CIVIL LAW
(1) Authority of the solemnizing officer [except Art 35(2)]
BY ATTY. JUDY LARDIZABAL
NATIONALITY RULE – Art 15 NCC- Laws relating to family rights and
duties, or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad.
LEX REI SITAE – Art 16 (1st par) - Real property as well as personal
property is subject to the law of the country where it is stipulated
Except: Nationality Rule (2nd par) - intestate and testamentary
successions - 1. order of succession; 2. amount of successional
rights; and 3. intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature
of the property and regardless of the country wherein said
property may be found.
LEX LOCI CELEBRATIONIS – Art 17 - The forms and solemnities of
contracts, wills, and other public instruments shall be governed by the
laws of the country in which they are executed.
• Before the diplomatic or consular officials of the Republic of
the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their
execution.
CIVIL PERSONALITY – Art 40 - Birth determines civil personality, but the
conceived child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions specified in
the following article.
• Art 41 – fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. If the fetus had
an intra-uterine life of less than 7 months, it is not deemed
born if it dies within 24 hours after its complete delivery from
the maternal womb.
PRESUMPTION ON SURVIVORSHIP - Art. 43. If parties are bound to
succeed to each other - If there is a doubt, in the absence of proof, it is
presumed that they died at the same time and there shall be no
transmission of rights from one to the other. Apply Rule 131 if not bound
to succeed each other.
MARRIAGE - a special contract of permanent union between a man and
a woman for the establishment of conjugal and family life; the
foundation of the family whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except for marriage
settlements.
2 Essential requisites of marriage:
(1) Legal capacity of the contracting parties who must be a male
and a female
(age-minimum age is 18; sexes -must be male and female;
relationship –parties should not be related under Art 37
(incestuous), or Art 38 (void due to public policy); legal
impediment of existing marriage- if either or both are married,
second marriage is bigamous under Art 35(4), if exiting
marriage is void, Art 40 requires court declaration of nullity for
purpose of remarriage)
(2) Consent freely given in the presence of the solemnizing
officer.
(consent must be (1) freely given and (2) made in the presence
of a solemnizing officer. Consent must be real - not vitiated
nor rendered defective by any of the vices of consent under
Articles 45 and 46 of the Family Code, such as fraud, force,
intimidation, and undue influence – otherwise marriage is
voidable; Art 35 (5) void marriage due to absence of consent -
mistake as to identity of other party,)
CIVIL LAW - KOKOBAR 2018
3 Formal requisites of marriage:
(incumbent member of the judiciary; priest, rabbi, imam, or
minister of any church or religious sect; ship captain or airplane
chief (articulo mortis, between passengers/crew member,
plane in flight or ship at sea even at ports of call); military
commander of a unit to which a chaplain is assigned, in the
absence of the latter, during a military operation (Articulo
Mortis); consul-general, consul or vice-consul (between
Filipino citizens abroad); LOCAL GOVT CODE – Mayors
(2) A valid marriage license [valid for 120days; unless exempt:
articulo mortis; residents of remote place; between muslims
and members of ethnic cultural communities; cohabiting for at
least 5 years)
(3) A marriage ceremony
Status of marriage in relation to requisites
(1) The absence of any of the essential or formal requisites shall
render the marriage void ab initio (Art 35, 37 and 38)
(2) A defect in any of the essential requisite makes marriage
voidable (Art 45)
(3) Irregularity in the formal requisite shall not affect the validity
of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively
liable.
Motives for entering in marriage will not affect validity - So long as all
the essential and formal requisites prescribed by law are present, and it
is not void or voidable under the grounds provided by law, it shall be
declared valid.
- Motives for entering into a marriage are varied and complex. The State
does not and cannot dictate on the kind of life that a couple chooses to
lead. Any attempt to regulate their lifestyle would go into the realm of
their right to privacy and would raise serious constitutional questions.
The right to marital privacy allows married couples to structure their
marriages in almost any way they see fit, to live together or live apart, to
have children or no children, to love one another or not, and so on.
- Marriages entered into for other purposes, limited or otherwise, such
as convenience, companionship, money, status, and title, provided that
they comply with all the legal requisites, are equally valid. Love, though
the ideal consideration in a marriage contract, is not the only valid cause
for marriage. Other considerations, not precluded by law, may validly
support a marriage. (Rep. vs. Albios)
Other void marriages under the Family Code:
1. Article 36 – marriage contracted by any party who, at the time
of celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage;
characterized by gravity, incurability and juridical antecedence
2. Article 53 as mentioned in Article 35 (6) - Void subsequent
marriage due to non-compliance with Art. 52 (The judgment of
annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses and the
delivery of the children's presumptive legitimes shall be
recorded in the appropriate civil registry and registries of
property)
NOTE: Children conceived or born of Art 36 and Art 53 void
marriages are legitimate (Art 54)
3. Article 40: void subsequent marriage which was entered into
without judicial declaration of nullity of the previous marriage
4. Article 44: Void Article 41 subsequent marriage after
declaration of presumptive death when both parties acted in
bad faith.
