siblings are all US citizens. Inso-
(hence, by operation of law). far as the real properties situated in the Philippines, the prohibition
regarding alien ownership of Philippine land found in the Constitution is
The Reservatario is Princess, a relative of the Prepositus Pepito within applicable. Article 17 of the Civil Code provides that prohibitive laws
the third degree and who belonged to the line of origin (the maternal concerning persons, their acts or property, and those which have for
line). Line of origin is the maternal line because Onofre (the Origin) and their object public order, public policy and good customs shall not be
Pepito (the Prepositus) are maternal half-blood siblings. rendered ineffective by laws or judgments promulgated, or by determi-
nations or conventions agreed upon in a foreign country.
!53
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
property in the name of Alex and Rene is not for the purpose of giving
Bert and Joe, both male and single, lived together as common law the property to them as their inheritance, but for them to administer the
spouses and agreed to raise a son of Bert’s living brother as their same for the benefit of his descendants’ use in pursuit of their educa-
child without legally adopting him. Bert worked while Joe took tion. This, this provision is a legacy for education, which lasts as long
care of their home and the boy. In their 20 years of cohabitation as the legatee/s come of age or until such legatee/s finish their course.
they were able to acquire real estate assets registered in their
names as co-owners. Unfortunately, Bert dies of cardiac arrest, ANOTHER ALTERNATIVE ANSWER:
leaving no will. Bert was survived by his biological siblings, Joe,
and the boy. The provision is not valid. Article 870 of the Civil Code provides that
“the dispositions of the testator declaring all or part of the estate in-
b) What are the successional rights of the boy alienable for more than twenty years are void.” In this case, the provi-
Bert and Joe raised as their son? (2%) ‘15 - Q4b sion “habang panahon” clearly provides for inalienability of the house
for more than twenty years; hence, it is void.
The boy has no successional rights. Since Bert died without a will,
intestate succession shall apply. While the boy is the son of Bert’s THIRD ALTERNATIVE ANSWER:
living brother, and hence is Bert's nephew, he cannot inherit from Bert
as a legal heir since he is excluded by his father under the proximity The provision is valid. The institution of heir in this case in a modal
rule. [Art. 962, Civil Code] Moreover, he cannot invoke the rights of an institution under Article 882 of the Civil Code. In this type of institution,
adopted child to inherit from Bert since the boy was not legally adopt- which is present in the case at bar, the ownership of the thing is
ed. passed on to the heir, expect that there is a mode or change imposed
upon the heir. In a modal institution, the testator states (1) the object of
Crispin died testate and was survived by Alex and Josine, his the institution, (2) the purpose or application of the property left by the
children from his first wife; Rene and Ruby, his Children from his testator, or (3) the charge imposed by the testator upon the heir
second wife; and Allan, bea, and Cheska, his children from his (Rabadilla v. Court of Appeals, G.R. No. 113725, June 29, 2000).
third wife.
Esteban and Martha had four (4) children: Rolando, Jun, Mark,
One important provision in his will reads as follows: and Hector. Rolando had a daughter, Edith, while Mark had a son,
Philip. After the death of Esteban and Martha, their three (3)
“Ang lupa at bahay sa Lungsod ng Maynila ay ililipat at parcels of land were adjudicated to Jun. After the death of Jun,
ilalagay sa pangalan nila Alex at Rene hindi bilang pa- the properties passed to his surviving spouse Anita, and son Ce-
mana ko sa kanila kundi upang pamahalaan at pangala- sar. When Anita died, her share went to her son Cesar. Ten (10)
gaan lamang nila at nang ang sinuman sa aking mga years after, Cesar died intestate without any issue. Peachy, Ani-
anak, sampu ng aking mga apo, at kaapuapuhan ko sa ta’s sister, adjudicated to herself the properties as the only surviv-
habang panahon, ay may tutuluyan kung magnanais na ing heir of Anita and Cesar. Edit and Philip would like to recover
mag-aral sa Maynila o sa kalapit na mga lungsod.” the properties claiming that they should have been reserved by
Peachy in their behalf and must now revert back to them.
Is the provision valid? (4%) ‘14 - Q2
Is the contention of Edith and Philip valid? (4%) ‘14 - Q13
The provision imposing the indivision of the property “habang pana-
hon” is invalid. In Santiago v. Santiago (G.R. No. 179850, August 9, No, their contention is not valid as the property is not subject to reserva
2010), a similar provision appears in the will of the testator. In that troncal. Under Article 891 of the Civil Code, the ascendant who inherits
case, the Court ruled that it is clear that the testator intended the house from his descendant any property which the latter may have acquired
and lot in Manila be transferred in the petitioners’ names for adminis- by gratuitous title from another ascendant, or a brother or sister, is
tration purposes only, and that the property be owned by the heirs in obliged to reserve such property as he may have acquired by opera-
common. However, the same case ruled that the condition set by the tion of law for the benefit of relatives who are within the third degree
decedent on the property’s indivisibility is subject to a statutory limita- and who belong to the line from which said property came. There is no
tion provided by Article 1083 of the Civil Code which states that the reserva troncal here because Anita is not an ascendant or a brother or
period of indivision imposed by a testator shall not exceed twenty sister of Jun. Jun cannot qualify as a prepositus, because the property
years. Although the Civil Code is silent as to the effect of the indivision which he inherited from his ascendant was not inherited by another
of a property for more than twenty years, it would be contrary to public ascendant by operation of law.
policy to sanction co-ownership beyond the period expressly mandated
by the Civil Code. Thus, the provision leaving the administration of the In Mendoza v. Policarpio (G.R. No. 176422, March 20, 2013), the Court
house and lot in Manila to Alex and Rene is valid but the provision ruled that the lineal character of the reservable property is reckoned
imposing the indivision of the property “habang panahon” is invalid as from the ascendant from whom the prepositus received the property by
to the excess beyond twenty years, it being contrary to Article 1083 gratuitous title. In this case, the ownership should be reckoned only
limiting the period of indivision that may be imposed by a testator to from Jun, as he is the ascendant from whom Cesar inherited the prop-
twenty years. erties. Moreover, Article 891 of the Civil Code provides that the person
obliged to reserve the property should be an ascendant. Peachy is not
ALTERNATIVE ANSWER: Cesar’s ascendant but a mere collateral relative.
The provision is valid. Article 944 of the Civil Code provides in part that a) Natividad’s holographic will, which had only one (1)
“a legacy for education lasts until the legatee is of age, or beyond the substantial provision, as first written, named Rosa as
age of majority in order that the legatee may finish some professional, her sole heir. However, when Gregorio presented it for
vocational or general course, provided he pursues his course probate, it already contained an alteration, naming Gre-
diligently.” In this case, the intention of the testator in transferring the gorio, instead of Rosa, as sole heir, but without authen-
!54
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
tication by Natividad’s signature. Rosa opposes the Assuming the will of John and Maria is valid, the testamentary prohibi-
probate alleging such lack of proper authentication. She tion on the division of the London estate shall be valid but only for 20
claims that the unaltered form of the will should be giv- years. Under Articles 1083 and 494 of the NCC, a testamentary dispo-
en effect. Whose claim should be granted? Explain. (5%) sition of the testator cannot forbid the partition of all or part of his es-
‘12 - Q7a tate for a longer period than twenty (20) years.
It depends. If the cancellation of Rosa’s name in the will was done by a) Ricky and Arlene are married. They begot Franco during
the testator himself, Rosa’s claim that the holographic will in its original their marriage. Franco had an illicit relationship with
tenor should be given effect must be denied. The said cancellation has Audrey and out of which, they begot Arnel. Franco pre-
revoked the entire will as nothing remains of the will after the name of deceased Ricky, Arlene and Arnel. Before Ricky died, he
Rosa was cancelled.Such cancellation is valid revocation of the will executed a will which when submitted to probate was
and does not require authentication by the full signature of the testator opposed by Arnel on the ground that he should be given
to be effective. However, if the cancellation of Rosa’s name was not the share of his father, Franco. Is the opposition of Arnel
done by the testator himself, such cancellation shall not be effective correct? Why? (5%) ‘12 - Q8a
and the will in its original tenor shall remain valid. The efficacy of a
holographic will cannot be left to the mercy of unscrupulous third par- No, his opposition is not correct. Arnel cannot inherit from Ricky in
ties. representation of his father Franco. In representation, the representa-
tive must not only be a legal heir of the person he is representing, he
The writing of Gregorio’s name sole heir was ineffective, even though must also be a legal heir of the decedent he seeks to inherit from.
written by the testator himself, because such is an alteration that re-
quires the authentication by the full signature of the testator to be valid While Arnel is a legal heir of Franco, he is not a legal heir of Ricky
and effective. Not having been authenticated, the designation of Gre- because under Article 922 of the NCC, an illegitimate child has no right
gorio as an heir was ineffective. (Kalaw v. Relove, GR No. L-40207, to inherit ab intestato from the legitimate children and relatives of his
September 23, 1984). father or mother. Arnel is disqualified to inherit from Ricky because
Arnel is an illegitimate child of France and Ricky is a legitimate relative
b) John Sagun and Maria Carla Camua, British citizens at of Franco.
birth, acquired Philippine citizenship by naturalization
after their marriage. During their marriage, the couple b) How can RJP distribute his estate by will, if his heirs are
acquired substantial landholdings in London and in JCP, his wife; HBR and RVC, his parents; and an illegit-
Makati. Maria begot three (3) children, Jorge, Luisito, imate child, SGO? ‘12- Q8b
and Joshur. In one of their trips to London, the couple
executed a joint will appointing each other as their heirs A testator may dispose of by will the free portion of his estate. Since
and providing that upon the death of the survivor be- the legitime of JCP is ⅛ of the estate, that of SGO is ¼ of the estate,
tween them, the entire estate would go to Jorge and and that of HBR & RVC is ½ of the hereditary estate under Article 889
Luisito only but the two (2) could not dispose of nor of the NCC, the remaining ⅛ of the estate is the free portion which the
divide the London estate as long as they live. John and testator may dispose by will.
Maria died tragically in the London subway terrorist
attack in 2005. Jorge and Luisito filed a petition for pro- X, a widower, died leaving a will a will that the house and lot
bate of their parents’ will before a Makati Regional Trial where he lived cannot be partitioned for as long as the youngest
Court. Joshur vehemently objected because he was of his four children desires to stay there. As co-heirs and co-own-
ers, the other three may not demand partition at anytime ’10 – Q1b
preterited.
1) Should the will be admitted to probate? Ex- The other three co-heirs may not at anytime demand the partition
plain. (2%) ‘12 - Q7b1 of the house and lot since it was expressly provided by the decedent in
his will that the same cannot be partitioned while his youngest child
No, the will should not be admitted to probate. Since the couple are desires to stay there.
both Filipino citizens, Articles 818 and 819 of the NCC shall apply. Said Article 1083 of the New Civil Code allows a decedent to prohibit,
Articles prohibit the execution of joint wills and make them void, even by will, the partition of a property in his estate for a period no longer 20
years no matter what the reason may be. Hence, the three co-heirs
though authorized by the laws of the country where they were execut-
cannot demand partition at anytime but only after 20 years from the
ed. death of their father.
Even if the deceased did not leave a will, if the house and lot
2) Are the testamentary dispositions valid? Ex- constituted their family home, Article 159 of the Family Code prohibits
plain. (2%) ‘12 - Q7b2 its partition for a period of ten (10) years, or for as long as there is
minor beneficiary living in the family home.
Since the Joint will is void, all the testamentary dispositions written
A executed a 5-page notarial will before a notary public and three
therein are also void. However, if the will is valid , the institutions of
witnesses. One of the witnesses was B, the father of one of the
heirs shall be annulled because Joshur was preterited. He was preter- legatees to the will. Effect of B being a witness to the will. ’10 –
ited because he will receive nothing from the will, will receive nothing Q2d
by intestacy, and the facts do not show that he received anything as an
advance on his inheritance. He was totally excluded from the inheri- The legacy given to B’s child is not valid.
tance of his parents. The validity of the will is not affected by the legacy in favor of the
son of an attesting witness to the will. However, the said legacy is void
under Article 823, NCC.
3) Is the testamentary prohibition against the
division of the London estate valid? Explain. Spouses Peter and Paula had three (3) children. Paula later ob-
(1%) ‘12 - Q7b3 tained a judgment of nullity of marriage. Peter later re-married and
!55
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
had two (2) children by his second wife Marie. Peter later died the descending direct line excludes the ascending, the nearer excludes
intestate. the more remote, the nephews and nieces exclude the uncles and the
1. Who are Peter’s legal heirs and how should his estate aunts, and half blood relatives inherit half the share of full-blood rela-
be divided among them. tives.
The legal heirs are his children by the first wife and second mar- Dr. Lopez, a 70-year old widower, and his son Roberto both died
riages and his surviving second wife. in a fire that gutted their home while they were sleeping in their
Their shares in the estate of Peter will depend, however, on the air-conditioned rooms. Roberto’s wife, Marilyn, and their two chil-
cause of the nullity of the first marriage. If the nullity of the first mar- dren were spared because they were in the province at the time.
riage was psychological incapacity of one or both spouses, the three Dr. Lopez left an estate worth P20M and a life insurance policy in
children of that void marriage are legitimate and all of the legal heirs the amount of P1M with his 3 children – one of whom is Roberto –
shall share the estate in equal shares. as beneficiaries. Marilyn is now claiming for herself and her chil-
If the judgment of nullity was for other causes, the three children dren her husband’s share in the estate left by Dr. Lopez, and her
are illegitimate and the estate shall be distributed such that an illegiti- husband’s share in the proceeds of Dr. Lopez’s life insurance
mate child of the first marriage shall receive half the share of a legiti- policy. Rule on the validity of Marilyn’s claims. ’09 – Q2
mate child of the second marriage, and the second wife will inherit
equal to that of a legitimate child. In no case may the two legitimate As to the Estate of Dr. Lopez:
children of the second marriage a share less than one-half of the es- Marilyn is not entitled to share in the estate of Dr. Lopez. For
tate which is their legitime. When the estate is not sufficient to pay all purposes of succession, Dr. Lopez and Roberto are presumed to have
the legitime of the compulsory heirs, the legitime of the spouse is pre- died at the same time, there being no evidence to prove otherwise, and
ferred and illegitimate children will suffer the reduction. there shall be no transmission of rights from one to the other (Article
43, NCC.) Hence, Roberto inherited nothing from his father that Mari-
Computation: lyn would in turn inherit from Roberto. The children of Roberto, howev-
A. If the ground of nullity is psychological incapacity: er, will succeed their grandfather, Dr. Lopez, in representation of their
father Roberto and together will receive 1/3 of the estate of Dr. Lopez
3 children by first marriage 1/6th of the estate for each since their father Roberto was on the three children of Dr. Lopez Mari-
lyn cannot represent her husband Roberto because the right is not
2 children by second 1/6th of the estate for each given by law to a surviving spouse.
marriage As to the proceeds of the life of Dr. Lopez:
Since succession is not involved as regards the insurance con-
Surviving second spouse 1/6th of the estate tract, the provisions of the Rules of Court [Section 3(jj)(5), Rule 131] on
survivorship will apply. Under the Rules, Dr. Lopez, who was 70 years
B. old, is presumed to have died ahead of Roberto, who is presumably
B. between the ages of 15 and 60. Having survived the insured, Roberto’s
right as a beneficiary became vested upon the death of Dr. Lopez.
B. If the ground of nullity is not psychological incapacity: When Roberto died after Dr. Lopez, his right to receive the insurance
proceeds became part of his hereditary estate, which in turn was inher-
2 legitimate children of 1/4th of the estate for each ited in equal shares by his legal heirs, namely his spouse and children.
second marriage Therefore, Roberto’s children and his spouse are entitled to Roberto’s
one-third share in the insurance proceeds.
Surviving second spouse 1/4th of the estate
On December 1, 2000, Dr. Juanito Fuentes executed a holographic
3 illegitimate children of first 1/12th of the estate for each will, wherein he gave nothing to his recognized illegitimate son,
marriage Jay. Dr. Fuentes left for the US, passed the NY medical licensure
exams, resided therein, and became a naturalized American citi-
C. zen. He died in NY in 2007. The laws of NY do not recognize holo-
C. graphic wills or compulsory heirs.
1. Can the holographic will of Dr. Fuentes be admitted to
Note: The legitime of an illegitimate child supposed to be ½ the probate in the Philippines?
legitime of a legitimate child of 1/8th of the estate. But the estate will not
be sufficient to pay the said legitimes of the 3 illegitimate children, YES, the holographic will of Dr. Fuentes may be admitted to pro-
because only ¼ of the estate is left after paying the legitime of the bate in the Philippines because there is no public policy violated by
surviving spouse which is preferred. Hence, the remaining ¼ of the such probate. The only issue at probate is the due execution of the will
estate shall be divided among the 3 illegitimate children. which includes the formal validity of the will. As regards formal validity,
the only issue the court will resolve at probate is whether or not the will
2. Effect of the receipt by Peter’s 3 children by his first was executed in accordance with the form prescribed by the law ob-
marriage of their presumptive legitimes on their right to served by the testator in the execution of his will. For purposes of pro-
inherit from Peter. ’10 – Q11 bate in the Philippines, an alien testator may observe the law of the
place where the will was executed (Article 17, NCC), or the formalities
In the distribution of Peter’s estate, one-half of the presumptive of the law of the place where he resides, or according to the formalities
legitime received by the three children of the first marriage shall be of the law of his own country, or in accordance with the Philippine Civil
collated to Peter’s estate and shall be imputed as an advance on their Code (Article 816, NCC.) Since Dr. Fuentes executed his will in accor-
respective inheritance from Peter. Only half of the presumptive legitime dance with Philippine law, the Philippine court will apply the New Civil
is collated to the estate because the other half shall be collated to the Code in determining the formal validity of the holographic will. The
estate of his first wife. subsequent change in the citizenship of Dr. Fuentes did not affect the
law governing the validity of the will. Under the New Civil Code, which
The statement that “In reserva troncal, all reservatarios (re- was the law used by Dr. Fuentes, the law in force at the time of execu-
servees) inherit and in equal shares regardless of their proximity tion of the will shall govern the formal validity of the will (Article 795,
in degree to the prepositus” is FALSE. ’09 – Q1b NCC.)
FALSE. Not all of the relatives within the third degree will inherit 2. Assuming that the will is probated in the Philippines,
as reservatario, and not all of those who are entitled to inherit will in- can Jay validly insist that he be given his legitime? ’09 –
herit in equal shares. The applicable laws of intestate succession will Q6
determine who among the relatives will inherit as reservatarios and
what shares will they take, i.e., the direct line excludes that collateral,
!56
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
NO, Jay cannot insist because under New York law he is not a house and lot, he had a P1 million account deposited with ABC
compulsory heir entitled to a legitime. Bank.
The national law of the testator determines who his heirs are, the 1. Was Erica preterited?
order they succeed, how much their successional rights are, and
whether or not a testamentary disposition in his will is valid (Article 16, Erica cannot be preterited. Article 854 of the Civil Code provides
NCC.) Since Dr. Fuentes was a US citizen, the laws of New York de- that only compulsory heirs in the direct line can be preterited.
termines who his heirs are. And since New York law does not recog-
nize the concept of compulsory heirs, Jay is not a compulsory heir of 2. What other defects of the will, if any, can cause denial of
Dr. Fuentes entitled to a legitime. the probate?
Ramon died intestate, leaving a net estate of P10M. Determine The other defects of the will that can cause its denial are as fol-
how much each heir will receive from the estate: lows: (a) Atty. Zorba, the one who prepared the will was one of the
1. If Ramon is survived by his wife, 3 full-blood brothers, 2 three witnesses, violating the three-witness rule; (b) no marginal signa-
half-brothers, and one nephew (the son of a deceased ture at the last page; (c) the attestation did not state the number of
half-brother)? pages upon which the will was written; and (d) no pagination appearing
correlatively in letters on the upper part of the three pages (Azuela v.
Having died intestate, the estate of Ramon shall be inherited by Court of Appeals, 487 SCRA 119 [2006] and cited cases therein; Arti-
his wife and his full and half-blood siblings or their respective represen- cles 805 and 806, Civil Code.)
tatives.
In intestacy, if the wife concurs with no one but the siblings of the 3. Was the disinheritance valid?
deceased, all of them are the intestate heirs of the deceased husband.
The wife will receive half of the intestate estate, while the siblings or YES, the disinheritance was valid. Article 919, par. 7 of the Civil
their respective representatives will inherit the other half to be divided Code provides that “when a child or descendant leads a dishonorable
among them equally. If some siblings are of the full-blood and the other or disgraceful life, like running off with a married man, there is sufficient
of the half-blood, a half-blood sibling will receive half of the share of a cause for disinheritance.”
full-blood sibling.
1. The wife of Ramon will, therefore, receive one-half of the 4. How should the house and lot, and the cash be dis-
estate or the amount of P5,000,000.00; tributed? ’08 – Q10
2. The three (3) full-blood brothers, will, therefore receive
P1,000,000.00 each; Since the probate of the will cannot be allowed, the rules on intes-
3. The nephew will receive P1,000,000.00 by right of represen- tate succession apply. Under Article 996 of the Civil Code, if a widow or
tation; widower and legitimate children or descendants are left, the surviving
4. The two (2) half-brothers will receive P500,000.00 each. spouse has the same share as of the children. Thus, co-ownership
over the house and lot will be created among wife Erica and her chil-
2. If Ramon is survived by his wife, a half-sister, and 3 dren Bernice, Connie and Dora. Similarly, the amount of P1 million will
nephews (sons of a deceased full-blood brother)? ’09 – be equally divided among them.
Q7
John and Paula, British citizens at birth, acquired Philippine citi-
The wife will receive one-half of the estate or P5,000,000.00. The zenship by naturalization after their marriage. During their mar-
other half will be inherited by (1) full-blood brother, represented by his riage, the couple acquired substantial landholdings in London
3 children, and (2) the half-sister. They will divide that other half be- and in Makati. Paula bore John three children, Peter, Paul and
tween them such that the share of the half-sister is just half the share Mary. In one of their trips to London, the couple executed a joint
of the full-blood brother. The share of the full-blood brother shall in turn will appointing each other as their heirs and providing that upon
be inherited by the three (3) nephews in equal shares by right of repre- the death of the survivor between the entire estate would go to
sentation. Peter and Paul only but the two could not dispose of nor divide
Therefore, the three (3) nephews will receive P1,111,111.10 each the London estate as long as they live. John and Paul died tragi-
and the half-sister will receive the sum of P1,666,666.60. cally in the London Subway terrorist attack in 2005. Peter and
Paul filed a petition for probate of their parent’s will before a
The statement that “a person can dispose of his corpse through Makati RTC.
an act inter vivos” is FALSE. ’09 – Q11e 1. Should the will be admitted to probate?
A person cannot dispose of this corpse through an act inter vivos, NO. The will cannot be admitted to probate because a joint will is
i.e., an act to take effect during his lifetime. Before his death there is no expressly prohibited under Article 818 of the Civil Code. This provision
corpse to dispose. But he is allowed to do so through an act mortis applies because John and Paul became Filipino citizens after their
causa, i.e., an act to take effect upon his death. marriage.
Arthur executed which contained only: (a) a provision disinherit- 2. Are the testamentary dispositions valid?
ing his daughter Bernice for running off with a married man, and
(b) a provision disposing of his share in the family house and lot NO. The testamentary dispositions are not valid because: (a)
in favor of his other children Connie and Dora. He did not make omission of Mary, a legitimate child, it tantamount to preterition which
any provisions in favor of wife Erica, because as the will stated, shall annul the institution of Peter and Paul as heirs (Article 854, Civil
she would anyway get ½ of the house and lot as her conjugal Code); and (b) the disposition that Peter and Paul could not dispose of
share. The will was very brief and straightforward and both the nor divide the London estate for more than 20 years is void (Article
above provisions were contained in page 1, which Arthur and his 870, Civil Code.)
instrumental witnesses, signed at the bottom. Page 2 contained
the attestation clause and the signatures, at the bottom thereof, of 3. Is the testamentary prohibition against the division of
the three instrumental witnesses, which included Lambert, the the London estate valid? ’08 – Q11
driver of Arthur; Yoly, the family cook; and Atty. Zorba, the lawyer
who prepared the will. There was a 3rd page, but this only con- NO. The testamentary prohibition against the division of the Lon-
tained the notarial acknowledgment. The attestation clause stated don estate is void (Article 870, Civil Code.) A testator, however, may
that the will was signed on the same occasion by Arthur and his prohibit partition for a period which shall not exceed twenty years (Arti-
instrumental witnesses who all signed in the presence of each cle 870 in relation to Article 494, par. 3, Civil Code.)
other, and the notary public who notarized the will. There were no
marginal signatures or pagination appearing on any of the 3 Ernesto, an OFW, was coming home to the Philippines, was com-
pages. Upon his death, it was discovered that apart from the ing home to the Philippines after working for so many years in the
!57
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Middle East. He had saved P100,000 in his home country. On his by thumb mark and said that she can sign her full name later.
flight home, Ernesto had a fatal heart attack. He left behind his While the will was being signed, Roberta experienced a stomach
widowed mother, his common-law wife and their twin sons. He left ache and kept going to the restroom for long periods of time.
no will, no debts, no other relatives and other properties except Hannah, while waiting for her time to sign the will, was reading
the money in his savings account. Who are the heirs entitled to the 7th Harry Potter books on the couch, beside the table on which
inherit from him and how much should each receive? ’08 – Q12 everyone was signing. Benjamin, aside from witnessing the will,
also offered to notarize it. A week later, Clara was run over by a
The mother and the twin sons are entitled to inherit from Ernesto. drunk driver while crossing the street in Greenbelt. May the will of
Article 991 of the Civil Code, provides that if legitimate ascendants are Clara be admitted to probate? ’07 – Q6
left, the twin sons shall divide the inheritance with the, taking one-half
of the estate. Thus, the widowed mother gets P50,000 while the twin Probate should be denied.
sons shall receive P25,000 each. The common-law wife cannot inherit The requirement that the testator and at least three (3) witnesses
from him because when the law speaks of “widow or widower” as a must all sign in the “presence” of one another was not complied with.
compulsory heir, the law refers to a legitimate spouse (Article 887, par. Benjamin who notarized the will is disqualified as one of the three wit-
3, Civil Code.) nesses (Cruz v. Villasor, 54 SCRA 231 [1973].) The testatrix and the
other witnesses signed the will not in the presence of Roberta because
Raymond, single, named his sister Ruffa in his will as a devisee of she was in the restroom for extended periods of time. Inside the re-
a parcel of land which he owned. The will imposed upon Ruffa the stroom, Roberta could not have possibly seen the testatrix and the
obligation of preserving the land and transferring it, upon her other witnesses sign the will by merely casting her eyes in the proper
death, to her illegitimate daughter Scarlet who was then only one direction (Jaboneta v. Gustilo, 5 Phil. 541 [1906]; Nera v. Rimando, 18
year old. Raymond later died, leaving behind his widowed mother, Phil. 450 [1911].) Therefore, the testatrix signed her will in the pres-
Ruffa and Scarlet. ence of only two witnesses, and only two witnesses signed the will in
1. Is the condition imposed upon Ruffa to preserve the presence of the testatrix and of one another.
property and to transmit it upon her death to Scarlet, The testatrix and other witnesses signed the will in the presence
valid? of Hannah, because she was aware of her function and role as witness
and was in a position to see the testatrix and other witness sign by
YES, the condition imposed upon Ruffa to preserve the property merely casting her eyes in the proper direction.
and to transmit it upon her death is valid because it is tantamount to It is to be noted, however that a thumbmark intended by the testa-
fideicommissary substitution under Article 863 of the Civil Code. tor to be his signature in executing his last will and testament is valid
(Payad v. Tolentino, 63 Phil. 395 [1936]; Matias v. Salud, 104 Phil.
2. If Scarlet predeceases Ruffa, who inherits the property? 1046 [1958].) The problem, however, states that Clara “said that she
can sign her full name later”; hence, she did not consider her thumb-
Ruffa will inherit the property as Scarlet’s heir. Scarlet acquires a mark as her “complete” signature, and intended further action on her
right to the succession from the time of Raymond’s death, even though part.
she should predecease Ruffa (Article 866, Civil Code.)
For purposes of this question, assume all formalities and pro-
3. If Ruffa predeceases Raymond, can Scarlet inherit the cedural requirements have been complied with.
property directly from Raymond? ’08 – Q13 In 1970, Ramon and Dessa got married. Prior to their marriage,
Ramon had a child, Anna. In 1971 and 1972, Ramon and Dessa
If Ruffa predeceases Raymond, Raymond’s widowed mother will legally adopted Cherry and Michelle respectively. In 1973, Dessa
be entitled to the inheritance. Scarlet, an illegitimate child cannot inher- died while giving birth to Larry. Anna had a child, Lia. Anna never
it the property by intestate succession from Raymond who is a legiti- married. Cherry, on the other hand, legally adopted Shelly. Larry
mate relative of Ruffa (Article 992, Civil Code.) Moreover, Scarlet is not had twins, Hans and Gretel, with his girlfriend, Fiona. In 2005,
a compulsory heir of Raymond, hence she can inherit only by testa- Anna, Larry and Cherry died in a car accident. In 2007, Ramon
mentary succession. Since Raymond executed a will in the case at bar, died. Who may inherit from Ramon and who may not? ’07 – Q10
Scarlet may inherit from Raymond.
The following may inherit from Ramon:
Stevie was born blind. He went to school for the blind and learned 1. Michelle, as an adopted child of Ramon, will inherit as a
to read in Braille language. He speaks English fluently. Can he: legitimate child of Ramon. As an adopted child, Michelle has
1. Make a will? all the rights of a legitimate child (Section 18, Domestic
Adoption Law.)
Assuming that he is of legal age (Article 797, Civil Code) and of 2. Lia will inherit in representation of Anna. Although Lia is an
sound mind at the time of the execution of the will (Article 798, Civil illegitimate child, she is not barred by Article 992, because
Code), Stevie, a blind person can make a notarial will, subject to com- her mother Anna is herself illegitimate. She will represent
pliance with the “two-reading rule” (Article 808, Civil Code) and the Anna as regards Anna’s legitime under Article 902, NCC and
provisions of Articles 804, 805 and 806 of the Civil Code. as regards Anna’s intestate share under Article 990, NCC.
The following may not inherit from Ramon:
2. Act as a witness to a will? 1. Shelly, being an adopted child, cannot represent Cherry. This
is because adoption creates a personal legal relation only
Stevie cannot be a witness to a will. Article 820 of the Civil Code between the adopter and the adopted. The law on represen-
provides that “any person of sound mind and of the age of eighteen tation requires the representative to be a legal heir of the
years or more, and not blind, deaf or dumb, and able to read and write, person he is representing and also of the person from whom
may be a witness to the execution of a will.” the person being represented was supposed to inherit. While
Shelly is a legal heir of Cherry, Shelly is not a legal heir of
3. In either of the above instances, must the will be read to Ramon. Adoption created a purely personal legal relation
him? ’08 – Q14 only between Cherry and Shelly.
2. Hans and Gretel are barred from inheriting from Ramon
If Stevie makes a will, the will must be read to him twice, once by under Article 992 of the Civil Code. Being illegitimate chil-
the subscribing witnesses, and again, by the notary public before dren, they cannot inherit ab intestato from the legitimate
whom the will is acknowledged (Article 808, Civil Code.) relatives of their father or mother. Since Ramon is a legiti-
mate relative of Larry, the illegitimate twin children of Larry
Clara, thinking of her mortality, drafted a will and asked Roberta, are barred from inheriting ab intestato from Ramon.
Hannah, Luisa and Benjamin to be witnesses. During the day of
the signing of her will, Clara fell down the stairs and broke her Alternative Answer:
arms. Coming from the hospital, Clara insisted on signing her will
!58
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
The problem expressly mentioned the dates of the adoption of Only Jayson will inherit from his father Don. In intestate succes-
Cherry and Michelle as 1971 and 1972. During that time, adoption was sion, the direct line excludes the collateral line. But among those in the
governed by the New Civil Code. Under the New Civil Code, husband direct line, the descending excludes the ascending. Hence, the father
and wife were allowed to adopt separately or not jointly with the other Juan and Jayson, who are in the direct line, exclude the brother Ron-
spouse. And since the problem does not specifically and categorically nie and the sister Michelle who are both in the collateral line. However,
state, it is possible to construe the use of the word “respectively” in the the son Jayson, who is in the descending line, excludes the father
problem as indicative of the situation that Cherry was adopted by Ra- Juan who is in the ascending line.
mon alone and Michelle was adopted by Dessa alone. In such a case
of separate adoption, the alternative answer to the problem will be as Emil, the testator had 3 legitimate children. Tom, Henry, Warlito; a
follows: wife named Adette; parents named Pepe and Pilar; an illegitimate
Only Lia will inherit from Ramon in representation of Ramon’s child Ramon; brother, Mark; and a sister, Nanette. Since his wife
illegitimate daughter Anna. Although Lia is an illegitimate child, she is Adette is well-off, he wants to leave to his illegitimate child as
not barred from inheriting from Ramon because her mother Anna is much of his estate as he can legally do. His estate has an aggre-
herself illegitimate. gate amount of P1.2 million and all the above relatives are still
Shelly cannot inherit in representation of Cherry because Shelly is living. Emil now comes to you for advice in making a will. How
just an adopted child of Cherry. In representation, the representative will you distribute his estate without violating the law on testa-
must not only be a legal heir of the person he is representing but also mentary succession? ’05 – Q3
of the decedent from whom the represented person is supposed to
inherit. In the case of Shelly, while she is a legal heir of Cherry by
Tom P200,000
virtue of her adoption, she is not a legal heir of Ramon. Adoption cre-
(legitime)
ates a personal legal relation only between the adopting parent and the
adopted child (Teotico v. Del Val, 13 SCRA 406 [1965].)
Henry P200,000
Michelle cannot inherit from Ramon, because she was adopted
(legitime)
not by Ramon but by Dessa. In the eyes of the law, she is not related
to Ramon at all. Hence, she is not a legal heir of Ramon.
Hans and Gretel are not entitled to inherit from Ramon, because Warlito P200,000
they are barred by Article 992, NCC. Being illegitimate children of Lar- (legitime)
ry, they cannot inherit from the legitimate relatives of their father Larry.
Ramon is a legitimate relative of Larry, the illegitimate father of the Adette P200,000
twins. (legitime)
Don died after executing a Last Will and Testament leaving his Ramon P400,000
estate valued at P12 million to his common-law wife Rochelle. He (P100,000 as legitime,
is survived by his brother Ronnie and his half-sister Michelle. P300,000 as free portion)
1. Was Don’s testamentary disposition of his estate in ac-
cordance the laws on succession? P1,200,000
!59
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
For each illegitimate child P166,666.66
In his lifetime, a Pakistani citizen, ADIL, married 3 times under
Pakistani law. When he died an old widower, he left behind 6 chil-
dren, 2 sisters, 3 homes and an estate worth at least P30 million
in the Philippines. He was born in Lahore but last resided in Cebu (Article 983, New Civil Code; Article 176, Family Code.)
City, where he had a mansion and where 2 of his young children
now live and work. 2 of his oldest children are farmers in Sulu, Felipe and Felisa, both Filipino citizens, were married in Bulacan
while the 2 middle-aged children are employees in Zamboanga in June 1, 1950. In 1960, Felipe went to the US, becoming a US
City. Finding that the deceased left no will, the youngest son citizen in 1975. In 1980, he obtained a divorce from Felisa, who
wanted to file intestate proceedings before the RTC of Cebu City. was duly notified of the proceedings. The divorce became final
2 other siblings objected, arguing that it should be in Jolo before under California law. In 1982, Felipe married Segundina, a Filipino
a Shari’a court since his lands are in Sulu. But Adil’s sisters in citizen. In 2001, Felipe, then domiciled in LA, California, died,
Pakistan want the proceedings held in Lahore before a Pakistani leaving 1 child by Felisa, and another 1 by Segundina. He left a
court. will which was executed in Manila, under which he left his estate
Which court has jurisdiction and is the proper venue for the intes- to Segundina and his 2 children and nothing to Felisa. Segundina
tate proceedings? The law of which country shall govern succes- files a petition for the probate of Felipe’s will. Felisa questions the
sion to his estate? ’04 – Q10b intrinsic validity of the will, arguing that her marriage to Felipe
subsisted despite the divorce decree obtained by Felipe because
In so far as the properties of the property located in the Philip- said divorce is not recognized in the Philippines. For this reason,
pines are concerned, they are governed by Philippine law (Article 16, she claims that the properties left by Felipe are conjugal proper-
Civil Code.) Under Philippine law, the proper venue for the settlement ties and that Segundina has no successional rights.
of the estate is the domicile of the decedent at the time of his death. 1. What law governs the formalities of the will?
Since the decedent last resided in Cebu City, that is the proper venue
for the intestate settlement of his estate. The foreigner who executes his will in the Philippines may ob-
However, the successional rights to the estate of ADIL are gov- serve the formalities prescribed in:
erned by Pakistani law, his national law, under Article 16 of the Civil a. The law of the country of which he is a citizen under Article
Code. 817 of the Civil Code; or
b. The law of the Philippines being the law of the place of exe-
Mr. Reyes executed a will completely valid as to form. A week cution under Article 17 of the Civil Code.
later, however, he executed another will which expressly revoked
his 1st will, following which he tore his 1st will to pieces. Upon the 2. Will Philippine law govern the intrinsic validity of the
death of Mr. Reyes, his 2nd will was presented for probate by his will? ’02 – Q3b & 3c
heirs, but it was denied probate due to formal defects. Assuming
that the copy of the 1st will is available; may it now be admitted to Philippine law will not govern the intrinsic validity of the will. Article
probate and given effect? ’03 – Q11 16 of the Civil Code provides that the intrinsic validity of testamentary
provisions shall be governed by the national law of the person whose
YES, the first will may be admitted to probate and given effect. succession is under consideration. California law will govern the intrin-
When the testator tore the first will, he was under the mistaken sic validity of the will.
belief that the second will was perfectly valid and he would not have
destroyed the first will had he known that the second will is not valid. By virtue of a Codicil appended to his will, Theodore devised to
The revocation by destruction therefore is dependent on the validity of Divino a tract of sugar land, with the obligation on part of Divino
the second will. Since it turned out that the second will was invalid, the or his heirs to deliver to Bettina a specified volume of sugar per
tearing of the first will did not produce the effect of revocation. This is harvest during Bettina’s lifetime. It is also stated that in the Codi-
known as the doctrine of dependent relative revocation (Molo v. Molo, cil that in the event that obligation is not fulfilled, Bettina should
90 Phil. 37 [1951].) immediately seize the property or Divino or his heirs and turn it
over to Theodore’s compulsory heirs. Divino failed to fulfill the
Luis was survived by 2 legitimate children, 2 illegitimate children, obligation under the Codicil. Bettina brings suit against Divino for
his parents, and 2 brothers. He left an estate of P1 million. the reversion of the tract of land.
