When their relationship soured, Carmen filed for
REVIEW NOTES declaration of nullity of marriage before the
CIVIL LAW
RONEY JONE P. GANDEZA
Professor, University of the Cordilleras
Gov. Pack Road, Baguio City
Unit 10 2ND Floor BBCCC Bldg.
No. 56 Assumption Road, Baguio City
gandezalaw@yahoo.com
QUESTION NO. 1
Abe gave Bea an engagement ring. Shortly before
their wedding, Abe was killed in a car accident.
Abe’s estate brought an action to recover the ring.
How would a court rule?
It depends. If Abe gave the ring to Bea in
consideration of their marriage, the gift partakes of a
donation propter nuptias which may be revoked on
the ground of non-celebration of the marriage under
Article 86(1) of the Family Code. The action to
recover the ring prevails.
If Abe gave the ring to Bea because of his love for
her, the ring may be recovered if its value exceeds
Php5,000. This is under the rule that if the value of
the movable donated exceeds Php5,000, the donation
as well as the acceptance must be in writing to be
valid. (Art. 748, Civil Code) Here, there is no
showing that Abe gave the ring to Bea in writing.
The action to recover the ring also prevails.
If the value of the ring does not exceed Php5,000, the
donation and the acceptance need not be in writing to
be valid. Under Article 748 of the Civil Code, an oral
donation of this kind is valid if there is simultaneous
delivery. The action to recover the ring fails.
QUESTION NO. 2
Abe received a handwritten letter from his mother
(Lolita) in which she expressed a desire to give her
diamond ring to Abe’s wife as a token of her love.
When Lolita died, Abe’s wife immediately claims
the ring. Will she prevail?
No. Every will must convey clearly the intention of
the testator to dispose of his property after his death.
(Art. 783, Civil Code) Here, Lolita’s letter is merely
an expression of an intention to make a gift mortis
causa and, as the wishes Lolita had not been carried
out in a will during her lifetime, the letter would have
no legal effect upon the distribution of her estate.
Lolita’s letter does not even have the effect of a valid
donation inter vivos because there is no showing that
the donation was accepted by the donee during the
donor’s lifetime; neither is there any showing that the
donor during her lifetime came to know of the
acceptance. (Art. 748, Civil Code)
QUESTION NO. 3
Wolfgang is a German national who married
Carmen, a Filipina, in Germany. Out of their
marriage were born Caroline and Alexandra.
Makati RTC. Wolfgang in turn obtained a divorce
decree from a German court. The decree awarded
to Wolfgang the custody of the children. Wolfgang
then filed a motion to dismiss the nullity case on
the basis that a divorce decree had already been
issued. The RTC granted the motion. Undaunted,
Carmen filed a partial motion for reconsideration
with a prayer that the case should proceed to
determine the issue of custody of the children.
Judgment for whom?
Judgment for Carmen. Divorce decrees obtained by
foreigners in other countries are recognized in our
jurisdiction. But the legal effects of such decrees
must still be determined by our courts. Before our
courts can give the effect of res judicata to a foreign
judgment, it must be shown that the parties to the
judgment had been given ample opportunity to do so.
Here, it cannot be said that Carmen was given the
opportunity to challenge the judgment of the German
court. The RTC should therefore set the case for trial
to determine the issue of parental custody, care,
support and education of the children. (Roehr v.
Rodriguez, G.R. No. 142820, June 20, 2003)
QUESTION NO. 4
Shintaro, a Japanese national, married Maria, a
Filipina, in Manila. The marriage did not sit well
with Shintaro’s parents. As a result, Shintaro
could not bring Maria to Japan where he resides.
Eventually, the couple lost contact with each
other.
Three years later, Maria met another Japanese,
Taniguchi. Without the first marriage having been
dissolved, Maria and Taniguchi were married in
Quezon City. Taniguchi brought Maria to Japan,
but their relationship did not last. Maria left
Taniguchi and reestablished a relationship with
Shintaro.
Shintaro helped Maria obtain a judgment from a
family court in Japan which declared the
marriage between Maria and Taniguchi void on
the ground of bigamy. Shintaro then filed with the
Manila RTC a petition for “Judicial Recognition
of Foreign Judgment or Decree of Absolute
Nullity of Marriage.”
a. Is the Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) applicable to
Shintaro’s petition?
No. The Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) does not apply in
a petition to recognize a foreign judgment relating to
the status of a marriage where one of the parties to
the marriage is a citizen of a foreign country. The
rule in A.M. 02-11-10-SC that only the husband or
the wife can file a declaration of nullity or annulment
of marriage “does not apply if the reason behind the
petition is bigamy.”
b. Does Shintaro have the legal standing to file the
petition to recognize a foreign judgment nullifying
the subsequent marriage on the ground of
bigamy? Yes. The recognition of the foreign divorce
decree may be made in a Rule 108 proceeding itself,
as the object of special proceedings (such as that in
Rule 108 of the Rules of Court) is precisely to
establish the status or right of a party or a particular
fact. There is no doubt that as the prior spouse,
Shintaro has a personal and material interest in
maintaining the integrity of the marriage he
contracted with Maria and the property relations
arising from it. (Fujiki v. Marinay, G.R. No. 196049,
June 26, 2013)
QUESTION NO. 5
Abe sold to Ben a condominium unit in Baguio
City. At the behest of Ben, the sale agreement
made it appear that Abe sold the property to
Connie, Ben’s daughter. When Abe died, his other
children immediately brought an action against
Connie to recover ownership of the condominium
unit. They claim that Connie is merely holding the
property as a trustee of their father. Will the
action prosper?
Yes, but only to the extent of the hereditary rights of
Abe’s other children to preserve their rights to their
respective legitimes. Connie, on the other hand, is
entitled to retain her own share as Abe’s heir. The
action will prosper because there is a presumed
donation in favor of Connie under Article 1448 of the
Civil Code. Under this provision, if the person to
whom the title is conveyed is a child of the one
paying the price of the sale, no trust is implied by
law, it being disputably presumed that there is a gift
in favor of the child.
QUESTION NO. 6
Amy donated to Ben a property on condition that
Ben will build on it a day care center within two
years. Five years later, Amy, with notice to Ben,
sold the property to Conrad. At this time, Ben has
not yet built a day care center on the property. Is
the sale a revocation of the donation?
No. A formal action in court to revoke the donation
must be filed by the donor under Article 764 of the
Civil Code which speaks of an action that has a
prescriptive period of four years from non-
compliance with the condition stated in the donation.
The rule that there can be automatic revocation
without the benefit of a court action does not apply in
this case because the donation is devoid of any
provision providing for automatic revocation if there
is non-compliance with the stipulated condition.
QUESTION NO. 7
Abe agrees to paint Rey’s house in a month. They
also agree that Abe will pay a penalty of
Php10,000 if he fails to comply with his obligation.
Before Abe could start painting Rey’s house, he
learns that Ben wanted his services for a higher
amount. Abe now goes to Rey and tells him that he
will not be able to paint his house. He offers to pay
Rey the penalty of Php10,000. Is Abe allowed to
pay the penalty?
Yes, but only if Abe had expressly reserved the right.
Article 1227 of the Civil Code provides that the
debtor cannot exempt himself from the performance
of the obligation by paying the penalty, unless the
right has been expressly reserved for him.
QUESTION NO. 8
Rey properly executes a notarial will. Assume the
following clauses in his will and the following
events. Discuss each situation and the legal effects
of the events on the testamentary provisions.
a) Rey’s will states, “I leave my white Mitsubishi
Montero with Plate No. AFB 346 to Abe.” At the
time of Rey’s death, Abe has already died, leaving
his son, Zandro.
The legacy to Abe is voided by the fact that Abe
predeceased Rey. As a result, the property
bequeathed to Abe devolves to Rey’s heirs in
intestacy. Zandro has no right to the property because
a voluntary heir who dies before the testator transmits
nothing to his heirs. (par. 1, Art. 856, Civil Code)
b) Rey’s will states, “I leave to Abe my white
Mitsubishi Montero with Plate No. AFB 346.” Just
before his death, Rey sold the Montero.
The sale of the property constitutes a revocation of
the legacy. The law grants Rey the right to revoke
because of the ambulatory character of a will. Abe
has no right to question the sale because the right of
an instituted heir, legatee, or devisee to the
inheritance is merely inchoate. (Art. 777, Civil Code)
QUESTION NO. 9
Bruno, an Austrian, married Belinda, a Filipina,
in Cebu City. During their marriage, Bruno
acquired properties in Cebu and Davao with the
money he inherited from his parents. Bruno died
last week survived by Belinda, two legitimate
children (Bea and Carol), and an illegitimate child
(Dina). Suppose Austrian law does not allow an
illegitimate child to inherit, is Dina allowed to
inherit from Bruno’s estate under Philippine law?
No. Dina’s capacity to inherit from her father is
determined not by Philippine law where the
properties are situated, but by Austrian law under
which illegitimate children are not allowed to inherit.
QUESTION NO. 10
When he was still a bachelor, Abe properly
executed a will naming his mother as sole heir to
an estate valued at Php1 million. A few years
later, Abe marries Bea. If Abe dies while married
to Bea and without changing his will, would Abe’s
entire estate go to his mother?
No. Article 889 of the Civil Code says that the
legitime of legitimate parents consists of one-half of
the hereditary estates of their children and
descendants. Under Article 893, if the testator leaves
no legitimate descendants, but leaves legitimate
ascendants, the surviving spouse has a right to one-
fourth of the hereditary estate which is to be taken
from the free portion. Applying these provisions,
Abe’s mother is entitled to a legitime of Php500,000,
while Bea is entitled to a legitime of Php250,000
which is to be taken from the free portion. The
remainder of the estate (Php250,000) constitutes the
disposable portion which goes to Abe’s mother as
instituted heir.
QUESTION NO. 11
Abe, Ben, and Carl co-own a parcel of land. Abe
sells his share to Dave. A few months later, Ben
sells his share to Eric.
a. Is Dave entitled to redeem Ben’s share?
Yes, because the right of legal redemption is not
limited to the original co-owners. What matters is
that Dave was already a co-owner when another co-
owner (Ben) sold his undivided share.
b. Suppose Ben has donated his share to Eric, may
Carl and Dave redeem Ben’s share?
No. The right of legal redemption may be exercised
only if the share of a co-owner is alienated to a third
person by onerous title. (Art. 1620, Civil Code)
Because Ben’s conveyance to Eric was not by
onerous title but by gratuitous title, Carl and Dave are
not entitled to redeem.
c. Suppose Ben sold his share to Dave, may Carl
redeem?
No. The right of legal redemption may be exercised
only if the share of a co-owner is alienated to a third
person by onerous title. This right of legal
redemption is not available here because the buyer is
himself a co-owner. The reason behind the right of
legal redemption among co-owners is to reduce the
number of co-owners and avoid the entry of strangers
into the co-ownership. If the alienation is in favor of
a co-owner, the number of co-owners is already
reduced and no stranger has entered the co-
ownership.
QUESTION NO. 12
In the following situations, two parties lay claim to
the same goods sold. Discuss which of the parties
would prevail in each situation.
a. Abe steals Rey’s television set and sells it to
Larry, an innocent purchaser for value. Rey
learns Larry has the set and demands its return.
Rey is entitled to the return of the set even without
reimbursement because he had been unlawfully
deprived of it. Possession of a movable, even if
acquired in good faith, is not equivalent to title when
the true owner had lost it or had been unlawfully
deprived of it, unless the possessor had acquired it in
good faith at a public sale. (Art. 559, Civil Code)
Here, Larry’s acquisition of the set was not at a
public sale. His possession of the set, even if acquired
in good faith, is never equivalent to title
b. Rey takes his television set for repair to Abe
who sells new and used television sets. By
accident, one of Abe’s employees sells the set to
Larry, an innocent purchaser for value, who takes
possession. Rey wants his set back from Larry.
Rey can no longer recover the set, even if he offers
reimbursement. An owner of a movable who had lost
it or had been unlawfully deprived of it can no longer
recover the movable even with reimbursement if the
possessor had acquired the property in good faith by
purchase from a merchant’s stores, or in fairs, or
markets in accordance with the Code of Commerce.
Since Larry acquired the set from a merchant’s store,
his possession of the set amounts to a valid title.
QUESTION NO. 13
Amy married Ben in 2007. Amy is an actress and
Ben a businessman. In 2014, Amy figured that,
even before their marriage Ben and his family
were notoriously involved in a networking scam.
This fact was not disclosed to her at the time of the
marriage. Amy feels cheated and thinks that this
can affect her public image. Does she have a
remedy?
Amy has no remedy because Ben’s concealment of
his involvement in a networking scam does not
constitute fraud that would annul the marriage. To
annul a marriage on the ground of fraud, only the
circumstances enumerated under Article 46 of the
Family Code constitute fraud. No other
misrepresentation or deceit as to character, rank,
fortune or chastity will constitute such fraud as will
give grounds for the annulment of marriage. Ben’s
involvement in a scam, although concealed, may
constitute misrepresentation as to his character, but
which would not annul the marriage.
QUESTION NO. 14
SM Prime Holdings engaged Ben, a contractor,
for the repainting of all SM malls nationwide. The
contract expressly provided that Ben would use
only “paint manufactured and supplied by Boysen
Paints.” Ben used another paint brand. May
Boysen Paints sue Ben for damages?
No. Boysen Paints was named in the contract merely
as an incidental beneficiary. If a contract should
contain some stipulation in favor of a third person, he
may demand its fulfilment if he communicated his
acceptance to the obligor before its revocation. A
mere incidental benefit or interest of a person is not
sufficient. The contracting parties must have clearly
and deliberately conferred a favor upon a third
person. (par. 2, Art. 1311, Civil Code)
QUESTION NO. 15
On the occasion of Abe's marriage, his father
donated to him a house. A few years later, Abe’s
marriage is invalidated because of Abe’s
psychological incapacity. May Abe's father revoke
the donation and get back the house?
Yes. Article 86 (1) of the Family Code states that a
donation propter nuptias may be revoked by the
donor if the marriage is judicially declared void. This
provision makes no distinction as to who furnished
the ground in connection with the nullification of the
marriage.
QUESTION NO. 16
Buyer and Seller enter into a contract under
which Seller is to sell all of the palay to be grown
on his land to Buyer. After the contract is entered
into but before the palay is harvested, the price of
palay rises dramatically. Both Buyer and Seller
claim the crop. Judgment for whom?
Judgment for Buyer. Things having a potential
existence may be the object of a sale, but the efficacy
of the sale is deemed subject to the condition that the
thing will come into existence. (Art. 1461, Civil
Code) While future things or goods may not be
donated, future things or goods may be sold, as in
this case.
QUESTION NO. 17
Abe and Ben co-own a parcel of land. Unknown to
Abe, Larry built a house on the property with the
consent of Ben. May Abe sue to eject Larry from
the property?
Yes. Under Article 491 of the Civil Code, none of the
co-owners may, without the consent of the others,
make alterations in the thing owned in common.
Consequently, none of the co-owners can, without the
consent of the other co-owners, validly consent to the
making of an alteration by another person in the thing
owned in common.
The consent given by Ben, but without Abe’s
consent, did not vest upon Larry any right to enter
into the co-owned property. Larry’s entry into the
property falls under the classification “through
strategy or stealth.”
The holding that there is no forcible entry because
Larry’s entry into the property was not through
strategy or stealth because of the consent given to
him by one of the co-owners is wrong. Larry’s entry
into the property without the permission of Abe could
appear to be a secret and clandestine act done in
connivance with co-owner, Ben. Entry into the land
effected clandestinely without the knowledge of the
other co-owners could be categorized as possession
by stealth. (Cruz v. Catapang, G.R. No. 164110,
Feb. 12, 2008)
QUESTION NO. 18
Abe leased to Rey a building for a monthly rental
of Php20,000. The contract states that non-
payment of the rent would automatically cancel
the contract, but otherwise Rey could stay on
indefinitely. After five years, Abe tried to eject
Rey because he planned to tear down the building
and put up another. Rey refused. Can Abe eject
Rey?
Yes, because the condition in the contract is purely
potestative rendering it void. The continuance of the
contract depends solely upon Rey’s choice between
continuing paying the rentals or not, completely
depriving the owner of all say on the matter. So long
as Rey elected to continue the lease by continuing the
payment of the rentals, the owner would never be
able to discontinue it; conversely, although the owner
should desire the lease to continue, the lessee could
effectively thwart his purpose by simply stopping
payment of rentals. (Encarnacion v. Baldemar, 77
Phil. 470)
QUESTION NO. 19
Which of the following remedies, i.e., declaration
of nullity of marriage; annulment of marriage;
legal separation, or judicial separation of
property, may an aggrieved spouse avail himself
or herself of:
a. The wife goes to Saudi Arabia to work as a
nurse at a hospital and refuses to come home after
the expiration of her three-year contract.
If the wife refuses to come home within three months
after the expiration of her employment contract, she
is presumed to have abandoned the husband (last
par., Art. 101, Family Code). If this happens, the
husband may file an action for judicial separation of
property. (Art. 135, Family Code)
If the wife’s refusal to come home continues for more
than one year from the expiration of her employment
contract, the husband may file an action for legal
separation under Article 55 of the Family Code on
the ground of abandonment of a spouse by the other
without justifiable cause for more than one year. The
wife is deemed to have abandoned the husband when
she leaves the conjugal dwelling without any
intention of returning. In any event, the intention of
not returning to the conjugal abode cannot be
presumed during the wife’s three-year employment
contract.
b. The wife discovers after the marriage that her
husband has AIDS.
Because AIDS is +a serious and incurable sexually-
transmissible disease, the wife may file an action for
annulment of the marriage on this ground regardless
of whether such fact was concealed by the husband
from his wife as long as the disease was present at the
time of the marriage. The marriage is voidable even
though the husband was not aware that he had the
disease at the time of marriage.
c. The husband discovers after the marriage that
his wife was a prostitute before their marriage.
The husband has no remedy in law if he discovers
after the marriage that his wife was a prostitute
before their marriage. The law is clear. No
misrepresentation or deceit as to character, health,
rank, fortune or chastity constitutes fraud as a legal
ground for an annulment of marriage. (Article 46,
Family Code).
d. The husband has an affair with his secretary
and refuses to stop it despite advice of his friends
and relatives.
The wife may file an action for legal separation
because the husband’s sexual infidelity is a ground
for legal separation under Article 55 of the Family
Code. She may also file an action for judicial
separation of property for failure of her husband to
comply with his duty of fidelity. (Article 135 (4),
Family Code)
QUESTION NO. 20
Tom properly made a will in 1998 giving to his
friend, Fidel, all his cars. In 1998, Tom had three
cars, but in 2005, when Tom died, he already had
eight cars. How many cars will Fidel get upon
Tom’s death?
Fidel is entitled to three cars only, the number of cars
Tom had when Tom made his will. Property acquired
between the execution of the will and the death of the
testator are not included among the properties
disposed of, unless it appears in the will that such
was the intention of the testator. (Art. 793, Civil
Code)
(NOTE: The rule under Article 793 of the Civil Code
is applicable only to legacies and devises. As to
institution of heirs, Article 781 of the Civil Code
applies. Thus, an instituted heir is entitled to inherit
from the testator based on the testator’s net hereditary
estate at the time of his death, not at the time of
execution of the testator of his will)
QUESTION NO. 21
Abe donated to his friend, Ben, a property on
condition that Ben must not sell it within 10 years
from the date of donation. In violation of this
condition, Ben sold the land to Carlos one year
following Abe’s death. Ben in turn died after the
sale of the land, leaving his son, Dan, as his only
heir.
When Dan learned that the land which he
expected to inherit had been sold by his father to
Carlos, he immediately filed an action to annul the
sale on the basis that it violated the restriction
imposed by Abe. Carlos defends that Donald has
no personality sue for annulment of the sale. Who
prevails?
Carlos prevails. The failure of the donee to comply
with a condition imposed by the donor gives rise to
an action to revoke the donation under Article 764 of
the Civil Code. But this right of action belongs to the
donor which is transmissible to his heirs, and may be
exercised against the donee's heirs.
Dan is an heir of the donee (Ben) but not of the
donor (Abe). On this ground alone, he has no legal
capacity to sue for revocation of the donation.
Although he is not seeking a revocation of the
donation but an annulment of the sale which his
father, the donee, has entered in violation of the
condition imposed by the donor, Dan’s action to
annul the sale will fail.
Annulment may be brought only by those who are
principally or subsidiarily obliged under a contract
(Art. 1397, Civil Code). As an exception to the rule, a
person not so obliged may ask for the annulment of a
contract if he is prejudiced in his rights (DBP us. CA.
96 SCRA 342) and can show the detriment which
would result to him from the contract in which he had
no intervention (Teves vs. PHHC, 23 SCRA 1141).
Dan cannot show such detriment or prejudice. As a
forced heir, Dan’s interest in the property was, at
best, a mere expectancy. The sale of the land by his
father did not impair any vested right. The fact
remains that the premature sale made by his father
was not voidable at all because none of the vices of
consent under Article. 1390 of the Civil Code is
present.
QUESTION NO. 22
Ana was an unmarried woman when a friend
entrusted to her the care of an abandoned infant.
Eager to have a child of her own, she registered
the child to make it appear that she is the child’s
mother. Ana reared and cared for the child as if
she were her own. She sent the child to exclusive
schools, doted on her, and used her surname in all
of the child’s scholastic records.
When the child was ten years old, Ana married
Brad, an American. Ana later decided to adopt
the child by availing of the amnesty given under
the law to those individuals who simulated the
birth of a child. With the consent of Brad, Ana
filed the petition for adoption.
a. Can Ana alone adopt the child?
No. The Domestic Adoption Act specifically
provides that the husband and wife shall jointly
adopt, except if one spouse seeks to adopt the
legitimate child of the other; or if one spouse seeks to
adopt his or her own illegitimate child; or if the
spouses are legally separated from each other. Ana
does not fall under any of these exceptions for the
following reasons: First, the child to be adopted is
not the legitimate child of Ana or of her husband;
second, the child is not the illegitimate child of Ana;
and third, Ana and Brad are not legally separated.
b. Can Ana and Brad file the petition jointly?
No. Under the Domestic Adoption Act, aliens are
qualified to adopt Filipino children only if a) they are
former Filipino citizens who seek to adopt their
relatives within the fourth degree of consanguinity; b)
they seek to adopt the legitimate or illegitimate
children of their Filipino spouses; and c) they are
married to Filipino citizens and seek to adopt jointly
with their spouses a relative within the fourth civil
degree of consanguinity or affinity of their Filipino
spouses.
Here, the child to be adopted is not a relative of Ana
within the fourth degree of consanguinity. Neither is
the child the legitimate or illegitimate child of Ana.
Therefore, Brad, being an alien, is not qualified to
adopt the child. While Ana is qualified to adopt,
Brad is not. Even if Ana is qualified, she still cannot
file the petition without being joined by her husband.
QUESTION NO. 23
Abe, owner of an antique shop, asked his friend,
Rey, to mind the store while he went to a local
mall to mail a package. While Abe was gone,
Tessie came into the store and purchased a rare
painting for a very low price. When Abe returned,
Rey told him about the sale. Abe immediately
brings action against Tessie for the return of the
painting and claims that Rey did not have
authority to make the sale. Can Abe recover the
painting?
No. Abe can no longer recover the painting because
he is estopped from denying Rey’s authority. Agency
by estoppel arises when the principal (Abe)
intentionally or by want of ordinary care causes a
third person (Tessie) to believe another (Rey) to be
his agent who is not really employed by him.
When Abe placed Rey in charge of the store, Tessie
had the right to assume that Rey was the agent of
Abe. Rey had apparent authority, because he
appeared to be the agent and Abe, the principal, is
estopped from denying the agency, even if none
existed. (Art. 1883, Civil Code)
QUESTION NO. 24
Abe married Bea in 2005. Abe later meets with an
accident, and, as part of the treatment, receives a
blood transfusion. The blood was infected with a
communicable venereal disease, which Abe
contracts, and later transmits to Bea. Can Bea sue
for annulment?
No. Affliction of a contracting party with a serious
and incurable sexually-transmissible is a ground to
annul a marriage only if the illness was existing at
the time of the marriage. Moreover, affliction of a
contracting party of a sexually-transmissible disease,
regardless of its nature, existing at the time of the
marriage and concealed by such party, constitutes
fraud that would annul a marriage. Here, Abe
contracted the venereal disease only during the
marriage. Therefore, Bea cannot use it as a ground
for annulment.
QUESTION NO. 25
Tito devised half of a parcel of land to Ana, and
the other half to Ben, on condition that “upon
Ben’s death, whether before or after that of Tito,
the half portion devised to Ben shall be delivered
to Ana or her heirs should Ben die before Tito.”
Upon Tito’s death, Ben immediately demanded
partition of the property. Ana refused because
according to her, Ben is only a second heir. Is Ana
correct?
Ana is wrong. A fideicommissary substitution has no
effect unless it is made expressly. The clause under
consideration -- upon Ben’s death, whether before or
after that of Tito, the half portion devised to Ben shall
be delivered to Ana or her heirs should Ben die
before Tito -- is not a valid fideicommissary
substitution. The clause establishes only a simple
substitution, the necessary result of which is that Ben,
upon the death of Tito, became the owner of an
undivided half of the property. Being a co-owner of
the property, Ben can rightfully demand its partition.
QUESTION NO. 26
Mr. and Mrs. Cruz, a wealthy couple, offered a
reward of Php2 million in a newspaper to the
person or persons furnishing information
resulting in the arrest and conviction of the person
or persons guilty of the murder of their son.
Shortly after the advertisement, the police
arrested a suspect. The police learned that the
suspect was the boyfriend of a daughter of Ana
who suggested the location at which the suspect
was later found and arrested. The suspect was
charged and convicted. Ana tried to claim the
reward money, arguing that the information she
gave to the police led to the arrest and conviction
of the murderer. When Ana gave the information
to the police, however, she had not known about
the reward. Is Ana entitled to the reward?
Ana is not entitled to the reward because she did not
know that it had been offered. To be effective, an
offer of reward, as well as any other contractual
offers, must be communicated to the offeree resulting
in the offeree’s knowledge of the offer. An offer
without acceptance does not result into a contract.
(Art. 1319, Civil Code) One cannot agree to a bargain
without knowing that it exists.
QUESTION NO. 27
In a cockfight involving the cocks of Abe and Rey,
the sentenciador declares Abe’s cock the winner.
Not satisfied with the sentenciador’s decision, Rey
commences an action against Abe, praying that
the judgment of the sentenciador be voided and his
cock be declared the rightful winner. The judge
immediately dismisses the case because he knew of
no law governing cockfights. He also orders the
return of Rey’s bet. Abe appeals. Who prevails?
Abe prevails. In Chu Jan v. Bernas, 34 Phil. 631, the
Supreme Court reversed the lower court’s order of
dismissal and remanded the case to the lower court.
A judge should not refrain from rendering a judgment
just because there is no law that governs a particular
case. In the absence of a law or principle of law, the
rules of fair play must be applied. (Sec. of Justice v.
Lantion, 322 SCRA 160 [2000] When a provision of
law is silent or ambiguous, judges ought to invoke a
solution responsive to the vehement urge of
conscience. (Amatan v. Aujero, 248 SCRA 511)
QUESTION NO. 28
Tom died in 2005 leaving a holographic will. The
will contains insertions and cancellations which
are not authenticated by his signature. For this
reason, the probate of the will is opposed by
Tom’s relatives who stood to inherit intestate from
him. May Tom’s will be probated?
Yes, the will as originally written may be probated.
The insertions and alterations are void because they
were not authenticated by Tom’s full signature under
Article 814 of the Civil Code. The original will
remains valid because a holographic will is not
invalidated by the unauthenticated insertions or
alterations. (Ajero v. Court of Appeals, 236 SCRA 468)
QUESTION NO. 29
Abe has a van for sale. He offers to sell the van to
Rey for Php300,000. Discuss the legal effect of the
following events on the offer.
a. Abe dies before Rey’s acceptance, and at the
time Rey accepts, he is unaware of Abe’s death.

Abe’s death terminates the offer. An offeree’s power
of acceptance is terminated when the offeror or
offeree dies or is deprived of legal capacity to enter
into the proposed contract. An offer is personal to
both parties and cannot pass to the decedent’s heirs,
assigns or successors-in-interest. This rule applies
whether or not the other party had notice of the death
or incapacity of the other party.
b. The night before Rey accepts, fire destroys the
vehicle.
Abe’s offer is terminated. Abe need not even tell Rey
about the loss of the van for the offer to terminate.
An offer is automatically terminated if the subject
matter of the offer is destroyed before the offer is
accepted.
c. Rey pays Php10,000 for a thirty-day option to
purchase the van. During this period, Abe dies,
and later Rey accepts the offer, knowing of Abe’s
death.
Rey’s acceptance results in a perfected contract
notwithstanding Abe’s death. When an offeror
promises to hold an offer open for a specified period,
and the offeree pays for the promise, an option
contract is created. An option contract is a separate
contract that takes away the offeror’s power to
revoke the offer for the period of time specified in the
option. The death or incompetence of the offeror does
not terminate an option contract -- unless the
offeror’s personal performance is essential to the
fulfillment of the contract. Consequently, Rey can
still exercise the option against Abe’s estate, since
Abe is not required to perform the act of conveying
the van to Rey.
QUESTION NO. 30
Abe owns a residential land worth Php500,000.
Unknown to Abe, Ben built a house valued at Php
100,000 on Abe’s property. Answer the following
questions on the premise that Ben is a builder in
good faith and Abe is a landowner in good faith.
a. May Abe acquire Ben’s house?
Yes. Abe may acquire Ben’s house by indemnifying
Ben of his necessary and useful expenses in building
the house. Article 448 of the Civil Code provides that
the owner of the land on which anything has been
built, sown or planted in good faith, has the right to
appropriate as his own the works, sowing, or
planting, after payment of necessary and useful
expenses as provided in Article 546 of the Civil
Code.
b. May Abe require Ben to buy the land?
No. Article 448 of the Civil Code says that the owner
of the land on which anything has been built in good
faith has the right to oblige the one who built to pay
the price of the land if its value is not considerably
greater than that of the building, Here, the value of
the land which is Php500,000 is obviously
considerably greater than the value of the house
which is Php100,000.
c. If Ben voluntarily buys the land as desired by
Abe, under what circumstance may Abe have the
house removed?
If Ben agrees to buy land but fails to pay, Abe can
have the house removed. (Depra vs. Dumlao, 136
SCRA 475)
d. In what situation may a “forced lease” arise
between Abe and Ben?
Article 448 of the Civil Code states that the builder
cannot be obliged to buy the land if its value is
considerably greater than that of the building. In such
case, he must pay reasonable rent, if the owner of the
land does not choose to appropriate the building
after proper indemnity. The parties must agree upon
the terms of the lease and, in case of disagreement,
the court must fix the terms
QUESTION NO. 31
Abe, a Filipino naturalized American, now a
resident of New York, comes back to the
Philippines as a balikbayan. He is arrested at the
NAIA in possession of a caliber .38 Smith and
Wesson. Charged with illegal possession of
firearms, he moves to quash the criminal
complaint based on his constitutional right as a
New Yorker to bear arms. Decide.
Motion denied. The crime was committed within our
territorial jurisdiction and is therefore punishable
here. Under the principle of generality, no one is
exempt from our penal laws, except those who enjoy
diplomatic immunity under international law. (Art.