• Article 41 marriage -All bigamous marriages are void, except
under Article 41 – presumptive death of absent spouse
without prejudice to reappearance (Note: it is the
registration of the affidavit of re-appearance at the LCR of
the place where parties of the second marriage are residing,
with due notice to them that automatically terminates the
validity of the second marriage).
• Four (4) essential requisites for the declaration of
presumptive death:
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 1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under
the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well–founded belief that the
absentee is dead; and
4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.
• To be able to comply with this requirement of “well-founded
belief”, the present spouse must prove that his/her belief
was the result of diligent and reasonable efforts and inquiries
to locate the absent spouse and that based on these efforts
and inquiries, he/she believes that under the circumstances,
the absent spouse is already dead. It requires exertion of
active effort (not a mere passive one).
Article 26 FC
– (1st par) marriages solemnized abroad are valid here if valid in the place
of solemnization, except marriages affecting legal capacity/absence of
essential requisites, Art 36;
- Relate to Art 15 (nationality rule) and Art 17 (lex loci celebrationis) of
NCC;
- (2nd par) divorce obtained abroad by foreign spouse consistent with
national law of foreigner, capacitating him to remarry, may be
recognized in the Phils and capacitate Filipino spouse to remarry
- Requisites: Marriage between Filipino and foreign national; Divorce
validly obtained in accordance with the national law of the foreign
spouse capacitating him/her to remarry
- FC does not distinguish between a Filipino or alien-initiated divorce
proceedings for as long as it is filed and granted in accordance with the
national law of the foreign spouse (Rep vs Manalo)
Art. 45. Voidable Marriages (Valid MARRIAGE until annulled)
(1) Lack of parental consent - convalidation by party’s voluntary
cohabitation upon 21, prescribes 5 years from 21, if parent is the
petitioner action should be filed before child reaches age of 21;
(2) Insanity - convalidation by insane’s voluntary cohabitation upon
regaining sanity, may be filed before death of either party by the
parent/guardian of insane, the sane spouse or insane upon regaining
sanity/lucid interval;
(3) Vitiated consent due to Fraud (Art. 46. Four Circumstances of Fraud,
exclusive) – convalidation by aggrieved party’s voluntary cohabitation
after discovery, prescribes in 5 years upon discovery)
(4) Vitiated consent due to Force, intimidation or undue influence -
convalidation by aggrieved party’s voluntary cohabitation after
discovery, prescribes in 5 years upon cessation of force, intimidation,
undue influence
(5) Impotency – continuing and appears to be incurable, no
convalidation, prescribes in 5 years from marriage
GROUNDS FOR DENIAL OF ANNULMENT -Convalidation (Article 45);
Prescription (Article 47); Not filed by the proper person (Article 47)
LEGAL SEPARATION
• Grounds (Article 55)
• Denial (Article 56)
• Prescriptive period (Article 57)
• Cooling-off period (Article 58), if ground is abuse under RA 9262
(VAWC), cooling off period of 6 months is dispensed with.
• The spouses shall be entitled to live separately from each other, but
the marriage bonds shall not be severed (Article 63)
• SUCCESSIONAL RIGHTS
- ANNULMENT – ART. 43 (5) The spouse who contracted the
subsequent marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate succession.
- LEGAL SEPARATION -ART. 63 (4) The offending spouse shall be
disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent spouse shall
be revoked by operation of law. Note: offending spouse is not
disqualified in testamentary succession if will was executed after
decree of legal separation
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Art. 75. The future spouses may, in the marriage settlements, agree upon
the regime of absolute community, conjugal partnership of gains,
complete separation of property, or any other regime.
In the absence of a marriage settlement, or when the regime agreed
upon is void, the system of absolute community of property shall
CIVIL LAW - KOKOBAR 2018
govern. Note: if marriage was entered prior to FC, default property
regime is conjugal partnership of gains
(1) SYSTEM OF ABSOLUTE COMMUNITY -Art. 91 - consists of all
the property owned by the spouses at the time of the
celebration of the marriage or acquired thereafter.
