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CIVIL LAW BRAVO BASTE!

 S C B A R S T A G N O T E S [ 2019 ]
CIVIL LAW
I. GENERAL PRINCIPLES
EFFECT AND APPLICATION OF LAWS
When laws take effect
Laws shall take effect after fifteen (15) days
following the completion of their publication in the
Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise
provided. (Art. 2, NCC, as amended by EO 200).
NOTE: The clause "unless it is otherwise
provided" refers to the date of effectivity and not
to the requirement of publication, which cannot, in
any event, be omitted (Tañada v. Tuvera, 29
December 1986).
BAR 1985
Q: Explain the rule that ignorance of the law
excuses no one from compliance therewith.
A: This rule or principle is a conclusive
presumption of law which is embodied in Art. 3
of the NCC. It is based on expediency as well
as public policy and necessity. Were it not for
this rule, almost everybody would be able to
relieve himself of any criminal or civil liability by
claiming that he is ignorant of the law.
It must be noted, however, that the rule refers
only to mistakes with regard to the existence of
a law rather than to mistakes with regard to the
application or interpretation of a difficult or
doubtful question of law or with regard to the
effect of a certain contract or transaction. The
latter may be the basis of possession in good
faith (Art. 526, NCC.), or may render a contract
voidable (Art. 1334, NCC.), or may give birth to
a quasi-contract of solutio indebiti (Art. 2155,
NCC).
CONFLICT OF LAWS
Doctrine of Processual Presumption
Foreign law, whenever applicable, should be
proved by the proponent thereof, otherwise, such
law shall be presumed to be exactly the same as
the law of the forum.
Penal Laws
General Rule: Principle of Territoriality - Penal
laws and those of public security and safety shall
be obligatory upon all who live or sojourn in the
Philippine territory (Art. 14, NCC).
Exceptions: Philippine penal laws will not apply by
virtue of:
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1. Treaty stipulations
2. Principles of Public International Law
3. Laws of Preferential Application
4. International agencies enjoying diplomatic
immunity
Status Laws
General Rule: Nationality Principle - Laws relating
to family rights and duties, or to the status,
condition, and legal capacity of persons are
binding upon citizens of the Philippines even
though living abroad (Art. 15, NCC).
Exceptions:
1. In case of divorce obtained validly by an alien
pursuant to the rules that govern the country
that granted divorce, the Filipino spouse shall
be considered also as divorced, subject to
recognition of the foreign divorce (Van Dorn
v. Romillo, Jr., G.R. No. L-68470, October 8,
1985).
2. Domiciliary rule applies to stateless persons
NOTE: The basis for determining the
personal law of an individual is either the
Domiciliary Rule (Domicile) or Nationality
Rule (Citizenship).
Laws on Property
General Rule: Lex Rei Sitae – Real property as
well as personal property is subject to the law of
the country where it is situated (Art. 16, NCC).
Exceptions:
1. Succession as to order of succession,
amount of successional rights and intrinsic
validity of the testamentary provisions -
governed by national law of the decedent (Art.
16, NCC).
2. Contracts involving real property but do not
deal with title or real rights over the property,
the issue being the contractual rights and
liabilities of parties are governed by the
proper law of the contract (lex loci voluntatis
or lex loci intentionis).
3. In contracts where real property is given as
security by way of mortgage to secure a
principal contract (i.e. loan) – the loan is
governed by the proper law of the principal
contract while the mortgage is governed by
the lex situs.
4. While the validity of the transfer of land must
be determined by the lex situs, the validity of
the contract to transfer is determined by the
proper law of the contract.
Law governing extrinsic validity of Contracts,
Wills, and Public Instruments
General Rule: Lex loci celebrationis – Forms and
solemnities of contracts, wills and other public
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instruments shall be governed by the laws of the
country in which they are executed (Art. 17, NCC).
Exceptions: Philippine law shall apply in the
following cases even though performed abroad:
1. Acts are executed before the diplomatic or
consular officials of the Philippines.
2. Prohibitory laws concerning persons, their
acts or property, and those which have for
their object public order, public policy and
good customs (Art. 17, NCC).
HUMAN RELATIONS
1. Abuse of Rights - Every person must, in the
exercise of his rights and in the performance of
his duties, act with justice, give everyone his
due, and observe honesty and good faith (Art.
19, NCC).
2. Acts Contrary to Law - Every person who,
contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter
for the same (Art. 20, NCC).
3. Acts Contrary to Morals - Any person who
willfully causes loss or injury to another in a
manner that is contrary to morals, good
customs or public policy shall compensate the
latter for the damage (Art. 21, NCC).
II. PERSONS AND FAMILY RELATIONS
PERSONS
Person
A “person” may be defined as a being, physical or
moral, real or juridical and legal, which is
susceptible of rights and obligations, or of being
the subject of legal relations (2 Sanchez Roman
110).
How are persons classified? Distinguish one
from the other.
Persons are classified into natural and juridical
persons.
1. A natural person or human being has physical
existence, whereas a juridical person exists
only in contemplation of law.
2. A natural person is the product of procreation,
whereas a juridical person is the product of
legal fiction.
Civil Personality
Civil personality is merely the external
manifestation of either juridical capacity or
capacity to act. Consequently, it may be defined
as the aptitude of being the subject of rights and
obligations (2 Sanchez Roman 114-147).
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BAR 1996
Q: Distinguish juridical capacity from
capacity to act.
A: Juridical capacity is the fitness to be the
subject of legal relations while capacity to act
is the power or to do acts with legal effect. The
former is inherent in every natural person and
is lost only through death while the latter is
merely acquired and may be lost even before
death (Art. 37, NCC).
Birth
The Civil Code provides that birth determines
personality, but the conceived child shall be
considered born for all purposes that are favorable
to it, provided it is born later with the conditions
specified in Art. 41 (Art. 40, NCC).
How is civil personality extinguished?
Civil personality is extinguished by death (Art. 42,
NCC).
What is the effect if there is a doubt as to which
of the two (2) persons, who are called to
succeed each other, died first?
If there is doubt, as between 2 or more persons
who are called to succeed each other, as to which
of them died first, whoever alleges the death of one
prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at
the same time and there shall be no transmission
of rights from one to the other (Art. 43, NCC).
Classifications of juridical persons
1. The State and its political subdivisions (Art.
44, NCC);
2. Other corporations, institutions and entities
for public interest or purpose, created by law;
their personality begins as soon as they have
been constituted according to law (Ibid.);
3. Corporations, partnerships and associations
for private interest or purpose to which the law
grants a juridical personality, separate and
distinct from that of each shareholder, partner
or member (Ibid.);
4. The Roman Catholic Church (Barlin v.
Ramirez, 7 Phil 41); and
5. The estate of a deceased person (Limjuco v.
Intestate of Pedro Fragante, 80 Phil. 776).
MARRIAGE
It is a special contract of permanent union between
a man and a woman entered into in accordance
with law for the establishment of conjugal and
family life. It is the foundation of the family and an
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inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relations during
the marriage within the limits provided by this
Code (Art. 1, FC).
Essential requisites of marriage
1. Legal capacity of the contracting parties, who
must be a male and a female; and
2. Consent freely given in the presence of the
solemnizing officer (Art. 2, FC).
Formal requisites of marriage
1. Authority of the solemnizing officer;
2. A valid marriage license except in marriages
of exceptional character; and
3. A marriage ceremony 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 (Art. 3,
FC).
Effect of absence of the requisites
General Rule: Absence of essential or formal
requisites - VOID
Exceptions:
VALID even in the absence of a formal requisite:
1. Marriages exempt from license requirement
2. Either or both parties believed in good faith
that the solemnizing officer had the proper
authority (Art. 35(2), FC)
Effect of defect/irregularity in the requisites
1. Defect in essential requisites – Voidable (Art.
4, FC)
2. Irregularity in formal requisites - Valid, but the
party responsible for such irregularity shall be
civilly, criminally or administratively liable (Art.
4, FC)
A marriage solemnized by a judge outside of
his jurisdiction is VALID
Under Art. 3 of the FC, one of the formal requisites
of marriage is the "authority of the solemnizing
officer." Under Art. 7, marriage may be solemnized
by, among others, "any incumbent member of the
judiciary within the court's jurisdiction." Art. 8,
which is a directory provision, refers only to the
venue of the marriage ceremony and does not
alter or qualify the authority of the solemnizing
officer as provided in the preceding provision. If
there is defect in such requirement, the same
would not make the marriage void, but it merely
subjects the officer to criminal, civil, or
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administrative responsibility (Navarro v.
Domagtoy, AM No. MTJ-96-1088, July 19, 1996).
Marriages between Filipinos solemnized
abroad in accordance with the law in force in
said country
General Rule: Marriages between Filipinos
solemnized outside the Philippines in accordance
with the law of the foreign country where it is
celebrated, if valid there, shall be valid here as
such.
Exceptions: It shall be void, even if it is valid in the
foreign country where the marriage was
celebrated, if any of the following circumstances
are present:
1. Lack of legal capacity even with parental
consent (e.g. party is below 18);
2. Contracted through Mistake of one party as to
the identity of the other;
3. Contracted following the annulment or
declaration of nullity of a previous marriage
but Before partition, etc.;
4. Bigamous or polygamous except as provided
in Art. 41;
5. Void marriages under Art. 36;
6. Art. 37 marriages;
7. Art. 38 marriages.
Requisites for Application of 2nd Paragraph of
Art. 26
1. It must be a case of mixed marriage (one
party is Filipino and the other is an alien);
NOTE: Paragraph 2 of Article 26 should be
interpreted to include cases involving parties
who, at the time of the celebration of the
marriage were Filipino citizens, but later on,
one of them becomes naturalized as a foreign
citizen and obtains a divorce decree
(Republic v. Orbecido, G.R. No. 154380,
October 5, 2005).
2. The divorce is obtained either by the alien
spouse or the Filipino spouse abroad;
NOTE: The Supreme Court held in Manalo
that Article 26 (2) only requires that there be
a divorce validly obtained abroad. It does not
demand that the alien spouse should be the
one who initiated the proceeding wherein the
divorce decree was granted. It does not
distinguish whether the Filipino spouse is the
petitioner or the respondent in the foreign
divorce proceeding (Republic v. Manalo, G.R.
No. 221029, April 24, 2018).
3. The divorce obtained must capacitate the
alien spouse or both the alien spouse and the
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Filipino spouse to remarry (an absolute
divorce).
Marriages that are Void ab initio
1. Solemnized without license, except those
marriages that are exempt from the license
requirement;
2. Absence of any of the essential or formal
requisites of marriage;
3. Solemnized by any person not authorized to
perform marriages unless such marriages
were contracted with either or both parties
believing in good faith that the solemnizing
officer had the legal authority to do so;
4. Contracted through mistake of one of the
contracting parties as to the identity of the
other;
5. Bigamous or polygamous marriages;
6. Marriages contracted by any party below 18
years of age even with the consent of parents
or guardians;
7. Marriages contracted by any party, who at the
time of the celebration of the marriage, was
psychologically incapacitated (Art. 36, FC);
8. Incestuous marriages (Art. 37, FC);
9. Marriages declared void because they are
contrary to public policy (Art. 38, FC); and
10. Subsequent marriages which are void under
Art. 53.
Incestuous Marriages (Art. 37, FC)
1. Between ascendants and descendants of any
degree
2. Between brothers and sisters whether of the
full or half-blood
Void Marriages by Reason of Public Policy (Art.
38, FC)
Marriages between:
1. Collateral blood relatives (legitimate or
Illegitimate) up to the 4th civil degree;
2. Step-parents & step-children;
3. Parents-in-law & children-in-law;
4. Adopting parent & the adopted child;
5. Surviving spouse of the adopting parent & the
adopted child;
6. Surviving spouse of the adopted child & the
adopter;
7. Adopted child & legitimate child of the
adopter;
8. Adopted children of the same adopter; and
9. Parties where one, with the intention to marry
the other, kills the latter’s spouse, or his/her
spouse
Psychological Incapacity - is no less than a
mental (not physical) incapacity that causes a
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party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed
and discharged by the parties to the marriage.
Requisites of Psychological Incapacity
1. Juridical antecedence – Must be rooted in the
history of the party antedating the marriage or
at least existing during the moment of its
celebration, although its overt manifestations
have arisen only after such marriage.
2. Gravity – Grave enough to bring about the
disability of the party to assume the essential
marital obligations.
3. Permanence or incurability – Must be
incurable. If curable, the cure should be
beyond the means of the parties involved.
NOTE: Although Republic v. Molina (G.R. No.
108763, February 13, 1997) laid down the famous
Molina guidelines in interpreting and applying Art.
36 of the Family Code, the same are guidelines not
necessarily binding upon the Court. In fact, as can
be gleaned by the cases subsequent to it, the
Court has favored a more case-to-case perception
of every situation under Art. 36, interpreting this to
be more in line with the legislative intent behind the
provision. The Committee drafting the Family
Code intended for the term “not to be cast in
intractable specifics” but be informed by “evolving
standards” (Antonio v. Reyes, G.R. No. 155800,
March 10, 2006).
Resort to an actual medical examination of the
spouse concerned is not even a condition sine qua
non to a finding of psychological incapacity, if the
totality of evidence convinces the Court that the
finding of psychological incapacity can be
sustained (Marcos v. Marcos, G.R. No. 136490,
October 19, 2000).
What is the status of children born under Art.
36 of the FC?
Under Art. 54 of the FC, children conceived or born
before the decree of nullity of marriage are
classified as legitimate. Children born of the
subsequent marriage under Art. 53 of the same
Code are likewise classified as legitimate.
LEGAL SEPARATION
Grounds for Legal Separation
1. Repeated physical violence or grossly
abusive conduct against petitioner, common
child, child of petitioner;
2. Attempt to corrupt or induce petitioner,
common child, child of petitioner to engage in
prostitution, or connivance in such corruption
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or inducement;
3. Attempt by respondent against the life of
petitioner;
4. Final judgment sentencing respondent to
imprisonment of more than six (6) years, even
if pardoned;
5. Drug addiction or habitual alcoholism of
respondent;
NOTE: It must exist after celebration of
marriage.
6. Physical violence or moral pressure to
compel petitioner to change religious or
political affiliation;
7. Bigamous marriage subsequently contracted
by respondent in the Philippines or abroad
8. Sexual infidelity or perversion;
9. Lesbianism or homosexuality of respondent
NOTE: It must exist after celebration of
marriage;
10. Abandonment of petitioner by respondent
without justifiable cause for more than 1 year.
BAR 2007
Q: If a man commits several acts of sexual
infidelity, particularly in 2002, 2003, 2004,
2005, does the prescriptive period to file for
legal separation run from 2002?
A: Every act of sexual infidelity committed by the
man is a ground for legal separation under Art.
55(8) of the FC (Tolentino, Civil Code, 1990 ed.,
321). Hence, the prescriptive period begins to
run upon the commission of each act of
infidelity.
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
What are the personal obligations of spouses
to each other?
1. To live together;
2. To observe mutual love, respect, and fidelity;
and
3. To render mutual help and support (Art. 68,
FC).
Who shall fix the family domicile? In case of
disagreement, who shall decide?
The husband and wife shall fix the family domicile.
In case of disagreement, the court shall decide.