14, Civil Code; Art. 2 Revised Penal Code; see also
3rd par., Art. 17, Civil Code)
QUESTION NO. 32
Abe and Amy are married in Baguio City. Abe
goes to Hongkong and marries Bea, a Filipina
domestic helper. After a month of connubial bliss
in the Crown Colony, Abe goes to Singapore and
marries Connie, a Filipina “house manager.”
After two months with Connie, Abe goes to Brunei
where he marries Annie, a Filipina GRO. After
three months of connubial bliss in Brunei, Abe
heads for home sweet home. May Abe be
prosecuted for bigamy in the Philippines at the
instance of his first wife, Amy?
No, because Abe did not commit any crime in
Philippine territory. (Art. 14, Civil Code) Bigamy is
committed by entering into a subsequent marriage.
The first marriage, which was entered into in the
Philippines, is not bigamous. The subsequent
marriages, which are bigamous marriages, were all
entered into abroad, or outside Philippine territory,
and therefore beyond our criminal jurisdiction.
QUESTION NO. 33
Amy and Bea, Filipinos, both women, enter into a
same-sex marriage in the United States, where
such a marriage is valid. Is the marriage also valid
here?
The general rule enunciated in the first paragraph of
Article 26 of the Family Code should apply, under
which marriages valid where celebrated are also valid
here. The case does not fit into any of the exceptions
enunciated in the foregoing provision of Article 26 of
the Family Code. Therefore, same sex marriage is
valid here if valid where celebrated.
However, it would seem that the case falls under one
of the exceptions to the application of the proper
foreign law, i.e., it runs counter to an important
public policy of the forum -- that a marriage should
be between a man and a woman. Because of this
important public policy, same-sex marriage is void
here.
QUESTION NO. 34
A ten-year old boy shot a girl with an air gun
resulting in her death. The court acquitted the boy
in the criminal case for having acted without
discernment. The girl’s parents filed for damages
against the boy’s parents. How would a court
rule?
The court would hold the boy’s parents liable. Their
liability is made natural as a logical consequence of
the duties and responsibilities of parents exercising
parental authority which includes controlling,
disciplining and instructing their children.
In this jurisdiction, the liability of parents is vested
by law which assumes that when minor children
living with their parent commit a tortuous act, the
parents are presumed negligent in the performance of
their duty to supervise the children under their
custody. (Tamargo vs. CA, 209 SCRA 519)
QUESTION NO. 35
A grade 6 teacher assigned Ana and Bea to weed
the grass in the school yard. Ana found a plastic
headband with an earthworm and tossed it to Bea
hitting Bea in her right eye resulting in the loss of
the eye. Are Ana’s parents liable?
No. It was not shown that the parents could have
prevented the damage as their child was in school and
they have the right to expect their child to be under
the care and supervision of their teacher. Besides, the
act was an innocent prank and usual among children
at play and which no parent could have any special
reason to anticipate much less guard against.
(Cuadra vs .Monfort, 35 SCRA 160)
QUESTION NO. 36
Abe sold his lot to Ben for Php1 million payable in
five equal annual installments. After registration
of the sale, the Register of Deeds issued a
certificate of title in Ben's name. When Ben failed
to pay the last two installments, Abe filed an
action for collection of sum of money. Upon filing
his complaint, Abe tried to cause the annotation of
a notice lis pendens on Ben's title. Is this proper?
The notice lis pendens is improper because the case
filed by Abe against Ben is one for collection of sum
of money. Annotation of a lis pendens can only be
done in cases for recovery of possession or of
ownership of real property, or to quiet title or to
remove cloud on it, or for partition or any other
proceeding affecting title to the land or its use or
occupation. The action filed by Abe does not fall
under any of these cases.
QUESTION NO. 37
Abe and Rey entered into a contract for the
purchase of a cow. Abe, the owner of the cow, told
Rey that the cow was barren (incapable of
breeding and producing calves). Based on this
belief, Abe and Rey negotiated a price several
hundred pesos less than it would have been had
the cow been capable of breeding. Just before
delivery, Abe discovered the cow had conceived a
calf, and he refused to deliver the much more
valuable cow to Rey. Does Abe have legal grounds
to annul the contract?
Yes, Abe may annul the sale on the ground that he
committed a substantial mistake as to the substance
of the subject matter of the contract. The mistake is
substantial enough because a barren cow is a
substantially different cow than a breeding one. The
law is clear: Even though there may have been no
damage to the party seeking the annulment, a contract
may be annulled where the consent is vitiated by
mistake. (Art. 1390, Civil Code)
QUESTION NO. 38
ABC Co. insured Pedro’s house for Php1 million.
As stated in the policy, ABC Co. undertakes, upon
total loss, to either pay the insured value of the
house, or rebuild it, upon proof of total loss. If
during the life of the policy the insured property is
completely destroyed, may Pedro insist that ABC
Co. rebuild his house rather than being paid its
insured value?
No, because in alternative obligations, the right of
choice is given to the debtor, unless it has been
expressly granted to the creditor. (par. 1, Art 1200,
Civil Code) In the absence of an agreement in the
insurance policy giving the right of choice to the
insured, the general rule applies, and therefore, the
insurer may choose which of the two prestations to
perform, the performance of one being sufficient.
QUESTION NO. 39
For damage or injuries arising out of negligence in
the operation of a motor vehicle, what is the
nature of the liability of the registered owner?
The registered owner may be held civilly liable with
the negligent driver either subsidiarily or solidarily.
The owner may be held subsidiarily liable if the
aggrieved party seeks relief based on a delict or crime
under Articles 100 and 103 of the Revised Penal
Code.
On the other hand, the owner may held solidarily if
the complainant seeks relief based on a quasi-delict
under Articles 2176 and 2180 of the Civil Code.
N
( OTE: It is the option of the plaintiff whether to
waive completely the filing of the civil action, or
institute it with the criminal action, or file it
separately or independently of a criminal action. His
only limitation is that he cannot recover damages
twice for the same act or omission of the defendant)
QUESTION NO. 40
Abe works as a janitor in a building at night. On
his way to work, he found a piece of gold necklace
that contains several precious stones. The
following day, Abe decides to take the necklace to
a jewelry store to have it appraised. While
pretending to weigh the jewelry, an employee of
the jeweler removes several of the stones. Abe
brings an action to recover the stones from the
jeweler. Will he succeed?
Yes. As the party in physical possession of the
jewelry, Abe is entitled to be respected in its
possession which he can enforce against anyone,
except the true owner. (Art. 559, Civil Code)
QUESTION NO. 41
A Filipino is convicted by final judgment abroad.
May he be required to serve time here?
No, because there is no legislation allowing such
practice. It would in effect require the Philippine
government not only to recognize, but also to
enforce, a foreign judgment which is penal in nature.
(Opinion of the Sec. of Justice No. 142, s. 1992)
QUESTION NO. 42
When may a divorce decree validly obtained in a
foreign country be recognized in the Philippines?
A divorce obtained abroad by an alien may be
recognized in our jurisdiction if the decree of divorce
is valid according to the national law of the foreigner.
However, the divorce decree and the governing
national law of the alien spouse who obtained the
divorce must be proved. Our courts do not take
judicial notice of foreign laws and judgments. Like
any other facts, both the divorce decree and the
national law of the alien spouse must be alleged and
proved according to our law on evidence. (Garcia v.
Recio, G.R. No. 138322, October 2, 2001)
QUESTION NO. 43
Tom died in 1990 with a will. In his will, he
devised a house and lot to Abe, as his first heir
and to Abe’s son, Ben, as hi5 second heir. Ben died
in 1995 survived by his two children (Eric and
Fidel). Abe in turn died in 2000 survived by his
two children (Chito and Dante).
In the settlement of Abe’s estate, Eric and Fidel
(Ben’s heirs) sought to exclude the house and lot
originating from Tom on grounds that they are
the exclusive owners of the property. Chito and
Dante opposed the motion on grounds that Ben,
the second heir, predeceased Abe, and that
therefore, the fideicommissary substitution did
not produce any effect as far as Ben, the second
heir, is concerned. Who prevails?
Eric and Fidel, Ben’s heirs, prevail. Ben, the second
heir, acquires a right to the succession from the time
of the testator’s death, even though he, Ben, should
die before the first heir. Ben inherited from Tom as
second heir when the latter died in 1990. When Ben
died in 1995, he transmitted his right as second heir
to his own heirs, Eric and Fidel, such that when Abe
(first heir) died in 2000, the right of Eric and Fidel
over the property became absolute.
QUESTION NO. 44
A passenger bus owned by Abe and a cargo truck
owned by Ben collided. Carlito, a bus passenger,
suffered injuries, while Dante, another bus
passenger, died. The drivers of the two vehicles
were at fault. Carlito, the injured passenger, and
the heirs of Dante sued the owners of both vehicles
for damages.
a. May Abe successfully invoke the defense of due
diligence in the selection and supervision of his
employees to avoid liability?
No, he cannot. This is because his liability as a
common carrier is based on a breach of contract of
carriage. Such a defense will only serve to mitigate
Abe’s liability because by then he will be considered
as a debtor in good faith.
b. May Ben invoke the same defense?
Yes, Ben can properly and successfully invoke the
same defense of due diligence in the selection and
supervision of his employees because his liability is
based on a quasi-delict.
c. May Carlito claim moral damages from both
vehicle owners?
Yes, Carlito can claim moral damages against Ben,
the owner of the cargo truck, because of the injuries
he suffered, but as against Abe, Carlito can claim
moral damages only if he proves reckless negligence
on the part of the common carrier amounting to
fraud.
d. May Dante’s heirs claim moral damages from
both vehicle owners?
The heirs of Dante can claim moral damages against
both vehicle owners because the rules on damages
arising from death due to a quasi-delict are also
applicable to death of a passenger caused by breach
of contract by a common carrier. (Arts. 1755, 1764,
2206 and 2219, Civil Code)
QUESTION NO. 45
John, Paul, George, and Ringo are co-owners of
an unregistered land. Unknown to his co-owners,
John registered the land in his name. What is the
effect of the registration of the land in John’s
name?
John never acquired ownership of the land.
Registration of a parcel of land subject of co-
ownership in the name of one co-owner is not a
repudiation of the co-ownership for purposes of
prescription. (Ceniza v. Court of Appeals, 181 SCRA
552 [1990]) Under Article 494 (5) of the Civil Code,
no prescription shall run in favor of a co-owner or co-
heir so long as he expressly or impliedly recognizes
the co-ownership. The registration by John of the
community property in his name merely created a
trust in favor of his co-owners.
QUESTION NO. 46
If a marriage is annulled or declared void by final
judgment, how soon may the former spouses
remarry?
A decree of annulment or decree of absolute nullity
terminates a marriage. There being no more
subsisting marriage to speak of, the former spouses
may marry again, but only after they comply with
Article 52 of the Family Code. This provision
requires the former spouses to register the with the
appropriate local civil registry or registry of property
the following: a) judgment of annulment or of
absolute nullity of marriage; b) partition and
distribution of the properties of the spouses; and c)
delivery of the children’s presumptive legitimes.
Failure to comply with these (recording)
requirements will render void the remarriage of the
former spouses.
QUESTION NO. 47
Abe is convicted by final judgment of a crime.
Abe’s wife later files an action for legal
separation. Which of the following facts would
most likely have an impact on the case?
A. Abe is sentenced to suffer imprisonment for
more than six years.
B. Abe is convicted of a crime involving moral
turpitude.
C. Abe is convicted of a crime which carries the
accessory penalty of civil interdiction.
D. Abe is a rescidivist.
(A) would most likely have an impact on the case.
Under Article 55 of the Family Code, a final
judgment sentencing the respondent spouse to
imprisonment of more than six years, even if
pardoned, is a ground for legal separation.
That Abe is convicted of a crime involving moral
turpitude as stated in (B) is of no consequence if the
penalty is less than six years.
That Abe is sentenced to suffer the accessory penalty
of civil interdiction as stated in (C) would have an
impact only if the crime to which Pedro is convicted
carries a sentence of more than six years.
Abe’s rescidivism in (D) has no impact because it is
not one of the grounds for legal separation.
QUESTION NO. 48
The DENR issued to Abe in 1975 a free patent
over an agricultural land with an area of 30
hectares. Abe promptly presented the patent to
the Register of Deeds for registration as a result of
which OCT No. 375 was issued to him.
In 1983, Abe sold the land to Ben on the basis of
which OCT No. 375 was cancelled and TCT No.
4576 was issued in Ben’s name. In 1986, the
Director of Lands filed a complaint for annulment
of OCT No. 375 and TCT No. 4576 on the basis
that Abe obtained his patent through fraud. Ben
moved to dismiss the case on the ground that he
was an innocent purchaser for value and in good
faith and that he has acquired a title to the
property which is valid, unassailable and
indefeasible. If you were the judge, will you grant
the motion to dismiss?
Motion denied. The government can seek annulment
of the original and transfer certificates of title and the
reversion of the land to the State. Ben's defense is
untenable. The protection afforded by the Torrens
System to an innocent purchaser for value may be
invoked only if the land has been titled thru judicial
proceedings where the issue of fraud becomes
academic after the lapse of one year from the
issuance of the decree of registration. In public land
grants, the action of the government to annul a title
fraudulently obtained does not prescribe. The action
and will not be barred by the transfer of the title to an
innocent purchaser for value.
QUESTION NO. 49
Abe met Bea at a garments factory where both
were working. After a brief courtship period, the
two got married, and lived for a time as husband
and wife. When the factory closed down, Bea went
to Taiwan to seek employment. That was the last
time Abe saw her. Abe recently obtained a court
decree declaring Bea presumptively dead.
The Solicitor General disagrees with the ruling
arguing that Abe had failed to exert earnest
efforts to locate Bea and that Abe failed to prove
his well-founded belief that Bea was already dead.
The Solicitor General assails the ruling through a
Notice of Appeal. Should the appeal be given due
course?
No. The decision of the court granting Abe’s petition
for declaration of his wife’s presumptive death under
Article 41 of the Family Code is immediately final
and executory upon notice to the parties. (Art. 247,
Family Code) The decision is therefore not subject to
ordinary appeal, and the attempt to question it
through a Notice of Appeal is unavailing.
In sum, the losing party in a summary proceeding for
declaration of presumptive death under Article 41 of
the Family Code may file a petition for certiorari with
the Court of Appeals on the ground that, in rendering
judgment thereon, the trial court committed grave
abuse of discretion amounting to lack of jurisdiction.
From the decision of the Court of Appeals, the
aggrieved party may elevate the matter to the
Supreme Court via a petition for review on certiorari
under Rule 45 of the Rules of Court. (Republic v.
Granada, G.R. No. 187512, June 13, 2012)
QUESTION NO. 50
Abe leased to Rey a building for ten years. Abe
has repeatedly assured Rey that if he should
decide to sell the building, he will give Rey the
right of first refusal.
On the sixth year of the lease, Abe informed Rey
that he was willing to sell to Rey the building for
Php5 million. Rey offered to buy the building for
Php4.5 million. Abe did not reply. One week later,
Rey received a letter from Larry informing him
that the building had been sold to him by Abe for
Php5 million, and that Larry will not renew Rey’s
lease when it expires.
a. Did Abe violate Rey’s right of first refusal?
No. The lessee’s right of first refusal does not go so
far as to give him the power to dictate on the lessor
the price at which the lessor should sell his property.
Upon the facts given, Abe had sufficiently complied
with his commitment to give Rey a right of first
refusal when he offered to sell the property to Rey for
Php5 million, which was the same price he got in
selling it to Larry. Abe certainly had the right to treat
Rey’s counter-offer of a lesser amount as a rejection
of his offer to sell at Php5 million. Thus, he was free
to find another buyer upon receipt of such counter-
offer.
b. Suppose Abe gave Rey an option to purchase
instead of a right of first refusal, will that make
any difference in your answer?
No, the answer will still be the same. An option must
be supported by a consideration separate and distinct
from the purchase price. In this case, there was no
separate consideration. Therefore, the option may be
withdrawn by Abe at anytime.
c. Is a right of first refusal governed by the Statute
of Frauds?
No. A right of first refusal is not among the contracts
which are required to be in writing under the Statute
of Frauds. The application of Article 1403, paragraph
2(e), of the Civil Code presupposes the existence of a
perfected contract of sale of real property. A right of
first refusal need not be written to be enforceable and
may be proved by oral evidence. (Rosencor
Development Corporation v. Inquing, 354 SCRA 119
[2001])
QUESTION NO. 51
Abe agrees to lease to Rey an office space for five
years at a fixed rent. Before Rey takes possession
of the premises, Rey learns of a much more
advantageous opportunity and established his
office elsewhere. To force Rey to perform, Abe
brings an action to enforce the agreement. What is
Rey’s strongest argument?
The Statute of Frauds is Rey’s strongest argument.
To be enforceable, the Statute of Frauds requires
certain agreements to be reduced into writing and
signed by the party to be charged, including
agreements creating an interest in land. Leases for
more than one year are therefore generally covered
by the Statute of Frauds. Since the agreement
between Abe and Rey is for a five-year lease, the
Statute of Frauds is Rey’s strongest defense to the
enforcement of the agreement. (Art. 1403, par. 2(e),
Civil Code)
QUESTION NO. 52
Abe is a police officer. He got married twice
during his lifetime; the first with Bea, and the
second, with Carol. Upon Abe’s death, Bea and
Carol separately filed claims for benefits
pertaining to Abe from various government
agencies. Because she received a smaller amount,
Carol brought an action for the return of at least
one-half of the amount which Bea received.
Two important facts came to light during the trial.
First, Carol had no knowledge of Abe’s previous
marriage and that she became aware of it only at
the funeral. Second, the prior marriage of Abe to
Bea was solemnized without a marriage license. Is
Carol entitled to half of Abe’s death benefits?
The marriage of Abe and Bea is void for lack of a
valid marriage license. The same is true with respect
to the marriage of Abe and Carol for lack of a judicial
decree declaring the first marriage a nullity. Given
that the marriages are void, the applicable property
regimes would be governed by Articles 147 and 148
of the Family Code.
Considering that the marriage of Abe and Carol is a
bigamous marriage, having been solemnized during
the subsistence of a previous marriage then presumed
to be valid, the application of Article 148 is in order.
The disputed death benefits clearly consists of
benefits from governmental agencies earned by Abe
as a police officer. Unless Carol presents proof to the
contrary, it could not be said that she contributed
money, property or industry in the acquisition of
these monetary benefits. Hence, they are not owned
in common by Carol and Abe, but owned by the
deceased (Abe) alone and Carol has no right
whatever to claim the same.
By intestate succession, the “death benefits” of Abe
shall pass to his legal heirs. Carol, not being the legal
wife of Abe, is not one of them.
QUESTION NO. 53
On May 1, Abe goes to Rey’s Clothing Store to
purchase a suit. Abe finds a suit he likes for
Php7,000 and buys it. The suit needs alteration so
Abe leaves the suit at the store. Abe is to pick up
the repaired suit at the store on May 10. Consider
the following separate sets of circumstances:
a. One of Rey’s major creditors obtains a
judgment on the debt which Rey owes and has the
court issue a writ of execution to collect on that
judgment all clothing and other apparel in Rey’s
possession. Discuss Abe’s right to the repaired suit
on which the judgment creditor has levied.
Abe is entitled to demand the return of the suit. Upon
payment of the price and its delivery to him, Abe
became the owner of the suit. (Art. 1477, Civil Code)
While Rey was in possession of the repaired suit at
the time of the levy, Rey was in possession not as an
owner but in another capacity. The repaired suit
therefore is already beyond the reach of Rey’s
judgment creditor at the time of the levy.
b. On May 9, through no fault of Rey, his clothing
store is completely burned, and all contents are a
total loss. Between Abe and Rey, who suffers the
loss of the suit destroyed by fire? Explain.
Abe bears the loss of the suit under the res perit
domino rule, he being its owner. The obligation of
Rey to return the suit after May 10 is deemed
extinguished by a fortuitous event. (Art. 1174, Civil
Code)
QUESTION NO. 54
Abe has a severe heart attack and is taken to the
hospital. He is not expected to live, and he knows
it. Because he is a bachelor without close relatives
nearby, Abe gives his car keys to Rey, telling Rey
that he is expected to die and that the car is Rey’s.
Abe survives the heart attack, but two months
later he dies from pneumonia. The administrator
of Abe’s estate wants Rey to return the car. Rey
refuses, claiming the car was given to him by Abe
as a gift. Discuss whether Rey will be required to
return the car to Abe’s estate.
Rey is required to return the car to Abe’s estate. The
donation is mortis causa, not inter vivos. It is a
mortis causa donation because Abe intended it to
take effect upon his death because of his heart attack.
That Abe died from a cause unrelated to the heart
attack does not detract from the fact that Abe’s death
is the operative cause that would have conveyed
ownership of the car to Rey. Since the donation was
not expressed in accordance with the formalities of
wills, the donation is void and Rey never acquired
ownership of the car.
QUESTION NO. 55
Tom’s driveway runs the entire length of his
property and connects to Jerry’s property. Jerry
has a right of way over Tom’s driveway, which is
obviously Jerry’s only access to the nearest public
road. The right of way is duly recorded in the
Registry of Property. Jerry later sells his property
to Larry. Is Larry entitled to use the driveway?
Yes, he being the new owner of the dominant estate.
The owner of the dominant estate cannot use the
easement except for the benefit of the immovable
originally contemplated. Since the law makes no
distinction whether the owner of the dominant estate
be the original owner at the time of the establishment
of the easement, as in the case of Jerry, or a mere
transferee of the dominant estate, as in the case of
Larry, then there is no need to distinguish, and this is
so because the easement is constituted for the benefit
of the dominant estate, regardless of its owner. (Art.
626, Civil Code)
QUESTION NO. 56
Romeo and Juliet are married. Shortly before
their wedding, Romeo donated to Juliet in a
notarized instrument a parcel of land on condition
that should Juliet die before Romeo and there be
no children, half of the property shall be given to
Juliet’s parents. Nine months after the wedding,
Juliet died without issue. Juliet’s parents now
claim the half share given to them in the deed of
donation. Will they succeed?
No. Insofar as the one-half share is concerned, it
cannot be a valid donation propter nuptias nor a
donation inter vivos nor a donation mortis causa.
The donation is not a donation propter nuptias
because the share was not given to one of the
spouses. The donation is not a donation inter vivos,
for there was no acceptance on the part of the parents.
The donation is not a donation mortis causa because
the deed of donation did not have the formalities of a
will, aside from the fact that the donor, Romeo, is
still alive.
QUESTION NO. 57
A friend called Abe by cellular phone from Tarlac
City to say that his car had suffered a tire blow
out and that he must have a new tire for his car to
get back home to Baguio City. Over the telephone,
Abe said to the owner of the car repair shop,
“Give him the tire and I will pay for it.” Is Abe’s
oral promise enforceable?
Yes. Abe’s promise was not one of guaranty, but one
in which he made himself directly and primarily
responsible for the amount of credit extended. Thus,
Abe made his own contract with the repair shop
owner, as he was not guaranteeing his friend’s
obligation. Abe’s oral promise is binding on him.
This is not a case of a special promise to answer for
the debt, default or miscarriage of another which the
law requisites to be in writing to be enforceable.
QUESTION NO. 58
Abe, a door-to-door salesman of vacuum cleaners,
demonstrated one of the latest model cleaners at
Mrs. Go’s house. Mrs. Go said that she was
interested in buying the cleaner but would have to
consult her husband before deciding. Abe offered
to leave the machine with Mrs. Go, saying, “I’ll
leave it here so that you can show it to your
husband. Here is my number. If I don’t hear from
you by the end of the month, I’ll send you a bill
for the machine.” She agreed. A month passed
and Abe’s bill arrived. Is Mrs. Go liable to pay the
vacuum cleaner?
Yes. By her silence, Mrs. Go accepted Abe’s offer
and would therefore be liable under the agreement
discussed with Abe. Both parties had agreed that
continued silence would be the manner of
acceptance. A contract may be perfected in any
manner sufficient to show a meeting of the offer and
the acceptance upon the thing and the cause which
are to constitute the contract, including conduct by
both parties manifesting such meeting of their minds.
(Art. 1319, Civil Code)
QUESTION NO. 59
Husband obtains a decree of legal separation
because of Wife’s infidelity. Is Wife entitled to
inherit from Husband?
It depends. By intestate succession, she cannot.
According to Article 63(4) of the Family Code, the
offending spouse is disqualified from inheriting from
the innocent spouse by intestate succession.
By testate succession, if the husband executed the
will prior to the decree of legal separation, the wife
cannot inherit from her husband. According to
Article 63(4) of the Family Code, provisions in favor
of the offending spouse made in a will is revoked by
operation of law. However, if the will was executed
subsequent to the decree of legal separation, the wife
will then be able to inherit from her husband. In such
a case, there is a tacit or implied pardon. (Art. 1033,
Civil Code by analogy)
QUESTION NO. 60
Abe and Bea were married in 1992. A few years
later, Bea left to work abroad. While on vacation
in the Philippines in 2003, she found out that her
husband had married their neighbor in 2001, and
that her husband had also filed with the Manila
RTC in 2002 a complaint for annulment of their
marriage under Article 36 of the Family Code.
Aggrieved by her husband’s actions, Bea
retaliated by filing with the Makati RTC a
complaint for bigamy.
While the bigamy case was pending, the Manila
RTC rendered a decision invalidating the
marriage of Abe and Bea on grounds that Bea was
psychologically incapacitated. This decision has
since become final. Should the Makati RTC still
convict Abe of bigamy?
Yes. When Abe contracted a second marriage in
2001, his marriage with Bea was still subsisting. The
finality of the decision declaring the nullity of his
first marriage with Abe came about only in 2007 or
about six years after his second marriage. It is evident
therefore that Abe committed the crime charged.
The contention that Abe cannot be charged with
bigamy in view of the declaration of nullity of his
first marriage is without merit. The Family Code
settled once and for all the conflicting jurisprudence
on the matter. A declaration of absolute nullity of a
marriage is now explicitly required either as a cause
of action or a ground for defense. Where the absolute
nullity of a previous marriage is sought to be invoked
for purposes of contracting a second marriage, the
sole basis acceptable in law for said projected
marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void.
(Teves v. People, G.R. No. 188775, August 24, 2011)
QUESTION NO. 61
Abe granted Rey a road right of way. Rey was at
that time using a cart and a carabao to transport
his products from his farm to the market. Ten
years later, Rey asked for a widening of the
easement as he had resorted to the use of a
jeepney to transport his products. Can Rey
successfully demand a wider easement?
Yes, because the width of an easement of right of
way shall be that which is sufficient for the needs of
the dominant estate and may, accordingly, be
changed from time to time. (Art. 651, Civil Code)
The needs of the dominant estate determine the width
of the passage. (Sta. Maria v. Court of Appeals, 285
SCRA 351 [1998])
QUESTION NO. 62
Abe, a widower, has two children (Basilio and
Crispin). Basilio in turn has two children (Dante
and Eric), and Crispin has one child (Fidel). Abe
died without a will with an estate of Php600,000.
a. At the time of Abe’s death, Basilio and Crispin
have long died. How should Abe’s estate be
distributed?
The grandchildren inherit by representation and the
following distribution would then take place: Dante
and Eric; Php150,000 each, taking Basilio’s share.
Fidel; Php300,000, taking Crispin’s share.
The above distribution is per stirpes in accordance
with the rule that grandchildren always inherit by
right of representation, whether they concur with
children of the decedent or not. (Arts. 981 and 982,
Civil Code)
b. Suppose Basilio and Crispin have renounced
their inheritance, how should Abe’s estate be
distributed?
The grandchildren would inherit in their own right.
Hence, Dante, Eric, and Fidel will each receive a
one-third share, or Php200,000.
The above distribution is per capita in accordance
with the rule that heirs who repudiate their share may
not be represented (Art. 977, Civil Code) Because
Basilio and Crispin have repudiated their shares, the
grandchildren will then inherit in their own right
being the relatives (in the descending line) next in
degree of the decedent.
QUESTION NO. 63
Mar charters a car from Avis-Rent-A-Car at the
NAIA. No sooner had he driven the car outside
the airport when, by his negligence, he collides
with a taxi owned and driven by Jong, causing
damage to Jong’s taxi. Jong files an action for
damages against Mar and Avis based on a quasi-
delict. Avis defends that the complaint fails to
state a cause of action against the company. Is
Avis correct?
Yes. Avis is not the employer of Mar so there is no
right of action against Avis under Article 2180 of the
Civil Code. Not being the employer, Avis has no duty
to supervise Mar. Neither has Avis the duty to
observe due diligence in the selection of its clients.
As lessee of the car, Mar alone is liable to Jong.
QUESTION NO. 64
Abe and Rey are business partners in buying,
developing, and selling real estate. Abe learns
through the firm staff that five hectares of land
will soon come on the market and that the staff
will recommend that the partnership purchase the
land. Abe purchases the property secretly in his
own name. If the partnership discovers these facts
and immediately brings suit, what will the court
say?
A court will create a constructive trust and declare
that Abe, as legal owner of the property, holds the
title to the property in trust for the partnership who,
in equity, is actually entitled to the property.
A constructive trust may be imposed when a party
holding legal title to property stands in a fiduciary
relation to another resulting in an equitable duty to
convey the property on the ground that he would be
unjustly enriched if he were permitted to retain it.
In the problem presented, Abe stood in a fiduciary
relation to the partnership and would be unjustly
enriched if allowed to retain the property. Because
Abe secretly purchased the property in his own name
and for his own benefit, Abe was under an equitable
duty to convey the property to the partnership.
(NOTE: A constructive trust arises by operation of
law as an equitable remedy that enables plaintiffs to
recover property (and sometimes damages) from
defendants who would otherwise be unjustly
enriched. In other words, when a transaction takes
place in which the person who takes the legal estate
in property cannot also enjoy the beneficial interest
without violating some established principle of
equity, the court will create a constructive trust. The
legal owner is declared to be a trustee for the parties
who, in equity, are actually entitled to the ownership
of the property.)
QUESTION NO. 65
Tom named his friend, Fidel, as one of his heirs on
condition that Fidel should not enter any
gambling casino here or abroad for one year after
Tom’s death. As an instituted heir, is Fidel
immediately entitled to receive the inheritance
upon Tom‘s death?
Yes, but Fidel must give a security to guarantee that
he would not enter any gambling casino for one
whole year upon Tom’s death. The security is called
caucion muciana. If Fidel enters any casino during
the prohibited period, he should return whatever he
may have received, together with its fruits and
interest. (Art. 879, Civil Code)
QUESTION NO. 66
Debtor owes Creditor Php400,000. The debt is the
subject of a lawsuit, and the court awards
Creditor a judgment of Php400,000. To satisfy the
judgment, the sheriff levies on Debtor’s family
home in Baguio valued at Php500,000. Debtor
opposes the levy on grounds that his family home
is exempt from execution. Judgment for whom?
Judgment for Creditor. Under Article 160 of the
Family Code, if judgment is rendered against the
owner of a family home, and the creditor has
reasonable ground to believe that the value of the
family home is in excess of Php300,00 (urban land)
or Php200,000 (rural land), the creditor may apply
for an order directing the sale of the family home.
