1.

)
Accion in Rem Verso
Action for recovery of what has been paid without just cause
Requisites:
a. Defendant has been enriched
b. Plaintiff suffered a loss
c. Enrichment of defendant is without just or legal ground
d. Plaintiff has no other action based on contract, quasi contract, crime or quasi-delict
Distinguished from solutio indebeti:
Mistake is an essential element in solutio indebeti but not in accion in rem verso.
Abuse of Rights
There is an abuse of right when it is exercised for the purpose of prejudicing or injuring another.
Principle of Damnum Absque Injuria

It means damage without injury. One who merely exercises one’s rights does no actionable injury and
cannot be held liable for damages

2.)
Conflicts Rules
Real property and personal property Lex situs
Order of succession National law of the decedent
Amount of successional rights
Intrinsic validity pf testamentary provisions
Forms/solemnities of wills, contracts & other Lex loci celebrationis
public instruments

Forum Non-Conveniens
Forum non conveniens (Latin for "forum not agreeing") is a (mostly) common law legal
doctrine whereby courts may refuse to take jurisdiction over matters where there is a more
appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non
conveniens applies between courts in different countries and between courts in different
jurisdictions in the same country. Forum non conveniens is not applicable between counties or
federal districts within a state.
3.)
When Laws Take Effect
General Rule: 15 days after completion of publication in OG or newspaper of general circulation
Exception: The law can provide its own date of effectivity, i.e., it can provide for a period less than or
greater than 15 days after publication before the law takes effect.
Publication is MANDATORY even if the law provides its own date of effectivity.
Internal regulations of administrative agencies which bind only the agency need not be published.

4.)
Concept of a prejudicial question
It is a question of a purely civil character but connected in such a manner to the crime on which the
criminal case is based that it is determinative of the guilt or innocence of the accused. (De Leon vs.
Mabanag, 70 Phil. 202)
5)
Essential Requisites of Marriage
a.) Legal capacity of contracting parties
b.) Consent freely given in the presence of the solemnizing officer
Formal Requisites of Marriage
a.) Authority of solemnizing officer
b.) Valid marriage license (except in cases where a marriage license is not required)
c.) Marriage ceremony
6.)
Republic of the Philippines v. Marelyn Tanedo Manalo (GR 221029, April 24, 2018), the Supreme Court
held that a foreign divorce secured by a Filipino is also considered valid in the Philippines, even if it is the
Filipino spouse who files for divorce abroad.

7.)
G.R. No. 218630 Republic V. KATRINA S. TOBORA-TIONGLICO
The guidelines in the declaration of nullity of marriage on the basis of psychological
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.
(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged
in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
(5) Such illness must be grave enough to bring about the disability of the party to assume the essential
obligations of marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code
as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive, should be given great respect by our courts.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the state.
No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted
in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to
the petition

8.)

When Mother of Child Can be Deprived of Custody

Agnes Hirsch vs. CA and Franklin Hirsch (GR No. 174485, July 11, 2007)

As a general rule, a child under 7 years of age shall be in the custody of the mother (Art 213 of the Family
Code). This is known as the maternal preference rule or tender-years-rule.

But this rule has exceptions: when the court finds compelling reasons to order otherwise. This includes
finding compelling evidence showing the mother’s unfitness such as:

a. neglect
b. abandonment
c. unemployment
d. immorality
e. habitual drunkenness
f. drug addiction
g. maltreatment of the child
h. insanity
i. affliction with a communicable disease

9.) Consent

“Consent” in marriage is simply the personal declaration made by the groom and the bride during the
marriage ceremony that they are taking each other as husband and wife.
If such consent is given during the marriage ceremony and the same is not defective, the marriage is
perfectly valid, regardless of the absence of love and the purpose, intent and motive of the parties
in contracting a marriage.
The absence of love does not affect the validity of the marriage. Likewise, the fact that the marriage was
entered into for other purposes other than what the law or the Constitution declares does not make
marriage void. (Republic v.Albios, 707 SCRA 584 [2013])

10)
Requirement of Judicial Declaration of Presumptive Death
Requirement of Judicial Declaration of Presumptive Death:
There are two applicable laws on presumption of death:
(a) Article 41 of the Family Code, if the presumption of death is for the purpose of remarriage. Here, the
law requires a judicial declaration of presumptive death.
(b) Articles 390-391 of the New Civil Code, if the presumption of death is for purposes other than
remarriage.