The court may exempt one spouse from living with
the other if the latter should live abroad or there
are other valid and compelling reasons for the
exemption. However, such exemption shall not
apply if the same is not compatible with the
solidarity of the family (Art. 69, FC).
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Who has the right and duty to the management
of the household? Who shall pay for the
expenses incurred for such management?
It shall be the right and duty of both spouses. The
expenses for such management shall be paid in
accordance with the following order provided for in
Art. 70 of the FC:
1. From the community property or conjugal
property;
2. From the income or fruit of their separate
properties;
3. From the separate properties of the spouses
(Art. 71, FC).
PROPERTY RELATIONS OF SPOUSES
Marriage settlement
A marriage settlement is defined as a contract
entered into by persons who are about to be united
in marriage for the purpose of fixing the condition
of the conjugal partnership with regard to present
and future property (9 Manresa 106).
Donation by reason of marriage.
Donations by reason of marriage are those which
are made before its celebration, in consideration of
the same, and in favor of one or both of the future
spouses (Art. 82, FC).
Requisites for a valid donation propter
nuptias?
1. Made before the celebration of the marriage;
2. Made in consideration of the marriage; and
3. Made in favor of one or both of the future
spouses.
BAR 1996
Q: On the occasion of Digna's marriage to
George, her father gave her a donation
propter nuptias of a car. Subsequently, the
marriage was annulled because of the
psychological immaturity of George. May
Digna's father revoke the donation and get
back the car? Explain.
A: No, Digna's father may not revoke the
donation because Digna was not in bad faith,
applying Art. 86(3) of the Family Code.
Absolute Community of Property (ACP)
A property regime wherein the spouses are
considered co-owners of all property brought into
the marriage, as well as those acquired during the
marriage, which are not otherwise excluded from
the community either by the provisions of the
Family Code or by the marriage settlement
(Rabuya, 2009).
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When shall the system of absolute community
of property between spouses commence?
At the precise moment that the marriage is
celebrated. Any stipulation, expressed or implied,
for the commencement of the community regime
at any other time shall be void (Art. 88, FC).
Are the winnings of either spouse in gambling,
community property or separate property?
It shall form part of the community property.
However, whatever may be lost therefrom shall be
borne by the loser and shall not be charged to the
community (Art. 95, FC).
Conjugal Partnership of Gains (CPG)
Formed by husband and wife whereby they place
in a common fund the fruits of their separate
properties and the income from their work or
industry, the same to be divided between them
equally (as a general rule) upon the dissolution of
the marriage or the partnership (Paras, 2016).
When does the regime of conjugal partnership
of gains govern the property relations between
the husband and wife during the marriage?
1. By agreement
2. CPG established before the effectivity of the
FC
Complete Separation of Property
Separation of property between spouses during
the marriage shall not take place except by judicial
order or without judicial conferment when there is
an express stipulation in the marriage settlements.
Judgement which resulted from the parties’
compromise was not specifically and expressly, for
separation of property and should not be so
inferred (Agapay v. Palang, G.R. No. 116668, July
28, 1997).
Can there be a separation of property between
the spouses during the marriage?
There can be no separation of property between
the spouses during the marriage except by virtue
of a judicial order (Art. 134, FC). From this, it is
clear that the system of complete separation of
property shall govern the property relations
between the spouses only in the following cases:
1. When it is expressly provided for in the
marriage settlements; and
2. When it is so decreed by a competent court.
3. Mandatory regime of complete separation of
property (Art. 103(3), FC; Art. 130(3), FC).
Sufficient Causes for Judicial Separation of
Property (Art. 135, FC)
1. Civil interdiction of the spouse of petitioner;
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2. Judicial declaration of absence;
3. Loss of parental authority as decreed by the
court;
4. Abandonment or failure to comply with family
obligation;
5. Administrator spouse has abused authority;
6. Separation in fact for one year and
reconciliation is highly improbable (Art. 135,
FC).
FAMILY HOME
It is the dwelling house where the husband and
wife and their family reside, and the land on which
it is situated. It is constituted jointly by the husband
and the wife or by an unmarried head of a family
(Art. 152, FC).
Constitution of Family Home
The family home is deemed constituted on a house
and lot from the time it is occupied as a family
residence (Art. 153, FC).
Effect of death of one or both spouses or of the
unmarried head of the family upon the family
home
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 10 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
constituted the family home (Art. 159, FC).
Qualification: Jurisprudence has defined a “minor
beneficiary” as one directly dependent upon the
constitutor/s of the Family Home for support.
PATERNITY AND FILIATION
Paternity is the civil status of a father in relation to
the children begotten by him. In its generic sense,
it is also used to designate the civil status of a
mother in relation to the children begotten by her.
Filiation is the civil status of a child in relation to
his/her father or mother.
Kinds of Children under the FC
1. Legitimate children;
2. Illegitimate children;
3. Legitimated children; and
4. Adopted children.
NOTE: Further classification of illegitimate children
under the NCC was abolished by the FC and are
now all classified as illegitimate children.
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Legitimate Children
Children conceived or born during the marriage of
the parents are legitimate. Children conceived as
a result of artificial insemination of the wife with the
sperm of the husband or that of a donor or both
are likewise legitimate children of the husband and
his wife, provided, that both of them authorized or
ratified such insemination in a written instrument
executed and signed by them before the birth of
the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the
child (Art. 164, NCC).
Presumption of Legitimacy
Article 164 of the Family Code provides that the
children born during the marriage of the parents
are presumed legitimate, even though the mother
has declared to the contrary, or has been
sentenced as an adulteress.
Proof of Filiation (Art. 172, FC)
1. Primary Evidence
a. Their record of birth appearing in the civil
registry; or
b. An admission of his filiation by his parent in
a public document or a private handwritten
instrument and signed by said parent
2. Secondary Evidence
a. Proof of open and continuous possession of
status as legitimate child; or
b. Any other means stated by the rules of court
or special laws.
NOTE: Only in the absence of primary evidence
can secondary evidence be admitted.
Action for Claiming Filiation by Legitimate
Children (Art. 173, NCC)
1. The child can bring the action during his or
her lifetime;
2. If the child dies during minority or in a state of
insanity, such action shall be transmitted to
his heirs, who shall have a period of five years
within which to institute the action; and
3. The action commenced by the child shall
survive notwithstanding the death of either or
both of the parties.
Rule on status of child where the mother
contracted another marriage within 300 days
after termination of the former
The child shall be considered as conceived during
the:
1. Former marriage– if child is born: before 180
days after the solemnization of the
subsequent marriage, provided it is born
within 300 days after termination of former
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marriage.
2. Subsequent marriage –if a child is born: 180
days after the celebration of the subsequent
marriage, even though it be born within 300
days after the termination of the former
marriage.
Illegitimate Children
General Rule: Those conceived and born outside
of a valid marriage (Art. 165, NCC).
Exceptions:
1. Children of marriages void under Art. 36, if
conceived or born before the decree of nullity
becomes final; and
2. Under Art. 53 on subsequent marriages which
did not comply with Art. 52.
How to establish illegitimate filiation
Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence
(primary or secondary) as legitimate children.
Action for Claiming Filiation by Illegitimate
Children (Art. 175, NCC)
1. For actions based on primary evidence, the
same periods stated in Art. 173 apply.
2. For actions exclusively based on secondary
evidence, the action may only be brought
during the lifetime of the alleged parent.
In order that a child may be legitimated, what
requisites must occur?
1. The child was conceived and born outside of
wedlock;
2. At the time of the conception of the child, the
parents were not disqualified by any
impediment to marry each other (Art. 177,
FC); and
3. The parents must subsequently enter into a
valid marriage (Art. 178, FC).
When shall legitimation take effect?
The effects of legitimation shall retroact to the time
of the child’s birth (Art. 180, FC).
ADOPTION
Adoption is the process of making a child, whether
related or not to the adopter, possess in general,
the rights accorded to a legitimate child. It is a
juridical act, a proceeding in rem which creates
between two persons a relationship similar to that
which results from legitimate paternity and filiation.
The modern trend is to consider adoption not
merely as an act to establish a relationship of
paternity and filiation, but also as an act which
endows the child with a legitimate status (In the
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Matter of the Adoption Stephanie Nathy Astorga
Garcia, G.R. No. 148311, March 31, 2005).
SUPPORT
It comprises everything indispensable for
sustenance, dwelling, clothing, medical
attendance, education and transportation, in
keeping with the financial capacity of the family
(Art. 194, FC).
1. Education includes a person’s schooling or
training for some profession, trade or
vocation, the right to which shall subsist
beyond the age of majority.
2. Transportation includes expenses in going to
and from school, or to and from place of work.
Persons obliged to support each other (Art.
195, FC)
1. The spouses;
2. Legitimate ascendants & descendants;
3. Parents and their legitimate children, and the
legitimate and illegitimate children of the
latter;
4. Parents and their illegitimate children, and the
legitimate and illegitimate children of the
latter; and
5. Legitimate brothers and sisters, whether full
or half-blood.
PARENTAL AUTHORITY
Parental authority is defined as the mass of rights
and obligations which parents have in relation to
the persons and property of their children until their
emancipation, and even after under certain
circumstances (2 Manresa 8).
BAR 2006
Q: Give at least three (3) examples of
"compelling reasons" for taking away from
the mother is custody her child under seven
(7) years of age.
A:
1. The mother is insane;
2. The mother is sick with a disease that is
communicable and might endanger the
health and life of the child;
3. The mother has been maltreating the child;
4. The mother is engaged in prostitution;
5. The mother is engaged in adulterous
relationship;
6. The mother is a drug addict;
7. The mother is a habitual drunk or an
alcoholic;
8. The mother is in jail or serving sentence.
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Substitute Parental Authority
It is the parental authority which the persons
designated by law may exercise over the persons
and property of unemancipated children in case of
death, absence or unsuitability of both parents or
in default of a judicially appointed guardian.
Special Parental Authority
It is the parental authority granted by law to certain
persons, entities or institutions in view of their
special relation to children under their supervision
instruction or custody. It is denominated as special
because it is limited and is present only when the
child is under their supervision instruction or
custody. It can also co-exist with the parents’
parental authority.
Tender-Age Presumption
No child under seven years of age shall be
separated from the mother, unless the court finds
compelling reasons to order otherwise (Art 213(2),
FC).
FUNERALS
It is undeniable that the law simply confines the
right and duty to make funeral arrangements to the
members of the family to the exclusion of one’s
common law partner. In Tomas Eugenio, Sr. v.
Velez, 185 SCRA 425 (1990), a petition for habeas
corpus was filed by the brothers and sisters of the
late Vitaliana Vargas against her lover, Tomas
Eugenio, Sr., alleging that the latter forcibly took
her and confined her in his residence. It appearing
that she already died of heart failure due to
toxemia of pregnancy, Tomas Eugenio, Sr. sought
the dismissal of the petition for lack of jurisdiction
and claimed the right to bury the deceased, as the
common-law husband (Valino v. Adriano, April 22,
2014).
NOTE: The duty and the right to make
arrangements for the funeral of a relative shall be
in accordance with the order established for
support, under Article 294. In case of descendants
of the same degree, or of brothers and sisters, the
oldest shall be preferred. In case of ascendants,
the paternal shall have a better right (Article 305,
NCC).
DECLARATION OF ABSENCE
Absence
Absence may be defined as the legal status of a
person who has absented himself from his
domicile and whose whereabouts and fate are
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unknown it not being known with certainty whether
he is still living or not.
Who may ask for the declaration of absence
(Art. 385, NCC)
1. The spouse present;
2. The heirs instituted in a will, who may present
an authentic copy of the same;
3. The relatives who may succeed by the law of
intestacy;
4. Those who may have over the property of the
absentee some right subordinated to the
condition of his death shall have a better right
(Art. 305, NCC).
CLERICAL ERROR LAW
BAR 2006
Q: What entries in the Civil Registry may be
changed or corrected without a judicial
order?
A: Only clerical or typographical errors and first
or nicknames may be changed or corrected
without a judicial order under R.A. No. 9048
(Clerical Error Law). Clerical or typographical
errors refer to mistakes committed in the
performance of clerical work in writing, copying,
transcribing or typing an entry in the civil
register. The mistake is harmless and
innocuous, such as errors in spelling, visible to
the eyes or obvious to the understanding, and
can be corrected or changed only by reference
to other existing records. Provided, however,
that no correction must involve the change of
nationality, age, status or sex of the petitioner.
III. PROPERTY
Property - All things which are or may be the
object of appropriation are considered either:
1. Immovable or real property; or
2. Movable or personal property (Article 414,
NCC).
A constructed his building on a piece of land
belonging to B, to whom he (A) pays a monthly
rental of P500.00. Is the building real or
personal property?
The building is a real or immovable property.
Whether constructed on land belonging to the
owner of the building or on land belonging to
another, such as in the instant case, from the
viewpoint of the law and third persons the building
is real property by incorporation within the
meaning of No. 1 of the Art. 415 of the NCC. This
is well-settled in this jurisdiction.
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Effect of demolition of a house
Once a house is demolished, its character as an
immovable ceases because a house is classified
as an immovable property by reason of its
adherence to the soil on which it is built (Bicerra v.
Teneza, G.R. No. L-16218, November 29,1962).
Mortgage of a building erected on a land
belonging to another
A building, by itself, may be mortgaged apart from
the land on which it was built even if a mortgage of
land necessarily includes, in the absence of
stipulation of the improvements thereon, buildings.
Such a mortgage would still be a real estate
mortgage (REM) for the building would still be
considered immovable property even if dealt with
separately and apart from the land (Yee v. Strong
Machinery Company, G.R. No. L-11658, February
15, 1918).
Machinery
Machinery is by nature a movable property and
becomes immobilized only by destination subject
to the following requirements:
1. The machinery must be placed by the owner
or his agent.
• But NOT when so placed by a tenant, a
usufructuary, or person having only a
temporary right, UNLESS such person
acted as agent of the owner.
• One having a temporary right to the
possession or enjoyment of the land
cannot be deprived of the machinery,
which is personal by nature, by
immobilizing it to become the property of
the owner.
2. The industry or work must be carried on a
building or piece of land.
3. The machinery must be essential and
principal to the above works or industry.
OWNERSHIP
It is the independent right of a person to the
exclusive enjoyment and control of a thing or a
right including its disposition and recovery subject
only to the restrictions or limitations established by
law and the rights of others (Arts. 427 & 428, NCC).
What is the extent of the right of ownership of
the owner of a parcel of land?
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
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complain of the reasonable requirements of aerial
navigation (Art. 437, NCC).
Hidden Treasure
By treasure is understood, for legal purposes, any
hidden and unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of
which does not appear (Art. 439, NCC).
To whom does hidden treasure which is
discovered belong
Hidden treasure belongs to the owner of the land,
building, or other property on which it is found.
Nevertheless, when the discovery is made on the
property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall
be allowed to the finder. If the finder is a trespasser,
he shall not be entitled to any share of the treasure.
If the things found be of interest to science or the
arts, the State may acquire them at their just price,
which shall be divided in conformity with the rule
stated (Art. 438, NCC).
Recovery of Property
1. Personal Property:
• Replevin
2. Real Property:
• Forcible Entry/Unlawful Detainer
(accion interdictal)
• Recovery of Possession (accion
publiciana)
• Recovery of Ownership (accion
reivindicatoria)
Rules on accession
The right of the owner of a thing, real or personal,
to become the owner of everything which is
produced thereby, or incorporated or attached
thereto, either naturally or artificially (Art. 440,
NCC).