Here, the value of Debtor’s family home is in excess
of Php300,000 so the same may be sold at public
auction to satisfy the judgment against him. The
foregoing rule applies even if the increase in value of
Debtor’s family home resulted from improvements
introduced by Debtor.
QUESTION NO. 67
Amy needs Php100,000, so Ben agrees to lend her
the money. To secure the loan, Amy delivers some
of her jewelry to Ben and signs a power of
attorney giving Ben the power, in case she fails to
repay the loan, to sell the jewelry as her agent for
the best price that can be obtained and to pay out
of the proceeds the unpaid amount of the loan,
giving any surplus to her. Having obtained the
money, Amy tells Ben that she revokes the power
to sell. Is Amy’s power to sell revoked?
No, because Amy’s agency is coupled with interest
and therefore irrevocable. Even if Amy dies, the
power is still not affected. An agency coupled with
an interest is a relationship created for the benefit of
the agent. The agent actually acquires a beneficial
interest in the subject matter of the agency. Under
these circumstances, it is not equitable to permit a
principal to terminate the agency at will. Hence, this
type of agency is irrevocable.
QUESTION NO. 68
Abe owns a residential land in Baguio City. In
need of funds for his wife’s mounting hospital
expenses, he sold the land to Ben last year. But the
deed of sale was not registered. This year, Abe
again sold the land to Cesar who registered the
sale and obtained a transfer certificate of title over
the property in his name. Who has a better right
over the land, Ben or Cesar?
It depends on whether Cesar is an innocent purchaser
for value. Under the Torrens System, a deed or
instrument operates only as a contract between the
parties and as evidence of authority to the Register of
Deeds to make the registration. It is the registration
of the instrument that operates to convey or affect the
land. (Sec. 51, PD No. 1529).
In cases of double sale of registered land, it is a well-
settled rule that the buyer who first registers the sale
in good faith acquires a better right to the land. (Art.
1544, Civil Code). Persons dealing with registered
property are not required to go beyond what appears
on the face of the certificate of title. (Orquiola v. CA
386, SCRA 301, [2002]; Domingo v. Races 401
SCRA 197, [2003]). Absent any showing that Cesar
knew about, or ought to have known the prior sale of
the land to Ben or that he acted in bad faith, and
being first to register the sale, Cesar acquired a good
and a clean title to the property as against Ben.
QUESTION NO. 69
Tony died with a will under which he left his
estate of Php2 Million to his common-law wife
(Roshelle) and nothing to his legitimate brother,
Ronald, and legitimate half-sister, Mimi.
a. Is the disposition of Tony's estate as set out in
his will a valid testamentary disposition?
Yes, because Tony has no compulsory heirs at the
time of his death. (Art. 887, New Civil Code)
Brothers and sisters are not compulsory heirs.
Therefore, he can give his entire estate to any person
who is not otherwise incapacitated to inherit from
him. A common-law wife is capacitated under the
law as Tony was not married to anyone.

b. Suppose Tony died intestate, will you have the
same answer?
No. I will give Ronald, a full-blood brother of Tony,
Php8 million from the estate, twice the share of
Mimi, the half-sister, who is entitled to receive Php4
million. Roshelle is not entitled to receive anything
from the estate because she is not an intestate heir of
Tony. (Art. 1006, Civil Code)
c. Suppose Tony died intestate and he was
survived by his brother Ronald, his half-sister,
Mimi, and his legitimate son Jayson, how will you
distribute his estate?
Jayson will inherit the entire estate of Php12 million
to the exclusion of Tony’s brother and half-sister.
This follows the principle of proximity under which
the relative nearer in degree exclude the more remote
ones and the principle of preference of lines under
which descendants exclude collateral relatives from
the inheritance.
QUESTION NO. 70
Seller, in reply to an inquiry from Buyer, sent a
letter dated December 8 stating terms upon which
he would sell 100 to 300 computer units of a
certain brand at a certain price. On December 16,
Buyer sent a letter to Seller ordering 90 computer
units on those terms. On December 18, Seller sent
a telegram to Buyer rejecting the order. The next
day Buyer sent Seller a telegram stating, “Please
enter an order for 150 computer units per your
letter of December 8.” Seller refused the order,
and Buyer sued for breach of contract. Judgment
for whom?
Judgment for Seller. Buyer’s telegram of December
16, referring to the terms stated in Seller’s letter of
December 8, varied the number of computer units,
and was therefore a counter-offer. A counter-offer is
a rejection of the original offer. On December 8, the
Seller declined to fulfill the Buyer’s order, thus the
negotiations between the two parties was closed. As a
result, the Buyer’s attempt to fall back on the Seller’s
original offer by the telegram of December 19,
therefore, created no rights against the Seller.
QUESTION NO. 71
The Family Court of Makati rendered a decision
declaring the marriage of Husband and Wife void
under Article 36 of the Family Code because of
their mutual psychological incapacity. In its
decision, the court directed the spouses to
partition the family dwelling and other properties
in equal shares.
Husband questions the decision regarding the
partition of the family dwelling. He claims that
under Articles 102 (absolute community) and 129
(conjugal partnership) of the Family Code, the
family dwelling should be adjudicated to the
spouse with whom majority of the children choose
to remain. Husband’s move is expected because all
the couple’s children have chosen to live with him.
Is Husband correct?
No. In a void marriage, regardless of the cause, the
property relations of the parties during their
cohabitation is governed by Article 147 of the Family
Code. Under this provision, a peculiar form of co-
ownership arises 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.
Article 147 of the Family Code presumes that
property, including the family dwelling, in the
absence of proof to the contrary, were acquired by
the parties through their joint efforts and will be
owned by them in equal shares. A party who did not
participate in the acquisition of property shall still be
considered as having contributed thereto jointly if
the party’s efforts considered mainly in the
maintenance of the family household.
The rules set up to govern the liquidation of either the
absolute community or the conjugal partnership, the
property regimes recognized for valid and voidable
marriages, in the latter case until the marriage is
annulled, are irrelevant to the liquidation of the co-
ownership that existed between Husband and Wife.
The first paragraph of Article 50 of the Family Code,
applying paragraphs (2), (3), (4) and (5) of Article
43, relates only to valid and voidable marriages, and
exceptionally, to a void marriage under Article 40 of
the Family Code, i.e., the declaration of nullity of a
subsequent marriage contracted by a spouse of a prior
void marriage before the latter is judiciary declared
void. (Valdez v. RTC of Quezon City, 260 SCRA 221
[1996])
QUESTION NO. 72
Distinguish between ordinary and presumptive
legitimes.
Ordinary legitime arises only when a person dies.
(Art. 777, Civil Code) The decedent may either be a
child, parent or spouse, ascendant or descendant. In a
presumptive legitime, the spouses whose marriage is
annulled or declared void are still alive. It is the
marriage itself which “died” or is terminated.
While in both kinds of legitimes the marriage is
terminated, the causes of termination are not the
same. In presumptive legitime, the cause is either the
annulment of the marriage or its nullification. In
ordinary legitime, the cause of termination is the
death of the decedent who is not necessarily a spouse.
The term legitime in the law on succession
presupposes the existence of a valid and effective
will; in presumptive legitime, no will is presupposed.
It applies without any relation to the existence or
non-existence of a valid and effective will of the
“spouses.”
QUESTION NO. 73
Employer hired Driver to operate a delivery van.
Before allowing Driver to operate the van,
Employer checked Driver’s prior job references,
required Driver to undergo a physical
examination by a doctor, and provided Driver
with extensive training in motor vehicle safety.
Medic, the doctor who examined Driver,
discovered that Driver had a sleep disorder that
caused Driver to spontaneously fall asleep and
that Driver had on several occasions fallen asleep
while driving. Driver pleaded with Medic not to
inform Employer of the sleep disorder. Medic
agreed, and omitted this information from the
physical examination form that he sent to
Employer. Medic also sent a letter to Employer
assuring Employer that Driver was “fit for
employment as a delivery van operator.”
Employer then provided Driver with a daily
delivery route and paid him a monthly salary.
While Driver was making deliveries for Employer,
the van left the road and struck Pedestrian, who
suffered severe injuries as a result. Pedestrian
filed a lawsuit for damages against Driver and
Employer.
a. Is Driver guilty of negligence?
Yes. By operating the delivery van, Driver owes a
duty to exercise reasonable care to others on the road.
Driver failed to conform to the required standard of
care when his van left the road and struck Pedestrian.
He knew that he was susceptible to falling asleep and
yet he took the risk that he would not cause harm to
others by operating the van.
b. Can Pedestrian prevail under the res ipsa
loquitor rule concerning Driver’s alleged
negligence?
Driver is guilty of negligence but not on the basis of
res ipsa loquitor. He was negligent because he
operated the van knowing that he was susceptible to
falling asleep while operating a vehicle.
The fact that Driver left the road and struck
Pedestrian is not a type of accident that happens only
if the Driver was negligent. There are many other
situations that could have caused the Driver to veer
off the road, including mechanical failure, defective
steering wheels, or emergency reaction. Thus,
Driver’s negligence is one of the many possible
causes. This factor makes it highly unlikely that res
ipsa loquitur could be used in such a situation.
c. What arguments will Pedestrian make in
support of his claim of negligence, what defenses
can reasonably be asserted, and who is likely to
prevail in a lawsuit filed by Pedestrian against
Employer?
Pedestrian will argue that an employer is vicariously
liable for the negligence of his employees committed
within the scope of the employment relationship.
Here, Driver was negligent as discussed. Employer
hired Driver to operate the van and is thus an
employer within the meaning of vicarious liability.
Driver’s negligence occurred within the scope of the
employment relationship because Driver was making
deliveries for Employer when the van left the road
and struck the Pedestrian.
Employer will argue that he is liable for negligence
only if it can be determined that he failed to exercise
the diligence required in the selection and supervision
of his employees. Here, Employer made reasonable
efforts to investigate Driver’s prior job references and
physical conditions. By exerting such efforts,
Employer would not be liable for negligent hiring or
supervision of Driver.
QUESTION NO. 74
Abe and Bea Go were married on May 15, 1996.
On February 7, 1997, Bea gave birth to Donald.
But before Donald’s birth, Abe left the conjugal
abode and lived with another woman. In
retaliation, Bea registered Donald as illegitimate
with an “unknown” father. The item regarding
the date and place of marriage of parents was left
blank.
In 1999, Abe and Bea reconciled. Abe then
discovered the following: (a) The last name of
Donald is Go, which is Bea’s maiden last name;
(2) His name as the father of Donald is not
entered, but marked “unknown,” and (3) There is
no information about the date and place of
marriage of the parents. May Abe seek a
correction of the entries in the certificate of birth
of his son, Donald, without judicial order under
RA 9048?
No. The errors are not clerical within the meaning of
RA 9048 because the correction involves the change
of status of Donald from “illegitimate” to
“legitimate.” Abe has to file the proper court action
to effect the correction of the erroneous entries in the
birth certificate of his son, Don.
QUESTION NO. 75
Abe, a widower, has two married children (Ben
and Carla). Carla has two children (Drew and
Eric), while Ben has no children. Abe dies, leaving
a will that gives all his property equally to his
children, Ben and Carla, and provides that should
a child predecease him, leaving grandchildren, the
grandchildren are to inherit equally with the
surviving child. Carla has predeceased Abe. Abe
dies with an estate valued at Php180,000.
a. Discuss the distribution of Abe’s estate if the
will is invalid.
Should Abe’s will be denied probate, his estate will
be distributed as in intestacy. Under Article 981 of
the Civil Code, should children of the deceased and
descendants of other children who are dead, survive,
the former shall inherit in their own right, and the
latter by right of representation. Consequently, Ben
shall inherit in his own right Php90,000, while the
grandchildren (Drew and Eric) shall each inherit
Php45,000 by right of representation.
b. Discuss the distribution of Abe’s estate if the
will is valid.
Ben and Carla were the heirs originally instituted by
Abe in his will. Such institution concerns only the
free disposal. Because Carla predeceased Abe, the
proviso that the free disposal shall be received
equally by Ben and the children of Carla (Drew and
Eric) is valid. Consequently, Ben and the children of
Carla are first given their legitimes as follows: Ben,
Php45,000 which he shall receive in his own right;
Drew and Eric shall each inherit Php22,500 by
representation. The free disposal of Php90,000 is then
divided equally among the three instituted heirs, Ben,
Drew and Eric. In sum, the heirs shall inherit as
follows:
Ben : 45,000 (in his own right)
30,000 (as voluntary heir)
Drew : 22,500 (by representation)
30,000 (as voluntary heir)
Eric : 22,500 (by representation)
30,000 (as voluntary heir)
QUESTION NO. 76
Abe owes Rey Php100,000 due on June 1. Abe has
been in a freak car accident, has already missed a
great deal of work, and consequently will not have
the money on June 1. Larry, Abe’s father, offers
to pay Rey Php25,000 in four equal installments if
Rey will excuse Abe from any further liability on
the debt. Rey accepts.
a. Is the transaction a novation?
Yes, the transaction is a novation because it involves
the substitution of Larry as new debtor in place of
Abe, the original debtor. This is true even if the
substitution is with the knowledge of Abe or without
his knowledge or against his will. (Art. 1290, Civil
Code)
b. Does the agreement between Rey and Larry
have to be in writing to be enforceable?
No. Larry’s promise was not one of guarantee, but
one in which he made himself directly and primarily
responsible for the amount of credit extended. Thus,
Larry made his own contract with Rey, as he was not
guaranteeing his son’s obligation. Put otherwise,
Larry’s oral promise is binding on him because this is
not a case of a special promise to answer for the debt,
default or miscarriage of another which the law
requisites to be in writing to be enforceable. (Art.
1403, par. 2(a))
QUESTION NO. 77
Mrs. Cruz leaves a painting worth Php50,000 in
her will to her grandson, Sam. Shortly before her
death, the painting is destroyed in a fire. Mrs.
Cruz does not change her will. What will Sam
receive?
Sam is not entitled to receive anything from his
grandmother’s estate. Under Article 957 of the Civil
Code, the legacy or devise is without effect if the
thing bequeathed is totally lost during the lifetime of
the testator, or after the testator’s death without the
heir’s fault.
QUESTION NO. 78
What are the rules for the liquidation of the
absolute community of property or conjugal
partnership of gains in case of death of a spouse?
The rules regarding the liquidation of the absolute
community or conjugal partnership are the same.
These are:
1. If a special proceeding for the settlement of estate
of deceased persons under the Rules of Court has
been instituted after the death of one spouse, the
absolute community or conjugal partnership shall
be liquidated in the said proceeding.
2. If no special proceeding for the settlement of
estate of the deceased spouse is instituted, the
surviving spouse shall liquidate the absolute
community or conjugal partnership either
judiciary or extra-judiciary within one year from
the death of the spouse.
3. If no liquidation is made within one year from the
death of the deceased spouse, any disposition or
encumbrance involving any community or
conjugal property of the terminated marriage shall
be void.
4. Should the surviving spouse contract a subsequent
marriage without liquidating the community
property or conjugal partnership, a mandatory
regime of complete separation of property shall
govern the property relations of the subsequent
marriage. This is to protect the heirs of the
deceased spouse. (Arts. 103 and 130, Family
Code)
QUESTION NO. 79
Abe has a wife and two sons, both legitimate. His
estate, including a house, a car, shares of stocks,
and savings in a bank account, is worth Php2.1
million. If Abe dies without a will, how shall his
estate be distributed?
Abe’s wife and two sons will each inherit
Php700,000. If a widow or widower and legitimate
children or descendants are left, the surviving spouse
has in the succession the same share as that of each of
the children. (Art. 996, Civil Code)
QUESTION NO. 80
Abe is married to Bea, while Chito is married to
Donna. Abe and Chito are brothers. Due to a
property dispute, Abe and Bea filed a possessory
action against Chito and Donna. Citing Article
151 of the Family Code, Chito and Donna moved
to dismiss the complaint for failure to state a cause
of action. Chito and Donna claim that the absence
of an allegation in the complaint that earnest
efforts toward a compromise between members of
the same family had been made and that it was
unsuccessful, renders the complaint fatally
defective. Should the court dismiss the complaint?
No. Article 151 of the Family Code does not apply
because it is not exclusively between or among
family members. The inclusion of Donna as
defendant and Bea as plaintiff takes the case out of
the ambit of Article 151 of the Family Code. The
phrase “members of the same family” refers to the
husband and wife, parents and children, ascendants
and descendants, and brothers and sisters, whether of
the full or half-blood. Here, Carol (Abe’s wife) and
Donna (Chito’s wife) are considered strangers to the
family of Abe and Chito for purposes of Article 151
of the Family Code. (Hontiveros v. RTC Iloilo City,
Br. 25, 309 SCRA 340)
QUESTION NO 80
Seller and Buyer were dealers in cattle. During an
extremely hot spell, Seller was worried over the
fact that he had too many cattle on the market.
Discovering this fact Buyer jokingly offered to buy
the cattle. After some dickering as to price, the
parties apparently came to an agreement. Buyer
later insisted that the whole transaction was a
joke. Seller believed that Buyer’s offer to buy the
cattle was made seriously. Seller sues for damages.
Who wins?
Seller wins. A contract results from an offer and the
acceptance thereof. In other words, every contract
must have mutual consent of the parties which is
manifested by a meeting of the offer and the
acceptance upon the thing and the cause which are to
constitute the contract. The offer must be certain and
the acceptance absolute. (Art. 1319, Civil Code) The
elements of offer and acceptance are present in the
instant problem. Undisclosed intentions of one party
are not part of the contract. If the law were otherwise,
a party might successfully escape his obligations on a
contract by stating that he was only joking.
QUESTION NO. 81
Brenda orally offers to sell a number of household
items to Daria. No item is worth more than
Php30.00, but the total price for the items is
Php550.00. Daria orally accepts the offer. Brenda
later receives an offer from another buyer to buy
all the items for Php750.00, which Brenda accepts.
Can Brenda argue that the contract with Daria is
not enforceable because it was made orally and
not in writing?
Yes, because the total price in the contract is
Php550.00. In sale of goods, the Statute of Frauds,
under Article 1403 No. 2(d) of the Civil Code,
requires that the contract be in writing to be
enforceable if the price isPhp500.00 or more. The
claim that the Statute of Frauds does not apply
because the unit price of each item sold is less than
Php500.00 is not tenable because what controls is not
the unit price but the total price of the goods sold.
QUESTION NO. 82
Husband and Wife own a property. Wife donated
her interest in the property to Husband five years
before her death; Husband devised his half of the
property to his brother, Abe. Husband and Wife
died simultaneously in a car accident. Husband is
survived by his brother, Abe, while Wife is
survived by her brother, Rey. What interests do
Abe and Rey hold on the property?
Abe inherits half of the property, while Rey inherits
the other half, both as intestate heirs of the deceased
couple. The couple died simultaneously, and
therefore, there shall be no transmission of
successional rights from one to the other. (Art. 43,
Civil Code). Because the couple died simultaneously,
they retained their respective half interests in the
property, which in turn devolve to their heirs. Wife’s
earlier donation of her half share to Husband is void
because it was made during the marriage and is not a
moderate gift under the circumstances. (Art. 87,
Family Code)
QUESTION NO. 83
Zirxthoussous Garcia filed a petition for change of
name with the Office of the Civil Registrar of
Manila under the administrative proceeding
recognized by RA 9048. He alleged that his first
name sounds ridiculous and is extremely difficult
to spell and pronounce. After complying with the
requirements of the law, the Civil Registrar
granted his petition and changed his first name
Zirxthoussous to "Jesus." His full name now
reads "Jesus Garcia."
Jesus Garcia moved to General Santos City to
work in a multi-national company. There, he fell
in love and married Grace Garcia. Grace
requested him to have his first name changed
because his new name, "Jesus Garcia" is also the
name of her father who abandoned her family and
became a notorious drug lord. She wanted to
forget him. In due time, Jesus filed another
petition with the Office of the Local Civil
Registrar to change his first name to "Roberto."
He claimed that the change is warranted because
it will eradicate all vestiges of the infamy of
Grace's father. Will the petition prosper?
No. Under the law, Jesus may only change his name
once. In addition, the petition for change of name
may be denied on the following grounds:
a. Jesus is neither ridiculous, nor tainted with
dishonor nor extremely difficult to write or
pronounce.
b. There is no confusion to be avoided or created with
the use of the registered first name or nickname of
the petitioner.
c. The petition involves the same entry in the same
document, which was previously corrected or
changed under RA 9048.
QUESTION NO. 84
Debtor owes Creditor Php100,000. Upon maturity
of the loan, Debtor fails to pay and so Creditor
sues him for collection sum of money. Debtor
answers the complaint and before actual hearing,
Creditor assigns Debtor’s promissory note to
Stranger for Php80,000. Stranger now demands
payment from Debtor. How much is Debtor
obliged to pay Stranger?
Debtor is liable for Php80,000 only, plus cost and
interest. Under Article 1634 of the Civil Code, when
a credit in litigation is sold, the debtor shall have a
right to extinguish it by reimbursing the assignee for
the price the latter paid therefor, the judicial costs
incurred by him, and the interest on the price from
the day on which the same was paid. In paying only
such amount, Debtor exercises his right of legal
redemption.
(NOTE: The right of redemption granted in Article
1634 of the Civil Code is proper only in case of sale
of the credit in litigation, and not to cases of barter,
donation, or other modes of acquisition.)
QUESTION NO. 85
Aragon is indebted to Benitez and Chua in the
amount of Php200,000. Upon maturity of the debt,
Aragon fails to pay so Benitez and Chua sue him
in a complaint for sum of money. Aragon answers
the complaint and before actual hearing, Benitez
assigns his right to the credit to Chua (presumably
½ or Php100,000) for only Php75,000. How much
is Aragon obliged to pay Chua?
Aragon is liable to pay Php200,000 to Chua because
the assignment was made to a co-owner. In other
words, Aragon cannot redeem the credit in litigation
sold by Benitez to Chua. Article 1635 of the Civil
Code enumerates the three instances when the debtor
cannot redeem a credit in litigation which is sold by
his creditor, one of them being an assignment or sale
to a co-owner.
QUESTION NO. 86
In 1976, under a homestead patent, Abe obtained
an original certificate of title over a big tract of
land. Upon Abe’s death in 1978, the land was
transferred by succession to his son Ben who
obtained a certificate of title in his name. In 1989,
Ben mortgaged the land to PNB as security for a
loan. Because Ben failed to pay, the bank extra-
judicially foreclosed the mortgage, purchased the
property at public auction, and secured a title in
its name in 1997.
Invoking Section 119 of the Public Land Act, Ben
tried to repurchase the property in 2002, but the
bank refused. The bank defends that there can no
longer be any right of repurchase because the
property was no longer covered by a free patent
but by a TCT, and that the right to repurchase
had already prescribed.
a. Is Ben still allowed to repurchase the property?
Yes. The plain intent of Section 119 of the Public
Land Act is to give the homesteader every chance to
preserve and keep in the family the land that the State
has gratuitously given him as a reward for his labor
in cleaning, developing, and cultivating it.
The fact that the land had been inherited by Ben and
a new title in his name is issued does not bring it
outside the purview of Section 119. In fact, the policy
behind the law is fulfilled because the land remains in
the family of the patentee.
b. Is Ben’s right to repurchase time-barred?
No. If the land is mortgaged to parties other than
rural banks, the mortgagor may redeem the property
within one (1) year from the registration of the
certificate of sale pursuant to Act No. 3135. If the
mortgagor fails to do so, he or his heirs may
repurchase the property within five (5) years from the
expiration of the redemption period also pursuant to
Section 119 of the Public Land Act. (Rural Bank of
Davao City, Inc. v. CA, 217 SCRA 554 [1993])
In extrajudicial foreclosures under Act 3135, the
debtor or his successors-in-interest may redeem the
property within one year. This redemption period
should be reckoned from the date of registration of
the certificate of sale. (Belisario v. Intermediate
Appellate Court, 165 SCRA 191 [1988]. The five-
year period fixed in Section 119 begins to run from
the expiration of the one-year redemption period.
Here, the certificate of sale in the name of the bank
was registered in 1997 and the one-year redemption
period expired in 1998. Reckoned from that day, Ben
had a five-year period, or until 2003, to exercise his
right to repurchase under Section 119 of the Public
Land Act. Consequently, the complaint filed in 2002
was not time-barred.
QUESTION NO. 87
Tessie heard her neighbors talking about her son,
Abe, a minor and a polio victim. The neighbours
said that Tessie’s son is a cripple who has no
future in life. Does Tessie have a remedy against
her neighbors?
Tessie is well within her right to institute a civil
action for damages against her neighbours because of
their vexing or humiliating comments about her son’s
physical condition. Article 26 of the Civil Code
clearly provides that every person shall respect the
dignity, personality, privacy, and peace of mind of
his neighbours. Talking about Tessie’s crippled son is
a clear sign of disrespect warranting a cause of action
for damages.
QUESTION NO. 88
Due to a sudden burst of lightning, Abe’s carabao
which was tied to a tree in his farm scampered to
a nearby field. The crops on the field which were
to be harvested in a few days were totally
destroyed. Should Abe be held liable for the
damages to the crops?
No. Article 1174 of the Civil Code expressly
provides that no person shall be responsible for those
events which could not be foreseen, or which though
foreseen, were inevitable. Here, the incident under
which Abe’s carabao scampered to the nearby field
because of a sudden burst of lightning. is an
occurrence which could not have been foreseen by
Abe.
QUESTION NO. 89
Debtor owes Creditor the sum of Php20,000 on a
personal debt. Trudy, a third person, promises
Debtor that he would pay Creditor the full debt if
Debtor will give Trudy's children dance lessons.
Debtor faithfully provides dance lessons regularly
over an extended period. Can Creditor sue Trudy
for the payment of the debt?
Yes, because Creditor is an intended beneficiary of
the agreement between Debtor and Trudy. Under
Article 1311 of the Civil Code, if a contract should
contain some stipulation in favour of a third person,
he may demand its fulfilment provided he
communicated his acceptance top the obligor before
its revocation. A mere incidental benefit or interest of
a person is not sufficient. The contracting parties
must have clearly and deliberately conferred a favour
upon a third person. Such a stipulation obtains in this
case.
QUESTION NO. 90
A seller shipped goods to a buyer by common
carrier, using a shipment contract. When the
carrier arrived at the buyer's location, the buyer
refused to accept the goods unless the driver
unloaded them inside the buyer's warehouse. The
driver refused and the goods were subsequently
damaged. Who bears the risk of loss?
The buyer bears the risk of loss, since this was a
shipment contract and the seller had completed the
performance obligations. Where actual delivery has
been delayed through the fault of either the buyer or
seller the goods are at the risk of the party in fault.
Since the buyer himself delayed the actual delivery of
the goods, he necessarily bears the loss of the goods.
(Art. 1504(2), Civil Code)
QUESTION NO. 91
Abe works for Yellow Cab delivering pizzas in a
motorcycle to customers across the city. One day,
in his haste to meet the “30 minutes or free pizza”
delivery standard, he causes an accident in which
Rey’s car is damaged. Against whom can Rey file
a civil action for damages?
Rey can file a civil action either against Abe for
breaching his duty and causing Rey harm, or against
Yellow Cab for being vicariously liable for Abe’s
actions, or against both. (Arts. 2176 & 2180, Civil
Code)
QUESTION NO. 92
Abe and Ana are engaged to be married. A month
before their wedding, Ana was forced to marry
Rey. Despite the marriage, however, Abe and Ana
continued their amorous relationship thru text
messaging and social networking expressing their
love for each other. Rey consults you on whether
these acts of Abe and Ana would constitute an
actionable wrong. Advise Rey.
I would advise Rey that he can bring an action
against Abe for damages for meddling with or
disturbing Rey’s married relations with Ana. This is
an actionable wrong recognized under Article 27 (2)
of the Civil Code.
QUESTION NO. 93
Tito dies with a will leaving his entire estate of
Php6 million to his live-in partner, Marie. Tito is
survived by his brother, Sonny, and his legitimate
half-sister, Ana.
a. Is the disposition in Tito’s will valid?
Yes. Tito’s testamentary disposition of his entire
estate to his common-law wife is in accordance with
the law on succession. Tito has no compulsory heirs,
who can inherit from him. (Art. 887, Civil Code)
Under the law, brothers and sisters are not
compulsory heirs. Accordingly, Tito can bequeath his
entire estate to anyone who is not otherwise
incapacitated to inherit from him. A common-law
wife is not incapacitated under the law, as Tito is not
married to anyone.
b. Suppose Tito dies intestate, how shall his estate
be distributed?
Assuming that Tito’s entire estate of Php6 million is
his net hereditary estate, Sonny is entitled to receive
Php4 million which is twice the intestate share of
Ana, a half-sister, who is entitled to inherit Php2
million. Marie is not entitled to inherit anything
because she is not a legal heir of Tito. (Art. 1006,
Civil Code)
QUESTION NO. 94
Abe owns a farm land with no access to a public
road. He had been passing through Rey’s land
with Rey’s acquiescence for over 20 years. Abe
recently subdivided his property into ten
residential lots and sold them to different persons.
Rey immediately blocked the pathway and refused
to let Abe’s buyers pass through his land. Did Abe
acquire an easement of right of way over Rey’s
land?
No. An easement of right of way is discontinuous in
nature - it is exercised only if man actually passes
over somebody’s land. Under Article 622 of the Civil
Code, discontinuous easements, whether apparent or
non-apparent, may only be acquired by title.
QUESTION NO. 95
To secure a loan from a bank, Abe assigned his
leasehold rights over a stall at the public market
in favour of the bank. The assignment provides
that in case of default in the payment of the loan,
the bank shall have the right to sell Abe’s rights
over the market stall as his attorney-in-fact, and
to apply the proceeds to the payment of the loan.
a. Is the assignment a cession or a mortgage?
The deed of assignment is a mortgage, not a cession
of leasehold rights. A cession would have transferred
ownership to the bank. The grant of authority to the
bank to sell the leasehold rights in case of default is
proof that no such ownership was transferred and that
a mere encumbrance was constituted. There would
have been no need for such authority had the deed of
assignment been a true cession.
b. If the assignment is a mortgage, is the
stipulation authorizing the bank to sell the
leasehold rights in case of default a pactum
commissorium?
No, it is not. The stipulation is pactum commissorium
only when default in the payment of the loan
automatically vests ownership of the encumbered
property in the bank. Here, the bank does not
automatically become the owner of the property upon
default of the mortgagor. (Art. 2088, Civil Code) The
bank has to sell the property and apply the proceeds
to the loan.
QUESTION NO. 96
X, Y and Z are co-owners in equal shares of a
residential house and lot. During the co-
ownership, the co-owners performed the following
acts on the co-owned property: a) X caused the
repair of the foundation of the house, then titling
to one side, to prevent the house from collapsing;
b) Y and Z mortgaged the house and lot to secure
a loan; c) Y built a concrete perimeter fence on
the lot; d) Z built a beautiful grotto in the garden;
and e) X and Z sold the property to B for a good
price.
A. Is the decision of X in repairing the foundation
of the house binding on Y and Z? May X require
Y and Z to contribute their 2/3 share of the
expense?
Yes. Under the law, each co-owner has the right to
compel the other co-owners to contribute to the
expense of preservation of the thing (house) owned in
common in proportion to their respective interests in
the co-ownership. (Arts. 485 and 488, Civil Code)
The expense incurred by X in repairing the
foundation of the house is decidedly an expense to
preserve the house by preventing its collapse.
b. What is the legal effect of the mortgage
executed by Y and Z?