11)
Mandatory Requirement of Joint Adoption by Spouses:

a) General rule: Joint adoption by the spouses is mandatory. Otherwise, the

adoption cannot prosper.

b) Exception to Joint Adoption: (1) If one is seeking to adopt the legitimate child of
the other spouse; (2) If one is seeking to adopt his/her illegitimate child but the consent of the spouse is
mandatory; and (3) if the spouses are legally separated

12.)
Heirs of Malabanan v. Republic (2009 and 2013):

a) Only patrimonial property of the State can be acquired thru acquisitive

prescription, citing Article 1113, NCC.

b) Agricultural lands of the public domain declared alienable and disposable remain
to be properties of public domain. To be converted into patrimonial:

a. There must be an express declaration that they are no longer intended for
public use, public service or for development of national wealth, or express
declaration of their conversion to patrimonial; and

b. Such express declaration must be in the form of a law passed by Congress or

in the form of presidential proclamation in cases where the President is
expressly authorized by Congress to do so.

13.)

CONCEPT OF PARENTAL AUTHORITY (PATRIA POTESTAS)

Parental authority is the mass of rights and obligations which parents have in relation to the person
and property of their children until their emancipation, and even after under certain circumstances.

14.)
CHARACTERISTICS OF PARENTAL AUTHORITY
1. It is a natural right and duty of the parents (Art. 209 FC)
2. It cannot be renounced, transferred or waived except in cases authorized by law (Art 210 FC)
3. It is jointly exercised by the father and the mother (Art. 211, FC)
4. It is purely personal and cannot be exercised through agents
5. It is temporary

15)
Effect of Death of Adopting Parents During Minorty of Adopted Child:

If both the adopting parents die during the minority of the adopted child, all legal ties
between the biological parents and the adopted child which had been severed by
the decree of adoption are automatically restored, applying by analogy the
provisions of Section 20 of the Domestic Adoption Act. (Bartolome v. SSS [2014]
16.)
"Court authorization" in the sale of conjugal properties

Court authorization is resorted to in cases where the spouse who does not give consent is incapacitated.
If
there is no showing that the spouse is incapacitated, court authorization cannot be sought (Manalo v.
Fernandez, G.R. No. 147928, January 23, 2002).

17.) Property

Classification (according to mobility):

1. Immovable – real property
2. Movable – personal property

Requisites:
1. Utility
2. Individuality/Substantivity
3. Susceptibility of appropriation

Real Rights
1. no passive subject – claim against whole world
2. object is corporeal thing (obligation)
3. creates juridical relations through mode & title
4. extinguished through loss or destruction of thing

Personal Rights
1. Passive and active subject
2. Object is an intangible thing (specific thing)
3. Creates juridical relations through title
4. Not extinguished through loss or destruction of thing

Immovable property
1. By nature – cannot be moved from place to place because of their nature
a) land, buildings & all kinds of constructions adhered to soil
b) mine, quarries

2. By incorporation – essentially movables but attached to an immovable that it becomes an integral

part of it
a) trees, plants & growing fruits adhered to soil
b) everything attached to an immovable that it will break if separated
c) statues, paintings if intended by owner to be integral part of immovable
d) animal houses if intended by owner to become permanently attached to immovable

3. By destination – movables but purpose is to partake of an integral part of an immovable

a) machinery placed by owner of the tenement & tend directly to meet the needs of such
works/industry
b) fertilizers – when applied to soil
c) docks & floating structures

4. By analogy/by law – contracts for public works, servitude & other real rights over immovable
property

Movable property
1. susceptible of appropriation that are not included in enumeration in immovable
2. immovable that are designated as movable by special provision of law
3. forces of nature brought under control by science
4. things w/c can be transported w/o impairment of real property where they are fixed
5. obligations which involve demandable sums (credits)
6. shares of stocks of agricultural, commercial & industrial entities although they may have real
estate

Classification of Movables
1. consumable – cannot be utilized w/o being consumed
2. non-consumable

Classification of Property (according to ownership):

1. Public dominion –
a) intended for public use
b) intended for public service of state, provinces, cities & municipalities
 Characteristics:
a) outside the commerce of men – cannot be alienated or leased
b) cannot be acquired by private individual through prescription
c) not subject to attachment & execution
d) cannot be burdened by voluntary easement
 2. Private Ownership –
a) patrimonial property of state, provinces, cities, municipalities
1. exist for attaining economic ends of state
2. property of public dominion when no longer intended for public use/service – declared
patrimonial
b) property belonging to private persons – individually or collectively.

18.)