1. Who are the compulsory heirs of Luis, how much is the 1. Distinguish between modal institution and substitution
legitime of each, and how much is the free portion of his of heirs.
estate, if any?
A modal institution is the institution of an heir made for a certain
The compulsory heirs are the two legitimate children and two purpose or cause (Articles 871 and 882, NCC.)
illegitimate children. The parents are excluded by the legitimate chil- Substitution is the appointment of another heir so that he may
dren, while the brothers are not compulsory heirs at all. enter into the inheritance in default of the heir originally instituted (Arti-
Their legitimes are: cle 857, NCC.)
(a) The legitime of the two (2) legitimate children is one-half (½)
of the estate (P500,000) to be divided between them equally, 2. Distinguish between simple and fideicommissary substi-
or P250,000 each; tution of heirs.
(b) The legitime of each illegitimate child is one-half (½) of each
legitimate child or P125,000. In a simple substitution of heirs, the testator designates one or
Since the total legitimes of the compulsory heirs is P750,000, the more persons to substitute the heirs instituted in case such heir or
balance of P250,000 is the free portion. heirs should die before him, or should not wish or should be incapaci-
tated to accept the inheritance (Article 859, NCC.)
2. Suppose Luis, in the preceding question, died intestate. In a fideicommissary substitution, the testator institutes a first heir
Who are his intestate heirs, and how much is the share and charges him to preserve and transmit the whole or part of the in-
of each in his estate? ’03 – Q12 heritance to a second heir (Article 863, NCC.)
In a simple substitution, only one heir inherits. In a fideicommis-
The intestate heirs are the two (2) legitimate children and the two sary substitution, both the first and second heirs inherit.
(2) illegitimate children. In intestacy, the estate of the decedent is di-
vided among the legitimate and illegitimate children such that the share 3. Does Bettina have a cause of action against Divino? ’02
of each illegitimate child is one-half the share of each legitimate child. – Q8
Their shares are:
Bettina has a cause of action against Divino. This is a case of a
For each legitimate child P333,333.33
testamentary disposition subject to a mode and the will itself provides
!60
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
for the consequence if the mode is not complied with. To enforce the driver Ernie and 4) institutes his son Baldo as his sole heir. How
mode, the will itself gives Bettina the right to compel the return of the will you distribute his estate of P1,000,000? ’00 – Q4
property to the heirs of Theodore (Rabadilla v. Coscoluella, 334 SCRA
522 [2000].) The disinheritance of Wilma was ineffective because the ground
relied upon by the testator does not constitute maltreatment under
Alex was born a Filipino but was a naturalized Canadian citizen at Article 919(6) of the New Civil Code. Hence, the testamentary provi-
the time of his death on December 25, 1998. He left behind a last sions in the will shall be annulled but only to the extent that her legitime
will and testament in which he bequeathed all his properties, real was impaired.
and personal, in the Philippines to his acknowledged illegitimate The total omission of Elvira does not constitute preterition be-
Filipina daughter and nothing to his two legitimate Filipino sons. cause she is not a compulsory heir in the direct line. Only compulsory
The sons sought the annulment of the last will and testament on heirs in the direct line may be the subject of preterition. Not having
the ground that it deprived them of their legitimes but the daugh- been preterited, she will be entitled only to her legitime.
ter was able to prove that there were no compulsory heirs or legit- The legacy in favor of Rosa is void under Article 1028 for being in
imes under Canadian law. Who should prevail? '01 – Q1 consideration of her adulterous relation with the testator. She is, there-
fore, disqualified to receive the legacy of 100,000 pesos. The legacy of
The daughter should prevail because Article 16 of the New Civil 50,000 pesos in favor of Ernie is not inofficious not having exceeded
Code provides that intestate and testamentary succession shall be the free portion. Hence, he shall be entitled to receive it.
governed by the national law of the person whose succession is under The institution of Baldo, which applies only to the free portion,
consideration. shall be respected. In sum, the estate of Lamberto will be distributed
as follows:
Because her eldest son Juan had been pestering her for capital to
Baldo 450,000
start a business, Josefa gave him P100,000. 5 years later, Josefa
died, leaving a last will and testament in which she instituted only
Wilma 250,000
her 4 younger children as her sole heirs. At the time of her death,
her only properly left was P900,000.00 in a bank. Juan opposed
the will on the ground of preterition. How should Josefa's estate Elvira 250,000
be divided among her heirs? ’01 – Q6
Ernie 50,000
There was no preterition of the oldest son because the testatrix
donated 100,000 pesos to him. This donation is considered an ad- 1,000,000
vance on the son's inheritance. There being no preterition, the institu-
tions in the will shall be respected but the legitime of the oldest son has
to be completed if he received less.
After collating the donation of P100.000 to the remaining property
of P900,000, the estate of the testatrix is P1,000,000. Of this amount, Eugenio died without issue, leaving several parcels of land in
one-half or P500,000, is the legitime of the legitimate children and it Bataan. He was survived by Antonio, his legitimate brother; Mar-
follows that the legitime of one legitimate child is P100,000. The legit- tina, the only daughter of his predeceased sister Mercedes; and 5
ime, therefore, of the oldest son is P100,000. However, since the dona- legitimate children of Joaquin, another predeceased brother.
tion given him was P100,000, he has already received in full his legit- Shortly after Eugenio's death, Antonio also died, leaving 3 legiti-
ime and he will not receive anything anymore from the decedent. The mate children. Subsequently, Martina, the children of Joaquin and
remaining P900,000, therefore, shall go to the four younger children by the children of Antonio executed an EJS of the estate of Eugenio,
institution in the will, to be divided equally among them. Each will re- dividing it among themselves. The succeeding year, a petition to
ceive P225,000. annul the EJS was filed by Antero, an illegitimate son of Antonio,
who claims he is entitled to share in the estate of Eugenio. The
Alternative Answer: defendants filed a MTD on the ground that Antero is barred by
Article 992 of the Civil Code from inheriting from the legitimate
Assuming that the donation is valid as to form and substance, brother of his father. How will you resolve the motion? ’00 – Q11
Juan cannot invoke preterition because he actually had received a
donation inter vivos from the testatrix (III Tolentino 188, 1992 ed.). He The motion to dismiss should be granted. Article 992 does not
would only have a right to a completion of his legitime under Article apply. Antero is not claiming any inheritance from Eugenio. He is claim-
906 of the Civil Code. The estate should be divided equally among the ing his share in the inheritance of his father consisting of his father's
five children who will each receive P225,000 because the total heredi- share in the inheritance of Eugenio (Dela Merced v. Dela Merced, 303
tary estate, after collating the donation to Juan (Article 1061, CC), SCRA 683 [1999].)
would be P1 million. In the actual distribution of the net estate, Juan
gets nothing while his siblings will get P225,000 each. Mr. and Mrs. Cruz, who are childless, met a serious motor vehicle
accident with Mr. Cruz at the wheel and Mrs. Cruz seated beside
Manuel, a Filipino, and his American wife Eleanor, executed a him, resulting in the instant death of Mr. Cruz. Mrs. Cruz was still
Joint Will in Boston, Massachusetts when they were residing in alive when help came but she also died on the way to the hospi-
said city. The law of Massachusetts allows the execution of joint tal. The couple acquired properties worth One Million (P1,000,000)
wills. Shortly thereafter, Eleanor died. Can the said Will be probat- Pesos during their marriage, which are being claimed by the par-
ed in the Philippines for the settlement of her estate? ’00 – Q3a ents of both spouses in equal shares.
1. Is the claim of both sets of parents valid?
YES, the will may be probated in the Philippines insofar as the
estate of Eleanor is concerned. While the Civil Code prohibits the exe- NO, the claim of both parents is not valid. When Mr. Cruz died, he
cution of Joint wills here and abroad, such prohibition applies only to was succeeded by his wife and his parents as his intestate heirs who
Filipinos. Hence, the joint will which is valid where executed is valid in will share his estate equally. His estate was 0.5 Million pesos which is
the Philippines but only with respect to Eleanor. Under Article 819, it is his half share in the absolute community amounting to 1 Million Pesos.
void with respect to Manuel whose joint will remains void in the Philip- His wife, will, therefore, inherit O.25 Million Pesos and his parents will
pines despite being valid where executed. inherit 0.25 Million Pesos.
When Mrs. Cruz died, she was succeeded by her parents as her
In his last will and testament, Lamberto 1) disinherits his daughter intestate heirs. They will inherit all of her estate consisting of her 0.5
Wilma because "she is disrespectful towards me and raises her Million half share in the absolute community and her 0.25 Million inheri-
voice talking to me", 2) omits entirely his spouse Elvira, 3) leaves tance from her husband, or a total of 0.750 Million Pesos.
a legacy of P100,000 to his mistress Rosa and P50,000.00 to his In sum, the parents of Mr. Cruz will inherit 250,000 Pesos while
the parents of Mrs. Cruz will inherit 750,000 Pesos.
!61
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
When Mr. Luna died, his heirs were his wife and the unborn child.
2. Suppose in the preceding question, both Mr. and Mrs. The unborn child inherited because the inheritance was favorable to it
Cruz were already dead when help came, so that nobody and it was born alive later though it lived only for five hours. Mrs. Luna
could say who died ahead of the other, would your an- inherited half of the 10 Million estate while the unborn child inherited
swer be the same to the question as to who are entitled the other half. When the child died, it was survived by its mother, Mrs.
to the properties of the deceased couple? ’99 – Q2 Luna. As the only heir, Mrs. Luna inherited, by operation of law, the
estate of the child consisting of its 5 Million inheritance from Mr. Luna.
This being a case of succession, in the absence of proof as to the In the hands of Mrs. Luna, what she inherited from her child was sub-
time of death of each of the spouses, it is presumed they died at the ject to reserva troncal for the benefit of the relatives of the child within
same time and no transmission of rights from one to the other is the third degree of consanguinity and who belong to the family of Mr.
deemed to have taken place. Therefore, each of them is deemed to Luna, the line where the property came from.
have an estate valued at P500,000, or one-half of their conjugal prop- When Mrs. Luna died, she was survived by her parents as her
erty of P1 million. Their respective parents will thus inherit the entire P1 only heirs. Her parents will inherit her estate consisting of the 5 Million
Million in equal shares, of P500,000 per set of parents. she inherited from Mr. Luna. The other 5 Million she inherited from her
child will be delivered to the parents of Mr. Luna as beneficiaries of the
Mr. Cruz, widower, has 3 legitimate children, A, B and C. He exe- reserved property.
cuted a Will instituting as his heirs to his estate of One Million In sum, 5 Million Pesos of Mr. Luna's estate will go to the parents
(P1,000,000) Pesos his 2 children A and B, and his friend F. of Mrs. Luna, while the other 5 Million Pesos will go to the parents of
1. Upon his death, how should Mr. Cruz's estate be divid- Mr. Luna as reservatarios.
ed?
Alternative Answer:
Assuming that the institution of A, B and F were to the entire es-
tate, there was preterition of C since C is a compulsory heir in the di- If the child had an intra-uterine life of not less than 7 months, it
rect line. The preterition will result in the total annulment of the institu- inherited from the father. In which case, the estate of 10M will be divid-
tion of heirs. Therefore, the institution of A, B and F will be set aside ed equally between the child and the widow as legal heirs. Upon the
and Mr. Cuz's estate will be divided, as in intestacy, equally among A, death of the child, its share of 5M shall go by operation of law to the
B and C as follows: A - P333,333.33; B - P333.333.33; and C - mother, which shall be subject to reserva troncal. Under Article 891,
P333,333.33. the reserva is in favor of relatives belonging to the paternal line and
who are within 3 degrees from the child. The parents of Mr, Luna are
2. In the preceding question, suppose Mr. Cruz instituted entitled to the reserved portion which is 5M as they are 2 degrees re-
his 2 children A and B as his heirs in his Will, but gave a lated from child. The 5M inherited by Mrs. Luna from Mr. Luna will be
legacy of P 100,000 to his friend F. How should the es- inherited from her by her parents.
tate of Mr. Cruz be divided upon his death? ’99 – Q7 However, if the child had intra-uterine life of less than 7 months,
half of the estate of Mr. Luna, or 5M, will be inherited by the widow
On the same assumption as letter (a), there was preterition of C. (Mrs. Luna), while the other half, or 5M, will be inherited by the parents
Therefore, the institution of A and B is annulled but the legacy of of Mr. Luna. Upon the death of Mrs. Luna, her estate of 5M will be
P100.000 to F shall be respected for not being inofficious. Therefore, inherited by her own parents.
the remainder of P900.000 will be divided equally among A, B and C.
Tessie died survived by her husband Mario, and 2 nieces, Michelle
Mr. Palma, widower, has 3 daughters D, D-1 and D-2. He executes and Jorelle, who are the legitimate children of an elder sister who
a Will disinheriting D because she married a man he did not like, had predeceased her. The only property she left behind was a
and instituting daughters D-1 and D-2 as his heirs to his entire house and lot worth 2 million pesos, which Tessie and her hus-
estate of P 1,000,000. Upon Mr, Palma's death, how should his band had acquired with the use of Mario's savings from his in-
estate be divided? ’99 – Q8a come as a doctor. How much of the property or its value, if any,
may Michelle and Jorelle claim as their hereditary shares? ’98 –
This is a case of ineffective disinheritance because marrying a Q11
man that the father did not approve of is not a ground for disinheriting
D. Therefore, the institution of D-1 and D-2 shall be annulled insofar as Article 1001 of the Civil Code provides, “Should brothers and
it prejudices the legitime of D, and the institution of D-1 and D-2 shall sisters or their children survive with the widow or widower, the latter
only apply on the free portion in the amount of P500,000. Therefore, D, shall be entitled to one-half of the inheritance and the brothers and
D-1 and D-2 will get their legitimes of P500.000.00 divided into three sisters or their children to the other half.”
equal parts and D-l and D-2 will get a reduced testamentary disposition Tessie's gross estate consists of a house and lot acquired during
of P250,000 each. Hence, the shares will be: her marriage, making it part of the community property. Thus, one-half
of the said property would have to be set aside as Mario's conjugal
D P166,666.66 share from the community property. The other half, amounting to one
million pesos, is her conjugal share (net estate), and should be dis-
D-1 P166,666.66 + P250.000 tributed to her intestate heirs. Applying the above provision of law,
Michelle and Jorelle, Tessie's nieces, are entitled to one-half of her
D-2 P166,666.66 + P250,000 conjugal share worth one million pesos, or 500,000 pesos, while the
other one-half amounting to P500,000 will go to Mario, Tessie's surviv-
ing spouse. Michelle and Jorelle are then entitled to P250,000 pesos
each as their hereditary share.
Mr. Luna died, leaving an estate of Ten Million (P10,000,000) Pe-
sos. His widow gave birth to a child 4 months after Mr, Luna's Enrique died, leaving a net hereditary estate of P1.2 million. He is
death, but the child died 5 hours after birth. 2 days after the survived by his widow, three legitimate children, two legitimate
child's death, the widow of Mr. Luna also died because she had grandchildren sired by a legitimate child who predeceased him,
suffered from difficult childbirth. The estate of Mr. Luna is now and two recognized illegitimate children. Distribute the estate in
being claimed by his parents, and the parents of his widow. Who intestacy. ’98 – Q12
is entitled to Mr. Luna's estate and why? ’99 – Q8b
Under the Theory of Concurrence, the shares are as follows:
Half of the estate of Mr. Luna will go to the parents of Mrs. Luna A (legitimate child) P200,000
as their inheritance from Mrs. Luna, while the other half will be inherit-
ed by the parents of Mr. Luna as the reservatarios of the reserved B (legitimate child) P200,000
property inherited by Mrs. Luna from her child.
!62
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
The Holographic Will cannot be admitted to probate because a
C (legitimate child) P200,000
Holographic Will can only be probated upon evidence of the Will itself
unless there is a photographic copy. But since the Holographic Will
D (legitimate child) 0 (predeceased)
was lost and there was no other copy, it cannot be probated and there-
fore the Notarial Will will be admitted to probate because there is no
E (legitimate child of D) P100,000 – by right of revoking Will.
representation
Additional Answers:
F (legitimate child of D) P100,000 – by right of
representation In the case of Gan v. Yap, 104 Phil. 509 [1958], the execution and
the contents of a lost or destroyed Holographic Will may not be proved
G (illegitimate child) P100,000 – ½ share of a by the bare testimony of witnesses who have seen or read such will.
legitimate child The Will itself must be presented otherwise it shall produce no effect.
The law regards the document itself as material proof of authenticity.
H (illegitimate child) P100,000 – ½ share of a Moreover, in order that a Will may be revoked by a subsequent Will, it
legitimate child is necessary that the latter Will be valid and executed with the formali-
ties required for the making of a Will. The latter should possess all the
W (Widow) P200,000 – same share as requisites of a valid Will whether it be ordinary or a Holographic Will,
legitimate child and should be probated in order that the revocatory clause thereof may
produce effect.
In the case at bar, since the Holographic Will itself cannot be
presented, it cannot therefore be probated. Since it cannot be probat-
Another Answer: ed, it cannot revoke the Notarial Will previously written by the dece-
dent.
Under the Theory of Exclusion the free portion (P300,000) is dis-
tributed only among the legitimate children and is given to them in On the basis of the Rules of Court, Rule 76, Section 6, provides
addition to their legitime. All other Intestate heirs are entitled only to that no will shall be proved as a lost or destroyed will unless its provi-
their respective legitimes. The distribution is as follows: sions are clearly and distinctly proved by at least two (2) credible wit-
nesses.
Legitime Free Portion Total Hence, if we abide strictly by the two-witness rule to prove a lost
or destroyed will, the holographic will which Johnny allegedly mistaken-
A (legitimate child) P150,000 + P225,000 ly burned, cannot be probated, since there is only one witness, Eduar-
P75,000 do, who can be called to testify as to the existence of the will. If the
holographic will, which purportedly, revoked the earlier notarial will
B (legitimate child) P150,000 + P225,000 cannot be proved because of the absence of the required witness, then
P75,000 the petition for the probate of the notarial will should prosper.
C (legitimate child) P150,000 + P225,000 “T” died intestate on 1 September 1997. He was survived by M
P75,000 (his mother), W (his widow), A and B (his legitimate children), C
(his grandson, being the legitimate son of B), D (his other grand-
D (legitimate child) 0 0 son, being the son of E who was a legitimate son of, and who
predeceased, “T”), and F (his grandson, being the son of G, a
E (legitimate child P75,000 + P112,500 legitimate son who repudiated the inheritance from "T"). His dis-
of D) P37,500 tributable net estate is P120,000. How should this amount be
shared in intestacy among the surviving heirs? '97 – Q11
F (legitimate child P75,000 + P112,500
of D) P37,500 The legal heirs are A, B, D, and W. C is excluded by B who is still
alive. D inherits in representation of E who predeceased. F is excluded
G (illegitimate P75,000 + 0 P75,000 because of the repudiation of G, the predecessor. M is excluded by the
child) legitimate children of T. The answer may be premised on two theories:
the Theory of Exclusion and the Theory of Concurrence.
H (illegitimate P75,000 + 0 P75,000 Under the Theory of Exclusion the legitimes of the heirs are ac-
child) corded them and the free portion will be given exclusively to the legiti-
mate descendants. Hence under the Exclusion Theory:
W (Widow) P150,000 + 0 P150,000 A (Son) P20,000 + P13,333.33 (1/3 of
the free portion)
!63
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
ing. However, it contains insertions and cancellations which are
B (Son) P20,000 + P10,000 (1/4 of
not authenticated by her signature. For this reason, the probate of
the free portion)
Vanessa's will was opposed by her relatives who stood to inherit
by her intestacy. May Vanessa's holographic will be probated? '96
C (Grandson) P20,000 + P10,000 (1/4 of
– Q10(1)
the free portion)
YES, the will as originally written may be probated. The insertions
W (widow) P20,000 + P10,000 (1/4 of and alterations were void since they were not authenticated by the full
the free portion) signature of Vanessa, under Article 814, NCC. The original will, how-
ever, remains valid because a holographic will is not invalidated by the
unauthenticated insertions or alterations (Ajero v. Court of Appeals,
236 SCRA 468 [1994].)
Alternative Answer:
Alternative Answer:
Shares in intestacy
T- Decedent It depends. As a rule, a holographic will is not adversely affected
Estate: P120,000 by insertions or cancellations which were not authenticated by the full
signature of the testator (Ajero v. Court of Appeals, 236 SCRA 468
M (Mother) None [1995].) However, when the insertion or cancellation amounts to revo-
cation of the will, Article 814 of the NCC does not apply but Article 830,
W (Widow) P30,000 NCC. Article 830 of the NCC does not require the testator to authenti-
cate his cancellation for the effectivity of a revocation effected through
A (Son) P30,000 such cancellation (Kalaw v. Relova, 132 SCRA 237 [1984].) In the
Kalaw case, the original holographic will designated only one heir as
B (Son) P30,000 the only substantial provision which was altered by substituting the
original heir with another heir. Hence, if the unauthenticated cancella-
C (Grandson; Son of B) None tion amounted to a revocation of the will, the will may not be probated
because it had already been revoked.
D (Grandson; son of E who P30,000
predeceased T) Alfonso, a bachelor without any descendant or ascendant, wrote
a last will and testament in which he devised: “all the properties
F (Grandson; Son of G who None of which I may be possessed at the time of my death” to his fa-
repudiated the inheritance vorite brother Manuel. At the time he wrote the will, he owned only
from “T” one parcel of land. But by the time he died, he owned twenty
parcels of land. His other brothers and sisters insist that his will
should pass only the parcel of land he owned at the time it was
written, and did not cover his properties acquired, which should
Explanation: be by intestate succession. Manuel claims otherwise. Who is cor-
1. The mother (M) cannot inherit from T because under Article rect? '96 – Q10(2)
985 the ascendants shall inherit in default of legitimate chil-
dren and descendants of the deceased. Manuel is correct because under Article 793, NCC, property ac-
2. The widow's share is P30,000 because under Article 996 it quired after the making of a will shall only pass thereby, as if the testa-
states that if the widow or widower and legitimate children or tor had possessed it at the time of making the will, should it expressly
descendants are left, the surviving spouse has in the suc- appear by the will that such was his intention. Since Alfonso's intention
cession the same share as each of the children. to devise all properties he owned at the time of his death expressly
3. C has no share because his father is still alive hence suc- appears on the will, then all the 20 parcels of land are included in the
cession by representation shall not apply (Article 975.) devise.
4. D inherits P30,000 which is the share of his father E who
predeceased T by virtue of Article 981 on the right of repre- Cristina the illegitimate daughter of Jose and Maria, died intes-
sentation. tate, without any descendant or ascendant. Her valuable estate is
5. F has no share because his father G repudiated the inheri- being claimed by Ana, the legitimate daughter of Jose, and Ed-
tance. Under Article 977 heirs who repudiate their share may uardo, the legitimate son of Maria. Is either, both, or neither of
not be represented. them entitled to inherit? ’96 – Q11
“X”, the decedent, was survived by “W” (his widow), “A” (his Neither Ana nor Eduardo is entitled to inherit of ab intestato from
son), “B” (a granddaughter, being the daughter of “A”) and “C” Cristina. Both are legitimate relatives of Cristina's illegitimate parents
and “D” (the two acknowledged illegitimate children of the dece-
and therefore they fall under the prohibition prescribed by Article 992,
dent). “X” died this year (1997) leaving a net estate of P180,000.
All were willing to succeed, except “A” who repudiated the inheri- NCC (Manuel v. Ferrer, 242 SCRA 477 [1995]; Diaz v. Court of Ap-
tance from his father, and they seek your legal advice on how peals, 182 SCRA 427 [1987].)
much each can expect to receive as their respective shares in the
distribution of the estate. Give your answer. ’97 – Q12
CONFLICT OF LAWS
The heirs are B, W, C and D. A inherits nothing because of his
renunciation. B inherits a legitime of P90,000 as the nearest and only
legitimate descendant, inheriting in his own right not by representation Alden and Stela were both former Filipino citizens. They were
because of A's renunciation. W gets a legitime equivalent to one-half married in the Philippines but they later migrated to the United
(½) that of B amounting to P45,000. C and D each gets a legitime
States where they were naturalized as American citizens. In their
equivalent to one-half (½) that of B amounting to P45,000 each. But
since the total exceeds the entire estate, their legitimes would have to union they were able to accumulate several real properties both in
be reduced corresponding to P22.500.00 each (Article 895, CC.) The the US and in the Philippines. Unfortunately, they were not
total of all of these amounts to P180.000.00. blessed with children. In the US, the executed a joint will institut-
ing their common heirs to divide their combined estate in equal
Vanessa died on April 14, 1980, leaving behind a holographic will shares, the five siblings of Alden and the seven siblings of Stela.
which is entirely written, dated and signed in her own handwrit- Alden passed away in 2013 and a year later, Stela also died. The
!64
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
siblings of Alden were all citizens of the US instituted probate that since said US law is silent on the matter, the court should
proceedings in a US court impleading the siblings of Stela who apply: (1) HI’s law setting a 2-year limitation on tort claims; or (2)
were all in the Philippines. the Philippine law which appears to require that claims for per-
sonal injury arising from martial law be bought within 1 year.
Plaintiffs countered that provisions of the most analogous federal
c.) Is the situation presented in Item I an example statute, the Torture Victims Protection Act, should be applied. It
of depacage? ‘15 - Q1c sets 10 years as the period of prescription. Moreover, they argued
that equity could toll the statute of limitations. For it appeared
No, the situation presented in Item I is not an example of dépeçage. that EM had procured Constitutional amendments granting him-
Dépeçage is a term used where different aspects of a case involving a self and those acting in his direction immunity from suit during
foreign element may be governed by different systems of law. In this his tenure.
In this case, has prescription set in or not? Considering the dif-
case, only one system of laws governs, that of U.S. law. Under Article
ferences in the cited laws, which prescriptive period should be
16 par(2) of the Civil Code, intestate and testamentary succession, applied: 1 year under Philippine law, 2 year under HI’s law, 10
with respect the order of succession and to the amount of successional years under US federal law, or none of the above? ’04 – Q7b
rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under The US Court will apply US law, the law of the forum, in determin-
consideration, whatever may be the nature of the property and regard- ing the applicable prescriptive period. While US law is silent on this
less of the country wherein said property may be found. For the will to matter, the US Court will not apply Philippine law in determining the
prescriptive period. It is generally affirmed as a principle in private
be probated, it must also comply with US law under Articles 17 and
international law that procedural law is one of the exceptions to the
816 of the Civil Code, as the US was the place of the will’s execution, application of foreign law by the forum. Since prescription is a matter of
the residence of the spouses, and the country where they are nation- procedural law even in Philippine jurisprudence (Cadalin v. POEA, 238
als. SCRA 721 [1994]), the US Court will apply either HI or Federal law in
determining the applicable prescriptive period and not Philippine law.
Noted: It is suggested that the examinees be given full credit for Q1c. The Restatement of American law affirms this principle.
as the term ‘dépeçage’ is not commonly taught in this jurisdiction.
Felipe is Filipino citizen. When he went to Sydney for vacation, he
met a former business associate, who proposed to him a transac-
Reasons why a court may assume jurisdiction over a conflict of tion which took him to Moscow. Felipe brokered a contract be-
laws case. ’10 – Q3c tween a Sydney Coals (Coals), an Australian firm, and Moscow
Energy (Energy), a Russian firm, for Coals to supply Coal to En-
1) Statute theory. There is a domestic law authorizing the local ergy on a monthly basis for 3 years. Both these firms were not
court to assume jurisdiction. doing, and still do not do, business in the Philippines. Felipe
2) Comity theory. The local court assumes jurisdiction based on shuttled between Sydney and Moscow to close the contract. He
the principle of comity of courtesy. also executed in Sydney a commission contract with Coals and in
Moscow with Energy, under which contracts he was guaranteed
The doctrine of “processual presumption” allows the court of the commissions by both firms based on a percentage of deliveries
forum to presume that the foreign law applicable to the case is for the 3-year period, payable in Sydney and in Moscow, respec-
the same as the local or domestic law. ’09 – Q1a tively, through deposit accounts that he opened in the 2 cities.
Both firms paid Felipe his commission for 4 months, after which
If the foreign law is necessary to resolve an issue is not proven as they stopped paying him. Felipe learned from his contacts, who
a fact, the court of the forum may presume that the foreign law is the are residents of Sydney and Moscow, that the 2 firms talked to
same as the law of the forum. each other and decided to cut him off. He now files suit in Manila
against both Coals and Energy for specific performance.
Roberta, a Filipina, 17 years of age, without the knowledge of his 1. Define or explain the principle of “lex loci contractus.”
parents, can acquire a house in Australia because Australian
Laws allow aliens to acquire property from the age of 16. ’07 – Lex loci contractus may be understood in two senses, as follows:
Q7(1) (a) It is the law of the place where contracts, wills, and other
public instruments are executed and governs their “forms
TRUE. Since Australian Law allows aliens to acquire property and solemnities,” pursuant to the first paragraph of Article 17
from the age of 16, Roberta may validly own a house in Australia, fol- of the Civil Code; or
lowing the principle of lex rei sitae enshrined in Article 16, NCC which (b) It is the proper law of the contract, i,e., the system of law
states: “Real property as well as personal property is subject to the law intended by to govern the entire contract, including its essen-
of the country where it is situated.” Moreover, even assuming that the tial requisites, indicating the law of the place with which the
legal capacity of Roberta in entering the contract in Australia is gov- contract has its closest connection or where the main ele-
erned by Philippine law under Article 15, NCC, the contract of sale is ments of the contract converge. As illustrated by Zalamea v.
not void but merely voidable under the NCC. Hence, even under Court of Appeals (228 SCRA 23 [1993]), it is the law of the
Philippine law, she will acquire ownership over the property she bought place where the airline ticket was issued, where the passen-
until the contract is annulled. gers are nationals and residents of, and where the defendant
company maintained its office.
Distinguish between domiciliary theory and nationality theory of
personal law. ’04 – Q2a(5) 2. Define or explain the rule of “forum non conveniens.”
Domiciliary Theory posits that the personal status and rights of a Forum non conveniens means that a court has discretionary au-
person are governed by the law of his domicile or the place of his ha- thority to decline jurisdiction over a cause of action when it is of the
bitual residence. view that the action may be justly and effectively adjudicated else-
The Nationality Theory, on the other hand, postulates that it is the where.
law of the person’s nationality that governs such status and rights.
3. Should the Philippine court assume jurisdiction over the
In a class suit for damages, plaintiffs claim they suffered injuries case? ’02 – Q13
from torture during martial law. The suit was filed upon President
EM’s arrival on exile on HI, USA. The court in HI awarded plaintiffs NO, the Philippine courts cannot acquire jurisdiction over the case
the equivalent of P100 billion under US law on alien tort claims. of Felipe.
On appeal, EM’s estate raised the issue of prescription. It argued
!65
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Firstly, under the rule of forum non conveniens, the Philippine
court is not a convenient forum as all the incidents of the case oc- The suit will not prosper. Being a U.S. national, Albert's capacity
curred outside the Philippines. Neither are both Coals and Energy to enter into a contract is determined by the law of the State of which
doing business inside the Philippines. Secondly, the contracts were not he is a national, under which he to still a minor. This is in connection
perfected in the Philippines. Under the principle of lex loci contractus, with Article 15 of the Civil Code which embodies the said nationality
the law of the place where the contract is made shall apply. Lastly, the principle of lex patriae. While this principle intended to apply to Filipino
Philippine court has no power to determine the facts surrounding the citizens under that provision, the Supreme Court in Recto v. Harden,
execution of said contracts. And even if a proper decision could be 100 Phil. 427 [1959], is of the view that the status or capacity of for-
reached, such would have no binding effect on Coals and Energy as eigners is to be determined on the basis of the same provision or prin-
the court was not able to acquire jurisdiction over the said corporations ciple, i.e., by U.S. law in the present problem.
(Manila Hotel Corp. v. NLRC, 341 SCRA 1, 13-14 [2000].) Plaintiff's argument does not hold true, because status or capacity
is not determined by lex loci contractus but by lex patriae.
Juan is a Filipino citizen residing in Tokyo, Japan. State what laws
govern: Another Answer:
1. His capacity to contract marriage in Japan;
Article 17 of the Civil Code provides that the forms and solemni-
Juan's capacity to contract marriage is governed by Philippine law ties of contracts, wills and other public instruments shall be governed
– i.e., the Family Code – pursuant to Article 15, Civil Code, which pro- by the laws of the country in which they are executed.
vides that our laws relating to, among others, legal capacity of persons Since the contract of employment was executed in Manila, Philip-
are binding upon citizens of the Philippines even though living abroad. pine law should govern. Being over 18 years old and no longer a minor
according to Philippine Law, Francis Albert can be sued. Thus, the suit
2. His successional rights as regards his deceased Filipino of ABC Corporation against him for damages will prosper.
father's property in Texas, USA;
2. Suppose XYZ Corp. is impleaded as a co-defendant,
By way of exception to the general rule of lex rei sitae prescribed what would be the basis of its liability, if any? ’98 – Q2
by the first paragraph of Article 16, Civil Code, a person's successional
rights are governed by the national law of the decedent (2nd par., Arti- XYZ Corporation, having enticed Francis Albert to break his con-
cle 16.) Since Juan's deceased father was a Filipino citizen, Philippine tract with the plaintiff, may be held liable for damages under Article
law governs Juan's successional rights. 1314, Civil Code.
Juan's successional rights are governed by Philippine law, pur- The basis of liability of XYZ Corporation would be Article 28 of the
suant to Article 1039 and the second paragraph of Article 16, both of Civil Code which states that: “Unfair competition in agricultural, com-
the Civil Code. Article 1039, Civil Code, provides that capacity to suc- mercial, or industrial enterprises or in labor through the use of force,
ceed shall be governed by the “law of the nation” of the decedent, i.e., intimidation, deceit, machination or any other unjust, oppressive or
his national law. Article 16 provides in paragraph two that the amount highhanded method shall give rise to a right of action by the person
of successional rights, order of succession, and intrinsic validity of who thereby suffers damage.”
testamentary succession shall be governed by the "national law" of the
decedent who is identified as a Filipino in the present problem. Another Answer:
3. The extrinsic validity of the last will and testament which No liability arises. The statement of the problem does not in any
Juan executed while sojourning in Switzerland; and way suggest intent, malice, or even knowledge, on the part of XYZ
Corporation as to the contractual relations between Albert and ABC
The extrinsic validity of Juan's will is governed by (a) Swiss law, it Corporation.
being the law where the will was made (Article 17, 1st par., Civil Code),
or (b) Philippine law, by implication from the provisions of Article 816, In 1977, Mario and Clara, both Filipino citizens, were married in
Civil Code, which allows even an alien who is abroad to make a will in the Philippines. 3 years later, they went to the USA and estab-
conformity with our Civil Code. lished their residence in SF, California. In 1987, the couple applied
for, and were granted, U.S. citizenship. In 1989, Mario, claiming to
4. The intrinsic validity of said will. ’98 – Q1 have been abandoned by Clara, was able to secure a decree of
divorce in Reno, Nevada, U.S.A. In 1990, Mario returned to the
The intrinsic validity of his will is governed by Philippine law, it Philippines and married Juana who knew well Mario's past life.
being his national law (Article 16, Civil Code.) 1. Is the marriage between Mario and Juana valid?
Francis Albert, a citizen and resident of NJ, USA, under whose law YES. In relation to Article 15 of the Civil Code, Conflict of Laws
he was still a minor, being only 20 years of age, was hired by ABC provides that the recognition of an absolute divorce granted in another
Corp. of Manila to serve for 2 years as its chief computer pro- State rests on the citizenship of the parties at the time the divorce was
grammer. But after serving for only 4 months, he resigned to join granted (Paras, Phil. Conflict of Laws, p. 259.)
XYZ Corp., which enticed him by offering more advantageous Applied in this case, the divorce decree issued to Clara and Mario
terms. His 1st employer sues him in Manila for damages arising will be recognized as valid here considering that at the time the foreign
from the breach of his contract of employment. He sets up his decree was granted, both Clara and Mario are citizens of the U.S.A., a
minority as a defense and asks for annulment of the contract on country which grants/allows absolute divorce. Since the marriage be-
that ground. The plaintiff disputes this by alleging that since the tween Mario and Clara has been validly terminated, Mario and Juana
contract was executed in the Philippines under whose law the age can freely marry each other.
of majority is 18 years, he was no longer a minor at the time of
perfection of the contract. 2. Would the renvoi doctrine have any relevance to the
1. Will the suit prosper? case? ’97 – Q2
The suit will not prosper. Under Article 15, Civil Code, New Jersey NO. The renvoi doctrine is relevant in cases where one country
law governs Francis Albert's capacity to act, being his personal law applies the domiciliary theory and the other the nationality theory, and
from the standpoint of both his nationality and his domicile. He was, the issue involved is which of the laws of the two countries should
therefore, a minor at the time he entered into the contract. apply to determine the order of succession, the amount of succession-
al rights, or, the intrinsic validity of testamentary provisions. Such issue
Alternative Answer: is not involved in this case.
!66
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
(d) A sale entered by Barri and Garri, both minors, which their
Alternative Answer: parents later ratified. (2%)
(e) Jenny's sale of her car to Celestine, in order to evade attach-
YES. “Renvoi” – which means “referring back” is relevant because ment by Jenny's creditors. (2%) ’17—Q10
here, we are applying U.S. law to Mario, being already its citizen, al-
though the formalities of the second marriage will be governed by
Philippine law under the principle of lex loci celebrationis. (a) The contract of sale is voidable, because Lana is a minor,
and is thus incapable of giving consent to a contract.