EXCLUDED:
(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if
any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse
who has legitimate descendants by a former marriage, and the
fruits as well as the income, if any, of such property.
(2) CONJUGAL PARTNERSHIP OF GAINS - Under the regime of
conjugal partnership of gains, the husband and wife place in a
common fund the proceeds, products, fruits and income from
their separate properties and those acquired by either or both
spouses through their efforts or by chance.
EXCLUDED:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter or
by exchange with property belonging to only one of the
spouses; and
(4) That which is purchased with exclusive money of the wife
or of the husband.
• PROPERTY PURCHASED ON INSTALLMENT - Art. 118. Property
bought on installments paid partly from exclusive funds of
either or both spouses and partly from conjugal funds belongs
to the buyer or buyers if full ownership was vested before the
marriage and to the conjugal partnership if such ownership
was vested during the marriage. In either case, any amount
advanced by the partnership or by either or both spouses shall
be reimbursed by the owner or owners upon liquidation of the
partnership.
(3) SEPARATION OF PROPERTY
• Art. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without
need of the consent of the other. To each spouse shall belong
all earnings from his or her profession, business or industry
and all fruits, natural, industrial or civil, due or received
during the marriage from his or her separate property.
• Art. 146. Both spouses shall bear the family expenses in
proportion to their income, or, in case of insufficiency or
default thereof, to the current market value of their separate
properties.
• The liabilities of the spouses to creditors for family expenses
shall, however, be solidary.
PETITION FOR JUDICIAL SEPARATION OF PROPERTY - Art. 134. In the
absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not
take place except by judicial order. Such judicial separation of property
may either be voluntary (Art. 136) or for sufficient cause (Art. 135).
(4) Property Regime of Unions Without Marriage (CO-
OWNERSHIP)
• Capacitated to marry - Art. 147. When a man 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 under a void marriage, their
wages and salaries shall be owned by them in equal
shares and the property acquired by both of them
through their work or industry shall be governed by the
rules on co-ownership.
• Not capacitated to marry - Art. 148. In cases of
cohabitation not falling under the preceding Article, only
the properties acquired by both of the parties through
their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion
to their respective contributions. In the absence of proof
to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and
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 presumption shall apply to joint deposits of money and
evidences of credit..
PATERNITY AND FILIATION
1. LEGITIMATE - Art. 164. Children conceived or born during the
marriage of the parents are legitimate. Children conceived as
a result of artificial insemination of the wife with the sperm of
the husband or that of a donor or both are likewise legitimate
children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written
instrument executed and signed by them before the birth of
the child.
2. ILLEGITIMATE - Art. 165. Children conceived and born outside
a valid marriage are illegitimate, unless otherwise provided in
this Code.
3. LEGITIMATED - Art. 177. Only children conceived and born
outside of wedlock of parents who, at the time of the
conception of the former, were not disqualified by any
impediment to marry each other (except from minority) may
be legitimated. (R.A. 9858)
GROUNDS FOR IMPUGNING LEGITIMACY
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
• (a) the physical incapacity of the husband to have sexual
intercourse with his wife;
• (b) the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible; or
• (c) serious illness of the husband, which absolutely prevented
sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the
child could not have been that of the husband, except in the instance
provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the
written authorization or ratification of either parent was obtained
through mistake, fraud, violence, intimidation, or undue influence.
SUCCESSION -mode of acquisition by virtue of which property, rights and
obligations to the extent of the value of the inheritance of a person are
transmitted through his death to another or others either by his will or
by operation of law
LEGITIME - is that part of the testator’s property which he cannot
dispose of because the law has reserved it for certain heirs who are
called compulsory heirs (Art 886)
• Compulsory Heirs – are those for whom the law has reserved
a portion of the testator’s estate which is known as the
legitime.
• Primary – Legitimate children and legit descendants,
surviving spouse, illegitimate children & descendants
• Secondary – Legitimate parents & other legitimate
ascendants, Illegitimate parents
RULES ON LEGITIME
• Legitimate children always get ½ of estate
• Legitimate parents always get ½ (if not excluded by legit child)
• No representation in the ascending line
• Legitime of spouse is same as 1 legit child, except when there is
only one child, give ¼ taken from free portion
• Get legitime of illegit children from free portion after SS is paid, ½
of 1 legit child for each of the illegit chil
• NEVER REDUCE the legitime of legitimate children and surviving
spouse because they are the preferred compulsory heirs.
• Legitime of illegitimate children will be reduced pro-rata and
without preference among them if the estate is insufficient.