NOTE: It is not one of the modes of acquiring
ownership but merely a consequence of incidence
of ownership.
The principle of "accession follows the
principal"
The owner of the land owns the building, fruits and
improvements or repairs made thereon. The
landowner is further presumed to have made the
works, sowing and planting on the land unless the
contrary is proved (Arts. 445-446, NCC).
Builders in good faith
Article 448 of the Civil Code applies when the
builder believes that he is the owner of the land or
that by some title he has the right to build thereon,
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or that, at least, he has a claim of title thereto
(Communities Cagayan v. Nanol, G.R. No.
176791, November 12, 2012).
NOTE: Good faith is always presumed, and upon
him who alleges bad faith on the part of the
possessor rests the burden of proof (Art. 527,
NCC). However, a lessee is not a builder, planter,
or sower in good faith.
May you be considered in good faith even if
you are negligent?
Yes. Good faith does not necessary exclude
negligence. In negligence there is no intention to
do wrong or cause damage (Art. 456, NCC).
The right of choice always belongs to the
landowner
It is the owner of the land who is allowed to
exercise the option because his right is older and
because, by the principle of accession, he is
entitled to the ownership of the accessory thing
(Torbela v. Del Rosario, G.R. No. 140528,
December 7, 2011).
The options of the landowner
Article 448 of the Civil Code provides that if a
person builds on another's land in good faith, the
land owner may either:
1. appropriate the works as his own after paying
indemnity; or
2. oblige the builder to pay the price of the land.
NOTE: The option is to sell the land, not to buy it,
and it is the landowner's choice (Sps. Benitez v.
CA, G.R. No. 1048282, 66 SCRA 242).
Right of retention
Articles 448 and 546 of the Civil Code grant the
builder or planter in good faith full reimbursement
of useful improvements and retention of the
premises until reimbursement is made (Republic v.
Ballocanag, G.R. No. 163794, November 28,
2008).
NOTE: The right of retention is not applicable to
properties of public dominion. It cannot be invoked
against a property of public dominion because
public interest is involved (Calapan Lumber v.
Community Sawmill, G.R. No. L-16351, June 30,
1964).
Right of remotion
The owner is entitled to such remotion only when,
after having chosen to sell his land, the other party
fails to pay for the same (Briones v. Macabagdal,
G.R. No. 150666, August 3, 2010).
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What are the rights, if any, of a builder in bad
faith?
A builder in bad faith is not entitled to anything and
is even liable for damages. However, the builder in
bad faith is entitled reimbursement for:
1. necessary expenses for the preservation of
the land (Art. 449, NCC); and
2. expenses for the production, gathering,
gathering and preservation of the fruits (Art.
450, NCC).
NOTE: Mutual bad faith is equivalent to good faith.
If there was bad faith, not only on the part of the
person who built, planted or sown on the land of
another but also on the part of the owner of such
land, the rights of one and the other shall be the
same as though both had acted in good faith (Art.
453, NCC).
May the landowner compel the builder in bad
faith to buy the land even if it is considerably
higher than the value of the improvement?
Yes. (Article 450, NCC).
BAR 2001
Q: The Rio Magnifico river deposited soil
along its bank for many years beside the
titled land of Jim. In time, such deposit
reached an area of 1,000 square meters.
With the permission of Jim, Mike cultivated
the said area. Ten (10) years later, a big flood
occurred in the river and transferred the
1,000 square meters to the opposite bank,
beside the land of Lito. The land transferred
is now contested by Jim and Lito as riparian
owners and by Mike who claims ownership
by prescription. Who should prevail? Why?
A: Jim should prevail. The disputed area, which
is an alluvion, belongs by right of accretion to
Jim, the riparian owner (Art. 457, NCC). When,
as given in the problem, the very same area was
“transferred" by flood waters to the opposite
bank, it became an avulsion and ownership
thereof is retained by Jim who has two (2) years
to remove it (Art. 459, NCC). Mike’s claim
based on prescription is baseless since his
possession was by mere tolerance of Jim and,
therefore, did not adversely affect Jim’s
possession and ownership (Art. 537, NCC).
Inasmuch as his possession is merely that of a
holder, he cannot acquire the disputed area by
prescription.
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When may an action be brought to remove the
cloud or to quiet the title to real property or any
interest therein?
An action may be brought to remove the cloud or
to quite the title to real property or any interest
therein if the following requisites are present:
1. The plaintiff must have a legal or equitable
title to, or interest in the real property which is
the subject-matter of the action (Art. 477,
NCC);
2. There must be a cloud on such title (Art. 476,
NCC);
3. Such cloud must be due to some instrument,
record, claim, encumbrance or proceeding
which is apparently valid or effective but is in
truth and in fact invalid, ineffective, voidable,
or unenforceable, and is prejudicial to the
plaintiffs title (Art. 476, NCC); and
4. The plaintiff must return to the defendant all
benefits he may have received from the latter,
or reimburse him for expenses that may have
redounded to his benefit (Art. 479, NCC).
CO-OWNERSHIP
There is co-ownership whenever the ownership of
an undivided thing or right belongs to different
persons (Art. 484, NCC). It has also been defined
as the right of common dominion which two or
more persons have in a spiritual part of a thing
which is not materially or physically divided (3
Sanchez Raman 162).
Requisites
1. Plurality of owners;
2. Object must be an undivided thing or right;
and
3. Each co-owner’s right must be limited only to
his ideal or abstract share of the physical
whole.
Sale/Mortgage by the co-owner of the whole
property
Since a co-owner is entitled to sell his undivided
share, a sale of the entire property by one co-
owner without the consent of the other co-owners
is not null and void; only the rights of the co-
owner/seller are transferred, thereby making the
buyer a co-owner of the property (Mactan-Cebu
Int'l Airport Authority v. Unchuan, G.R. No. 182537,
June 1, 2016).
Co-owners remedy
As held in the case of Heirs of Protacio Go, Sr., "it
is now settled that the appropriate recourse of co-
owners in cases where their consent was not
secured in a sale of the entire property as well as
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in a sale merely of the undivided shares of some
of the co-owners is an action for partition under
Rule 69 of the Revised Rules of Court." (Domingo
v. Spouses Molina, G.R. No. 200274, April 20,
2016).
Right of redemption
The purpose of partition is to separate, divide and
assign a thing held in common among those to
whom it belongs. By their own admission,
petitioners already segregated and took
possession of their respective shares in the lot.
Their respective shares were therefore physically
determined, clearly identifiable and no longer
ideal. Thus, the co-ownership had been legally
dissolved. With that, petitioners’ right to redeem
any part of the property from any of their former
co-owners was already extinguished. The
community ceases to exist and there is no more
reason to sustain any right of legal redemption
(Avila v. Sps. Barabat, G.R. No. 141993, March
17, 2006).
Repudiation of co-ownership
In order that a co-owner's possession may be
deemed adverse to the cestui que trust or the other
co-owners, the following elements must concur:
1. that he has performed unequivocal acts of
repudiation amounting to an ouster of the
cestui que trust or the other co-owners; and
2. that such positive acts of repudiation have
been made known to the cestui que trust or
the other co-owners; and
3. that the evidence thereon must be clear and
convincing (Salvador v. CA, G.R. No. 109910,
April 5, 1995).
POSSESSION
It is the holding of a thing or the enjoyment of a
right either by material occupation or by the fact of
subjecting the thing or right to the action of our will
(4 Manresa 18; Art. 523, NCC).
Requisites of Possession
1. Possession in fact or holding or control of a
thing or right;
2. Animus possidendi or the deliberate intention
to possess; and
3. Possession is by virtue of one’s own right,
either as an owner or as a holder.
Modes of acquiring possession
1. By material occupation (detention) of a thing
or the exercise of a right (quasi-possession).
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2. By subjection of the thing/right to our will
which does not require actual physical
detention or seizure.
3. By constructive possession or proper acts
and legal formalities established by law such
as succession, donation, execution of public
instruments (Art. 531, NCC).
Acts which do not give rise to possession
1. Through force or intimidation as long as there
is a possessor who objects thereto (Art. 536,
NCC)
2. Through acts executed clandestinely and
without the knowledge of the possessor which
means that:
a. Acts are not public; and
b. Unknown to the owner or possessor
3. Acts merely tolerated by the owner or the
lawful possessor; and
4. Acts executed by violence (Art 537, NCC)
Rights of a possessor
1. To be respected in his possession;
2. To be protected in said possession by legal
means;
3. To secure in an action for forcible entry the
proper writ to restore him in his possession;
and
4. To secure from a competent court in an action
for forcible entry the writ of preliminary
mandatory injunction to restore him in his
possession (Art. 539, NCC).
NOTE: An adverse possession of property by
another is not an encumbrance in law, and does
not contradict the condition that the property be
free from encumbrance. Likewise, the adverse
possession is not a lien for a lien signifies a
security for a claim (Ozaeta v. Palanca, G.R. No.
L-17455, August 1, 1964).
Possession of movable property acquired in
good faith
Doctrine of Irrevindicability – the possession of
movable property acquired in good faith is
equivalent to title.
1. Possession in good faith;
2. Owner has voluntarily parted with the
possession of the thing; and
3. Possessor is in the concept of an owner.
NOTE: This is merely presumptive as it can be
defeated by the true owner (Art. 559, NCC).
Right of reimbursement
1. Necessary expenses are refundable to every
possessor; but only the possessor in good
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faith may retain the thing until he has been
reimbursed therefor (Art. 546, NCC).
2. Useful expenses shall be refunded to the
possessor in good faith with the same right of
retention (Art. 546, NCC).
3. Luxurious expenses are not refundable even
if made by a possessor is in good faith (Art.
548, NCC).
USUFRUCT
Usufruct is the right of a person called usufructuary,
to enjoy the property of another called the owner,
with the obligation of returning it at the designated
time and preserving its form and substance,
unless the title constituting it or the law provides
otherwise (Pineda, 2009).
Rights of a usufructuary on pending natural
and industrial fruits (Art. 567, NCC)
1. At the beginning of the usufruct: (a) Belong to
the usufructuary; (b) Not bound to refund to
the owner the expenses of cultivation and
production but without prejudice to the right of
third persons.
2. At the termination of the usufruct: Belong to
the owner but he is bound to reimburse the
usufructuary of the ordinary cultivation
expenses out of the fruits received. The right
of innocent third parties should not be
prejudiced.
Right of enjoyment
1. Accessions (whether artificial or natural)
2. Servitudes and easements; and
3. All benefits inherent in the property (like the
right to hunt and fish therein, the right to
construct rain water receptacles, etc.)
Rights of the usufructuary as to the usufruct
itself
1. To alienate, pledge or mortgage the right of
usufruct, even by gratuitous title (Art. 572,
NCC);
2. In a usufruct to recover real property right, to
bring the action and to oblige the owner
thereof to give him the proper authority and
the necessary proof to bring the action (Art.
578, NCC); and
3. In a usufruct of part of a common property, to
exercise all the rights pertaining to the co-
owner with respect to the administration and
collection of fruits or interests.
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Rights of usufructuary to recover the property
held in usufruct
To bring the action, the usufructuary can demand
from the owner:
1. Authority to bring the action (usually a special
power of attorney); and
2. Proofs needed for a recovery.
Rights of usufructuary at the expiration of the
usufruct
To collect reimbursement from the owner:
• For indispensable extraordinary repairs made
by the usufructuary (Art. 593, NCC);
• For taxes on the capital advanced by the
usufructuary (Art. 597, NCC);
• For damages caused by the naked owner; and
• For payment of increase in value of the
immovable by reason of repairs provided the
owner is notified of the urgency of such repairs
but the latter failed to make said repairs despite
the notification, and the repair is necessary for
the preservation of the property (Art. 594,
NCC).
Caucion juratoria – The usufructuary, being
unable to file the required bond or security, may
file a verified petition in the proper court asking for
the delivery of the house and furniture necessary
for himself and his family so that he and his family
be allowed to live in a house included in the
usufruct and retain it until the termination of the
usufruct without any bond or security.
EASEMENT
An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of
another immovable belonging to a different owner
(Art. 613, NCC).
BAR 2001
Q: Emma bought a parcel of land from
Equitable-PCI Bank, which acquired the
same from Felisa, the original owner.
Thereafter, Emma discovered that Felisa
had granted a right of way over the land in
favor of the land of Georgina, which had no
outlet to a public highway, but the easement
was not annotated when the servient estate
was registered under the Torrens system.
Emma then filed a complaint for cancellation
of the right of way, on the ground that it had
been extinguished by such failure to
annotate. How would you decide the
controversy?
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A: The complaint for cancellation of easement
of right of way must fall. The failure to annotate
the easement upon the title of the servient
estate is not among the grounds for
extinguishing an easement under Art. 631 of the
NCC. Under Article 617, easements are
inseparable from the estate to which they
actively or passively belong. Once it attaches, it
can only be extinguished under Art. 631, and
they exist even if they are not stated or
annotated as an encumbrance on the Torrens
title of the servient estate (Tolentino, 1987 ed.).
How are easements acquired?
Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten
years (Art. 620, NCC) while continuous non-
apparent easements and discontinuous
easements, whether apparent or non-apparent,
can only be acquired by virtue of a title (Art. 622,
NCC).
In an easement of right of way, which kind of
way shall be chosen?
In an easement of right of way, that easement
where the way is shortest and will cause least
prejudice shall be chosen (Quimen vs. CA and
Oliveros, G.R. No. 112331, May 29,1996).
How shall the period of prescription for the
acquisition of an easement of light and view be
counted?
The period of prescription for the acquisition of an
easement of light and view shall be counted:
1. From the time of the opening of the window,
if it is through a party wall; or
2. From the time of the formal prohibition upon
the proprietor of the adjoining land or
tenement, if the window is through a wall on
the dominant estate (Art. 668, NCC).
When is an easement of light and view positive,
and when is it negative?
When the window or opening is made through a
party wall or a wall belonging to the owner of the
adjoining tenement, the easement of light and view
is positive, but when the window or opening is
made through a wall of the dominant estate, the
easement of light and view is negative.
Who owns the fruits of a tree naturally falling
upon an adjacent estate?
The owner of such adjacent estate (Art. 681, NCC).
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What is meant by the easements of lateral and
subjacent support?
These easements refer to those regulated by Arts.
684 to 686 of the NCC. Art. 684 provides that no
proprietor shall make such excavations upon his
land as to deprive any adjacent land or building of
sufficient lateral or subjacent support. Support is
lateral when the supported and the supporting
lands are divided by a vertical plane, and it is
subjacent when the supporting land is beneath it.
NUISSANCE
A nuisance is any act, omission, establishment,
business, condition of property, or anything else
which:
1. Injures or endangers the health or safety of
others;
2. Annoys or offends the senses;
3. Shocks, defies or disregards decency or
morality;
4. Obstructs or interferes with the free passage
of any public highway or street, or any body
of water; or
5. Hinders or impairs the use of property (Art.
694, NCC).
Kinds of Nuisance
1. Nuisance per se - recognized as a nuisance
under any and all circumstances, because it
constitutes a direct menace to public health or
safety, and, for that reason, may be abated
summarily under the undefined law of
necessity.