The mortgage does not bind X and shall be deemed
to cover only the respective rights and interests of Y
and Z in the house and lot. The mortgage shall be
limited to the portion which may later be allotted to
Y and Z in the partition of the property owned in
common. (Art. 493, Civil Code)
c. Is the decision of Y in building a perimeter
concrete fence binding on X and Z? May Y
require X and Z to contribute their 2/3 share of
the expense?
Y’s decision in building the perimeter fence is not
binding upon X and Z. Expenses to improve the thing
owned in common must be decided upon by a
majority of the co-owners who represent the
controlling interest. (Arts. 489 and 492, Civil Code)
Since Y does not constitute a majority with a
controlling interest in the co-ownership, his decision
does not bind the other co-owners.
d. Is the decision of Z in building a grotto binding
on X and Y? May Z require X and Y to contribute
their 2/3 share of the expense?
Z’s decision in building a grotto is not binding upon
X and Y. Expenses to embellish the thing owned in
common must be decided upon by a majority of the
co-owners who represent the controlling interest.
(Arts. 489 and 492, Civil Code) Since Z does not
constitute a majority with a controlling interest in the
co-ownership, his decision does not bind the other
co-owners.
e. What is the effect of the sale by X and Z?
The sale to B does not bind the 1/3 share of Y and
covers only the 2/3 share of X and Z in the land. (Art.
493, Civil Code) Moreover, Y has the right to redeem
the 2/3 share sold to B by X and Z considering that B
is a third person to whom the ideal shares of the co-
owners were onerously alienated. (Art. 1620, Civil
Code)
QUESTION NO. 97
Seller sells to Buyer his house and lot for Php1
million payable in five equal annual instalments.
The sale is registered and title is issued to Buyer.
Buyer later failed to pay the last three instalments
and Seller files an action for collection of sum of
money, damages and attorney’s fees. Seller
immediately proceeds to the Registry of Deeds for
annotation of a notice lis pendens on Buyer's
certificate of title. Is the notice lis pendens proper?
The notice lis pendens is not proper because Seller’s
action against Buyer is only for collection of sum of
money, damages, and attorney's fees. Annotation of a
notice lis pendens is proper only in cases involving
the recovery of possession of real property, quieting
of title or removal of a cloud thereon, or partition or
any other proceeding affecting title to the land or for
the use or occupation thereof. The action filed by
Seller does not fall on anyone of these.
QUESTION NO. 98
Abe lost Php100,000 in a card game, but he had
no more cash to pay Rey, the winner. When the
card game ended, Abe still owed Rey Php30,000
which Abe promised to pay in two weeks. When
Abe still failed to pay after three months, Rey filed
a suit to collect.
a. Will the collection suit prosper?
The collection suit will not prosper. Under Article
2014 of the Civil Code, no action can be maintained
by the winner for the collection of what he has won
in a game of chance.
b. Could Tessie institute an action to recover the
amount which her husband lost?
If the money paid by Abe to Rey were conjugal or
community property, the wife could sue to recover it
pursuant to Article 117(7) of the Family Code which
expressly provides that losses in gambling are borne
exclusively by the loser-spouse. Conjugal or
community funds may not be used to pay for such
losses. And if the money were the exclusive property
of Abe, the wife may also sue to recover it under
Article 2016 of the Civil Code if she and the family
needed the money for support.
QUESTION NO. 99
Abe sold his car to Ben who issued a post-dated
check. Before the due date of the check, Ben sold
the car to Dave, an innocent purchaser for value.
The check issued by Ben was later dishonored
because Ben had already closed his checking
account when he issued the check. Abe sued to
recover the car from Dave on grounds that he had
been unlawfully deprived of the car by Ben’s
deception. Will the suit prosper?
The suit will not prosper because Abe was not
unlawfully deprived of the car although he was
unlawfully deprived of the price. The perfection of
the sale and the delivery of the car was sufficient to
allow Ben to acquire ownership of the car, which he
can lawfully transfer to Dave. Article 559 of the Civil
Code applies only to a person who is in possession in
good faith of the property, and not to the owner
thereof. Here, Ben was the owner, and, hence, Dave
acquired the title to the car. Non-payment of the price
in a contract of sale does not render ineffective the
obligation to deliver. The obligation to deliver a thing
is different from the obligation to pay its price.
QUESTION NO. 100
In 1980, Abe leased to Rey a piece of land for a
period of three years with an option to purchase
the property during the period of the lease for the
price of Php500,000. After the expiration of the
three-year lease period, Abe allowed Rey to
remain in the leased premises on a monthly basis
at the same rental rate. In 1984, Rey tendered the
amount of Php500,000.00 to Abe and demanded
that Abe execute a deed of absolute sale of the
land in his favor. Abe refused on the ground that
Rey no longer had an option to buy the property.
If Rey files an action for specific performance
against Abe, who will prevail?
Abe will prevail. The implied renewal of the lease on
a month-to-month basis did not have the effect of
extending the life of the option to purchase which
expired at the end of the original lease period. Abe is
therefore correct in refusing to sell on the ground that
the option had expired.
QUESTION NO. 101
As a friend, Abe loaned his passenger jeepney to
Rey to allow Rey to bring his wife from Baguio
City to NAIA for his wife’s travel to Hongkong.
On the way back to Baguio, people stopped the
passenger jeepney. Rey stopped for them and
allowed them to ride on board, accepting
payments as if they were ordinary passengers of
jeepneys plying their route.
When Rey was cruising at moderate speed along
the highway in Sison, Pangasinan, a wayward
vehicle coming from the opposite direction hit the
jeepney. The jeepney was wrecked.
a. What kind of agreement did Abe and Rey enter
into with respect to the use of the passenger
jeepney?
The contract is a commodatum.(Art. 1933. Civil
Code) Commodatum is a contract by which one of
the parties (bailor) delivers to another (bailee)
something not consumable so that the latter may use
it for a certain time and return it.
b. Is Rey obliged to pay Abe for the use of the
passenger jeepney?
No, Rey is not obliged to pay Abe for the use of the
passenger ieepney because commodatum is
essentially gratuitous. (Art. 1933. Civil Code)
c. Is Rey liable to Abe for the loss of the jeepney?
Yes, because Rey devoted the thing to a purpose
different from that for which it has been loaned (Art.
1942, par. 2, Civil Code)
QUESTION NO. 102
Abe owns a mango plantation which he can no
longer properly manage due to a lingering illness.
Since Abe is indebted to Rey in the amount of
P500,000, he asks Rey to manage the plantation
and apply the harvest to the payment of his
obligation, until his debt has been fully paid. Rey
agrees.
a. What agreement did Abe and Rey enter into?
Abe and Rey had entered into an accessory contract
of antichresis. Under Article 2132 of the Civil Code,
by a contract of antichresis the creditor acquires the
right to receive the fruits of an immovable of his
debtor, with the obligation to apply them to the
payment of the interest, and thereafter to the principal
of his credit.
b. What obligations are imposed by law on Rey as
a consequence of his agreement with Abe?
Rey is obliged to pay taxes and charges upon the land
and bear the necessary expenses for preservation and
repair which he may deduct from the fruits. (Art.
2135, Civil Code)
c. Does the law require any specific form for the
validity of the contract?
As to perfection, antichresis is a formal or solemn
contract. The amount of the principal and interest
must be specified in writing, otherwise the antichresis
is void. (Art. 2134, Civil Code)
d. May Abe reacquire the plantation before
payment of his indebtedness?
No. Article 2136 of the Civil Code specifically
provides that the debtor cannot reacquire the
enjoyment of the immovable without first having
totally paid what he owes the creditor. However, it is
potestative on the part of the creditor to do so in order
to exempt him from his obligation under Article 2135
of the Civil Code. The debtor cannot reacquire the
enjoyment, unless Rey compels Abe to enter again
the enjoyment of the property.
QUESTION NO. 103
On January 5, Debtor obtains a loan of Php1
million from Creditor. The promissory note does
not stipulate any payment of interest. The note is
due on December 31. Before the due date of the
loan, Debtor and Creditor become political
enemies. Out of spite, Debtor deliberately
defaulted in paying the note, forcing Creditor to
bring suit.
a. How much can Creditor recover from Debtor?
Creditor can recover from Debtor Php1 million,
together with interest at the legal rate of 12% from
the date of judicial or extrajudicial demand. Because
Debtor acted in bad faith, he is also liable to pay all
damages which may be reasonably attributed to the
non-performance of the obligation. (Art. 2201(2).
Civil Code)
b. Can Creditor ask for moral damages?
Yes. Under Article 2220 of the Civil Code, moral
damages are recoverable in case of breach of contract
where the defendant acted fraudulently or in bad
faith. Here, Debtor acted in bad faith because he
refused to pay the value of the note to spite Creditor.
c. Can Creditor ask for nominal damages?
No, he cannot. Nominal damages are not recoverable
in this case because Creditor is already indemnified
of his losses with the award of actual and
compensatory damages. Nominal damages are
adjudicated only in order that a right of the plaintiff,
which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss
suffered by him. (Art. 2231. Civil Code)
d. Can Creditor ask for temperate damages?
Creditor may ask for, but would most likely not be
awarded, temperate damages considering that his
actual damages may already be compensated upon
proof thereof with the promissory note. Temperate
damages may be awarded only when the court finds
that some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be proved
with certainty. (Art. 2224, Civil Code)
e. Can Creditor ask for attorney’s fees?
Yes, because Debtor's act or omission has compelled
Creditor to sue to protect his interests. Furthermore.
attorneys' fees may be awarded by the court when it
is just and equitable. (Art. 2208, Civil Code)
QUESTION NO.104
Abe, a widower, has three legitimate children
(Allan, Ben, and Charlie). He executed a will
instituting as his heirs to his estate of Php120,000
his two children, Allan and Ben, and his friend,
Fidel. Upon his death, how should Abe's estate be
divided?
The institution of Allan, Ben and Fidel to the entire
estate results in the preterition of Charlie, a
compulsory heir of Abe in the direct line. This
preterition of Charlie annuls the institution of Allan,
Ben and Fidel as Abe’s heirs. Intestacy results. Allan,
Ben and Charlie will each get Php40,000. Fidel gets
nothing.
QUESTION NO. 105
In the preceding question, suppose Abe instituted
his two children, Allan and Ben, as his heirsl, but
he gave a legacy of Php30,000 to his friend, Fidel.
How should Abe’s estate be divided upon his
death?
Assuming that Charlie was preterited, the institution
of Allan and Ben is annulled, but the legacy of
Php30,000 to Fidel shall be respected for not being
inofficious. Therefore, the remainder of Php90.000
will be divided equally among Allan, Ben, and
Charlie.
QUESTION NO. 106
Rey and Abe are co-owners of a parcel of land.
Rey recently discovered that Abe had sold his
(Abe’s) share to Larry on January 1, 2015. The
following year, Rey offered to redeem Abe’s share
from Larry, but Larry replied that Rey's right to
redeem had already prescribed. Is Larry correct?
Larry is not correct. Rey can still enforce his right of
legal redemption as a co-owner. Article 1623 of the
Civil Code gives a co-owner 30 days from written
notice of the sale by the vendor to exercise his right
of legal redemption. Here, the 30-day period for the
exercise by Rey of his right of redemption had not
even begun to run because no notice in writing of the
sale appears to have been given to him by Abe.
QUESTION NO. 107
While sojourning in New York, A and B, both
Filipinos, exchanged marital vows through the
internet. Assuming such a marriage is valid in
New York, is the marriage valid here?
Yes, the marriage is also valid here. The case does
not appear to fall under any of the exceptions
mentioned in paragraph 1 of Article 26 of the Family
Code. Such being the case, the general rule on lex
loci celebrationis applies, that is, valid there, valid
here.
QUESTION NO. 108
A and B are Filipino overseas workers in Libya.
They fell in love and decided to get married in
accordance with Libyan law. On the day of the
wedding, A fell ill and could not make it to the
ceremony. Upon advice of his Libyan lawyer, he
requested his best man to stand as proxy during
the wedding. The marriage was celebrated in
accordance with Libyan law and valid there as
such. Is the marriage valid in the Philippines?
Yes. Under Article 26 of the Family Code, a marriage
valid where celebrated is valid in the Philippines. To
this general rule, the law enumerates exceptions, but
a marriage by proxy is not one of those enumerated.
Hence, the marriage is valid. Expressio unius est
exclusio alterius.
QUESTION NO. 109
H, a Filipino, marries W, an American, in New
York. At the time of the marriage, H was
psychologically incapacitated to enter into
marriage, although the incapacity manifested
itself five years after the wedding. Assuming that
the marriage is valid in New York, is it also valid
here?
No. The rule is: “valid there, valid here,” except
those prohibited under Arts. 35 (1), (4), (5) and (6),
36, 37 and 38 of the Family Code. The marriage is
void under Article 26 of the Family Code. The
exception applies.
QUESTION NO. 110
Two Filipino second cousins got married in Japan
where such a marriage is void. Is the marriage
valid here?
No. The rule is: “valid there, valid here.” Hence,
“void there, void here” also. This notwithstanding the
fact that had the marriage been solemnized here, it
would have been perfectly valid.
QUESTION NO. 111
H, a Filipino, marries W, his French girlfriend, in
Paris. At the time of the marriage, H is
psychologically incapacitated to enter into
marriage under Philippine law. Under French
law, the marriage is voidable. Is the marriage also
voidable in the Philippines?
No. The marriage is void. The rule is: “valid there,
valid here”; “void there, void here”; “voidable there,
voidable here.” However, the case falls under one of
the exceptions, Article 36 of the Family Code.
QUESTION NO. 112
Abe built in good faith a house on Ben’s land. As
owner of the land, Ben opted to appropriate the
house and bound himself to pay the proper
indemnities.
a. Before the indemnities are given, may the
builder (Abe) retain the house?
Yes, Abe, the builder, is entitled to retain the house
till he is paid the full indemnities since he is a builder
in good faith. (Art. 448, Civil Code)
b. Is Abe entitled to the rents that accrue in the
meantime in case the building is leased to
another?
No, because his possession is no longer that of a
possessor in good faith. If Abe receives the rents, he
must deduct them from whatever indemnity is due
him.
c. Is Abe legally entitled to the fruits that will
accrue during the time he retains the premises?
No, for again we may say that he is no longer a
possessor in good faith.
d. Is Ben entitled to collect rent from Abe while
the latter retains the house?
No, otherwise the right of retention till indemnity is
given would be rendered nugatory.
e. If Ben elects to compel Abe to pay the value of
the land (assuming that its value is not
considerably greater), is Abe, the builder, entitled
to the right of retention?
No, because he is the one required to pay. The right
of retention applies only when landowner
appropriates the building.
QUESTION NO. 113
Abe purchased a property adjacent to that of Ben.
Abe later discovered after a relocation survey that
a 30-square meter portion of his lot is occupied by
Ben’s house. Despite repeated demands, Ben
refused to vacate the encroached portion. He
claims that under Article 448 of the Civil Code, he
has the pre-emptive right to purchase the portion
encroached upon. Is Ben correct?
No. Article 448 of the Civil Code is unequivocal that
the option to sell the land on which another builds,
plants or sows in good faith, belongs to the
landowner. This advantage in Article 448 of the Civil
Code is accorded the landowner because “his right is
older, and by the principle of accession, he is entitled
to the ownership of the accessory thing.” (Benitez v.
C, 266 SCRA 242)
QUESTION NO. 114
A contract to sell states that “title will be
transferred by Seller to Buyer only upon complete
payment of the purchase price.” When Buyer
failed to pay, Seller filed for rescission. Is the
action proper?
No. In a contract to sell, the seller retains title to the
thing sold until the buyer fully pays the purchase
price. The full payment is a positive suspensive
condition, the non-fulfillment of which is not a
breach of contract but merely an event that prevents
the seller from conveying title to the purchaser. The
non-payment of the purchase price renders the
contract to sell ineffective and without force and
effect. (Ayala Life v. Burton Development Corp., 479
SCRA 462).  Since the obligation of seller did not
arise because of the failure of buyer to fully pay the
purchase price, Article 1191 of the Civil Code (which
provides for rescission) would have no application.
QUESTION NO. 115
Seller agreed to sell to Buyer a parcel of land for
Php100,000. Buyer was given up to 30 days to
raise the necessary funds. Buyer paid nothing for
the privilege of making up his mind. Before the
lapse of the 30-day period, Seller backed out of the
agreement. Buyer now sues to compel Seller to
sell. Is Seller required to sell the property to
Buyer?
No, for this was merely a unilateral promise on the
part of Seller to sell, without a corresponding promise
on the part of Buyer to buy. Seller’s promise is not
binding on him since there was no consideration
distinct from the price. Hence, even if Seller’s
promise had already been accepted by the would-be
buyer, Seller could still legally withdraw from the
agreement.
QUESTION NO. 116
X, the owner of a certain jewelry, entrusts them to
Y for sale or return upon a specified period. Y
sells the jewelry to Z, but retains the price. Can X
obtain possession of the jewelry from Z?
It depends. If the phrase “on sale or return” refers to a
true case of sale from X to Y, it is clear that delivery
to Y transferred ownership to him, and the
subsequent sale and delivery of the jewelry by Y to Z
also transferred ownership to Z. Hence, X cannot
obtain possession of the jewelry from Z. X’s right
would be to proceed against Y as a buyer who has not
paid.
If, on the other hand, the phrase “for sale or return”
merely meant that X was constituting Y as his agent
with authority to sell the jewelry, X would still have
no right to recover the jewelry from Z (for after all, Z
had already paid for it and therefore, there can
possibly be no rescission for non-payment of the
price). But this time, X’s remedy would be to proceed
against Y not as a buyer but as an agent who has
failed to render an account of his transaction and who
has failed to deliver to the principal whatever he may
have received by virtue of the agency. (Art. 1891,
Civil Code)
QUESTION NO. 117
Seller sells to Buyer a house and lot for
Php500,000 payable within 60 days after the
execution of the deed of sale. It is expressly agreed
in the deed that the sale would ipso facto be of no
effect upon Buyer’s failure to pay as agreed.
Buyer fails to pay on maturity, so Seller sues to
declare the contract of no force and effect. If
Buyer tenders payment before the filing of the
action (but after the stipulated date of payment),
would the action still prosper?
The action would not prosper. According to the law,
“in the sale of immovable property, even though it
may have been stipulated that upon failure to pay the
price at the time agreed upon the rescission of the
contract shall of right take place, the vendee may pay,
even after the expiration of the period, so long as no
demand for the rescission of the contract has been
made upon him either judicially or by notarial act.
After the demand, the court may not grant him a new
term. (Art. 1592, Civil Code)
QUESTION NO. 118
Anton borrowed Ben’s truck. During a fire which
broke out in Anton’s garage, he had time to save
only one vehicle, and he saved his car instead of
the truck. Is Anton liable for the loss of Ben’s
truck?
Yes. The bailee in commodatum is liable for the loss
of the thing loaned, even if it should be through a
fortuitous event if, being able to save either the thing
borrowed or his own thing, he chose to save the
latter. (Art. 1492, Civil Code)
QUESTION NO. 119
A, B, and C are co-owners of a parcel of land.
Unknown to his co-owners, A sold a specific
portion of the co-owned property to D, who
immediately takes possession and builds a house
thereon. Per deed of sale executed by A, the
portion sold to D is to be taken from the undivided
share of A in the co-owned property. Several
years later, D sold his portion to E.
Meanwhile, A, B and C sold the entire co-owned
property to F who caused the reconstitution of the
certificate of title of his sellers, by which title the
entire property was transferred to him. Is the sale
by a co-owner of a specific portion of a community
property valid?
Yes. The mere fact that A transferred a definite
portion of the co-owned property by metes and
bounds to D does not per se render the sale a nullity.
There can be no doubt that the transaction entered
into by A and D could be legally recognized in its
entirely since the object of the sale did not even
exceed the ideal share held by A in the co-ownership.
A’s right to sell a part of his undivided interest in the
co-owned property is absolute in accordance with the
well-settled doctrine that a co-owner has full
ownership of his pro indiviso share and has the right
to alienate, assign and mortgage it, and substitute
another person in its enjoyment. (Del Campo v. CA,
351 SCRA 1 (2001)
QUESTION NO. 120
A engaged B to build a residential condominium
building on his titled property. To finance the
construction, A obtained a loan from C, secured
by a mortgage on the condominium project. When
the loan was not paid. A entered into an
agreement with C in whose favor he conveyed all
his rights and interests in the realty project. In the
same agreement, both A and C recognized B’s
contractor’s lien by virtue of which C agreed to
assign to him three bedroom units to come from
the condominium project. C later entered into a
lease agreement with AMA Computer School
which converted the condominium building into a
computer school.
Because the conversion included the bedroom
units assigned to him, B brought an action against
C for delivery of his condominium certificate of
title. C defends on the ground that B is not a
condominium buyer within the meaning of the
Condominium Law. Decide.
Yes. The term “buyer” under the Condominium Law
is not limited to those who enter into contract of sale.
Its concept is broad enough to include those who
“acquire for valuable consideration a condominium
unit.” In the instant case, B is a buyer within the
contemplation of the law (PD 957). He acquired the
three condominium units as they were assigned to
him by A in payment of his indebtedness as
contractor’s fees. Clearly, this acquisition of the units
was for a valuable consideration.
QUESTION NO. 121
A and B are neighbors. On his building’s wall, A
opened a window beneath the ceiling joists to
admit light in 1995. Even after 10 years, B may
still obstruct the light by constructing on his own
lot a building higher than A’s unless A makes a
notarial prohibition prohibiting B from making
the construction. If in 2003 A makes the
prohibition, may B still make the obstruction in
2007?
Yes, because it is only in 2013 (ten years after the
notarial prohibition) when A may be said to have
acquired the negative easement of light and view.
After 2013, B may no longer obstruct.
QUESTION NO. 122
About 15 years ago, A constructed a house on her
lot adjoining the lot owned by B. He provided it
with windows overlooking B’s lot half a meter
away from the boundary line. A month ago, B
brought an action against A for the closure of the
windows on the allegation that they violate the
law on distances. Has A acquired an easement of
light of view by prescription of ten years?
No. In the first place, there was no formal prohibition
under which A prohibited B from obstructing his
light and view. In the second place, A did not observe
the legal requirement that there should be a distance
of at least two meters between the windows and B’s
lot, since the view is direct. According to law, non-
observance of this distance does not give rise to
prescription.
QUESTION NO. 123
H and W are husband and wife. Believing that his
wife was sterile, H donated to C in 1990 a parcel
of land valued at Php40,000. In 1998, W gave
birth to a son, B. Assuming that the land is the
exclusive property of H and that the net value of
H’s estate at the time of B’s birth is Php40,000,
what will be the extent of the reduction of the
donation?
The donation shall be reduced by Php20,000, because
H’s free disposal is only to the extent of Php20,000.
Thus:
40,000 value of donation
40,000 value of estate at B’s birth
80,000 Net Hereditary Estate
Legitime of B: 40,000
Legitime of W: 20,000
60,000
Free Disposal 20,000
Reduction 20,000  who is the grandchild of H, satisfies the first
Judicial action is necessary for reduction or
revocation of donation. (Art. 763, Civil Code) Period
of prescription is four years.
QUESTION NO. 124
X has no child. At the time he gave a donation of
P100,000, he had P1 million. Therefore, after the
donation, he had P900,000 left. Later he adopted a
minor child. At the time he made the adoption, he
had only P50,000 left. Should the donation be
reduced? How much and within what period?
The donation of Php100,000 should be reduced by
Php25,000 because the legitime is impaired to that
extent (the free disposal being only Php75,000).
Thus:
50,000 (value at the time of adoption)
100,000 (value of donation)
150,000
The action for reduction must be brought within 4
years from adoption.
QUESTION NO. 125
H died intestate survived by his wife (W) and their
two sons (A and B). During their marriage, the
couple acquired a property and there built their
family home. When H died, W and her son, A,
informed B of their desire to partition the
property and terminate the co-ownership. B
refused on the ground that the property which
was a constituted family home cannot be
partitioned while a minor beneficiary is still living
there; namely, his minor son, C, who is the
grandson of the deceased. Is C a beneficiary of the
family home constituted by his paternal
grandparents?
To qualify as a beneficiary of a family home, three
requisites must concur: first, the beneficiary must be
among the relationships enumerated in Article 154 of
the Family Code; second, the beneficiary must live in
the family home; and, third, the beneficiary is
dependent for legal support upon the head of the
family.
Moreover, Article 159 of the Family Code provides
that the family home shall continue despite the death
of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as
there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of
whoever owns the property or who constituted the
family home.
As to the first requisite, the beneficiaries of a family
home under Article 154 of the Family Code are: (1)
the husband and wife, or an unmarried person who is
the head of a family; and (2) their parents,
ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate.
The term “descendants” includes all descendants of
the person or persons who constituted the family
home without distinction; hence, it must necessarily
include the grandchild and great grandchildren of the
spouses who constituted a family home. Thus, C,
requisite.
As to the second requisite, minor beneficiaries must
be actually living in the family home to avail of the
benefits derived from Article 159 of the Family
Code. There is no dispute that C, the son of B, lives
in the family home; hence, he satisfies the second
requisite.
However, as to the third requisite, C cannot demand
support from his paternal grandmother, W, if he has
parents who are capable of supporting him. The
liability for legal support falls primarily on C’s
parents, especially his father, B, who is the head of
his immediate family. The law first imposes the
obligation of legal support upon the shoulder of
parents, especially the father, and only in their default
is the obligation imposed on the grandparents.
C is dependent on legal support not from his
grandmother, W, but from his father, B. Thus, despite
residing in the family home and his being a
descendant of H, C cannot be considered as
beneficiary of the family home under Article 154 of
the Family Code because he did not fulfill the third
requisite of being dependent on his grandmother for
legal support. (Patricio v. Dario III, G.R. No.
170829, November 20, 2006)
QUESTION NO. 126
X died intestate. He is survived by: (1) A, B, D and
E, his legitimate children; (2) F and G, legitimate
children of C (predeceased), a legitimate son of X;
(3) H and I, legitimate children of D; and (4) J and
K, legitimate children of E. D is incapacitated;
while E repudiated the inheritance. If the net
value of the estate is P/120,000, how shall the
distribution be made?
There are three vacant shares. The share which C
would have inherited if he had not predeceased X.
The share which D would have inherited if he had the
capacity to inherit from X. The share which E would
have inherited if he had not repudiated it.
The share of C in the estate goes to his legitimate
children, F and G, by right of representation. The
share of D in the estate goes to his legitimate
children, H and I, by right of representation. The
share of E who repudiated the inheritance goes to his
co-heirs, A and B, by accretion. This is so because an
heir who repudiates cannot be represented.
Therefore, the final distribution of X’s estate shall be
as follows:
A 24,000 own right
12,000 accretion
B 24,000 own right
12,000 accretion
F 12,000 own right
G 12,000 own right
H 12,000 own right
I 12,000 own right
________
120,000
QUESTION NO. 127
Abe and Bea, Filipinos, got married and begot two
children. Abe later worked in Rome where he
acquired Italian citizenship. He got a divorce from
Bea in Rome but, on returning to the Philippines,
he realized his mistake, asked forgiveness of his
wife, and resumed living with her. They had two
more children. What is the status of the four
children?
The first two children who were born before the
divorce are legitimate children, but the last two
children who were born after the divorce are
illegitimate children since Abe got the divorce when
he had ceased to be a Filipino. (Art. 15, Civil Code)
QUESTION NO. 128
Homeowner employed Broker to sell his house.
Broker sold the house to his wife for Php1 million.
Some months later, Broker sold the house to a
third person for Php2 million. Homeowner sues
Broker for the Php1 million profit. Judgment for
whom?
Judgment for Homeowner. It is a breach of an agent’s
fiduciary duty to retain secretly benefits or profits
that, by right, belong to the principal. Under the law,
every agent is bound to render an account of his
transactions and to deliver to the principal whatever
he may have received by virtue of the agency, even
though it may not be owing to the principal. (par. 1,
Art. 1891, Civil Code)
QUESTION NO. 129
Agnetha wishes to purchase a parcel of land
owned by Tropical Gardens. She learns that
Tropical Gardens is a partnership owned by Abe,
Ben, and Chito. She also learns that the
partnership needs capital and that the need for
capital is the major reason the partners are selling
their property. Because Tropical Gardens is a
partnership, Agnetha has the following concerns.
You are now called upon to advise Agnetha of her
concerns.
a. Can the partnership convey the land in the
name of the partnership?
Yes, because a partnership has a juridical personality
separate and distinct from that of each of the partners.
This is true even if the formalities under Article 772
of the Civil Code which requires that the articles of
partnership which must be in a public instrument is
not recorded in the Office of the Securities and
Exchange Commission. (Art. 1768, Civil Code)
Besides, any immovable property or interest in
immovable property belonging to the partnership
shall be conveyed only in the partnership name. (Art.
1774, Civil Code)
b. If there is a breach of contract, against whom
may Agnetha file a lawsuit?
If there is a breach of contract arising from the sale of
the property, Agnetha must maintain the lawsuit
against the partnership, not against the individual
partners. This is because a partnership has a juridical
personality of its own separate and distinct from that
of each of the partners. (Art. 1768, Civil Code)
c. If Agnetha obtains judgment against Tropical
Gardens, against whom can she execute it?
Partnership liability is first paid out of partnership
assets when a judgment is rendered against the firm
name. In a general partnership, the personal assets of
the individual members are subject to liability if the
partnership’s assets are inadequate. Even in limited
partnerships, at least one of the partners – the general
partner – subjects his personal assets to liability for
the partnership’s obligations.
QUESTION NO. 130
S contracts to sell his house and lot to B for Php3
million. The terms of the contract call for B to pay
10 percent of the purchase price as deposit or
down payment. B pays the deposit, but because his
expected financing of the balance falls through, he
breaches the contract. Two weeks later S sells the
house and lot to another buyer for Php3.2 million.
B demands his deposit back, but S refuses,
claiming that B’s breach entitles him to keep the
deposit. Decide who is correct.
B is correct because the deposit is in the nature of
earnest money. Under Article 1482 of the Civil Code,
whenever earnest money is given in a contract of
sale, it shall be considered as part of the purchase
price and as proof of the perfection of the contract.
By its very nature, an earnest money is an advance
payment which must be deducted from the purchase
price. Hence, the parties could not have intended that
the earnest money or advance payment would be
forfeited when the buyer should fail to pay the
balance of the price, especially in the absence of a
clear and express agreement thereon. Moreover, to
allow the forfeiture of the earnest money or advance
payment in favor of the seller would amount to unjust
enrichment of the seller at the expense of the buyer.
(Goldenrod, Inc. v. CA, 299 SCRA 141 [1998])
QUESTION NO. 131
Under which of the following breach of contract
situations would specific performance be an
appropriate remedy?
a. Abe offers to sell his house and lot to Rey.