(b) SUGGESTED ANSWER
Alma was hired as a domestic helper in HK by the Dragon Ser- The contract of sale is void, because its object, the Philippine Sea, is
vices, Ltd., through its local agent. She executed a standard em- outside the commerce of men.
ployment contract designed by the POEA for overseas Filipino ALTERNATIVE ANSWER
workers. It provided for her employment for 1 year at a salary of
The contract of sale is void under Article 1306 of the Civil Code be-
US$1,000 a month. It was submitted to and approved by the
POEA. However, when she arrived in HK, she was asked to sign cause it is against public policy.
another contract by Dragon Services, Ltd. which reduced her ANOTHER ALTERNATIVE ANSWER
salary to only US$600.00 a month. Having no other choice, Alma The contract of sale is void as it is prohibited by a treaty which is con-
signed the contract but when she returned to the Philippines, she sidered binding law in the Philippines.
demanded payment of the salary differential of US$400 a month. [Note: Under Article 137 of the UNCLOS, the Philippine Sea is gov-
Both Dragon Services, Ltd. and its local agent claimed that the erned by the following mandates:
second contract is valid under the laws of Hong Kong, and there-
xxx
fore binding on Alma. Is their claim correct? '96 – Q18
(b) No State or natural or juridical person shall appropriate
Their claim is not correct. A contract is the law between the par- any part thereof. xxx].
ties but the law can disregard the contract if it is contrary to public poli- (c) The contract is unenforceable because both parties, being minors,
cy. The provisions of the 1987 Constitution on the protection of labor are incapable of giving consent.
and on social justice (Section 10, Art II) embody a public policy of the (d) The contract is valid and may not be annulled by either party due to
Philippines. Since the application of Hong Kong law in this case is in the ratification by the parents of Barri and Garri if done while both were
violation of that public policy, the application shall be disregarded by
still minors. Ratification extinguishes the action to annul a voidable
our Courts (Cadalin v. POEA, 238 SCRA 762 [1994].)
contract, or an unenforceable contract, as in this case were both par-
Alternative Answers: ties were minors and may be done by the parents, as guardians or the
minor children (Article 1407, NCC).
Their claim is not correct. Assuming that the second contract is (e) The contract is rescissible because it is in fraud of creditors (Article
binding under Hong Kong law, such second contract is invalid under 1381, NCC).
Philippine law which recognizes as valid only the first contract. Since
the case is being litigated in the Philippines, the Philippine Court as the
forum will not enforce any foreign claim obnoxious to the forum's public Zeny and Nolan were best friends for a long time already. Zeny
policy. There is a strong public policy enshrined in our Constitution on borrowed 310,000.00 from Nolan, evidenced by a promissory note
the protection of labor. Therefore, the second contract shall be disre- whereby Zeny promised to pay the loan "once his means permit."
garded and the first contract will be enforced (Cadalin v. POEA, 238 Two months later, they had a quarrel that broke their long-stand-
SCRA 762 [1994].) ing friendship.
Nolan seeks your advice on how to collect from Zeny despite the
No, their claim is not correct. The second contract executed in Hong
tenor of the promissory note. What will your advice be? Explain
Kong, partakes of the nature of a waiver that is contrary to Philippine
your answer. (3%) ’17—Q11
law and the public policy governing Filipino overseas workers. Article
17, NCC provides that our prohibitive laws concerning persons, their The remedy of Nolan is to go to court and ask that a period be fixed for
acts, or their property or which have for their object public order, public
the payment of the debt. Article 1180 of the New Civil Code provides
policy and good customs shall not be rendered ineffective by laws or
that when a debtor binds himself to pay when his means permit him to
conventions agreed upon in a foreign country. Besides, Alma's consent do so, the obligation shall be deemed to be one with a period (suspen-
to the second contract was vitiated by undue influence, being virtually
sive). Article 1197 provides that the Courts may fix a period if such was
helpless and under financial distress in a foreign country, as indicated
intended from the nature of the obligation and may also fix the duration
by the given fact that she signed because she had no choice. There- of the period when such depends on the will of the debtor.
fore, the defendants claim that the contract is valid under Hong Kong
law should be rejected since under the DOCTRINE OF PROCESSUAL
PRESUMPTION a foreign law is deemed similar or identical to Philip-
Pedro bought a parcel of land described as Cadastral Lot No. 123
pine law in the absence of proof to the contrary, and such is not men-
and the title was issued to his name. Juan also bought a lot in the
tioned in the problem as having been adduced.
same place, which is described as Cadastral Lot No. 124. Pedro
hired a geodetic engineer to determine the actual location of Lot
No. 123 but for some reason, the engineer pointed to Lot No. 124
OBLIGATIONS AND CONTRACTS
by mistake.
Briefly explain whether the following contracts are valid, rescissi-
ble, unenforceable, or void: Pedro hired a contractor to construct his house and the latter put
(a) A contract of sale between Lana and Andy wherein 16-year old up a sign stating the name of the owner of the project and the
Lana agreed to sell her grand piano for 25,000.00. (2%) construction permit number. It took more than a year before the
(b) A contract of lease of the Philippine Sea entered by and be- house was constructed. When Pedro was already residing in his
tween Mitoy and Elsa. (2%) house, Juan told him to remove his house because it was built on
(c) A barter of toys executed by 12-year old Clarence and 10-year his (Juan’s) lot.
old Czar (2%)
!67
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Juan filed a Complaint for Recovery of Possession and prayed of P.D. No. 1529, no title to registered land in derogation of the title of
that the house be removed because Pedro is a builder in bad the registered owner shall be acquired by prescription or adverse pos-
faith. Pedro filed his Answer with Counterclaim that he is entitled session.
to the payment of the value of the house plus damages because
he is a builder in good faith and that Juan is guiltyof estoppel and Proof of possession by the owner in an action for reconveyance is
laches. immaterial and inconsequential. The right to recover possession is
[a] If Pedro is a builder in good faith, what are the rights given to equally imprescriptible since possession is a mere consequence of
Juan under the law? Explain. (2.5%) ownership (Republic v. Mendoza, 627 SCRA 443 [2010]). The right of
[b] If Pedro is a builder in bad faith, what are the rights given to Joven and Juliana to recover is not barred by laches, either. Laches
Juan under the law? Explain. (2.5%) ’16 – Q6 deals with unreasonable delay in filing the action. The owners’ delay, if
any, cannot be construed as deliberate and intentional. They were
[a]If Pedro is a builder in good faith and Juan is am owner in good simply coerced out of Cotabato and threatened with death if they re-
faith, Juan has the right to appropriate as his own the house after turned, and, thus, could not have filed the action.
payment of indemnity provided for in Articles 546 and 548 of the Civil
Code, which are the necessary and useful expenses. As to useful ex- Butch got a loan from Hagibis Corporation (Hagibis) but he de-
penses, Juan has the option to either refund the amount of the ex- faulted in the payment. A case for collection of a sum of money
penses, or pay the increase in value which the land may have acquired was filed against him. As a defense, Butch claims that there was
by reason thereof. Alternatively, under Article 448 of the Civil Code, already an arrangement with Hagibis on the payment of the loan.
Juan has the right to oblige Pedro to pay the price of the land. Howev- To implement the same, Butch already surrendered five (5) ser-
er, Pedro cannot be obliged to buy the land if its value is considerably vice utility vehicles (SUVs) to the company for it to sell arid the
more than that of the house. In such case, he shall pay reasonable proceeds to be credited to the loan as payment. Was the obliga-
rent, if Juan does not choose to appropriate the house after proper tion of Butch extinguished by reason of dacion en pago upon the
indemnity. It is the owner of the land who is authorized to exercise the surrender of the SUVs? Decide and explain. (5%) ’16 – Q9
options under Article 448 because his right is older and by principle of
accession, he is entitled to the ownership of the accessory thing. No, the obligation of Butch to Hagibis was not extinguished by the
mere surrender of the SUV’s to the latter. Dation in payment, whereby
If Pedro is a builder in good faith and Juan is an owner in bad faith property is alienated to the creditor in satisfaction of a debt in money,
because Juan knew that Pedro was building on his lot and did not shall be governed by the law of sales. (Article 1245). In dacion en
oppose it (Article 453 par. 2), and Article 454 in relation to Article 447 of pago, as a special mode of payment, the debtor offers another thing to
the Civil Code applies. Juan shall pay the value of the house and is the creditor who accepts it as equivalent of payment of an outstanding
also liable for reparation of damages; however, Pedro also has the debt. The undertaking really partakes in one sense of the nature of
right to remove or demolish the house and ask for damages. sale, that is, the creditor is really buying the thing or property of the
debtor, payment for which is to be charged against the debtor’s debt.
[b]If Pedro is a builder in bad faith and Juan is an owner in good faith, As such, the essential elements of a contract of sale, namely, consent,
Juan has three options. He may appropriate the improvements without object certain, and cause or consideration must be present. In dacion
indemnity under Article 449 of the Civil Code, or demand the demoli- en pago there is in reality an objective novation of the obligation where
tion of the house in order to replace things to their former condition at the thing offered as an accepted equivalent of the performance of an
Pedro’s expense under Article 450, or compel Pedro to pay the price of obligation is considered as the object of the contract of sale, while the
the land. In addition to these options, Juan is also entitled to damages debt is considered as the purchase price. In any case, common con-
from Pedro. sent is an essential prerequisite, be it sale or innovation to have the
effect of totally extinguishing the debt or obligation (Fiiinvest Credit
If Pedro is a builder in bad faith and Juan is an owner in bad faith, it Corporation vs. Philippine Acetylene Company, Inc. G.R. No. L-50449
shall be as if both of them were in good faith (Article 453, New Civil January 30, 1982). There being no mention in the facts that Hagibis
Code). has given its consent to accept the SUVs as equivalent payment, the
obligation of Butch is not thereby extinguished by mere delivery of the
Joven and Juliana are the owners of a 30-hectare plantation in SUVs.
Cotabato, covered by a title. One day, a group of armed men
forcibly entered their house and, at gun point, forced them to sign Jerico, the project owner, entered into a Construction Contract
a Deed of Absolute Sale in favor of Romeo. with Ivan for the latter to construct his house. Jojo executed a
Surety undertaking to guarantee the performance of the work by
Romeo got the title from them and they were ejected from the Ivan. Jerico and Ivan later entered into a Memorandum of Agree-
house and threatened not to come back or else they will be killed. ment (MOA) revising the work schedule of Ivan and the subcon-
The spouses went to Manila and resided there for more than 35 tractors. The MOA stated that all the stipulations of the original
years. They never went back to Cotabato for fear of their lives. contract not in conflict with said agreement shall remain valid and
Word came to them that peace and order have been restored in legally effective. Jojo filed a suit to declare him relieved of his
their former place of residence and they decided to reclaim their undertaking as a result of the MOA because of the change in the
land for the benefit of their grandchildren. Joven and Juliana filed work schedule. Jerico claims there is no novation of the Con-
a suit for reconveyance of their property. This was opposed by struction Contract. Decide the case and explain. (5%) ’16 – Q10
the grandson of Romeo to whom the title was eventually trans-
ferred, on the ground of laches and prescription. Decide the case I will decide in favor of Jerico as there is no novation of the Construc-
and rule on the defenses of laches and prescription. Explain your tion Contract. Novation is never presumed, and may only take place
answer. (5%) ’16 - Q8 when the following are present: (1) a previous valid obligation; (2) the
agreement of all the parties to the new contract; (3) the extinguishment
The right of the registered owners, Joven and Juliana, to file suit to of the old contract; and (4) validity of the new one. There must be con-
recover their property, is not barred by prescription. Under Section 47 sent of all the parties to the substitution, resulting in the extinction of
!68
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
the old obligation and the creation of a new valid one. In this case, the his obligation to convey title will only arise upon full payment of the
revision of the work schedule of Ivan and the subcontractors is not purchase price. Nonetheless, Peter may validly cancel the contract to
shown to be so substantial as to extinguish the old contract, and there sell (Olivarez v. Castillo, G.R. No. 196251 July 9, 2014).
was also no irreconcilable incompatibility between the old and new
obligations. It has also been held in jurisprudence that a surety may ALTERNATIVE ANSWER:
only be relieved of his undertaking if there is a material change in the [a| (1) Yes, Peter validly rescinded the contract to sell his lot to Paul for
principal contract and such would make the obligation of the surety the latter’s failure to comply with his prestation to pay PI,000,000.00 on
onerous. The principal contract subject of the surety agreement still November 6, 2016 at 1:00 p.m. at the residence of Peter so that Peter
exists, and Jojo is still bound as a surety. will execute the Deed of Absolute Sale. The rescission is actually the
resolution of the reciprocal obligation.
ALTERNATIVE ANSWER
I will decide against Jerico. The provisions of the Civil Code on Guar- (2) In UP v. De los Angeles, 35 SCRA 102 11970/, the Supreme Court
antee, other than the benefit of excussion (Article 2059 (2CC), are ruled that the injured party may consider the contract as rescinded and
applicable and available to the surety because a surety is a guarantor act accordingly, even without prior court action. His unilateral determi-
who binds himself solidarity (Article 2047 2nd par. CC). The Supreme nation however, is provisional, since the other party may challenge it
Court has held that there is no reason why the provisions of Article by suing him in court. It is then the court which will finally determine if
2079 would not apply to a surety (Autocorp Group v. Infra Strata As- the rescission should be set aside or affirmed.
surance Corporation, 556 SCRA 250 [2008]). Article 2079 of the Civil
Code provides that an extension granted to the debtor by the creditor [b] If Paul made a down payment, Peter may still cancel the contract
without the consent of the guarantor extinguishes the guaranty. The because in a contract to sell, the seller does not yet agree to transfer
changes in the work schedule amount to an extension granted to the ownership to the buyer. The non-payment of the price in a contract to
debtor without the consent of the surety. Hence, Jojo’s obligation as a sell is not a breach for which the remedy of rescission may be availed
surety is extinguished. If the change of work schedule, on the other of, but rather it is considered as a failure to comply with a positive sus-
hand, shortens the time of completion of the project, it will amount to a pensive condition which will prevent the obligation of the seller to con-
novation. The old obligation, where Jojo was obligated as a surety is vey title from acquiring obligatory force (Ursal v. Court of Appeals. G.R.
extinguished relatively as to him, leaving Ivan as still bound. No. 142411, October 14, 2005, 473 SCRA 52, citing Chun v. Court of
Appeals, 401 SCRA 54 [2003]).
Peter and Paul entered into a Contract to Sell whereby Peter, the
lot owner, agreed to sell to Paul his lot on November 6, 2016 for Dr. Jack, a surgeon, holds clinic at the St. Vincent’s Hospital and
the price ofP 1, 000,000.00 to be paid at the residence of Peter in pays rent to the hospital. The fees of Dr. Jack are paid directly to
Makati City at 1:00 p.m. If the full price is paid in cash at the speci- him by the patient or through the cashier of the hospital. The
fied time and place, then Peter will execute a Deed of Absolute hospital publicly displays In the lobby the names and specializa-
Sale and deliver the title to Paul. tions of the doctors associated or accredited by it, including that
of Dr. Jack. Marta engaged the services of Dr. Jack because of
On November 6, 2016, Paul did not show up and was not heard of recurring stomach pain. It was diagnosed that she is suffering
from that date on. In view of the nonperformance by Paul of his from cancer and had to be operated on. Before the operation, she
obligation, Peter sent a letter to Paul that he is expressly and ex- was asked to sign a "consent for hospital care," which reads:
tra-judicially declaring the Contract to Sell rescinded and of no
legal and binding effect. Peter further stated that failure on the "Permission is hereby given to the medical, nursing and laborato-
part of Paul to contest the rescission within thirty (30) days from ry staff of the St. Vincent's Hospital to perform such procedures
receipt of said letter shall mean that the latter agreed to the and to administer such medications and treatments as may be
rescission. deemed necessary or advisable by the physicians of this hospital
for and during the confinement."
Paul did not reply to this letter for five (5) years. Thus, Peter de-
cided to sell his lot to Henry in 2021. After hearing that Henry After the surgery, the attending nurses reported that two (2)
bought the lot, Paul now questions the sale of the lot to Henry sponges were missing. Later, Marta died due to complications
and files a complaint for nullification of the sale. brought about by the sponges that were left in her stomach. The
husband of Marta sued the hospital and Dr. Jack for damages
[a]Is the exercise by Peter of his power to rescind extra-judicially arising from negligence in the medical procedure. The hospital
the Contract to Sell the proper and legal way of rescinding said raised the defense that Dr. Jack is not its employee as it did not
contract? Explain. (2.5%) hire Dr. Jack nor pay him any salary or compensation. It has ab-
[b]In case Paul made a down payment pursuant to a stipulation in solutely no control over the medical services and treatment being
the Contract to Sell, what is the legal remedy of Peter? (2.5%) ’16 provided by Dr. Jack. Dr. Jack even signed an agreement that he
– Q15 holds the hospital free and harmless from any liability arising
from his medical practice in the hospital.
As a general rule, the power to rescind an obligation must be invoked
judicially and cannot be exercised solely on a party’s own judgment Is St. Vincent's Hospital liable for the negligence of Dr. Jack? Ex-
that the other has committed a breach of the obligation. This is so be- plain your answer. (5%) ‘16 – Q18
cause rescission of a contract will not be permitted for a slight or casu-
al breach, but only for such substantial and fundamental violations as Yes, St. Vincent’s Hospital is liable. In the case of Professional Ser-
would defeat the very object of the parties in making the agreement. vices v. Agana (513 SCRA 478 (2007]), the Supreme Court held that
However, rescission as a remedy for breach is applicable only to an the hospital is liable to the Aganas, not under the principle of respon-
obligation which is extant. Be it noted that the contract between the deat superior for lack of evidence of an employer-employee relation-
parties is a contract to sell and not a contract of sale and in a contract ship with Dr. Ampil but under the principle of ostensible agency for the
to sell, there is a reservation of ownership on the part of the seller and
!69
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
negligence of Dr. Ampil and, pro hac vice, under the principle of corpo- from Julia the amount she had paid as interest. Julia
rate negligence for its failure to perform its duties as a hospital. claims she has no obligation to return the interest paid
by Sara because it was a natural obligation which Sara
While it is true that there was insufficient evidence that St. Vincent’s voluntarily performed and can no longer recover. Do you
Hospital exercised the power of control or wielded such power over the agree? Explain. (4%). ‘15 - Q15a
means and the details of the specific process by which Dr. Jack ap-
plied his skills in Marta’s treatment, there is ample evidence that St. No, I do not agree with Julia. For a creditor to be entitled to compen-
Vincent’s Hospital held out to the patient, Marta, that Dr. Jack was its satory interest, the debtor must be in delay. As a rule, in order for delay
agent (principle of ostensible agency). The two factors that determine to exist, demand must have been made. In this case, there was no
apparent authority are present: (1) the hospital’s implied manifestation demand upon the expiration of the 6-month period; thus, Sara cannot
to the patient which led the latter to conclude that the doctor was the be considered in delay, and is not liable to pay compensatory interest.
hospital’s agent; and (2) the patient’s reliance upon the conduct of the There being no obligation to pay compensatory interest, Julia must
hospital and the doctor, consistent with ordinary care and prudence. return the interest mistakenly paid since she was not entitled thereto,
and delivery was made merely through mistake. If something is re-
The corporate negligence ascribed to St. Vincent’s Hospital is different ceived when there is no right to demand it, and it was unduly delivered
form the medical negligence attributed to Dr. Jack. The duties of the through mistake, the obligation to return it arises (Art. 2154, Civil
hospital are distinct from those of the doctor-consultant practicing with- Code).
in its premises in relation to the patient; hence, the failure of St. Vin-
cent’s Hospital to fulfill its duties as a hospital corporation gave rise to b) Distinguish civil and natural obligations. (2%) ‘15 - Q15b
a direct liability to Marta distinct from that of Dr. Jack.
Civil obligations give a right of action to compel their performance.
a) Iya and Betty owed Jun P500,000.00 for advancing their Natural obligations, not being based on positive law bout on equity and
equity in a corporation they joined as incorporators. Iya natural law, do not grant a right of action to enforce their performance,
and Betty bound themselves solidarily liable for the but after voluntary fulfilment by the obligor, they authorize the retention
debt. Later, Iya and Jun became sweethearts so Jun of what has been delivered or rendered by reason thereof (Art. 1423,
condoned the debt of P500,000. May lya demand from Civil Code).
Betty P250,000.00 as her share in the debt? Explain with
legal basis. (2%) ‘15 - Q12a Dorotea leased portions of her 2,000 sq.m. lot to Monet, Kathy,
Celia, and Ruth for five (5) years. Two (2) years before the expira-
No, Iya may not demand reimbursement from Betty. The remission of tion of the lease contract, Dorotea sold the property to PM Realty
the whole obligation, obtained by one of the solidary debtors, does not and Development Corporation. The following month, Dorotea and
entitle him or her to reimbursement from his co-debtors (Art. 1220, Civil PM Realty stopped accepting rental payments from all the lessees
Code). because they wanted to terminate the lease contracts.
b) Juancho, Don and Pedro borrowed P150,000.00 from Due to the refusal of Dorotea to accept rental payments, the
their friend Cita to put up an internet cafe orally promis- lessees, Ruth, et al., filed a complaint for consignation of the
ing to pay her the full amount after one year. Because of rentals before the Regional Trial Court (RTC) of Manila without
their lack of business know-how, their business col- notifying Dorotea.
lapsed. Juancho and Don ended up penniless but Pedro
was able to borrow money and put up a restaurant Is the consignation valid? (4%) ‘14 - Q10
which did well. Can Cita demand that Pedro pay the
entire obligation since he, together with the two others, The consignation is not valid. Article 1257 of the Civil Code provides
promised to pay the amount in full after one year? De- that in order that the consignation of the thing due may release the
fend your answer. (2%) ‘15 - Q12b obligor, it must first be announced to the persons interested in the ful-
filment of the obligation. Moreover, Article 1258 of the same Code pro-
No, Cita may not demand payment of the entire obligation from Pedro. vides that consignation having been made, the interested parties shall
The concurrence of two or more creditors or of two or more debtors in also be notified thereof. In this case Dorotea, an interested party, was
one and the same obligation does not imply that each one of the for- not notified of the consignation. The consignation is therefore not valid
mer has a right to demand, or that each one of the latter is bound to for non-compliance with Article 1257.
render, entire compliance with the prestation. There is a solidary liabili-
ty only when the obligation expressly so states, or when the law or the ALTERNATIVE ANSWER:
nature of the obligation requires solidarity (Art. 1207, Civil Code). In
this case, there is no indication that they bound themselves solidarity The consignation may be valid. Had the lessees been informed of the
to pay Cita, nor does the law or nature of the obligation require solidari- transfer of the property to PM Realty, notice to Dorotea under Article
ty. Hence, Juancho, Don and Pedro’s obligation is joint, and Cita can 1257 may no longer be necessary, but it is notice to PM Realty which is
only demand payment of 1/3 of the obligation from Pedro, which is required.
presumed to be his share in the obligation in the absence of stipulation
to the contrary (Art. 1208, Civil Code). J.C. Construction (J.C) bought steel bars from Matibay Steel In-
dustries (MSI) which is owned by Buddy Batungbacal. J.C. failed
a) Sara borrowed P50,000.00 from Julia and orally to pay the purchased materials worth P500,000.00 on due date.
promised to pay it within six months. When Sara tried to J.C persuaded its client Amoroso with whom it had receivables to
pay her debt on the 8th month, Julia demanded the pay its obligation to MSI. Amoroso agreed and paid MSI the
payment of interest of 12% per annum because of Sara’s amount of P50,000.00. After two (2) other payments, Amoroso
delay in payment. Sara paid her debt and the interest stopped making further payments.
claimed by Julia. After rethinking, Sara demanded back
!70
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Buddy filed a complaint for collection of the balance of the obliga- TRUE. The Civil Code provides that “Any clause giving one of the
tion and damages against J.C. J.C. denied any liability claiming parties power to choose more arbitrators than the other is void and of
that its obligation was extinguished by reason of novation which no effect” (Article 2045, NCC.)
took place when MSI accepted partial payments from Amoroso on
Sarah had a deposit in savings account with FU Bank in the
its behalf. amount of P5 million. To buy a new car, she obtained a loan from
the same bank in the amount of P1.2 million payable in 12-month-
Was the obligation of J.C. Construction to MSI extinguished by ly installments. Sarah issued in favor of the bank post-dated
novation? Why? (4%) ‘14 - Q12 checks, each in the amount of P100,000 to cover the 12-monthly
installment payments. On the 3rd, 4th and 5th months, the corre-
No, the obligation of J.C. Construction to MSI was not extinguished by sponding checks bounced. The back then declared the whole
obligation due, and proceeded to deduct the amount of P1 million
novation.
from Sarah’s deposit after notice to her that this is a form of com-
pensation allowed by law. Is the bank correct? ’09 – Q15
Under Article 1292 of the Civil Code, in order that an obligation may be
extinguished by another which substitute the same, it is imperative that NO, the bank is not correct. While the Bank is correct about the
it be so declared in unequivocal terms, or that the old and the new applicability of compensation, it was not correct as to the amount com-
obligations be on every point incompatible with each other. Novation by pensated.
substitution of debtor requires the consent of the creditor as provided A bank deposit is a contract of loan, where the depositor is the
creditor and the bank the debtor. Since Sarah is also the debtor of the
in Article 1293 of the Civil Code. This requirement is not present in this
bank with respect to the loan, both are mutually principal debtors and
case. In Magdalena Estates, Inc. v. Rodriguez (G.R. No. L-18411, creditors of each other. Both obligations are due, demandable and
December 17, 1966), it was ruled that the mere fact that the creditor liquidated but only up to the extent of P300,000 (covering the unpaid
received payment from a third person does not constitute novation and third, fourth and fifth monthly installments.) The entire P1 million was
does not extinguish the obligation of the original debtor. Since there not yet due because the loan has no acceleration clause in case of
was no novation, the obligation of the original debtor is not extin- default. And since there is no retention or controversy commenced by
guished. Thus, the obligation of J.C. Construction to MSI subsists. third persons and communicated in due time to the debtor, then all the
requisites of legal compensation are present but only up to the amount
of P300,000. The bank, therefore, may deduct P300,000 from Sarah’s
a) Siga-an granted a loan to Villanueva in the amount of P bank deposit by way of compensation.
540, 000.00. Such agreement was not reduced to writing.
Siga-an demanded interest which was paid by Villanue- Eduardo was granted a loan by XYZ Bank for the purpose of im-
va in cash and checks. The total amount Villanueva paid proving a building which XYZ leased from him. Eduardo executed
accumulated to P 1, 200, 000.00. Upon advice of her a PN in favor of the bank, with his friend Ricardo as co-signatory.
lawyer, Villanueva demanded for the return of the excess In the PN, they both acknowledged that they are “individually and
collectively” liable and waived the need for prior demand. To se-
amount of P 660, 000.00 which was ignored by Siga-an.
cure the PN, Ricardo executed a real estate mortgage on his own
property. When Eduardo defaulted on the PN, XYZ stopped pay-
1) Is the payment of interest valid? Explain. (3%) ment on the rentals on the building on the ground that legal com-
‘12- Q6a1 pensation had set in. Since there was still a balance due on the
PN after applying the rentals, XYZ foreclosed the real estate
No. Article 1956, Civil Code provides that “no interest shall be due mortgage over Ricardo’s property. Ricardo opposed the foreclo-
unless it has been expressly stipulated in writing”. sure on the ground that he is only a co-signatory; that no demand
was made upon him for payment, and assuming that he is liable,
his liability should not go beyond half the balance of the loan.
2) Is solutio indebiti applicable? Explain. (2%) ‘12- Further, Ricardo said that when the bank invoked compensation
Q6a2 between the rentals and the amount of the loan, it amounted to a
new contract or novation, and had the effect of extinguishing the
Yes, solutio indebiti is applicable because Villanueva overpaid by security since he did not give his consent (as owner of the prop-
P660,000, representing intereest payment which is not due. He can, erty under the real estate mortgage) thereto.
therefore, demand its return. 1. Can XYZ Bank validly assert legal compensation?
!71
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
NO. Ricardo has no basis for claiming novation of the original of the obligation is offered by the grantor when it becomes due,
contract when the bank invoked compensation because there was he may demand the reconveyance of the property to him.”
simply a partial compensation (Article 1290, Civil Code) and this would 4. Article 1455, NCC which provides:
not bar the bank from recovering the remaining balance of the obliga- “When any trustee, guardian or other person holding a fiduciary
tion. relationship uses trust funds for the purchase of property and
causes the conveyance to be made to him or to a third person,
Another Alternative Answer: a trust is established by operation of law in favor of the person
to whom the funds belong.”
NO. In order that an obligation may be extinguished by another, it
is imperative that is be so declared in unequivocal terms, or that the What are obligations without an agreement? Give five examples
old and new obligations be on every point incompatible with each oth- of situations giving rise to this type of obligation. ’07 – Q5
er. Novation is never presumed (Article 1292, Civil Code.)
“Obligations without an agreement” are obligations that do not
AB Corp. entered into a contract with XY Corp. whereby the for- arise from contract such as those arising from:
mer agreed to construct the research and laboratory facilities of 1. Delicts;
the latter. Under the terms of the contract, AB agreed to complete 2. Quasi-delicts;
the facility in 18 months, at the total contract price of P10 million. 3. Solutio indebiti;
XY paid 50% of the total contract price, the balance to be paid 4. Negotiorum gestio; and
upon completion of the work. The work started immediately, but 5. All other obligations arising from law.
AB later experienced work slippage because of labor unrest in the
company. AB’s employees claimed that they were not paid on Alternative Answer:
time; hence, the work slowdown. As of the 17th month, work was
only 45% completed. AB asked for extension of time, claiming “Obligations without an agreement” refer to the juridical relations
that its labor problems is a case of fortuitous event, but this was of quasi-contract which arise from certain lawful, voluntary and unilat-
denied by XY. When it became certain that the construction would eral acts to the end that no one shall be unjustly enriched or benefited
not be finished on time, XY sent a written notice cancelling the at the expense of another (Article 2142, NCC.)
contract, and requiring AB to immediately vacate the premises. First example of an obligation without an agreement is a case of
1. Can the labor unrest be considered a fortuitous event? negotiorum gestio, whereby one who voluntarily takes charge of the
agency of management of the business or property of another, without
NO. The labor unrest be considered a fortuitous event under Arti- any power from the latter, is obliged to continue the same until the
cle 1174 of the Civil Code. A fortuitous event should occur independent termination of the affair and its incidents, or to require the person con-
of the will of the debtor or without his participation or aggravation cerned to substitute him, if the owner is in a position to do so (Article
(Paras, Civil Code Annotated, Vol. IV, 200 ed., p. 159.) As mentioned in 2144, NCC.)
the facts, the labor unrest of the employees was caused by AB Corp.’s Second example, a case of solutio indebiti may also give rise to
failure to pay its employees on time. an obligation without an agreement. This refers to the obligation to
return which arises when something is received when there is no right
2. Can XY Corp. unilaterally and immediately cancel the to demand it, and it was unduly delivered through mistake (Article
contract? 2154, NCC.)
Third example, is when without the knowledge of the person
NO, XY Corp. cannot unilaterally and immediately cancel the obliged to give support, it is given by a stranger, the latter shall have a
contract. In the absence of any stipulation for automatic rescission, right to claim the same from the former, unless it appears that he gave
rescission must be judicial (Article 1191, Civil Code.) it out of piety and without intention of being repaid (Article 2164, NCC.)
Fourth example, is when through an accident or other cause a
3. Must AB Corp. return the 50% downpayment? ’08 – Q19 person is injured or becomes seriously ill, and he is treated or helped
while he is not in a condition to give consent to a contract, he shall be
AB Corp. need not return the 50% downpayment because 45% of liable to pay for the services of the physician or other person aiding
the work was already completed. Otherwise, XY Corp. would be unjust- him, unless the service has been rendered out of pure generosity (Arti-
ly enriching itself at the expense of AB Corp. cle 2167, NCC.)
Fifth instance of an obligation without an agreement is when the
Explain the concept of de son tort (Constructive trust) and give an person obliged to support an orphan or an insane person or other indi-
example of which. ’07 – 3a gent person unjustly refuses to give support to the latter, any third per-
son may furnish support to the needy individual, with right of reim-
A constructive trust is a trust not created by any word or phrase, bursement from the person obliged to give support. The provisions of
either expressly or impliedly, evincing a direct intention to create a this Article apply when the father or mother under eighteen years of
trust, but is one that arises in order to satisfy the demands of justice. It age unjustly refuses to support him (Article 2166, NCC.)
does not come about by agreement or intention but mainly by opera-
tion of law and construed as a trust against one who, by fraud, duress Marvin offered to construct a house of Carlos for a very reason-
or abuse of confidence, obtains or holds the legal right to property able price of P900,000, giving the latter 10 days within which to
which he ought not, in equity and good conscience, to hold (Heirs of accept or reject the offer. On the 5th day, before Carlos could
Lorenzo Yap v. Court of Appeals, 371 Phil. 523 [1999].) make up his mind, Marvin withdrew the offer.
The following are examples of constructive trust: 1. What is the effect of the withdrawal of Marvin’s offer?
1. Article 1456, NCC which provides:
“If property is acquired through mistake or fraud, the person The withdrawal of Marvin’s offer is valid because there was no
obtaining it is, by force of law, considered a trustee of an im- consideration paid for the option. An option is a separate contract from
plied trust for the benefit of the person from him the property the contract which is the subject of the offer. If not supported by any
comes.” consideration, the option contract is not deemed perfected. Thus, Mar-
2. Article 1451, NCC which provides: vin may withdraw the offer at any time before acceptance of the offer.
“When land passes by succession to any person and he caus-
es the legal title to be put in the name of another, a trust is 2. Will your answer be the same if Carlos paid Marvin
established by implication of law for the benefit of the true P10,000 as consideration for that option?
owner.”
3. Article 1454, NCC which provides: If Carlos paid P10,000 as consideration of the option, Marvin
“If an absolute conveyance of property is made in order to se- cannot withdraw the offer prior to the expiration of the option period.
cure the performance of an obligation of the grantor toward the The option is a separate contract and if founded on consideration is a
grantee, a trust by virtue of law is established. If the fulfillment perfected contract and must be respected by Marvin.
!72
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
3. Supposing that Carlos accepted the offer before Marvin Alternative Answer:
could communicate his withdrawal thereof. Discuss the
legal consequences. ’05 – Q9 DPO has the duty to return to RRA the excess P100 as trustee
under Article 1456 of the Civil Code which provides: If property is ac-
If Carlos has already accepted the offer and such acceptance has quired through mistake or fraud, the person obtaining it is, by force of
been communicated to Marvin before Marvin communicates the with- law, considered a trustee of an implied trust for the benefit of the per-
drawal, the acceptance creates a perfected construction contract, even son from whom the property comes. There is, in this case, an implied
if no consideration was as yet paid for the option. If Marvin does not or constructive trust in favor of RRA.
perform his obligations under the perfected contract of construction, he
shall be liable for all consequences arising from the breach thereof The parties in a contract of loan of money agreed that the yearly
based on any of the available remedies which may be instituted by interest rate is 12% and it can be increased if there is a law that
Carlos, such as specific performance, or rescission with damages in would authorize the increase of interest rates. Suppose OB, the
both cases. lender, would increase by 5% the rate of interest to be paid by TY,
the borrower, without a law authorizing such increase, would
Mr. ZY lost P100,000 in a card game called Russian poker, but he OB’s action be just and valid? Has TY a remedy against the impo-
had no more cash to pay in full the winner at the time the session sition of the rate increase? ’04 – Q9a
ended. He promised to pay PX, the winner, 2 weeks thereafter. But
he failed to do so despite the lapse of 2 months, so PX filed in OB’s action is not just and valid.
court a suit to collect the amount of P50,000 that he won but re- The debtor cannot be required to pay the increase in interest
mained unpaid. there being no law authorizing it, as stipulated in the contract. Increas-
1. Will the suit against ZY prosper? ing the rate in the absence of such law violates the principle of mutuali-
ty of contracts.
The suit by PX to collect the balance of what he won from ZY will
not prosper. Under Article 2014 of the Civil Code, no action can be DON, an American businessman, secured parental consent for the
maintained by winner for the collection of what he has won in a game employment of 5 minors to play certain roles in 2 movies he was
of change. Although poker may depend in part on ability, it is funda- producing at home in Makati. They worked in odd hours of the
mentally a game of chance. day and night, but always accompanied by parents or other
adults. The producer paid the children talent fees at rates better
2. Could Mrs. ZY file in turn a suit against PX to recover than adult wages. But the social worker, DEB, reported to OSWD
P100,000 that her husband has lost? ’04 – Q1a that these children often missed going to school. They sometimes
drank wing, aside from being exposed to drugs. In some scenes,
If the property paid by ZY to PX was conjugal or community prop- they were filmed naked or in revealing costumes. In his defense,
erty, the wife of ZY could sue to recover it because Article 117(7) of the DON contended all these were part of artistic freedom and cultur-
Family Code provides that losses in gambling or betting are borne al creativity. None of the parents complained, said DON. He also
exclusively by the loser-spouse. Hence, conjugal or community funds said they signed a contract containing a waiver of their right to
may not be used to pay for such losses. If the funds were exclusive file any complaint in any office or tribunal concerning working
property of ZY, his wife may also sue to recover it under Article 2016 of conditions of the children acting in the movies.
the Civil Code if she and the family needed the money for support. Is the waiver valid and binding? ’04 – Q9b
Distinguish between civil obligation and natural obligation. ’04 – The waiver is not valid. Although the contracting parties may es-
Q2a(3) tablish such stipulations, clauses, terms and conditions as they may
deem convenient, they may not do so if such are contrary to law,
A civil obligation is a juridical necessity to give, to do, or not to do. morals, good customs, public order, or public policy (Article 1306, Civil
It gives the creditor the legal right to compel by an action in court the Code.)
performance of such obligation. The parents’ waiver to file a complaint concerning the working
A natural obligation is based on equity and natural law. There is conditions detrimental to the moral well-being of their children acting in
no legal right to compel performance thereof but if the debtor voluntari- the movies is in violation of the Family Code and Labor laws. Thus, the
ly pays it, he cannot recover what he paid. waiver is invalid and not binding.
The Child Labor Law is a mandatory and prohibitory law and the
Distinguish between inexistent contracts and annullable con- rights of the child cannot be waived as it is contrary to law and public
tracts. ’04 – Q2a(4) policy.
Inexistent contracts are considered as not having been entered Are the following obligations valid, why, and if they are valid,
into and, therefore, void ab initio. They do not create any obligation when is the obligation demandable in each case?
and cannot be ratified or validated, as there is no agreement to ratify or 1. If the debtor promises to pay as soon as he has the
validate. means to pay;
On the other hand, annullable or voidable contracts are valid until
invalidated by the court but may be ratified. The obligation is valid.
In inexistent contracts, one or more requisites of a valid contract It is an obligation subject to an indefinite period because the
are absent. In annullable contracts, all the elements of a contract are debtor binds himself to pay when his means permit him to do so (Arti-
present except that the consent of one of the contracting parties was cle 1180, NCC.) When the creditor knows that the debtor already has
vitiated or one of them has no capacity to give consent. the means to pay, he must file an action to fix the period, and when the
definite period as set by the court arrives, the obligation to pay be-
DPO went to a store to buy a pack of cigarettes worth P225 only. comes demandable (Article 1197, NCC.)