2. Nuisance per accidens - depends upon
certain conditions and circumstances, and its
existence being a question of fact, it cannot
be abated without due hearing thereon in a
tribunal authorized to decide whether such a
thing in law constitutes a nuisance (Knights of
Rizal v. DMCI Homes, Inc. G.R. No. 213948,
April 25, 2017).
BAR 2006
Q: A drug lord and his family reside in a
small bungalow where they sell shabu and
other prohibited drugs. When the police
found the illegal trade, they immediately
demolished the house because according to
them, it was a nuisance per se that should
be abated. Can this demolition be
sustained? Explain.
A: No, the demolition cannot be sustained. The
house is not a nuisance per se or at law as it is
not an act, occupation, or structure which is a
nuisance at all times and under any
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circumstances, regardless of location or
surroundings. A nuisance per se is a nuisance
in and of itself, without regard to circumstances
(Tolentino, p. 695, citing Wheeler v. River Falls
Power Co., 215 Ala. 655, 111 So. 907).
BAR 1970
Q: What requisites must concur in order that
a private person may summarily abate a
nuisance?
A: Whether public or private, the following
requisites must concur in order that a private
person may summarily abate a nuisance:
1. It must be specially injurious to him;
2. No breach of the peace or unnecessary
injury must be committed;
3. Demand must first be made upon the
owner or possessor to abate the nuisance;
4. The demand has been rejected;
5. The abatement is approved by the district
health officer and executed with the
assistance of the local police; and
6. The value of the destruction does not
exceed P3,000 (Arts. 704 & 706, NCC).
Doctrine of Attractive Nuisance
One who maintains on his premises dangerous
instrumentalities or appliances of a character likely
to attract children in play, and who fails to exercise
ordinary care to prevent children from playing
therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the
child is technically a trespasser in the premises
(Jarco Marketing Corp. v. CA, G.R. No. 129792,
December 21, 1999).
MODES OF ACQUIRING OWNERSHIP
Under the NCC, what are the modes of
acquiring ownership and other real rights?
1. Occupation;
2. Intellectual creation;
3. Prescription;
4. Law;
5. Donation;
6. Testate and intestate succession; and
7. In consequence of certain contracts, tradition
(Art. 712, NCC).
NOTE: The first three (3) are original and the last
four (4) are derivative.
Occupation
Occupation is a mode of acquiring ownership by
the seizure of corporeal things which do not have
an owner with the intention of acquiring them and
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in accordance with the rules prescribed by law (3
Sanchez Roman 210).
Its requisites are:
1. There must be seizure of a thing;
2. Which must be a corporeal personal property;
3. Which must be susceptible of appropriation
by nature;
4. The thing must be without an owner; and
5. There must be an intention to acquire
ownership.
BAR 2007
Q: Distinguish Occupation from Possession
A: Occupation is a mode of acquiring ownership
which involves some form of holding (Arts. 712
& 713, NCC). Possession is the holding of a
thing or the enjoyment of a right (Art. 532, NCC).
Occupation can take place only with respect to
property without an owner; while possession
can refer to all kinds of property, whether with or
without an owner. Occupation in itself, when
proper, confers ownership; but possession does
not by itself give rise to ownership.
BAR 1998
Q: What is meant by law as a mode of
acquiring ownership? What are the different
instances under the NCC whereby there is
an acquisition of ownership by operation of
law?
A: When the NCC speaks of law as a distinct
mode of acquiring ownership, it refers to those
instances where the law, independently of the
other modes of acquiring ownership,
automatically and directly vests the ownership
of the thing in a certain individual once the
prescribed requisites or conditions are present
or complied with.
Examples of this are:
1. Land which belongs exclusively to either of
the spouses where a building is
constructed with conjugal funds. Here, the
ownership of the land is vested
automatically in the conjugal partnership
once the condition that its value has been
reimbursed to the owner has been
complied with (Art. 158 (2), NCC).
2. Hidden treasure which a stranger
discovers by chance on another’s property.
Here, 1/2 of the treasure belongs by right
of occupation to the stranger, while the
other half belongs by operation of law to
the proprietor (Art. 438(2) NCC).
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3. Abandoned beds, when a river or stream
suddenly changes its course to traverse
private lands. The former owners of the
new bed shall be the owners of the
abandoned bed in proportion to the area
lost by each. (Art. 58, P.D. No. 1067).
4. Fruits naturally falling from a tree upon
adjacent land. Here, the ownership of the
fruits is vested automatically in the owner
of the adjacent land (Art. 681, NCC).
BAR 1970
Q: Define tradition as a mode of acquiring
ownership and give its requisites.
A: Tradition is a derivative mode of acquiring
ownership and other real rights by virtue of
which they are transmitted from the patrimony
of the grantor, in which they had previously
existed, to that of the grantee by means of a just
title, there being both the intention and the
capacity on the part of both parties (3 Sanchez
Raman 238).
Its requisites are:
1. The right to be transmitted should have
previously existed in the patrimony of the
grantor;
2. The transmission should be by virtue of a
just title;
3. The grantor and the grantee should have
the intention and the necessary capacity to
transmit and to acquire; and
4. The transmission should be manifested by
some act which may be physical,
symbolical or legal (3 Sanchez Roman
234- 235).
Donation
Donation is an act of pure liberality whereby a
person disposes gratuitously of a thing or right in
favor of another who accepts it (Art. 725, NCC).
Requisites of Donation
1. Donor must have capacity to make the
donation;
2. He must have donative intent (animus
donandi);
3. There must be delivery in certain cases; and
4. Donee must accept or consent to the
donation during the lifetime of the donor and
of the donee in case of donation inter vivos
(Art. 746, NCC); whereas in case of donation
mortis causa, acceptance is made after
donor’s death because they partake of a will
(Art. 728, NCC).
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What are the formalities required for donation
of real and personal properties?
1. Of movable property:
a. With simultaneous delivery of property
donated:
• for P5,000 or less - may be
oral/written
• for more than P 5,000 – written in
public or private document
b. Without simultaneous delivery:
The donation and acceptance must be
written in a public or private instrument
(Statute of Frauds), regardless of value.
Otherwise, donation is unenforceable
2. Of immovable property:
a. Must be in a public instrument specifying
the property donated and the burdens
assumed by the done.
b. Acceptance may be made in either the
same instrument or in another public
instrument, notified to the donor in
authentic form, and noted in both deeds.
Otherwise, donation is void.
BAR 2007
Q: Distinguish illegal and impossible
conditions in a simple donation v. illegal and
impossible conditions in an onerous
donation.
A: Illegal or impossible conditions in simple
donations are considered as not imposed,
hence the donation is valid (Art. 727, NCC). On
the other hand, donations with an onerous
cause shall be governed by the rules on
contracts (Art. 733, NCC). Under Art. 1183 of
the NCC, impossible conditions, those contrary
to good customs or public policy and those
prohibited by law shall annul the obligation
which depends upon them. Thus, the onerous
donation is void.
BAR 1991
Q: In case of non-fulfillment of the condition
or charge imposed by the donor upon the
donee, what is the period of prescription for
bringing the action for revocation of the
donation? Is the action transmissible?
A: The action shall prescribe after four (4) years
from the non-compliance with the condition. It
may be transmitted to the heirs of the donor,
and may be exercised against the donee's heirs
(Art. 764, NCC).
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When a person is “specially disqualified’’ to
accept a donation
“Specially disqualified’’ does not refer to those
incapacitated to contract like minors or those of
unsound mind, but to people such as those
mentioned in Art. 739 and husbands and wives
with respect to immoderate donations from each
other (donations of spouses inter se).
Limitation on the amount that can be donated
1. If the donor has forced heirs, he cannot give
or receive by donation more than what he can
give or receive by will
2. If the donor has no forced heirs, donation may
include all present property provided he
reserves in full ownership or in usufruct:
• The amount necessary to support him
and those relatives entitled to support
from him;
• Property sufficient to pay the donor’s
debt contracted prior to the donation.
NOTE: The limitation applies only to simple,
remunerative, and modal donations but not to
onerous ones, which are governed by the law on
contracts (De Leon, 2006).
What are the acts of ingratitude of the donee
which will justify the donor in asking for the
revocation of the donation?
1. If the donee should commit some offense
against the person, the honor, or the property
of the donor, or of his wife or children under
his parental authority
2. If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even though he should prove it, unless the
crime or the act has been committed against
the donee himself, his wife or children under
his authority
3. If he unduly refuses him support when the
donee is legally or morally bound to give
support to the donor (Art. 765, NCC)
When is a donation inter vivos inofficious?
One of the limitations imposed upon donations
inter vivos is the principle that no person may give
or receive, by way of donation, more than he may
give or receive by will. The donation shall be
inofficious in all that it may exceed this limitation.
(Art. 752, NCC).
PRESCRIPTION
Prescription is a mode of acquiring ownership
through the lapse of time in the manner and under
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the conditions laid down by law (Virtucio v.
Alegarbes, G.R. No. 187451, August 29, 2012).
Requisites of prescription as a mode of
acquiring ownership
1. Capacity to acquire by prescription;
2. A thing capable of acquisition by prescription;
3. Possession of the thing under certain
conditions; and
4. Lapse of time provided by law.
The first two requisites apply to both ordinary and
extraordinary prescription, but the last two
requisites vary for each kind.
NOTE: Mere possession with a juridical title, such
as by a usufructuary, a trustee, a lessee, an agent,
or a pledge, not being in the concept of an owner
cannot ripen into ownership by acquisitive
prescription unless the juridical relation is just
expressly repudiated and such repudiation has
been communicated to the other party (Esguerra v.
Manantan, G.R. No. 158328, February 23, 2007).
Things subject to prescription
All things within the commerce of men:
1. Private property
2. Patrimonial property of the state
Prescription may be ordinary or extraordinary
1. Ordinary - requires possession of things in
good faith and with just title for the time fixed
by law.
2. Extraordinary - acquisition of ownership and
other real rights without need of title or of
good faith or any other condition.
IV. OBLIGATION AND CONTRACTS
OBLIGATION
An obligation is a juridical necessity to give, to do,
or not to do (Art. 1156, NCC).
Essential Requisites of an Obligation
1. A juridical or legal tie, which binds the parties
to the obligation and which may arise either
from bilateral or unilateral acts of persons;
2. An active subject known as the creditor or
obligee, who can demand the fulfillment of the
obligation;
3. A passive subject known as the debtor or
obligor, from whom the obligation is juridically
demandable; and
4. The fact, prestation or service which
constitutes the object of the obligation.
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Sources of Obligations
1. Law;
2. Contracts;
3. Quasi-contracts;
4. Acts or omissions punished by law; and
5. Quasi-delicts (Art. 1157, NCC).
BREACHES OF OBLIGATION
1. Delay (Mora) or Default
Those obliged to deliver or to do something incur
in delay from the time the obligee (creditor)
judicially or extrajudicially demands from them the
fulfillment of their obligation.
In reciprocal obligations, neither party incurs in
delay if the other does not comply or is not ready
to comply in a proper manner with what is
incumbent upon him. From the moment one of the
parties fulfills his obligations, delay by the other
begins (Art. 1169, NCC).
Requisites of Delay
1. Obligation must be due, demandable and
liquidated;
2. Debtor fails to perform his positive obligation
on the date agreed upon;
3. A judicial or extra-judicial demand made by
the creditor upon the debtor to fulfill, perform
or comply with his obligation; and
4. Failure of the debtor to comply with such
demand.
Necessity of Demand
Demand by the creditor is necessary to incur delay
except in the following instances:
1. When the obligation or the law expressly so
declares; or
2. When from the nature and the circumstances
of the obligation it appears that the
designation of the time when the thing is to be
delivered or the service is to be rendered was
a controlling motive for the establishment of
the contract; or
3. When the demand would be useless, as when
the obligor has rendered his power to
perform; or
4. In reciprocal obligations (Art. 1169, NCC).
Laches (Stale Demands)
The failure or neglect, for an unreasonable length
of time, to do that which by exercising due
diligence could or should have been done earlier;
it is negligence or omission to assert a right within
a reasonable time, warranting a presumption that
the party entitled to assert it either has abandoned
it or declined to assert it. It is also known as stale
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demands (Lim Tay v. CA, G.R. No. 126891 August
5, 1998).
Elements of Laches
1. Delay in asserting complainant’s right after he
had knowledge of the defendant’s conduct
and after he has opportunity to exercise it;
2. Injury or prejudice to the defendant in the
event relief is accorded to the complainant
(Pineda, 2000);
3. Lack of knowledge or notice on the part of the
defendant that the complainant would assert
the right on which he bases his suit; and
4. Conduct on the part of the defendant or one
under whom he claims, giving rise to the
situation complained of.
2. Fraud or Dolo
It is an intentional evasion of the faithful
performance of the obligation (8 Manresa 72). It is
also known as deceit or dolo.
Waiver of action arising from future fraud
With respect to fraud that has already been
committed (past fraud), the law does not prohibit
renunciation of the action for damages based on
the same since such can be deemed an act of
generosity. What is renounced is the effect of
fraud, particularly the right to indemnity. However,
the law prohibits any waiver of an action for future
fraud since the same is contrary to law and public
policy. Waiver for future fraud is void (Art. 1171,
NCC).
3. Negligence
The fault or negligence of the obligor consists in
the omission of that diligence which is required by
the nature of the obligation and corresponds with
the circumstances of the persons, of the time and
the place. When negligence shows bad faith, the
provisions of Art. 1171 and 2201, paragraph 2,
shall apply.
If the law or contract does not state the diligence
which is to be observed in the performance, that
which expected of a good father of a family shall
be required (Art. 1173, NCC).
Kinds of Diligence
1. That agreed upon by the parties, orally or in
writing
2. In the absence of stipulation, that required by
law in the particular case (ex. extraordinary
diligence)
3. If both the contract and the law are silent, then
the diligence expected of a good father of a
family or that of a reasonably prudent person
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(De Leon, 2014)
4. Contravention of tenor of obligation
Under Art.1170, the phrase “in any manner
contravene the tenor” of the obligation includes
any illicit act which impairs the strict and faithful
fulfillment of the obligation, or every kind of
defective performance. Such violation of the terms
of contract is excused in proper cases by fortuitous
events.
Fortuitous Events
An occurrence or happening which could not be
foreseen, or even if foreseen, is inevitable (Art.
1174, NCC).
Requisites
1. The cause of the breach of the obligation
must be independent of the will of the debtor;
2. The event must be either unforeseeable or
unavoidable;
3. The event must be such as to render it
impossible for the debtor to fulfill his
obligation in a normal manner; and
4. The debtor must be free from any
participation in or aggravation of the injury to
the creditor
BAR 1983
Q: Cite three (3) instances where a person is
made civilly liable for failure to comply with
his obligations although he was prevented
from doing so by a fortuitous event.