Then, upon finding another buyer willing to
pay a higher purchase price, he revokes his
offer..
b. Amy contracts to sing in Abe’s bar for one
month, beginning May 1. She then refuses to
perform.
c. Abe contracts to purchase a rare coin owned
by Rey, as Rey is breaking up his coin
collection. Abe gives Rey Php1,000 for the
privilege of deciding whether to buy the rare
coin. At the last minute Rey decides to keep his
coin collection intact and refuses to deliver the
coin to Abe.
d. Abe contracts to sell to Rey 100 cavans of
dinorado rice that Abe intends to harvest from
his farm. Because the price of rice rises
dramatically, Abe refuses to go on with his
promise.
Specific performance would most likely be proper in
(c). If the offerer has allowed the offeree a certain
period to accept, the offer may be withdrawn at any
time before acceptance by communicating such
withdrawal, except when the option is founded upon
a consideration as something paid or promised. (Art.
1324, Civil Code) In this case, Abe gave Rey
Php1,000 for the option of buying or not the rare
coin. Being so, the option is valid and cannot be
withdrawn by Rey.
An action for specific performance in (a) would most
likely be dismissed by the court. This is so because
Abe can withdraw his offer to Rey at any time before
Rey’s acceptance; the option given to Rey is not
founded upon a consideration as something paid or
promised. (Art. 1324, Civil Code)
Specific performance is improper in (b) which
involves a personal obligation. To compel Amy to
comply with her contractual obligation would amount
to involuntary servitude.
The obligation in (d) involves the delivery of a
generic thing. When what is to be delivered is
indeterminate or generic, the creditor may ask that
the obligation be complied with by another person at
the expense of the debtor. (Art. 1165, Civil Code)
QUESTION NO. 132
Abe, who is eight months short of his eighteenth
birthday, buys a car from Delta Motors. Five
months later, Abe drives the car to Delta Motors
to make the fifth monthly payment and tells Delta
Motors, “I love this car.” Sixty days and two
payments later, Abe drives the car to Delta
Motors and says, “I’m tired of this junk. Take it
and give me my money back.” Is Abe too late to
get his money back?
No. Contracts entered into by a minor are voidable at
the option of that minor, and the minor has four years
from the time the guardianship ceases to annul the
contract. (Art. 1391, Civil Code) Abe’s declaration
that he loves the car after five months of the sale does
not constitute ratification that would have cured the
defect in the contract. Besides, he was still a minor at
the time when he made such declaration.
QUESTION NO. 133
Abe bought a female miniature poodle dog from a
pet shop. Unknown to either party, the dog was
pregnant. When the litter was born, both Abe and
the pet shop claimed ownership. Who is correct?
Abe is correct. Under the law, a creditor has a right to
the fruits of the thing from the time the obligation to
deliver it arises. However, he shall acquire no real
right over it until the same has been delivered to him.
(Art. 1164, Civil Code) Here, the litter was born after
the poodle dog was actually delivered to Abe. Upon
delivery of the dog, Abe necessarily became its
owner thereby giving him the ownership of the litter
by accession. (Art. 441, Civil Code)
QUESTION NO. 134
Isabella is the daughter of Carlos, a widower.
Over the objections of Carlos, Isabella adopted a
5-year old girl named Barbara who grew up into a
fine woman and trained to be a nurse. When
Carlos fell ill, he was admitted to the hospital
where Barbara took care of him. They fell in love
and got married. What is the status of their
marriage?
Their marriage is valid because Barbara and Carlos
are not related to each other, either by blood or by
affinity or by fiction of law. That Barbara is the
adopted child of Isabella does not make Barbara a
direct descendant of Carlos, adoption being personal
between Isabella, the adopting parent, and Barbara,
the adopted child.
QUESTION NO. 135
Which of the following contract situations need
not comply with the Statute of Frauds?
a. Debtor is indebted to Creditor. Friend orally
agrees to pay Creditor if Debtor defaults in his
loan obligation.
b. Grandfather orally promises to give Grandson,
a first year law student, a particular car upon
Grandson’s graduation from law school.
c. Lessee orally assigns his leasehold rights to
Assignee for the remaining six years of a 10-
year lease term.
d. An oral sale of a car whereby Buyer takes
delivery of the car with a promise to pay the
car after 15 months from delivery.
The contract situation in (d) need not comply with the
Statute of Frauds because the statute applies only to
executory contracts, not to partially executed
contracts. The delivery of the car to the buyer takes
the contract out of the ambit of the Statute of Frauds.
The Statute of Frauds governs the contract situation
in (a) because the promise of Friend to pay “if Debtor
defaults in his loan obligation” constitutes a special
promise to pay Debtor’s loan, a promise which is
subsidiary or collateral, like guaranty.
Grandfather’s promise to Grandson, as in the contract
situation in (b), is a promise that by its terms is not
to be performed within a year from the making
thereof. In other words, Grandfather’s performance
(giving of car) is to be made after one year from the
making of the contract. This is so because
Grandfather’s promise was made when Grandson
was still a first year law student who is expected to
graduate from law school after more than one year.
The Statute of Frauds requires that lease of real
property for a period longer than one year be in
writing to be enforceable. Therefore, the contract
situation in (c) is governed by the Statute of Frauds.
QUESTION NO. 136
Abe sold his land to Ben who began to possess it.
Carl, a stranger, sold the same land, unauthorized
by anyone, and in his own name, to Donald, who
registered the sale in good faith. Who owns the
land, Ben or Donald?
Ben should be considered as the owner even if he did
not register the land. This is so because Donald, who
registered the sale, did not buy the land from its
owner, but from a stranger totally unconnected with
the land. Article 1544 of the Civil Code cannot
therefore apply, because it cannot be said that the
land had been sold twice by the same person. (Art.
1544, Civil Code)
QUESTION NO. 137
Seller sells to Buyer a parcel of land under a
notarized deed of sale. On the same day and along
with the execution of the deed of sale, the parties
execute a separate instrument, denominated as
“Right of Repurchase” granting Seller the right to
repurchase the lot within four years. Within four
years, Seller offers to redeem but Buyer refuses.
Who is correct?
Buyer is correct. The right of repurchase is not a right
granted the vendor by the vendee in a subsequent
instrument, but a right reserved by the vendor in the
same instrument of sale as one of the stipulations of
the contract. Once the instrument of absolute sale is
executed, the vendor can no longer reserve the right
to repurchase, but some other right like an option to
buy. (Vasquez v. Court of Appeals, 198 SCRA 102
[1991])
QUESTION NO. 138
Abe and Ben are childhood friends. Because of
their friendship, Abe gave to Ben in usufruct a
parcel of land to last up to the time their high
school teacher, Mrs. Aguada, reaches the age of
70. Mrs. Aguada died at the age of 65. Is the
usufruct extinguished?
No. Under Article 606 of the Civil Code, a usufruct
granted for a time that may elapse before a third
person attains a certain age shall subsist for the
number of years specified even if the third person
should die before the period expires, unless such
usufruct has been granted only in consideration of the
existence of such person. If the document
constituting Bernard as a usufructuary does not state
that it will end the moment Mrs. Aguada is dead, then
it will continue.
QUESTION NO. 139
Buyer buys on instalment a residential subdivision
lot. After the 5th year, he is unable to make further
payments. Can Developer unilaterally cancel the
sale? Is Buyer entitled to any refund?
Yes. The Developer need not even go to court to
obtain cancellation of the sale, provided that the
actual cancellation takes place after 30 days from
receipt by Buyer of the notice of cancellation or
demand for rescission of the sale by a notarial act and
upon full payment of the cash surrender value to
Buyer. (Sec. 3, R.A. No 6552) Buyer is entitled to a
cash surrender value which is 50% of the total
payments made by him.
QUESTION NO. 140
Seller contracts to sell to Buyer a parcel of land.
They agree that Buyer shall pay the purchase
price on October 25, and that in case of Buyer’s
failure to pay, the contract shall be automatically
rescinded. If Buyer does not pay on October 25,
can he still pay on October 29?
Yes, if no judicial or notarial demand for rescission
of the contract as of October 29 has been made by
Seller to Buyer. Under Article 1592 of the Civil
Code, in the sale of an immovable property, even
though it may have been stipulated that upon failure
to pay the price at the time agreed upon the rescission
of the contract shall of right take place, the vendee
may still pay even after expiration of the period, as
long as no demand for rescission of the contract has
been made upon him either judicially or by a notarial
act.
QUESTION NO. 141
In a letter, Seller offers to Buyer the sale of a
parcel of land. Buyer sends a reply. Which of the
following statements in Buyer’s reply will NOT
result in a contract?
a. “I accept your offer to sell the land. I wish I
could have gotten a better price.”
b. “I accept your offer to sell the land, but can
you shave the price?”
c. “I accept your offer to sell the land, but only if
I can pay on 90 days credit.”
d. “I accept your offer to sell the land, provided
that you are the owner.”
The reply in (c) will not result in a contract.
Acceptance is a voluntary act by the offeree that
shows agreement to the offer. The acceptance must
be unequivocal and communicated to the offeror. The
acceptance in (c) is not an unequivocal acceptance
because of the condition to pay on credit which
operates as a counter-offer.
An acceptance may be unequivocal even though the
offeree expresses dissatisfaction with the offer, as in
the case of the replies in (a) and (b).
The condition imposed by Buyer in his reply in (d)
that the offeror owns the property is implied in every
sale of land, so the condition does not add any new or
different terms to the offer.
QUESTION NO. 142
Batman, Superman and Iron Man are co-owners
of a parcel of land. They later sold the land to
Flash Gordon with a right to repurchase. Only
Batman exercised the right of repurchase for
which he obtained a title to the property. Is the co-
ownership terminated by Batman’s repurchase of
the property?
No. The repurchase of the land by Batman did not
terminate the co-ownership nor did it give him the
title to the entire land. Superman and Iron Man
remain as co-owners with obligation to reimburse
Batman their respective shares in the repurchase price
of the land.
QUESTION NO. 143
Pedro owns a car. To raise money for his business
venture, he instructs Abe to sell the car. In his
own name, Abe sells the car to Menardo. Can
Menardo sue Pedro in case the car has hidden
defects?
Yes. Although Abe acted in his own name, still the
sale involved a car belonging to Pedro, the principal.
Here, we apply the exception stated in the second
paragraph of Article 1883 of the Civil Code which
provides, “In such case the agent is the one directly
bound in favor of the person with whom he has
contracted, as if the transaction were his own, except
when the contract involves things belonging to the
principal.” As a matter of fact, the sale is completely
valid.
QUESTION NO. 144
Principal appoints Agent, a minor, to sell a
particular car. Agent sells the car to Buyer.
Principal afterwards seeks to annul the sale, and
brings an action to recover the car on the ground
that Agent’s act was voidable, as a minor cannot
be an agent. Judgment for whom?
Judgment for Buyer. Agent is deemed to be an
extension of the personality of Principal who is
himself capacitated. Hence, Principal cannot annul
the contract on the ground of Agent’s incapacity.
QUESTION NO. 145
Martha died, leaving her son (Sam) as sole heir.
Among the items inherited by Sam were some old
oil paintings that had been stored in Martha’s
attic for several years. Sam knew nothing about
art and had no place to put them in his house. He
placed an ad in the paper offering to sell the
paintings “at a price to be mutually agreed upon.”
Riza, a buyer for an art gallery, responded to the
ad and examined the paintings. From the
signature and the style, Riza recognized that the
artist was Ben Cab, a renowned Filipino portrait
artist. Sam and Riza agreed upon a price and
executed a contract.
Which of the following facts, if true, would give
Sam the best basis for annulling the contract with
Riza?
a. Sam told Riza that his mother, Martha, had
dabbled in painting when she was younger and
had undoubtedly painted them herself.
b. Sam did not know that Riza was a buyer for an
art gallery and was very familiar with the
works of renowned artists.
c. Sam told Riza that he wanted to get rid of the
paintings as soon as possible because he was
angry at his mother for giving away most of
her possessions to her friend just before she
died.
d. Riza falsely told Sam that the paintings were to
be used to furnish Riza’s newly-constructed
vacation house in Baguio.
The statement in (a) would enable Sam to annul the
contract on the ground of mistake if Riza was aware
that Sam was mistaken about the identity of the artist.
Under the facts in this choice, Riza knows that Sam is
mistaken about the identity of the artist, which
mistake refers to the substance of the thing which is
the object of the contract. (Art. 1311, Civil Code)
The statement in (b) is wrong because the fact that
one of the parties to the contract has superior
knowledge about the subject matter of the contract
does not by itself justify annulment, even if the other
party is unaware of that fact. Riza’s knowledge or
lack of it was not the principal cause on which the
contract was made and was not relied on by Sam in
making the sale.
The statement in (c) is wrong because the fact that
Sam was angry when he agreed to the contract is not
a ground for annulment of a contract under the law.
Regardless of Sam’s state of mind, there was a
meeting of the minds between the parties.
The statement in (d) is incorrect because Riza’s
misrepresentations to Sam as to how she will use the
paintings does not appear to go to the substance of
the thing which is the subject matter of the contract
or to have been relied on by Sam. Hence, the
misrepresentation is not significant enough to serve
as a ground for annulling the contract.
QUESTION NO. 146
Is the sudden emergency rule an absolutory cause
in negligence cases?
Yes. A person who is confronted with a sudden and
unforeseeable occurrence, because of the shortness of
time in which to react, should not be held to the same
standard of care as someone confronted with a
foreseeable occurrence.
One who suddenly finds himself in a place danger,
and is required to act without time to consider the
best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he
fails not to adopt what subsequently and upon
reflection may appear to be the better method, unless
the emergency in which he finds himself is brought
about by his own negligence. (Gan vs CA, 165 SCRA
378) The rule applies, for instance, in the following
cases: 1) a child suddenly darts into the road between
parked cars; 2) a load from a truck suddenly bounces
across the highway; or 3) a driver of a car is suddenly
stricken by a period of unconsciousness which he has
no reason to anticipate and which renders it
impossible for him to control the car he is driving.
QUESTION NO. 147
Husband and Wife were married in 1974. Their
marital union bore two children (Abe and Ben).
The birth certificates of the children identified
Husband as their father and their status as
legitimate. Husband died in 1990.
In a notarized document in 1991, Gigolo admitted
his illicit relations with Wife and acknowledged
Abe and Ben as his illegitimate children. After
Gigolo’s death in 1993 and on the strength of
Gigolo’s notarized acknowledgment, Abe and Ben
brought an action for the partition of Gigolo’s
substantial estate. Will the action prosper?
No. The attempt to establish the status of Abe and
Ben, as the illegitimate children of Gigolo would in
effect impugn their legitimate status as children of
Husband and Wife. This cannot be done because the
law itself establishes the legitimacy of children
conceived or born during the marriage of the parents.
There is perhaps no presumption of law more firmly
established and founded on sounder morality than
children born in wedlock are legitimate. (Tison v.
Court of Appeals, 276 SCRA 582 [1997])
The presumption indeed becomes conclusive in the
absence of proof that there is physical impossibility
of access between the spouses during the first 120
days of the 300 days which immediately preceded the
birth of the child due to: a) the physical incapacity of
the husband to have sexual intercourse with his wife;
b) the fact that the husband and wife are living
separately in such a way that sexual intercourse is not
possible; or c) serious illness of the husband which
absolutely prevents sexual intercourse. (Art. 166,
Family Code) Considering that Abe and Ben were
born during the marriage of their parents, they are
therefore considered the legitimate children of
Husband and Wife.
QUESTION NO. 148
Ann is a working student at a local university. In
need of funds to pay for tuition and books, she
attempts to secure a short-term loan from East
Bank. The bank agrees to make a loan if Ann will
have someone financially responsible guarantee
the loan payments. Betty, a businesswoman and a
friend of Ann’s family, agrees in writing to pay
the loan if Ann cannot. Because of Betty’s
reputation, the loan is made. Ann is making the
payments, but because of illness she is not able to
work for one month. She requests that East Bank
extend the loan for three months. East Bank
agrees, raising the interest rate for the extended
period. Betty is not notified of the extension. One
month later Ann drops out of school. All attempts
to collect from Ann fail. Can East Bank collect
from Betty?
No. Unlike a surety who is primarily liable, a
guarantor is merely subsidiarily liable. The guarantor
can be required to answer for the obligation only after
the principal has defaulted. (Art. 2047, Civil Code)
The creditor must also have attempted to collect from
the principal, and the latter still has not paid. (Art.
2058, Civil Code) Under Article 2079 of the Civil
Code, an extension granted to the debtor by the
creditor without the consent of the guarantor, as in
this case, extinguishes the guaranty.
QUESTION NO. 149
Ben, Calvin, and Don form a limited partnership.
Ben is a general partner, and Calvin and Don are
limited partners. Consider each of the separate
events below, and discuss fully which will
constitute a dissolution of the partnership.
A. Calvin assigns his partnership interest to Don.
B. Don goes into bankruptcy.
C. Ben dies.
The event in (C) dissolves the limited partnership of
Ben, Calvin, and Don. This is by express provision of
Article 1860 of the Civil Code which provides that
the death, insolvency, insanity or civil interdiction of
a general partner dissolves the limited partnership,
unless the business is continued by the remaining
general partners. The partnership here consists of
only one general partner (Ben), and there being no
other remaining general partner to continue the
business, the partnership is dissolved.
The event in (A) does not dissolve a partnership
because a limited partner’s interest is assignable (Art.
1859, Civil Code)
The insolvency of the other limited partner, an event
stated in (B,) does not likewise dissolve the limited
partnership because the partnership business can still
continue despite such insolvency.
QUESTION NO. 150
Abe took his car to a carwash station and asked to
have it washed. While it is being washed, Abe
went to a nearby mall for two hours. In the
meantime, one of the workers at the car wash had
mistakenly hand-waxed the car. When Abe came
back, he was presented with a bill for a wash job
and a hand wax. Is Abe liable to pay for the hand
wax job?
No. The doctrine of quasi-contract does not apply
when there is a contract between the parties.
Although there was a benefit bestowed to Abe, Abe
did not receive an unjust benefit because the hand
wax job was not contemplated by his agreement with
the owner of the car wash station.
QUESTION NO. 151
Mr. Go, a Chinese national donated in Germany
in favor of Pedro, a Filipino, a parcel of land in
the Philippines.
a. The law of which country governs the
formalities of the donation?
Philippine law governs the formalities of the
donation. The lex loci celebrationis does not apply
because the transaction relates to land and must
therefore be governed by the law of the place where
the land is situated.
b. The law of which country governs the capacity
of Mr. Go to make the donation?
Philippine law, the situs of the property, governs the
capacity of Mr. Go, a Chinese national, to alienate.
Here, the doctrine of national law under Article 15 of
the Civil Code yields because the subject matter is
land.
QUESTION NO. 152
Abe was coerced into marrying Bea. Abe sued for
annulment. During the pendency of the case, Abe
married Amy. When she learned of the first
marriage, Amy sued Abe for bigamy. Abe now
alleges that the pendency of the annulment case is
a prejudicial question. Is Abe correct?
Abe is wrong because the decision in the annulment
case is not important. The first marriage will either
be annulled or not. If not annulled, bigamy can
prosper. And if annulled, still bigamy can prosper, for
when Abe married the second time, he was still
married to Bea, a voidable marriage being valid until
annulled.
QUESTION NO. 153
Bea forced Abe, a married man, to marry her. Abe
then sued for annulment of the second marriage.
Bea retaliated with a charge of bigamy. In the
bigamy case, Abe moved to suspend the criminal
proceedings until after the termination of the
annulment case on the ground that the annulment
case is a prejudicial question. Should the motion
be granted?
Yes, because the annulment case poses a prejudicial
question. If Abe was really forced into marrying Bea,
then his consent was defective; hence, the second
marriage is to be annulled on that ground. He cannot
therefore be guilty of bigamy.
QUESTION NO. 154
If a marriage is dissolved because of the death of
the husband, what surname may the widow use?
Although the death of the husband dissolves the
marriage ties, still the widow may desire to cherish
her deceased husband’s memory by the continued use
of his surname. However, if she does not want to, she
is allowed to use her maiden surname again. Notice
the use of the word “may” in Article 373 of the Civil
Code.
QUESTION NO. 155
If a marriage is annulled, is the wife required to
resume her maiden name and surname?
It depends. If the wife is the guilty spouse, she must
resume her maiden name and surname. But if the
wife is the innocent spouse, she may resume her
maiden name and surname, but she may choose to
continue employing her former husband’s surname,
unless (1) the court decrees otherwise; or (2) she or
the former husband is married again to another
person. (Art. 371, Civil Code)
QUESTION NO. 156
What if legal separation occurs, is the wife entitled
to continue using the husband’s surname even if
she is the guilty spouse?
Article 372 of the Civil Code does not distinguish
whether the wife is the guilty spouse or not, unlike in
the case of annulment of marriage under Article 371,
because in legal separation the marriage ties still
subsist.
QUESTION NO. 157
Abe, an American, and Bea, a Filipina, cohabited
as husband and wife ten years ago without
marriage. While living together, the couple bought
a property in Baguio. Although the deed of sale
was placed in the names of the couple as buyers,
the sale was registered in the name of Bea alone
because of Abe’s American citizenship. It is
sufficiently established, however, that the funds
used to buy the property came solely from Abe, as
Bea has no sufficient source of income.
After their relationship turned sour and they went
separate ways, Abe sold all his rights in the
property to Rey, a Filipino. When Rey tried to
register the property in his name, he discovered
that the title of the property is registered in the
name of Bea, and that it had already been
mortgaged.
a. If Abe is the true buyer of the property, what is
the effect of the registration of the property in the
name of Bea?
The registration of the property in the name of Bea
does not make her the owner of the property in
question. It is settled that registration is not a mode of
acquiring ownership. Certificates of title are not a
source of right. The mere possession of a certificate
of title does not make the holder the true owner of the
property. The mere fact that Bea has the title of the
disputed property in her name does not necessarily,
conclusively, and absolutely make her the owner.
b. Given that Abe is disqualified to own real
properties in the Philippines, what is the legal
status of the sale of the property by Abe to Rey?
Because aliens are disqualified to own real properties
in the Philippines, the sale of the property to Abe,
who is an American, would have been declared
invalid if challenged, had not Abe conveyed the
property to Rey who is a Filipino. According to
jurisprudence, if the land is invalidly transferred to an
alien who subsequently becomes a Filipino citizen (or
transfers it to a Filipino), the flaw in the original
transaction is considered cured and the title of the
transferee is rendered valid. (Borromeo v. Descallar,
G.R. No. 159310, February 24, 2009)
QUESTION NO. 158
Ben, a minor, purchased a used car for
Php250,000 from a used car dealer. Ben used the
car for three months and then damaged it in an
accident. The car is now worth Php100,000. Ben
takes the car back to the dealer and demands the
return of the purchase price. Dealer refused.
Judgment for whom?
Judgment for Ben. A contract may be invalidated
when one of the parties to the contract does not have
the legal capacity to give consent to the contract. A
minor is certainly one who lacks legal capacity. (Art.
1390, Civil Code)
QUESTION NO. 159
Club John Hay advertised an offer to pay
Php500,000 to any person who, having paid
Php2,000 for the opportunity of attempting to do
so, shoots a hole in one on its golf course under
certain conditions. Abe, an avid golfer, complied
with the conditions, including the payment of the
money, and shot a hole in one. Club John Hay
refuses to pay contending that the contract was a
wagering contract. Abe claims the shooting of the
hole in one was a feat of skill and not a feat of
chance. Who prevails?
Abe prevails. Gambling is essentially a “chance for a
prize for a price.” Gambling is illegal regardless of
the name attached to it. But if the result of a game
does not depend entirely on chance and may also
depend upon the skill of a person, such game is not a
game of chance as to make it a gambling game.
QUESTION NO. 160
Pedro wished to delay action by a government
Bids and Awards Committee for the execution of a
public works project in which he was interested.
He agreed with Abe to pay the latter Php1 million
if Abe could get the members of the bid committee
to postpone the committee’s scheduled bidding.
Abe gave a majority of the committee members
and their wives a round trip ticket to Hongkong.
Abe also gave each of the wives shopping money
and convinced them to talk to their husbands
regarding a postponement of the bidding which
the committee did. Pedro now refuses to pay Abe.
Decision?
Decision for Pedro. Pedro’s commitment to pay Abe
Php1 million for Abe to influence the postponement
of the scheduled bidding of a government agency to
execute a public works project is against public
interest. The agreement is unquestionably void and
cannot be enforced, especially so because both
parties are in pari delicto.
QUESTION NO. 161
Papa and Mama are the parents of Son. Upon the
death of Mama, Son immediately brings an action
against Papa for the partition of Mama’s estate.
Papa counterclaims for reconveyance of a
property which is registered in the name of Son.
Papa claims that the lot is owned by the conjugal
regime but was registered in the name of Son as a
trustee because at that time, Son was the only
Filipino in the family. Papa caused the annotation
of a notice lis pendens on Son’s certificate of title.
Son objects on the ground that the notice lis
pendens amounts to a collateral attack on his title
obtained more than 20 years ago. He argues that
his sole ownership of the property would be
improperly assailed in the partition case and that
it should be done through a separate action.
Should the notice lis pendens be cancelled?
No. The annotation of a notice lis pendens does not in
any way amount to a collateral attack on the
certificate of title of a parcel of land. What cannot be
collaterally attacked is the certificate of title and not
the title. The certificate referred to is that document
issued by the Register of Deeds known as the
Transfer Certificate of Title. By title, the law refers to
ownership which is represented by the document.
Son apparently confuses certificate of title with title.
Placing a parcel of land under the mantle of the
Torrens system does not mean that ownership thereof
can no longer be disputed. Ownership is one thing,
registration is another. (Lee Tek Sheng v. CA, 292,
SCRA 554 [1998])
QUESTION NO. 162
Manuel (judicially) adopts Minerva in Baguio.
They go to Paris and there get married. Assuming
the marriage to be valid under French law, is it
also valid here?
No. Even if the marriage is valid in Paris, where it is
celebrated, it is void here because it is “void from the
beginning for reasons of public policy” it being a
marriage between the adopting parent and the
adopted child. (Art. 35 (4), Family Code)
QUESTION NO. 163
Abe is engaged to be married after he completes
his college education. Abe’s parents do not
approve of the marriage and offer him a half
interest in the family business if he would give up
his plans for marriage. Abe agrees, but after he
finished college his parents refused to give him the
share of the business that they had promised. May
Abe enforce the promise made by his parents?
No. Promises not to marry in return for some benefit
is void because it is contrary to public policy. The
law has always regarded marriage as a sacred
institution (Art. 1, Family Code) and a right and
privilege of all persons, not to be denied by private
contract with other persons.
QUESTION NO. 164
After searching for months, a young married
couple found a house which fitted their needs
perfectly. The location, size, price, sale terms,
proximity to church, school, and shopping malls
were all they had been looking for. After
discussion with the owner, they agreed to buy the
house and sealed their agreement with the owner
with a handshake. Is there a contract?
Yes. All the essential elements of a contract of sale
are present; namely, consent of the parties, a
determinate object, and a price certain in money or its
equivalent. But if the owner later refuses to perform,
the sale could not be enforced by court action
because it was made orally. This is because of the
statutory requirement that all contracts for the
transfer of any interest in real property must be in
writing to be enforceable. (Art. 1403, par. 2(e), Civil
Code)
QUESTION NO. 165
A land registration applicant failed to mark in
evidence the original tracing cloth plan of the land
applied for. Instead, he presented a blue print
copy of the plan as evidence. Is this sufficient?
Yes. It is true that the best evidence to identify a
parcel of land for registration is the original cloth
plan, yet the blue print copy of the plan suffices for
the purpose where the original tracing cloth plan was
attached to the application for registration. (Republic
v. IAC, 144 SCRA 705) Moreover, even the true
certified copy of the white paper plan would suffice if
it bears the approval of the Land Registration
Authority and verified by the Bureau of Lands. The
fact therefore that the original survey plan was
recorded on white paper instead of a tracing cloth
plan should not detract from the probative value
thereof. (Dir. of Lands v. CA, 158 SCRA 586 [1988])
QUESTION NO. 166
A fire broke out on the fifth floor of a Baguio
hotel. Although the fire was confined to that floor,
several guests on the other floors reported losing
their property due to the fire and water. The hotel
was able to prove that the fire had started from a
cigarette dropped on a bed by one of the guests.
The careless smoking violated a Baguio City
ordinance and a rule of the hotel. Is the hotel
liable?
No. The loss of property because of accidental fire, in
which no negligence may be attributed to the hotel is
an exception to the hotelkeeper’s liability as a
depositary of valuables of hotel guests. This is in
keeping with the rule that no person may be held
liable for those events which could not be foreseen,
or, even though foreseen, were inevitable. (Art. 1174,
Civil Code) Here, the hotel would not be responsible
for the losses caused by the fire because it has not
breached its duty of care.
QUESTION NO. 167
Abe was eager to sell his house in Rainbow Hills
Subdivision. He made a lunch appointment with a
real estate broker and at that time requested the
broker to sell the house, agreeing on specific
details of price and commission. Because they
were friends of long standing, the two men did not
discuss the necessity of a written agreement and
sealed their agreement with a handshake.
If the broker finds a buyer, is Abe obliged to sell
the house and pay the broker his commission?
No. An agency may be oral, unless the law requires a
specific form. However, when a piece of land or any
interest therein is through an agent, the authority of
the latter shall be in writing. (Art. 1874, Civil Code)
Here, any attempt of the broker to hold Abe to his
agreement will not succeed since the broker’s
authority was not in writing and therefore void.
QUESTION NO. 168
In each of the following cases, name the party on
whom the loss due to damage to, or destruction of,
the goods falls, and give the reasons for your
answer.
a. Abe purchased a used car. The seller was to put
a mechanic on it and make several mechanical
adjustments. After the adjustments had been
made, and while the seller was testing the car
before delivery, the car was badly damaged in a
collision.
The seller bears the loss of the car pursuant to the res
perit domino rule -- the thing perishes with the
owner. Under the law, the goods remain at the
seller’s risk until the ownership therein is transferred
to the buyer (Art. 1504, Civil Code), either by actual
or constructive delivery thereof. (Art. 1477, Civil
Code)
The extinguishment of the obligation to deliver
affects both vendor and vendee since their obligations
are reciprocal. If the obligation of the vendor to
deliver is extinguished, the correlative obligation of
the vendee to pay, which depends upon it, is also
extinguished. Besides, a contract of sale is onerous in
character; the cause, as far as the vendee is
concerned, is the acquisition of the thing which is the
object thereof.
b. Abe bought a very expensive laptop, with the
understanding that he might return it within
thirty days if he found it to be unsatisfactory for
his needs. Abe found that the laptop did not suit
his needs and was preparing to return it within
the stipulated period when it was stolen.
Abe bears the loss of the laptop. When goods are sold
with right of return, the buyer becomes the owner
upon delivery, but he may revest the ownership of the
thing in the seller by returning it within the time fixed
in the contract, or if no time is fixed, within a
reasonable time. (par. 1, Art. 1502, Civil Code)
Buyer may return the thing sold to the seller event if
he finds nothing wrong with the quality of the thing.
Until he returns the thing, buyer owns the thing. And
if it is lost, regardless of the cause, buyer bears such
loss.
c. Abe purchased a treadmill on ten days’
approval. Before expiration of the ten-day period,
the treadmill was destroyed by fire of accidental
origin.