What are the modes of acquisition? (OLD TIPS)

O – Occupation
L – Law
D – Donation
T – Tradition
I – Intellectual property
P – Prescription
S – Succession

19.)
Doctrine of self Help
The doctrine of self-help can only be exercised at the time of actual or threatened dispossession.
When possession has already been lost, the owner must resort to judicial process for the recovery of
property.

This is clear from Article 536 of the Civil Code which states, "(I)n no case may possession be acquired
through force or intimidation as long as there is a possessor who objects thereto. He who believes that he
has an action or right to deprive another of the holding of a thing, must invoke the aid of the competent
court, if the holder should refuse to deliver the thing." (G.R. No. 76217 September 14, 1989 GERMAN
MANAGEMENT & SERVICES, INC V. CA)

20.) Treasure found on another’s property

1) Treasure found on another’s property
- consist of (1) money, precious objects & 2) hidden & owner is unknown
- finding must be by chance in order that stranger may be entitled to ½ of the treasure
2) Movable found w/c is not treasure
- must be returned to owner
- if finder retains the thing found – may be charged with theft
- if owner is unknown, give to mayor; mayor shall announce finding of the movable for 2
weeks in way he deems best
- of owner does not appear 6 months after publication, thing found shall be awarded to
finder
- if owner appears, he is obliged to pay 1/10 of value of property to finder as price
- if movable is perishable or cannot be kept w/o deterioration or w/o expenses it shall be
sold at public auction 8 days after the publication

21.)
PRESCRIPTION OF ACTIONS
 By lapse of time fixed by law
a. 30 years
- action over immovables from time possession is lost
b. 10 years
- mortgage action
- upon written contract
- upon obligation created by law
- upon a judgement
c. 8 years
- action to recover movables from time possession is lost
d. 6 years
- upon an oral contract
- upon a quasi-contract
e. 5 years
- actions where periods are not fixed by law
f. 4 years
- upon injury to rights of plaintiff
- upon a quasi-delict
g. 1 year
- for forcible entry & detainer
- for defamation
21.)

Tacking.

The process whereby an individual who is in Adverse Possession of real property adds his or her period
of possession to that of a prior adverse possessor. In order for title to property to vest in an adverse
possessor, occupancy must be continuous, regular, and uninterrupted for the full statutory period.

Occupation v. possession

Occupation is a mode of acquiring ownership which involves someform of holding (Articles 712 & 713,
New Civil Code). Possession is the holding of a thing or the enjoyment of a right. (Article
532,NCC).Occupation can take place only with respect to property withoutan owner, while possession
can refer to all kinds of property,whether with or without an owner. Occupation in itself, whenproper,
confers ownership; but possession does not by itself giverise to ownership. (II Tolentino, Civil Code, 1992
ed., p. 489).

2. Illegal and impossible conditions in a simple donation v. illegal and impossible conditions in an onerous
donation.

Illegal or imposable conditions in simple conditions are considered as not imposed, hence the donation is
valid. (Art. 727, NCC). On the other hand, donations with an onerous cause shall be governed by the
rules on contract (Art. 733, NCC). Under Art. 1183 0f the New Civil Code, “impossible conditions, those
contrary to good customs or public policy and those prohibited by law shall annul the obligation which
depends upon them.” Thus, the onerous donation is void.

22. )
Reserva troncal is a special rule designed primarily to assure the return of a reservable property to the
third degree relatives belonging to the line from which the property originally came, and avoid its being
dissipated into and by the relatives of the inheriting ascendant
G.R. No. 176422 March 20, 2013 Mendoza v. DELOS SANTOS
The 2 theories of division of the reserva, Reserva Minima and the Reserva Maxima
 Reserva Maxima – Reserve as much as you can
 Land (100K) + Estate (50k) = 150k legitime.
 Reserva Minima – Reduce as much as you can but do not extinguish.
Compulsory Heir – Legitime - Land (50k) + Estate (100k) = 150k legitime
Voluntary Heir – Free Portion – Land (50k) + Estate (100k) = 150k Free Portion
 Residue only, cannot make it 0

23.) Is there right of representation in reserva troncal?

Yes. There is representation in reserva troncal, but the representative must also be within the third degree
from the propositus. (Florentino v. Florentino)

24.) How is the reserva extinguished?

1. Death of the reservor or reservista

2. Death of all the would-be reservees ahead of the reservoir
3. Accidental loss of the reservable property
4. Prescription - runs from the death of the reservor [30 years for real property; 8 years fro personal
peoperty]
25.)