A: In the following instances, a person is still
civilly liable for failure to comply with his
obligation although he was prevented from
doing so by a fortuitous event:
1. When by law, the debtor is liable even for
fortuitous events;
2. When by stipulation of the parties, the
debtor is liable even for fortuitous events;
3. When the nature of the obligation requires
the assumption of risk;
4. When the object of the obligation is lost and
the loss is due partly to the fault of the
debtor;
5. When the object of the obligation is lost and
the loss occurs after the debtor has
incurred in delay;
6. When the debtor promised to deliver the
same thing to two or more persons who do
not have the same interest;
7. When the obligation to deliver arises from
a criminal offense; and
8. When the obligation is generic.
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Remedies in case of breach of obligation
1. Specific performance, or substituted
performance by a third person in case of an
obligation to deliver a generic thing, and in
obligations to do, unless it is a purely personal
act
2. Rescission (or resolution in reciprocal
obligations)
3. Damages, in any case
4. Subsidiary remedies of creditors:
• Accion subrogatoria
• Accion pauliana
• Accion directa
KINDS OF OBLIGATIONS
1. Pure and conditional obligations
Pure obligation is an obligation whose
performance does not depend upon a future or
uncertain event, or upon a past event or upon a
past event unknown to the parties, is demandable
at once (Art. 1179, NCC). Conditional obligation,
on the other hand, is an obligation subject to a
condition and the effectivity of which is
subordinated to the fulfillment or non-fulfillment of
a future and uncertain event, or upon a past event
unknown to the parties (Pineda, 2000).
Distinguish between the effects of suspensive
and resolutory conditions upon the obligation
It is evident that a resolutory condition affects the
obligation to which it is attached in a manner which
is diametrically opposed to that of a suspensive
condition. If the suspensive condition is fulfilled the
obligation arises or becomes effective; if the
resolutory condition is fulfilled, the obligation is
extinguished. If the first is not fulfilled, no juridical
relation is created; if the second is not fulfilled, the
juridical relation is consolidated. In other words, in
the first, rights are not yet acquired, but there is a
hope or expectancy that they will soon be
acquired; in the second, rights are already
acquired, but subject to the threat of extinction (8
Manresa, 5th Ed., Bk. 1, p. 311).
Reciprocal obligations
Reciprocal obligations are those which are created
or established at the same time, out of the same
cause, and which result in mutual relationships of
creditor and debtor between the parties.
Suppose that both of the parties in reciprocal
obligations have committed a breach thereof,
who shall be liable?
The first infractor shall be liable, but his liability
shall be equitably tempered by the courts.
However, if it cannot be determined which of the
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parties first violated the contract, the same shall be
deemed extinguished, and each shall bear his own
damage (Art. 1192, NCC).
2. Obligations with a period
Obligations for whose fulfillment a day certain has
been fixed, shall be demandable only when that
day comes (Art. 1193, NCC).
When the debtor binds himself to pay when his
means permit him to do so, the obligation shall be
deemed to be one with a period, subject to the
provision of Art. 1197 (Art. 1180, NCC).
Instances where the court may fix the period
1. If the obligation does not fix a period, but from
its nature and circumstances it can be
inferred that a period was intended by the
parties.
2. If the duration of the period depends upon the
sole will of the debtor.
3. In case of reciprocal obligations, when there
is a just cause for fixing the period.
4. If the debtor binds himself when his means
permit him to do so.
NOTE: Once fixed by the courts, the period cannot
be changed by the parties (Art. 1197, NCC).
BAR 1973
Q: What are the different cases or instances
under the NCC when the debtor shall lose
every right to make use of the term or
period?
A: The debtor shall lose every right to make use
of the period:
1. When after the obligation has been
contracted, he becomes insolvent, unless
he gives a guaranty or security for the debt;
2. When he does not furnish to the creditor
the guaranties or securities which he has
promised;
3. When by his own acts he has impaired said
guaranties or securities after their
establishment, and when through a
fortuitous event they disappear, unless he
immediately gives new ones equally
satisfactory;
4. When the debtor violates any undertaking
in consideration of which the creditor
agreed to the period; and
5. When the debtor attempts to abscond (Art.
1198, NCC)
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3. Facultative and alternative obligations
BAR 1988
Q: Define alternative and facultative
obligations
A: Alternative obligations refer to those juridical
relations which comprehend several objects or
prestations which are due, but the payment or
performance of one of them would be sufficient.
On the other hand, facultative obligations refer
to those juridical relations where only one object
or prestation has been agreed upon by the
parties to the obligation, but the obligor may
deliver or render another in substitution.
The right to choose the prestation
The right to choose the prestation belongs to the
debtor, except:
1. If expressly granted to the creditor (Art. 1200,
NCC)
2. The prestation is impossible, unlawful or
which could not have been the object of the
obligation (Ibid.)
3. If only one prestation is practicable (Art. 1202,
NCC)
NOTE: The choice shall produce no effect except
from the time it has been communicated (Art.
1201, NCC).
When the right of choice belongs to the
creditor
When the choice has been expressly given to the
creditor, the obligation shall cease to be alternative
from the day when the selection has been
communicated to the debtor.
Effect of loss of the thing intended as
substitute
The loss or deterioration of the thing intended as a
substitute, through the negligence of the obligor
does not render him liable. But once substitution
has been made, the obligor is liable for the loss of
the substitute on account of his delay, negligence
or fraud (Art. 1206(2), NCC).
4. Joint and solidary obligations
BAR 1988
Q: Define joint and solidary obligations
A: When there is a concurrence of two (2) or
more creditors or of two (2) or more debtors in
one and the same obligation, such obligation
may be either joint or solidary. A joint obligation
may be defined as an obligation where there is
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a concurrence of several creditors, or of several
debtors, or of several creditors and debtors, by
virtue of which each of the creditors has a right
to demand, while each of the debtors is bound
to render, compliance with his proportionate
part of the prestation which constitutes the
object of the obligation. In other words, each of
the creditors is entitled to demand the payment
of only a proportionate part of the credit, while
each of the debtors is liable for the payment of
only a proportionate part of the debt. A solidary
obligation, on the other hand, may be defined as
an obligation where there is a concurrence of
several creditors, or of several debtors, or of
several creditors and debtors, by virtue of which
each of the creditors has a right to demand,
while each of the debtors is bound to render
entire compliance with the prestation which
constitutes the object of the obligation. In other
words, each of the creditors is entitled to
demand the payment of the entire credit, while
each of the debtors is liable for the payment of
the entire debt (Art. 1207, NCC; 3 Castan, 7th
Ed., pp. 65-66).
When is an obligation solidary?
An obligation is solidary in the following cases:
1. When the obligation expressly so states;
2. When the law requires solidarity; and
3. When the nature of the obligation requires
solidarity (Art. 1207, NCC.)
Rules in case of loss or impossibility of
prestation in a solidary obligation
1. If the thing has been lost or if the prestation
has become impossible without the fault of
the solidary debtors, the obligation shall be
extinguished.
2. If there was fault on the part of any one of
them, all shall be responsible to the creditor,
for the price and the payment for damages
and interest, without prejudice to their action
against the guilty or negligent debtor.
3. If through a fortuitous event, the thing is lost
or the performance has become impossible
after one of the solidary debtors has incurred
in delay through judicial or extrajudicial
demand upon him by the creditor, 2nd
paragraph shall also apply (Art. 1221, NCC).
Defenses available to a solidary debtor
The solidary debtor may in all actions filed by the
creditor, avail himself of:
1. All defenses which are derived from the nature
of the obligation
2. Defenses which are personal to, or which
pertain to his own share
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3. With respect to those which personally belong
to the others, he may avail himself thereof only
as regards that part of the debt for which the
latter are responsible (Art. 1222, NCC)
5. Divisible and Indivisible Obligations
Divisible obligations are those which have as their
object a prestation which is susceptible of partial
performance without the essence of the obligation
being changed. Indivisible obligations, on the other
hand, are those which have as their object a
prestation which is not susceptible of partial
performance, because otherwise the essence of
the obligation will be changed (3 Castan, 7th Ed.,
p. 92). The obligation is clearly indivisible because
the performance of the contract cannot be done in
parts, otherwise, the value of what is transferred is
diminished (Nazareno v. CA, G.R. No. 138842,
October 18, 2000).
When is a thing divisible or indivisible?
A thing is divisible when, if separated into parts, its
essence is not changed or its value is not
decreased disproportionately, because each of the
parts into which it is divided are homogenous and
analogous to each other as well as to the thing
itself. On the other hand, a thing is indivisible
when, if separated into parts, its essence is
changed or its value is decreased
disproportionately (4 Sanchez Roman 93-94).
6. Obligations with a penal clause
An obligation with a penal clause is one with an
accessory undertaking by virtue of which the
obligor assumes a greater liability in case of
breach of the obligations (Jurado, 2009).
Penal clause
It is an accessory undertaking attached to a
principal obligation. It has for its purposes, firstly,
to provide for liquidated damages; and secondly,
to strengthen the coercive force of the obligation
by the threat of greater responsibility in the event
of breach of obligation (Buenaventura vs.
Metropolitan Bank and Trust Company, G.R. No.
167082, August 3, 2016).
Is there any difference between the penalty in
obligations with a penal clause and liquidated
damages?
As a general rule, there is none. In other words,
the penalty in its compensatory aspect is exactly
the same as the liquidated damages defined in Art.
2226 of the NCC (Lambert v. Fox, 26 Phil. 558). In
both cases, proof of actual damages suffered by
the creditor is not necessary. However, the penalty
in its punitive aspect is different from liquidated
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damages. Thus, when there is a stipulation that
the creditor can recover damages in addition to the
penalty, or when the debtor is sued for refusal to
pay the penalty, or when such debtor is guilty of
fraud, it is clear that in such cases the creditor can
recover not only the agreed penalty but also
damages suffered by him.
EXTINGUISHMENT OF OBLIGATIONS
1. Payment or Performance
Payment is the fulfillment of the obligation by the
realization of the purposes for which it was
constituted (Jurado, 2010).
Payment may consist not only in the delivery of
money but also the giving of a thing (other than
money), the doing of an act, or not doing of an act
(Art. 1232, NCC).
Payment made to a third person
It is valid insofar as it has redounded to the benefit
of the creditor. Such benefit to the creditor need
not be proved in the following cases:
1. If after payment, the third person acquires the
creditor’s rights;
2. If the creditor ratifies the payment to the third
person;
3. If by the creditor’s conduct, the debtor has
been led to believe that the third person had
authority to receive the payment (Art. 1241,
NCC).
Effect of payment by a third person
1. If made without the knowledge or against the
will of the debtor, the payer can recover from
the debtor only in so far as the payment has
been beneficial to the latter.
2. If made with knowledge of the debtor, the
payer shall have the rights of reimbursement
and subrogation, to recover what he has paid
and to acquire all the rights of the creditor (De
Leon, 2014).
Dation in Payment
The delivery and transmission of ownership of a
thing by the debtor to the creditor as an accepted
equivalent of the performance of the obligation.
The property given may consist not only of a thing
but also of a real right (Tolentino, 2002).
Requisites
1. There must be a performance of the
prestation in lieu of payment (animo solvendi)
which may consist in the delivery of a
corporeal thing or a real right or a credit
against the third person;
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2. There must be some difference between the
prestation due and that which is given in
substitution (aliud pro alio); and
3. There must be an agreement between the
creditor and debtor that the obligation is
immediately extinguished by reason of the
performance of a prestation different from that
due (Caltex Philippines, Inc. v. IAC, GR No.
72703, November 13, 1992).
Forms of Payment
1. Payment in cash – all monetary obligations
shall be settled in Philippine currency.
However, the parties may agree that the
obligation be settled in another currency at
the time of payment (Sec. 1, RA 8183).
2. Payment in check or other negotiable
instrument – not considered payment, they
are not considered legal tender and may be
refused by the creditor except when:
• the document has been encashed; or
• it has been impaired through the fault of
the creditor (Art. 1249, NCC).
Legal Tender
Legal tender means such currency which in a
given jurisdiction can be used for the payment of
debts, public and private, and which cannot be
refused by the creditor (Tolentino, 2002).
The legal tender covers all notes and coins issued
by the Bangko Sentral ng Pilipinas and guaranteed
by the Republic of the Philippines.
Extraordinary inflation or deflation
In case an extraordinary inflation or deflation of the
currency stipulated should supervene, the value of
the currency at the time of the establishment of the
obligation shall be the basis of payment, unless
there is an agreement to the contrary (Art. 1250,
NCC).
Requisites for extraordinary inflation or
deflation
1. There must be an official declaration of
extraordinary inflation or deflation from the
Bangko Sentral ng Pilipinas;
2. The obligation is contractual in nature; and
3. The parties expressly agreed to consider the
effects of the extraordinary inflation or
deflation (Equitable PCI Bank v. Ng Sheung
Nor, G.R. No. 171545, December 19, 2007).
Tender of Payment
The definitive act of offering to the creditor what is
due him together with the demand that the creditor
accepts the same (FEBTC v. Diaz Realty Inc.,
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G.R. No. 138588, August 23, 2001).
Application of Payments
It is the designation of the debt to which should be
applied the payment made by a debtor who has
various debts of the same kid in favor of one and
the same creditor (De Leon, 2014).
Requisites
1. There must be one debtor and one creditor;
2. There must be two or more debts;
3. The debts must be of the same kind;
4. The debts to which payment made by the
debtor has been applied must be due; and
5. The payment made must not be sufficient to
cover all the debts. (De Leon, 2014)
Application as to debts not yet due
Application of payments to debts not yet due
cannot be made except:
1. If there is a stipulation;
2. When it is made by the party for whose
benefit the term has been constituted (Art.
1252, NCC).
Payment by Cession
It is a special form of payment. It is the assignment
or abandonment of all the properties of the debtor
for the benefit of his creditors in order that the latter
may sell the same and apply the proceeds thereof
to the satisfaction of their credits (8 Manresa 321).
Requisites
1. There must be two or more creditors;
2. The debtor must be (partially) insolvent;
3. The assignment must involve all the
properties of the debtor; and
4. The cession must be accepted by creditors.
Consignation
Act of depositing the object of the obligation with
the court or competent authority after the creditor
has unjustifiably refused to accept the same or is
not in a position to accept it due to certain reasons
or circumstances (Pineda, 2000).
NOTE: Once the consignation has been duly
made, the debtor may ask the judge to order the
cancellation of the obligation (Art. 1260, NCC).
Requisites
1. Valid existing debt which is already due;
2. Prior valid tender of payment except when
prior tender of payment is dispensable;
3. Creditor unjustly refuses the tender of
payment; and
4. Prior notice of consignation given to persons
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interested in the fulfillment of the obligation.
2. Loss of the Thing Due
In its strict sense, “loss of the thing due" means
that the thing which constitutes the object of the
obligation perishes, or goes out of the commerce
of man, or disappears in such a way that its
existence is unknown or it cannot be recovered
(Art. 1189, No. 2, NCC). In its broad sense, it
means impossibility of compliance with the
obligation through any cause (4 Sanchez Roman
442).
What requisites must concur in order that an
obligation shall be extinguished by the loss or
destruction of the thing due?
In order that an obligation shall be extinguished by
the loss or destruction of the thing, it is essential
that the following requisites must concur:
1. The thing which is lost is determinate;
2. The thing is lost without any fault of the
debtor. If the thing is lost through the fault of
the debtor, the obligation is transformed into
an obligation to indemnify the obligee or
creditor for damages; and
3. The thing is lost before the debtor has
incurred in delay.
In obligations to do, what is the effect if the
prestation which constitutes the object of the
obligation becomes legally or physically
impossible?
In obligations to do, when the prestation which
constitutes the object of the obligation becomes
legally or physically impossible, the obligor is
released, provided that such impossibility was not
due to his fault and that it took place before he has
incurred in delay (Art. 1266, NCC).