Seller bears the risk of loss of the treadmill. When
goods are sold on approval, they remain the property
of the seller until the buyer has expressed his
approval or does any other act adopting the
transaction. (par. 2, Art. 1502, Civil Code) The sale
thus becomes absolute if the buyer does not signify
his approval or acceptance to the seller, but retains
the goods.
d. Abe purchased at Php5.00 per kilo all the
potatoes that farmer Rey had piled in a storage
bin on his vegetable farm. Rey was able to put the
potatoes in sacks to determine the price. Lighting
struck the bin, and the resulting heat and fire
ruined the potatoes.
Seller bears the loss of the potatoes. Article 1504 of
the Civil Code is explicit: goods remain at the
seller’s risk until the ownership therein is transferred
to the buyer (Art. 1504, Civil Code), either by actual
or constructive delivery thereof. (Art. 1477, Civil
Code). Parenthetically, the seller’s obligation to
deliver to Abe the same quantity of potatoes stored at
his storage bin is not extinguished by the loss of the
potatoes presently piled at his storage bin. Genus
nunquam peruit.
QUESTION NO. 169
Rey, a mechanic, performed Php5,000 worth of
repair work on Abe’s car, on a thirty-day credit
terms. Abe failed to pay the bill at the expiration
of the credit period, but returned the car to Rey
two months later for Php1,000 worth of additional
repairs. When the repairs were made, Rey refused
to deliver the car to Abe until Php6,000, the bill
for the full amount due him, was paid. Does Rey
have the right to retain possession of the car until
the full amount of the bill is paid?
Abe may demand delivery of his car upon payment of
the charges for the current repairs only. Rey’s
obligation to return the car arises from a contract of
deposit (Art. 1968, Civil Code) under which Rey as
depositary may retain the car in pledge until the full
payment of what may be due him by reason of the
deposit. (Art. 1994, Civil Code) Until Rey is
reimbursed of his expenses by reason of the deposit,
he may retain the car in pledge. Accordingly, Rey’s
lien does not extend to amounts owed for previous
service.
QUESTION NO. 170
Abe spent a night at a hotel, taking with him an
overnight bag. Because no rack was provided in
the room for a guest’s luggage, Abe placed his bag
on the floor. Later that night, when he came into
the room he tripped over the bag and injured
himself. Both Abe and the hotel are shown to have
been negligent in the creation of the situation that
led to Abe’s injuries. Is the hotel liable to Abe?
Abe’s contributory negligence relieves the hotel of
any liability to compensate Abe for Abe’s injury. The
hotelkeeper is not liable for compensation if the loss
is due to the acts of the guest himself, as in the case
of Abe in the problem. (Art. 2002, Civil Code)
QUESTION NO. 171
Donald, a Californian, and Ann, a poor girl from
La Union, are married. Two years into their
marriage, the couple purchased from Juan a
house in Baguio City. Although the sale was solely
financed by Donald, the sale document was issued
in Ann’s name as vendee. As a result, title to the
property was issued solely in Ann’s name as
owner. When the couple parted ways, Ann
immediately sold the house to Ben without her
husband’s consent.
a. If Donald maintains an action to annul the sale,
what would be his strongest cause?
Donald has no other recourse but to anchor his suit
on the argument that the sale is void because it was
made without his consent; that in bringing the action,
he is merely exercising the prerogative of a husband
in respect to absolute community property.
b. If the case goes to trial, what would be the most
likely result?
Being an alien, Donald is prohibited from acquiring
private and public lands in the Philippines. Because
Ann appeared to be the designated vendee of the
property, she acquired sole ownership thereto. This is
true even if Donald’s claim that he provided the
funds for such acquisition is to be sustained. By
entering into such contract knowing that it was
illegal, no implied trust was created in Donald’s
favor; no reimbursement for his expenses can be
allowed; and no declaration can be made that the
subject property was part of the conjugal or
community property.
In any event, Donald had, and has, no personality to
question the sale of the property by his wife on the
ground that in so doing, he was merely exercising the
prerogative of a husband in respect to conjugal
property. To sustain the argument would countenance
indirect violation of the constitutional prohibition. If
the property were to be declared conjugal, this would
accord the alien husband a substantial interest and
right over the land, as he would then have a decisive
vote as to its transfer or disposition. This is a right
that the Constitution does not permit him to have.
(Matthews v. Taylor, June 22, 2009)
QUESTION NO. 172
Abe intends to buy a new battery for his car. At
an auto parts supply store, a salesman tells Abe:
“This is the finest battery you can buy and we
guarantee that you will find it superior to any you
have owned. This battery will no doubt outlast the
life of the car itself.” Is the store liable for breach
of express warranty if the battery does not meet
the salesman’s statements?
No express warranty is created simply by the seller
expressing his personal opinion to the buyer, nor do
his statements to the buyer constitute a warranty if he
is just “talking up” the merchandise (called
“puffing”), even though the buyer may rely on such
statements. Even the use of the word “guarantee”
adds little, considering how it was used. A statement
of fact must be of the essence of the subject matter.
QUESTION NO. 173
An airline pilot bought a watch from a reputable
watch dealer. He stressed the importance of great
accuracy in any watch bought by him, and the
seller said, “In my opinion you will find this watch
the most accurate of any watch sold today. You
will be able to keep exact schedules by it.”
Suppose the watch does not meet such
specifications, does the pilot have a cause of
action?
Yes. Expressions of opinion by professionals or
experts may be accepted by others as statements of
fact under certain conditions. This is especially true
when the purchaser has no knowledge of the product
that he is buying. Although the seller prefaced his
remarks with the word “opinion,” under the
circumstances, his words would represent statements
of fact because of his position.
QUESTION NO. 174
Explain the requirement under Section 23 of PD
1529 that publication of the notice of initial
hearing in the Official Gazette “shall be sufficient
to confer jurisdiction upon the court.”
As explained by the Supreme Court in Republic v.
Marasigan, 198 SCRA 219, the provision under
Section 23 of PD 1529 was never meant to dispense
with the requirement of notice by mailing and
posting. What it simply means is that insofar as
publication is concerned, there is sufficient
compliance if the notice is published in the Official
Gazette. Although the law mandates that it be
published once in the Official Gazette and once in a
newspaper of general circulation in the Philippines,
publication in the latter alone would not suffice. This
is to accord primacy to the official publication in the
Official Gazette. According to the Supreme Court,
such provision was never meant to dispense with the
other modes of giving notice, which remains
mandatory and jurisdictional.
If the intention of the law were otherwise, Section 23
would not have stressed in detail the requirements of
mailing of notice to all persons named in the petition
who per Section 15 of the Decree, include owners of
adjoining properties and occupants of the land.
(NOTE: In Director of Lands v. Court of Appeals,
276 SCRA 276 [1997], the Supreme Court
categorically declared that publication of the notice
of initial hearing in a newspaper of general
circulation is mandatory and imperative. Without
publication, the land registration court cannot validly
confirm the title of the applicant for registration.)
QUESTION NO. 175
Henry and Wilma are the conjugal owners of a
ten-hectare farm. Upon the death of Henry,
Wilma immediately sold to Ben a 2,000-square
meter portion of the farm. The children of Henry
and Wilma later brought an action to annul the
sale on the ground that it was made without prior
liquidation of the conjugal partnership of their
parents. Will the action prosper?
No. Article 130 of the Family Code expressly
provides that if no liquidation of the conjugal
partnership is made within six months from the death
of a spouse, any disposition or encumbrance
involving conjugal partnership property of the
terminated marriage shall be void. This provision
must be read with Article 493 of the Civil Code
which allows a co-owner to alienate, assign, or
mortgage his undivided share in the co-owned
property. However, the effect of such alienation or
mortgage is limited only to the portion which may be
allotted to the co-owner upon the termination of the
co-ownership. The recourse of co-owners in cases
where their consent were not secured in a sale of the
entire property, as well as in the sale merely of the
undivided shares of some of the co-owners, is an
action for partition under Rule 69 of the Rules of
court. (Heirs of Go v. Go, G.R. No. 157537, Sept. 7,
2011)
QUESTION NO. 176
Ana, a Filipina nurse, married Brent, an
American engineer, in Baguio City. A few days
after the wedding, they immediately left for
California to reside there permanently. Anna then
became a naturalized American citizen. Five years
later, Ana and Brent came to the Philippines for a
short visit. When the couple visited Ana’s
hometown, they decided to adopt Ana’s younger
brother to give him a better future. Are Ana and
Brent qualified to adopt Ana’s younger brother?
No. Under the Domestic Adoption Act, an alien is
qualified to adopt a Filipino child only if a) he is a
former Filipino citizen who seeks to adopt a relative
within the fourth civil degree of consanguinity; b) he
seeks to adopt the legitimate or illegitimate child of
his Filipino spouse; and c) he is married to a Filipino
citizen and seeks to adopt jointly with his spouse a
relative within the fourth civil degree of
consanguinity or affinity of the Filipino spouse.
Here, Ana and Brent are aliens seeking to adopt a
Filipino child. Being a former Filipino citizen, Ana is
qualified to adopt because the child to be adopted is
her relative within the fourth degree of
consanguinity. While Ana is qualified, Brent is not
because he does not fall under one of the exceptions.
First, he is not a former Filipino citizen who seeks to
adopt a relative within the fourth civil degree of
consanguinity. second, he is not seeking to adopt the
legitimate or illegitimate child of Ana; and third, he
is not married to a Filipino citizen who seeks to adopt
jointly with his spouse a relative of the latter within
the fourth civil degree of consanguinity or affinity.
And even if Ana is qualified to adopt her brother, she
cannot file the petition for adoption by herself. The
Domestic Adoption Act specifically provides that the
husband and wife shall jointly adopt, except if one
spouse seeks to adopt the legitimate child of the
other; or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally
separated from each other.
Here, Ana cannot file the petition for adoption by
herself because the child to be adopted is not the
legitimate child of Brent, nor is the child the
illegitimate child of Ana. Moreover, Ana and Brent
are not legally separated.
QUESTION NO. 177
Abe is a sales representative of a drug company
who looks exactly like Vic Sotto. In one of his
provincial sorties, he met Tessie, a winsome lass
from an affluent family. To win Tessie’s affection,
Abe acted and pretended to be Vic Sotto. After a
brief courtship, Tessie fell in love with Abe. In less
than a year, Tessie realized her mistake when she
discovered that Abe is not Vic Sotto. Does Tessie
have a remedy?
Tessie does not have any remedy. She cannot seek to
declare the marriage void on the ground of mistaken
identity of the other party, Here, she married Abe
who was the very person she fell in love with.
Neither can she sue for annulment of marriage on the
ground of fraud. To annul a marriage, only the
circumstances enumerated under Article 46 of the
Family Code constitute fraud. No other
misrepresentation or deceit as to character, rank,
fortune or chastity shall constitute such fraud as will
give grounds for the annulment of marriage.
QUESTION NO. 178
Determine which of the following statements is
correct. Explain your answer.
a. When a right to sue upon a civil obligation has
lapsed by extinctive prescription, the obligor who
voluntarily performs the obligation can recover
what he has delivered or the value of the services
he has rendered.
b. Natural obligations grant a right of action to
enforce their performance, and after voluntary
fulfillment by the obligor, they authorize the
retention of what has been delivered or rendered
by reason thereof.
c. When a testate or intestate heir voluntarily pays
a debt of the decedent exceeding the value of the
property, which he received by will or by the law
of intestacy from the estate of the decedent, the
payment is valid and cannot be rescinded by the
payor-heir.
The statement in (c) is correct because an heir who
pays the debt of a decedent in excess of his
inheritance is estopped from rescinding the payment.
His only recourse is to recover the excess from the
decedent’s estate.
The statement in (a) is wrong because a debtor’s
voluntary payment of the debt despite his knowledge
that the debt had already prescribed does not entitle
him to recover. His payment constitutes a natural
obligation under Article 1423 of the Civil Code.
The statement in (b) is wrong because a natural
obligation - unlike a civil obligation which is based
on positive law - derives its binding force from equity
and justice, and does not grant a right of action to
enforce its performance; but after voluntary
fulfillment by the obligor, it authorizes the retention
of what has been delivered or rendered by reason
thereof.
QUESTION NO. 179
With prior court approval, Greg, guardian of
Willy, a minor, sells the 2010 Mitsubishi Montero
which Willy inherited from his deceased parents
for Php500,00 although the vehicle was worth
PhpPhp1 million at the time of the sale. What is
the legal standing of the sale?
The sale is valid despite the fact that Willy suffered
lesion by more than one fourth of the value of the
vehicle. This is because the sale was made with prior
court approval. Had the sale been made without court
approval, the sale would have been a complete nullity
and even unenforceable against Willy.
QUESTION NO. 180
Abe and Bea, a childless couple, brought into their
home Christian, the infant son of their driver who
died in an accident. The couple took care of
Christian, doted on him and treated him as their
own son. When Christian went to Manila to study,
Abe and Bea became so lonely that they adopted
Digna, a 10-year old orphan.
After several years, Christian and Digna fell in
love and, when both were over 25, they got
married without informing Abe and Bea.
Believing that it was unfair not to have legally
adopted Christian, Abe and Bea decided to adopt
him. The court granted the adoption.
a. Is Christian’s adoption valid?
Yes. Even assuming that Christian was already of
legal age when Abe and Bea adopted him, the decree
of adoption is still valid because a person of age can
be adopted if he had been consistently considered and
treated by the adopter as his or her own child during
minority.
b. What is the standing of Christian’s marriage to
Digna?
Christian’s marriage to Digna is valid. Article 38 (8)
of the Family Code expressly declares by reason of
public policy that a marriage between adopted
children of the same adopter is void. This prohibition
does not apply here because at the time of their
marriage, Christian was not yet the legally adopted
child of Abe and Bea.
QUESTION NO. 181
Abe and Ana travelled to Boracay with their
friends and co-employees on a company outing.
While swimming, Abe shouted for help. Because
Abe appeared to be frantic and drowning, the life
guard on duty swam to where Abe was and
rescued Abe. At the beach, Abe begged Ana to
marry him, declaring his undying love for her.
Believing that Abe was at the point of death, Bea
consented, and they were married instantly by a
priest who was nearby.
After the ceremony, Abe bounced back to life as if
nothing happened. He then confided to his friend
that he pretended to be drowning when he
shouted for help. Abe died of drowning the
following day. What is the legal standing of Abe’s
marriage to Ana?
The marriage is void for lack of a valid marriage
license. A marriage in articulo mortis is exempt from
a marriage license. It is a marriage where either or
both parties are at the point of death. Abe was not at
the point of death when the marriage was performed.
Consequently, the marriage is not a marriage in
articulo mortis which would have excused Abe and
Ana from securing a marriage license. That Abe died
of drowning the following day does not detract from
the fact that at the time of the marriage, Abe was not
at the point of death.
QUESTION NO. 182
Tom, a widower, 89 years of age and suffering
from minor ailments, including decreased hearing
and impairment of vision, made a will a month
before his death leaving an estate valued at
Php900,000. In his will, Tom disinherited his son,
Abe, without stating the reason therefor. Tom
emphatically stated in his will that his two other
children, Bea and Carl, are the only heirs who are
to inherit from his estate to the exclusion of Abe.
Tom appointed Rey as executor of his will.
Distribute Tom’s estate.
The institution of Bea and Carl as Tom’s heirs
remains valid, but their shares are to be reduced to
allow Abe to receive his legitime. Abe is entitled to
his legitime because he was disinherited for no cause
by his father. Had there been preterition here, as
when Abe was omitted from the inheritance, Tom’s
three children would be entitled to receive
Php300,000 each from the estate. But because this is
not a case of preterition but one for ineffective
disinheritance, the estate would be distributed as
follows:
Abe: 150,000 (legitime)
Bea: 150,000 (legitime)
225,000 (free portion)
Carl: 150,000 (legitime)
225,000 (free portion)
________
900,000
QUESTION NO. 183
Pedro died without a will. He is survived by his
legitimate children (Abe and Bea); his widow
(Wendy); and illegitimate child (Carl). The net
value of Pedro’s estate is Php1.4 million.
Distribute Pedro’s estate.
Satisfy the legitimes of the heirs first. The balance
must be divided among the heirs in the proportion of
2:2:2:1.
LEGITIMES:
Abe 350,000
Bea 350,000
Wendy 350,000
Carl 175,000
________
BALANCE 175,000
The balance of 175,000 is to be divided equally
among the heirs in the proportion of 2:2:2:1. Thus,
Abe, Bea, and Wendy are entitled to 2/7 each of
175,000, or 50,000 each. Carl is entitled to 1/7 of
175,000, or 25,000. The final distribution would be
as follows:
Abe 350,000 plus 50,000
Bea 350,000 plus 50,000
Wendy 350,000 plus 50,000
Carl 175,000 plus 25,000
TOTAL 1.4 million
QUESTION NO. 184
Determine the proper remedy of the aggrieved
party in the following cases. Explain your answer.
a. Abe, pretending to be a horticulturist, sells to
Tessie a bonsai plant which he claims will bear
cherry tomatoes. Tessie buys the bonsai plant
only to learn later that it won’t bear fruit.
b. Abe, a florist, agrees to decorate the tables at
the wedding reception of Tessie’s daughter. In
the purchase order form, Abe agreed to supply
12 table centerpieces made of a bunch of yellow
roses in elaborate floral arrangement. Instead,
Abe delivers 12 centerpieces made of a single
yellow rose surrounded by Malaysian mums.
c. Rey hires Abe to transport Rey’s friends to Mt.
Pinatubo for a trek to the summit on a 4x4
vehicle due to the difficulty of the terrain. Abe
borrows a vehicle from Larry, but Larry lends
Abe a vehicle which is not 4x4.
d. Ana sells to Bea her diamond ring. Bea,
accompanied by Ana, brings the ring to an
appraiser who certifies the ring to be genuine.
Unknown to Bea, Ana had the appraiser
examine a different ring such that the ring that
was brought by Bea was not real.
Tessie has no remedy in (a). No express warranty is
created simply by the seller expressing his personal
opinion to the buyer, nor do his statements to the
buyer constitute a warranty if he is just “talking up”
the merchandise (called “puffing”), even though the
buyer may rely on such statements. Even the use of
the word “guarantee” adds little, considering how it
was used. A statement of fact must be of the essence
of the subject matter.
Abe is liable for damages in (b) for breach of the
obligation. Article 1170 of the Civil Code refers to
incidental fraud (dolo incidente) committed in the
performance of an obligation already existing
because of a contract. Here, Abe is liable because he
deviated from his agreement with Tessie to decorate
the centerpieces with a bunch of yellow roses.
Abe is liable for damages in (c) because he deviated
from his undertaking to transport Rey and his friends
on board a 4x4 vehicle which is an essential element
of the undertaking given the difficult terrain of in
reaching the summit of Mt. Pinatubo.
Bea can sue for annulment of the sale with damages
in (d) on the ground that Ana committed fraud in
inducing Bea to agree to the sale. It is clear here that
had Bea known that she was not buying a genuine
diamond ring, she would not have consented to the
sale.
QUESTION NO. 185
Abe, 70, lends Rey Php1 million with interest at
15% per annum. When the loan fell due, Rey
attempted to deliver a personal check to Abe,
inclusive of the stipulated interest, but Abe refuses
to see him. Apparently, Abe suffers from
dementia; and there is a pending proceeding to
place him under guardianship. The court has
temporarily placed Abe in the care of his nephew,
Larry, as guardian ad litem pending the issuance
of letters of guardianship that will officially
appoint Larry as Abe’s guardian. What is Rey’s
remedy?
Rey is obliged to tender the payment to Larry
pursuant to Article 1240 of the Civil Code which
provides that payment shall be made to the person in
whose favour the obligation has been constituted, or
his successor in interest, or any person authorized to
receive it. Since Abe, the creditor, was placed in the
care of a temporary guardian ad litem who is
authorized to administer Abe’s estate pending the
appointment of a permanent guardian, the temporary
guardian is decidedly a person authorized to receive
the payment.
QUESTION NO. 186
Paterno, 87, died of a heart attack without a will.
Surviving Paterno were his widowed mother
(Marie); his wife (Wendy); his legitimate children
(Abe and Bea); his grandson (Eric) who is the son
of Bea; another grandson (Fidel) who is a
legitimate son of Carl, Paterno’s legitimate son
who died five years ago; and another grandson
(Greg) who is the legitimate son of Dante, a
legitimate son of Paterno who repudiated his
inheritance. How shall Paterno’s estate of Php1.2
million be distributed?
The legal heirs of Paterno are Abe, Bea, Fidel, and
Wendy. Eric is excluded by his mother Bea who is
still alive. Fidel represents Carl who predeceased
Paterno. Greg is excluded because of the repudiation
of Dante. Marie is likewise excluded in view of the
survival of Paterno’s legitimate children.
In addition to their respective legitimes, Abe, Bea,
Fidel and Wendy are entitled to equal shares in the
free portion of Php400,000. Therefore, the final
distribution of Paterno’s estate is as follows:
Abe 200,000 plus 100,000
Bea 200,000 plus 100,000
Fidel 200,000 plus 100,000
Wendy 200,000 plus 100,000
QUESTION NO. 187
With her deceased first husband, Bea begot two
children, Don and Eric. With her deceased second
husband, Bea begot Fidel, Greg, Henry, and Inigo.
Bea died last year followed by Don who died this
year without a will. Don was survived by all his
siblings. The net value of Don’s estate is Php1.2
million.
a. How shall Don’s estate be distributed?
The rule of double share for full-blood relative
applies. Here, Eric is entitled to a share double that of
his half-siblings Fidel, Greg, Henry, and Inigo.
Therefore:
Eric 400,000
Fidel 200,000
Greg 200,000
Henry 200,000
Inigo 200,000
________
1.2 million
b. Suppose Don’s siblings had predeceased him,
and the only survivors are his nephew, John, the
legitimate son of Eric, and his nephews, Kurt and
Lyle, the legitimate children of Henry, how
should the estate be divided?
The rule of double share for full-blood collateral still
applies. If there are nephews and nieces surviving the
decedent, relationship by the whole or half-blood
becomes material in the distribution of the estate.
Here, all the nephews inherit in their own right
because they do not concur with an uncle or aunt.
John 600,000
Kurt 300,000
Lyle 300,000
________
1.2 million
QUESTION NO. 188
After securing a marriage license, Abe and Bea,
both residents of Manila, went to the Office of the
Mayor of Baguio City, to get married. The mayor
was not at his office but a secretary at the office
asked Abe and Bea and their witnesses to fill up
and sign the marriage contract forms. Thereafter,
the secretary went out of the office to look for the
mayor who she found in another office holding a
meeting. The mayor signed all copies of the
marriage contract and gave them back to the
secretary who returned to the office. The
secretary then gave a copy of the marriage
contract to Abe and Bea and told them they are
already married. What is the legal standing of the
marriage?
The marriage is void because the mayor did not
perform a ceremony. A marriage ceremony is one
which takes place with the appearance of the
contracting parties before the solemnizing officer and
their personal declaration that they take each other as
husband and wife in the presence of not less than two
witnesses of legal age. (Article 3[3], Family Code)
QUESTION NO. 189
Ana is the wife of Abe. Abe was among the
passengers on board a passenger plane that
mysteriously crashed in 2002. Five years after the
crash, and believing that her husband had died in
the crash, Ana married Rey. The marriage was
performed without Ana obtaining a prior judicial
declaration of her missing husband’s presumptive
death. Ten years later, the authorities found the
remnants of the plane. After a diligent search,
Abe’s body was recovered. Per official report
submitted by government officials on the cause of
the accident, no passenger survived in the plane
crash. What is the status of Ana’s marriage to
Rey?
The marriage is valid because there was no
impediment to the valid celebration of Ana’s second
marriage, Ana’s husband being dead at that time.
That there was no prior judicial declaration of
presumptive death of Ana’s husband before Ana’s
remarriage is of no moment because it turned out that
the husband died in the plane crash thereby removing
any impediment to Ana’s remarriage.
QUESTION NO. 190
Maria, an illiterate widow, verbally sold to Pedro
in 1978 the farm which she and her deceased
husband had acquired by way of free patent from
the government in 1974. After receiving the
agreed purchase price, Maria vacated the
property and turned over possession to Pedro.
Shortly after Maria’s death in 1994, Pedro
attempted to resell the farm, but failed to do so
because the title remained in Maria’s name.
Informed of the attempted sale, Maria’s only
child, Juan, demanded that Pedro vacate the
property and return it to Juan. Juan is aware of
the previous sale but he was a still minor at the
time of the sale.
a. Does Juan still have a remedy?
Yes. Juan’s remedy is to file an action for the
recovery of the property or for declaration of nullity
of the sale on the ground that the contract of sale is
void for being contrary to public policy.
b. Has the action prescribed?   and recorded in the civil registry together with the
The action has not yet prescribed. The sale of the
land by Maria to Pedro four years after the issuance
of the free patent, being in violation of Section 118 of
the Public Land Act, is void from its inception.
Juan’s action to declare the nullity of the contract
and to recover the land should therefore be given due
course. The defense of prescription is even untenable
because an action which seeks to declare nullity of a
contract does not prescribe. (Art. 1410, Civil Code)
c. Can Pedro successfully invoke the pari delicto
doctrine rule in his defense?
No. While as a rule, parties who are in pari delicto
have no recourse against each other on the principle
that a transgressor cannot profit from his own
wrongdoing (Art. 1412[1], Civil Code), such rule
does not apply to violations of Section 118 of the
Public Land Act. This is so because of the underlying
public policy in said law to conserve the land which a
homesteader has acquired by gratuitous grant from
the government for himself and his family.
QUESTION NO. 191
Abe and Bertha, both of marriageable age and not
suffering from any impediment, are living
together as husband and wife without the benefit
of marriage. Not able to beget a child after five
years of cohabitation, they sought medical advice
from a doctor. After some tests, the doctor found
Abe to be sterile. Longing to have a child, Bertha
underwent artificial insemination using the sperm
of Abe’s brother, Rey. The consent of the three to
the procedure was reduced in writing. Lea later
gave birth to Larry. Which of the following
statements accurately describes Larry’s status?
a. Larry is the legitimate child of Abe and Bertha
because their consent to the medical procedure
was in writing pursuant to law.
b. Larry is the illegitimate child of Abe and
Bertha because the couple are not married.
c. Larry is the illegitimate child of Rey and
Bertha because they are the biological parents.
d. Larry is the illegitimate child of Bertha
because she is not married and there is no
presumption as to who the father is.
e. There is no presumption as to Larry’s status.
The statement in (e) is correct because there is no law
which provides for the status of a child born of
artificial insemination procured by persons who are
not lawfully married, as in the case of Abe and
Bertha.
The statement in (a) is wrong. Larry is not the
legitimate child of Abe and Bertha because they are
not lawfully married. This is clear from the provision
under the second paragraph of Article 164 of the
Family Code which declares that 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 legitimate children of the husband and his wife
provided that both of them authorized or ratified such
insemination in writing before the birth of the child
birth certificate of the child.
The statement in (b) is wrong because Larry is not
the illegitimate child of Abe and Bertha. The
provision under Article 165 of the Family Code that
“children conceived and born outside a valid
marriage are illegitimate” is applicable only when the
child was naturally conceived, and not through
artificial insemination.
The statement in (c) is wrong for the same reason
stated in the preceding paragraph.
The statement in (d) is wrong for the same reason
stated in the preceding paragraph.
QUESTION NO. 192
Determine the validity of the following marriages:
a. Abe is married to Bea, while Carol is married to
David. Abe and Carol are legitimate brother and
sister, respectively. Upon the death of Abe and
Carol who died in the same plane crash, Bea
marries David.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Article 38 of the
Family Code enumerates the marriages which are
void by reason of public policy. Bea’s marriage to
David is not one of those prohibited.
b. Abe, the only son of Pedro, is lawfully married
to Bea, the only daughter of Maria. Pedro a
widower, later marries Maria who is herself a
widow.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Article 38 of the
Family Code enumerates the marriages which are
void by reason of public policy. Pedro’s marriage to
Maria is not one of those prohibited.
c. Pedro is a widower, while Maria is a widow.
Being sweethearts in high school, they rekindled
their long lost love and got married. After several
years, Abe, Pedro’s son by his former marriage,
marries Bea, Maria’s daughter by her deceased
husband.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Abe and Bea are
stepbrother and stepsister, respectively. Article 38 of
the Family Code enumerates the marriages which are
void by reason of public policy. Abe’s marriage to
Bea is not one of those prohibited.
d. Abe, a narcotics agent, kills Bene, a notorious
drug pusher. Abe is later acquitted of Ben’s
killing, and marries Cynthia, Ben’s widow.
Abe’s marriage to Cynthia is valid because Ben’s
killing by Abe was not for the purpose of marrying
Cynthia, but in line with his duty as a narcotics agent.
e. Arnold, single, adopted Brad. Carol, also single,
adopted Dina. Arnold and Carol get married.
Fifteen years later, Brad marries Dina.
The marriage is valid because it is not contrary to
public policy. While Article 38 (8) of the Family
Code prohibits the marriage between adopted
children of the same adopter, Brad and Dina are not
the adopted children of the same adopter – Brad
being the adopted child of Arnold, and Dina being
the adopted child of Carol.
f. Abe is Bea’s husband. Upon Abe’s death, Bea
marries Pedro, the widowed father of Abe.
The marriage is void because it is a marriage between
a father-in-law and a daughter-in-law which is
prohibited under Article 38 (3) of the Family Code
for being contrary to public policy.
g. Maria, single, adopted Carol, the infant
daughter of her driver. A few years later, Maria
gives birth to David out of her relationship with
her boyfriend, Abe, a good for nothing gigolo.
Maria doted on Carol and treated her as if she
were her son. Maria also took care of David and,
together with Carol, sent both children to
exclusive schools. In college, David falls in love
with, and marries Carol.
The marriage is valid because it is not contrary to
public policy. While Article 38 (7) of the Family
Code prohibits the marriage between an adopted
child and a legitimate child of the adopting parent,
there is no similar prohibition regarding the marriage
between an adopted child and an illegitimate child of
the adopting parent.
QUESTION NO. 193
Pedro, an illegitimate person, dies without a will.
He is survived by his father (Fidel); his widow
(Wanda); his brother (Arnel); and his two other
brothers (Ben and Cosme), the children of his
father from a lawful marriage. The net value of
Pedro’s estate is Php1.2 million. What are the
distributive shares of the heirs?
Only Fidel and Wanda are entitled to inherit from
Pedro’s estate, at Php600,000 each. Illegitimate
parents, such as Fidel, do not exclude the surviving
spouse. Arnel, Ben, and Cosme, Pedro’s brothers, are
not entitled to inherit because they are excluded by
Fidel under the principle of preference of line.
QUESTION NO. 194
Tristan named his legitimate children (Arnel and
Ben) and his friend (Fidel) as his heirs to an estate
of Php6 million. Tristan dies. Divide the estate.
The institution of Arnel, Ben and Fidel concerns only
the free disposal of Php3 million. Arnel and Ben are
first given their respective legitimes (Php1.5 million
each. The free disposal is then divided equally among
the three instituted heirs:
Arnel: 1.5 million (compulsory heir)
1 million (voluntary heir)
Ben: 1.5 million (compulsory heir)
1 million (voluntary heir)
Fidel: 1 million (voluntary heir)
QUESTION NO. 195
Is a motion for intervention in a land registration
case proper?
No. Unlike in ordinary civil actions where parties
may include a plaintiff, a defendant, a third-party
complainants, cross-claimants, and intervenors, the
only parties in cases of original applications for land
registration are the applicant and the oppositor. (Secs.