Important periods to remember:

1 month or less before making a will Testator, if publicly known to be insane, burden
of proof is on the one claiming validity of the
will
20 years Maximum period testator can prohibit alienation
of dispositions
5 years from delivery to the State To claim property escheated to the State
1 month To report knowledge of violent death of
decedent lest he be considered unworthy
5 years from the time disqualified person took Action for declaration of incapacity & for
possession recovery of the inheritance, devise or legacy
30 days from issuance of order of distribution Must signify acceptance/repudiation otherwise,
deemed accepted
1 month form written notice of sale Right to repurchase hereditary rights sold to a
stranger by a co-heir
10 years To enforce warranty of title/quality of property
adjudicated to co-heir from the time right of
action accrues
5 years from partition To enforce warranty of solvency of debtor of
the estate at the time partition is made
4 years form partition Action for rescission of partition on account of
lesion

26.)

PRETERITION:
1. There must be an omission of one, some or all of the heir/s in the will
2. The omission must be that of a COMPULSORY HEIR
3. Compulsory heir omitted must be of the DIRECT LINE
4. The omitted compulsory heir must be LIVING at the time of testator’s death or must at least have
been CONCEIVED before the testator’s death

Effects of preterition:
1. The institution of heirs is annulled
2. Devises & legacies shall remain valid as long as they aren’t officious

DISINHERITANCE – It is the act by which the testator, for just cause, deprives a compulsory heir
of his right to the legitime.

Preterition vs. Disinheritance

Disinheritance PRETERITION
Express deprivation of legitime Tacit deprivation of legitime
Always voluntary May also be voluntary but is presumed to be
involuntary (as it’s an omission to mention as
an heir or though mentioned, isn’t instituted as
an heir)
Legal cause is present Presumed by law to be a mere oversight
Even a compulsory heir may be totally Compulsory heir is merely restored to his
excluded legitime

Requisites for a valid disinheritance

1. Heir disinherited must be designated by name or in such a manner as to leave no room for doubt
as to who it is intended
2. Disinheritance must be for a cause designated by law
3. It must be made in valid will
4. It must be made expressly, stating the cause in the will itself
5. Cause must be certain & true, & must be proved by interested heirs if the person disinherited
should deny it
6. It must unconditional
7. Must be total
27.)

Will – an act whereby a person is permitted, with the formalities prescribed by law, to control, to a certain
degree the disposition of his estate, to take effect after his death.

Validity of wills
Extrinsic FOR FILIPINOS
1. Governing law as to time Article 795 – law in force
when will was executed
2. Governing law as to place Law of citizenship
Law of domicile
Law of residence
Law of place of execution
Philippine law
FOR FOREIGNERS
Same rule (assumption: will is
being probated here)
Law of citizenship
Law of domicile
Law of residence
Law of place of execution
Philippine law

Intrinsic FOR FILIPINOS FOR FOREIGNERS

1. Governing law as to time Article 2263 – law at time of Article 16, Article 1039 –
death depends on personal law
2. Governing law as to place Article 16, Article 1039 – Article 16, Article 1039 –
Philippine law national law

28.)

Order of payment in case estate is INSUFFICIENT to cover legacies & devises

1. Remuneratory legacies or devises
2. Preferential legacies or devises declared by testator
3. Legacies for Support
4. Legacies for Education
5. Legacies or devises for Specific, determinate thing
6. All others, pro-rata

29.

Causes for legal or intestate succession

1. Person dies without a will
2. Person dies with void will
3. Person dies with a will that subsequently loses validity
4. Will doesn’t institute an heir or institution is void
5. Will doesn’t dispose of ALL property belonging to the testator
6. Suspensive condition attached to the institution of the heir doesn’t happen or isn’t fulfilled
7. Heir predeceases, or repudiates the inheritance
8. Incapacity of the heir

30.
2 fundamental underlying principles in legal or intestate succession
1. Rule of Proximity – nearer exclude the more remote
2. Rule of Equal Division – equal division within the same group

31.
Grounds when the right of representation will be available:
1. Disinheritance
2. Incapacity
3. Predecease

32.

Who can exercise right of representation

1. Intestate succession only: heirs in the collateral line, but only in favor of the children of siblings
2. Both testate & intestate succession: heirs in the descending line, NEVER in the ascending line

33.) Estoppel In Pais and Laches

Estoppel by laches is an equitable doctrine by which some courts deny relief to a claimant who has
unreasonably delayed or been negligent in asserting a claim.