• SS and illegit children – 1/3 SS and 1/3 illegit children regardless of
number
• Legit parents, SS, illegit children – ½ LP, 1/8 SS, ¼ illegit children
regardless of number (in case of intestacy – ½ LP, ¼ SS, ¼ illegit
children)
• SS and Illegit Parent – ¼ SS, ¼ IP
• SS alone – ½ (if articulo mortis marriage and spouse died within 3
months- reduced to 1/3, unless living together for 5 years prior to
marriage – remain ½)
LEGAL SUCCESSION/ INTESTATCY
• Succession prescribed by law
• Rule of proximity (nearer excludes distant ones)
• Rule of equality of shares among relatives in the same degree
CIVIL LAW - KOKOBAR 2018
• Rule of preference of lines – descending preferred over ascending,
ascending preferred over collateral
• Representation – descending is ad infinitum, none in ascending, in
collateral limited to nephews and nieces, no representation among
voluntary heirs
• Nephews and nieces inherit either by representation or in their
own right (Art. 1005).
• They inherit by right of representation when they concur with
aunts and uncles, who divide per capita, while nephews/nieces
divide per stirpes. (Calisterio v. Calisterio, G.R. 136467, April 6,
2000).
• They inherit in their own right when they do not concur with aunts
and uncles; in this case, they divide per capita or equally (Art. 975).
• Art 992 – Iron curtain rule – illegitimate child has no right to inherit
ab intestado from the legitimate children and relatives of his father
or mother, nor such relatives inherit in the same manner from the
illegitimate child. Note: The iron curtain rule only applies in
intestate succession. There is a barrier recognized by law between
the legitimate relatives and the illegitimate child so that one
cannot inherit from the other and vice-versa.
LEGAL SUCCESSION/ INTESTACY
• Nephews and nieces inherit either by representation or in their
own right (Art. 1005).
• They inherit by right of representation when they concur with
aunts and uncles, who divide per capita, while nephews/nieces
divide per stirpes. (Calisterio v. Calisterio, G.R. 136467, April 6,
2000).
• They inherit in their own right when they do not concur with aunts
and uncles; in this case, they divide per capita or equally (Art. 975).
Order of Intestate Succession:
1. Legitimate Children/Descendants
2. Illegitimate Children/Descendants
3. Legitimate Parents/Ascendants
4. Illegitimate Parents
5. Surviving Spouse
6. Brothers, sisters, nephews, nieces (concurs with Surviving Spouse)
7. Other Collaterals – to the 5th degree (child of first cousin, first
cousin of parents, brother/sister of great grand parents, great
grand children of brother and sister
8. State
• Rules of Exclusion and Concurrence- Legit child excludes the
Parents/Ascendants; Illegit Child excludes Illegit Parents; SS
always concurs with children, parents as well as
brothers/sisters/nephews/nieces; Nos. 1-6 excludes other
collateral relatives and State; Collateral relatives up to 5th degree
excludes the State; State is the last heir in the absence of
collateral relatives up to 5th degree.
TESTAMENTARY CAPACITY - 1. All persons not expressly prohibited by
law; 2. 18 years old and above; 3. Sound mind – Art. 799 It shall be
sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act.
• Art. 800. The law presumes that every person is of sound mind,
in the absence of proof to the contrary; but if the testator, one
month, or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must
prove that the testator made it during a lucid interval.
KINDS OF WILLS:
• 1.Notarial will – Articles 804-806, & 807-808 in special cases
• 2.Holographic – Articles 804 & 810
- Common requirements that apply to the 2 kinds of wills
1. In writing, and
2. In a language or dialect known to the testator
REQUISITES OF VALID HOLOGRAPHIC WILL:
1. In writing
2. Executed in a language or dialect known to the testator
3. Entirely written, dated & signed by the hand of the testator himself
REQUISITES OF VALID NOTARIAL WILL:
1. In writing
2. Executed in a language or dialect known to the testator
3. Subscribed by the testator himself or by the testator’s name written
by some other person in his presence & under his express direction at
the end thereof, at the presence of witnesses
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4. Attested & subscribed by at least 3 credible witnesses in the presence
of the testator and of one another
5. Each & every page must be signed by the testator or by the person
requested by him to write is name, & by instrumental witnesses in the
presence of each other, on the left margin
6. Each & every page of the will must be numbered correlatively in letters
placed on the upper part of each page
7. Must contain an attestation clause
8. Must be acknowledged before a notary public
ATTESTATION CLAUSE - Must state the following: 1. The number of
pages of the will; 2.Fact that the testator signed the will & every page in
the presence of witnesses, or caused some other person to write his
name under his express direction; 3. All witnesses signed the will & every
page thereof in the presence of the testator & of one another
- Attestation Clause must state the number of pages used
upon which the will is written. The purpose of the law is
to safeguard against possible interpolation or omission of
one or some of its pages and prevent any increase or
decrease in the pages.