14 , 25 PD 1529) If a party desires to be heard in a
land registration case, he should ask for the lifting of
the order of general default, and then if lifted, file an
opposition to the application for registration.  
QUESTION NO. 196
Is a motion to dismiss allowed in a land
registration case?
Yes. Both the Land Registration Act (Act No. 496)
and the Property Registration Decree of 1978 (PD
No. 1529) do not provide a prohibition for the filing
of a pleading similar to a motion to dismiss. Section
34 of PD 1529 specifically provides that, “the Rules
of Court shall, insofar as not inconsistent with the
provisions of this Decree, be applicable to land
registration and cadastral cases by analogy or in a
suppletory character and whenever practicable and
convenient.”
QUESTION NO. 197
Husband is the operator of a public utility vehicle
which meets an accident resulting in the death of a
passenger. When judgment is rendered against
him, and execution is levied on a conjugal house
and lot, he claims that the share of his wife in the
property should not be made to answer for the
debt. Is Husband’s contention tenable?
Yes. The absolute community is not liable because of
par. 9, Article 94 of the Family Code, which provides
that “liabilities incurred by either spouse by reason of
a crime or quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-
spouse…” presupposes that the husband alone is
liable, but the payment may be advanced by the
community property to be deducted from the
husband’s share upon liquidation of the community.
QUESTION NO. 198
Abe and Betty, husband wife, are the parents of
Arnel and Ben. By a previous marriage, Abe has
a legitimate child, Carl. Also by a previous
marriage, Betty has a legitimate child, Denver.
Abe gave each of the four children for their
education a donation, but did not get Betty’s
consent. Who is liable for the value of the
donations?
The donations given to Arnel and Ben are valid
because they were made to the common children of
Abe and Betty in furtherance of the career of both
children. Therefore, the expenses are to be borne by
the absolute community despite the fact that Betty’s
consent had not been obtained.
On the other hand, the donation given to Carl is valid,
but the absolute community is not liable. Only the
husband is liable. It is true that it was given for the
purpose of finishing a career, but here the consent of
the wife was not obtained. Carl is not a common
child of Abe and Betty, but of Abe only. The
donation given to Denver is void. This is so because
the donation would be an indirect donation of Abe to
Betty who is a presumptive heir of Denver.
QUESTION NO. 199
If useful improvements can be removed by the
possessor in good faith without injury, may the
owner retain them? If so, how much should the
owner refund to the possessor in good faith?
A possessor in good faith has the right to remove his
useful improvements provided no substantial damage
or injury is caused to the principal, reducing its value,
unless the owner refunds to the possessor in good
faith the amount spent in the increase in value which
the thing may have acquired by reason of the
improvements.
QUESTION NO. 200
Abdul is a barter trader in Zamboanga City. He
communicates via text messaging to Kiram, who is
based in Jolo, to transact business. Last month,
he agreed with Kiram to exchange a cargo of batik
clothing, numbering 200 pieces of assorted shirts,
malong, and skirts, with a cargo of 50 boxes of
canned goods imported from Australia. Kiram
received the batik items, but did not send the
canned goods to Abdul because of news reports
that the incursion of Abu Sayyaf had stopped the
barter trade. Is Kiram in breach of his obligation?
Yes, because he failed to do what is incumbent upon
him upon delivery of the batik goods to him.
Moreover, Kiram is not even allowed to invoke the
defense of fortuitous event considering that he was
already in delay in the performance of his obligation.
QUESTION NO. 201
Abe promises to sell to Melany a parcel of land at
a reduced price on condition that Melany should
stay single and not marry anyone. Melany
subsequently enters a convent to become a nun.
The following year, Melany demands fulfilment of
Abe’s promise. Is Abe bound by his promise?
Abe is not obliged to sell the land to Melany because
the condition attached to it is contrary to law and
public policy as an undue restraint on individual
freedom.
QUESTION NO. 202
Abe owes Rey Php2 million payable on or before
December 31. To secure the loan, Abe executes a
mortgage in favor of Rey on Abe’s building. On
October 25, the mortgaged building is totally
destroyed in a fire of accidental origin. After the
fire, Rey immediately demands payment from
Abe. Is Rey’s demand valid?
Yes. The debt becomes due and demandable at once
because the security is lost even through a fortuitous
event, unless the debtor can furnish another security
for the loan which is equally satisfactory. (Art. 1198,
Civil Code) This is once instance where the debtor
loses the benefit of the period.
QUESTION NO. 203
Husband catches Wife having illicit relations with
Gigolo. Husband then tells Wife that he will file an
action against her for legal separation to which
the latter agreed provided she will not be charged
criminally. Husband promptly files a complaint
for legal separation. Wife defaults. When
questioned by the Public Prosecutor why she
failed to file an answer, Wife signifies her
intention to the petition for legal separation. Is
there a confession of judgment?
No. On the contrary, the petition for legal separation
should be granted in view of the presence of other
evidence. Here, there was only an extra-judicial
admission and not a confession of judgment (which
usually happens when the defendant appears in court
and confesses the right of plaintiff to judgment or
files a pleading agreeing to plaintiff’s demand).
Even if the statement of Wife really constitutes a
confession of judgment, still, inasmuch as there is
evidence of sexual infidelity on the part of the wife
independently of such statement, the decree of legal
separation would be premised not on her confession,
but on the strength of the evidence of sexual
infidelity on the part of the wife. What the law
prohibits is a judgment based exclusively on the
confession of judgment. If a confession can
automatically and itself defeat the suit, any defendant
who opposes the legal separation will immediately
confess judgment, purposely to prevent the giving of
the decree.
QUESTION NO. 204
Under Article 58 of the Family Code, an action for
legal separation must not be tried before six
months have elapsed since the filing of petition,
the purpose being to provide the parties a cooling-
off period. Is this requirement absolute?
An action for legal separation requires a “cooling-
off” period of six months. However, when the ground
alleged is one of those falling under R.A. No.9262
(Anti-Violence Against Women and their Children
Act), there is no such “cooling-off” period because
the courts are mandated to proceed with the hearing
of the case as soon as possible. (Sec. 19, RA No.
9262)
QUESTION NO. 205
Homer is married to Winda. Before their
marriage, Winda confessed to Homer that she was
two-month pregnant with the child of an African-
American engineer who had already left the
country. When the child was born, Homer could
not accept it for being too black in complexion.
What is the status of the child?
The child is the legitimate child of Homer and Winda
because it was born within a valid marriage. This is
so because under the law, a child conceived and born
during lawful wedlock is almost conclusively
presumed legitimate. The presumption is almost
conclusive because the law allows certain grounds to
disprove it. (Art. 164, Family Code)
QUESTION NO. 206
Husband and Wife are living separately from each
other. After their separation, Wife cohabited with
Gigolo from 1985 up to the latter’s death in 2005.
In 1994, Wife gave birth to Son. During the three-
day stay of Wife at the hospital, Gigolo visited and
stayed with her and the new-born baby. All the
medical and hospital expenses, food, and clothing
of Wife and the baby were paid under the account
of Gigolo.
A few months later, Gigolo would bring Son to his
office, introduce him as his son, and had their
pictures taken together. On the occasion of
Gigolo’s last birthday, he expressly acknowledged
Son to be his son in the presence of a priest and
other friends. Since his birth, Son had been in
continuous possession and enjoyment of the status
of a recognized child of Gigolo by the latter’s
direct and overt acts. After Gigolo’s death, Wife,
as guardian of Son, brought an action to claim his
son’s share in the estate of Gigolo claiming that
her son is the illegitimate child of the deceased. Is
Son the illegitimate child of Gigolo?
No. A child born and conceived during a valid
marriage is presumed to be legitimate. While
physical impossibility for the husband to have sexual
intercourse with his wife is one of the grounds for
impugning the legitimacy of a child born to the wife,
the grounds for impugning such legitimacy under
Article 166 of the Family Code may only be invoked
by the husband, or in proper cases, his heirs under the
conditions set forth under Article 171 also of the
Family Code.
Outside of these cases, no one - even the heirs - can
impugn legitimacy. If the husband who is presumed
to be the father does not impugn the legitimacy of the
child, then the status of the child is fixed and the
latter cannot choose to be the child of his mother’s
alleged paramour. Moreover, it is settled that a child
born within a valid marriage is presumed legitimate
even though the mother may have declared against its
legitimacy or may have been declared as an
adulteress. (Liyao v. Liyao, 378 SCRA 563 [2002])
QUESTION NO. 207
In his will, Tom named his legitimate children
(Abe and Ben) and his friend (Fidel) as his
universal heirs. Abe predeceased his father (Tom)
without any descendant to inherit from him. Tom
died with an estate valued at Php600,000. Divide
the estate.
Abe’s supposed share in the legitime (Php150,000)
goes to his brother, Ben, who will inherit it in his
own right since it is the legitime. Abe’s share in the
free portion (Php50,000) will go equally to Ben and
Fidel by accretion since it is the proportion in which
they were instituted to the free portion. If Fidel
predeceases Tom, his share in the free portion will go
to Abe and Ben by accretion. It is so because they
were instituted as voluntary heirs.
QUESTION NO. 208
Paco has three legitimate brothers (Abe, Ben, and
Chad) Abe predeceases Paco, but he is survived by
his legitimate child, Arnel. Ben is incapacitated,
but he has two legitimate children, Brad and
Bien. Chad repudiates the inheritance. How shall
Paco’s intestate estate of Php1.2 million be
distributed?
The Php400,000 share of Abe who predeceased his
brother, Paco, goes to his legitimate child, Arnel, by
representation. The Php400,000 share of Ben who is
incapacitated to inherit goes to his legitimate
children, Brad and Bien, also by representation, or
Php200,000 each. The Php400,000 share of Chad
who repudiated the inheritance goes to Arnel, Brad
and Bien by accretion in the same proportion that
they inherit, or in the proportion of 2:1:1.
Arnel 400,000 by representation
200,000 by accretion
Brad 200,000 by representation
100,000 by accretion
Bien 200,000 by representation
100,000 by accretion
QUESTION NO. 209
What are the essential characteristics of a decree
of registration or certificate of title?
FIRST: A decree of registration or the corresponding
certificate of title binds the land, quiets title thereto,
and is conclusive against all persons, including the
government.
SECOND: After one year from its entry or even
earlier in cases where title to the land has been
transferred to an innocent purchaser for value, the
decree becomes final and incontrovertible.
THIRD: A torrens title issued pursuant to a
homestead patent, free patent, or sales patent under
the Public Land Act has the same force and effect as
a Torrens title.
FOURTH: The operative act that conveys or affects
a registered land is the act of registration insofar as
third persons are concerned.
FIFTH: No title to registered land in derogation of
the title of the registered owner shall be acquired by
prescription or adverse possession. However, the
registered owner may be barred from invoking the
imprescriptibility of his title by virtue of the equitable
principle of laches. (Heirs of Batiog-Lacamen v.
Heirs of Lauran, 65 SCRA 605)
SIXTH: Torrens titles are not subject to collateral
attack. It cannot be altered, modified, or cancelled,
except in a direct proceeding in accordance with law.
QUESTION NO. 210
Which of two titles is superior: an earlier title
secured administratively or a later title secured
through a judicial proceeding?
The person holding the prior certificate of title is
entitled to the land as against the person who relies
on the second certificate. Pursuant to Section 32 of
P.D. No. 1529, upon the expiration of one year from
the issuance or entry of the decree of registration, the
decree and certificate shall become indefeasible and
incontrovertible. This provision also applies to titles
acquired through homestead or other public land
patents. (Lahora v. Dayanghirang, 37 SCRA 346)
QUESTION NO. 211
If the title of a land applicant to a public
agricultural land is incomplete or imperfect, what
is his ultimate remedy under the law?
If the applicant of a parcel of land cannot sustain his
claim of private ownership or does not have enough
evidence to overcome the presumption that the land
belongs to the public domain under the Regalian
Doctrine, his ultimate recourse is to admit that the
land is a public land but invoke his right to confirm
his imperfect or incomplete title to the land under
Section 48 of the Public Land Act, C.A. No. 141.
QUESTION NO. 212
Which of the following marriages would a court
most likely declare void?
a. Abe and Bea are married and have a son,
Charlie, who is 19. David and his girlfriend,
Elnora, have a daughter, Fiona, who is 18. Abe
and David are brothers. Charlie and Fiona got
marriage last year with the consent of their
parents.
b. Arnulfo and Anabelle are husband and wife.
Anabelle died of pancreatic cancer two years
ago. Distraught by his wife’s death, Arnulfo
married Angela, 26. Anabelle and Angela are
sisters.
The marriage in (a) between Charlie and Fiona
would most likely be declared void, but not the
marriage in (b) between Arnulfo and his sister-in-
law, Angela.
The marriage in (a) is void because Charlie and Fiona
are first cousins. Their marriage is void under Article
38 (a) of the Family Code because they are collateral
relatives within the fourth civil degree of
consanguinity, and it doesn’t matter whether their
relationship is illegitimate.
The marriage in (b) is valid because Arnulfo was no
longer suffering from any impediment when he
married his sister-in-law, Angela. A marriage
between a brother-in-law and a sister-in-law is valid
because it is not one of those prohibited by law for
reasons of public policy. (Art. 38, Family Code)
QUESTION NO. 213
Tom executed a will giving a legacy of Php1
million to his friend, Frank. Tom executed the will
in the presence of three instrumental witnesses.
One of the instrumental witnesses was Frank. Is
the will valid?
The will is valid and binding because of the presence
of three instrumental witnesses, but Frank is
incompetent to receive the legacy. If a person attests
the execution of a will, to whom a devise or legacy is
given by such will, such devise or legacy, so far as
such person is concerned, shall be void, unless there
are three other competent witnesses to such will.
However, such person so attesting shall be admitted
as a witness as if such devise or legacy had not been
made or given. (Art. 823, Civil Code)
QUESTION NO. 214
Abe, single, died without a will with an estate
valued at Php1.2 million. He is survived by the
following relatives:
a. Ana, the daughter of Rey, the latter being
Abe’s legitimate brother. Rey has never been
married.
b. Bea, the daughter of Sam, the latter being
Abe’s legitimate brother. Sam was not yet
married to Bea’s mother when Bea was born.
Sam has since married Bea’s mother.
c. Candy, the adopted daughter of Sam.
d. Dina, the daughter of Tina, the latter being
Abe’s legitimate sister. Shortly after Dina’s
birth, Tina and her husband died in an
accident. Dina was later adopted by an
American couple.
Who is entitled to inherit from Abe?
Only Bea and Dina are entitled to inherit from Abe.
Bea is entitled to inherit because she is Abe’s niece,
she being the legitimated daughter of Sam, Abe’s
legitimate brother. A legitimated child shall enjoy the
same rights as legitimate children. (Art. 179, Family
Code)
Dina is also entitled to inherit because she is the
legitimate daughter of Tina, Abe’s sister. That Dina
was adopted by an American couple does not
disqualify her to inherit from Abe because an adopted
child remains an intestate heir of his parents and
other blood relatives.
Ana is not qualified to inherit from Abe because of
her status as an illegitimate child of Rey. An
illegitimate child has no right to inherit ab intestato
from the legitimate relatives of his father or mother.
(Art. 992, Civil Code). Since Abe is a legitimate
brother of Rey, Ana is therefore excluded from Abe’s
inheritance.
Candy is also not qualified to inherit from Abe
because of her status as an adopted child of Sam,
Abe’s brother. Candy’s relationship with Sam, her
adoptive father, is purely personal between them and
does not extend to Abe.
QUESTION NO. 215
Abe wanted to have his house remodeled. He
called a number of building contractors and
received bids ranging from Php1 million to Php1.5
million. Ben submitted a bid to do the work for
Php900,000. Abe then entered into a notarized
contract with Ben to have the house remodeled.
Shortly before Ben was scheduled to begin work,
he called Abe and said, “I just found out my
secretary made a mistake in adding figures. I
couldn’t possibly do the work for Php900,000 or
I’d lose money.” Abe sues Ben for breach of
contract. Judgment for whom?
Judgment for Abe if he did not have reason to know
Ben’s erroneous bid. Ben cannot refuse to perform on
grounds of unilateral mistake because mistake cannot
and ought not co-exist with negligence, as in this
case. (Art. 1331, Civil Code)
QUESTION NO. 216
Which of the following agreements need not
comply with the Statute of Frauds?
a. Abe is indebted to Ben which is now due. Clay,
a friend of Abe, promises to pay Ben what Abe
owes in case the latter defaults in his obligation
to Ben.
b. Abe intends to borrow money from Ben to
finance a business. Clay, a friend of Abe, tells
Ben to extend the loan to Abe and represents
that Abe financially able in paying the loan
obligation.
c. Abe sells to Rey a car for Php150,000.
d. Abe assigns his leasehold rights to Rey for the
remainder of the lease period.
The agreement in (d) need not comply with the
Statute of Frauds. The contracts which are required to
be in writing to be enforceable are those enumerated
under Article 1403 (2) of the Civil Code. The list is
exclusive. An assignment of leasehold rights, even if
the lease involves real property, is not among the
contracts which is required to be in writing to be
enforceable. Inclusio unius, est exclusio alterius.
The agreements in (a), (b), and (c) are required to be
in writing because they all fall under the Statute of
Frauds. The agreement in (a) constitutes a special
promise to answer for the debt, default or miscarriage
of another; the agreement in (b) constitutes a
representation as to the credit of another; while the
agreement in (c) involves the sale of personalty the
price of which is in excess of Php500.00.
QUESTION NO. 217
Ali and Raida, both of age and not suffering from
any impediment, have lived together for several
years as husband and wife without marriage.
Following the birth of a son, the couple got
married. The marriage proved to be a failure
when it was annulled on grounds that, at the time
of the marriage, Ali concealed to Raida his
affliction with a serious and incurable sexually-
transmissible disease. What is the child’s status?
The subsequent annulment of the marriage of Ali and
Raida does not affect the legitimated status of their
son. This is so because a voidable marriage is one
which is valid until annulled.
QUESTION NO. 218
Two years ago, Abe, an engineer, and Bea, a
nurse, were introduced to each other by a mutual
friend. Tessie was a single parent with a two-year
old son, Sam. Abe and Bea were married last year.
Immediately after the marriage, Abe, with Bea’s
consent, filed a petition to adopt Sam. Sam’s birth
certificate identified Rey as the father. When Sam
was a baby, Rey denied paternity and left the
Philippines. The court granted the adoption. Is the
adoption of Sam by Abe valid?
Sam’s adoption by Abe is void. Under the Domestic
Adoption Act, a person who is financially capable of
giving care and support may adopt a child. Although
Abe, being a lawyer, is financially capable of giving
care and support to Sam, his adoption of Sam is void.
The Domestic Adoption Act specifically requires that
the husband and wife shall jointly adopt, except if
one spouse seeks to adopt the legitimate child of the
other; or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally
separated from each other. Abe does not fall under
any of these exceptions. His adoption of Sam,
although with Bea’s consent, is a complete nullity.
To be valid, the adoption should have been filed
jointly with Bea.
QUESTION NO. 219
Abe and Bea, a childless couple, were married ten
years ago. Despite several trips to Obando,
Bulacan, Bea still failed to conceive a child. Bea
attributes her failure to conceive a child to the fact
that Abe’s family has a history of fertility
problem. Anxious to have a child, Bea secretly had
herself artificially inseminated with the sperm of
an unnamed donor. When Abe discovered Bea’s
pregnancy through this procedure, he
immediately commenced an action for legal
separation. Will Abe prevail?
Abe will not prevail because Bea is neither guilty of
sexual infidelity nor of any other ground for legal
separation under Article 55 of the Family Code.
Abe’s only remedy in law is to impugn the legitimacy
of the child on grounds that his wife procured the
artificial insemination without his consent.
QUESTION NO. 220
Abe and Bea are common-law spouses. With
Abe’s advancing age, Bea became increasingly
concerned about her economic security in the
event anything should happen to Abe. Although
Abe repeatedly promised to take care of Bea in his
will, Bea always insisted that Abe must “do
something now, not later” to provide her with
some security.
One day, Abe asked Bea to meet him at his
lawyer’s office. There, he signed a notarized deed
donating to her a parcel of land. Gratified by
Abe’s generosity, Bea accepted the donation in the
same document. Shortly thereafter, Abe died.
Abe’s intestate heirs immediately commenced an
action against Bea for recovery of the property.
Who prevails?
Abe’s heirs prevail because the prohibition against
donation between spouses during the marriage also
applies to persons living together as husband and
wife without a valid marriage. If the rule were
otherwise, persons in common-law relationships
would be in a better position than those in lawful
wedlock. This is certainly not the intendment of the
law.
QUESTION NO. 221
Abe gives Rey in usufruct a parcel of land,
including a residential building thereon, for a
period of ten years. During the life of the usufruct,
the building is totally destroyed in a fire of
accidental origin. Abe now demands that Rey
vacate the land on grounds that the usufruct has
been extinguished by the total destruction of the
building. Is Abe correct?
Abe is wrong. Rey still has the right to use the land
and the materials left on it until the end of the ten-
year period.
QUESTION NO. 222
Abe promises to buy a new house for Tessie’s
parents if Tessie were to marry him. Tessie agrees.
Abe later refuses to make good his promise. Can
Tessie compel Abe to buy a house for her parents?
No. The promise of marriage was used as
consideration for the promise to buy a new house.
Therefore, if Tessie wants to enforce this promise,
the promise must be proved through something in
writing, and Abe needed to sign the writing. Abe’s
promise falls squarely within the Statute of Frauds.
QUESTION NO. 223
Andy and Ben inherited from their parents a
farm. On January 1, Andy sold his half interest
over the property to Celso for Php500,000. Ben
learned of the sale on May 5 when Andy gave him
a copy of the sale document. Ben went to Celso
and offered to redeem Andy’s share for
Php550,000. Ben offered his check of Php400,000
as partial payment, and promised to pay the
balance in 60 days upon the approval of his bank
loan. Celso refused. On July 20, Ben launched an
action against Celso for legal redemption.
a. Did Ben make a valid and effective offer to
redeem Andy’s share?
No. The law, in granting unto a co-owner the right of
redemption, intended that the offer to redeem must be
valid and effective, accompanied by an actual tender
of an acceptable redemption price. Here, Ben failed
to make a valid tender of the redemption price. Ben
merely offered a check for P400,000, which was not
even legal tender and which Celso rejected.
Celso was not obligated to accept Ben’s promise to
pay the balance by means of a loan to be
obtained from a bank. Bona fide redemption
necessarily imports a seasonable and valid tender of
the entire repurchase price, and this was not done.
There is no cogent reason for requiring Celso to
accept payment by instalments from a redemptioner,
as it would ultimately result in an indefinite extension
of the 30-day redemption period, when the purpose of
the law in fixing a short and definite term is clearly to
avoid prolonged and anti-economic uncertainty as to
ownership of the thing sold.
All told, the offer to redeem was not in pursuance of
a legal and effective exercise of the right of
redemption as contemplated by law; hence, refusal of
the offer on the part of Celso is justified. The
conditions precedent for the valid exercise of the
right do not exist
b. Suppose Ben offered to pay in cash the
redemption price, and Celso refused, did Ben
seasonably file his complaint for legal redemption
on July 20?
No, the complaint was filed out of time. Article 1623
of the Civil Code does not prescribe any particular
form of notice, nor any distinctive method for
notifying the redemptioner. So long, therefore, as the
redemptioner is informed in writing of the sale and
the particulars thereof, the 30 days for redemption
start running, and the redemptioner has no real cause
to complain.
Here, Andy showed Ben a copy of the sale document
in favor of Celso on May 5. The furnishing of this
copy is equivalent to the giving of written notice
required by law: it came from the vendor and made
available in writing the details and finality of the
sale. It served all the purposes of the written notice,
in a more authentic manner than any other writing
could have done. As a necessary consequence, the
30-day period for the legal redemption by Ben began
to run its course from and after May 5, ending on
June 5.
QUESTION NO. 224
What is Republic Act No. 9048?
Republic Act No. 9048 which took effect on April
22, 2001 is the law which expanded the basic quasi-
judicial duties and functions of Civil Registrars as
provided under paragraph c, Section 479 of the Local
Government Code. It amended Articles 376 and 412
of the Civil Code by granting the city and municipal
registrars the authority to correct clerical or
typographical errors and to change first names or
nicknames in the civil registrar without need of
judicial order.
QUESTION NO. 225
What kind of clerical or typographical errors may
be corrected administratively under R.A. No.
9048?
The clerical or typographical errors which may be
administratively corrected under R.A. No. 9048 are
limited to those mistakes committed in the
performance of clerical work in writing, copying,
transcribing, or typing an entry in the civil register
that are harmless and innocuous, which are visible to
the eyes, obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records.
QUESTION NO. 226
What kind of errors are not correctible under RA
9048?
Those errors that involve the change of nationality,
age, or status of the petitioner are excluded from the
coverage of the law. Consequently, any petition to
correct any error that would subsequently change the
nationality, age, or status of a person shall be filed
with the proper court, and not with any local civil
registrar.
QUESTION NO. 227
On what ground may a petition for change of first
name be filed under RA 9048?
Under RA 9048, the following are the grounds for the
change of a person’s first name: a) the petitioner
finds the first name or nickname to be ridiculous,
tainted with dishonor, or extremely difficult to write
or pronounce; b) the new first name or nickname has
been habitually and continuously used by the
petitioner and he has been publicly known by that
first name or nickname in the community; c) the
change will avoid confusion. Any of these grounds, if
supported with convincing proof, will be sufficient
basis of changing a person’s first name.
QUESTION NO. 228
Abe was born on February 12, 1975. What was
recorded as his date of birth in his birth certificate
was February 22, 1975, while all the other entries
in the birth certificate are February 15, 1975, the
date when the attendant signed the document; the
date when the informant gave the information; the
date when the clerk prepared the document; and
the date when the instrument was received at the
office of the civil registrar. May the error be
corrected under RA 9048?
Yes. There is in this case an impossible event
whereby registration of birth was done ahead of the
occurrence of birth. That the birth was registered
prior to its occurrence indicates a glaring clerical
error especially if the date of birth, as recorded, is
compared with the other significant dates in the same
document. This error is visible to the eyes and is
very obvious to the understanding; hence, it can be
considered a clerical error, which can be corrected
under RA 9048.
In this case, the correction is not an attempt to change
the age of Abe, but to correct the impression that
registration was done prior to the occurrence of birth.
QUESTION NO. 229
Abe was born on January 2, 1962, but the typist
entered the date of his birth as “2-1-62” which
could be interpreted as “February 1, 1962” or
“January 2, 1962.” May Abe file for correction
of his date of birth?
Yes, because the date was misleading since a numeric
character or symbol was used for the month. In
accordance with the order of writing the date in the
birth certificate, the “day” should be entered first,
followed by the “month” and the last, the “year.” The
month should be spelled out and not represented by
numerical symbol, like “January” and not “1”. The
error in question is clearly a clerical error within the
meaning of RA 9048.
QUESTION NO. 230
Abe and Bea, both of age and not suffering from
any impediment, lived together as husband and
wife without a valid marriage. Bea gave birth to a
son, Rey, on October 25, 1995. Abe and Bea
subsequently got married on February 20, 1996.
The following month, March 5, 1996, Abe’s birth
was belatedly registered on March 5, 1996.
Because Abe was born illegitimate, he used in his
birth certificate the surname of his mother. In the
entry under “Date and Place of Marriage of
Parents,” however, the entries “20 February 1996,
Baguio City” were made when it should have been
“not married.” May Abe seek a correction under
RA 9048?
Yes. The error here is a clerical error within the
meaning of R.A No. 9048 because a future event
cannot be recorded in the birth certificate. The
correction will not alter the status of the child who,
by his recorded name, is an illegitimate child who is
legitimated by virtue of the subsequent marriage of
his parents. The error here arose because only
information obtaining at the time of birth shall be
recorded in the birth certificate, and not information
prevailing at the time of registration.
QUESTION NO. 231
Maria Lourdes Cruz filed for correction of entry
in her certificate of live birth. She was baptized as
Maria Lourdes Cruz, the name entered in her
certificate of live birth. When she started
schooling, however, she used the name Ma.
Lourdes Cruz. Petitioner’s name was abbreviated
to “Ma.” in all her records, except her birth
certificate. She now wants her name corrected to
Ma. Lourdes Cruz, instead of Maria Lourdes Cruz.
Will she prevail?
No. There is no clerical error in this case.
Petitioner’s name as recorded in her birth certificate
is perfectly correct. There is no misspelling, no
misplaced letter, no omitted letter, no unnecessary
letter, and no misplaced word. Petitioner’s remedy is
to file for change of first name and not for correction
of clerical error.
QUESTION NO. 232
Abe and Bea were married on January 15, 1996.
On February 7, 1997, Bea gave birth to Carla.
Prior to Carla’s birth, Abe left the conjugal abode
and lived with another woman. Because of Abe’s
infidelity, Bea registered Carla as illegitimate
with an “unknown” father. The item regarding
the date and place of marriage of parents was left
blank.
In 1999, Abe and Bea reconciled. It was then that
Abe discovered the following: (a) The last name of
Carla is the maiden surname of his wife; (2) His
name as the father of Carla is not entered, but
marked “unknown,” and (3) There is no
information about the date and place of marriage
of the parents. Are the errors correctible under
RA 9048?
The errors are not clerical within the meaning of R.A.
No. 9048 because the correction involves the change
of status of Carla from “illegitimate” to “legitimate.”
QUESTION NO. 233
Abe Cruz and Bea Santos, both of age and not
suffering from any legal impediment, lived
together as husband and wife without a valid
marriage. On October 25, 1995, Bea gave birth to
Carol. A few months later, Abe and Bea got
married, particularly on February 14, 1998. The
following month, March 14, 1998, Bea registered
the birth of Carol under the rules governing the
delayed registration of births. The complete name
of Carol which was recorded in her birth
certificate was Carol Santos Cruz, and the date of
marriage of her parents was entered as February
14, 1998 and the place of the marriage as Baguio
City. The Civil Registrar refuses to correct the
entries. Decide.
The entries are not clerical errors within the meaning
of RA. 9048. The correction of the date of marriage
of the parents will affect the status of the child.
The civil registrar was correct in denying the
correction of the entries in Caroline’s certificate of
birth considering that Carol’s surname should have
followed that of her mother’s because she was born
illegitimate. Moreover, the date and place of Carol’s
parents are erroneous because of the principle in civil
registration that only the facts obtaining at the time of
birth shall be recorded in the birth certificate and not
those facts prevailing at the time of registration
QUESTION NO. 234
Abe and Bea, both 14 years old, eloped. A
daughter, Joy, was born to them when they were
16 years old. When they reached the age of 19,
they got marriage with the consent of their
parents. Is Joy legitimated by the marriage of her
parents?
Yes. Under RA 9858, children born to parents below
marrying age may now be legitimated. R.A. No. 9858
amended Article 177 of the Family Code to the effect
that if the child born to parents are disqualified to
marry each other because they are below 18 years of
age, the child may be legitimated by the subsequent
marriage of the parents. Article 177 of the Family
Code, as amended by R.A. 9858, now reads:
“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, or were so disqualified only
because either or both of them were below eighteen
(18) years of age, may be legitimated.”