The principle of estoppel in pais applies wherein one, by his acts, representations or admissions, or by his
own silence when he ought to speak out, intentionally or through culpable negligence, induces another to
believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be
prejudiced if the former is permitted to deny the existence of such facts. (Hanopol v. Shoemart, Inc., G.R.
No. 137774, October 4, 2002, 390 SCRA 439; Phil. Realty Holdings Corp. v. Firematic Phils. Inc., G.R.
No. 156251, April 27, 2007, Callejo, J).

34.) TRUST

A trust is a fiduciary relationship with respect to property which involves the existence of equitable duties
imposed upon the holder of the title to the property to deal with it for the benefit of another

A person who establishes a trust is called the trustor while the one whose confidence is reposed is the
trustee, and the person for whose benefits the trust has been created is referred to as the beneficiary

It is the right to the beneficial enjoyment of property, the legal title to which is vested in another

35.) Kinds of trust:

Inter vivos “living” trust:

A trust created during the lifetime of a settlor; becomes effective during his lifetime as opposed to upon
his death.

Resulting trust:
A resulting trust involves a reversionary (left over) interest when the equitable interest in property is not
completely disposed of.

Trust de son tort (constructive trust)

A remedial device, created by operation of law, when property is improperly acquired by someone who is
not entitled to the property; it is imposed to cure wrongdoing or prevent unjust enrichment. The person
who was unjustly enriched holds the property in trust for someone else.

36.) What are obligations without an agreement"?

Obligations without an agreement are those which are not based on contract. Apart from contracts,
obligations may arise from (1)law; (2) Quasi -contract; (3) delict; and (4) quasi-delict.

Examples of situations giving rise to “Obligations without an agreement” are as follows:

1. A law was passed requiring the payment of a specific kind of tax.

2. If something is received when there is no right to demand it, and it was unduly delivered through
mistake, the obligation to return it arises. (Article 2154, NCC)

3. When a person voluntarily takes charge of the agency or management of the business or property of
anther, without any power from the latter, he is obliged to continue the same until the termination of the
affair and its incidents, or to require the person concerned to substitute him, if the owner is in a position to
do so. This juridical relation does not arise in either of these instances: a. When the property or business
is not neglected or abandoned ; b. If in fact the manager has been tacitly authorized by the owner(Article
2144, NCC)

4. A person, through negligence, caused damage or injury to another.

5. A person intentionally damaged a property of another.

6. The obligation by the recipient to return what has been paid or delivered to him by mistake, the
recipient not having the right to demand it, is one that arises from quasi-contract (Article 2154,NCC)

7. The obligation of the culprit to pay actual damages for causing the death of a person is one which
arises from delict or crime (Art.2206, NCC)

37.)

Modes of Extinguishment of Obligation:

1. Payment or performance
2. Loss of the thing due
3. Condonation or remission of debt
4. Confusion or merger of rights
5. Compensation
6. Novation
7. Annulment
8. Rescission
9. Fulfillment of resolutory condition
38.)

Dacion en Pago – mode of extinguishing an obligation whereby the debtor alienates in favor of the
creditor property for the satisfaction of monetary debt; extinguish up to amount of property unless w/
contrary stipulation; A special form of payment because 1 element of payment is missing: IDENTITY
Governed by law on sales
Conditions for a valid dacion:
1) If creditor consents, for a sale presupposes the consent of both parties
2) If dacion will not prejudice the other creditors
3) If debtor is not judicially declared insolvent

39.) Contract to sell vs. Contract of sale

A distinction must be made between a contract of sale in which title passes to the buyer upon
delivery of the thing sold and a contract to sell x x x where by agreement the ownership is
reserved in the seller and is not to pass until the full payment, of the purchase price is made.

In the first case, non-payment of the price is a positive suspensive condition. Being contraries,
their effect in law cannot be identical. In the first case, the vendor has lost and cannot recover the
ownership of the land sold until and unless the contract of sale itself is resolved and set aside.

In the second case, however, the title remains in the vendor if the vendee does not comply with
the condition precedent of making payment at the time specified in the contract.

                        In other words, in a contract to sell, ownership is retained by the seller and is not to pass to the
buyer until full payment of the price.(Jacinto v. Kaparaz, 209 SCRA 246 (1992)

Note the “Receipt for Partial Payment” shows that the true agreement between the parties is a contract
to sell.

40.) Difference between Recto law and Maceda law

The main contrast between the two statutes lies in its application. Articles 1484 to 1486 of the Civil Code
govern sales on installment of personal property. On the other hand, the Maceda Law or Republic Act No.
6552 applies to purchasers of real property on an installment basis.