In rare or exceptional cases, the same rule may be
applied to obligations not to do, such as when the
obligor is compelled to do that which he had
obligated himself to refrain from performing or
doing. In such cases, his obligation is extinguished
applying the same principle invoked in Art. 1266 of
the NCC (8 Manresa 664).
3. Condonation and Remission of Debt
An act of liberality by virtue of which the creditor,
without receiving any price or equivalent,
renounces the enforcement of the obligation, as a
result of which it is extinguished in its entirety or in
that part or aspect of the same to which the
condonation or remission refers (Pineda, 2000).
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Requisites
1. Must be gratuitous;
2. Acceptance by the debtor;
3. Must not be inofficious;
4. Formalities provided by law on donations
must be complied with if condonation is
express; and
5. An existing demandable debt.
4. Confusion and Merger of Rights
There is confusion when there is a meeting in one
person of the qualities of a creditor and debtor of
the same obligation (4 Sanchez Roman 421).
Requisites
1. Merger in the same person of the characters
of both a creditor and debtor (Art. 1275,
NCC);
2. Must take place in the persons of a principal
creditor and a principal debtor (Art. 1276,
NCC); and
3. Merger is definite and complete.
Effect of confusion or merger in one debtor or
creditor in a joint obligation
General Rule: Joint obligation is not extinguished
since confusion is not definite and complete with
regard to the entire obligation. A part of the
obligation still remains outstanding.
Exception: Obligation is extinguished with respect
only to the share corresponding to the debtor or
creditor concerned. In effect, there is only partial
extinguishment of the entire obligation (Art. 1277,
NCC; Pineda, 2000).
Effect of confusion or merger in one debtor or
creditor in a solidary obligation
If a solidary debtor had paid the entire obligation,
the obligation is totally extinguished without
prejudice to the rights of the solidary debtor who
paid, to proceed against his solidary co-debtors for
the latter’s individual contribution or liability (Art.
1215, NCC).
Effect of confusion or merger in relation to the
guarantors
1. Merger which takes place in the person of the
principal debtor or principal creditor benefits
the guarantors. The contract of guaranty is
extinguished.
2. Confusion which takes place in the person of
any of the guarantors does not extinguish the
obligation (Art. 1276, NCC).
5. Compensation
It is a mode of extinguishing obligations that take
place when two persons, in their own right, are
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creditors and debtors of each other (Art. 1278,
NCC).
Requisites
1. Each one of the obligors must be bound
principally, and that he be at the same time a
principal creditor of the other except
guarantor who may set up compensation as
regards what the creditor may owe the
principal (Arts. 1279-1280, NCC);
2. Both debts consist in sum of money, or if the
things due are 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;
5. Neither debt must be retained in a
controversy commenced by third person and
communicated in due time to the debtor
(neither debt is garnished) (Art. 1279, NCC);
and
6. Compensation must not be prohibited by law
(Art. 1290, NCC).
Kinds of Compensation
1. Legal compensation – by operation of law;
2. Conventional – by agreement of the parties;
3. Judicial (set-off) – by judgment of the court
when there is a counterclaim duly pleaded,
and the compensation decreed;
4. Facultative – may be claimed or opposed by
one of the parties.
6. Novation
It is the substitution or change of an obligation by
another, resulting in its extinguishment or
modification, either by changing the object or
principal conditions, or by substituting another in
the place of the debtor or by subrogating a third
person to the rights of the creditor (Pineda, 2000).
Requisites
1. Valid old obligation;
2. Intent to extinguish or to modify the old
obligation;
3. Capacity and consent of all the parties to the
new obligation (except in case of
expromission where the old debtor does not
participate);
4. Substantial difference of the old and new
obligation – on every point incompatible with
each other (implied novation); and
5. Valid New obligation.
Delegacion v. Expromision
In delegacion, the substitution is initiated by the old
debtor himself (delegante) by convincing another
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person (delegado) to take his place and to pay his
obligation to the creditor. In expromission, the
substitution of the old debtor by a new debtor is
upon the initiative or proposal of a third person.
CONTRACT
A contract is a meeting of minds between two
persons whereby one binds himself, with respect
to the other, to give something or to render some
service (Art. 1305, NCC).
Essential Requisites of Contracts
1. Consent - t is the concurrence of the wills of
the contracting parties with respect to the
object and cause, which shall constitute the
contract;
2. Object - it is the subject matter of the contract.
It can be a thing, right or service arising from
a contract; and
3. Cause - It is the essential and impelling
reason why a party assumes an obligation.
Rules on the Form of Contracts
General Rule: Contracts need not be in writing.
Exceptions: When the law requires a contract be
in writing for its:
1. Validity (formal contracts)
2. Enforceability (under Statute of Frauds)
3. For the convenience of the parties
NOTE: In Bitte v. Jonas, G.R. No. 212256,
December 9, 2015, the Court reiterated that in
sales of real property, the failure to observe the
proper form by rendering the agreement in writing
and on a public instrument will not invalidate the
sale.
Contracts which must be in writing to be valid
1. Donation of personal property whose value
exceeds five thousand pesos (Art. 748, NCC)
– the donation and acceptance must be in
writing;
2. Sale of a piece of land or any interest therein
through an agent (Art. 1874, NCC) – the
authority of the agent shall appear in writing;
3. Agreements regarding payment of interest in
contracts of loan (Art. 1956, NCC);
4. Antichresis – the amount of the principal and
the interest shall be specified in writing (Art.
2134, NCC; Jurado, 2011).
Contracts which must appear in a public
document
1. Donation of real properties (Art. 719, NCC);
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2. Partnership where immovable property or
real rights are contributed to the common
fund (Arts. 1171 & 1773, NCC);
3. Acts and contracts which have for their object
the creation, transmission, modification or
extinguishment of real rights over immovable
property; sale of real property or of an interest
therein is governed by Arts. 1403, No. 2, and
1405 (Art. 1358(1), NCC);
4. The cession, repudiation or renunciation of
hereditary rights or of those of the conjugal
partnership of gains (Art. 1358(2), NCC);
5. The power to administer property or any other
power which has for its object an act
appearing or which should appear in a public
document or should prejudice a third person
(Art. 1358(3), NCC);
6. The cession of actions or rights proceeding
from an act appearing in a public document
(Art. 1358(4), NCC).
Contracts that must be registered
1. Chattel mortgages (Art. 2140, NCC);
2. Sale or transfer of large cattle (Cattle
Registration Act).
Reformation of Contracts
It is a remedy to conform to the real intention of the
parties due to mistake, fraud, inequitable conduct,
accident (Art. 1359, NCC).
DEFECTIVE CONTRACTS
1. Rescissible Contracts
These are contracts validly constituted but
nevertheless maybe set aside due to a particular
economic damage or lesion caused to either to
one of the parties or to a third person. It may be
set aside in whole or in part, or up to the extent of
the damage caused (Art. 1381, NCC).
What contracts are rescissible?
1. Those which entered into by guardians
whenever the wards whom they represent
suffer lesion by more than one-fourth of the·
value of the things which are the object
thereof;
2. Those agreed upon in representation of
absentees, if the latter suffer the lesion stated
in the preceding number;
3. Those undertaken in fraud of creditors when
the latter cannot in any other manner collect
the claims due them;
4. Those which refer to things under litigation if
they have been entered into by the defendant
without the knowledge and approval of the
litigants or of competent judicial authority;
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5. All other contracts specially declared by law
to be subject to rescission (Art. 1381, NCC);
6. Payments made in a state of insolvency for
obligations to whose fulfillment the debtor
could not be compelled at the time they were
effected are also rescissible (Art. 1382, NCC).
2. Voidable Contracts
Voidable contracts are those where consent is
vitiated either by the incapacity of one of the
contracting parties or by mistake, violence,
intimidation, undue influence or fraud. These
contracts are binding, unless they are annulled by
a proper action in court. These are susceptible of
ratification (Art. 1390, NCC).
NOTE: Annulment may be had even if there be no
damage to the contracting parties.
Characteristics of a voidable contract
1. Effective until set aside;
2. May be assailed only in an action for such
purpose;
3. Can be confirmed; and
4. Can be assailed only by the party whose
consent was or his heirs or assigns.
What contracts are voidable?
1. Those where one of the parties is incapable
of giving; his consent to a contract;
2. Those where the consent is vitiated by
mistake, violence, intimidation; undue
influence or fraud (Art. 1390, NCC).
3. Unenforceable Contracts
Those contracts which cannot be enforced by
action or complaint, unless they have been ratified
by the party or parties who did not give consent
(Art. 1403, NCC).
What contracts are unenforceable?
1. Those entered into the name of another
person by one who has been given no
authority/legal representation or acted
beyond his powers;
2. Those that do not comply with the Statute of
Frauds;
3. Those where both parties are incapable of
giving consent to a contract (Art. 1403, NCC).
What is the Statute of Frauds?
The “Statute of Frauds" is descriptive of statutes
which require certain classes of contracts to be in
writing. The contract shall be unenforceable by
action unless the same or some note or
memorandum thereof be in writing and subscribed
by the party charged or by his agreement.
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Evidence of the' contract, therefore, cannot be
received without the writing or a secondary
evidence of its content (Art. 1403(2), NCC).
4. Void or Inexistent Contracts
In general, void and inexistent contracts may be
defined as those which lack absolutely either in
fact and or in law one or some or all of those
elements which are essential for its validity. In
particular, void contracts are the contracts where
all of the requisites prescribed by law for contracts
are present, but the cause, object or purpose is
contrary to law, morals, good customs, public
order or public policy, or they are prohibited by law,
or they are declared by law to be void. Inexistent
contracts, on the other hand, are those contracts
which lack absolutely one or some or all of those
requisites, which are essential for validity.
NOTE: The principle of in pari delicto is applicable
in cases of void contracts but not in inexistent
contracts. Consequently, void contracts may
produce effects (Arts. 1411-1412, NCC), but
inexistent contracts do not produce any effect
whatsoever (Jurado, 2009).
What contracts are void or inexistent?
1. Those whose cause, object or purpose is
contrary to law, morals, good customs, public
order or public policy;
2. Those which are absolutely simulated or
fictitious;
3. Those whose cause or object did· not exist at
the time of the transaction;
4. Those whose object is outside, the commerce
of men;
5. Those which contemplate an impossible
service;
6. Those where the intention of the parties
relative to the principal 'object of the contract
cannot be ascertained;
7. Those expressly prohibited or declared void
by law (Art. 1409, NCC).
What is the principle of in pari delicto?
When the defect of a void contract consists in the
illegality of the cause. or object of the contract, and
both of the parties are at fault or in pari delicto, the
law refuses them every remedy and leaves them
where, they are. This rule which is embodied in
Arts. 1411 and 1412 of the NCC is what is
commonly known as the principle of in pari delicto.
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V. SALES
Contract of Sale
By the contract of sale, one of the contracting
parties obligates himself to transfer the ownership
of and to deliver a determinate thing, and the other
to pay therefor a price certain in money or its
equivalent (Art. 1458, NCC).
Essential Elements of a Contract of Sale
1. Consent of the contracting parties by virtue of
which the vendor obligates himself to transfer
the ownership of and to deliver a determinate
thing, and the vendee obligates himself to pay
therefor a price certain in money or its
equivalent.
2. Object certain which is the subject matter of
the contract. The object must be licit and at
the same time determinate or, at least,
capable of being made determinate without
the necessity of a new or further agreement
between the parties.
3. Cause of the obligation which is established.
The cause as far as the vendor is concerned
is the acquisition of the price certain in money
or its equivalent, while the cause as far as the
vendee is concerned is the acquisition of the
thing which is the object of the contract.
Stages of a Contract of Sale
1. Negotiation - starts from the time the
prospective contracting parties indicate
interest in the contract to the time the contract
is perfected;
2. Perfection - takes place upon the
concurrence of the essential elements of the
sale; and
3. Consummation - commences when the
parties perform their respective undertakings
under the contract of sale, culminating in the
extinguishment of the contract.
Distinguish between a contract of sale and a
contract to sell
1. In the first, title passes to the vendee upon
delivery of the thing sold, whereas in the
second, by agreement, ownership is reserved
in the vendor and is not to pass until full
payment of the price.
2. In the first, nonpayment is a negative
resolutory condition, whereas in the second,
full payment is a positive suspensive
condition.
3. In the first, the vendor has lost and cannot
recover owner-- ship until and unless the
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contract is resolved or rescinded, whereas in
the second, title remains in the vendor, and
when he seeks to eject the vendee because
of noncompliance by such vendee with the
suspensive condition stipulated, he is
enforcing the contract and not resolving the
same (Santos v. Santos, CA, 47 Off. Gaz.
6372).
Perfection of Contract of Sale
Since a contract of sale is consensual, it is
perfected at the moment when there is meeting of
minds upon the thing which is the object of the
contract and upon the price (Art. 1475, NCC). In
the case of a sale by auction, the contract is
perfected when the auctioneer announces its
perfection by the fall of the hammer or in any other
customary manner (Art. 1476, NCC).
The buyer is deemed to have accepted the
goods
1. When he communicates to the seller that he
has accepted them;
2. When the goods have been delivered and he
does any act inconsistent with the ownership
of the seller;
3. When, after the lapse of reasonable time, he
retains the goods without intimating to the
seller that he rejected them (Art. 1585, NCC).
Who Bears Risk of Loss/Deterioration
1. Before perfection
• Res perit domino
• The seller retains ownership so the seller
bears the risk of loss
2. At perfection
• Contract is merely inefficacious because
loss of the subject matter does not affect
the validity of the sale
• Seller cannot anymore comply with
obligation so buyer cannot be compelled
3. After perfection but before delivery
• Loss - buyer
• Deterioration - buyer bears loss
4. After delivery
• Delivery extinguishes ownership vis-a-
vis the seller, thus a new one is formed
in favor of the buyer
Unpaid Seller
One is considered as unpaid seller when:
1. The whole of the price has not been paid or
tendered;
2. A bill of exchange or other negotiable
instrument has been received as conditional
payment, and the condition on which it was
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received has been broken by reason of the
dishonor of the instrument, the insolvency of
the buyer, or otherwise (Art. 1525, NCC).
NOTE: The mere delivery of a negotiable
instrument does not ipso facto extinguish the
obligation of the buyer to pay because the
instrument which has been delivered may be
dishonored. In which case, the seller is still an
unpaid seller (US v. Bedoya, 14 Phil. 398).
Remedies of Unpaid Seller
1. Ordinary
a. Action for Price (Art. 1595, NCC)
b. Action for Damages - In case of wrongful
neglect or refusal by the buyer to accept or
pay for the thing sold
2. Special (Art. 1596)
a. Possessory Lien (Art. 1527, NCC)
b. Stoppage In Transitu (Art. 1530, NCC)
c. Special Right to Resell the Goods (Art. 1533,
NCC)
d. Special Right to Rescind (Art. 1597, NCC)
Double Sale
There is double sale when the same object of the
sale is sold to different vendees (Art. 1544, NCC).
Requisites of Double Sale
1. Same subject matter;
2. Same immediate seller;
3. Two or more different buyers; and
4. Both sales are valid.
NOTE: First buyer’s knowledge of a second sale
at the time of his (first) registration will not defeat
his rights.