QUESTION NO. 235
The attestation clause of a will reads: “x x x and
he (the testator) signed at the bottom of the
aforesaid will in our presence and we at his request
did the same in his presence and in that of each
other as witnesses to the will, and lastly, the testator,
as well as we, as witnesses, signed in the same
manner on the left margin of each sheet.”
Is the attestation clause sufficient?
The attestation clause is sufficient because the words
“in the same manner” mean nothing but that the
testator and the witnesses signed on the left margin
of each sheet of the will “in the same manner” in
which they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and the
latter in the presence of the testator and of each other
(Fernandez v. Vergel de Dios 46 Phil. 922 [1936)
QUESTION NO. 236
Abe executes a document in his handwriting
denominated as “Kasulatan sa Pag-aalis ng
Mana.” The document reads:
“Ako, si Abe, may asawa, naninirahan sa
465-A Flores St., Ermita, Manila, at
nagtataglay ng maliwanag na pag iisip at
disposisyon, ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana
ang panganay kong anak na si Rey dahil
siya ay naging lapastangan sa akin at ilang
beses s’yang nagsalita ng masama sa
harapan ko at kapatid niya na si Mimi na
labis kong ikinasama ng loob ko.”
Rey opposes the will on grounds that it does not
contain any disposition of estate and therefore
does not meet the definition of a will under Article
783 of the Civil Code. Rey claims that the will only
shows an alleged act of disinheritance by Abe of
his son, Rey, and nothing else; that all other
compulsory heirs were not named nor instituted
either as heirs, as legatees or as devisees, hence;
there is preterition which would result in
intestacy.
a. Is the document a valid holographic will?
Yes. A holographic will, as provided under Article
810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator. It is
subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed. An
intent to dispose mortis causa can be clearly deduced
from the terms of the instrument, and while it does
not make an affirmative disposition of the testator’s
property, the disinheritance results in the disposition
of the property of the testator in favor of those who
would succeed in the absence of Abe.

It is a fundamental principle that the intent or the will
of the testator, expressed in the form and within the
limits prescribed by law, must be recognized as the
supreme law in succession. Accordingly, the
document, even if captioned as Kasulatan sa Pag-
aalis ng Mana, was intended by Abe to be his last
testamentary act and was executed by him in
accordance with law in the form of a holographic
will. Unless the will is probated, the disinheritance of
Rey cannot be given effect.
b. Is there a valid disinheritance of Rey?
Yes. For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be effected
through a will wherein the legal cause therefore shall
be specified. With regard to the reason for
disinheritance that was stated by Juan in his
document, the same can be considered a form of
maltreatment of Abe by his son, Rey, and that the
matter presents a sufficient cause for the
disinheritance of a child or descendant under Article
919 of the Civil Code.
c. Is there preterition of compulsory heirs?
No. Abe’s holographic will was his last expression to
bequeath his entire estate to all his compulsory heirs,
with the sole exception of Rey. Also, Abe did not
institute an heir to the exclusion of his other
compulsory heirs. The mere mention of the name of
Abe’s daughter did not operate to institute her as a
universal heir. Her name was included plainly as a
witness to the alteration between Abe and his son,
Rey.
Since the document is Abe’s holographic will, and
that the law favors testacy over intestacy, the probate
of the will cannot be dispensed with. Thus, unless the
will is probated, the rights of a person to dispose of
his property may be rendered nugatory. (Seangio v.
Reyes, 508 SCRA 177 [2006])
QUESTION NO. 237
A will contains the following disposition: “I
institute my brother, Juan, as my universal heir
because he had killed my political rival.” The
testator himself had nothing to do with the crime.
Is the institution valid?
The institution is valid. The mere statement of a
cause contrary to law will not invalidate a will nor
invalidate an institution, so long as it does not appear
in the will that such illegal cause is the only
motivating factor for the institution. The principle
underlying the rule on the statement of a false cause
under Article 850 of the Civil Code should also apply
in the case of an illegal cause, if the true cause is the
generosity of the testator, and the disposition is
essentially based on the affection of the testator, the
mere statement of an illegal cause should not impair
the institution. But if it clearly appears from the will
itself that the testator’s only reason for making the
disposition is the illegal cause, then the disposition
should be void.
QUESTION NO. 238
Abe donated to his nephew, Rey, a house and lot
valued at Php1 million. Due to business reverses,
Abe died poor ten years later. Larry, Abe’s son,
immediately commenced an action to recover the
donated property on grounds that his legitime has
been impaired. The property is now valued at
Php5 million. Decide.
The action, insofar as it seeks to reduce the donation,
will prosper because Larry’s legitime has been
impaired. Larry’s legitime is half of Abe’s estate.
However, what is to be collated to the estate is the
value of the property at the time of the donation and
not the value at the time of the donor’s death.
Accordingly, Larry is not entitled to half of the
present value of the property (Php5 million), but only
to half of its value of Php500,000 which Rey may
pay in cash.
QUESTION NO. 239
Abe died in 1999. Before his death, he left a
notarial will instituting his five sons, Ben, Charlie,
Dante, Enrico and Fidel as his sole heirs. Ben died
in 1997 in a vehicular accident. He left two
children, Greg and Homer. Charlie, who has been
convicted of an attempt against the life of Abe, has
a son Inigo. Dante was disinherited for a cause not
recognized by law. He is the father of John, Karl,
Lito and Manuel. Enrico repudiated his
inheritance because his father never accepted his
wife. They have two children, Nomer and Orly.
The net value of Abe’s hereditary estate is Php1
million. Distribute the estate.
Since Ben predeceased Abe, the testator, his
legitimate children Greg and Homer shall represent
him in the succession. The same is true in the case of
Charlie, since he is incapacitated to inherit from his
father because of an act of unworthiness. His
legitimate child, Inigo, shall represent him in the
succession. Also, John, Karl, Lito and Manuel shall
inherit by right of representation because their father,
Dante, was disinherited. It is different in the case of
Enrico. An heir who repudiates his inheritance cannot
be represented. (Art 977, Civil Code) The legitime of
Enrico shall be distributed in accordance with the
rules on intestate succession, while his share as a
voluntary heir shall accrue to his co-heirs, Ben,
Charlie, Dante and Fidel. But Ben is already dead,
Charlie is incapacitated, and Dante was disinherited.
The only living and capacitated heir is Fidel. Thus:
Fidel 100,000 as compulsory heir
100,000 as voluntary heir
100,000 by right of accretion from B
100,000 by right of accretion from C
100,000 by right of accretion
from D
100,000 by right of accretion from E
25,000 as legal heir
Greg 50,000 by right of representation
12,500 as legal heir
Homer 50,000 by right of representation
12,000 as legal heir
Inigo 100,000 by right of representation
25,000 as legal heir
John 25,000 by right of representation
6, 250 as legal heir
Karl 25,000 by right of representation
6,250 as legal heir

Lito 25,000 by right of representation
6,250 as legal heir
Manuel 25,000 by right of representation
6,250 as legal heir
QUESTION NO. 240
Judge Abe, a municipal trial court judge of
Naguilian, La Union, performed a marriage in
Tuba, Benguet, upon written request of the
parties. Is the marriage valid?
Yes. The solemnization by a judge of a marriage
outside his court’s jurisdiction is merely a resultant
irregularity in a formal requisite laid down in Article
3 of the Family Code which, while it may not affect
the validity of the marriage, may subject the
officiating official to administrative liability.
(Navarro v. Domagtoy, 259 SCRA 137 [1996])
QUESTION NO. 241
Which voidable marriage is not susceptible of
ratification by cohabitation under the law?
Marriages which are voidable because of the physical
incapacity of a party to consummate the marriage and
those by reason of affliction of a party with a serious
and incurable sexually-transmissible disease are not
susceptible of ratification by cohabitation. (Art. 45,
Nos. 5 & 6, Family Code)
QUESTION NO. 242
Abe and Amy were married in 1978, or ten years
before the Family Code. After 15 years of
marriage, Abe obtained a decree of legal
separation after catching his wife having illicit
relations with their neighbor. In the decree, the
court forfeited Amy’s share in the net profits
earned by the conjugal partnership in favor of her
children pursuant to Article 63(2) in relation to
Article 129 of the Family Code.
Amy quickly assailed the ruing claiming that the
net assets of the conjugal partnership shall be
computed in accordance with Article 102 of the
Family Code, instead of Article 129. She claimed
that Article 102 applies because there are no other
provisions under the Family Code which defines
net profits subject of forfeiture as a result of legal
separation. She argued that her veste23d right
over half of the common properties of the
conjugal partnership is violated when the
forfeiture is to be made pursuant to Article 129 in
relation to Article 63(2) of the Family Code.
a. What law governs the property relations of the
spouses given that they were married before the
effectivity of the Family Code? What law governs
the dissolution of their common properties since
the decree of legal separation was issued after the
Family Code is already in effect?
As to property relations, the spouses are governed by
the regime of conjugal partnership of gains. This is so
because they were married when the operative law
was the Civil Code. But as to the liquidation of their
conjugal partnership assets, the Family Code is the
law applicable because it is already the operative law
at the time of the dissolution of their conjugal
partnership.
The applicable law in so far as the liquidation of the
conjugal partnership assets and liabilities of Abe and
Amy is concerned is Article 129 of the Family Code
(provision on liquidation of the conjugal partnership)
in relation to Article 63 (effects of a decree of legal
separation). The latter provision is applicable
because according to Article 256 of the Family Code
”[t]his Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other law.”
Amy’s contention that her vested right over half of
the common properties of the conjugal partnership is
violated when her share in the conjugal partnership is
forfeited in favor of her children pursuant to Article
63(2) and 129 of the Family Code has no basis.
While it is true that the couple were married at the
time when the operative law was the Civil Code, the
Family Code should be given retroactive application
for purposes of determining the “net profits earned”
by the conjugal partnership which is subject to
forfeiture. A spouse’s claim of a vested right is not
etched in stone. To be vested, a right must have
become a title – legal or equitable – to the present or
future enjoyment of property. In one case, the
Supreme Court reiterated its long standing ruling that
“prior to the liquidation of the conjugal partnership,
the interest of each spouse in the conjugal assets is
inchoate, a mere expectancy, which constitutes
neither a legal nor an equitable estate, and does not
ripen into title until it appears that there are assets in
the community as a result of the liquidation and
settlement. The interest of each spouse is limited to
the net remainder resulting from the liquidation of the
affairs of the partnership after its dissolution. Thus,
the right of the husband or wife to one-half of the
conjugal assets does not vest until the dissolution and
liquidation of the conjugal partnership, or after the
dissolution of the marriage, when it is finally
determined that, after settlement of conjugal
obligations, there are net assets left which can be
divided between the spouses or their respective
heirs.”
b. Is the computation of net profits earned in the
conjugal partnership of gains the same with the
computation of net profits earned in the absolute
community?
The term net profits is defined in Article 102(4) of
the Family Code. Under this provision, the term net
profits “shall be the increase in value between the
market value of the community property at the time
of the celebration of the marriage and the market
value at the time of its dissolution.” Without any
doubt, Article 102(4) applies to both the dissolution
of the absolute community regime under Article 102
of the Family Code, and the dissolution of the
conjugal partnership regime under Article 129 of the
Family Code. The difference lies in the processes
used under the dissolution of the absolute community
regime under Article 102 of the Family Code, and in
the processes used under the dissolution of the
conjugal partnership regime under Article 129 of the
Family Code.
ABSOLUTE COMMUNITY REGIME: Applying
Article 102 of the Family Code, the “net profits”
requires a prior determination of the market value of
the properties at the time of the community’s
dissolution. From the totality of the market value of
all the properties, the debts and obligations of the
absolute community are to be deducted and this will
result to the net assets or net remainder of the
properties of the absolute community, from which the
value of the properties at the time of marriage is to be
deducted, which then results to the net profits.
CONJUGAL PARTNERSHIP REGIME: Applying
Article 129 of the Family Code, the “net profits”
requires a prior determination of the separate
properties and debts of the spouses under the
following procedure a) an inventory shall be
prepared, listing separately all the properties of the
conjugal partnership and the exclusive properties of
each spouse; b) amounts advanced by the conjugal
partnership in payments of personal debts and
obligations of either spouse shall be credited to the
conjugal partnership as an asset thereof; c) each
spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for
the value of his or her exclusive property, the
ownership of which has been vested by law in the
conjugal partnership; d) the debts and obligations of
the conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable for the
unpaid balance with their separate properties, in
accordance with the provisions of paragraph 2 of
Article 121; e) whatever remains of the exclusive
properties of the spouses shall thereafter be delivered
to each of them; f) unless the owner had been
indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the
family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any; and g)the net remainder of the
conjugal partnership shall constitute the profits,
which shall be divided equally between husband and
wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless
there has been a voluntary waiver or forfeiture of
such share as provided in the Family Code.
c. Suppose that Article 102 of the Family Code
(which is a provision under the regime of absolute
community of property) is to apply in the instant
case, is Amy entitled to receive anything from the
absolute community?
If Abe and Amy have no separate properties, the
remaining properties of the couple are all part of the
absolute community. And its market value at the time
of the dissolution of the absolute community
constitutes the “market value at dissolution.” When
Abe and Amy were legally separated, all the
properties which remained will be liable for the debts
and obligations of the community. Such debts and
obligations will be subtracted from the “market value
at dissolution.” What remains after the debts and
obligations have been paid from the total assets of the
absolute community constitutes the net remainder or
net asset. And from such net asset or net remainder of
the couple’s remaining properties, the market value at
the time of the marriage will be subtracted and the
resulting totality constitutes the “net profits.” Since
Abe and Amy have no separate properties, and
nothing would be returned to each of them, what will
be divided equally between them is simply the net
profits. However, the trial court forfeited the half-
share of Amy in favor of her children. Thus, if
Article 102 is used in the instant case (which should
not be the case), nothing is left to Amy since both
parties entered into their marriage without bringing
with them any property.
d. Given that Article 129 of the Family Code
applies to the liquidation of the conjugal assets of
Abe and Amy, is the latter entitled to receive any
property from the conjugal partnership?
No. What remains in the conjugal properties of Abe
and Amy (after payment of all debts and obligations)
should be divided equally between them. However,
since Amy is the guilty party, her share from the “net
profits” of the conjugal partnership is forfeited in
favor of the common children pursuant to Article
63(2) of the Family Code. Nothing will be returned to
Amy because in the conjugal partnership regime,
there is no separate property which may be accounted
for in the guilty party’s favor. (Quiao v. Quiao, G.R.
No. 176556, July 4, 2012)
QUESTION NO. 243
Abe is the owner of a farm which he leased to a
married couple. When the couple failed to pay
rent, Abe sued for payment of their rental arrears.
The wife promptly moved to dismiss the complaint
on grounds that her husband is already dead, and
that therefore Abe’s claim must be filed in the
proceedings for the settlement of her husband’s
estate. May Abe sue the wife alone for collection
of a debt which is owed by the conjugal
partnership?
No. A creditor cannot sue the surviving spouse of a
deceased person in an ordinary proceeding for the
collection of a sum of money chargeable against the
conjugal partnership. The proper remedy is for the
creditor to file a claim in the settlement of the estate
of the deceased spouse. This is so because upon the
death of one spouse, the powers of administration of
the surviving spouse ceases and are passed to the
administrator appointed by the court having
jurisdiction over the settlement of estate proceedings.
For marriages governed by the rules on conjugal
partnership of gains, an obligation entered into by the
spouses is chargeable against their conjugal
partnership and it is the partnership which is
primarily bound for its repayment. Thus, when the
spouses are sued for the enforcement of an obligation
entered into by them, they are joined in their capacity
as representatives of the conjugal partnership and not
as independent debtors such that the concept of joint
or solidary liability, as between them, does not apply.
(Alipio v. Court of Appeals, 341 SCRA 441 [2000])
QUESTION NO. 244
Can there be an easement over another easement?
An easement over a usufruct? A usufruct over an
easement?
As to the first question: Yes, there can be an easement
over another easement. Article 629 of the Civil Code
provides that the owner of the servient estate must
abstain from anything that will render the use of the
easement more inconvenient to the owner of the
dominant estate. This is a negative easement which
requires the owner of the servient estate not to impair
in any manner whatsoever the use of the easement
(such as a right of way).
As to the second question: No, there cannot be an
easement over a usufruct, but there can be an
easement over a property held in usufruct.
As to the third question: No, there cannot be a
usufruct over an easement, but a usufruct may be
established in a property burdened by an easement.
QUESTION NO. 245
In 1977, Amy donated to her sons (Art, Ben, and
Cal) a parcel of land under the following
conditions: a) the donation shall be irrevocable; b)
the land shall remain in the possession of the
donor during her lifetime; c) the land shall not be
sold or mortgaged during the lifetime of the
donor; and d) the donation shall take effect only
upon the donor’s death. Amy’s sons accepted the
donation in the same public instrument.
Two years later, or in 1979, Amy sold the land to
her eldest son, Art. The sale resulted in the
issuance of a certificate of title in the name of Art.
In 1985, Ben and Cal brought an action to annul
the sale and for reconveyance of the property. Art
defended on the ground of prescription. He
argued that more than four years have passed
since the sale and registration of the property and
issuance of his title. He insisted that an action for
reconveyance of property on the ground of fraud
must be filed within four years from the discovery
of the fraud which is from the date of registration
of the sale in 1977; and that the same prescriptive
period also applies to an action predicated on a
trust relationship that is rooted on fraud or
breach of trust.
a. Was the donation to Art, Ben and Cal inter
vivos or mortis causa?
The donation was inter vivos. The express
irrevocability of the donation is the distinctive
standard that identifies the donation as inter vivos.
The other provisions which seemingly make the
donation mortis causa do not go against the
irrevocable character of the subject donation. The
provisions which state that the donation will only
take effect upon the death of the donor and the
prohibition to alienate, encumber, dispose or sell the
property donated are provisions which should be
harmonized with its irrevocability. Suffice it to say
that these provisions are only necessary assurances
that during the donor’s lifetime, the latter would still
enjoy the right of possession over the property; but
his naked title has been passed on to the donees; and
that upon the donor’s death, the donees would get all
the right to use and possess the same.
Another indication that the donation is inter vivos is
the acceptance of the donation by the donees. An
acceptance is a mark that the donation is inter vivos.
On the other hand, donations mortis causa, being in
the form of a will, are not required to be accepted by
the donees during the donor’s lifetime.
b. Has the action prescribed?
The action has not yet prescribed. When one’s
property is registered in another person’s name
without the former’s consent, an implied trust is
created by law in favor of the true owner. Article
1144 of the Civil Code provides for a ten-year
prescriptive period from the time the right of action
accrues in case of a) a written contract; b) an
obligation created by law; and c) a judgment. Thus,
an action for reconveyance prescribes in ten years
from the issuance of the title. It is only when fraud
has been committed that the action will be barred
after four years.
However, the four-year prescriptive period is not
applicable to the instant case because there is no
fraud. The records do not show that Amy, the donor,
and Art, the donee, ever intended to defraud Ben and
Cal with respect to the sale and ownership of the
subject property. On the other hand, the sale was
grounded upon their honest but erroneous
interpretation of the deed of donation that it is mortis
causa, not inter vivos, and that the donor still had the
right to sell or dispose of the donated property and to
revoke the donation. There being no fraud, the trust
relationship between the donor and the donees,
including the buyer Art, the action for recoveyance
prescribes in ten years. Considering that the
certificate of title in the name of Art covering the
subject property was issued only in 1977, the filing of
the action in 1985 was well within the ten-year
prescriptive period.
c. Is the sale by Amy to Art a valid act of
revocation of the donation?
The sale to Art cannot be considered as a valid act of
revocation of the donation because a formal
complaint to revoke the donation must be filed
pursuant to Article 764 of the Civil Code which
speaks of an action that has a prescriptive period of
four years from the non-compliance with the
condition stated in the deed of donation. The rule that
there can be automatic revocation without benefit of
a court action does not apply to the case at bar
because the subject deed of donation is devoid of any
provision providing for automatic revocation in the
event of non-compliance of the condition violated.
(Austria-Magat v. Court of Appeals 375 [2002])
QUESTION NO. 246
Abe executes in favor of Amy a document
denominated as “Deed of Donation Inter Vivos”
involving a parcel of land. The deed of donation
contains a provision that it becomes effective only
upon the death of the donor, and that in the event
the donee should die before the donor, the
donation shall be deemed automatically rescinded
and of no further force and effect.
Shortly after Abe’s death, his heirs promptly filed
an action seeking to annul the donation. They
contend that the donation is mortis causa and not
inter vivos and therefore void for failure to comply
with the formalities of wills. Is the donation inter
vivos or mortis causa?
The donation is mortis causa. In a donation mortis
causa, the right of disposition is not transferred to the
donee while the donor is still alive. In determining
whether a donation is one of mortis causa, the
following characteristics must be taken into account:
a) it conveys no title or ownership to the transferee
before the death of the transferor, or what amounts to
the same thing; b) the transferor should retain the full
or naked ownership and control of the property while
alive; c) before his death, the transfer should be
revocable by the transferor at will; and d) the
transferor should be void if the transferor should
survive the transferee.
In the present case, the nature of the donation as
mortis causa is confirmed by the fact that the
donation does not contain any clear provision that
intends to pass proprietary rights to Amy prior to
Abe’s death. The phrase “to become effective upon
the death of the donor” admits of no other
interpretation but that Abe did not transfer the
ownership of the property to Amy during his
lifetime. Considering that the disputed donation is a
donation mortis causa, the same partakes of the
nature of testamentary provisions and as such, must
be executed in accordance with the requisites on
solemnities of wills and testaments under the Civil
Code. (Maglasang v. Heirs of Cabatingan, G. R. No.
131953, June 5, 2002)
QUESTION NO. 247
The National Irrigation Administration (NIA)
filed with the RTC a complaint for expropriation
of a parcel of land for an irrigation project. The
committee formed by the RTC pegged the fair
market value of the land at Php65.00 per square
meter. It also added to its computation the value
of soil excavated from the lot. The RTC adopted
the committee’s findings despite NIA’s objections
to the inclusion of the value of the excavated soil
in the computation of the value of the land. Is the
value of the excavated soil to be included in the
computation of just compensation?
No. There is no legal basis to separate the value of
the excavated soil from that of the expropriated
properties, contrary to what the trial court did. In the
context of expropriation proceedings, the soil has no
value separate from that of the expropriated land.
Just compensation ordinarily refers to the value of the
land to compensate for what the owner actually loses.
Such value could only be that which prevailed at the
time of the taking.
This conclusion is drawn from Article 437 of the
Civil Code which provides: “The owner of a parcel of
land is the owner of its surface and of everything
under it, and he can construct thereon any works or
make any plantations and excavations which he may
deem proper, without detriment to servitudes and
subject to special laws and ordinances. He cannot
complain of the reasonable requirements of aerial
navigation.”
That NIA will make use of the excavated soil is of no
concern to the landowner who has been paid the fair
market value of his land. The law does not limit the
use of the expropriated land to the surface area only.
To sanction the payment of the excavated soil is to
allow the landowners to recover more than the value
of the land at the time when it was taken, which is the
true measure of the damages, or just compensation.
(Republic v. Rural Bank of Kabacan, Inc., et al., G.R.
No. 185124, 15 January 2012)
QUESTION NO. 248
Abe owns a travel agency. In February 2004,
under a deed of assignment, Abe transferred all
his business rights over the travel agency to Rey
for Php150,000. Abe and Rey agreed that Abe will
pay the bills for electricity, telephone, office
rentals, and salaries of employees up to December
2004.
Without Abe’s consent, Rey paid all the utility
bills amounting to Php107,000 after which he
tendered to Abe the amount of Php43,000. Abe
refused to accept the payment on the basis that the
amount due is Php150,000.00 and not just
Php43,000. He asserted that for the tender of
payment to be valid, Rey must tender the full
amount of Php150,000 rather than just Php43,000.
a. Is Rey entitled to claim legal compensation for
his payment of the utility bills?
Yes. There is legal compensation when (1) each one
of the debtors is bound principally, and that the
debtor is at the same time a principal creditor of the
other; (2) both debts consist of a sum of money, or if
the things due be consumable, they be of the same
kind and also of the same quality if the latter has been
stated; (3) both debts are due; (4) both debts are
liquidated and demandable; and (5) there be no
retention or controversy over both debts commenced
by third persons and communicated in due time to the
debtor. When all these elements are present,
compensation takes effect by operation of law and
extinguishes both debts to the corresponding amount,
even though both parties are without knowledge of
the compensation.
All the elements of legal compensation are present in
this case.
First, in the assignment of business rights, Rey stood
as Abe’s debtor for the consideration amounting to
Php150,000. Rey, on the other hand, became Abe’s
creditor for the amount of Php107,000 through Rey’s
subrogation to the rights of Abe’s creditors against
the latter.
Second, both debts consist of a sum of money, which
are both due, liquidated, and demandable.
Finally, neither party alleged that there was any
claim raised by third persons against the obligation.
In effect, even without the knowledge and consent of
Abe or Rey, their obligation as to the amount of
₱107,000 had already been extinguished. As a result,
Rey owes Abe the remaining due amount of ₱43,000.
b. Is Rey’s tender of payment of Php43,000 valid?
Yes. To be valid, tender of payment must be absolute
and must cover the amount due. Here, the remaining
amount due in Rey's obligation is P43,000. Because
of the creditor's refusal, without any just cause, to
the valid tender of payment, the debtor is released
from his obligation by the consignation of the thing
or sum due. (Figuera v. Ang, G.R. No. 204264, June
29, 2016)
(Note: The consent or approval of the debtor is
required only if a third person who is not interested in
the fulfilment of the obligation pays such. On the
other hand, no such requirement exists in cases of
payment by a person interested in the fulfilment of
the obligation)
QUESTION NO. 249
In 2008, Bea Robles bore a child out of wedlock
with a married man named Abe Silvela. She was
not able to register the birth of their child --
whom she named Grace Robles -- because she did
not give birth in a hospital.
To hide her relationship with Abe, Bea stayed in
her home province while Abe lived with his
legitimate family in another province. After a few
years, she lost contact with Abe.
When her child needed a birth certificate for
school admission, Bea finally decided to register
the birth of her child. The Local Civil Registrar
approved the late registration after proof that the
National Statistics Office has no record of the
child’s birth on file.
But upon submission of the copies of the late
registration of the birth of the child to the NSO,
Bea was informed that there was a birth
certificate with the same name of mother and the
year of birth of the child in their office. This
birth certificate states the name “Noelle Robles
Silvela.” Abe was the listed informant in this
birth certificate.
Is the birth certificate of an illegitimate child
registered by the father, which was not duly
signed by the mother, valid?
No. It is mandatory that the mother of an illegitimate
child signs the birth certificate of her child in all
cases, irrespective of whether the father recognizes
the child as his or not. The only legally known parent
of an illegitimate child, by the fact of illegitimacy, is
the mother of the child who conclusively carries
the blood of the mother. Thus, this provision ensures
that individuals are not falsely named as parents. The
mother must sign and agree to the information
entered in the birth certificate because she has the
parental authority and custody of the illegitimate
child.
Because it appears on the face of the birth certificate
that the mother did not sign the document, the local
civil registrar had no authority to register the
subject birth certificate at the instance of the father
and without the mother’s signature. (Barcelote v.
Republic, G.R No. 222095, August 7, 2017)
QUESTION NO. 249
What are some of the prescriptive periods under
our laws?
The following are some of the prescriptive periods
under our laws:
40 days
Redhibitory action based on defects of animals. (Art.
1577, CC)
6 months
Action for reduction of price or breach of sale of real
estate. (Arts. 1543 and 1539, CC)
Action for reduction of price against hidden defects
of thing sold. (Art. 1571, CC)
1 year
Action to impugn child’s legitimacy, if husband
resides in the same place. (Art. 170, FC)
Action for revocation of donation for acts of
ingratitude. (Art. 769, CC)
Action for forcible entry or unlawful detainer. (Art.
1147, CC)
Action for defamation. (Art. 1147, CC)
Action for rescission or for damages if immovable
sold is encumbered with non-apparent burden. (Art.
1560, CC)
Action for warranty of solvency in assignment of
credits. (Art. 1629, CC)
Action for loss or damage to goods under COGSA
2 years
Action to impugn child’s legitimacy, if husband is in
the Philippines but not residing in the same place
(Art. 170, par. 2. FC)
3 years
Action to impugn child’s legitimacy, if husband is
abroad or outside the Philippines (Art.170, FC)
4 years
Action for revocation or reduction of donation based
on supervening birth, reappearance of a child or
adoption. (Art. 763, CC)
Action for revocation of donation due to non-
fulfilment of condition. (Art. 764, CC)
Action for recovery of movable (replevin) if
possessor is in good faith (Art. 1132, CC)
Action upon an injury to plaintiff’s rights (Art. 1146,
CC)
Action upon a quasi-delict (Art. 1146, CC)
Action for rescission of rescissible contracts (Art.
1389, CC)
Action to annul voidable contracts on the ground of
vitiated consent (Art. 1391, CC)
Action for rescission of partition of decedent’s estate
on account of lesion (Art. 1100, CC)
5 years
Action for legal separation (Art. 57, FC)
Action for annulment of marriage, except on the
ground of insanity (Art. 47, FC)
Action to claim legitimacy or illegitimacy if child Action to enforce a moral right (P.D. No. 49)
dies during minority or in a state of insanity (Art.
173, FC) Action to recover possession of registered land under
the Land Registration Act by registered owner or
Action to impugn legitimacy (Art. 182, FC) hereditary successors.
Action for declaration of incapacity of an heir (Art.
1040, CC)
Action for warranty of solvency of debtor if credit is
assigned to a co-heir during partition (Art. 1095, CC) GOOD LUCK!
All other actions whose periods are not fixed by law
(Art. 1149, Civil Code)
6 years
Action upon an oral contract (Art. 1145, CC )
Action upon a quasi-contract (Art. 1146, CC )
8 years
Action for recovery of movable (replevin) if
possessor is in bad faith (Art. 1132, par 2. and Art.
1140, CC)
10 years
Action for recovery of possession of immovables
(accion publiciana) if real right is lost (Arts. 555 and
1134, CC)
Action for recovery of ownership of immovables
(reivindicatoria) if in good faith (Art. 1134, CC)
Action upon a mortgage contract (Art. 1142, CC)
Action upon a written contract (Art. 1144, CC)
Action upon an obligation created by law (Art. 1144,
CC)
Action upon a judgment to enforce warranty against
eviction in partition (Art. 1094, CC)
30 years
Action for recovery of ownership of immovables
(reivindicatoria), if in bad faith (Art. 1141, CC)
Lifetime
Action for annulment of marriage based on insanity
(Art. 47, par. 2, FC)
Action for declaration of nullity of marriage (Art. 39,
FC)
Action to claim legitimacy (lifetime of child) (Art.
173, FC)
Action to claim illegitimacy (lifetime of child; If by
other means, only during lifetime of parent) (Art.
175, par. 2, FC)
Action for legal support
Action for reduction of donation due to failure of
donor to reserve property for his support and support
of others (during lifetime of donor or relatives) (Art.
750, CC)
No prescription
Action to declare a contract as inexistent or void.
Action to recover movable possessed thru a crime (no
prescription in favor of offender)
Action to demand a right of way under Article 649,
Civil Code
Action to demand partition in co-ownership or to
enforce an express trust
Action to probate a will