He gave vendor, RRA, a P500 bill. The vendor gave him the pack
plus P375 change. Was there a discount? What would be DPO’s 2. If the debtor promises to pay when he likes;
duty, if any, in case of an excess amount of change given by the
vendor? How is this situational relationship between DPO and The obligation “to pay when he likes” is a suspensive condition
RRA denominated? ’04 – Q5a the fulfillment of which is subject to the sole will of the debtor and,
therefore, is void (Article 1182, NCC.)
There was error in the amount of change given by RRA. This is a
case of solutio indebiti in that DPO received something that is not due 3. If the debtor promises to pay when he becomes a
him. He has the obligation to return the P100; otherwise, he will unjust- lawyer; and
ly enrich himself at the expense of RRA (Article 2154, Civil Code.)
!73
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
The obligation is valid. 2. Decide the case. ’02 – Q7
It is subject to a suspensive condition, i.e., the future and uncer-
tain event of his becoming a lawyer. The performance of this obligation While Article 1413 of the Spanish Civil Code did not require the
does not depend solely on the will of the debtor but also on other fac- consent of the wife for the validity of the sale, an alienation by the hus-
tors outside the debtor’s control. band in fraud of the wife is void as held in Uy Coque v. Navas, 45 Phil.
430 [1923].)
4. If the debtor promises to pay if his son, who is sick with Assuming that the alienation in 1948 was in fraud of Winda and,
cancer, does not die within 1 year. ’03 – Q13 therefore, makes the sale to Verde void, the action to set aside the
sale, nonetheless, is already barred by prescription and laches. More
The obligation is valid. than 52 years have already elapsed from her discovery of the sale in
The death of the son of cancer within one year is made a negative 1950.
suspensive condition to his making the payment. The obligation is
demandable if the son does not die within one year (Article 1185, Alternative Answer:
NCC.)
Winda’s claim that her Torrens Title covering the property is inde-
State the effects of each of the below defenses put up by A on his feasible and imprescriptible is not tenable.
obligation to pay X, if such defenses are found to be true. The rule on indefeasibility of a Torrens Title means that after one
A, B, C, D and E made themselves solidarily indebted to X for the year from the date of issue of the decree of registration or if the land
amount of P50,000. When X demanded payment from A, the latter has fallen into the hands of an innocent purchaser for value, the title
refused to pay on the following grounds: becomes incontestable and incontrovertible.
1. B is only 16 years old; Imprescriptibility, on the other hand, means that no title to the land
in derogation of that of the registered owner may be acquired by ad-
A may avail the minority of B as a defense, but only for B’s share verse possession or acquisitive prescription or that the registered own-
of P100,000. A solidary debtor may avail himself of any defense which ers does not lose by extinctive prescription his right to recover owner-
personally belongs to a solidary co-debtor, but only as to the share of ship and possession of the land.
that co-debtor. The action in this case is for annulment of the sale executed by
the husband over a conjugal partnership property covered by a Torrens
2. C has already been condoned by X; Title. Actions on contracts are subject to prescription.
A may avail of the condonation by X of C’s share of P10,000. A Stockton is a stockholder of Core Corp. (Core). He desires to sell
solidary debtor may, in actions filed by the creditor, avail himself of all his shares in Core in view of a court suit that Core has filed
defenses which are derived from the nature of the obligation and of against him for damages in the amount of P10M, plus attorney’s
those which are personal to him or pertain to his own share. With re- fees of P1M. The AOI of Core provides for a right of first refusal in
spect to those which personally belongs to others, he may avail himself favor of the corporation. Accordingly, Stockton gave written no-
thereof only as regards that part of the debt for which the latter are tice to the corporation of his offer to sell his shares of P10M. The
responsible (Article 1222, NCC.) response of Core was an acceptance of the offer in the exercise
of its right of first refusal, offering for the purpose of payment in
3. D is insolvent; and form of compensation or set-off against the amount of damages it
is claiming against him, exclusive of the claim for attorney’s fees.
A may not interpose the defense of insolvency of D as a defense. Stockton rejected the offer of the corporation, arguing that com-
Applying the principle of mutual guaranty among solidary creditors, A pensation between the value of the shares and the amount of
guaranteed the payment of D’s share and all of the other co-debtors. damages demanded by the corporation cannot legally take effect.
Hence, A cannot avail of the defense of D’s insolvency. Is Stockton correct? ’02 – Q9
4. E was given by X and extension of 6 months without the Stockton is correct. There is no right of compensation between his
consent of the other 4 co-debtors. ’03 – Q14 price of P10 million and Core Corp.’s unliquidated claim for damages.
In order that compensation may be proper, the two debts must be liq-
The extension of six (6) months given by X to E may be availed of uidated and demandable. The case for the P10 million damages being
by A as a partial defense but only for the share of E. There is no nova- still pending in court, the corporation has as yet no claim which is due
tion of the obligation but only an act of liberality granted to E alone. and demandable against Stockton.
Way back in 1948, Winda’s husband sold in favor of Verde Sports Another Main Answer:
Center Corp. (Verde), a 10-hectare property belonging to their
conjugal partnership. The sale was made without Winda’s knowl- The right of first refusal was not perfected as a right for the reason
edge, much less consent. In 1950, Winda learned of the sale when that there was a conditional acceptance equivalent to a counter-offer
she discovered the deed of sale among the documents in her consisting in the amount of damages as being credited on the pur-
husband’s vault after his demise. Soon after, she noticed that the chase price. Therefore, compensation did not result since there was no
construction of the sports complex had started. Upon completion valid right of first refusal (Articles 1475 and 1319, NCC.)
of the construction in 1952, she tried but failed to get free mem- Even assuming that there was a perfected right of first refusal,
bership privileges in Verde. Winda now files suit against Verde for compensation did not take place because the claim is unliquidated.
annulment of the sale on the ground that she did not consent to
the sale. In answer, Verde contends that, in accordance with the Printado is engaged in the printing business. Suplico supplies
Spanish Civil Code which was then in force, the sale of the prop- printing paper to Printado pursuant to an order agreement under
erty in 1948 did not need her concurrence. Verde contends that in which Suplico binds himself to deliver the same volume of paper
any case, the action has prescribed or is barred by laches. Winda every month for a period of 18 months, with Printado in turn
rejoins that her Torrens title covering that property is indefeasible agreeing to pay within 60 days after each delivery. Suplico has
and imprescriptible. been faithfully delivering under the order agreement for 10
1. Define or explain the term “laches.” months but thereafter stopped from doing so, because Printado
has not made any payment at all. Printado also has a standing
Laches means failure to neglect, for an unreasonable and unex- contract with publisher Publico for the printing of 10,000 volumes
plained length of time, to do what, by exercising due diligence, could or of school textbooks. Suplico was aware of said printing contract.
should have been done earlier. It is negligence or omission to assert a After printing 1,000 volumes, Printado fails to perform under its
right within a reasonable time (De Vera v. Court of Appeals, 305 SCRA printing contract with Publico. Suplico sues Printado for the value
624 [1999].) of unpaid deliveries under their order agreement. At the same
time, Publico sues Printado for damages for breach of contract
!74
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
with respect to their own printing agreement. In the suit filed by It depends. If the notation "in full payment of the loan" was written
Suplico, Printado counters that: (a) Suplico cannot demand pay- by Arturo's father, there was an implied condonation of the balance that
ment for deliveries made under their order agreement until Supli- discharges the obligation. In such case, the notation is an act of the
co has completed performance under said contract; (b) Suplico father from which condonation may be inferred. The condonation being
should pay damages for breach of contract; and (c) Suplico implied, it need not comply with the formalities of a donation to be ef-
should be liable for Printado’s breach of his contract with Publico fective. The defense of full payment will, therefore, be valid.
because the order agreement between Suplico and Printado was When, however, the notation was written by Arturo himself, it
for the benefit of Publico. Are the contentions of Printado ten- merely proves his intention in making that payment but in no way does
able? ’02 – Q10 it bind his father (Yam v. Court of Appeals, G.R No. 104726, 11 Feb-
ruary 1999.) In such case, the notation was not the act of his father
NO, the contentions of Printado are untenable. from which condonation may be inferred. There being no condonation
Printado having failed to pay for the printing paper covered by the at all the defense of full payment will not be valid.
delivery invoices on time, Suplico has the right to cease making further
delivery. And the latter did not violate the order agreement (Integrated Alternative Answer:
Packing Corp. v. Court of Appeals, 333 SCRA 170 [2000].)
Suplico cannot be held liable for damages, for breach of contract, If the notation was written by Arturo's father, it amounted to an
as it was not he who violated the order agreement but Printado. express condonation of the balance which must comply with the for-
Suplico cannot be held liable for Printado’s breach of contract with malities of a donation to be valid under the 2nd paragraph of Article
Publico. He is not a party to the agreement entered into by Printado 1270 of the New Civil Code. Since the amount of the balance is more
and Publico. Their contract has no stipulation pour autrui. Such con- than 5,000 pesos, the acceptance by Arturo of the condonation must
tracts do not affect third persons like Suplico because of the basic civil also be in writing under Article 748. There being no acceptance in
law concept of relativity of contracts which provides that contracts can writing by Arturo, the condonation is void and the obligation to pay the
only bind the parties who entered into it, and it cannot favor or preju- balance subsists. The defense of full payment is, therefore, not valid. In
dice a third person, even if he is aware of such contract and has acted case the notation was not written by Arturo's father, the answer is the
with knowledge thereof (Integrated Packing Corp. v. Court of Appeals, same as the answers above.
Supra.)
Kristina brought her diamond ring to a jewelry shop for cleaning.
4 foreign medical students rented the apartment of Thelma for a The jewelry shop undertook to return the ring by February 1,
period of 1 year. After 1 semester, 3 of them returned to their 1999. When the said date arrived, the jewelry shop informed
home country and the 4th transferred to a boarding house. Thelma Kristina that the Job was not yet finished. They asked her to re-
discovered that they left unpaid telephone bills in the total turn 5 days later. On February 6, 1999, Kristina went to the shop
amount of P80,000.00. The lease contract provided that the to claim the ring, but she was informed that the same was stolen
lessees shall pay for the telephone services in the leased premis- by a thief who entered the shop the night before. Kristina filed an
es. Thelma demanded that the 4th student pay the entire amount action for damages against the jewelry shop which put up the
of the unpaid telephone bills, but the latter is willing to pay only ¼ defense of force majeure. Will the action prosper or not? ’00 – Q14
of it. Who is correct? ’01 – Q7
The action will prosper. Since the defendant was already in de-
The fourth student is correct. His liability is only joint, hence, pro fault not having delivered the ring when delivery was demanded by
rata. There is solidary liability only when the obligation expressly so plaintiff at due date, the defendant is liable for the loss of the thing and
states or when the law or nature of the obligation requires solidarity even when the loss was due to force majeure.
(Article 1207, CC). The contract of lease in the problem does not, in
any way, stipulate solidarity. Lolita was employed in a finance company. Because she could
not account for the funds entrusted to her, she was charged with
The sugar cane planters of Batangas entered into a long-term estafa and ordered arrested. In order to secure her release from
milling contract with the Central Azucarera de Don Pedro Inc. 10 jail, her parents executed a promissory note to pay the finance
years later, the Central assigned its rights to the said milling con- company the amount allegedly misappropriated by their daughter.
tract to a Taiwanese group which would take over the operations The finance company then executed an affidavit of desistance
of the sugar mill. The planters filed an action to annul the said which led to the withdrawal of the information against Lolita and
assignment on the ground that the Taiwanese group was not reg- her release from jail. The parents failed to comply with their prom-
istered with the BOI. Will the action prosper or not? '01 – Q11 issory note and the finance company sued them for specific per-
formance. Will the action prosper or not? ’00 – Q15a
The action will prosper not on the ground invoked but on the
ground that the farmers have not given their consent to the assign- The action will prosper. The promissory note executed by Lolita's
ment. parents is valid and binding, the consideration being the extinguish-
The milling contract imposes reciprocal obligations on the parties. ment of Lolita's civil liability and not the stifling of the criminal prosecu-
The sugar central has the obligation to mill the sugar cane of the farm- tion.
ers while the latter have the obligation to deliver their sugar cane to the
sugar central. As to the obligation to mill the sugar cane, the sugar Alternative Answer:
central is a debtor of the farmers. In assigning its rights under the con-
tract, the sugar central will also transfer to the Taiwanese its obligation The action will not prosper because the consideration for the
to mill the sugar cane of the farmers. This will amount to a novation of promissory note was the non-prosecution of the criminal case for
the contract by substituting the debtor with a third party. Under Article estafa. This cannot be done anymore because the information has
1293 of the Civil Code, such substitution cannot take effect without the already been filed in court and to do it is illegal. That the consideration
consent of the creditor. The farmers, who are creditors as far as the for the promissory note is the stifling of the criminal prosecution is evi-
obligation to mill their sugar cane is concerned, may annul such as- dent from the execution by the finance company of the affidavit of de-
signment for not having given their consent thereto. sistance immediately after the execution by Lolita's parents of the
promissory note. The consideration being illegal, the promissory note is
Arturo borrowed P500,000 from his father. After he had paid invalid and may not be enforced by court action.
P300,000.00, his father died. When the administrator of his fa-
ther's estate requested payment of the balance of P200,000. Ar- Pedro promised to give his grandson a car if the latter will pass
turo replied that the same had been condoned by his father as the bar examinations. When his grandson passed the said exami-
evidenced by a notation at the back of his check payment for the nations, Pedro refused to give the car on the ground that the con-
P300,000.00 reading: “In full payment of the loan.” Will this be a dition was a purely potestative one. Is he correct or not? ’00 –
valid defense in an action for collection? ’00 – Q7a Q15b
!75
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
NO, he is not correct. First of all, the condition is not purely potes- sell, reciprocal prestations are deemed imposed: for the seller to deliv-
tative, because it does not depend on the sole will of one of the parties. er the object sold and for the buyer to pay the price. Before the hap-
Secondly, even if it were, it would be valid because it depends on the pening of the condition, the fruits of the thing and the interests on the
sole will of the creditor (the donee) and not of the debtor (the donor). money are deemed to have been mutually compensated under Article
1187.
In an action brought to collect a sum of money based on a surety
agreement, the defense of laches was raised as the claim was 2nd Alternative Answer:
filed more than 7 years from the maturity of the obligation. How-
ever, the action was brought within the 10-year prescriptive peri- Under Article 1164, there is no obligation on the part of Manuel to
od provided by law wherein actions based on written contracts deliver the fruits (rentals) of the thing until the obligation to deliver the
can be instituted. thing arises. As the suspensive condition has not been fulfilled, the
1. Will the defense prosper? obligation to sell does not arise.
NO, the defense will not prosper. The problem did not give facts Define compensation as a mode of extinguishing an obligation,
from which laches may be inferred. Mere delay in filing an action, and distinguish it from payment. '99 – Q14(1)
standing alone, does not constitute laches (Agra v. PNB, 309 SCRA
509 [1999].) COMPENSATION is a mode of extinguishing to the concurrent
amount, the obligations of those persons who in their own right are
2. What are the essential elements of laches? ’00 – Q16 reciprocally debtors and creditors of each other (Tolentino, 1991 ed., p.
365, citing 2 Castan 560 and Francia v. Intermediate Appellate Court,
The four (4) basic elements of laches are: 162 SCRA 753 [1988].) It involves the simultaneous balancing of two
(1) Conduct on the part of the defendant or of one under whom obligations in order to extinguish them to the extent in which the
he claims, giving rise to the situation of which complainant amount of one is covered by that of the other (De Leon, 1992 ed., p.
seeks a remedy; 221, citing 8 Manresa 401).
(2) Delay in asserting the complainant's rights, the complainant PAYMENT means not only delivery of money but also perfor-
having had knowledge or notice of the defendant's conduct mance of an obligation (Article 1232, Civil Code.). In payment, capacity
and having been afforded an opportunity to institute suit; to dispose of the thing paid and capacity to receive payment are re-
(3) Lack of knowledge on the part of the defendant that the quired for debtor and creditor, respectively: in compensation, such
complainant would assert the right on which he bases his capacity is not necessary, because the compensation operates by law
suit; and and not by the act of the parties. In payment, the performance must be
(4) Injury or prejudice to the defendant in the event relief is ac- complete; while in compensation there may be partial extinguishment
corded to the complainant, or the suit is not held to be of an obligation (Tolentino, supra.)
barred.
X, who has a savings deposit with Y Bank in the sum of
In 1997, Manuel bound himself to sell Eva a house and lot which P1,000,000 incurs a loan obligation with the said Bank in the sum
is being rented by another person, if Eva passes the 1998 bar of P800,000 which has become due. When X tries to withdraw his
examinations. Luckily for Eva, she passed said examinations. deposit, Y Bank allows only P200,000 to be withdrawn, less ser-
1. Suppose Manuel had sold the same house and lot to vice charges, claiming that compensation has extinguished its
another before Eva passed the 1998 bar examinations, is obligation under the savings account to the concurrent amount of
such sale valid? X's debt. X contends that compensation is improper when one of
the debts, as here, arises from a contract of deposit. Assuming
YES, the sale to the other person is valid as a sale with a resolu- that the promissory note signed by X to evidence the loan does
tory condition because what operates as a suspensive condition for not provide for compensation between said loan and his savings
Eva operates a resolutory condition for the buyer. deposit, who is correct? '98 – Q14(2)
1st Alternative Answer: Y bank is correct. Article 1287 of the Civil Code, does not apply.
All the requisites of Article 1279, Civil Code are present. In the case of
Yes, the sale to the other person is valid. However, the buyer Gullas v. PNB (62 Phil. 519), the Supreme Court held: “The Civil Code
acquired the property subject to a resolutory condition of Eva passing contains provisions regarding compensation (set off) and deposit.
the 1998 Bar Examinations. Hence, upon Eva's passing the Bar, the These portions of Philippine law provide that compensation shall take
rights of the other buyer terminated and Eva acquired ownership of the place when two persons are reciprocally creditor and debtor of each
property. other. In this connection, it has been held that the relation existing
between a depositor and a bank is that of creditor and debtor. x x x As
2nd Alternative Answer: a general rule, a bank has a right of set off of the deposits in its hands
for the payment of any indebtedness to it on the part of a depositor.”
The sale to another person before Eva could buy it from Manuel is Hence, compensation took place between the mutual obligations of X
valid, as the contract between Manuel and Eva is a mere promise to and Y bank.
sell and Eva has not acquired a real right over the land assuming that
there is a price stipulated in the contract for the contract to be consid- Joey, Jovy and Jojo are solidary debtors under a loan obligation
ered a sale and there was delivery or tradition of the thing sold. of P300,000 which has fallen due. The creditor has, however, con-
doned Jojo's entire share in the debt. Since Jovy has become
2. Assuming that it is Eva who is entitled to buy said insolvent, the creditor makes a demand on Joey to pay the debt.
house and lot, is she entitled to the rentals collected by 1. How much, if any, may Joey be compelled to pay?
Manuel before she passed the 1998 bar examinations?
’99 – Q11 Joey can be compelled to pay only the remaining balance of
P200,000, in view of the remission of Jojo's share by the creditor (Arti-
NO, she is not entitled to the rentals collected by Manuel because cle 1219, Civil Code.)
at the time they accrued and were collected, Eva was not yet the own-
er of the property. 2. To what extent, if at all, can Jojo be compelled by Joey
to contribute to such payment? ‘98 – Q4
1st Alternative Answer:
Jojo can be compelled by Joey to contribute P50,000. Article
Assuming that Eva is the one entitled to buy the house and lot, 1217, par. 3, Civil Code provides. “When one of the solidary debtors
she is not entitled to the rentals collected by Manuel before she passed cannot, because of his insolvency, reimburse his share to the debtor
the bar examinations. Whether it is a contract of sale or a contract to
!76
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
paying the obligation, such share shall be borne by all his co-debtors, The telephone company is correct because as far as it is concerned,
in proportion to the debt of each.” the only person it contracted with was Baldomero. The telephone com-
Since the insolvent debtor's share which Joey paid was pany has no contract with Jose. Baldomero cannot substitute Jose in
P100,000, and there are only two remaining debtors - namely Joey and his stead without the consent of the telephone company (Article 1293,
Jojo - these two shall share equally the burden of reimbursement. Jojo
NCC.) Baldomero is, therefore, liable under the contract.
may thus be compelled by Joey to contribute P50,000.
CONSENSUAL CONTRACTS are those which are perfected by Alice agreed to sell a parcel of land with an area of 500 square
mere consent (Article 1315, Civil Code.) REAL CONTRACTS are those meters registered in her name and covered by her TCT No. 12345
which are perfected by the delivery of the object of the obligation (Arti- in favor Bernadette for the amount of P900,000.00. Their agree-
cle 1316, Civil Code.) ment dated October 15, 2105 reads as follows:
Examples of real contracts are deposit, pledge, commodatum and
simple loan (mutuum). I, Bernadette, agree to buy the lot owned by Alice covered by TCT
No. 12345 for the amount of P900,000.00 subject to the following
On 1 January 1980, Redentor and Remedios entered into an
agreement by virtue of which the former was to register a parcel schedule of payment:
of land in the name of Remedios under the explicit covenant to Upon signing of agreement — P 100,000.00
reconvey the land to Remigio, son of Redentor, upon the son's November 15,2015 — P 200,000.00
graduation from college. In 1981, the land was registered in the December 15, 2015 — P 200,000.00
name of Remedios. Redentor died a year later or in 1982. In March January 15, 2016 — P 200,000.00
1983, Remigio graduated from college. In February 1992, Remigio February 15,2016 — P 200,000.00
accidentally found a copy of the document so constituting Reme-
dios as the trustee of the land. In May 1994, Remigio filed a case Title to the proerty shall be transferred upon full payment of
against Remedios for the reconveyance of the land to him. Reme- P900,000.00 on or before February 15, 2016.
dios, in her answer, averred that the action already prescribed.
How should the matter be decided? '97 – Q13 After making the initial payment of PI 00,000.00 on October 15
2015, and the second installment of P200,000.00 on November 15,
The matter should be decided in favor of Remigio (trustee) be- 2015, Bernadette defaulted despite repeated demands from Alice.
cause the action has not prescribed. The case at bar involves an ex- In December 2016, Bernadette offered to pay her balance but Alice
press trust which does not prescribe as long as they have not been
repudiated by the trustee (Diaz v. Gorricho, 103 Phil. 261 [1958].) refused and told her that the land was no longer for sale. Due to
the refusal, Bernadette caused the annotation of her adverse
In 2 separate documents signed by him, Juan Valentino “obligat- claim upon TCT No. 12345 on December 19, 2016. Later on,
ed” himself each to Maria and to Perla, thus - Bernadette discovered that Alice had sold the property to Chona
“To Maria, my true love, I obligate myself to give you my one on February 5, 2016, and that TCT. No. 12345 had been cancelled
and only horse when I feel like it.” and another one issued (TCT No. 67891) in favor of Chona as the
- and -
new owner.
“To Perla, my true sweetheart, I obligate myself to pay you
the P500.00 I owe you when I feel like it.” Bernadette sued Alice and Chona for specific performance, an-
Months passed but Juan never bothered to make good his nulment of sale and cancellation of TCT No. 67891. Bernadette
promises. Maria and Perla came to consult you on whether or not insisted that she had entered into a contract of sale with Alice;
they could recover on the basis of the foregoing settings. What and that because Alice had engaged in double sale, TCT No.
would your legal advice be? ’97 – Q14 67891 should be cancelled and another title be issued in
Bernadette's favor.
I would advise Maria not to bother running after Juan for the latter
(a) Did Alice and Bernadette enter into a contract of sale of the lot
to make good his promise. [This is because a promise is not an action-
able wrong that allows a party to recover especially when she has not covered by TCTNo. 12345? Explain your answer. (4%)
suffered damages resulting from such promise. A promise does not (b) Did Alice engage in double sale of the property? Explain your
create an obligation on the part of Juan because it is not something answer. (4%) ’17—Q7
which arises from a contract, law, quasi-contracts or quasi-delicts (Arti-
cle 1157).] Under Article 1182, Juan's promise to Maria is void because (a) SUGGESTED ANSWER
a conditional obligation depends upon the sole will of the obligor. Yes, they entered into a contract of sale which is a conditional sale.
As regards Perla, the document is an express acknowledgment of
Article 1458(2) provides that a contract of sale may be absolute or
a debt, and the promise to pay what he owes her when he feels like it
is equivalent to a promise to pay when his means permits him to do so, conditional.
and is deemed to be one with an indefinite period under Article 1180. In a contract of conditional sale, the buyer automatically acquires title
Hence the amount is recoverable after Perla asks the court to set the to the property upon full payment or the purchase price. This transfer of
period as provided by Article 1197, par. 2. title is "by operation of law without any further act having to be per-
formed by the seller. In a contract to sell, transfer of title to the
Baldomero leased his house with a telephone to Jose. The lease prospective buyer is not automatic, The prospective seller [must] con-
contract provided that Jose shall pay for all electricity, water and
vey title to the property [through] a deed of conditional sale" (Olivarez
telephone services in the leased premises during the period of
the lease. 6 months later, Jose surreptitiously vacated the Realty Corporation v. Castillo, G.R. No. 196251, July 9, 2014).
premises. He left behind unpaid telephone bills for overseas tele- In this case, it was stipulated that "Title to the property shall be trans-
phone calls amounting to over P20,000. Baldomero refused to pay ferred upon full payment of P900,000 on or before February 15, 2016."
the said bills on the ground that Jose had already substituted him Thus, they entered into a conditional sale.
as the customer of the telephone company. The latter maintained
that Baldomero remained as his customer as far as their service ANOTHER SUGGESTED ANSWER
contract was concerned, notwithstanding the lease contract be-
No, because in the agreement between Alice and Bernadette, the
tween Baldomero and Jose. Who is correct, Baldomero or the
telephone company? '96 – Q12 ownership is reserved in the vendor and is not to pass to the vendee
!77
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
until full payment of the purchase price, which makes the contract one
of contract to sell and not a contract of sale. On March 13, 2008, Ariel entered into a Deed of Absolute Sale
Distinctions between a contract to sell and a contract of sale are well- (DAS) with Noel where the former sold his titled lot in Quezon City
established in jurisprudence. In a contract of sale, the title to the prop- with an area of three hundred (300) square meters to the latter for
erty passes to the vendee upon the delivery of the thing sold; in a con- the price of P300, 000.00. The prevailing market value of the lot
tract to sell, ownership is, by agreement, reserved in the vendor and is was P3, 000.00 per square meter. On March 20, 2008, they execut-
not to pass to the vendee until full payment of the purchase price. Oth- ed another ’’Agreement to Buy Back/Redeem Property” where
erwise stated, in a contract of sale, the vendor loses ownership over Ariel was given an option to repurchase the property on or before
the property and cannot recover it until and unless the contract is re- March 20, 2010 for the same price. Ariel, however, remained in
solved or rescinded; whereas, in a contract to sell, title is retained by actual possession of the lot. Since Noel did not pay the taxes,
the vendor until full payment of the price. In the latter contract, pay- Ariel paid the real property taxes to avoid a delinquency sale.
ment 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 On March 21, 2010, Ariel sent a letter to Noel, attaching thereto a
convey title from becoming effective (Saberon v. Ventanilla, Jr., G.R. manager's check for P300, 000.00 manifesting that he is redeem-
No. 192669, Aprll21, 2014). ing the property. Noel rejected the redemption claiming that the
DAS was a true and valid sale representing the true intent of the
In this case, the contract ~entered between the parties is a contra to parties. Ariel filed a suit for the nullification of the DAS or the ref-
sell because ownership IS retained by the vendor and is not to pass to ormation of said agreement to that of a Loan with Real Estate
the vendee until full payment of the purchase price. Mortgage. He claims the DAS and the redemption agreement con-
stitute an equitable mortgage; Noel however claims it is a valid
(b) SUGGESTED ANSWER sale with pacto de retro and Ariel clearly failed to redeem the
No, Alice did not engage in double sale. Article 1544 of the Civil Code property.
contemplates contracts of sale which are absolute sales. The sale to
Bernadette, however, is a conditional sale wherein the condition was As the RTC judge, decide the case with reasons. (5%) ’16 - 12
not fulfilled. In a conditional sale, the non-fulfillment of the condition
prevents the obligation to sell from arising and, thus, the prospective l will decide in favor of Ariel and allow the reformation of the agree-
seller retains ownership without further remedies by the buyer. Since ment. The DAS and the redemption agreement constitute an equitable
title is reserved to Alice until Bernadette pays the full price for the lot, mortgage and Ariel may ask for the reformation of the agreement to
the contract in this case is a conditional sale. that of a Loan with Real Estate Mortgage as allowed by Article 1605 of
ANOTHER SUGGESTED ANSWER the Civil Code. The circumstances dearly show that that the agreement
No, because there was no previous sale of the same property prior to is an equitable mortgage, such as the: a), price of the lot was inade-
its sale to Chona. Despite the earlier transaction of Alice with quate since it was only sold at P300, 000 when the prevailing market
Bernadette, the former is not guilty of double sale because the previ- value of such was P900, 000; b). the vendor, Ariel, remained in actual
ous transaction with Bernadette is characterized as a contract to sell. possession of the property after the purported sale; and c). Ariel was
In a contract to sell, there being no previous sale of the property, a third the one who paid the real property taxes. Under the circumstances, a
person buying such property despite the fulfillment of the suspensive presumption arises under Article 1602 C.C. that what was really exe-
condition such as the full payment of the purchase price; for instance, cuted was an equitable mortgage.
cannot be deemed a buyer in bad faith and the prospective buyer can-
not seek the relief of reconveyance of the property. There is no double Moreover, Article 1603 C.C. provides that in case of doubt, a contract
sale in such case. Title to the property will transfer to the buyer after purporting to be a sale with right to repurchase shall be construed as
registration because there is no defect in the owner-sellers title per se, an equitable mortgage.
but the latter, of course, may be sued for damages by· the intending
buyer (Coronel v. CA, G.R. No. 103577, October 7, 1996). X, a dressmaker, accepted clothing materials from Karla to make
two dresses for her. On the day X was supposed to deliver Karla’s
Danny and Elsa were married in 2002. In 2012, Elsa left the conju- dresses, X called up Karla to say that she had an urgent matter to
gal home and her two minor children with Danny to live with her attend to and will deliver them the next day. That night, however, a
paramour. In 2015, Danny sold without Elsa's consent a parcel of robber broke into her shop and took everything including Karla’s
land registered in his name that he had purchased prior to. the two dresses. X claims she is not liable to deliver Karla’s dresses
marriage. Danny used the proceeds of the sale to pay for his chil- or to pay for the clothing materials considering she herself was a
dren's tuition fees. Is the sale valid, void or voidable? Explain victim of the robbery which was a fortuitous event and over which
your answer. (3%) ’17—Q9 she had no control. Do you agree? Why? (3%) ‘15 - Q10
The sale of the parcel of land is void. There is no indication in the facts Yes, I agree that X is not liable. The contract between the parties is a
that Danny and Elsa executed a marriage settlement prior to their mar- contract for a piece of work wherein the contractor, X, bound herself to
riage. As the marriage was celebrated during the effectivity of the Fam- execute a piece of work for the employer, Karla, in consideration of a
ily Code and absent a marriage settlement, the property regime be- certain price or compensation (Art. 1713, Civil Code). Article 1717 of
tween the spouses is the Absolute Community of Property (Article 75, the Civil Code provides that if the contractor bound himself to furnish
FC). the material, he shall suffer the loss if the work should be destroyed
Under the Absolute Community of Property regime, the parcel of land before its deliver, save when there has been a delay in receiving it.
belongs to the community property as the property he had brought into Since the contractor X did not furnish the material, she shall not suffer
the marriage even if said property were registered in the name of Dan- the loss of the work which took place before its delivery. There was no
ny (Article 91, FC). In addition, said property do not fall under any of delay in the receipt of the work since the parties agreed to the delivery
the exceptions under Article 92. Therefore, the sale of the property is of the dresses on the day after the original date of delivery. Hence, X is
void, because it was executed without the authority of the court or the not bound to suffer the loss, and is liable for neither the delivery of the
written consent of the other spouse (Article 96, 100, FC). dresses nor the cost of the materials.
!78
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
ALTERNATIVE ANSWER Z, a gambler, wagered and lost P2 Million in baccarat, a card
games. He was pressured into signing a Deed of Absolute Sale in
No, I do not agree. The obligation involved in this case is an obligation favor of the winner covering a parcel of land with improvements
to do, since X’s obligation is to make dresses for Karla. Under Article worth P20 Million. One month later, the supposed vendee of the
1167 of the Civil Code, if a person obliged to do something fails to do it property demand that he and his family vacate the property sub-
the same shall be executed at his cost. Although X may not be com- ject of the deed of sale. Was the deed of sale valid? What can Z
pelled to deliver the dresses to Karla, she may be held liable for the do? (4%) ‘15 - Q17
cost of having another person to make the dresses for Karla, which
including the cost of the materials. No, the Deed of Sale was not valid. Under Article 2014 of the Civil
Code, no action can be maintained by the winner for the collection of
Jackie, 16, inherited a townhouse. Because she wanted to study what he has won in a game of chance. In this case, the Deed of Sale
in an exclusive school, she sold her townhouse by signing a Deed represents the winnings in the baccarat game; hence, it was made for
of Sale and turning over possession of the same to the buyer. illegal consideration, and is void.
When the buyer discovered that she was still a minor, she
promised to execute another Deed of Sale when she turns 18. Nante, a registered owner of a parcel of land in Quezon City, sold
When Jackie turned 25 and was already working, she wanted to the property to Monica under a deed of sale which reads as fol-
annul the sale and return the buyer’s money to recover her town- lows:
house. Was the sale contract void, voidable or valid? Can Jackie
still recover the property? Explain. (4%) ‘15 - Q11 “That for and in consideration of the sum of P 500,00.00,
value to be paid and delivered to me, and receipt of
The contract of sale is voidable. Where one of the parties in incapable which shall be acknowledged by me to the full satisfac-
of giving consent to a contract, the contract is voidable. (Art. 1390, Civil tion of Monica, referred to as Vendee, I hereby sell,
Code.) It appears that only Jackie was incapacitated by virtue of her transfer, cede, convey, and assign, as by these presents,
minority.
I do have sold, transferred, ceded, conveyed and as-
signed a parcel of land covered by TCT No. 2468 in favor
Jackie cannot recover the property. First, since the contract is voidable, of the Vendee.”
Jackie only had 4 years from the time she attained the age of majority
to bring the action for annulment of the contract (Art. 1391, Civil Code). After delivery of the initial payment of P100,000.00, Monica imme-
In this case, Jackie should have brought the action for annulment of diately took possession of the property. Five (5) months after,
the contract within four years after turning eighteen years old, or up Monica failed to pay the remaining balance of the purchase price.
until the age of twenty-two. Since she is already 25 years old, the peri- Nante filed an action for the recovery of possession of the proper-
od for bringing the action has prescribed. Second, Jackie may be con- ty. Nante alleged that the agreement was one to sell, which was
sidered to have actively misrepresented as to her age. Thus, she will not consummated as the full contract price was not paid.
be bound to the contract under the principle of estoppel.
Is the contention to Nante tenable? Why? (4%) ‘14 - Q4
a) X and Y are partners in a shop offering portrait painting.
Y provided the capital and the marketing while X was the No, the contention of Nante that it is one to sell is untenable. There is a
portrait artist. They accepted the P50,000.00 payment of perfected contract of sale in this case when Nante agreed to sell and
Kyla to do her portrait but X passed away without being Monica agreed to buy the subject parcel of land at its agreed price.
able to do it. Can Kyla demand that Y deliver the portrait Under Article 1478 of the Civil Code, there is a perfected contract of
she had paid for because she was dealing with the busi- sale at the moment there is a meeting of the minds upon the thing
ness establishment and not with the artist personally? which is the object of the contract and upon the price. Ownership was
Why or why not? (3%) ‘15 - Q13a transferred upon delivery or upon the taking of possession by Monica,
the buyer. The non-payment of the full price affects the consummation
No, Kyla cannot validly demand that Y deliver the portrait. Although she of the contract of sale and not its perfection.
may be correct that it is the partnership that she contracted with, Kyla
cannot demand that Y deliver the portrait if the intention of the parties The case of Heirs of Atienza v. Espidol (G.R. No. 180665, August 11,
was that the portrait should be done by X and this is precisely why the 2010), differentiated a contract of sale and a contract to sell. In a con-
obligation was constituted. With the death of X, the obligation was tract of sale, the title to the property passes to the buyer upon the de-
extinguished because it is a purely personal obligation which is extin- livery of the thing sold. In a contract to sell, on the other hand, the
guished upon the death of the obligor. Finally, the obligation is an ownership is, by agreement, retained by the seller and is not to pass to
obligation to do. To oblige the surviving partner, Y, to deliver the paint- the vendee until full payment of the purchase price. In the contract of
ing (do the painting) would be tantamount to an involuntary servitude, sale, the buyer’s non-payment of the price is a negative resolutory
which is against the law. condition; in the contract to sell, the buyer’s full payment of the price is
a positive suspensive condition to the coming into effect of the agree-
ALTERNATIVE ANSWER ment. In the first case, the seller has lost and cannot recover the own-
ership of the property unless he takes action to set aside the contract
Yes. Art. 1768 states that a partnership has a juridical personality sepa- of sale. In the second case, the title simply remains in the seller if the
rate and distinct from that of each of the partners. The facts do not buyer does not comply with the condition precedent of making pay-
allege that Kyla contracted for a purely personal service, hence the ment at the time specified in the contract.
partnership is the entity which she contracted with, so even upon the
death of X, she can demand that Y as the remaining partner deliver the The agreement in this case is not a contract to sell because nothing in
portrait in fulfilment of the obligation of the partnership to her. the facts shows that the parties agreed that ownership is retained by
!79
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Nante (seller) and is not to pass to Monica (buyer) until full payment of financing of real estate on instalment payments, including residential
the purchase price. condominium apartments, but excluding industrial lots, commercial
buildings and sales to tenants. Since the subject of the case is an in-
Tess leased her 1,500 sq.m. lot in Antipolo City to Ruth for a peri- dustrial land, Maceda Law is not applicable.
od of three (3) years, from January 2010 to February 2013. On
March 19, 2011, Tess sent a letter to Ruth, part of which reads as Sergio is the registered owner of a 500-square meter land. His
follows: friend Marcelo, who has long been interested in the property, suc-
ceeded in persuading Sergio to sell it to him. On June 2, 2012,
they agreed on the purchase price of P600,000 and that Sergio
*I am offering you to buy the property you are presently
would give Marcelo up to June 30, 2012 within which to raise the
leasing at P5,000.00 per sq. m. or for a total of amount. Marcelo, in a light tone usual between them, said that
P7,500,000.00. You can pay the contract price by in- they should seal their agreement through a case of Jack Daniels
stallment for two (2) years without interest. I will give Black and P5,000 “pulutan” money which he immediately handed
you a period of one (1) year from the receipt of this letter to Sergio and which the latter accepted. The friends then sat
to decide whether you will buy the property.* down and drank the first bottle from the case of bourbon.