- Witnesses need not understand or know the language
used in the will but the attestation clause must be
interpreted to them.
PRETERITION - consists in the omission in the testator’s will of the
compulsory heirs in the direct line, or of anyone of them, either because
they are not mentioned therein, or though mentioned, they are neither
instituted as heirs nor expressly disinherited.
• Omission of wife, brothers or sisters will not result in
preterition.
REQUISITES OF PRETERITION: There is a valid will; The heir omitted must
be a compulsory heir in the direct line; The omission must be total and
complete in character.
- Heir must have received nothing from the testator either by way of (i)
testamentary succession; (ii) legacy or devise; (iii) donation inter vivos;
or (iv) intestacy.
- The compulsory heir omitted should survive the testator, save in case
of representation.
PRETERITION VS. DISINHERITANCE
• Preterition is the TACIT deprivation of the legitime as
distinguished from disinheritance which is an EXPRESS
deprivation of the legitime.
• Article 915. A compulsory heir may, in consequence of
disinheritance, de deprived of his legitime, for causes expressly
stated by law.
DISINHERITANCE - can be made only in a will; will must be valid and
admitted to probate; Includes not only the legitime, but also the free
portion; If will is revoked, disinheritance becomes ineffective; Only
compulsory heirs can be disinherited, so brothers and sisters cannot be
the subject of disinheritance; Reconciliation renders disinheritance
ineffective.
Requisites of a valid disinheritance:
(a) Disinherited heir must be clearly identified.
(b) Must be for a cause provided for by law (Art. 915).
(c) Must be express, stating the cause in the will (Art. 916).
(d) Cause must be legal, true, and existing (Art. 916).
(e) Must be unconditional.
(f) Can't be partial; must be total or complete. If partial, disinheritance is
not valid, and the heir gets his or her legitime.
- In Preterition, the whole institution of heirs is annulled. In invalid
disinheritance, the disinherited heir still gets his legitime.
- Heirs of the disinherited heir represent the latter in the legitime, but
the disinherited heir shall not have the usufruct of the property
constituting the legitime. (Art. 923).
- Art. 923 on right of representation in disinheritance is granted only to
descendants of disinherited descendants. The representative takes the
place of the disinherited heir not only with respect to the legitime, but
also to any intestate portion that the disinherited heir would have
inherited.
COLLATION – ART 908 - To determine the legitime, the value of the
property left at the death of the testator shall be considered, deducting
all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of
all donations by the testator that are subject to collation, at the time
he made them.
CIVIL LAW - KOKOBAR 2018
ART 909 - Donations given to children shall be charged to their legitime.
Donations made to strangers shall be charged to that part of the estate
of which the testator could have disposed by his last will. Insofar as they
may be inofficious or may exceed the disposable portion, they shall be
reduced according to the rules established by this Code.
• Donation propter nuptias – charged to the disposable free portion
not to legitime of the SS because SS was a stranger when donation
was made
• Donation to children, if stated not collationable – shall be charged
to the free portion not to legitime
PROPERTY
IMMOVABLE and MOVABLE – Arts 415 & 416
Real Property by Nature
1.) Land as well as buildings and other forms of construction attached to
the soil
2.) Trees and plants, if they weren't planted by anybody
3.) Mines, quarries and slag dumps (slag dumps form part of the bed and
water)
Real Property by Incorporation
1.) Trees and plants that were planted (the fruit hanging on the trees is
considered part of real property until harvested or removed)
2.) Things attached to the real property in such a way that they can't be
removed without damaging the real property
3.) Statues, paintings, reliefs that have been put there by the owner with
the intention that they form part of the property permanently
Real Property by Destination
1.) Fertilizer that was actually used on the land (if it's not used, it's
considered personal property)
2.) In case there is an industry on the land, machinery receptacles,
instruments or implements directly related to the industry in
question or public works placed by the owner of the tenement
3.) In case of lakes, rivers or coasts, docks and other structures which
are intended by their nature or object to remain at a fixed place
(even if floating)
4.) Animal houses, pigeon houses, fishponds, breeding places,
beehives and even the animals in these places; in case the owner
put all these (buildings, animals, etc.) there, intending to have
them permanently part of the land
Real Property by Analogy
1.) Public works contracts as well as servitudes and other real rights over
immovable property
Personal Property (Art. 416-417)
1.) Those that can be appropriated but not mentioned in Art. 415
2.) Real property considered personalty by law
3.) Forces of nature brought under the control of science (electricity,
nuclear energy, etc.)