The latter is also known as the Realty Installment Buyer Act and contemplates residential properties in
particular.

41.)

The Recto Law comprises Articles 1484 to 1486 of the Civil Code. It was added to the Civil Code to
prevent abuses in the foreclosure of chattel mortgages, such as when mortgagee-creditors foreclosed
mortgaged property, bought them at a low price (on purpose,) then prosecuted the mortgagor-debtors to
recover the deficiencies.

In the event a buyer of personal property defaults by failing to pay two or more of the agreed installments,
the seller can do any of the following:

1. Demand that the buyer pay (a.k.a. specific performance)

2. Cancel or rescind the sale
3. Foreclose the mortgage on the property bought (if there ever was a chattel mortgage)

42.)

The Maceda Law, RA 6552, is the real estate equivalent of the Recto Law. Like the Recto Law, it also
covers financing of sales of real property (which is why mortgages also come in.) It doesn’t
apply,however, to the following sales:

1. Industrial lots
2. Commercial buildings and lots
3. Lands under the CARP Law
43.) Double sale

In double sale of an immovable, the rules of preference are as follows:

(a)       the first registrant in good faith;

(b)       should there be no entry, the first in possession in good faith; and

(c)        in the absence thereof, the buyer who presents the oldest title in good faith. (Martinez vs. CA, 358
SCRA 38 (2001); Art. 1544, NCC).

Prior registration of the subject property does not by itself confer ownership or a better right over the
property. Article 1544 requires that before the second buyer can obtain priority over the first, he must
show that he acted in good faith throughout (i.e., in ignorance of the first sale and of the first buyer’s
rights) from the time of acquisition until the title is transferred to him by registration or failing registration,
by delivery of possession. (Uraca vs. CA, 344 Phil 253; Consolidated Rural Bank (Cagayan Valley) Inc.
vs. CA, et al, G.R. No. 132161, January 17, 2005).

44.)
3 STAGES IN LIFE OF A CONTRACT OF SALE
1. Policitacion/negotiation Stage – offer is floated, acceptance is floated but they do not meet; time
parties indicate their interest but no concurrence of offer & acceptance
2. Perfection – concurrence of all requisites; meeting of the minds
3. Consummation – parties perform their respective undertakings

POLITIACION
1. offer is floated but not absolute
2. acceptance is likewise floated but conditional

45.)
OPTION CONTRACT & RIGHT OF FIRST REFUSAL DISTINGUISHED
OPTION CONTRACT
Principal contract; stands on its own
Needs separate consideration
Subject matter & price must be valid
Not conditional
Not subject to specific performance
RIGHT OF FIRST REFUSAL
Accessory; can not stand on its own
Does not need separate consideration
There must be subject matter but price not
important
Conditional
Subject to specific performance

46.) Strict Liability

Strict liability torts, which do not require a finding of intent or negligence, are primarily confined to
ultrahazardous activities and product liability cases.

An activity is ultrahazardous if it is so inherently dangerous that even the highest degree of care will not
eliminate the risk of harm. If someone is injured because of such activity, the defendant is liable
regardless of the level of care he or she exercised.

Vicarious Liability

Vicarious liability imposes liability on one person for a tortious act committed by another.

Respondeat Superior

Under the doctrine of respondeat superior, an employer is liable for an employee's torts, including
intentional torts, if the employee was acting within the scope of employment. To establish that the
employee's conduct was within the scope of employment: (1) the conduct must have occurred
substantially within the time and space limits authorized by the employment; (2) the employee must have
been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of
a kind that the employee was hired to perform.
DEEP POCKET LIABILTY
Another term for a legal concept known as joint-and-several liability. This states that damages can be
obtained from co-defendants based on who is capable of paying, rather than who was found to be more
negligent.

Registered Owner Rule

The person who is the registered owner of a vehicle is liable for any damages caused by the negligent
operation of the vehicle although the driver is not his agent or employee (FILCAR Transport Services)
Possessor of the animal rule
The possessor of an animal or whoever may make use of the same is responsible for the damage which it
may cause, although it may escape or be lost. (VESTIL v. UY)
Attractive nuisance doctrine

 An attractive nuisance is a dangerous instrumentality or appliance which is likely to attract

children at play

 Doctrine: One who maintains on his estate or premises an attractive nuisance without exercising
due care to prevent children from playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby even if the child is technically a trespasser in the premises

 Basis of liability: the attractiveness is an invitation to children

 A swimming pool or water tank isn’t an attractive nuisance for while it is attractive, it cannot be a
nuisance being merely an imitation of a work of nature. Hence, if small children are drowned in an
attractive water tank of another, the owner is not liable even if there be no guards in the premises.