After the expiration of the lease contract, Tess sold the property On June 15, 2013, Sergio learned of another buyer, Roberto who
to her niece for a total consideration of P4,000,000.00. Ruth filed a was offering P800,000 in ready cash for the land. When Roberto
complaint for the annulment of the sale, reconveyance and dam- confirmed that he could pay in cash as soon as Sergio could get
ages against Tess and her niece. Ruth alleged that the sale of the the documentation ready, Sergio decided to withdraw his offer to
leased property violated her right to buy under the principle of Marcelo, hoping to just explain matters to his friend. Marcelo,
right of first refusal. however objected when the withdrawal was communicated to
him, taking the position that they have a firm and binding agree-
Is the allegation of Ruth tenable? (4%) ‘14 - Q8 ment that Sergio cannot simply walk away from because he has
an option to buy that is duly supported by a duly accepted valu-
The allegation of Ruth is untenable. There was no right of refusal of- able consideration.
fered to her, the wording of the letter can at most be considered a mere
offer to sell or lease with an option to buy. (A) Does Marcelo have a cause of action against Sergio?
(5%) ‘13 - Q3A
In Sanchez v. Rigos (G.R. No. L-25494, June 14, 1972), the Court held
that in order that a unilateral promise to buy or to sell may be binding Yes. Marcelo has a cause of action against Sergio.
upon the promisor, Article 1479 of the Civil Code requires that said
promise be supported by a consideration distinct from the price. The Under Article 1324, when the offerer has allowed the offeree a certain
promisor cannot be compelled to comply with the promise, unless the period to accept, the offer may be withdrawn at any time before accep-
existence of a consideration distinct from the price is established. In tance by communicating such withdrawal, except when the option is
the present case, there was no valuable or independent consideration, founded upon a consideration, as something paid or promised.
thus, it cannot be classified as a unilateral promise to sell, but is only a
mere offer to sell. Since there was no valuable or independent consid- An accepted unilateral promise to buy or sell a determinate thing for a
eration, it was not an option contract but a mere option to buy, which price certain is binding upon the promissor if the promise is supported
may be withdrawn at any time. by a consideration distinct from the price (Art. 1479). A consideration in
an option contract may be anything of value, unlike in sale where it
SUGGESTION FOR ADDITIONAL CREDIT: must be the price certain in money or its equivalent (San Miguel Prop-
erties Inc v. Spouses Huang, G.R. No. 137290, July 31, 2000).
The option to buy or the offer to sell given to Ruth is one year from
receipt of Tess’ letter by Ruth. The lease is for three (3) years from Here, the case of Jack Daniels Black and the P5,000 “pulutan” money
January 2010 to February 2013. Tess sent the letter on March 19, was a consideration to “seal their agreement”, an agreement that
2011. The right has already expired when Tess sold the lot to her Marcelo is given until June 30, 2012 to buy the parcel of land. There is
niece. also no showing that such consideration will be considered part of the
purchase price. Thus, Sergio’s unilateral withdrawal of the offer violat-
Spouses Macario and Bonifacia Dakila entered into a contract to ed the Option Contract between Marcelo and him.
sell with Honorio Cruz over a parcel of industrial land in Valen-
zuela, Bulacan for a price of P3,500,000.00. The spouses would ALTERNATIVE ANSWER
give a downpayment of P500,000.00 upon the signing of the con-
tract, while the balance would be paid for the next three (3) con- Yes, Marcelo has a cause of action against Sergio.
secutive months in the amount of P1,000,000.00 per month. The
spouses paid the first two (2) installments but not the last install- There is a perfected contract of sale between the Sergio and Marcelo.
ment. After one (1) year, the spouses offered to pay the unpaid Sergio agreed to sell the 500sq.m. parcel of land to Marcelo for a valu-
balance which Honorio refused to accept. The spouses filed a able consideration of P600,000. By giving Marcelo time to raise money,
complaint for specific performance against Honorio invoking the Sergio had agreed to consummate the sale on June 30, 2012. The
application of the Maceda Law. value of the case of Jack Daniel’s Black and the P5,000 “pulutan”
money is considered the earnest money to seal the bargain and shall
If you are the judge, how will you decide the case? (4%) ‘14 - Q9 form part of the purchase price, and shall be deductible from the price
of P600,000. Sergio has breached the obligations arising from the
I will dismiss the complaint. The invocation of the Maceda Law by the contract and is liable for damages under Article 1170 of the Civil Code
spouses is misplaced. Section 3 of R.A. 6552 (Maceda Law) provides of the Philippines. Being a consensual contract, a sale is perfected by
that it is applicable in all transactions or contracts involving the sale or both parties giving their consent to the thing to be sold and the price to
be paid therefor.
!80
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
the regime of absolute community or conjugal partnership, winnings
(B) Can Sergio claim that whatever they might have agreed from gambling or betting will form part thereof. Also, since the land is
upon cannot be enforced because any agreement relat- part of the absolute community or conjugal partnership of Richard and
ing to the sale of real property must be supported by Rica, it may not be sold or alienated without the consent of the latter
evidence in writing and they never reduced their agree- and any disposition or encumbrance of the property of the community
ment to writing? (3%)‘13 - Q3B or conjugal property without the consent of the other spouse is void
(Art. 96 and Art. 124, Family Code).
No. Sergio’s claim has no legal basis.
b) Eulalia was engaged in the business of buying and sell-
The contract at issue in the present case is the option contract, not the ing large cattle. In order to secure the financial capital,
contract of sale for the real property. Therefore Article 1403 does not she advanced for her employees (biyaheros). She re-
apply. quired them to surrender TCT of their properties and to
execute the corresponding Deeds of Sale in her favor.
The Statute of Frauds covers an agreement for the sale of real proper- Domeng Bandong was not required to post any security
ty or of an interest therein. Such agreement is unenforceable by action, but when Eulalia discovered that he incurred shortage in
unless the same or some note or memorandum, thereof, be in writing cattle procurement operation, he was required to exe-
(Art. 1403€ Civil Code). Here Marcelo and Sergio merely entered into cute a Deed of Sale over a parcel of land in favor of Eu-
an option contract, which refers to a unilateral promise to buy or sell, lalia. She sold the property to her grandneice Jocelyn
which need not be in writing to be enforceable (Sanchez v. Rigos, G.R. who thereafter instituted an action for ejectment against
No. L-25494, June 14, 1972, citing Atkins, Kroll and Co., Inc. v. Cua the Spouses Bandong.
Hican Tek and Southwestern Sugar & Molasses Co. v. Atlantic Gulf &
Pacific Co.). To assert their right, Spouses Bandong filed an action
for annulment of sale against Eulalia and Jocelyn alleg-
ALTERNATIVE ANSWER ing that there was no sale intended but only equitable
mortgage for the purpose of securing the shortage in-
No. Sergio’s claim has no legal basis. curred by Domeng in the amount of P 70, 000.00 while
employed as "biyahero" by Eulalia. Was the Deed of
The contract of sale has already been partially executed which takes it Sale between Domeng and Eulalia a contract of sale or
outside the ambit of the Statute of Frauds. It is well settled in this juris- an equitable mortgage? Explain. (5%) ‘12- Q6b
diction that the Statute of Frauds is applicable only to executory con-
tracts, not to contracts that are totally or partially performed (Carbonnel The contract between Domeng Bandong and Eulalia was an equitable
v. Poncio, G.R. No. L-11231, May 12, 1958). mortgage rather than a contract of sale. The purported deed of sale
was actually intended to merely secure the payment of the shortage
Rica petitioned for the annulment of her ten-year old marriage to incurred by Domeng in the conduct of the cattle-buying operations.
Richard. Richard hired Atty. Cruz to represent him in the proceed- Under Article 1602 of the Civil Code, the contract shall be presumed to
ings. In payment for Atty. Cruz’s acceptance, and legal fees, be equitable mortgage when it may be fairly inferred that the real inten-
Richard conveyed to Atty. Cruz a parcel of land in Taguig that he tion of the parties is simply to secure the payment of a debt or the per-
recently purchased with his lotto winnings. The transfer docu- formance of any other obligation. The present transaction was clearly
ments were duly signed and Atty. Cruz immediately took posses- intended to just secure the shortage incurred by Eulalia because Ban-
sion by fencing off the property’s entire perimeter. dong remained in possession of the property in spite of the execution
of the sale.
Desperately needing money to pay for his mounting legal fees
and his other needs and despite the transfer to Atty. Cruz, Richard a) A contract to sell is the same as a conditional contract
offered the same parcel for land for sale to the spouses Garcia. of sale. Do you agree? Explain your answer. (5%) ‘12 -
After inspection of the land, the spouses considered it a good Q10a
investment and purchased it from Richard. Immediately after the
sale, the spouses Garcia commenced the construction of a three- No. A Contract to sell is a species of conditional sale. The contract to
story building over the land, but they were prevented from doing sell does not sell a thing or property; it sells the right to buy the proper-
this by Atty. Cruz who claimed he has a better right in light of the ty. A conditional sale is subject to the happening or performance of a
prior conveyance in his favor. condition, such as payment of the full purchase priec, or the perfor-
mance of any other prestation to give, to do or not to do. Compliance
Is Atty. Cruz’s claim correct? ‘13 - Q9 with the condition automatically gives the right to the vendee to de-
mand the delivery of the object of the sale. In a contract to sell, howev-
No. Atty. Cruz is not correct. At first glance, it may appear that Atty. er, the compliance with the condition does not automatically sell the
Cruz is the one who has a better right because he first took possession property to the vendee. It merely gives the vendee the right to compel
of the property. However, a lawyer is prohibited under Article 1491 of the vendor to execute the deed of absolute sale.
the Civil Code from acquiring the property and rights which may be the
object of any litigation in which they may take part by virtue of their X was the owner of an unregistered parcel of land. As she was
profession. While the suit is for annulment of marriage and it may be abroad, she advised her sister Y via overseas call to sell the land
argued that the land itself is not the object of the litigation, the annul- and sign a contract of sale on her behalf. Y thus sold the land to
B1 on March 31, 2001 and executed a deed of absolute sale on
ment of marriage, if granted, will carry with it the liquidation of the ab-
behalf of X after B1 fully paid the purchase price. B2, unaware of
solute community or conjugal partnership of the spouses as the case the sale of the land to B1, signified to Y his interest to buy it but
may be (Art. 50 in relation to Art. 43 of the Family Code). Richard pur- asked Y for her authority from X. Without informing X that she had
chased the land with his lotto winnings during the pendency of the suit sold the land to B1, Y sought X for a written authority to sell. X e-
for annulment and on the assumption that the parties are governed by mailed an authority to sell the land. Y thereafter sold the land the
!81
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
on May 1, 2001 to B2 on monthly instalment basis for two years, ty to her at the same price. Alternatively, she asked the court to
the first instalment to be paid at the end of May 2011. extend the lease for another 2 years on the same terms.
Who between B1 and B2 has a better right over the land. ‘10 – 1. Can Iris seek rescission of the sale of the property to
Q16 Dux’s mother?
B2 has a better title. This is not a case of double sale since the YES, because the right of first refusal is included in the contract
first sale was void. The law provided that when a sale of piece of land signed by the parties. Only if the lessee failed to exercise the right of
or any interest therein is through an agent, the authority of the latter first refusal could the lessor lawfully sell the subject property to others,
shall be in writing; otherwise, the sale shall be void (Article 1874, New under no less than the terms and conditions previously offered to the
Civil Code.) The property was sold by Y to B1 without any written au- lessee. Granting that the mother is not a third party, this would make
thority from the owner X. Hence, the sale to B1 was void. her privy to the agreement of Dux and Iris, hence, aware of the right of
first refusal. This makes the mother a buyer in bad faith, hence giving
Jude owned a building which he had leased to several tenants. more ground for rescission of the sale to her (Equatorial Realty Devel-
Without informing his tenants, Jude sold the building to Idelfon- opment, Inc. v. Mayfair Theater, Inc., 264 SCRA 483 [1996].)
so. Thereafter, the latter notified all the tenants that he is the new
owner of the building. Idelfonso ordered the tenants to vacate the Another Alternative Answer:
premises within 30 days from notice because he had other plans
for the building. The tenants refused to vacate, insisting that they NO. Iris cannot seek rescission of the sale of the property to
will do so when the term of their lease have expired. Is Idelfonso Dux’s property because the sale is not one of those rescissible con-
bound to respect the lease contracts between Jude and his ten- tracts under Article 1381 of the Civil Code.
ants? ’09 – Q8
2. Will the alternative prayer for extension of the lease
YES, Idelfonso must respect the lease contracts between Jude proper? ’08 – Q16
and his tenants. While it is true that the said lease contracts were not
registered and annotated on the title to the property, Idelfonso is still NO. The contract stipulated that it may be renewed for another 2-
not an innocent purchaser for value. He ought to know the existence of year period upon mutual agreement of the parties. Contracts are bind-
the lease because the building was already occupied by the tenants at ing between the parties; validity or compliance cannot be left to the will
the time he bought it. Applying the principle of caveat emptor, he of one of the parties (Article 1308, Civil Code.)
should have checked and known the status of the occupants or their
right to occupy the building before buying it. Another Alternative Answer:
Before migrating to Canada in 1992, the spouses Teodoro and It depends. The alternative prayer for extension of the lease may
Anita entrusted all their legal papers and documents to their prosper if (a) there is a stipulation in the contract of sale; (b) Dux’s
nephew, Atty. Tan. Taking advantage of the situation, Atty. Tan mother is aware of the existing contract of lease; or (c) the lease is
forged a deed of sale, making it appear that he had bought the recorded in the Registry of Property (Article 1676, Civil Code.)
couple’s property in QC. In 2000, he succeeded in obtaining a TCT
in his name. Subsequently, Atty. Tan sold the same to Luis, who Spouses Biong and Linda wanted to sell their house. They found
built an auto repair shop on the property. In 2004, Luis registered a prospective buyer, Ray. Linda negotiated with Ray for the sale of
the deed of conveyance, and title over the property was trans- the property. They agreed on a fair price of P2 million. Ray sent
ferred in his name. In 2006, the spouses Teodoro and Anita came Linda a letter confirming his intention to buy the property. Ray
to the Philippines for a visit and discovered what had happened prepared a deed of sale to be signed by the couple and a manag-
to their property. They immediately hire you as a lawyer. What er’s check of P2 million. After receiving the P2 million, Biong
action or actions will you institute in order to vindicate their signed the deed of sale. However, Linda was not able to sigh it
rights? ’09 – Q9 because she was abroad. On her return, she refused to sign the
document saying that she changed her mind. Linda filed suit for
I will institute the following actions against Atty. Tan: nullification of the deed of sale and for moral and exemplary
1. A civil action for damages for the fraudulent transfer of the damages against Ray.
title in his name and to recover the value of the property; 1. Will the suit prosper?
2. An action against the National Treasurer for compensation
from the State Assurance Fund which is set aside by law to The suit will prosper. The sale was void because Linda did not
pay those who lose their land or suffer damages as a conse- give her written consent to the sale.
quence of the operation of the Torrens system; In Jader-Manalo v. Camaisa, 374 SCRA 498 [2002], the Supreme
3. A criminal action for forgery or falsification of public docu- Court has ruled that the sale of conjugal property is void if both spous-
ment; and es have not given their written consent to it and even if the spouse who
4. A complaint with the Supreme Court / Integrated Bar of the did not sign the Deed of Sale participated in the negotiation of the con-
Philippines to disbar or suspend him or other disciplinary tract. In Abalos v. Macatangay, 439 SCRA 649 [2004], the Supreme
action for violation of the Code of Professional Ethics. Court held that for the sale to be valid, the signatures of the spouses to
Any action against Luis will not prosper because he is an innocent signify their written consent must be on the same document.
purchaser for value. The Title to the land he bought was already in the In this case, Linda, although she was the one who negotiated the
name of the person who sold the property to him and there is nothing sale, did not give her written consent to the sale. However, Linda will
on the title which will make him suspect about the fraud committed by not be entitled to damages because Ray is not, in anyway, in bad faith.
Atty. Tan.
2. Does Ray have any cause of action against Biong and
Dux leased his house to Iris for a period of 2 years, at the rate of Linda? Can he also recover damages from the spouses?
P25,000 monthly, payable annually in advance. The contract stipu- ’06 – Q5
lated that it may be renewed for another 2-year period upon mu-
tual agreement of the parties. The contract also granted Iris the YES, Ray has a cause of action against Linda and Biong for the
right of first refusal to purchase the property at any time during return of the P2 million pesos he paid for the property. He may recover
the lease, if Dux decides to sell the property at the same price that damages from the spouses, if it can be proven that they were in bad
the property is offered for sale to a third party. 23 months after faith in backing out from the contract, as this is an act contrary to
execution of the lease contract, Dux sold the house to his mother morals and good customs under Articles 19 and 21 of the Civil Code.
for P2 million. Iris claimed that the sale was a breach of her right
of first refusal. Dux said that there was no breach because the Bernie bought on installment a residential lot from DEVLAND.
property was sold to his mother who is not a third-party. Iris filed After having faithfully paid the installments for 48 months, Bernie
an action to rescind the sale and to compel Dux to sell the proper- discovered that DEVLAND had failed to develop the subdivision
!82
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
in accordance with the approved plans and specifications within remained in possession of the land; that he bound himself to pay the
the time frame in the plan. He thus wrote a letter to DEVLAND realty taxes during the period of the lease, are matters collectively and
informing it that he was stopping payment. Consequently, DEV- strongly indicating that the Deed of Absolute Sale is an equitable mort-
LAND cancelled the sale and wrote Bernie that his payments are gage. In case of doubt, the Deed of Sale should be considered as a
forfeited in its favor. loan with mortgage, because this juridical relation involves a lesser
1. Was the action of DEVLAND proper? transmission of rights and interests.
If the transaction is proven to be an equitable mortgage, Pedro’s
Assuming that land is a residential subdivision project under P.D. prayer for reformation of the instrument should be granted in accor-
No. 957 (The Subdivision and Condominium Buyers Protection De- dance with Article 1605 of the Civil Code. Thus, in case of non-pay-
cree), DEVLAND’s action is not proper because under Section 23 of ment, Juan may foreclose the mortgage and consolidate his ownership
P.D. No. 957, no installment payment shall be forfeited to the owner or of the land. In that event, Juan’s counterclaim to recover possession of
development when the buyer, after due notice, desists from further the land and to compel Pedro to surrender the Owner’s Duplicate Copy
payment due to the failure of the owner-developer to develop the sub- of the title becomes a consequential right.
division according to the approved plans and within the time limit for
complying with the same. May a person sell something that does not belong to him? ’03 –
Q15a
2. Discuss the rights of Bernie under the circumstances.
YES, a person may sell something which does not belong to him.
Under the same Section of the Decree, Bernie may, at his option, For the sale to be valid, the law does not require the seller to be the
be reimbursed the total amount paid including amortization interests owner of the property at the time of the sale (Article 1434, NCC.) If the
but excluding delinquency interests at the legal rate. He may also ask seller cannot transfer ownership of the thing sold at the time of delivery
the Housing and Land Use Regulatory Board to apply penal sanctions because he was not the owner thereof, he shall be liable for breach of
against DEVLAND consisting of payment of administrative fines not contract.
more than P20,000 and/or imprisonment for not more than 20 years.
X sold a parcel of land to Y on January 1, 2002, payment and de-
3. Supposing DEVLAND had fully-developed the subdivi- livery to be made on February 2002. It was stipulated that if pay-
sion but Bernie failed to pay further installments after 4 ment were not to be made by Y on February 1, 2002, the sale be-
years due to business reverses. Discuss the rights and tween the parties would automatically be rescinded. Y failed to
obligations of the parties. ’05 – Q10 pay on February 1, 2002, but offered to pay 3 days later, which
payment X refused to accept, claiming that their contract of sale
Under R.A. No. 6552 (Maceda Law), DEVLAND has the right to had already been rescinded. Is X’s contention correct? ’03 – Q16
cancel the contract but it has to refund Bernie the cash surrender value
of the payments on the property equivalent to 50% of the total pay- NO, X is not correct.
ments made. In the sale of immovable property, even though it may have been
stipulated, as in this case, that upon failure to pay the price at the time
Additional Suggested Answer: agreed upon, the rescission of the contract shall of right take place, the
vendee may pay, even after the expiration of the period, as long as no
Bernie has the right to pay, without additional interest, the unpaid demand for rescission of the contract has been made upon him either
installments within a grace period granted him by R.A. No. 6552 equiv- judicially or by a notarial act (Article 1592, Civil Code.)
alent to one-month for every year of installment payments, or four (4) Since no demand for rescission was made on Y, either judicially of
months in this case. After the lapse of four months, DEVLAND may by a notarial act, X cannot refuse to accept payment offered by Y three
cancel the contract after thirty (3) days therefrom and after Bernie re- (3) days after the expiration of the period.
ceives a notice of cancellation or demand for rescission of the contract
by notarial act (Section 4, R.A. No. 6552.) Bernie has also the right to Another Suggested Answer:
sell or assign his rights before the cancellation of the contract (Section
5, R.A. No. 6552.) This is a contract to sell and not a contract of absolute sale, since
there was no delivery of the land. Article 1592 of the Civil Code is not
On July 14, 2004, Pedro executed in favor of Juan a Deed of Abso- applicable. Instead, Article 1595 of the Civil Code applies. The seller
lute Sale over a registered parcel of land. It appears in the Deed of has two alternative remedies: (1) specific performance; or (2) rescis-
Sale that Pedro received from Juan P120,000 as purchase price. sion or resolution under Article 1191 of the Civil Code. In both reme-
However, Pedro retained the owner’s duplicate of said title. dies, damages are due because of default.
Thereafter, Juan, as lessor and Pedro, as lessee, executed a con-
tract of lease over the property for a period of 1 year with a Alternative Answer:
monthly rental of P1,000. Pedro, as lessee, was obligated to pay
realty taxes on the property during the period of the lease. Sub- YES, the contact was automatically rescinded upon Y’s failure to
sequently, Pedro filed a complaint against Juan for reformation of pay on February 1, 2002. By the express terms of the contract, there is
the Deed of Absolute Sale, alleging that the transaction covered no need for X to make a demand in order for rescission to take place
by the deed was an equitable mortgage. In his Answer, Juan al- (Article 1191, Civil Code; Suria v. Intermediate Appellate Court, 151
leged that the property was sold to him under the Deed of Abso- SCRA 661 [1987]; U.P. v. De los Angeles, 35 SCRA 102 [1970].)
lute Sale, and interposed counterclaims to recover possession of
the property and to compel Pedro to turn over to him the owner’s Adela and Beth are co-owners of a parcel of land. Beth sold her
duplicate of title. Resolve the case. ’05 – Q12 undivided share of the property to Zandro, who promptly notified
Adela of the sale and furnished the latter a copy of the deed of
An equitable mortgage arises from a transaction, regardless of its absolute sale. When Zandro presented the deed for registration,
form, which results into a security, or an offer, or attempt to pledge land the Register of Deeds also notified Adela of the sale, enclosing a
as security for a debt or liability. Its essence is the intent of the parties copy of the deed with the notice. A year later, Zandro filed a peti-
to create a mortgage, lien or charge on the property sufficiently de- tion for the partition of the property. Upon receipt of the sum-
scribed or identified to secure an obligation, which intent must be clear- mons, Adela immediately tendered the requisite amount for the
ly established in order that such a mortgage may exist. redemption. Zandro contents that Adela lost her right of redemp-
Defendant’s defense that he acquired the land through an Abso- tion after the expiration of 30 days from receipt of the notice of
lute Deed of Sale and through pacto de retro is untenable. The pre- the sale given by him. May Adela still exercise her right of re-
sumption of equitable mortgage under Article 1602 of the Civil Code, demption? ’02 – Q12
equally applies to a contract purporting to be an absolute sale (Article
1604, NCC.) The facts and circumstances that Pedro retained posses- YES, Adela may still exercise her right of redemption not-
sion of the Owner’s Duplicate Copy of the Certificate of Title; that he withstanding the lapse of more than 30 days from notice of the sale
!83
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
given to her because Article 1623 of the Civil Code requires that the
notice in writing of the sale must come from the prospective vendor or The first buyer is still to be preferred, where the second sale is
vendor as the case may be. In this case, the notice of the sale was registered ahead of the first sale but with knowledge of the latter. This
given by the vendee and the Register of Deeds. The period of 30 days is because the second buyer, who at the time he registered his sale
never tolled. She can still avail of that right. knew that the property had already been sold to someone else, acted
in bad faith (Article 1544, CC.)
Alternative Main Answer:
On January 1, 1980, Nestor leased the fishpond of Mario for a
Adela can no longer exercise her right of redemption. As co-own- period of 3 years at a monthly rental of P1,000, with an option to
er, she had only 30 days from the time she received written notice of purchase the same during the period of the lease for the price of
the sale which in this case took the form of a copy of the deed of sale P500,000. After the expiration of the 3-year period, Mario allowed
being given to her (Conejero v. Court of Appeals, SCRA 775 [196].) Nestor to remain in the leased premises at the same rental rate.
The law does not prescribe any particular form of written notice, nor On June 15, 1983, Nestor tendered the amount of P500,000 to
any distinctive method for notifying the redemptioner (Etcuban v. Court Mario and demanded that the latter execute a deed of absolute
of Appeals, 148 SCRA 507 [1987].) So long as the redemptioner was sale of the fishpond in his favor. Mario refused, on the ground
informed in writing, he has no cause to complain (Distrito v. Court of that Nestor no longer had an option to buy the fishpond. Nestor
Appeals, 197 SCRA 609 [1991].) In fact in Distrito, a written notice was filed an action for specific performance. Will the action prosper or
held unnecessary where the co-owner had actual knowledge of the not? '01 – Q14
sale, having acted as middlemen and being present when the vendor
signed the deed of sale. NO, the action will not prosper. The implied renewal of the lease
on a month-to-month basis did not have the effect of extending the life
Bert offers to buy Simeon’s property under the following terms of the option to purchase which expired at the end of the original lease
and conditions: P1M purchase price, 10% option money, the bal- period. The lessor is correct in refusing to sell on the ground that the
ance payable in cash upon the clearance of the property of all option had expired.
illegal occupants. The option money is promptly paid and Simeon
clears the property of all illegal occupants in no time at all. How- Arturo gave Richard a receipt which states:
ever, when Bert tenders payment of the balance and asks Simeon Receipt
for the deed of absolute title, Simeon suddenly has a change of
heart as he has found out that the property can fetch thrice the Receipt Received P50,000
agreed purchase price. Bert seeks specific performance but from Richard as
Simeon contends that he has merely given Bert an option to buy down payment for
and nothing more, but offers to return the option money which my
Bert refuses to accept. 1995 Toyota
1. Explain the nature of an option contract. Corolla with plate
No. XYZ-123
An option contract is one granting a privilege to buy or sell within
Balance Payable: P50,000
an agreed time and at a determined price. It must be supported by a
12/30/01
consideration distinct from the price (Articles 1479 and 1482, NCC.)
September 15,
2. Will Bert’s action for specific performance proper?
2001
Bert’s action for specific performance will prosper because there
(Sgd.) Arturo
was a binding agreement of sale, not just an option contract. There
was a sale perfected upon acceptance by Simeon of 10% of the
agreed price. This amount is in reality earnest money which under
Article 1482, “shall be considered as part of the price and as proof of
the perfection of the contract” (Topacio v. Court of Appeals, 211 SCRA Does this receipt evidence a contract to sell? ’01 – Q16
291 [1992]; Villongco Realty v. Bormaheco, 65 SCRA 352 [1975].)
It is a contract of sale because the seller did not reserve owner-
3. May Simeon justify his refusal to proceed with the sale ship until he was fully paid.
by the fact that the deal is financially disadvantageous
to him? ’02 – Q14 Betty and Lydia were co-owners of a parcel of land. Last January
31, 2001, when she paid her real estate tax, Betty discovered that
Simeon cannot justify his refusal to proceed with the sale by the Lydia had sold her share to Emma on November 10, 2000. The
fact that the deal is financially disadvantageous to him. Having made a following day, Betty offered to redeem her share from Emma, but
bad bargain is not a legal ground for pulling out of a binding contract of the latter replied that Betty's right to redeem has already pre-
sale, in the absence of some actionable wrong by the other party scribed. Is Emma correct or not? ’01 – Q19
(Vales v. Villa, 35 Phil. 769 [1916]), and no such wrong has been
committed by Bert. Emma, the buyer, is not correct. Betty can still enforce her right of
legal redemption as a co-owner. Article 1623 of the Civil Code gives a
On June 15, 1995, Jesus sold a parcel of registered land to Jaime. co-owner 30 days from written notice of the sale by the vendor to exer-
On June 30, 1995, he sold the same land to Jose. Who has a bet- cise his right of legal redemption. In the present problem, the 30-day
ter right if: period for the exercise by Betty of her right of redemption had not even
1. The first sale is registered ahead of the second sale, begun to run because no notice in writing of the sale appears to have
with knowledge of the latter. been given to her by Lydia.
The first buyer has the better right if his sale was first to be regis- Priscilla purchased a condominium unit in Makati City from the
tered, even though the first buyer knew of the second sale. The fact Citiland Corp. for a price of P10M, payable P3M down and the
that he knew of the second sale at the time of his registration does not balance with interest thereon at 14% per annum payable in 60
make him as acting in bad faith because the sale to him was ahead in equal monthly installments of P198,333.33. They executed a Deed
time, hence, has a priority in right. What creates bad faith in the case of Conditional Sale in which it is stipulated that should the
of double sale of land is knowledge of a previous sale. vendee fail to pay 3 successive installments, the sale shall be
deemed automatically rescinded without the necessity of judicial
2. The second sale is registered ahead of the first sale, action and all payments made by the vendee shall be forfeited in
with knowledge of the latter. ’01 – Q12 favor of the vendor by way of rental for the use and occupancy of
!84
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
the unit and as liquidated damages. For 46 months, Priscilla paid to a third person who knew about the lease and in fact agreed to
the monthly installments religiously, but on the 47th and 48th respect it. Consequently, the lessee brings an action against both
months, she failed to pay. On the 49th month, she tried to pay the the lessor-seller and the buyer (a) to rescind the sale and (b) to
installments due but the vendor refused to receive the payments compel specific performance of his right of first refusal in the
tendered by her. The following month, the vendor sent her a no- sense that the lessor should be ordered to execute a deed of ab-
tice that it was rescinding the Deed of Conditional Sale pursuant solute sale in favor of the lessee at the same price. The defen-
to the stipulation for automatic rescission, and demanded that dants contend that the plaintiff can neither seek rescission of the
she vacate the premises. She replied that the contract cannot be sale nor compel specific performance of a “mere” right of first
rescinded without judicial demand or notarial act pursuant to refusal. Decide the case. '98 – Q10
Article 1592 of the Civil Code.
1. Is Article 1592 applicable? The action filed by the lessee, for both rescission of the offending
sale and specific performance of the right of first refusal which was
Article 1592 of the Civil Code does not apply to a conditional sale. violated, should prosper. The ruling in Equatorial Realty Development,
In Valarao v. Court of Appeals, 304 SCRA 155 [1999], the Supreme Inc. v. Mayfair Theater, Inc. (264 SCRA 483 [1996]), a case with similar
Court held that Article 1592 applies only to a contract of sale and not to facts, sustains both rights of action because the buyer in the subse-
a Deed of Conditional Sale where the seller has reserved title to the quent sale knew the existence of right of first refusal, hence in bad
property until full payment of the purchase price. The law applicable is faith.
the Maceda Law.
Another Answer:
2. Can the vendor rescind the contract? ’00 – Q13
The action to rescind the sale and to compel the right to first re-
NO, the vendor cannot rescind the contract under the circum- fusal will not prosper (Ang Yu Asuncion v. Court of Appeals, 238 SCRA
stances. Under the Maceda Law, which is the law applicable, the seller 602 [1994].) The Court ruled in a unanimous en banc decision that the
on installment may not rescind the contract till after the lapse of the right of first refusal is not founded upon contract but on a quasi-delict-
mandatory grace period of 30 days for every one year of installment ual relationship covered by the principles of human relations and unjust
payments, and only after 30 days from notice of cancellation or de- enrichment (Article 19, et seq. Civil Code). Hence the only action that
mand for rescission by a notarial act. In this case, the refusal of the will prosper according to the Supreme Court is an “action for damages
seller to accept payment from the buyer on the 49th month was not in a proper forum for the purpose.”
justified because the buyer was entitled to 60 days grace period and
the payment was tendered within that period. Moreover, the notice of State the basic difference (only in their legal effects) between a
rescission served by the seller on the buyer was not effective because contract to sell, on the one hand, and a contract of sale, on the
the notice was not by a notarial act. Besides, the seller may still pay other. '97 – Q15a
within 30 days from such notarial notice before rescission may be ef-
fected. All these requirements for a valid rescission were not complied In a CONTRACT OF SALE, ownership is transferred to the buyer
with by the seller. Hence, the rescission is invalid. upon delivery of the object to him; while in a CONTRACT TO SELL,
ownership is retained by the seller until the purchase price is fully paid.
What is the so-called Maceda law in connection with sales on In a contract to sell, delivery of the object does not confer owner-
installments? Give the most important features of the law. '99 – ship upon the buyer.
Q13 In a contract of sale, there is only one contract executed between
the seller and the buyer, while in a contract to sell, there are two con-
The MACEDA LAW (R.A. No. 6552) is applicable to sales of im- tracts, first the contract to sell (which is a conditional or preparatory
movable property on installments. The most important features are sale) and a second, the final deed of sale or the principal contract
(Rillo v. Court of Appeals, 247 SCRA 461 [1995]): which is executed after full payment of the purchase price.
(1) After having paid installments for at least two (2) years, the
buyer is entitled to a mandatory grace period of one month for State the basic difference (only in their legal effects) between a
every year of installment payments made, to pay the unpaid conditional sale, on the one hand, and an absolute sale, on the
installments without interest. other hand. ’97 – Q15b
If the contract is cancelled, the seller shall refund to the buyer
the cash surrender value equivalent to fifty percent (50%) of A CONDITIONAL SALE is one where the vendor is granted the
the total payments made, and after five years of installments, right to unilaterally rescind the contract predicated on the fulfillment or
an additional five percent (5%) every year but not to exceed non-fulfillment, as the case may be, of the prescribed condition.
ninety percent (90%) of the total payments made. An ABSOLUTE SALE is one where the title to the property is not
(2) In case the installments paid were less than 2 (2) years, the reserved to the vendor or if the vendor is not granted the right to re-
seller shall give the buyer a grace period of not less than sixty scind the contract based on the fulfillment or non-fulfillment, as the
(60) days. If the buyer fails to pay the installments due at the case may be, of the prescribed condition.
expiration of the grace period, the seller may cancel the con-
tract after thirty (30) days from receipt by the buyer of the no- In December 1985, Salvador and the Star Semiconductor Compa-
tice of cancellation or demand for rescission by notarial act. ny (SSC) executed a Deed of Conditional Sale wherein the former
agreed to sell his 2,000 square meter lot in Cainta, Rizal, to the
What is the so-called Recto law in connection with sales on in- latter for the price of P1,000,000, payable P100,000 down, and the
stallments? Give the most important features of the law. '99 – Q13 balance 60 days after the squatters in the property have been
removed. If the squatters are not removed within six months, the
The RECTO LAW (Article 1484, NCC) refers to sale of movables P100,000 down payment shall be returned by the vendor to the
payable in installments and limiting the right of seller, in case of default vendee, Salvador filed ejectment suits against the squatters, but
by the buyer, to one of three remedies: in spite of the decisions in his favor, the squatters still would not
a) Exact fulfillment; leave. In August, 1986, Salvador offered to return the P100,000
b) Cancel the sale if two or more installments have not been down payment to the vendee, on the ground that he is unable to
paid; remove the squatters on the property. SSC refused to accept the
c) Foreclose the chattel mortgage on the things sold, also in money and demanded that Salvador execute a deed of absolute
case of default of two or more installments, with no further sale of the property in its favor, at which time it will pay the bal-
action against the purchaser. ance of the price. Incidentally, the value of the land had doubled
by that time.
In a 20-year lease contract over a building, the lessee is expressly Salvador consigned the P 100,000.00 in court, and filed an action
granted a right of first refusal should the lessor decide to sell for rescission of the deed of conditional sale, plus damages. Will
both the land and building. However, the lessor sold the property the action prosper? '96 – Q13
!85
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
tion. Therefore, the option may be withdrawn by Ubaldo at any time
NO, the action will not prosper. The action for rescission may be (Article 1324, NCC.)
brought only by the aggrieved party to the contract. Since it was Sal-
vador who failed to comply with his conditional obligation, he is not the
aggrieved party who may file the action for rescission but the Star PARTNERSHIP AND AGENCY
Semiconductor Company. The company, however, is not opting to
rescind the contract but has chosen to waive Salvador's compliance
with the condition which it can do under Article 1545, NCC. b) In this jurisdiction, is a joint venture (i.e., a group of
corporations contributing resources for a specific
Alternative Answer:
project and sharing the profits therefrom) considered a
The action for rescission will not prosper. The buyer has not partnership? (3%) ‘15 - Q13b
committed any breach, let alone a substantial or serious one, to war-
rant the rescission/resolution sought by the vendor. On the contrary, it Yes. The Supreme Court has ruled that a joint venture may be consid-
is the vendor who appears to have failed to comply with the condition ered a species of partnership (Aurbach v. Sanitary Wares Manufactur-
imposed by the contract the fulfillment of which would have rendered ing Corp., 1989; Philex Mining v. CIR, 2008). It has also ruled that “a
the obligation to pay the balance of the purchase price demandable.
joint venture is hardly distinguishable from, and may be likened to, a
Further, far from being unable to comply with what is incumbent upon
it, i.e., pay the balance of the price – the buyer has offered to pay it partnership since their elements are similar, i.e., community of interests
even without the vendor having complied with the suspensive condition in the business and sharing profits and losses. Being a form of part-
attached to the payment of the price, thus waiving such condition as nership, a joint venture is generally governed by the law on partner-
well as the 60-day term in its favor The stipulation that the P100,000.00 ships”. (Litonjua v. Litonjua, 2005).
down payment shall be returned by the vendor to the vendee if the
squatters are not removed within six months, is also a covenant for the ALTERNATIVE ANSWER
benefit of the vendee, which the latter has validly waived by implication
when it offered to pay the balance of the purchase price upon the exe-
cution of a deed of absolute sale by the vendor (Article 1545, NCC.) No, a joint venture is not considered a partnership. Although the
Supreme Court has recognized that for certain purposes, a joint ven-
Ubaldo is the owner of a building which has been leased by ture is a form of partnership and should be governed by the law of
Remigio for the past 20 years. Ubaldo has repeatedly assured partnerships, it has also recognized a distinction between the two
Remigio that if he should decide to sell the building, he will give business forms, and has held that although a corporation cannot enter
Remigio the right of first refusal. On June 30, 1994, Ubaldo in- into a partnership contract, it may however in a joint venture with oth-
formed Remigio that he was willing to sell the building for P5 Mil-
lion. The following day, Remigio sent a letter to Ubaldo offering to ers. (Aurbach v. Sanitary Wares Manufacturing Corp., 1989).
buy the building at P4.5 Million. Ubaldo did not reply. One week
later, Remigio received a letter from Santos informing him that the A lawyer was given an authority by means of a Special Power of
building has been sold to him by Ubaldo for P5 Million, and that Attorney by his client to sell a parcel of land for the amount of P3
he will not renew Remigio's lease when it expires. Remigio filed Million. Since the client owed the lawyer P1 Million in attorney’s
an action against Ubaldo and Santos for cancellation of the sale, fees in a prior case he handled, the client agreed that if the prop-
and to compel Ubaldo to execute a deed of absolute sale in his erty is sold, the lawyer was entitled to get 5% agent’s fee plus P1
favor, based on his right of first refusal.