4.) All things that can be transferred from one place to another
without damaging the real property they're attached to
5.) Obligations and actions whose object is movable property or
demandable sums of money
6.) Shares of stock of commercial, industrial or agricultural entities
even though they may have real estate
BUILDER IN GOOD FAITH – Article 448 – entitled to indemnity and right
of retention
- Land owner in good faith – Options:
1. Appropriate as his own the works, sowing or planting, after
payment of the indemnity for necessary and useful expenses;
OR
2. Oblige the one who built or planted to pay the price of the land,
IF the value of the land is not considerably more than that of
the building. As to sower, oblige the sower to pay the proper
rent,
o FORCED LEASE - If value of land is considerably higher,
builder shall pay reasonable rent in case the owner of the
land does not choose to appropriate the building after
proper indemnity.
o The parties shall agree upon the terms of the lease and in
case of disagreement, the court shall fix the terms thereof.
Note: In case land owner opted to sell the land, if the value is not
considerably more than the building, and the Builder refused to buy or
upon agreeing to buy refused to pay, the landowner may now ask for the
REMOVAL of the building.
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BUILDER IN BAD FAITH – Arts 449 & 450 – he loses what is built without
right of indemnity. He cannot insist on purchasing the land or pay the
rent.
• If both land owner and builder are in bad faith, their rights shall be
the same as though they acted in good faith. Art 453
EASEMENT OF RIGHT OF WAY – cannot be acquired by prescription since
it is a discontinuous easement. Only apparent and at the same time
continuous easement can be acquired by prescription.
REQUISITES TO CLAIM ROW:
1. the dominant estate is surrounded by other immovables and has no
adequate outlet to a public highway (Art. 649, par. 1);
2. there is payment of proper indemnity (Art. 649, par. 1);
3. the isolation is not due to the acts of the proprietor of the dominant
estate (Art. 649, last par.); and
4. the right of way claimed is at the point least prejudicial to the servient
estate; and insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the shortest (Art. 650).
Note: The way which will cause the least damage should be used even if
it will not be the shortest.
EASEMENT OF LIGHT AND VIEW – may be acquired by prescription since
it is an apparent and continuous easement; if negative easement,
counting of period starts from date of service of notarial prohibition
upon owner of servient estate
CO-OWNERSHIP - There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons
• Sale by co-owner – valid as to the seller’s share but not as to shares
of the other co-owners who did not give their consent. Right of the
buyer to a definite part of the property is subject to the outcome of
partition
• No prescription shall run in favor of a co-owner so long as he
recognizes the co-ownership.
• Acts of dominion requires unanimous consent of all co-owners
• Acts of administration may be carried out upon resolution of
majority
• Acts of preservation – any one
OBLICON
Kinds of Breach of Obligations
1) Involuntary – debtor is unable to comply with his obligation
because of fortuitous event
• Event must be independent of the will of the obligor;
• It must be either unforeseeable or inevitable;
• Must be of such a character as to render it impossible for the
obligor to fulfill his obligation in a normal manner; and
• Obligor must be free from any participation in the
aggravation of the injury resulting to the obligee.
Note: Debtor is NOT liable for damages. Except:
a. When expressly declared by law (e.g. Arts. 552 (2), 1165
(3), 1268, 1942, 2147, 2148 and 2159 NCC)
b. When expressly declared by stipulation or contract
c. When the NATURE of the obligation requires the
assumption of risk
d. When the object of the prestation is generic
2) Voluntary – debtor, in the performance of the obligation, is
guilty of:
(a) Default (mora)
(b) Fraud (dolo)
(c) Negligence (culpa)
(d) Breach through contravention of tenor of the
obligation
Note: Debtor is liable for damages.
DEFAULT – breach in relation to time;
Requisites in order to consider the obligor in default
1) Obligation is demandable and already liquidated
2) The obligor/debtor delays performance
3) The creditor requires performance judicially or extra-judicially
(demand)
• Demand is necessary. No demand-no delay. Mere expiration of
the period fixed by the parties will not cause delay. (SSS vs.