Co existence of damages

CULPA
Culpa aquiliana is simply quasi-delict or civil damages due to negligence.

Culpa criminal is imposed only if there is a penal law covering them,

While quasi-delict or culpa aquiliana includes all acts in which any kind of fault or negligence intervenes.
Hence, the latter is broader in concept.
in culpa contractual, culpa is considered as an accident in performance of an obligation already
existing.

Force Majeure Vs. Fortuitous Events

“ Force majeure ” is a term that is applicable only to those fortuitous events which are dependent upon
human intervention, such as wars, strikes, riots, etc.,
while “fortuitous event” is the general term that is applicable regardless of whether the event is
independent of or dependent upon human intervention.

47.)
CLASSIFICATIONS OF PARTNERSHIP
1. As to extent of its subject matter

a. UNIVERSAL PARTNERSHIP
i.UNIVERSAL PARTNERSHIP OF ALL PRESENT PROPERTY (Art. 1778-1779) - comprises the
following:
a) Property which belonged to each of the partners at the time of the constitution of the partnership
b) Profits which they may acquire from all property contributed
ii. UNIVERSAL PARTNERSHIP OF PROFITS (Art. 1780) - comprises all that the partners may acquire
by their industry or work during the existence of the partnership
Note: Persons who are prohibited from giving donations or advantage to each other cannot enter into a
universal partnership (e.g., husband and wife)
b.PARTICULAR PARTNERSHIP (Art. 1783) - has for its objects:
i. Determinate things
ii. Their use or fruits
iii. Specific undertaking
iv. Exercise of profession or vocation

48.)
When is a special power necessary?

1. to Create or convey real rights over immovable property;

2. Convey or Acquire immovable

3. to Loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the
things which are under administration;

4. to Lease any real property to another person for more than one year;

5. to Make such Payments as are not usually considered as acts of administration;

6. to Obligate principal as guarantor or surety

7. to bind the principal to render some Service without compensation;

8. to bind the principal in a contract of Partnership;

9. to Ratify obligations contracted before the agency

10. to Accept or repudiate an Inheritance

11. Effect Novation

12. to make Gifts, except customary ones for charity or those made to employees in the business
managed by the agent

13. Compromise, Arbitration and Confession of Judgment

14. any Other act of strict dominion

15. Waive an obligation gratuitously

49.) 

What are the limitations to a special power of attorney?

1. A special power to sell excludes the power to mortgage

2. A special power to mortgage does not include the power to sell (Art. 1879, NCC)

3. A special power to compromise does not authorize submission to arbitration (Art. 1880, NCC)

 When is the principal not bound by the act of the agent?

1. General Rule: When the act is without or beyond the scope of his authority in the principal’s name.
Exceptions: a. Where the acts of the principal have contributed to deceive a 3rd person in good faith b.
Where the limitation upon the power created by the principal could not have been known by the 3rd
person c. Where the principal has placed in the hands of the agent instruments signed by him in blank d.
Where the principal has ratified the acts of the agent

2. When the act is within the scope of the agent’s authority but in his own name, except when the
transaction involves things belonging to the principal.

50.)
What are the PROVISIONS COMMON TO PLEDGE AND MORTGAGE

Art.  2085.  The  following  requisites  are  essential  to  the contracts of pledge and mortgage:

(1) That they be constituted to secure the fulfillment of a principal obligation;

(2)  That  the  pledgor  or  mortgagor  be  the  absolute owner of the thing pledged or mortgaged;

(3)   That   the   persons   constituting   the   pledge   or mortgage  have  the  free  disposal  of  their 
property,  and  in the absence thereof, that they be legally authorized for the purpose.