Million as payment for his unpaid attorney’s fees. The client, how-
1. Will the action prosper?
ever, subsequently found a buyer of his own who was willing to
NO, the action to compel Ubaldo to execute the deed of absolute buy the property for a higher amount. Can the client unilaterally
sale will not prosper. According to Ang Yu Asuncion v. Court of Appeals rescind the authority he gave in favor of his lawyer? Why or why
(238 SCRA 602 [1994]), the right of first refusal is not based on con- not? (4%) ‘15 - Q18
tract but is predicated on the provisions of human relations and, there-
fore, its violation is predicated on quasi-delict. Secondly, the right of No, the client cannot unilaterally rescind the authority he gave in favor
first refusal implies that the offer of the person in whose favor that right
of his lawyer because the agency is coupled with interest, the interest
was given must conform with the same terms and conditions as those
given to the offeree. In this case, however, Remigio was offering only being the attorney’s fees which the client owed the lawyer. Under Art.
P4.5 Million instead of P5 Million. 1927 of the Civil Code, an agency cannot be revoked if a bilateral con-
tract depends upon it, or if it is the means of fulfilling the obligation
Alternative Answer: already contracted, or if a partner is appointed manager of a partner-
ship in the contract of partnership and his removal from the manage-
No, the action will not prosper. The lessee's right of first refusal ment is unjustifiable. In this case, if the lawyer could sell his client’s
does not go so far as to give him the power to dictate on the lessor the
property, the lawyer will be entitled not only to his commission, but also
price at which the latter should sell his property. Upon the facts given,
the lessor had sufficiently complied with his commitment to give the to his attorney's fees. These attorney’s fees were already owed by the
lessee a right of first refusal when he offered to sell the property to the client to his lawyer before the SPA was executed. The agency is a
lessee for P5 Million, which was the same price he got in selling it to means of fulfilling an obligation already contracted.
Santos. He certainly had the right to treat the lessee's counter-offer of
a lesser amount as a rejection of his offer to sell at P5 Million. Thus, he Timothy executed a Memorandum of Agreement (MOA) with
was free to find another buyer upon receipt of such unacceptable Kristopher setting up a business venture covering three (3) fast-
counter-offer (Article 1319, NCC.)
food stores known as “Hungry Toppings” that will be established
2. If Ubaldo had given Remigio an option to purchase the at Mall Uno, Mall Dos and Mall Tres.
building instead of a right of first refusal, will your an-
swer be the same? ’96 – Q14 The pertinent provisions of the MOA provide:
YES, the answer will be the same. The action will not prosper because 1. Timothy shall be considered a partner with thirty percent
an option must be supported by a consideration separate and distinct (30%) share in all the stores to be set-up by Kristopher.
from the purchase price. In this case there is no separate considera- 2. The proceeds of the business, after deducting expens-
es, shall be used to pay the principal amount of
!86
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
P500,000.00 and the interest therein which is to comput- manager of a partnership in the contract of partnership and his removal
ed based on the bank rate, representing the bank loan from the management is unjustifiable.
secured by Timothy;
3. The net profits, if any, after deducting the expenses and In the case of Republic v. Evangelista {G.R. No. 156015, August 11,
payments of the principal and interest shall be divided 2005}, which has similar facts as the present case, it was held that “an
as follows; seventy (70%) for Kristopher and thirty (30%) exception to the revocability of a contract of agency is when it is cou-
for Timothy. pled with interest, i.e., if a bilateral contract depends upon the agency.
4. Kristopher shall have a free hand in running the busi- The reason for its irrevocability is because the agency becomes part of
ness without interference with Timothy, his agents, rep- another obligation or agreement. It is not solely the rights of the princi-
resentatives, or assigns, and should such interference pal but also that of the agent and third persons which are affected.
happen, Kristopher has the right to buy back the share Hence, the law provides that in such cases, the agency cannot be
of Timothy less the amounts already paid on the princi- revoked at the sole will of the principal.”
pal and to dissolve the MOA; and
5. Kristopher shall submit his monthly sales report in con- In this case, the interest of John Paul and Atty. Audrey in the agency is
nection with the business to Timothy. the treasure that may be found in the land. The contract with the lawyer
depends on the agency which renders such agency as one coupled
What is the contractual relation between Timothy and Kristopher? with an interest. Therefore, Joe Miguel cannot unilaterally revoke the
[4%] ‘14 - Q29 agency.
The contractual relationship between Timothy and Kristopher is that of b) A partner cannot demand the return of his share (contri-
partnership. Article 1767 of the Civil Code provides that under a con- bution) during the existence of a partnership. Do you
tract of partnership, two or more persons bind themselves to contribute agree? Explain your answer. (5%)‘12 - Q10b
money, property or industry to a common fund, with the intention of
dividing the profits among themselves. Moreover, Article 1769 of the Yes, he is not entitled to the return of his contribution to the capital of
Civil Code states in part that receipt by a person of a share of the prof- the partnership, but only to the net profits from partnership business
its of a business is prima facie evidence that he is a partner in the during the life of the partnership. If he is a limited partner, however, he
business, provided that the said profits were not received in payment may ask for the return of his contributions as provided in Articles 1856
for debt, as wages, annuity, interest on a loan, or as consideration for a and 1857 of the Civil Code.
sale. In this case, the MOA between Timothy and Kristopher stipulated
that they shall share in the profits of the business 30-70. The contribu- A, B and C entered into a partnership to operate a restaurant
tions of the partners include a bank loan obtained by Timothy and in- business. When the restaurant had gone past break-even stage
dustry in the form of managing the properties by Kristopher. Thus, the and started to garner considerable profits, C died. A and B con-
tinued the business without dissolving the partnership. They in
requisites for establishing a contract of partnership are complied with.
fact opened a branch of the restaurant, including the obligations
in the process. Creditors started demanding for the payment of
Joe Miguel, a well known treasure in Mindanao, executed a Spe- their obligations.
cial Power of Attorney (SPA) appointing his nephew, John Paul, 1. Who are liable for the settlement of the partnership’s
as his attorney-in-fact. John Paul was given the power to deal obligations?
with treasure hunting activities on Joe Miguel’s land and to file
charges against those who may enter it without the latter’s au- The two remaining partners, A and B, are liable. When any part-
thority. Joe Miguel agreed to give John Paul forty percent (40%) of ner dies and the business is continued without any settlement of ac-
counts as between him and his estate, the surviving partners are held
the treasure that may be found on the land.
liable for continuing business despite the death of C (Articles 1841,
1785, par. 2, and 1833 of the New Civil Code.)
Thereafter, John Paul filed a case for damages and injunction
against Lilo for illegally entering Joe Miguel’s land. Subsequently, 2. What are the creditors’ recourse/s? ’10 - Q15
he hired the legal services of Atty. Audrey agreeing to give the
latter thirty percent (30%) of Joe Miguel’s share in whatever trea- Creditors can file the appropriate actions, for instance, an action
sure that may be found in the land. for the collection of sum of money against the “partnership at will” and
if there are no sufficient funds, the creditors may go after the properties
of A and B (Article 816, NCC). Creditors may also sue the estate of C.
Dissatisfied however with the strategies implemented by John The estate is not excused from the liabilities of the partnership even if
Paul, Joe Miguel unilaterally revoked the SPA granted to John C is already dead but only up to the time that he remained a partner
Paul. (Article 1829, 1835, par. 2, NCC; Testate Estate of Mota v. Serra, 47
Phil. 464 [1925].) However, the liability of C’s individual property shall
Is the revocation proper? [4%] ‘14 - Q30 be subject first to the payment of his separate debts (Article 1835,
NCC.)
Yes, the revocation is proper. Article 1920 provides that the principal
An oral partnership is valid. ’09 – Q1c
may expressly or impliedly revoke the agency at will, and compel the
agent to return the document evidencing the agency. Joe Miguel may Partnership is a consensual contract, hence, it is valid even
however be held liable for damages if he abused his right in revoking though not in writing.
the agency.
Another Suggested Answer:
ALTERNATIVE ANSWER:
TRUE. An oral contract of partnership is valid though not in writ-
ing. However, if it involves contribution of an immovable property or a
No, the revocation is not proper. Under Article 1927, an agency, cannot real right, an oral contract of partnership is void. In such a case, the
be revoked if a bilateral contract depends upon it, or if it is the means contract of partnership to be valid, must be in a public instrument (Arti-
of fulfilling an obligation already contracted, or if a partner is appointed cle 1771, NCC), and the inventory of said property signed by the par-
ties must be attached to said public instrument (Article 1773, NCC.)
!87
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Article 1868 of the New Civil Code provides that by the contract of
CX executed a special power of attorney authorizing DY to secure Agency, a person binds himself to render some service or to do some-
a loan from any bank and to mortgage his property covered by thing in representation or on behalf of another, with the consent or
the owner’s certificate of title. In securing a loan from M Bank, DY authority of the latter.
did not specify that he was acting for CX in the transaction with
said bank. Is CX liable for the bank loan? ’04 – Q4b Joe and Rudy formed a partnership to operate a car repair shop in
QC. Joe provided the capital while Rudy contributed his labor and
CX is liable for the bank because he authorized the mortgage on industry. On one side of their shop, Joe opened and operated a
his property to secure the loan contracted by DY. If the latter defaults coffee shop, while on the other side, Rudy put up a car acces-
and fails to pay the loan, CX is liable to pay. However, his liability is sories store. May they engage in such separate businesses? ’01 –
limited to the extent of the value of the said property. Q13
Alternative Answer: Joe, the capitalist partner, may engage in the restaurant business
because it is not the same kind of business the partnership is engaged
CX is not personally liable to the bank loan because it was con- in.
tracted by DY in his personal capacity. Only the property of CX is li- On the other hand, Rudy may not engage in any other business
able. Hence, while CX has authorized the mortgage on his property to unless their partnership expressly permits him to do so because as an
secure the loan of DY, the bank cannot sue CX to collect the loan in industrial partner he has to devote his full time to the business of the
case DY defaults thereon. The bank can only foreclose the property of partnership (Article 1789, CC).
CX. And if the proceeds of the foreclosure are not sufficient to pay the
loan in full, the bank cannot run after CX for the deficiency. Richard sold a large parcel of land in Cebu to Leo for P100 million
payable in annual installments over a period of 10 years, but title
Alternative Answer: will remain with Richard until the purchase price is fully paid. To
enable Leo to pay the price, Richard gave him a power-of-attorney
While as a general rule the principal is not liable for the contract authorizing him to subdivide the land, sell the individual lots, and
entered into by his agent in case the agent acted in his own name deliver the proceeds to Richard, to be applied to the purchase
without disclosing his principal, such rule does not apply if the contract price. 5 years later, Richard revoked the power of attorney and
involves a thing belonging to the principal. In such case, the principal is took over the sale of the subdivision lots himself. Is the revoca-
liable under Article 1883 of the Civil Code. The contract is deemed tion valid or not? ’01 – Q15
made on his behalf (Sy Juco v. Sy Juco, 40 Phil. 634 [1920].)
The revocation is not valid.
Alternative Answer: The power of attorney given to the buyer is irrevocable because it
is coupled with an interest: the agency is the means of fulfilling the
CX would not be liable for the bank loan. CX’s property would obligation of the buyer to pay the price of the land (Article 1927, CC).
also not be liable on the mortgage. Since DY did not specify that he In other words, a bilateral contract (contract to buy and sell the land) is
was acting for CX in the transaction with the bank, DY in effect acted in dependent on the agency.
his own name. In the case of Rural Bank of Bombon v. Court of Ap-
peals, 212 SCRA 25 [1992], the Supreme Court, under the same facts, A foreign manufacturer of computers and a Philippine distributor
ruled that “in order to bind the principal by a mortgage on real property entered into a contract whereby the distributor agreed to order
executed by an agent, it must be upon its face purport to be made, 1,000 units of the manufacturer's computers every month and to
signed and sealed in the name of the principal, otherwise, it will bind resell them in the Philippines at the manufacturer's suggested
the agent only. It is not enough merely that the agent was in fact autho- prices plus 10%. All unsold units at the end of the year shall be
rized to make the mortgage, if he, has not acted in the name of the bought back by the manufacturer at the same price they were
principal. Neither is it ordinarily sufficient that in the mortgage the agent ordered. The manufacturer shall hold the distributor free and
describes himself as acting by virtue of a power of attorney, if in fact harmless from any claim for defects in the units. Is the agreement
the agent has acted in his own name and has set his own hand and one for sale or agency? ’00 – Q18
seal to the mortgage. There is no principle of law by which a person
can become liable on a real estate mortgage which she never execut- The contract is one of agency, not sale. The notion of sale is
ed in person or by attorney in fact.” negated by the following indicia: (1) the price is fixed by the manufac-
turer with the 10% mark-up constituting the commission; (2) the manu-
As an agent, AL was given a guarantee commission, in addition to facturer reacquires the unsold units at exactly the same price; and (3)
his regular commission, after he sold 20 units of refrigerators to a warranty for the units was borne by the manufacturer. The foregoing
customer, HT Hotel. The customer, however, failed to pay for the indicia negate sale because they indicate that ownership over the units
units sold. AL’s principal, DBRI, demanded AL payment for the was never intended to transfer to the distributor.
customer’s accountability. AL objected, on the ground that his job
was only to sell and not to collect payment for units bought by Dielle, Karlo and Una are general partners in a merchandising
the customer. Is AL’s objection valid? Can DBRI collect from him firm. Having contributed equal amounts to the capital, they also
or not? ’04 – Q6b agree on equal distribution of whatever net profit is realized per
fiscal period. After 2 years of operation, however, Una conveys
NO, AL’s objection is not valid and DBRI can collect from AL. her whole interest in the partnership to Justine, without the
Since AL accepted a guarantee commission, in addition to his regular knowledge and consent of Dielle and Karlo.
commission, he agreed to bear the risk of collection and to pay the 1. Is the partnership dissolved?
principal the proceeds of the sale on the same terms agreed upon with
the purchaser (Article 1907, Civil Code.) NO, a conveyance by a partner of his whole interest in a partner-
ship does not of itself dissolve the partnership in the absence of an
Jo-Ann asked her close friend, Aissa, to buy some groceries for agreement (Article 1813, Civil Code.)
her in the supermarket. Was there a nominate contract entered
into between Jo-Ann and Aissa? In the affirmative, what was it? 2. What are the rights of Justine, if any, should she desire
’03 – Q5 to participate in the management of the partnership and
in the distribution of a net profit of P360,000 which was
YES, there was a nominate contract. On the assumption that realized after her purchase of Una's interest? ’98 – Q17
Aissa accepted the request of her close friend Jo-Ann to buy some
groceries for her in the supermarket, what they entered into was the Justine cannot interfere or participate in the management or ad-
nominate contract of Agency. ministration of the partnership business or affairs. She may, however,
!88
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
receive the net profits to which Una would have otherwise been enti- ment entitled "Continuing Guaranty Agreement whereby she ex-
tled. In this case, P120,000 (Article 1813, Civil Code.) pressly agreed to be solidarity liable for the obligation of Kevin.
Can ABC Bank proceed directly against Rosella upon Kevin's
Will the death of a partner terminate the partnership? ’97 – Q17b default even without proceeding against Kevin first? Explain your
answer. (3%) ’17—Q15
YES. The death of a partner will terminate the partnership, by
express provision of par. 5, Article 1830 of the Civil Code.
Yes. Despite the designation of the contract as a "Continuing Guaranty
Will the death of an agent end an agency? ’97 – Q17c Agreement," the terms of the document prevail. Rosella expressly
agreed to be solidarily liable for obligation of Kevin. According to par. 2,
YES. The death of an agent extinguishes the agency, by express pro- Article 2047 of the New Civil Code, if a person binds himself solidarity
vision of par. 3, Article 1919 of the Civil Code. with the principal debtor, the contract is called a suretyship. A surety is
under a direct and primary obligation to the creditor and may be pro-
ceeded against in case the principal debtor does not pay as he is an
CREDIT TRANSACTIONS insurer of the debt. Only a guarantor, an insurer of the principal
debtor's solvency, enjoys the benefit of excussion.
(a) Distinguish antichresis from usufruct. (3%) [Note: It is the panel’s recommendation that due credit should also be
(b) Distinguish commodatum from mutuum. (3%) ’17—Q4 given to examinees who answered that suretyship being an accessory
contract, the principal debtor should be an indispensable party to the
(a) (1) Antichresis is a real security transaction wherein the creditor action against the surety.]
acquires the right to receive the fruits of an immovable of his debtor,
and the obligation to apply them to the payment of the interest if owing, Ellen entrusted her title over the lot where she is residing to
and thereafter to the principal of his credit (Article 2123, NCC). On the Patrick, her nephew, for safekeeping because of her poor eye-
other hand, a usufruct is a real right which authorizes its holder to en- sight. Patrick, a gambler, prepared a Special Power of Attorney
joy the property of another with the obligation of preserving its form empowering him to mortgage the lot. Ellen's signature was
and substance, unless otherwise provided. forged. With the help of Julia who represented herself as Ellen,
(2) Antichresis is always created by contract, while usufruct need not Mega Bank granted a loan to Patrick secured by a mortgage on
arise from contract, because it may also be constituted by law or by Ellen's lot. Due to non-payment, Mega Bank foreclosed the mort-
other acts inter vivos, such as donation, or in a last will and testament gage and was declared the highest bidder. Title was later regis-
or by prescription. tered in the name of the bank. When Ellen was notified that she
(3) The subject matter of antichresis is always a real property while the should vacate the premises, she filed a complaint to nullify the
subject matter or usufruct may either be real property or personal loan with mortgage, the auction sale and the title of Mega Bank on
property. the ground that the bank is not a mortgagee in good faith. Decide
(4) Both create real rights, but antichresis is an accessory contract, the case with reasons. (5%) ’16 – Q11
while usufruct when created by contract is a principal contract.
(5) During the usufruct, the fruits belong to the usufructury not the I will decide in favor of Ellen. Banks, their business being
naked owner, while the antichretic creditor has the right to receive the impressed with public interest, are expected to exercise more care and
fruits with the obligation to apply the fruits to the interest, if owing, and prudence than private individuals in their dealings, even those involv-
thereafter to the principal of the credit (Art. 2132, NCC). ing registered lands. The highest degree of diligence is expected, and
(6) In antichresis the amount of the principal and the interest charge high standards of integrity and performance are even required of it.
must b in writing in order to be valid (Article 2134, NCC) while there is
no particular form required to constitute a valid usufruct. A mortgagee - usually, can rely on what appears on the cer-
(b) (1) In commodatum, the creditor or bailor delivers to the debtor or tificate of title presented by the mortgagor and an innocent mortgagee
bailee consumable or non-consumable property so that the latter may is not expected to conduct an exhaustive investigation on the history of
use the same for a certain time and must return the same thing (Article the mortgagor’s title. This rule is, however, strictly applied against
1933, NCC). In mutuum, the creditor delivers to the debtor money or banking institutions. Mega Bank cannot be considered a mortgagee in
other consumable thing upon the condition that the same amount of good faith as it failed to inspect the disputed property when offered to it
the same kind and quality is paid (Article 1933, NCC). as security for the loan, which could have led it to discover the forged
(2) The subject matter of commodatum maybe a movable or immov- Special Power of Attorney.
able thing, which is ordinarily non-consumable (if the thing borrowed is
consumable, it is merely for display or exhibition), while the subject ALTERNATIVE ANSWER:
matter of mutuum is either money or consumable.
(3) Commodatum is essentially gratuitous, while mutuum may be gra- I will decide in favor of Ellen, the victim of a forged docu-
tuitous or with a stipulation to pay interest. ment. Section 52 of P.D. No. 1529 provides that after the entry of a
(4) In commodatum, there is no transmission of ownership of the thing decree of registration, any subsequent registration procured by a
borrowed then while in mutuum, the borrower acquires ownership of forged deed shall be null and void, even if accompanied by the owner’s
the thing loaned. duplicate certificate of title. In this case, the registered owner, Ellen, did
(5) In commodatum, the same thing borrowed is required to be re- not lose her title, and neither did the mortgagee, Mega Bank, acquire
turned while in mutuum, the borrower discharges his obligation not by any right to the property (Joaquin v. Madrid, 106 Phil. 1060 [I960]). The
returning the identical thing loaned, but by paying its equivalent in kind, bank was defrauded because it believed the imposter who had, without
quality, and quantity. authority, gained possession of Ellen’s certificate of title, and who then
[Note: It is suggested that any three (3) of the above should merit full forged her signature to the deed of mortgage {De Lara v. Ayroso, 95
points]. Phil. 185f (I954j). It is not a mortgagee in good faith.
Kevin signed a loan agreement with ABC Bank. To secure pay- Donna pledged a set of diamond ring and earrings to
ment, Kevin requested his girlfriend Rosella to execute a docu- Jane for P200,000.00. She was made to sign an agreement that if
!89
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
she cannot pay her debt within six months, Jane could immedi- basement of the hotel. Early in the morning, Cris was informed by
ately appropriate the jewelry for herself. After six months, Donna the hotel manager that his car was carnapped. (4%)
failed to pay. Jane then displayed the earrings and ring set in her
jewelry shop in a mall. A buyer, Juana, bought the jewelry set for (A) What contract, if any, was perfected between Cris and
P300,000.00. the Hotel when Cris surrendered the key of his car to the
Hotel’s parking attendant? ‘14 - Q7A
a) Was the agreement which Donna signed with Jane
valid? Explain with legal basis. (2%) ‘15 - Q16a A contract of deposit was perfected between Cris and the Hotel when
Cris surrendered the key of his car to the Hotel’s parking attendant.
No, the agreement that if Donna cannot pay her debt within 6 months, The Triple V Food Services v. Filipino Merchants Insurance Company
Jane could immediately appropriate the jewelry for herself is void as it (G.R. No. 160544, February 21, 2005), it was ruled that when a car is
constitutes pactum commissorium, which is void under the law. Under entrusted to a valet attendant there is a contract of deposit. Article
Art 2088, pactum commissorium, is a provision in a pledge or mort- 1962 of the Civil Code provides that a deposit is constituted from the
gage agreement where the property pledged or mortgaged by the moment a person receives a thing belonging to another, with the oblig-
debtor automatically becomes the property of the creditor in the event ation of safely keeping it and of returning the same (Durban Apart-
the debtor fails to pay the debt or commits a breach of the loan agree- ments v. Pioneer Insurance, G.R. No. 179419, March 30, 2011). Fur-
ment thermore, Article 1998 of the Civil Code provides that the deposit of
effects made by travellers in hotels or inns shall be regarded as neces-
b) Can Donna redeem the jewelry set from Juana by paying sary, and that the keepers of hotels and inns are responsible for the
the amount she owed Jane to Juana? Explain with legal effects deposited as depositaries subject to their being notified of the
basis. (2%). ‘15 - Q16b effects being brought in by the travellers and the taking by the trav-
ellers of such precautions which the hotel or inn-keepers or their sub-
No. Donna cannot redeem the jewelry set from Juana because there is stitutes advised relative to the care and vigilance of such effects, Article
no privity of contract between Donna and Juana. Moreover, Juana is a 1998 of the Civil Code also provides for the liability of the hotel-keeper
third person who purchased the thing in good faith from a merchant for vehicles introduced or placed in the annexes of the hotel, which in
store. Under Art. 1505, even if the seller does not have the right to sell, this case is the basement of the hotel.
the buyer acquires absolute ownership over the thing if he bought it in
a merchant store in good faith, the owner neither having been unlaw- (B) What is the liability, if any, of the Hotel for the loss of
fully deprived thereof, nor was the thing lost. [Sun Brothers v. Velasco Cris’ car? ‘14 - Q7B
(1963)]
The Hotel was constituted as a depositary in this case. Thus, it has the
c) Give an example of a pledge created by operation of law. obligation to safely keep the car which is expected by Cris to be re-
(2%) ‘15 - Q16c turned to him. With the loss of the car, the Hotel is liable for the cost of
the car as actual damages.
Art. 546 states: ‘‘Necessary expenses shall be refunded to every pos-
sessor; but only the possessor in good faith may retain the thing until SUGGESTION FOR ADDITION CREDIT:
he has been reimbursed therefor.
Art. 2001 of the Civil Code provides that the act of a thief or robber,
Useful expenses shall be refunded only to the possessor in good faith who has entered the hotel is not deemed force majeure, unless it is
with the same right of retention, the person who has defeated him in done with the use of arms or through an irresistible force. In this case,
the possession having the option of refunding the amount of the ex- there is no indication that the carnapping was done with the use of
penses or of paving the increase in value which the thing may have arms or through irresistible force; hence, the hotel cannot claim that it
acquired by reason thereof." is not liable for the loss of Cris’ car.
!90
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
As a rule, contracts shall be obligatory in whatever form they may have March, and that it was Gustavo’s negligence in not depositing the
entered into provided all the essential requisites for their validity are check immediately that caused the check to become stale.
present. With regard to its enforceability, a contract of loan is not 1. Can Gustavo now raise the issue that the cashier’s
check is not legal tender?
among those enumerated under Article 1403(2) of the Civil Code,
which are covered by the Statute of Frauds. NO. Gustavo previously accepted a check as payment. It was his
fault why the check became stale. He is now estopped from raising the
It is important to note that under Article 1358 of the Civil Code, all other issue that a cashier’s check is not legal tender.
contracts where the amount involved exceeds five hundred pesos must
appear in writing, even a private one. However, the requirement is not 2. Can Felipe validly refuse to pay Gustavo again?
for the validity of the contract, but only for its greater efficacy.
YES, Felipe can refuse to pay Gustavo, who allowed the check to
become stale.
Difference between “guaranty” and “suretyship.” ’10 – Q3a Although a check is not legal tender (Belisario v. Natividad, 60
Phil. 156), there are instances when a check produces the effects of
Guaranty and Suretyship distinguished: payment, for example: (a) when the creditor is in estoppel or he had
1) The obligation in guaranty is secondary; whereas, in surety- previously promised that he would accept a check (Paras, Civil Code
ship, it is primary. Annotated, Vol. IV, 200 ed., p. 394); (b) when the check has lost its
2) In guaranty, the undertaking is to pay if the principal debtor value because of the fault of the creditor (Article 1249, 2nd Par.), as
cannot pay; whereas, in suretyship, the undertaking is to pay when he has unreasonably delayed in presenting the check for pay-
if the debtor does not pay. ment (PNB v. Seeto, G.R. No. L-4388, August 13, 1952.)
3) In guaranty, the guarantor is entitled to the benefit of excus-
sion; whereas, in suretyship the surety is not so entitled. 3. Can Felipe compel Gustavo to receive US100 instead?
4) Liability in guaranty depends upon an independent agree- ’08 – Q17
ment to pay the obligations of the principal if he fails to do
so; whereas, in suretyship, the surety assumes liability as a Felipe cannot compel Gustavo to receive US$100 because under
regular party. R.A. No. 529, payment of loans should be in Philippine currency at the
5) The Guarantor insures the solvency of the principal debtor; rate of exchange prevailing at the time of the stipulated date of pay-
whereas, the surety insures the debt. ment. Felipe could only compel Gustavo to receive US$100 if they
6) In a guaranty, the guarantor is subsidiarily liable; whereas, in stipulated that the obligation be paid with foreign currency (R.A. No.
a Suretyship, the surety binds himself solidarily with the 4100.)
principal debtor.
(Art. 2047, New Civil Code) The parties to a bailment are the bailor and bailee. ’07 – Q9(1)
Rosario obtained a loan of P100,000 from Jennifer, and pledged A deposit made in compliance with a legal obligation is a neces-
her diamond ring. The contract signed by the parties stipulated sary deposit. ’07 – Q9(2)
that if Rosario is unable to redeem the ring on due date, she will
execute a document in favor of Jennifer providing that the ring A contract of antichresis is always:
shall automatically be considered full payment of the loan. 1. A written contract;
1. Is the contract valid? 2. A contract with a stipulation that the debt will be paid
through receipt of the fruits of an immovable; and
The contract is valid because Rosario has to execute a document 3. Involves the payment of interests, if owing. ’07 – Q9(3)
in favor of Jennifer to transfer ownership of the pledged ring to the
latter. The contract does not amount to pactum commissorium because An assignee in a proceeding under the Insolvency Law does not
it does not provide for the automatic appropriation by the pledge of the have the duty of ensuring that a debtor corporation operate the
thing pledged in case of default of the pledgor. business efficiently and effectively while the proceedings are
pending. ’07 – Q9(4)
2. Will your answer be the same if the contract stipulates
that upon failure of Rosario to redeem the ring on due In order to obtain the proposed settlement of the debtor in an
date, Jennifer may immediately sell the ring and appro- insolvency proceeding, 2/3 of the number of creditors represent-
priate the entire proceeds thereof for herself as full ing 3/5 of the total liabilities must approve the same. ’07 – Q9(5)
payment of the loan? ’09 – Q17
Before he left for Riyadh to work as a mechanic, Pedro left his
NO, my answer will be different. While the contract of pledge is Adventure van with Tito, with the understanding that the latter
valid, the stipulation authorizing the pledge to immediately sell the could use it for one year for his personal or family use while Pe-
thing pledged is void under Article 2088 of the New Civil Code which dro works in Riyadh. He did not tell Tito that the brakes of the van
provides that: “The creditor cannot appropriate things given by way of were faulty. Tito had the van tuned up and the brakes repaired. He
pledge or mortgage or dispose of them x x x .” Jennifer cannot imme- spent the total amount of P15,000. After using the vehicle for 2
diately sell by herself the thing pledged. It must be foreclosed by sell- weeks, Tito discovered that it consumed too much fuel. To make
ing it at a public auction in accordance with the procedure under Article up for the expenses, he leased it to Annabelle. 2 months later,
2112 of the New Civil Code. Pedro returned to the Philippines and asked Tito to return the van.
Unfortunately, while being driven by Tito, the van was accidentally
Felipe borrowed $100 from Gustavo in 1998 when the PHP-US$ damaged by a cargo truck without his fault.
exchange rate was P56-US$1. On March 1, 2008, Felipe tendered 1. Who shall bear the P15,000 spent for the repair of the
to Gustavo a cashier’s check in the amount of P4,135 in payment van?
of his US$100 debt, based on the PHP-US$ exchange rate at that
time. Gustavo accepted the check, but forgot to deposit it until The contract between Pedro and Tito is one of commodatum. Of
September 12, 2008. His bank refused to accept the check be- the P15,000 spent, Pedro, the bailor, shall bear the expenses for the
cause it had become stale. Gustavo now wants Felipe to pay him repair of the faulty brakes, they being extra-ordinary expenses incurred
in cash in the amount of P5,600. Claiming that the previous pay- due to the non-disclosure of the bailor of the defect or fault. Tito, on the
ment was not in legal tender and that there has been ex- other hand, shall shoulder that part of the P15,000 spent for tune-up,
traordinary deflation since 1998, and therefore, Felipe should pay said expense being ordinary for the use and preservation of the van.
him the value of the debt at the time it was incurred. Felipe re-
fused to pay him again, claiming that Gustavo is estopped from 2. Who shall bear the costs for the van’s fuel, oil and other
raising the issue of legal tender, having accepted the check in materials while it was with Tito?
!91
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
The assignment was a mortgage, not a cession, of the leasehold
The costs for duel and other materials are considered ordinary rights. A cession would have transferred ownership to the bank. How-
expenses, and consequently Tito, the bailee, shall shoulder them (Arti- ever, the grant of authority to the bank to sell the leasehold rights in
cle 1941, Civil Code.) case of default is proof that no such ownership was transferred and
that a mere encumbrance was constituted. There would have been no
3. Does Pedro have the right to retrieve the van even be- need for such authority had there been a cession.
fore the lapse of one year?
2. Assuming the assignment to be a mortgage, does the
No, Pedro cannot demand the return of the van until after the provision giving the bank the power to sell Purita's
expiration of the one-year period stipulated. However, if in the mean- rights constitute pactum commissorium or not? ’01 – Q8
time he should have urgent need of the van, he may demand its return
or temporary use. NO, the clause in question is not a pactum commissorium. It is
pactum commissorium when default in the payment of the loan auto-
4. Who shall bear the expenses for the accidental damage matically vests ownership of the encumbered property in the bank. In
caused by the cargo truck, granting that the truck driver the problem given, the bank does not automatically become owner of
and truck owner are insolvent? ’05 – Q11 the property upon default of the mortgagor. The bank has to sell the
property and apply the proceeds to the indebtedness.
Both Tito and Pedro shall bear equally the costs of the ex-
traordinary expenses, having been incurred on the occasion of actual Samuel borrowed P300,000.00 housing loan from the bank at 18%
use of the van by Tito, the bailee, even though he acted without fault per annum interest. However, the promissory note contained a
(Article 1949, par. 2, Civil Code.) proviso that the bank "reserves the right to increase interest with-
in the limits allowed by law." By virtue of such proviso, over the
Distinguish between mutuum and commodatum. ’04 – Q2a(1) objections of Samuel, the bank increased the interest rate period-
ically until it reached 48% per annum. Finally, Samuel filed an
In mutuum, the object borrowed must be a consumable thing the action questioning the right of the bank to increase the interest
ownership of which is transferred to the borrower who incurs the oblig- rate up to 48%. The bank raised the defense that the Central Bank
ation to return the same consumable to the lender in an equal amount, of the Philippines had already suspended the Usury Law. Will the
and of the same kind and quality. action prosper or not? ’01 – Q9
In commodatum, the object borrowed is usually a non-consum-
able thing the ownership of which is not transferred to the borrower The action will prosper.
who incurs the obligation to return the very same thing to the lender. While it is true that the interest ceilings set by the Usury Law are
no longer in force, it has been held that P.D. No. 1684 and CB Circular
ABC loaned to MNO P40,000 for which the latter agreed to pledge No. 905 merely allow contracting parties to stipulate freely on any ad-
400 shares of stock in XYZ Inc. it was agreed that if the pledgor justment in the interest rate on a loan or forbearance of money but do
failed to pay the loan with 10% yearly interest within 4 years, the not authorize a unilateral increase of the interest rate by one party
pledgee is authorized to foreclose on the shares of stock. As re- without the other's consent (PNB v. Court of Appeals, 238 SCRA 20
quired, MNO delivered possession of the shares to ABC with the [1994].) To say otherwise will violate the principle of mutuality of con-
understanding that the shares would be returned to MNO upon tracts under Article 1308 of the Civil Code. To be valid, therefore, any
the payment of the loan. However, the loan was not paid on time. change of interest must be mutually agreed upon by the parties (Dizon
A month after 4 years, may the shares of stock pledged be v. Magsaysay, 57 SCRA 250 [1974].)
deemed owned by ABC or not? ’04 – Q6a In the present problem, the debtor not having given his consent to
the increase in interest, the increase is void.
The shares of stock cannot be deemed owned by ABC upon de-
fault of MNO. They have to be foreclosed. Under Article 2088 of the On July 1, 1998, Brian leased an office space in a building for a
Civil Code, the creditor cannot appropriate the things given by way of period of 5 years at a rental rate of P1,000 a month. The contract
pledge. And even if the parties have stipulated that ABC becomes the of lease contained the proviso that “in case of inflation or devalu-
owner of the shares in case MNO defaults on the loan, such stipulation ation of the Philippine peso, the monthly rental will automatically
is void for being a pactum commissorium. be increased or decreased depending on the devaluation or infla-
tion of the peso to the dollar.” Starting March 1, 2001, the lessor
Carlos sues Dino for (a) collection on a PN for a loan with no increased the rental to P2,000 a month, on the ground of inflation
agreement on interest, on which Dino defaulted; and (b) damages proven by the fact that the exchange rate of the Philippine peso to
caused by Dino on Carlos’ priceless Michelangelo painting. The the dollar had increased from P25=$1 to P50=$1. Brian refused to
court finds Dino liable on the PN and awards damages to Carlos pay the increased rate and an action for unlawful detainer was
for the damaged painting, with interests in both awards. What filed against him. Will the action prosper? ’01 – Q10
rates of interest may the court impose with respect to both
awards? ’02 – Q15 The unlawful detainer action will not prosper. Extraordinary infla-
tion or deflation is defined as the sharp decrease in the purchasing
With respect to the collection of money or promissory note, it power of the peso. It does not necessarily refer to the exchange rate of
being a forbearance of money, the legal rate of interest for having de- the peso to the dollar. Whether or not there exists an extraordinary
faulted on the payment of 12% will apply. With respect to the damages inflation or deflation is for the courts to decide. There being no showing
to the painting, it is 6% from the time of the final demand up to the time that the purchasing power of the peso had been reduced tremendous-
of finality of the decision and 12% of the total amount from finality of ly, there could be no inflation that would justify the increase in the
judgment until judgment credit is fully paid. The Court considers the amount of rental to be paid. Hence, Brian could refuse to pay the in-
latter as a forbearance of money (Eastern Shipping Lines, Inc. v. Court creased rate.
of Appeals, 234 SCRA 78 [1994]; Articles 2210 and 2211, NCC.)