Moonwalk Devt. and Housing Corp)
Except:
a) Express stipulation that demand is not necessary
b) The law EXPRESSLY so declares (i.e., taxes)
c) Time is of the essence of the contract (Barzaga vs. CA)
CIVIL LAW - KOKOBAR 2018
d) Demand would be useless (i.e., debtor voluntarily destroy the
thing)
PURE OBLIGATION -The effectivity or extinguishment does not depend
on the fulfillment or non-fulfillment of a condition or on the expiration
of a term or period, and is immediately demandable. (1179, par. 1)
Seone vs. Franco, 24 Phil 309 – debtor promise to pay debt “little by
little” is an obligation with period subject to Art. 1197.
CONDITIONAL OBLIGATION - Suspensive Condition -The effectivity is
subordinated to the fulfillment or non-fulfillment of a future AND
uncertain fact or event. (1181); Resolutory Condition Extinguishment of
obligation is dependent upon fulfillment of condition.
Rescission of Reciprocal Obligations in General (Art. 1191)
Reciprocal Obligation – Those which are created or established at the
same time, out of the same cause and which result in mutual
relationships of creditor and debtor between the parties.
General Rule: If one of the parties fails to comply with what is incumbent
upon him, there is a right on the part of the other to rescind (or resolve)
the obligation (tacit resolutory condition)
• Permitted only for such breaches as are substantial and fundamental
as to defeat the object of the parties in making the agreement
(Universal Food Corp. vs. CA, G.R. No. L-29155, May 13, 1970)
• Can be demanded only if the plaintiff is ready, willing, and able to
comply with his own obligation and the other is not (Seva vs. Berwin,
G.R. No. L-24321, Jan. 11, 1926) and the party who has not
performed his part of the agreement is not entitled to sue/rescind;
the right belongs to the injured party
• Prescriptive period for action of Resolution is 10 years from the time
right of action accrues according to Art. 1144 – NOT 4 YEARS
(applicable to rescission)
OBLIGATION WITH A PERIOD -Those whose demandability or
extinguishment is subject to the expiration of a term or period.
When Court May Fix Period (Art. 1197) - General Rule: Courts are
WITHOUT power to fix period. Except:
1) If the obligation does not fix a period, but from its nature and
circumstances it can be inferred that a period was intended;
2) If the duration of the period depends upon the will of the debtor;
and
3) If the debtor binds himself when his means permit him to do so (Art.
1180)
Action to ask court to fix period must be brought within 10 years from
execution or perfection of notes/contracts. (Gonzales vs. Jose)
JOINT OBLIGATION (Obligacion Mancomunada) - The whole obligation
is to be paid or fulfilled proportionately by different debtors or
demanded proportionately by different creditors.
SOLIDARY OBLIGATION(Obligacion Solidaria) - Each one of the debtors
is bound to render and/or each one of the creditors has a right to
demand entire compliance with the prestation. There is MUTUAL
GUARANTY among solidary obligors; There is MUTUAL AGENCY among
solidary creditors.
Presumption is JOINT: Obligation is presumed joint if there is
concurrence of several creditors OR of several debtors OR of several
creditors and debtors in one and the same obligation.
Exceptions:
1) The obligation expressly states that there is solidarity:
2) The law requires solidarity.
tort, quasi-contracts, liability of principals, accomplices and
accessories of a felony, obligations of devisees and legatees, bailees
in commodatum
3) Nature of the obligation requires solidarity.
4) When a charge or condition is imposed upon heirs of legatees, and
the testament expressly makes the charge or condition in solidum.
5) When a solidary responsibility is imputed by a final judgment upon
several defendants.
OBLIGATION WITH A PENAL CLAUSE -An obligation to which an
accessory undertaking (penal clause/penalty) is attached to insure its
performance by virtue of which the obligor is bound to pay a stipulated
indemnity or perform a stipulated prestation in case of breach.
Effect of Penalty (Art. 1226, par. 1)
General Rule: The penalty shall substitute the indemnity for damages
and payment of interest in case of non-compliance.
Except: When there is a stipulation to the contrary; When the obligor
refuses to pay the penalty – entitled to interest in the amount of penalty
5
(Art. 2209); When the obligor is guilty of fraud (Art. 1170) – creditor to
prove fraud and amount of damages. He is not entitled only to the
penalty plus the difference between the proven damage and penalty
CONTRACTS - A Contract is a meeting of minds between two persons
whereby one binds himself, with respect to the other, to give something
or to render some service.
Characteristics of Contracts
1) Obligatory force of contracts - It is a rule that once the contract is
perfected, it shall be of obligatory force upon both of the
contracting parties.