Rules on Preference
1. Movable – Owner who is first to possess in
good faith;
2. Immovable –
a. First to register in good faith
b. No inscription – first to possess in good
faith
c. No inscription & no possession in good
faith – person who presents oldest title in
good faith (Art. 1544, NCC).
BREACH OF CONTRACT
1. Recto Law
The Recto Law (Art.1484, NCC) refers to sale of
movables payable in installments and limiting the
right of seller, in case of default by the buyer, to
one of three remedies:
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1. Exact fulfillment;
2. Cancel the sale if two or more installments
have not been paid;
3. Foreclose the chattel mortgage on the
things sold, also in case of default of two or
more installments, with no further action
against the purchaser.
2. Maceda Law
The Maceda Law (RA 6552) is applicable to sales
of immovable property on installments. The most
important features are:
1. After having paid installments for at least
two years, the buyer is entitled to a
mandatory grace period of one month for
every year of installment payments made, to
pay the unpaid installments without interest.
2. If the contract is cancelled, the seller shall
refund to the buyer the cash surrender value
equivalent to fifty percent (50%) of the total
payments made, and after five years of
installments, an additional five percent (5%)
every year but not to exceed ninety percent
(90%) of the total payments made.
3. In case the installments paid were less than
2 years, the seller shall give the buyer a
grace period of not less than 60 days. If the
buyer fails to pay the installments due at the
expiration of the grace period, the seller may
cancel the contract after 30 days from
receipt by the buyer of the notice of
cancellation or demand for rescission by
notarial act.
Conventional Redemption
Conventional redemption is that which takes place
when the vendor reserves the right to repurchase
the thing sold with the obligation to reimburse to
the vendee the price of the sale, the expenses of
the contract, other legitimate payments made by
reason of the sale, as well as necessary and
useful expenses made on the thing sold (Arts.
1601 & 1616, NCC).
BARs 1980, 1991, & 1993
Q: “S" Executed a Deed of Sale of a parcel
of land in favor of "T”, reserving for himself
the right to repurchase the same within five
years from the date of the contract. The
contract provided that during the
repurchase period “S" will retain
possession of the land as lessee and pay
the land taxes thereon. The consideration
for the sale was P100,000.00 but the land
was worth double the price. “S" failed to
repurchase the land within the agreed
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period and 'T" applied to the Court for the
consolidation of his title. “S" opposed the
application and claimed that he had the right
to repurchase the land. Whose stand should
be upheld?
A: The stand of “S" should be upheld.
In reality, the contract in the instant case is an
equitable mortgage. The land is merely the
collateral or security for the payment of a loan
of P100,000.00. This is obvious from the deed
of sale itself. In the first place, it says that “S”
will retain possession of the land as lessee; in
the second place, it says that “S" the vendor a
retro, shall pay the taxes thereon; and in the
third place, the purchase price is unusually
inadequate. These are badges of an equitable
mortgage. According to the NCC, the presence
of any of these will be sufficient to raise the
presumption that the contract is an equitable
mortgage. Therefore, “S" can still insist on his
right to pay to "T" his indebtedness of
P100,000.00 plus interest (Art. 1602, NCC).
What are the obligations of the vendor a retro
when he exercises his right of repurchase?
1. To return to the vendee the price of the sale;
2. To pay the expenses of the contract and
other legitimate payments made by reason of
the sale; and
3. To pay all necessary and useful expenses
made on the thing sold (Art. 1616, NCC).
Legal Redemption
It is also referred to as “retracto legal”. It is the right
to be subrogated upon the same terms and
conditions stipulated in the contract, in the place
of one who acquires the thing by purchase or by
dation in payment or by other transaction whereby
ownership is transmitted by onerous title (Art.
1619, NCC).
Instances of Legal Redemption
1. Sale of a co-owner of his share to a stranger
(Art. 1620, NCC).
2. When a credit or other incorporeal right in
litigation is sold (Art. 1634, NCC).
3. Sale of an heir of his hereditary rights to a
stranger (Art. 1088, NCC).
4. Sale of adjacent rural lands not exceeding 1
hectare (Art. 1621, NCC).
5. Sale of adjacent small urban lands bought
merely for speculation (Art. 1622, NCC).
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BRAVO BASTE!
BAR 2001
Q: Angie and Grace were co-owners of a
parcel of land. Last January 31, 2001, when
she paid her real estate tax, Angie
discovered that Gracie had sold her share to
Emily on November 10, 2000. The following
day, Angie offered to redeem her share from
Emily, but the latter replied that Angie's right
to redeem has already prescribed. Is Emily
correct or not? Why?
A: Emily, the buyer, is not correct. Angie can still
enforce her right of legal redemption as a co-
owner. Art. 1623 of the NCC gives a co-owner
30 days from written notice of the sale by the
vendor to exercise his right of legal redemption.
In the present problem, the 30-day period for the
exercise by Angie of her right of redemption had
not even begun to run because no notice in
writing of the sale appears to have been given
to her by Gracie.
VI. LEASE
Lease
Lease may be defined as a consensual, bilateral,
onerous, and commutative contract by virtue of
which one person binds himself to grant
temporarily the· use of a thing or to render some
service to another who undertakes to pay some
rent, compensation or price (4 Sanchez Roman
736).
A lease is a contract where one of the parties
binds himself to give to another the enjoyment or
use of a thing for a certain price and for a period
which may be definite or indefinite but not longer
than 99 years (Art. 1643, NCC).
Rent
Rent is the compensation either in money,
provisions, chattels, or labor, received by the
lessor from the lessee (Tolentino and Manio v.
Chiam, G.R. No. 26085, August 12, 1927).
Effects if the lease of real property is not
registered
1. The lease is not binding on innocent third
persons such as a purchaser (Salonga, et al.
v. Acuña, C.A., 54 O.G. 2943).
2. Naturally, such an innocent third person is
allowed to terminate the lease in case he
buys the property from the owner-lessor (Art.
1676, NCC).
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3. When a third person already knows of the
existence and duration of the lease, he is
bound by such lease even if it has not been
recorded. The reason is simple: actual
knowledge is, for this purpose, equivalent to
registration (Quimson v. Suarez, April 5,
1924; and Gustilo v. Maravilla, December 12,
1925).
4. If the stranger knows of the existence of the
lease, but has been led to believe that the
lease would expire very soon, or before the
new lease in favor of him begins (when in fact
this was not true), the stranger can still be
considered innocent (Quimson v. Suarez,
April 5, 1924).
Liability of sublessee towards lessor
Although the sublessee is not a party to the
contract of lease, the sublessee is still directly
liable to the lessor for acts appertaining to the use
and preservation of the property. This is of course
in addition to the sublessee’s obligation to the
sublessor. Note also that the liability for rent is
given in Art. 1652 (Paras, 2008).
BAR 2000
Q: A leased his house to B with a condition
that the leased premises shall be used only
for residential purposes. B subleased the
house to C who used it as a warehouse for
fabrics. Upon learning this, A demanded that
C stop using the house as a warehouse, but
C ignored the demand. A then filed an action
for ejectment against C, who raised the
defense that there is no privity of contract
between him and A, and that he has not been
remiss in the payment of rent. Will the action
prosper?
A: Yes, the action will prosper. Under Art. 1651
of the NCC, the sublessee is bound to the lessor
for all acts which refer to the use and
preservation of the thing leased in the manner
stipulated between the lessor and the lessee.
BARs 1970 & 1990
Q: May the lessee of real properly assign the
lease to a third person without the lessor's
consent? In the same case, instead of
assigning his right to the leasehold, may he
sublease the premises without the consent
of the lessor? Explain your answers.
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BRAVO BASTE!
A: The lessee of real property may not assign
the lease to a third person without the lessor’s
consent, unless there is a stipulation in the
contract of lease to the contrary. This is clear
from Art. 1649 of the NCC which declares that
the lessee cannot assign the lease without the
consent of the lessor, unless there is a
stipulation to the contrary.
On the other hand, the lessee may sublease the
premises to a third person without the consent
of the lessor, unless there is an express
prohibition in the contract of lease. This is clear
from the provision of Art. 1650 of the NCC. But,
of course, such act of subleasing the property
shall be without prejudice to his responsibility for
the performance of the contract toward the
lessor.
Will the death of the lessee extinguish the
lease agreement?
No. The death of the lessee will not extinguish the
lease agreement, since lease is not personal in
character and the right is transmissible to the
heirs (Heirs of Dimaculangan v. LAC, G.R. No.
68021, February 21, 1989).
Effect of destruction of thing leased by
fortuitous event
1. If total destruction:
a. The lease is extinguished if the thing is
totally destroyed
b. The lessee cannot compel the lessor to
reconstruct the destroyed property
c. The lessee of the lot and building which has
been totally destroyed by fortuitous event
cannot be considered as lessee of the land
after the building had been totally destroyed
by the fortuitous event (Roces v. Rickards,
[C.A.] 45 O.G. [Supp.] 97).
2. If partial destruction:
a. Lease is not extinguished.
b. The lessee is given the option to choose
between a proportionate reduction of the
rent and rescission of the lease.
c. Once the choice of the lessee has been
communicated to the lessor, the former
cannot change it (Art.1201, NCC).
If reduction of rent is chosen, the same shall be
retroactive to the date the partial destruction
occurred. In case of rescission, the general rule is
that it will not be granted for slight or trivial causes.
The partial destruction, under the circumstances,
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should be important or substantial as to defeat the
purpose of the lessee in entering into the contract
of lease.
NOTE: The choice is on the lessee and not on the
lessor.
Accion Directa
A direct action which the lessor may bring against
a sublessee who misuses the subleased property.
Alternative remedies of aggrieved party
1. Rescission of the contract with damages -
failure of lessor to place the lessee in
possession of the premises leased is a case
of lessor’s non-compliance with his obligation
2. Action for damages only allowing the lease to
remain subsisting - specific performance
BAR 1999
Q: What is meant by tacit renewal of a
contract of lease
A: By tacit renewal of a contract of lease (tacita
reconduccion), we refer to the new contract of
lease which is impliedly created or established
if at the end of the old contract the lessee should
continue enjoying the thing leased for 15 days
with the acquiescence of the lessor, provided
that a notice to the contrary had not been
previously given by either party. The period of
the implied new lease in such case shall be the
legal period established in either Art. 1682 or
Art. 1687 of the NCC, but the other terms of the
original contract shall be revived (Art. 1670,
NCC).
Requisites for an implied renewal of lease
1. That the contract of lease should have ended;
2. That the lessee should have continued
enjoying the thing leased for 15 days;
3. That such continued enjoyment should be
with the acquiescence of the lessor;
4. That a notice to the contrary by either party
should not have been previously given; and
5. That there should have been no express
contract entered into by lessor and lessee
after the old contract had ended.
NOTE: The fifth requisite is, of course, necessary,
because otherwise, instead of an implied renewal
of a contract of lease as contemplated by the law,
there would be an express renewal or modification
of the original contract (Paterno v. CA, G.R. No.
115763, March 29,1997; Carlos v. CA, 268 SCRA,
February 10,1997).
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BRAVO BASTE!
Judicial grounds for ejectment of lessees
1. Expiration of period of the lease
2. Non-payment of the rentals agreed upon
3. Violation of any condition
4. Improper use or enjoyment of the property
leased
Effect of sale of leased property on the lease
contract
General Rule: A new owner can terminate the
lease. A contract of lease created only personal
rights and obligations which are binding and
effective only between the contracting parties.
Since it does not create a real right, it cannot bind
an innocent purchaser for value without notice of
the existence of the lease.
Exception: To bind third persons, the lease must
be duly registered with the appropriate Registry of
Property.
Rights of the lessee who introduced
improvements
The lessor shall pay the lessee one-half of the
value of the improvements computed at the time of
the termination of the lease if the following
conditions are fulfilled:
1. That the lessee should have made the useful
improvements in good faith;
2. The improvements are suitable to the
purpose or use for which the lease is
intended;
3. That the form and substance of the thing
leased are not altered or modified. 

VII. PARTNERSHIP
Partnership
By the contract of partnership, two (2) or more
persons bind themselves to contribute money,
property, or industry to a common fund, with the
intention of dividing the profits among themselves.
Two (2) or more persons may also form a
partnership for the exercise of a profession (Art.
1767, NCC).
Essential Requisites
1. There must be a valid contract.
2. There must be a contribution of money,
property, or industry to a common fund.
3. The partnership must be organized for gain or
profit.
4. The partnership should have a lawful object
or purpose, and must be established for the
common benefit or interest of the partners.
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In this jurisdiction, is a joint venture (i.e., a case of a general partner, but not as regards a
group of corporations contributing resources limited partner (Art. 1866, NCC; De Leon, 2014).
for a specific project and sharing the profits
therefrom) a partnership? When may a partner demand for a formal
It is a partnership because joint ventures can be accounting of partnership affairs?
considered a species of partnership (Aurbach v. Any partner may demand for a formal accounting
Sanitary Wares Manufacturing Corp, G.R. No. of partnership affairs:
75875, December 15, 1989). 1. If he is wrongfully excluded from the
partnership business or possession of its
What is a Charging Order? property by his co-partners;
A charging order is issued by the court subjecting 2. If the right exists under the terms of any
the interest of the debtor-partner in the partnership agreement;
to secure the judgment of a separate creditor. By 3. If a partner has derived profits from any
virtue of such, any amount or portion thereof which transaction connected with the formation,
the partnership would otherwise pay to the debtor- conduct, or liquidation of the partnership or
partner should instead be given to the judgment from any use by him of its property; or
creditor. This remedy is, however, without 4. Whenever other circumstances r ender it just
prejudice to the preferred rights of partnership and reasonable. (Arts. 1809, 1807, NCC.)
creditors under Article 1827. It means that the
claims of partnership creditor must be satisfied first Three (3) final stages of a partnership
before the separate creditors of the partners can Dissolution Winding Up Termination
be paid out of the interest charged (Art. 1839(8) & Any change in Process of All
1814, NCC; De Leon, 2014). the relation of settling the partnership
the partners partnership affairs are
Can a Partner Engage in Separate Business? caused by any affairs (i.e. wound up
Capitalist partner may engage in a separate partner distribution of and finally
business, provided, it is not the same kind of ceasing to be assets) settled. It is
business the partnership is engaged in (Art. 1808, associated in the end of
NCC). carrying on the the
General Rule: Industrial partner may not engage in business partnership
any other business because he has to devote his Partners cease It is the final It takes place
full time to the business of the partnership to carry on the step after after both
Exception: the partnership expressly permits him business dissolution dissolution
to do so (Art. 1789, NCC). together and winding
up have
What is the liability of a person who, not being It represents occurred
a member of the partnership includes his name the demise of
in the firm name? a partnership
He shall be subject to the liability of a partner (Art.
1815, NCC). Where a partnership has no fixed term, when
may it be dissolved?
Partner by Estoppel A partnership with no fixed term, or called
A partner by estoppel refers to a person who partnership at will and can be dissolved by the will
represents himself, or consents to another or of any partner in good faith, otherwise, he will be
others representing him to any one, as a partner liable for damages. Doctrine of delectus personae
either in an existing partnership or in one that is allows them to have the power, but not necessarily
fictitious or apparent (Art. 1825, NCC). the right, to dissolve the partnership (Art. 1831,
NCC).