Alternative Answer:
To secure a loan obtained from a rural bank, Purita assigned her
leasehold rights over a stall in the public market in favor of the The action will not prosper. The existence of inflation or deflation
bank. The deed of assignment provides that in case of default in requires an official declaration by the Bangko Sentral ng Pilipinas.
the payment of the loan, the bank shall have the right to sell Puri-
ta's rights over the market stall as her attorney-in-fact, and to Distinguish a contract of chattel mortgage from a contract of
apply the proceeds to the payment of the loan. pledge. '99 – Q16a
1. Was the assignment of leasehold rights a mortgage or a
cession? In a contract of chattel mortgage, delivery is not required. While in
a contract of pledge, delivery is required for the validity of the pledge.
!92
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
A chattel mortgage is a formal contract while pledge is a real con- pactum commissorium. The bank disagrees. What is your opin-
tract. ion? '97 – Q18
A contract of chattel mortgage must be recorded in a public in-
strument to bind third persons while a contract of pledge must be in a We submit that there is no pactum commissorium here. Deposits
public instrument containing a description of the thing pledged and the of money in banks and similar institutions are governed by the provi-
date thereof to bind third persons. sions on simple loans (Article 1980, Civil Code.) The relationship be-
In chattel mortgage, the right to excess of the proceeds of the tween the depositor and a bank is one of creditor and debtor. Basically
sale goes to the debtor / mortgagor. In pledge, the excess goes the this is a matter of compensation as all the elements of compensation
pledgee / creditor unless otherwise stipulated. are present in this case (BPI v. Court of Appeals, 232 SCRA 302.)
In chattel mortgage, the creditor / mortgagee can recover from the
debtor / mortgagor, except if covered by the Recto Law. In pledge, Additional Answer:
creditor / mortgagee is not entitled to recover any deficiency after the
property is sold, notwithstanding any contrary stipulation. Where the security for the debt is also money deposited in a
bank, it is not illegal for the creditor to encash the time deposit certifi-
Are the right of redemption and the equity of redemption given by cates to pay the debtor's overdue obligation (Chua v. Court of Appeals,
law to a mortgagor the same? '99 – 16b G.R. No. 78519, September 26, 1989.)
The equity of redemption is different from the right of redemption. In the province, a farmer couple borrowed money from the local
EQUITY OF REDEMPTION is the right of the mortgagor after judgment merchant. To guarantee payment, they left the Torrens Title of
in a judicial foreclosure to redeem the property by paying to the court their land with the merchant, for him to hold until they pay the
the amount of the judgment debt before the sale or confirmation of the loan. Is there a:
sale. (a) Contract of pledge
On the other hand, RIGHT OF REDEMPTION is the right of the (b) Contract of mortgage
mortgagor to redeem the property sold at an extra-judicial foreclosure (c) Contract of antichresis, or
by paying to the buyer in the foreclosure sale the amount paid by the (d) None of the above? '96 – Q15
buyer within one (1) year from such sale.
None of the above.
X borrowed money from Y and gave a piece of land as security by There is no pledge because only movable property may be
way of mortgage. It was expressly agreed between the parties in pledged (Article 2094, NCC.) If at all, there was a pledge of the paper
the mortgage contract that upon non-payment of the debt on time or document constituting the Torrens Title, as a movable by itself, but
by X, the mortgaged land would already belong to Y. not of the land which the title represents.
1. If X defaulted in paying, would Y now become the owner There is no mortgage because no deed or contract was executed
of the mortgaged land? in the manner required by law for a mortgage (Articles 2085 to 2092,
NCC; 2124 to 2131, NCC.)
NO, Y would not become the owner of the land. The stipulation is There is no contract of antichresis because no right to the fruits of
in the nature of pactum commissorium which is prohibited by law. The the property was given to the creditor (Article 2132 NCC.)
property should be sold at public auction and the proceeds thereof A contract of simple loan was entered into with security arrange-
applied to the indebtedness. Any excess shall be given to the mort- ment agreed upon by the parties which is not one of those mentioned
gagor. above.
!93
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
is supposed to stand as security for the loan; thus, for validity of the
chattel mortgage it must be in public document and recorded in the Yes, it prescribes in 5 years. If the real property mortgaged is judicially
Chattel Mortgage Register in the Registry of Deeds. A real estate foreclosed, the action for judicial foreclosure should be filed within a
mortgage under the provisions of Article 2125 of the Civil code requires period of ten (10) years. The request for issuance of a writ of posses-
that in order that a mortgage may be validly constituted the document sion should be filed within five (5) years after the judgement of foreclo-
in which it appears must be recorded. If the instrument is not recorded, sure. The writ of possession is an order commanding the sheriff to
the mortgage is nevertheless valid and binding between the parties. place a person named therein in possession of real property (BPI v.
Hence, for validity of both chattel and real estate mortgages, they must Icot, GR No. 168081, October 12, 2009).
appear in a public instrument. But for purposes of enforceability, it is
submitted that the form of the contract, whether in a public or private OP Corp. secured loans from ABC Universal Bank in the aggre-
document, would be immaterial (Mobil Oil v. Diocaresa, G.R. No. gate principal amount of P100 million, evidenced by several prom-
L-26731, 29 SCRA 656, September 30, 1969). issory notes, and secured by a continuing guaranty of its princi-
pal stockholder Menandro Marquez a pledge of Marquez’ shares
in the corporation valued at P45 million; and a real estate mort-
Also, under Article 1358, acts and contracts which have for their ob- gage over certain parcels of land owned by Marquez. The corpo-
jects creation or transmission of real rights over immovable property. ration defaulted and the bank extra-judicially foreclosed on the
real estate mortgage. The bank, which was the sole bidder for P75
(B) Litos failure to pay led to the extra-judicial foreclosure million, won the award.
of the mortgaged real property. Within a year from fore- 1. Can the bank sue for the deficiency of P25 million?
closure. Lito tendered a manager’s check to Ferdie to
YES, the bank can sue Marquez for the deficiency of P25 million.
redeem the property. Ferdie refused to accept payment
In extrajudicial foreclosure of real estate mortgage, if the proceeds of
on the ground that he wanted payment in cash: the the sale are insufficient to pay the debt, the mortgagee has the right to
check does not qualify as legal tender and does not sue for the deficiency (Suico Rattan and Buri Interiors, Inc. v. Court of
include the interest payment. Appeals, 490 SCRA 560 [2006].)
Is Ferdie’s refusal justified? ‘13 - Q6B 2. If the bank opts to file an action for collection against
the corporation, can it afterwards institute a real action
to foreclose the real estate mortgage?
Ferdie’s refusal is justified.
NO, the bank can no longer file an action to foreclose the real
A check, whether a manager’s check or ordinary check, is not legal estate mortgage. When it filed a collection case, it was deemed to
tender, and an offer of a check in payment of a debt is not a valid ten- have abandoned the real estate mortgage (Bank of America, NT & SA
der of payment and may be refused receipt by the obligee or creditors v. American Realty Corp., 321 SCRA 659 [1999].)
(Philippine Airlines v. CA and Amelia Tan, G.R. No. L-49188, January
31, 1990). Mere delivery of the checks does not discharge the obliga- 3. Can the bank foreclose on the pledged shares of Mar-
quez and recover the deficiency from the
tion under a judgement. A check shall produce the effect of payment
corporation?’10 – Q3
only when they have been cashed or when through the fault of the
creditor, they have been impaired (Art 1249, Civil Code). If the bank forecloses the pledge, it cannot recover the deficiency
because the foreclosure extinguishes the principal obligation, whether
However, it is not necessary that the right of redemption be exercised or not proceeds from the foreclosure are equal to the amount of the
by delivery of legal tender. A check may be used for the exercise of principal obligation (Article 2115, Civil Code.)
right of redemption, the same being a right and not an obligation. The
Armando, a resident of Manila, borrowed P3-million from Bernar-
tender of a check is sufficient to compel redemption but is not in itself
do, offering as security his 500 shares of stock worth P1.5 million
a payment that relieves the redemptioner from his liability to pay the in Xerxes Corp. (XC), and his 2007 BMW sedan, valued at P2-mil-
redemption price (Biana v. Gimenez, G.R. No. 132768, September 9, lion. The mortgage on the shares of stock was registered in the
2005, citing Fortunado v. CA). Office of the Register of Deeds of Makati City where XC has its
principal office. The mortgage on the car was registered in the
Redemption within the period allowed by law is not a matter of intent Office of the Register of Deeds of Manila. Armando executed a
but a question of payment or valid tender of full redemption price within single Affidavit of Good Faith, covering both mortgages. Armando
defaulted on the payment of his obligation. Thus, Bernardo fore-
the said period. Whether the redemption is being made under Act 3135
closed on the two chattel mortgages. Armando filed suit to nullify
or under the General Banking Law, the mortgagor or his assignee is the foreclosure and the mortgages, raising the following issues.
required to tender payment to make said redemption valid (Heirs of 1. The execution of only one Affidavit of Good Faith for
Quisumbing v. PNB and SLDC, G.R. No. 178242, January 20, 2009). both mortgages invalidated the two mortgages; and
Moreover , Ferdie’s refusal was justified on the ground that the amount The execution of only one Affidavit of Good Faith for both mort-
tendered does not include interest. In order to effect the redemption of gages is not a ground to nullify the said mortgages and the foreclosure
thereof. Said mortgages are valid between immediate parties (Lilius v.
the foreclosed property, the payment to the purchaser must include the
Manila Railroad Co., 62 Phil. 56 [1935]), although they cannot bind
following sums: (a) the bid price; (b) the interest on the bid price, com- third parties (Philippine Refining v. Jarque, 61 Phil. 229 [1935].)
puted at one per centum (1%) per month; and (c) the assessments or
taxes, if any paid by the purchaser, with the same rate of interest (Rule 2. The mortgage on the shares of stocks should have been
39, Section 28, 97 Rules of Civil Procedure). Unless there is an ex- registered in the Office of the Register of Deeds of Mani-
press stipulation to that effect, the creditor cannot be compelled to la where he resides, as well as in the stock and transfer
receive partial payment of the prestation (Art. 1248, Civil Code). book of XC.
Rule on the foregoing issues.
a) Does the right to request for the issuance of a writ of The mortgage on the shares of stock should be registered in the
possession over a foreclosed real property prescribe in chattel mortgage registry in the Register of Deeds of Makati City where
five (5) years? (5%) ‘12 - Q9a the corporation has its principal office and also in the Register of
!94
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Deeds where the mortgagor resides (Chua Guan v. Samahang
Magsasaka, Inc., 62 Phil. 472 [1935].) Registration of the chattel mort- On December 4, 2003, RED Corp. executed a real estate mortgage
gage in the stock and transfer book is not required to make the chattel in favor of BLUE Bank. RED defaulted in the payment of its loan.
mortgage valid. Registration of dealings in the stock and transfer book Consequently, on June 4, 2004, BLUE Bank extra-judicially fore-
under Section 63 of the Corporation Code applies only to sale or dis- closed the property. Being the highest bidder in the auction sale
position of shares, and has no application to mortgages and other conducted, the Bank was issued a Certificate of Sale which was
forms of encumbrances (Monserrat v. Ceron, 58 Phil. 469 [1933].) registered on August 4, 2004. Does RED Corp. still have the right
to redeem the property as of September 14, 2007? ’07 – Q9
3. Assume that Bernardo extra-judicially foreclosed on the
mortgages, and both the car and the shares of stock NO, RED Corporation has lost its right to redeem the property.
were sold at public auction. If the proceeds from such Juridical persons whose property is sold pursuant to an extra-judicial
public sale should be P1-million short of Armando’s foreclosure, shall have the right to redeem the property until registra-
total obligation, can Bernardo recover the deficiency? tion of the certificate of sale with the Register of Deeds, which shall in
’09 – Q3 no case be more than three (3) months after foreclosure, whichever is
earlier (Section 47, General Banking Law.)
YES. Bernardo can recover the deficiency. Chattels are given as
mere security, and not as payment or pledge (Cunada v. Drilon, 432 A real estate mortgage may be foreclosed judicially or extra-judi-
SCRA 618 [2004].) cially. In what instance may a mortgagee extra-judicially foreclose
a real estate mortgage? ’06 – Q15
On January 1, 2008, Al obtained a loan of P10,000 from Bob to be
paid on January 30, 2008, secured by a chattel mortgage on a A mortgagee may extra-judicially foreclose a real estate mortgage
Toyota car. On February 1, 2008, Al obtained another loan of when the right to foreclose extra-judicially has been expressly stipulat-
P10,000 from Bob to be paid on February 15, 2008. He secured ed in the deed of mortgage or there is a special power in the real es-
this by executing a chattel mortgage on a Honda motorcycle, on tate mortgage authorizing it (Section 1, Act No. 3135.)
the due date of the 1st loan, Al failed to pay. Bob foreclosed the
chattel mortgage but the car was bidded for P6,000 only. Al also Primetime Corp. (the Borrower) obtained a P10 Million, 5-year
failed to pay the 2nd loan due on February 15, 2008. Bob filed an term loan from Universal Bank (the Bank) in 1996. As security for
action for collection for sum of money. Al filed a motion to dis- the loan and as required by the Bank, the Borrower gave the fol-
miss claiming that Bob should first foreclose the mortgage on the lowing collateral security in favor of the Bank:
Honda motorcycle before he can file the action for sum of money. • A real estate mortgage over the land and building owned
Decide. ’08 – Q17 by the Borrower and located in QC;
• The joint and several promissory note of Mr. Primo Tim-
Bob has the legal right to file a collection suit for a sum of money bol, the President of the Borrower; and
in lieu of foreclosing on the chattel mortgage. It has been ruled that a • A real estate mortgage over the residential house and lot
chattel mortgage is a security arrangement to support a primary con- owned by Mr. Timbol, also located in QC.
tract (Serra v. Rodriguez, G.R. No. L-25546, April 22, 1974.) Since the Because of business reverses, neither the Borrower nor Mr. Tim-
chattel mortgage is only a collateral contract that supports the principal bol was able to pay the loan. In June 2001, the Bank extra-judicial-
contract of mutuum, the lender has the prerogative to choose which of ly foreclosed the two real estate mortgages, with the Bank as the
the remedies available to pursue. However, the filing of the collection only bidder in the foreclosure sale. On September 16, 2001, the
suit constitutes a waiver of the chattel mortgage (Land Settlement and certificates of sale of the two properties in favor of the Bank were
Dev. Corp. v. Carlos, 22 SCRA 202 [1968].) registered with the Register of Deeds. Ten months later, both the
And even if the collection suit included the recovery of the P4,000 Borrower and Mr. Timbol were able to raise sufficient funds to
deficiency on the first loan, the same is valid because unlike in a redeem their respective properties from the Bank, but the Bank
pledge, the lender has the legal right to recover the deficiency incurred refused to permit redemption on the ground that the period for
on the foreclosure of a chattel mortgage (PAMECA Wood Treatment redemption had already expired, so that the Bank now has abso-
Plant, Inc. v. Court of Appeals, 310 SCRA 281 [1999].) lute ownership of both properties. The Borrower and Mr. Timbol
came to you today, September 15, 2002, to find out if the position
Industry Bank, which has a net worth of P1 Billion, extended a of the Bank is correct. What would be your answer? '02 – Q10
loan to Celestial Properties, Inc. (CPI) amounting to P270 Million.
The loan was secured by a mortgage over a vast commercial lot With respect to the real estate mortgage over the land and build-
in Fort Bonifacio Global City appraised at P350 Million. After au- ing owned by the Borrower, Primetime Corporation, a juridical body, the
dit, the BSP gave notice that the loan to CPI exceeded the single period of redemption has already expired. Under Section 47 of the
borrower’s limit of 25% of the bank’s net worth under a recent General Banking Law of 2000, juridical persons whose property is sold
BSP Circular. In light of other previous violations of the credit to an extra-judicial foreclosure shall have the right to redeem the prop-
limit requirement, the BSP advised Industry Bank to reduce the erty until, but not later than, the registration of the foreclosure sale with
amount of the loan to CPI under pain of severe sanctions. When the Register of Deeds which in no case shall be more than three (3)
Industry Bank informed CPI that it intended to reduce the loan by months after foreclosure, whichever is earlier.
P50 Million, CPI countered that the bank should first release a As to the real estate mortgage over the residential house and lot
part of the collateral worth P50 Million. Industry Bank rejected the owned by Mr. Timbol, the period of redemption is one (1) year from the
counter-proposal, and referred the matter to you as counsel. How date of registration of the certificate of sale, which period has not yet
would you advise Industry Bank to proceed, with its best interests expired in this case.
in mind? ’08 – Q19
Debtor “A” issued a promissory note in the amount of P10M in
With a net worth of P1.0 Billion, the maximum loan exposure of favor of commercial bank Y secured by mortgage of his proper-
the bank to Celestial Properties can reach up to P250.0 Million. The ties worth P30M. When “A” failed to pay his indebtedness, de-
Bank should proceed to reduce the loan of Celestial Properties by spite demands made by bank Y, the latter instituted a collection
P20.0 Million, but should not release any part of the collateral by the suit to enforce payment of the P10M account. Subsequently, bank
amount of reduction. Y also filed foreclosure proceedings against “A” for security giv-
The collateral is a single commercial lot in The Fort, covered by a en for the account. If you were the judge, how would you resolve
single title and being essentially indivisible in character, the mortgage the two cases? '01 – Q12
cannot be “partially released.” Besides, since a real estate mortgage is
merely a collateral contract, it can be enforced only up to the amount of The case for collection will be allowed to proceed. But the foreclo-
the loan; and the moment the loan exposure is reduced, then automat- sure proceedings have to be dismissed. In instituting foreclosure pro-
ically, reduction of the collateral coverage of the real estate mortgage ceedings, after filing a collection case involving the same account or
follows. transaction, bank Y is guilty of splitting a cause of action. The loan of
!95
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
P10M is the principal obligation while the mortgage securing the same agreement which included future debts as among the obligations
is merely an accessory to said loan obligation. The collection of the secured by the mortgage. The provision reads:
loan and the foreclosure of the mortgage securing said loan constitute “In case the MORTGAGOR executes subsequent promissory
one and the same cause of action. The filing of the collection case bars note or notes either as a renewal, as an extension, or as a
the subsequent filing of the foreclosure proceedings. new loan, this mortgage shall also stand as security for the
payment of said promissory note or notes without necessity
Debtor purchased a parcel of land from a realty company payable of executing a new contract and this mortgage shall have the
in 5 yearly installments. Under the contract of sale, title to the lot same force and effect as if the said promissory note or notes
would be transferred upon full payment of the purchase price. were existing on date hereof.”
But even before full payment, debtor constructed a house on the As Borrower failed to pay the second loan, the Bank proceeded to
lot. Sometime thereafter, debtor mortgaged the house to secure foreclose the Chattel Mortgage. Borrower sued the Bank claiming
his obligation arising from the issuance of a bond needed in the that the mortgage was no longer in force. Borrower claimed that a
conduct of his business. The mortgage was duly registered with fresh chattel mortgage should have been executed when the sec-
the proper chattel mortgage registry. ond loan was granted.
Five years later after completing payment of the purchase price, 1. Decide the case and ratiocinate.
debtor obtained title to the lot. And even as the chattel mortgage
on the house was still subsisting, debtor mortgaged to a bank the The foreclosure of the chattel mortgage regarding the second
lot and improvement thereon to secure a loan. This real estate loan is not valid. A chattel mortgage cannot validly secure after in-
mortgage was duly registered and annotated at the back of the curred obligations. The affidavit of good faith required under the chattel
title. mortgage law expressly provides that “the foregoing mortgage is made
Due to business reverses, debtor failed to pay his creditors. The for securing the obligation specified in the conditions hereof, and for no
chattel mortgage was foreclosed when the debtor failed to reim- other purpose.” The after-incurred obligation not being specified in the
burse the surety company for payments made on the bond. In the affidavit, it is not secured by mortgage.
foreclosure sale, the surety company was awarded the house as
the highest bidder. 2. Suppose the chattel mortgage was not registered, would
Only after the foreclosure sale did the surety company learn of its validity and effectiveness be impaired? '99 – Q6
the real estate mortgage in favor of the lending investor on the lot
and the improvement thereon. Immediately, it filed a complaint YES. The chattel mortgage is not valid as against any person,
praying for the exclusion of the house from the real estate mort- except the mortgagor, his executors and administrators.
gage. It was submitted that as the chattel mortgage was executed
and registered ahead, it was superior to the real estate mortgage. Borrower obtained a loan against the security of a mortgage on a
On the suggestion that a chattel mortgage on a house- a real parcel of land. While the mortgage was subsisting, borrower
property- was a nullity, the surety company countered that when leased for fifty years the mortgaged property to Land Develop-
the chattel mortgage was executed, debtor was not yet the owner ment Company (LDC). The mortgagee was duly advised of the
of the lot on which the house was built. Accordingly, the house lease. Thereafter, LDC constructed on the mortgaged property an
was a personal property and a proper subject of a chattel mort- office condominium. Borrower defaulted on his loan and mort-
gage. gagee foreclosed the mortgage. At the foreclosure sale, the mort-
1. Discuss the validity of the position taken by the surety gagee was awarded the property as the highest bidder. The corre-
company. sponding Certificate of Sale was executed and after the lapse of
one year, title was consolidated in the name of mortgagee. Mort-
The house is always a real property even though it was con- gagee then applied with the RTC for the issuance of a writ of pos-
structed on a land not belonging to the builder. However, the parties session not only over the land but also the condominium build-
may treat it as a personal property and constitute a chattel mortgage ing. The mortgagee contended that the mortgage included all
thereon. Such mortgage shall be valid and binding but only on the accessions, improvements and accessories found on the mort-
parties. It will not bind or affect third parties. gaged property. LDC countered that it had built on the mortgaged
property with the prior knowledge of mortgagee which had re-
2. Who has a better claim to the house, the surety compa- ceived formal notice of the lease.
ny or the lending investor? 1. How would you resolve the dispute between the mort-
gagee and LDC?
The lending investor has a better claim to the house. The real
estate mortgage covering the house and lot was duly registered and The mortgagee has a better right than LDC. The mortgage ex-
binds the parties and third persons. On the other hand, the chattel tends to the improvements introduced on the land, with the declara-
mortgage on the house securing the credit of the surety company did tions, amplifications, and limitations established by law, whether the
not affect the rights of third parties such as the lending investor despite estate remains in the possession of the mortgagor or passes into the
registration of the chattel mortgage. hands of a third person (Article 2127, Civil Code.) The notice given by
LDC to the mortgagee was not enough to remove the building from
3. Would the position of the surety company be bolstered coverage of the mortgage considering that the building was built after
by the fact that it acquired title in a foreclosure sale the mortgage was constituted and the notice was only as regards the
conducted by the Provincial Sheriff? '99 – Q3 lease and not as to the construction of the building. Since the mort-
gagee was informed of the lease and did not object to it, the mort-
NO. The chattel mortgage over the house which was foreclosed gagee became bound by the terms of the lease when it acquired the
did not affect the rights of third parties like the lending investor. Since property as the highest bidder. Hence, the mortgagee steps into the
the third parties are not bound by the chattel mortgage, they are not shoes of the mortgagor and acquires the rights of the lessor under Art
also bound by any enforcement of its provisions. The foreclosure of 1768 of the Civil Code. This provision gives the lessor the right to ap-
such chattel mortgage did not bolster or add anything to the position of propriate the condominium building but after paying the lessee half of
the surety company. the value of the building at that time. Should the lessor refuse to reim-
burse said amount, the lessee may remove the improvement even
Borrower executed a chattel mortgage in favor of the Bank to though the land will suffer damage thereby.
secure a loan of P3M. In due time, the loan was paid. On Decem-
ber 1, 1997, Borrower obtained another loan for P2M which the 2. Is the mortgagee entitled to the lease rentals due LDC
Bank granted under the same security as that which secured the under the lease agreement? ’99 – Q9
first loan. For the second loan, Borrower merely delivered a prom-
issory note; no new chattel mortgage agreement was executed as The lease rentals belong to the mortgagor. However, the mort-
the parties relied on a provision in the 1996 chattel mortgage gage extends to rentals not yet received when the obligation becomes
!96
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
due and the mortgagee may run after the said rentals for the payment sought to recover the deficiency. May IOU still recover the defi-
of the mortgage debt. ciency? '96 – Q16
Various buyers of lots in a subdivision brought actions to compel IOU may no longer recover the deficiency. Under Art 1484 of the Civil
either or both the developer and the bank to lease and deliver free Code, in a contract of sale of personal property the price of which is
and clear the titles to their respective lots. The problem arose payable in installments, the vendor may, among several options, fore-
because notwithstanding prior sales mostly on installments – close the chattel mortgage on the thing sold, if one has been constitut-
made by the developer to buyers, developer had mortgaged the
ed, should the vendee’s failure to pay cover two or more installments.
whole subdivision to a commercial bank. The mortgage was duly
executed and registered with the appropriate governmental agen- In such case, however, the vendor shall have no further action against
cies. However, as the lot buyers were completely unaware of the the purchaser to recover any unpaid balance of the price and any
mortgage lien of the bank, they religiously paid the installments agreement to the contrary is void. While the given facts did not explicit-
due under their sale contracts. As the developer failed to pay its ly state that Anjo’s failure to pay covered two or more installments, this
loan, the mortgage was foreclosed and the whole subdivision was may safely be presumed because the right of IOU Co to foreclose the
acquired by the bank as the highest bidder. chattel mortgage under the circumstances is premised on Anjo’s failure
1. May the bank dispossess prior purchasers of individual
to pay two or more installments. The foreclosure would not have been
lots or, alternatively, require them to pay again for the
paid lots? valid if it were not so. (The given facts did not also state explicitly
whether Anjo’s default was a payment default or a default arising from
NO. The bank may not dispossess the prior purchasers of the a breach of a negative pledge or breach of a warranty. In such case,
individual lots, much less require them to pay for the said lots. The however, IOU Company would not have been able to foreclose the
bank has to respect the rights of the prior purchasers of the individual chattel mortgage validly as such foreclosure, under the circumstances
lots. The purchasers have the option to pay the installments of the contemplated by the law, could only be effected for a payment default
mortgagee.
covering two or more installments.) (Ridad v. Filipinas Investment and
2. What are the rights of the bank vis-à-vis those buyers Finance Corp., 120 SCRA 246 [1983].)
with remaining unpaid installments? '99 – Q12
The bank has to respect the rights of the buyers with remaining TORTS AND DAMAGES
unpaid installments. The purchaser has the option to pay the install-
ments to the mortgagee who should apply the payments to the mort- Jovencio operated a school bus to ferry hiss two sons and five of
gage indebtedness. their schoolmates from their houses to their school, and back.
The parents of the five schoolmates paid for the service. One
Borrower obtained a loan from a money lending enterprise for morning, Porfirio, the driver, took a shortcut on the way to school
which he issued a promissory note undertaking to pay at the end because he was running late, and drove across an unmanned
of a period of 30 days the principal plus interest at the rate 5.5%
per month plus 2% per annum as service charge. On maturity of railway crossing. At the time, Porfirio was wearing earphones
the loan, borrower failed to pay the principal debt as well as the because he loved to hear loud music while driving. As he crossed
stipulated interest and service charge. Hence, he was sued. How the railway tracks, a speeding PNR train loudly blared its horn to
would you dispose of the issues raised by the borrower? warn Porfirio, but the latter did not hear the horn because of the
1. That the stipulated interest rate is excessive and uncon- loud music. The train inevitable rammed into the school bus. The
scionable? strong impact of the collision between the school bus and the
train resulted in the instant death of one of the classmates of
The rate of interest of 5.5% per month is excessive and uncon-
scionable. Jovencio's younger son.
The parents of the fatality sued Jovencio for damages based on
2. Is the interest rate usurious? '99 – Q13 culpa contractual alleging that Jovencio was a common carrier;
Porfirio for being negligent; and the PNR for damages based on
The interest cannot be considered usurious. The Usury Law has culpa aquiliana.
been suspended in its application, and the interest rates are made Jovencio denied being a common carrier. He insisted that he had
“floating.”
exercised the diligence of a good father of a family in supervising
Ritz bought a new car on installments which provided for an ac- Porfirio, claiming that the latter had had no history of negligence
celeration clause in the event of default. To secure payment of the or recklessness before the fatal accident.
unpaid installments, as and when due, he constituted two chattel (a) Did his operation of the school bus service for a limited clien-
mortgages, i.e., one over his very old car and the other covering tele render Jovencio a common carrier? Explain your answer.
the new car that he had just bought as aforesaid, on installments. (3%)
After Ritz defaulted on three installments, the seller-mortgagee (b) In accordance with your answer to the preceding question,
foreclosed on the old car. The proceeds of the foreclosure were
state the degree of diligence to be observed by Jovencio, and the
not enough to satisfy the due obligation; hence, he similarly
sought to foreclose on the new car. Would the seller-mortgagee consequences thereof. Explain your answer. (3%)
be legally justified in foreclosing on this second chattel mort- (c) Assuming that the fatality was a minor of only 15 years of age
gage? '97 – Q19 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
NO. The two mortgages were executed to secure the payment of award indemnity, what may possibly be the legal and factual justi-
the unpaid installments for the purchase of a new car. When the mort- fications for the award of loss of earning capacity? Explain your
gage on the old car was foreclosed, the seller-mortgagee is deemed to
answer. (4%) ’17—Q16
have renounced all other rights. A foreclosure of additional property,
that is, the new car covered by the second mortgage would be a nullity.
(a) Yes. Jovencio is a common carrier. The true test for a common
Finding a 24-month payment plan attractive, Anjo purchased a carrier is not the quantity or extent of the business actually transacted,
Tamaraw FX from Toyota QC. He paid a down-payment of or the number and character of the conveyances used in the activity,
P100,000 and obtained financing for the balance from IOU Co. He but whether the undertaking is a part of the activity engaged in by the
executed a chattel mortgage over the vehicle in favor of IOU. carrier that he has held out to the general public as his business or
When Anjo defaulted, IOU foreclosed the chattel mortgage, and
!97
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
occupation (Spouses Perena v. Spouses Zarate, G.R. No. 157917, Civil Code, moral damages may be awarded in cases of breaches of
August 29, 2012, 679 SCRA 208, 234). contract where the defendant acted fraudulently or in bad faith. Like-
Jovencio operated the school bus as a business and not just as a ca- wise, Article 2232 provides that the court may award exemplary dam-
sual occupation; he undertook to carry the students in established ages in contacts if the defendant acted in a wanton, fraudulent, reck-
routes to and from the school; and he transported the students for a less, oppressive or malevolent manner.
fee, Jovencio was a common carrier notwithstanding the limited clien-
tele. With regard to an award of interest in the concept of actual and
(b) Jovencio, as a common carrier, must observe extraordinary dili- compensatory damages, please state the guidelines regarding the
gence in the vigilance over the goods and for the safety of the passen- manner of computing legal interest in the following situations:
gers transported by them, according to all the circumstances of each
case. A common carrier should "carry the passengers safely us far as [a] when the obligation is breached and it consists in the payment
human car and foresight can provide, using the utmost diligence of of a sum of money like a loan or forbearance of money; (2.5%)
very cautious persons, with a due regard for all the circumstances.” [bj when the obligation does not constitute a loan or forbearance
(c) If it can be shown that the deceased student was enrolled in a rep- of money. (2.5%)
utable institution and was able-bodied prior to his death, the basis for
award of loss of earning capacity is the prevailing minimum wage at Consider the issuance of BSP-MB Circular No. 799, which became
the lime of the child's death. The computation of the child's life ex- effective on July 1, 2013. ’16 – Q2
pectancy must be reckoned from the age of 21 years, which is the age
when the child would have graduated from college and would have [a| When the obligation is breached and it consists in the payment of a
begun to work (Spouses Perena v. Spouses Zarate, G.R. No. 157917, sum of money like a loan or forbearance of money, in the absence of
August 29, 2012). stipulation, the rate of interest shall be the legal rate of 6% per annum
(Article 2209 CC), which was increased to 12% per NB Circular No.
Peter, a resident of Cebu City, sent through Reliable Pera Padala 905, Series of 1982) to be computed from default. The twelve percent
(RPP) the amount of P20, 000.00 to his daughter, Paula, for the 12% per annum legal interest shall apply only until June 30, 2013.
payment of her tuition fee. Paula went to an RPP branch but was From July 1, 2013, the new rate of six percent (6%) per annum shall be
informed that there was no money remitted to her name. Peter the prevailing rate of interest when applicable (Nacar v. Gallery
inquired from RPP and was informed that there was a computer Frames, 703 SCRA 439 12013}, applying BSP -MB Circular No. 799).
glitch and the money was credited to another person. Peter and
Paula sued RPP for actual damages, moral damages and exem- [NOTE: It is suggested that credit also be given in the event that the
plary damages. The trial court ruled that there was no proof of examinees cite Tahada v. Tuvera to support the conclusion that publi-
pecuniary loss to the plaintiffs but awarded moral damages of cation is unnecessary in the case of interpretative regulations and
P20, 000.00 and exemplary damages of P5, 000.00. On appeal, those merely internal in nature, as the language of the problem may be
RPP questioned the award of moral and exemplary damages. Is interpreted by the examinees to refer only to mere guidelines or direc-
the trial court correct in awarding moral and exemplary damages? tory matters}. The examinee should be given credit if he mentions that
Explain. (5%) ’16 – Q13 the actual base for computing the interest due on the loan or forbear-
ance of money, goods or credit is the amount of the loans, forbear-
No, the trial court is not correct in awarding moral and exemplary dam- ance, plus whatever interest is stimulated in writing; otherwise no in-
ages. The damages in this case are prayed for based on the breach of terest may be charge for using the money (Art. 1956 CC)
contract committed by RPP in failing to deliver the sum of money to
Paula. Under the provisions of the Civil Code, in breach of contract, [b] The interest on the amount of damages awarded may be imposed
moral damages may be recovered when the defendant acted in bad at the discretion of the court at the rate of 6% per annum. No interest,
faith or was guilty of gross negligence (amounting to bad faith) or in however, shall be adjudged on unliquidated claims or damages, except
wanton disregard of his contractual obligation. In the same fashion, to when or until the demand can be established with reasonable certainty.
warrant the award of exemplary damages, the wrongful act must be Accordingly, where the demand is established with reasonable certain-
accomplished by bad faith, and an award of damages would be al- ty, the interest shall begin to run from the time the claim is made judi-
lowed only if the guilty party acted in a wanton, fraudulent, reckless or cially or extra-judicially, but when such certainty cannot be so reason-
malevolent manner (Article 2232 of the Civil Code). ably established at the time the demand is made, the interest shall
begin to run only from the date the judgment of the court is made (at
Bad faith does not simply connote bad judgment or negligence. It im- which time the quantification of damages may be deemed to have
ports a dishonest purpose or some moral obliquity and conscious do- been reasonably ascertained). The actual base for the computation of
ing of a wrong, a breach of known duty through some motive or inter- legal interest shall, in any case, be on the amount finally adjudged
est or ill will that partakes of the nature of fraud. In this case, however, (Nacar v. Gallery Frames, 703 SCRA 439 [2013]).
RPP’s breach was due to a computer glitch which at most can be con-
sidered as negligence on its part, but definitely does not constitute bad A driver of a bus owned by company Z ran over a boy who died
faith or fraud as would warrant the award of moral and exemplary instantly. A criminal case for reckless imprudence resulting in
damages. homicide was filed against the driver. He was convicted and was
ordered to pay P2 Million in actual and moral damages to the par-
ALTERNATIVE ANSWER: ents of the boy who was an honor student and had a bright future.
Without even trying to find out if the driver had assets or means
If the trial court finds that there was gross negligence on the part of to pay the award of damages, the parents of the boy filed a civil
RPP, the award of moral damages and exemplary damages would be action against the bus company to make it directly liable for the
proper. RPP merely alleged that the failure to remit the money to Paula damages. - ‘15 Q14
was caused by a computer glitch, but this bare assertion does not
preclude the possibility that the trial court found gross negligence a) Will their action prosper (4%) ‘15 - Q14a
(equivalent to bad faith) on the part of RPP. Under Article 2220 of the
!98
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Yes, the action will prosper. The cause of action against the company (Valenzuela Hardwood & Industrial Supply, Inc. v. Court of Appeals,
is different from the cause of action against the driver in the criminal G.R. No. 102316, June 30, 18997). The second paragraph of the
case. The civil action against the employer is rooted on the fact that waiver prohibiting the parent to file any claim against the school, ad-
employers are vicariously liable for the damage caused by their em- ministrator, or teacher, and thus, removing the responsibility imposed
ployees while in the performance of their functions. The vicarious liabil- on them by Article 218 of the Family Code.
ity of the employers under Art. 2180 of the Civil Code does not require
as a condition sine qua non that the driver should have been declared A collision occurred at an intersection involving a bicycle and a
insolvent or unable to pay the awards of damages. The cause of action taxicab. Both the bicycle rider (A business then doing his morn-
against the driver, on the other hand, is rooted in Art. 2176, which de- ing exercise) and the taxi driver claimed that the other was at
fines a quasi-delict. Moreover, if negligence was proven in the criminal fault. Based on the police report, the bicycle crossed the intersec-
case which requires proof beyond reasonable doubt, then it can like- tion first but the taxicab, crossing at a fast clip from the bicycle’s
wise be proven in a civil action which requires only preponderance of left, could not brake in time and hit the bicycle’s rear wheel, top-
evidence.
pling it and throwing the bicycle rider into the sidewalk (five) 5
meters away.
b) If the parents of the boy do not wish to file a separate
civil action against the bus company, can they still make The bicycle rider suffered a fractured right knee, sustained when
the bus company liable if the driver cannot pay the he fell on his right side on the concrete sidewalk. He was hospi-
award for damages? If so, what is the nature of the em- talized and was subsequently operated on, rendering him immo-
ployer’s liability and how may civil damages be satis- bile for (three) 3 months. In his complaint for damages, the rider
fied? (3%) ‘15 - Q14b prayed for the award of P1,000,000 actual damages, P200,000
moral damages, P200,000 exemplary damages, P100,000 nominal
Yes. The employer may still be held subsidiarily liable under Art. 103 of damages and P50,000 attorney’s fees.
the Revised Penal Code. In order that an employer may be held sub-
sidiarily liable for the employee’s civil liability in the criminal action, it Assuming the police report to be correct and as the lawyer for the
should be shown (1) that the employer is engaged in any kind of indus- bicycle rider, what evidence (documentary and testimonial) and
try, (2) that the employee committed the offense in the discharge of his legal arguments will you present in court to justify the damages
duties and (3) that he is insolvent. The subsidiary liability of the em- that your client claims? (8%) ‘13 - Q2
ployer, however, arises only after conviction of the employee in the
criminal action. If all these requisites are present, the employer be- I will base the claim of my client on quasi-delict under Article 2176 of
comes ipso facto subsidiarily liable upon the employee’s conviction and the Civil Code of the Philippines.
upon proof of the employee’s insolvency, as ruled in Carpio v. Doroja,
(1989). For these requisites to be established adequately, however, The requisites for a claim under quasi-delict to prosper are as follows:
there must be a hearing which will determine the sufficiency or insuffi- 1. Act or omission, there being fault or negligence;
ciency of the properties of the employee to compensate the plaintiffs, 2. Damage or injury; and
as well as to allow the employer to present his defenses. 3. Causal connection between the damage and the act or
omission.