2) Mutuality - The contract must bind both parties. Note: The validity
or fulfillment of a contract cannot be left to the will of one of the
contracting partieValidity or fulfillment may be left to (1) the will
of a third person, whose decision shall not be binding until made
known to both the contracting parties (Art. 1309) or (2) chance.
3) Autonomy - The contracting parties may establish such
stipulations, clauses, terms and conditions as they deem
convenient.
• Limitation to the principle of autonomy: Stipulations should
not be contrary to law, morals, good customs, public order, or
public policy.
4) Relativity - General Rule: Contracts take effect only between
parties, their assigns and heirs. Limitations: HOWEVER with
respect to assignees or heirs, the general rule under Art. 1311 is
not applicable if the rights and obligations arising from the contract
are not transmissible or purely personal.
Exceptions:
1) Beneficial stipulation/stipulation pour autrui – A stipulation in
favour of a third person.
2) When the third person comes into possession of the object of
a contract creating real rights; (Art. 1312)
3) Where the contract is entered into in order to defraud a
creditor; (Art. 1313)Here, the creditor may ask for its
rescission.
4) Where the third person induces a contracting party to violate
his contract (Art. 1314). Such third person can be held liable for
damages.
Article 1357 presupposes the existence of a valid contract
and cannot possibly refer to the form to make it valid.
Contracts which must appear in writing, otherwise VOID:
1. Donation of personal property whose value exceeds five thousand
pesos, as well as acceptance (Art. 748)
2. Sale of a piece of land or any interest therein through an agent (Art.
1874)
3. Agreements regarding payment of interest in contracts of loan
(Art. 1956);
4. Antichresis (Art. 2134); and
5. Stipulation limiting common carrier’s duty of extraordinary
diligence to ordinary diligence (Art. 1744)
Contracts which must appear in public instrument, otherwise VOID:
1. Donation of immovable properties, as well as acceptance (Art.
749);
2. Partnership where immovable property or real rights are
contributed (Arts. 1171 and 1773);
CONTRACT OF SALE – a consensual contract; perfected at the moment
there is meeting of minds upon the thing which is the object of the
contract and upon the price
DELIVERY – transfers ownership; ownership of the thing sold is acquired
by the vendee from the moment it is delivered to him. Thing is placed in
the control and possession of the buyer.
RES PERIT DOMINO – risk of loss is borne by the buyer once ownership
is transferred. Article 1496 of the Civil Code which provides that "in the
absence of an express assumption of risk by the buyer, the things sold
remain at seller's risk until the ownership thereof is transferred to the
buyer," is applicable to this case, for there was neither an actual nor
constructive delivery of the thing sold, hence, the risk of loss should be
borne by the seller, Norkis, which was still the owner and possessor of
the motorcycle when it was wrecked. This is in accordance with the well-
known doctrine of res perit domino.
-------------------------------- END --------------------------------

Essential Requisites of Contracts

I. CONSENT: conformity of the parties to the terms of the contract;
the acceptance by the offeree of the offer made by the other
Requisites: must be freely given consent, not vitiated by vice of
consent, otherwise voidable.
II. OBJECT: The thing, right or service which is the subject matter of
the obligation arising from the contract.
Requisites: Must be within the commerce of man; Should be real or
possible; Should be licit; and Should be determine, or at least possible of
determination as to its kind.
III. CAUSE: It is the immediate, direct or most proximate reason
which explains and justifies the creation of an obligation through
the will of the contracting parties.
Essential requisites of cause: Existing at the time of the celebration of
the contract; Licit or lawful; and True
Note: Absence of any of the requisites, the contract is void.

Fraud (Art. 1338) - When, through insidious words or machinations of

one party, the other is induced to enter into a contract which without
them, he would not have agreed to.
Kinds of fraud:
1) Fraud in the PERFECTION of the contracts – contract is voidable
2) Fraud in the PERFORMANCE of an obligation (Art. 1170) – liable for
damages

FORMS OF CONTRACTS
General Rule: Contracts shall be obligatory, in whatever form they may
have been entered into, provided all the essential requisites for their DO NOT COPY, CITE, OR DISTRIBUTE
validity are present (Art. 1356).
Exceptions:
WITHOUT PERMISSION OF
1. When the law requires that the contract be in a certain form to be THE AUTHOR.
valid (Art. 1356)
2. When law requires that the contract be in a certain form to be
enforceable (Statute of Frauds)
3. When required to make the contract effective as against third
parties (Art. 1357-1358)
• Where the validity of a contract is made to depend upon a
particular formality, an action under Art. 1357 cannot be
brought to compel the other party to execute such formality.
CIVIL LAW - KOKOBAR 2018 6