Third persons who are not parties to the principal obligation may secure the latter by pledging or
mortgaging their own property. (1857)

Art. 2086. The provisions of Article 2052 are applicable to a pledge or mortgage. (n)

Art. 2087. It is also of  the essence  of these contracts that when  the  principal  obligation  becomes 
due,  the  things  in which the pledge or mortgage consists may be alienated for the payment to the
creditor. (1858)

51.)
PLEDGE

>     Contract  by  virtue  of  which  the  debtor  delivers  to  the creditor  or  to  a  third  person  a 
movable,  or  document evidencing  incorporeal  rights,  for  the  purpose  of  securing the   fulfillment  
of   a   principal   obligation    with   the understanding  that  when  the  obligation  is  fulfilled,  the thing 
delivered  shall  be  returned  with  all  its  fruits  and accessions

52)
KINDS OF PLEDGE

1.   Voluntary or conventional

2.   Legal

CHARACTERISTICS OF A CONTRACT OF PLEDGE

1.   Real  contract—perfected  by  the  delivery  of  the  things pledged  by  the  debtor  who  is  called 
the  pledgor  to  the creditor who is called by the pledgee, or to a third person by common agreement
2.   Accessory contract
3.   Unilateral contract
4.   Subsidiary contract

53.) Subrogation vs. Assignment of credit

In subrogation, the third party pays the obligation of the debtor to the creditor with the latter's consent. ...
An assignment of credit, on the other hand, is the process of transferring the right of the assignor to the
assignee who would then have the right to proceed against the debtor. (G.R. No. 84220 March 25, 1992
Rodriguez v. CA)

54.)
A "blanket mortgage clause," also known as a "dragnet clause" in American jurisprudence, is one which
is specifically phrased to subsume all debts of past or future origins. Such clauses are "carefully
scrutinized and strictly construed. (G.R. NO. 150197 July 28, 2005 Prudential Bank v. Alviar)

55.)

Distinction Between Commodatum and Mutuum

1. The object of commodatum are Non-consumable (Non-fungible); in Mutuum Consumable

goods.               

2. The cause for commodatum is Gratuitous otherwise it is a lease; in Mutuum it may or may not be
gratuitous.

3. The purpose in commodatum is for use or temporary possession; in mutuum it is for consumption.

4. The subject matter in commodatum is real or personal property while it is only personal property in
mutuum.

5. The ownership of the thing is retained by the the bailor in commodatum while in mutuum, it passes to
the debtor.

6. The thing to be returned in commodatum is the exact thing loaned while in mutuum, it is a thing of
equal amount of the same kind and quality.

7. In commodatum, it is the bailor who bears the risk of loss; while in mutuum, it is the debtor.
8. In commodatum, the thing maybe returned even before the expiration of the term in urgent cases;
however, in mutuum, it must be after the expiration of the term.

9. Commodatum is a contract of use while mutuum is a contract of consumption.

56.)

What is the Nature Of The Benefit Of Excussion

The benefit of excussion is a right granted to the guarantor and, therefore, only he may invoke it at his
discretion.

The benefit of excussion, as well as the requirement of consent to extensions of payment, is a protective
device pertaining to and conferred on the guarantor. These may be invoked by the guarantor against the
creditor as defenses to bar the unwarranted enforcement of the guarantee. However, Philguarantee did
not avail of these defenses when it paid its obligation according to the tenor of the guarantee once
demand was made on it.

57.)
When to invoke benefit of excussion.

The benefit of excussion may only be invoked after legal remedies against the principal debtor have been
expanded. Thus, it was held that the creditor must be first obtain a judgment against the principal debtor
before assuming to run after the alleged guarantor, “for obviously the ‘exhaustion of the principal’s
property’ cannot even begin to take place before judgment has been obtained”. The law imposes
conditions precedent for the invocation of the defense. Thus, in order that the guarantor may make use of
the benefit of excussion, he must set it up against the creditor upon the latter’s demand for payment and
point out to the creditor available property of the debtor within the Philippines sufficient to cover the
amount of the debt. (Article 2060, NCC; JN Dev. Corp. vs. Phil. Export & Foreign Guarantee Corp., G.R.
No. 151060, August 31, 2005).

59.)

Exceptions to the Benefits of Excussion

1.   If the guarantor has expressly renounced it;

2.   If he has bound himself solidarily with the debtor;

3.   In case of insolvency of the debtor;

4.   When  he  has  absconded,  or  cannot  be  sued  within  the Philippines unless he has left a manager
or representative;

5.   If it may be presumed that an execution on the property of the principal debtor  would not result in the
satisfaction of the obligation.

6.   If he doesn’t comply with Article 2060

7.   If he has a judicial bondsman and sub-surety

8.   Where  a  pledge  or  mortgage  has  been  given  by  him  as special security

9.   If he fails to interpose it as a defense before judgment is rendered against him

60.)

“INNKEEPERS LIABILITY

Inn keepers are also subsidiary liable for restitution of goods taken by robbery or theft within their houses
from guests lodging therein, or for payment of the value thereof, provided that such guests shall have
notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods

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