Mabuhay Elementary organized a field trip for its Grade VI stu-
dents in Fort Santiago, Manila Zoo and Star City. To be able to The case clearly involves a quasi-delict where any client, the bicycle
join, the parents of the students had to sign a piece of paper that rider, suffered injury as a result of the negligence of the overspeeding
reads as follows: taxi driver, with fault on my client’s part.
“I allow my child {name of student}, Grade - To prove actual damages, aside from the testimony of my client, I will
Section present his hospital and medical bills. Receipts of the fees paid on the
to join the school’s field trip on February 14, rehabilitation will also be presented. [The sentence in red should be
2014. I will replaced with the following sentence because he is a businessman and
not file any claim against the school, adminis- not an employee. - Furthermore, I will present income tax returns, con-
trator or tracts and other documents to prove unrealized profits as a result of
teacher in case something happens to my this temporary injury.] I will also call the attending physician to testify as
child during to the extent of the injuries suffered by my client, and to corroborate
the trip.” the contents of the medical documents.
Joey, a 7-year-old student of Mabuhay Elementary School was Based on Article 2202, in quasi-delicts, the defendant shall be liable for
bitten by a snake while the group was touring Manila Zoo. The damages which are the natural and probable consequences of the act
parents of Joey sued the school for damages. The school, as a or omission complained of. It is not necessary that such damages have
defense, presented the waiver signed by Joey’s parents. been foreseen or could have been foreseen by the defendant.
Was there a valid waiver of right to sue the school? Why? [4%] ‘14 Unlike actual damages, no proof of pecuniary loss is necessary in
- Q20 order that moral, nominal, temperate, liquidated or exemplary damages
may be adjudicated
No, there was no valid waiver of the right to sue the school. Article 6 of
the Civil Code provides that “{r}ights may be waived, unless the waiver a) Roberto was in Nikko Hotel when he bumped into a
is contrary to law, public order, public policy, morals, or good customs, friend who was then on her way to a wedding reception
or prejudicial to a person with a right recognized by law.” As a general being held in said hotel. Roberto alleged that he was
rule, patrimonial rights may be waived as opposed to rights to person- then invited by his friend to join her at the wedding re-
ality and family rights which may not be made the subject of a waiver ception and carried the basket full of fruits which she
!99
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
was bringing to the affair. At the reception, the wedding Quasi-tort; Definition; Persons Liable and Available Defenses. ’10
coordinator of the hotel noticed him and asked him, – Q3b
allegedly in a loud voice, to leave as he was not in the
Quasi-tort is a legal concept upholding the doctrine that some
guest list. He retorted that he had been invited to the
legal duty exists that cannot be classified strictly as a personal duty
affair by his friend, who however denied doing so. (that is, resulting in a tort), not as a contractual duty (thus resulting in a
Deeply embarrassed by the incident, Roberto then sued breach of contract) but rather some kind of duty recognizable by law.
the hotel for damages under Articles 19 and 21 of the “Tort” or “Quasi-Tort’ is an Anglo-American Common Law concept,
Civil Code. Will Roberto’s action prosper? Explain. (5%) while “Delict” or “Quasi-Delict” is a Civil Law concept. (Wikipedia Ency-
‘12 - Q1a clopedia.)
It can also be said that Quasi-tort is considered as the equivalent
of quasi-delict. Hence, the rules of the latter pertaining to persons who
No, Roberto’s action will not prosper. From facts given in the problem,
can be held liable and their defences would also apply.
the wedding coordinator did not abuse her right when she asked him to Those liable for quasi-delict include:
leave the wedding reception because he was not in the guest list. Hotel 1. The tortfeasor or the person causing damage to another
Nikko could not be held liable for damages as its liability springs from through fault or negligence (Article 2176, NCC); and
the liability of its employee (Nikko Hotel Manila Garden v. Reyes, GR 2. Persons vicariously liable under Article 2180, NCC.
No. 154259, February 28, 2005). The defenses available include:
a. That the defendant was not negligent or that he exercised
due diligence (Art. 2176, NCC).
ALTERNATIVE ANSWER:
b. That although the defendant is negligent, his negligence is
not the proximate cause of the injury. (Art. 2179, NCC).
It depends. While the hotel has the right to exclude an uninvited guest c. That the plaintiff’s own negligence was the immediate and
from the wedding reception, that does not give the hotel the license to proximate cause of his injury (Art. 2179, NCC).
humiliate Roberto. If the wedding coordinator of the hotel acted wrong- d. That the person vicariously liable has observed all the dili-
fully e.g. with abuse of right, unfairly, or in a manner that exposed gence of a good father of a family to prevent damage (Art.
Roberto to unnecessary ridicule or shame, his action will prosper. Oth- 2180, NCC).
e. That the cause of action has prescribed after the lapse of
erwise, Roberto’s action will not prosper.
four years (Art. 1146, NCC).
The fact the plaintiff had committed contributory negligence is a
The hotel is liable for the wrongful acts of its employees. partial defense (Art. 2179, NCC).
a) Liwayway Vinzons-Chato was then the Commissioner of On May 5, 1989, 16-year old Rozanno, who was issued a student
Internal Revenue while Fortune Tobacco Corporation is permit, drove to school the car given by his parents. On the same
an entity engaged in the manufacture of different brands day of their scheduled school field trip, his teacher requested him
to accommodate in his car four (4) of his classmates as the van
of cigarettes, among which are "Champion," "Hope,"
rented by the school as already full. On their way, Rozanno made
and "More" cigarettes. a wrong manuever which caused a collision with a jeepney. One
of his classmates died while he and three (3) others were badly
Fortune filed a complaint against Vinzons-Chato to re- injured.
cover damages for the alleged violation of its constitu- 1. Who is liable for death of Rozanno’s classmate and the
tional rights arising from Vinzons-Chato’s issuance of injuries suffered by Rozanno and his 3 other class-
Revenue Memorandum Circular No. 37-934 (which re- mates.
classified Fortune cigarettes as locally manufactured At the time the incident occurred in May 1989, Rozanno was still a
with foreign brands and thereby imposed higher taxes), minor. Being a minor, Article 218 of the Family Code applies. Pursuant
which the Supreme Court later declared invalid. to Article 218, the school, its administrators and teachers shall be liable
for the acts of the minor Rozanno because of the special parental au-
Vinzons-Chato filed a Motion to Dismiss arguing that thority that they exercise over him. This authority applies to all autho-
she cannot be held liable for damages for acts she per- rized activities, whether inside or outside the premises of the school,
formed while in the discharge of her duties as BIR entity of institution. The field trip, on which occasion Rozanno drove the
car, was an authorized activity, and, thus, covered by the provision.
Commissioner. Is she correct? Explain. (5%) ‘12 - Q2a Furthermore, the parents of Rozanno are subsidiarily liable pursuant to
Article 219 (FC), and principally liable under Article 221 (FC), if they
Yes, As a general rule, a public officer is not liable for acts performed in were negligent.
the discharge of his duties. The exceptions are when he acted with
malice, bad faith, or gross negligence in the performance of his duty, or 2. Who is liable to damage to the jeepney?
when his act is in violation of the constitutionally-guaranteed rights and
With respect to the damages caused to the jeepney, only Rozan-
liberties of a person under Article 32 of the NCC. The public officer is
no should be held liable because his negligence or tortious act was the
not automatically considered to have violated the rights or liberties of sole, proximate, and immediate cause thereof.
person of a person simply because the rule the public officer issued
was declared invalid by the Court. The complainant must still allege 3. What if the accident happened in mid-1994? ’10 – Q12
and prove the particular injury or prejudice he has suffered from the
violation of his constitutional rights by the issuance of invalidated rule. Since Rozanno was 16 years old in 1989, if the incident hap-
pened sometime in the middle of 1994, Rozanno would have been 21
years old at that time. Hence, he was already of legal age. The law
The problem does not state any fact from which any malice, bad faith
reducing the age of majority to 18 years took effect in December 1989.
or gross negligence on the part of Vinsons-Chato may be inferred, or Being of legal age, Articles 218, 219, and 221 of the Family Code
the particular injury or prejudice the complainant may have suffered as are no longer applicable. In such case, only Rozanno will be personally
a result of the violation of constitutional rights. Hence, she cannot be liable for all the consequences of his act unless the school or his par-
held liable. The facts presented are similar to the facts of the case of ents were themselves negligent and such negligence contributed to the
Vinzons-Chato v Fortune, GR No. 141309. December 23, 2008. happening of the incident. In that event, the school or his parents are
not liable under Articles 218, 219, and 221 of the Family Code, but will
be liable under the general provisions of the Civil Code on quasi-delict.
!100
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
According to Article 2176 of the Civil Code, whoever by act or
Primo owns a pet iguana which he keeps in a man-made pond omission causes damages to another, there being fault of negligence,
enclosed by a fence situated in this residential lot. A typhoon is obliged to pay for the damage done. The proximate cause of the
knocked down the fence of the pond and the iguana crawled out injury was the bank’s negligence in misplacing his account. The fidu-
of the gate of Primo’s residence. N, a neighbor who was passing ciary nature of banking requires high standards of integrity and perfor-
by, started throwing stones at the iguana, drawing the iguana to mance necessitating banks for treat the accounts of its depositors with
move toward him. N panicked and ran but tripped on something meticulous care.
and suffered a broken leg. Is anyone liable for N’s injuries? ’10 –
Q14 Arturo sold his Pajero to Benjamin for P1 million. Benjamin took
the vehicle but did not register the sale with the LTO. He allowed
No one is liable. The possessor of an animal or whoever may his son Carlos, a minor who did not have a driver’s license, to
make use of the same is responsible for the damage which it may drive the car to buy pan de sal in a bakery. On the way, Carlos,
cause, although it may escape or be lost. This responsibility shall driving in reckless manner, sideswiped Dennis, then riding in a
cease only in case the damage should come from force majeure or bicycle. As a result, he suffered serious physical injuries. Dennis
from the fault of the person who has suffered damage (Article 2183, filed a criminal complaint against Carlos for reckless imprudence
New Civil Code.) resulting in serious physical injuries.
1. Can Dennis file an independent civil action against Car-
Rommel’s private car, while being driven by the regular family los and his father for damages based on quasi-delict?
driver, Amado, hits a pedestrian causing the latter’s death. Rom-
mel is not in the car when the incident happened. YES, Dennis can file an independent civil action against Carlos
1. Is Rommel liable for damages to the heirs of the de- and his father, Benjamin.
ceased? The independent civil action against Carlos can be based on
2. Would your answer be the same if Rommel was in the Article 2176 of the Civil Code, which states that, “whoever by act or
car at the time of the accident? ’09 – Q10 omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done.” The proximate cause of the injury
YES, Rommel may be held liable for damages if he fails to prove suffered by Dennis was the negligent driving of Carlo. He can thus be
that he exercised the diligence of a good father of a family (Article held personally liable by the former for said injuries.
2180, par. 5, NCC) in selecting and supervising his family driver. The
owner is presumed liable unless he proves the defense of diligence. If 2. Assuming that Dennis’ action is tenable, can Benjamin
the driver was performing his assigned task when the incident hap- raise the defense that he is not liable because the vehi-
pened, Rommel shall be solidarily liable with the driver. cle is not registered in his name? ’06 – Q13
In case the driver is convicted of reckless imprudence and cannot
pay the civil liability, Rommel is subsidiarily liable for the damages NO, Benjamin cannot raise the defense that he is not liable be-
awarded against the driver and the defense of diligence is not avail- cause the vehicle is not registered in his name. Had Dennis sued Ben-
able. jamin based on the latter’s liability as the owner of the vehicle, the non-
registration of the vehicle in his name would have been a valid de-
YES, my answer would be the same. Rommel, who was in the fense. As held in the case of BA Finance Corp. v. Court of Appeals,
car, shall be liable for damages if he could have prevented the misfor- 215 SCRA 715 [1992], it is the registered owner of any vehicle who
tune by the use of diligence in supervising his driver but failed to exer- should be primarily responsible to the public or third persons for in-
cise it (Article 2183, NCC.) In such a case, his liability is solidary with juries caused the latter while the vehicle was being driven. In this case,
his driver. Arturo was not sued. If sued, Arturo should be held liable for the injury
incurred by Dennis.
Explain the doctrine of discovered peril (last clear chance) and However, Benjamin is not being sued based on his ownership of
give an example of which. ’07 – 3b the registered vehicle, but rather for his responsibility as the parent of
the minor child whose negligent act resulted in damage or injury to
The doctrine of last clear change states that where the plaintiff another. As provided in Article 2180 of the Civil Code, as amended by
was guilty of prior or antecedent negligence but the defendant, who Article 221 of the Family Code, the father and mother are responsible
had the ultimate opportunity to avoid the impending harm failed to do for the damages caused by the fault and negligence of the minor chil-
so, it is the defendant who is liable for all the consequences of the dren who live in their company. This liability is imposed upon the par-
accident notwithstanding the prior negligence of the plaintiff. ents on the presumption that they have failed in their duty of supervi-
An example is where a person was riding a pony on a bridge and sion over their children. Regardless of the ownership of the vehicle,
improperly pulled the pony to the wrong side when he saw a car com- Dennis, therefore, has a cause of action against Benjamin.
ing. The driver of the car did not stop or change direction, and nearly
hit the horse, and the frightened animal jumped to its death. The driver Under Article 2219 of the Civil Code, moral damages may be re-
of the car is guilty of negligence because he had a fair opportunity to covered in the cases specified therein, several of which are enu-
avoid the accident and failed to avail himself of that opportunity. He is merated below. Choose the case wherein you cannot recover
liable under the doctrine of last clear chance (Picart v. Smith, 37 Phil. moral damages.
809 [1918].) a) Criminal offense resulting in physical injuries;
b) Quasi-delicts causing physical injuries;
Tony bought a Ford Expedition from a car dealer in Muntinlupa. c) Immorality or dishonesty;
As payment, Tony issued a check drawn against his current ac- d) Illegal search
count with Premium Bank. Since he has a good reputation, the e) Malicious prosecution. ’06 – Q16(1)
car dealer allowed him to immediately drive home the vehicle
merely on his assurance that his check is sufficiently funded. Moral damages may not be recovered in c) immorality or dishon-
When the car dealer deposited the check, it was dishonored on esty because it is not included in the enumeration in Article 2219 of the
the ground of “Account Closed.” After an investigation, it was Civil Code.
found that an employee of the bank misplaced Tony’s account
ledger. Thus, the bank erroneously assumed that his account no Another Suggested Answer:
longer exists. The dealer, however, immediately filed an action for
recovery of possession of the vehicle against Tony for which he Moral damages may be recovered in all of the five instances
was terribly humiliated and embarrassed. Does Tony have a cause enumerated above. While “immorality” and “dishonesty” are included in
of action against Premium Bank? ’06 – Q12 the ten instances enumerated in Article 2219 of the Civil Code, the
same article provides that moral damages may be recovered “in the
YES, Tony has a cause of action against Premium Bank. following and analogous instances.” Article 2219(10) provides and
includes: “Acts and actions referred to in Article 21.” Article 21 in turn
!101
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
provides: “Any person who willfully causes loss or injury to another in a Class cards. Since they were embarrassed at the discussions
manner that is contrary to morals, good customs or public policy shall with the flight attendants, they were forced to take the flight at the
compensate the latter for damages. Immorality or dishonesty is analo- 1st class section apart from their friends who were in the business
gous to acts contrary to morals, and therefore covered by Article 2219. class. Upon their return to Manila, they demanded a written apol-
ogy from Pinoy Airlines. When it went unheeded, the couple sued
Under the law on quasi-delict, aside from persons who caused Pinoy Airlines for breach of contract claiming moral and exem-
injury to persons, who are else liable under the following circum- plary damages, as well as attorney’s fees. Will the action prosper?
stances: ’05 – Q16
1. When a 7-year old injures his playmate while playing
with his father’s rifle. YES, Pinoy Airlines breached its contract of carriage by upgrading
the seat accommodation of the Almedas without their consent. The
Under Article 221 of the Family Code, parents and other persons object of their contract was the transportation of the Almedas from
exercising parental authority shall be civilly liable for the injuries and Manila to Hong Kong and back to Manila, with seats in the business
damages caused by the act or omissions of their unemancipated chil- class section of the aircraft. They should have been consulted first
dren or wards living in their company and under their parental authority whether they wanted to avail themselves of the privilege and would
subject to the appropriate defenses provided by law. consent to a change of seat accommodation. It should not have been
imposed on them over their vehement objection. By insisting on the
2. When a domestic helper, while haggling for a lower price upgrade, Pinoy Airlines breached its contract of carriage with the
with a fish vendor in course of buying foodstuffs for her Almedas.
employer’s family, slaps the fish vendor, causing her to However, the upgrading or the breach of contract was not attend-
fall and sustain injuries. ed by fraud or bad faith. They were not induced to agree to the upgrad-
ing through insidious words or deceitful machination or through willfull
Under Article 2180 of the Civil Code, employers shall be liable for concealment of material facts. Bad faith does not simply connote bad
the damages caused by their employees and household helpers acting judgment or negligence; it imports a dishonest purpose or some moral
within the scope of their assigned tasks, even though the former are obliquity and conscious doing of a wrong, a breach of a known duty
not engaged in any business or industry. As the domestic helper was through some motive or interest or ill will that partakes of the nature of
then in the exercise of her duties and acting within the scope of her fraud.
assigned tasks, her employer is also liable for the damage she has Neither is Pinoy Airlines in bad faith since Section 3 of the Eco-
caused to the fish vendor. nomic Regulation No. 7 of the Civil Aeronautics Board provides that
overbooking that does not exceed ten percent is not considered delib-
3. A carpenter in a construction company accidentally hits erate and therefore does not amount to bad faith.
the right foot of his co-worker with a hammer. As a result, the Almedas are not entitled to recover moral dam-
ages. Moral damages predicated upon a breach of contract of carriage
His employer, the construction company, is also liable for the may only be recoverable in instances where the carrier is guilty of
damages that the carpenter caused to the latter’s co-worker. Under fraud or bad faith or when the mishap resulted in the death of a pas-
Articles 2176 and 2180 of the Civil Code, liability is based on culpa senger. Where in breaching the contract of carriage, the airline is not
aquiliana which holds the employer primarily liable for tortious acts of shown to have acted fraudulently or in bad faith, liability for damages is
its employees, subject, however to the defense that the former exer- limited to the natural and probable consequences of the breach of the
cised all the diligence of a good father of a family in the selection and obligation which the parties had foreseen or could have reasonably
supervision of his employees (Franco v. Intermediate Appellate Court, foreseen. In such a case, the liability does not include moral and ex-
178 SCRA 331 [1989].) emplary damages.
It is a requisite in the grant of exemplary damages that the act of
4. A 15-year old high school student stabs his classmate the offender be accompanied in bad faith or done in a wanton, fraudu-
who is his rival for a girl while they were going out of the lent or malevolent manner. Such requisite is absent in this case. More-
classroom after their last class. over, to be entitled thereto, the claimant must first establish his right to
moral, temperate, or compensatory damages. Since the Almedas are
Under Section 218 of the Family Code, the school, its administra- not entitled to any of these damages, the award for exemplary dam-
tors and teachers, or the individual, entity or institution engaged in child ages has no legal basis. And where the awards for moral and exem-
care shall have special parental authority and responsibility over the plary damages are eliminated, so must the award for attorney’s fees.
minor child under their supervision, instruction or custody. Authority The most that can be awarded for the breach of contract is an
and responsibility shall apply to all authorized activities whether inside award for nominal damages. Pinoy Airlines may be said to have dis-
or outside the premises of the school, entity or institution. turbed the spouses’ wish to be with their companions at the Business
Class on their flight to Manila.
5. What defense, if any, is available to them? ’05 – Q15 (Cathay Pacific v. Spouses Vasquez, 399 SCRA 207 [2003].)
These persons identified by law to be liable may raise the defense DT and MT were prominent members of a frequent traveler’s club
that they exercised proper diligence required under the circumstances. of FX Airlines. In HK, the couple were assigned sets in Business
Their responsibility will cease when they prove that they observed all Class for which they had bought tickets. On checking in, however,
the diligence of a good father of a family to prevent damage. As re- they were told that were upgraded by computer to 1st Class for the
gards the employer, if he shows to the satisfaction of the court that in flight to Manila because the Business Section was overbooked.
the selection and supervision of his employees he has exercised the Both refused to transfer. They said that they had guests in Busi-
care and diligence of a good father of a family, the presumption is ness Class they should attend to. They felt humiliated, embar-
overcome and he is relieved from liability (Layugan v. Intermediate rassed and vexed, however, when the stewardess allegedly
Appellate Court, 167 SCRA 363 [1988].) threatened to offload them if they did not avail of the upgrade.
Thus, they gave in, but during the transfer of the luggage, DT
Dr. and Mrs. Almeda are prominent citizens of the country are suffered pain in his arm and wrist. After arrival in Manila, they
frequent travellers abroad. In 1996, they booked round-trip busi- demanded an apology from Fx’s management as well as indemni-
ness class tickets for MLA-HK-MLA route of the Pinoy Airlines, ty payment. When none was forthcoming, they sued the airline for
where they were holders of Gold Mabalos Class Frequent Flier a million pesos in damages. Is the airline liable for actual and
Cards. On their return flight, Pinoy Airlines upgraded their tickets moral damages? ’04 – Q2b
to 1st class without their consent and inspite of their protestations
to be allowed to remain in the business class so that they could FX Airlines committed breach of contract when it upgraded DT
be with their friends, they were told that the business class was and MT, over their objections, to First Class because they had con-
already fully booked, and that they were given priority in upgrad- tracted for Business Class passage. However, although there is a
ing because they were elite members/holders of the Gold Mabalos breach of the contract, DT and MT are entitled to actual damages only
!102
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
for such pecuniary losses suffered by them as a result of such breach. 1. Does Ortillo have a legal basis for his claim for moral
There seems to be no showing that they incurred such pecuniary loss. damages?
There is no showing that the pain in DT’s arm and wrists resulted di-
rectly from the carrier’s acts complained of. Hence, they are not enti- There is no legal basis to Ortillo’s claim for moral damages. It
tled to actual damages. Moreover, DT could have avoided the alleged does not fall under the coverage of Article 2219 of the New Civil Code.
injury by requesting the airline staff to do the luggage transfer as a
matter of duty on their part. There is also no basis to award moral 2. How about his claim for attorney’s fees, having hired a
damages for such breach of contract because the facts of the problem lawyer to defend him? ’02 – Q16
do not show bad faith or fraud on the part of the airline (Cathay Pacific
v. Spouses Vasquez, 399 SCRA 207 ]2003].) However, they may re- Ortillo is entitled to attorney’s fees because Fabricato’s complaint
cover moral damages if the cause of action is based on Article 21 of is a case of malicious prosecution or a clearly unfounded civil action
the Civil Code for the humiliation and embarrassment they felt when (Articles 2208 [4] and [11], NCC).
the stewardess threatened to offload them if they did not avail of the
upgrade. A van owned by Orlando and driven by Diego, while negotiating a
downhill slope of a city road, suddenly gained speed, obviously
OJ was employed as a professional driver of MM Transit Bus beyond the authorized limit in the area, and bumped a car in front
owned by Mr. BT. In the course of his work, OJ hit a pedestrian of it, causing severe damage to the car and serious injuries to its
who was seriously injured and later died in the hospital as a re- passengers. Orlando was not in the car at the time of the incident.
sult of the accident. The victim’s heirs sued the driver and the The car owner and the injured passengers sued Orlando and
owner of the bus for damages. Is there a presumption in this case Diego for damages caused by Diego’s negligence. In their de-
that Mr. BT, the owner, had been negligent? If so, is the presump- fense, Diego claims that the downhill slope caused the van to
tion absolute or not? ’04 – Q5b gain speed and that, as he stepped on the brakes to check the
acceleration, the brakes locked, causing the van to go even faster
YES, there is a presumption of negligence on the part of the em- and eventually to hit the car in front of it. Orlando and Diego con-
ployer. However, such presumption is rebuttable. The liability of the tend that the sudden malfunction of the van’s brake system is a
employer shall cease when they prove that they observe the diligence fortuitous even and that, therefore, they are exempt from any lia-
of a good father of a family to prevent damage (Article 2180, Civil bility.
Code.) 1. Is this contention tenable?
When the employee causes damage due to his own negligence
while performing his own duties, there arises a juris tantum presump- NO. Mechanical defects of a motor vehicle do not constitute fortu-
tion that the employer is negligent, rebuttable only by proof of obser- itous event, since the presence of such defects would have been readi-
vance of the diligence of a good father of a family (Metro Manila Transit ly detected by diligent maintenance check. The failure to maintain the
v. Court of Appeals, 223 SCRA 521 [1993]; Delsan Transport Lines v. vehicle in safe running condition constitutes negligence.
C&A Construction, 412 SCRA 524 [2003].)
Likewise, if the driver is charged and convicted in a criminal case 2. Explain the concept of vicarious liability in quasi-delicts.
for criminal negligence, BT is subsidiarily liable for the damages arising
from the criminal act. The doctrine of VICARIOUS LIABILITY is that which renders a
person liable for the negligence of others for whose acts or omission
As a result of a collision between a taxi owned by A and another the law makes him responsible on the theory that they are under his
taxi owned by B, X, a passenger of the 1st taxi, was seriously in- control and supervision.
jured. X later filed a criminal action against both driver.
1. Is it necessary for X to reserve his right to institute a 3. Does the presence of the owner inside the vehicle caus-
civil action for damages against both taxi owners before ing damage to a third party affect his liability for his
he can file a civil action for damages against them? driver’s negligence? ’02 – Q17
It depends. If the separate civil action is to recover damages from In motor vehicle mishaps, the owner is made solidarily liable with
the criminal act, reservation is necessary. If the civil action against the his driver if he (the owner) was in the vehicle and could have, by the
taxicab owners is based on culpa contractual, or on quasi-delict, there use of due diligence, prevented the mishap (Caedo v. Yu Khe Thai, 26
is no need for reservation. SCRA 410 [1968].) However, this question has no factual basis in the
problem given, in view of the express given fact that “Orlando was not
2. May both taxi owners raise the defense of due diligence in the car at time of the incident.”
in the selection and supervision of their drivers to be
absolved from liability for damages to X? ’03 – Q17 After working overtime up to midnight, Alberto, an executive of an
insurance company drove a company vehicle to a favorite
It depends. If the civil action is based on quasi-delict, the taxicab Videoke bar where he had some drinks and sang some songs
owners may raise the defense of diligence of a good father of a family with friends to "unwind". At 2 AM, he drove home, but in doing so,
in the selection and supervision of the driver. If the action against them he bumped a tricycle, resulting in the death of its driver. May the
is based on culpa contractual or civil liability arising from crime, they insurance company be held liable for the negligent act of Alberto?
cannot raise the defense. ’01 – Q18
Ortillo contracts Fabricato, Inc. to supply and install tile materials The insurance company is not liable because when the accident
in a building he is donating to his province. Ortillo pays 50% of occurred, Alberto was not acting within the assigned tasks of his em-
the contract price as per agreement. It is also agreed that the bal- ployment.
ance would be payable periodically after every 10% performance It is true that under Article 2180 (Par. 5), employers are liable for
until completed. After performing about 93% of the contract, for damages caused by their employees who were acting within the scope
which it has been paid an additional 40% as per agreement, Fab- of their assigned tasks. However, the mere fact that Alberto was using
ricato, Inc. did not complete the project due to its sudden cessa- a service vehicle of the employer at the time of the injurious accident
tion of operations. Instead, Fabricato, Inc. demands payment of does not necessarily mean that he was operating the vehicle within the
the last 10% of the contract despite its non-completion of the scope of his employment. In Castilex Industrial Corp. v. Vasquez Jr.
project. Ortillo refuses to pay, invoking the stipulation that pay- (321 SCRA 393 [1999].) the Supreme Court held that notwithstanding
ment of the last amount 10% shall be upon completion. Fabricato, the fact that the employee did some overtime work for the company,
Inc. brings suit for the entire 10% plus damages, Ortillo counters the former was, nevertheless, engaged in his own affairs or carrying
with claims for (a) moral damages for Fabricato, Inc.’s unfounded out a personal purpose when he went to a restaurant at 2:00 AM after
suit which has damaged his reputation as a philanthropist and coming out from work. The time of the accident (also 2:00 AM) was
respect businessman in his community, and (b) attorney’s fees. outside normal working hours.
!103
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
who was in in the vehicle at the time of the accident, be held soli-
Alternative Answer: darily liable with his driver, John? ’98 – Q13
The insurance company is liable if Alberto was negligent in the YES. Art may be held solidary liable with John, if it was proven
operation of the car and the car was assigned to him for the benefit of that the former could have prevented the misfortune with the use of
the insurance company, and even though he was not within the scope due diligence. Article 2184 of the Civil Code states: “In motor mishaps,
of his assigned tasks when the accident happened. In one case decid- the owner is solidary liable with his driver, if the former, who was in the
ed by the Supreme Court, where an executive of a pharmaceutical vehicle, could have, by the use of due diligence, prevented the misfor-
company was given the use of a company car, and after office hours, tune x x x.”
the executive made personal use of the car and met an accident, the
employer was also made liable under Article 2180 of the Civil Code for Alternative Answer:
the injury caused by the negligent operation of the car by the execu-
tive, on the ground that the car which caused the injury was assigned It depends.
to the executive by the employer for the prestige of the company. The The Supreme Court in Chapman v. Underwood (27 Phil 374),
insurance company was held liable even though the employee was not held: “An owner who sits in his automobile, or other vehicle, and per-
performing within the scope of his assigned tasks when the accident mits his driver to continue in a violation of law by the performance of
happened (Valenzuela v. Court of Appeals, 253 SCRA 303 [1996].) negligent acts, after he has had a reasonable opportunity to observe
them and to direct that the driver cease therefrom, becomes himself
Silvestre leased a car from Avis-Rent-A-Car Co. at the Mactan responsible for such acts x x x.”
International Airport. No sooner had he driven the car outside the “On the other hand, if the driver, by a sudden act of negligence,
airport when, due to his negligence, he bumped an FX taxi owned and without the owner having a reasonable opportunity to prevent the
and driven by Victor, causing damage to the latter in the amount act or its continuance, injures a person or violates the criminal law, the
of P100,000. Victor filed an action for damages against both Sil- owner of the automobile, although present therein at the time the act
vestre and Avis, based on quasi-delict. Avis filed a motion to dis- was committed is not responsible, either civilly or criminally, therefor.
miss the complaint against it on the ground of failure to state a The act complained of must be continued in the presence of the owner
cause of action. Resolve the motion. ’00 – Q20a for such a length of time that the owner, by his acquiescence, makes
his driver's act his own.”
The motion to dismiss should be granted, AVIS is not the employ-
er of Silvestre; hence, there is no right of action against AVIS under When would an employer's liability for damage, caused by an
Article 2180 of the Civil Code. Not being the employer, AVIS has no employee in the performance of his assigned tasks, be primary
duty to supervise Silvestre. Neither has AVIS the duty to observe due and when would it be subsidiary in nature? '97 – Q19a
diligence in the selection of its customers. Besides, it was given in the
problem that the cause of the accident was the negligence of Silvestre. The employer's liability for damage based on culpa aquiliana
under Articles 2176 and 2180 of the Civil Code is primary; while that
Despite a warning from the police that an attempt to hijack a PAL under Article 103 of the Revised Penal Code is subsidiary.
plane will be made in the following week, the airline did not take
extra precautions, such as frisking of passengers, for fear of be- Would the defense of due diligence in the selection and supervi-
ing accused of violating human rights. 2 days later, an armed sion of the employee be available to the employer in both in-
hijacker did attempt to hijack a PAL flight to Cebu. Although he stances? ’97 – Q19b
was subdued by the other passengers, he managed to fire a shot
which hit and killed a female passenger. The victim's parents The defense of diligence in the selection and the vehicle supervi-
sued the airline for breach of contract, and the airline raised the sion of the employee under Article 2180 of the Civil Code is available
defense of force majeure. Is the airline liable or not? ’00 – Q20b only to those primarily liable thereunder, but not to those subsidiarily
liable under Article 103 of the Revised Penal Code (Yumul v. Juliano,
The airline is liable. In case of death of a passenger, common 72 Phil. 94.)
carriers are presumed to have been at fault or to have acted negligent-
ly, unless they prove that they observed extraordinary diligence (Article Rosa was leasing an apartment in the city. Because of the Rent
1756, Civil Code.) Control Law, her landlord could not increase the rental as much
The failure of the airline to take extra precautions despite a as he wanted to, nor terminate her lease as long as she was pay-
negate sale because they indicate that ownership over the police warn- ing her rent. In order to force her to leave the premises, the land-
ing that an attempt to hijack the plane would be made, was negligence lord stopped making repairs on the apartment, and caused the
on the part of the airline. Being negligent, it is liable for the death of the water and electricity services to be disconnected. The difficulty of
passenger. The defense of force majeure is not tenable since the living without electricity and running water resulted in Rosa's
shooting incident would not have happened had the airline taken steps suffering a nervous breakdown. She sued the landlord for actual
that could have prevented the hijacker from boarding the plane. and moral damages. Will the action prosper? ’96 – Q2
Alternative Answer: YES, based on quasi-delict under the human relations provisions
of the New Civil Code (Articles 19, 20 and 21) because the act commit-
Under Article 1763 of the Civil Code, the common carrier is not ted by the lessor is contrary to morals. Moral damages are recoverable
required to observe extraordinary diligence in preventing injury to its under Article 2219(10) in relation to Article 21. Although the action is
passengers on account of the willful acts or negligence of other pas- based on quasi-delict and not on contract, actual damages may be
sengers or of strangers. The common carrier, in that case, is required recovered if the lessee is able to prove the losses and expenses she
to exercise only the diligence of a good father of a family. Hence, the suffered.
failure of the airline to take EXTRA precautions in frisking the passen-
gers and by leaving that matter to the security personnel of the airport, Alternative Answers:
does not constitute a breach of that duty so as to make the airline li-
able. Besides, the use of irresistible force by the hijackers was force Yes, based on breach of contract. The lessor has the obligation to
majeure that could not have been prevented even by the observance undertake repairs to make the apartment habitable and to maintain the
of extraordinary diligence. lessee in the peaceful and adequate enjoyment of the lease for the
entire duration of the contract (Article 1654, NCC.) Since there was
A Galant driven by John and owned by Art, and a Corolla driven willful breach of contract by the lessor, the lessee is entitled to moral
by its owner, Gina, collided somewhere along Adriatico Street. As damages under Article 2220, NCC. She is also entitled to actual dam-
a result of the accident, Gina had a concussion. Subsequently, ages, e.g. loss of income, medical expenses, etc., which she can prove
Gina brought an action for damages against John and Art. There at the trial.
is no doubt that the collision is due to John's negligence. Can Art,
!104
The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Yes, based on contract and/or on tort. The lessor willfully
breached his obligations under Article 1654. NCC, hence, he is liable
for breach of contract. For such breach, the lessee may recover moral
damages under Article 2220 of the NCC, and actual damages that she
may have suffered on account thereof. And since the conduct of the
lessor was contrary to morals, he may also be held liable for quasi-
delict. The lessee may recover moral damages under Article 2219 (10)
in relation to Article 21, and all actual damages which she may have
suffered by reason of such conduct under Articles 19, 20 and 21.
Yes, the action should prosper for both actual and moral dam-
ages. In fact, even exemplary damages and attorney's fees can be
claimed by Rosa, on the authority of Magbanua v. Intermediate Appel-
late Court (137 SCRA 328), considering that, as given, the lessor's
willful and illegal act of disconnecting the water and electric services
resulted in Rosa's suffering a nervous breakdown. Articles 20 and 21
of the NCC authorize the award of damages for such willful and illegal
conduct.
Marcial, who does not know how to drive, has always been driven
by Ben, his driver of 10 years whom he had chosen carefully and
has never figured in a vehicular mishap. One day, Marcial was
riding at the back seat of his Mercedes Benz being driven along
EDSA by Ben. Absorbed in reading a book, Marcial did not notice
that they were approaching the corner of Quezon Avenue, when
the traffic light had just turned yellow. Ben suddenly stepped on
the gas to cross the intersection before the traffic light could turn
red. But, too late. Midway in the intersection, the traffic light
changed, and a jeepney full of passengers suddenly crossed the
car's path. A collision between the 2 vehicles was inevitable. As a
result, several jeepney passengers were seriously injured. A suit
for damages based on culpa aquiliana was filed against Marcial
and Ben, seeking to hold them jointly and severally liable for such
injuries. May Marcial be held liable? '96 – Q16
Marcial may not be liable because under Article 2184, NCC, the
owner who is in the vehicle is not liable with the driver if by the exer-
cise of due diligence he could have prevented the injury. The law does
not require the owner to supervise the driver every minute that he was
driving. Only when through his negligence, the owner has lost an op-
portunity to prevent the accident would he be liable (Caedo v. Yu Khe
Thai, 26 SCRA 410 [1968] citing Chapman v. Underwood and Manlan-
git v. Maujer, 250 SCRA 560 [1995].)
In this case, the fact that the owner was absorbed in reading a
book does not conclusively show that he lost the opportunity to prevent
the accident through his negligence.
Alternative Answer:
Yes, Marcial should be held liable. Article 2184, NCC makes an owner
of a motor vehicle solidarily liable with the driver if, being in the vehicle
at the time of the mishap, he could have prevented it by the exercise of
due diligence. The traffic conditions along EDSA at any time of day or
night are such as to require the observance of utmost care and total
alertness in view of the large number of vehicles running at great
speed. Marcial was negligent in that he rendered himself oblivious to
the traffic hazards by reading a book instead of focusing his attention
on the road and supervising the manner in which his car was being
driven. Thus he failed to prevent his driver from attempting to beat the
traffic light at the junction of Quezon Avenue and EDSA, which Marcial,
without being a driver himself could have easily perceived as a reck-
less course of conduct.
!105