Principle of Delectus Personae
In partnership relation, being fiduciary in nature, Distinguish a general partnership from a
the element of Delectus personae exists as it does limited partnership
trust and confidence between the partners. This 1. As to composition: A general partnership is
principle literally means 'choice of the person'. No composed only of general partners, whereas
one become a member of the partnership without a limited partnership is composed of at least
the consent of the other partners. This element of one general partner and one limited partner.
delectus personae, however, is true only in the 2. As to constitution: A general partnership, as a
general rule, may be constituted in any form,
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whereas a limited partnership must be
contained in a certificate of limited
partnership, duly signed and sworn to by all
of the partners, and recorded in the Office of
the Securities and Exchange Commission.
3. As to firm name: A general partnership must
operate under a firm name, which may or may
not include the name of one or more of the
partners, whereas a limited partnership must
also operate under a firm name, followed by
the word "Limited."
4. As to dissolution and winding up: There are
also differences, formal and procedural,
between the dissolution and winding up of a
general partnership and that of a limited
partnership.
Can a limited partner be held liable for
partnership obligations?
A limited partner as such cannot be held liable for
partnership obligations (Art. 1843, NCC).
However, if his surname appears in the
partnership or firm name or if he participates in the
management or control of the business, he can be
held liable (Arts. 1846 &1848, NCC).
VIII. AGENCY
Contract of Agency
By the contract of agency, a person binds himself
to render some service or to do something in
representation or on behalf of another, with the
consent or authority of the latter (Art. 1868, NCC).
Essential Elements of an Agency
1. Consent (express or implied) of the parties to
establish the relationship.
2. The object is the execution of a juridical act in
relation to third persons.
3. The agent acts as a representative and not for
himself.
4. The agent acts within the scope of his
authority (Sps. Viloria vs Continental Airlines,
G.R. No. 188288, January 16, 2012).
BAR 2003
Q: Kris asked her close friend, Korina, to buy
some groceries for her in the supermarket.
Was there a nominate contract entered into
between Kris and Korina? In the affirmative,
what was it? Explain.
A: Yes, there was a nominate contract. On the
assumption that Korina accepted the request of
her close friend Kris to buy some groceries for
her in the supermarket, what they entered into
was the nominate contract of agency. Article
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BRAVO BASTE!
1868 of the NCC provides that by the contract
of agency a person binds himself to render
some services or to do something in
representation or on behalf of another, with the
consent or authority of the latter.
When must authority of an agent be in writing?
When a sale of a piece of land or any interest
therein is through an agent, the authority of the
latter shall be in writing; otherwise, the sale shall
be void (Art. 1874, NCC).
When may an act of an agent be binding upon
the principal even if he acted beyond the scope
of his authority?
Under Art. 1898 and 1910, when latter ratifies the
unauthorized acts, whether expressly or tacitly.
Only the principal, and not the agent, can ratify
unauthorized acts.
NOTE: Conditions of ratification are:
1. Principal must have the capacity and power
to ratify and must ratify in entirety
2. He must have full knowledge of the acts and
all material facts and circumstances
What are the most fundamental obligations of
an agent?
1. To carry out the agency;
2. To act within the scope of his authority; and
3. To act on behalf of his principal.
Modes of Extinguishment
1. Revocation
2. Withdrawal by the agent
3. Death, civil interdiction, insanity or insolvency
of principal or of the agent
4. Dissolution of the firm or corporation which
entrusted or accepted the agency
5. Accomplishment of the object or the purpose
of the agency
6. Expiration of the period (Art. 1919, NCC)
Agency coupled with an interest
An agency coupled with an interest refers to an
agency wherein the agent has acquired some
interest of his own in the execution of the authority
granted to him, in addition to his mere interest in
the contract of employment with the resulting gains
(Mechem on Agency, Sec. 5969, p. 406).
BAR 2001
Q: Arnold sold a large parcel of land in Cebu
to Mel for Pl100million payable in annual
installments over a period of 10 years, but
title will remain with Arnold until the
purchase price is fully paid. To enable Mel to
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pay the price, Arnold gave him a power-of-
attorney authorizing him to subdivide the
land, sell the individual lots, and deliver the
proceeds to Arnold, to be applied to the
purchase price. Five (5) years later, Arnold
revoked the power of attorney and took over
the sale of the subdivision lots himself. Is
the revocation valid or not? Why?
A: The revocation is not valid. The power of
attorney given to the buyer is irrevocable
because it is coupled with an interest: the
agency is the means of fulfilling the obligation of
the buyer to pay the price of the land (Art. 1927,
NCC). In other words, a bilateral contract
(contract to buy and sell the land) is dependent
on the agency.
What is the duty of a person dealing with an
agent?
A person dealing with an agent must investigate;
Otherwise, he acts at his own peril (Manila
Memorial Park Cemetery, Inc. vs. Linsangan, GR
No. 151391, November 22, 2005).
IX. CREDIT TRANSACTIONS
LOAN
BAR 1977
Q. Define and distinguish from each other
commodatum and simple loan.
A. Commodatum is defined as a contract by
virtue of which one of the contracting parties
delivers to the other a non-consumable (non-
fungible) thing so that the latter may use the
same for a certain time and return it. Simple
loan or mutuum, on the other hand, is defined
as a contract by virtue of which one of the
contracting parties delivers to the other money
or any other consumable (fungible) thing subject
to the condition that the same amount of the
same kind and quality be paid or returned. (Art.
1933, NCC.)
The two (2) may be distinguished from each
other in the following:
1. As to object: In the first, the object is, as a
general rule, a non-consumable (non-
fungible) thing, whereas in the second, the
object is money or any consumable
(fungible) thing.
2. As to cause: The first is essentially
gratuitous, whereas the second may or
may not be gratuitous.
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BRAVO BASTE!
3. As to purpose: The first is a loan for use,
whereas the second is a loan for
consumption.
4. As to transmission of ownership: In the
first, the bailor retains the ownership of the
thing loaned, whereas in the second,
ownership passes to the debtor.
5. As to what must be returned: In the first, the
bailee must return the specific thing
loaned, whereas in the second, the debtor
must pay or return an equal amount of the
same kind and quality.
Kinds of Commodatum
1. Ordinary commodatum – the use of the thing
by the bailee is for a certain period of time
(Art. 1933, NCC)
2. Precarium – one where the bailor may
demand the thing loaned at will; if any one of
the following is present:
• The duration and purpose of the
contract is not stipulated
• The use of the thing is merely tolerated
by the owner (Art. 1947, NCC)
Liability for Deterioration
General Rule: The bailee is liable for the
deterioration of the thing loaned.
Exception: When the deterioration of the thing is
due only to the use thereof and without his fault
(Art. 1943, NCC).
Liability for Loss
General Rule: The Bailee is not liable for loss of
the thing due to fortuitous event (Art. 1174, NCC).
Exceptions: Bailee is liable for loss of the thing,
even if it is through a fortuitous event:
1. If he devotes the thing to any purpose
different from that for which it has been
loaned; 

2. If he keeps it longer than the period
stipulated, or after the accomplishment of
the use for which the commodatum has been
constituted;
3. If the thing loaned has been delivered with
appraisal of its value, unless there is a
stipulation exempting the bailee from
responsibility in case of a fortuitous event; 

4. If he lends or leases the thing to a third
person, who is not a member of his
household; 

5. If, being able to save either the thing
borrowed or his own thing, he chose to save
the latter (Art. 1942, NCC).
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Right of Retention
General Rule: Bailee has no right of retention of
the thing loaned on the ground that the Bailor owes
him something, even though it may be by reason
of expenses (Art. 1944, NCC).
Exception: Bailee has the right of retention for
damages arising from hidden flaws (Arts. 1944 &
1951, NCC).
Extinguishment
1. Death of either the bailor or the bailee (Art.
1939, NCC)
2. Expiration of term or accomplishment of
purpose (Art. 1946, NCC)
3. Bailor demands the return in case the bailee
committed acts of ingratitude 
 permission;
4. Upon demand in case of precarium 
 3. If he delays its return;
Interest
The compensation allowed by law or fixed by the
parties for the loan or forbearance of money,
goods or credits, or the amount imposed by law or
by courts as penalty or indemnity for damages
● Simple interest – Paid for the principal at a
certain rate fixed or stipulated by the parties.
● Compound Interest – that which is imposed
upon interest due and unpaid.
● Legal Interest – that which the law directs to
be charged in the absence of any agreement
as to the rate between the parties.
● Lawful Interest – that which the laws allow or
do not prohibit.
● Unlawful or Usurious Interest – paid or
stipulated to be paid beyond the maximum
fixed by law.
Requisites for interest to be chargeable
1. Must be expressly stipulated (Art. 1956, NCC)
2. Agreement must be in writing (Art.1956,
NCC)
3. Must be lawful.
Usury Law
The Usury Law (Act No.2566) – an act fixing rates
of interests upon loans and declaring the effect of
receiving or taking usurious rates and for other
purposes (Arevalo v. Dimayuga, G.R. No. 26218,
January 29, 1927).
NOTE: CB Circular No. 905 abolished interest rate
ceilings. With the promulgation of such circular,
usury has become “legally inexistent” as the
parties can now legally agree on any interest that
may be charged on the loan.
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BRAVO BASTE!
DEPOSIT
A deposit is constituted from the moment a person
receives a thing belonging to another, with the
obligation of safely keeping it and of returning the
same. If the safekeeping of the thing delivered is
not the principal purpose of the contract, there is
no deposit but some other contract (Art. 1962,
NCC).
When is the depositary liable for the loss of the
thing deposited through a fortuitous event in
contracts of depositum?
1. If it is so stipulated;
2. If he uses the thing without the depositor’s
4. If he allows others to use the same (Art. 1979,
NCC).
GUARANTY AND SURETYSHIP
Difference between Guaranty and Suretyship
By guaranty a person, called the guarantor, binds
himself to the creditor to fulfill the obligation of the
principal debtor in case the latter should fail to do
so. However, if a person binds himself solidarily
with the principal debtor the contract is called a
suretyship (Art. 2047, NCC).
When may the guarantor, even before having
paid, proceed against the principal debtor?
1. When he is sued for the payment;
2. In case of insolvency of the principal debtor;
3. When the debtor has bound himself to relieve
him from the guaranty within a specified
period and this period has expired;
4. When the debt has become demandable, by
reason of the expiration of the period for
payment;
5. After the lapse of 10 years, when the principal
obligation has no fixed period for its maturity,
unless it be of such a nature that it cannot be
extinguished except within a period longer
than ten years;
6. If there are reasonable grounds to fear that
the principal debtor intends to abscond; and
7. If the principal debtor is in imminent danger of
becoming insolvent.
In all these cases, the action of the guarantor is to
obtain release from the guaranty, or to demand
security that shall protect him from any proceeding
by the creditor and from the danger of insolvency
of the debtor (Art. 2071, NCC).
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PLEDGE, MORTGAGE & ANTICHRESIS
Pledge
It is an accessory, real and unilateral contract by
virtue of which, the debtor or a third person
delivers to the creditor or to a third person movable
property as security for the performance of the
principal obligation, upon the fulfillment of which
the thing pledged, with all its accessions and
accessories, shall be returned to the debtor or to
the third person.
Essential Requisites of a Contract of Pledge
1. It must be constituted to secure the
performance of a principal obligation.
2. The pledgor must be the absolute owner of
the thing pledge.
3. The pledgor should have the free disposal of
the thing pledged, and in the absence thereof,
he should be legally authorized for the
purpose.
4. When the principal obligation becomes due,
the thing pledged may be alienated for the
payment of such obligation.
5. The thing pledged must be placed in the
possession of the creditor or of a third person
by common agreement (See Arts. 2085, 2087
& 2093, NCC).
Real Estate Mortgage
A real estate mortgage may be defined as an
accessory contract whereby the debtor
guarantees the performance of the principal
obligation by subjecting real property or real rights
as security in case of non-performance of such
obligation within the period agreed upon.
Essential Requisites
1. It must be constituted to secure the
performance of the principal obligation.
2. The mortgagor must be the absolute owner of
the property mortgaged.
3. The mortgagor should have the free disposal
of the property mortgaged, and in the
absence thereof, he should be legally
authorized for the purpose.
4. When the principal obligation becomes due,
the property mortgaged may be alienated for
the payment of such obligation.
5. The subject matter of the contract must be
immovable property or alienable real rights
upon immovables (Arts. 2085, 2087 & 2124,
NCC.)
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BRAVO BASTE!
Elements of Pactum Commissorium
1. That there should be a pledge or mortgage
wherein a property is pledged or mortgaged by
way of security for the payment of the principal
obligation; and
2. That there should be a stipulation for an
automatic appropriation by the creditor of the
thing pledged or mortgaged in the event of
nonpayment of the principal obligation within
the stipulated period.
Antichresis
Antichresis is a contract by virtue of which 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, if owing,
and thereafter to the principal of his credit (Art.
2132, NCC.)
Chattel Mortgage (CM)
By a chattel mortgage, personal property is
recorded in the Chattel Mortgage Register as a
security for the performance of an obligation. If the
movable, instead of being recorded, is delivered to
the creditor or a third person, the contract is a
pledge and not a CM (Art. 2140, NCC).
X. SUCCESSION
Succession
A mode of acquisition by virtue of which the
property, rights, and obligations to the extent of the
value of the inheritance, of a person are
transmitted through his death to another or others
either by his will or by operation of law. (Art. 774,
NCC)
Elements of Succession
1. Testator or Decedent
2. Inheritance
3. Successors or Heirs
4. Acceptance
Can a person dispose of his corpse through an
act inter vivos?
A person cannot dispose of his corpse through an
act inter vivos, i.e., an act to take effect during his
lifetime. Before his death there is no corpse to
dispose. But he is allowed to do so through an act
mortis causa, i.e., an act to take effect upon his
death.
Kinds of Succession (Art. 778, NCC)
1. Testamentary Succession
2. Legal or Intestate Succession
3. Mixed
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TESTAMENTARY SUCCESSION
Refers to that which results from the designation
of an heir, made in a will executed in the form
prescribed by law (Art. 779, NCC).
Will
A will is an act whereby a person is permitted, with
the formalities prescribed by law, to control to a
certain degree the disposition of this estate, to take
effect after his death (Art. 783, NCC).The making
of a will is a strictly personal act; it cannot be left in
whole or in part to the discretion of a third person,
or accomplished through the instrumentality of an
agent or attorney (Art. 784, NCC).
Testamentary Capacity
The ability as well as the power to make a will.
Requisites of Testamentary Capacity
1. Must not be expressly prohibited by law;
2. At least 18 years of age; and
3. Of sound mind at the time of the execution of
the will.
Forms of Wills
1. Notarial Will
2. Holographic Will
Formalities in the execution of an ordinary or
notarial will
1. The will must be in writing;
2. The will must be written in a language or
dialect known to the testator;
3. The will must be subscribed at the end thereof
by the testator himself or by the testator's
name written by some other person in his
presence and by his express direction;
4. The will must be attested and subscribed by
three (3) or more credible witnesses in the
presence of the testator and of one another;
5. The testator or the person requested by him
to write his name and the instrumental
witnesses of the will shall also sign each and
every page thereof, except the last, on the left
margin;
6. All the pages of the will must be numbered
correlatively in letters placed on the upper
part of each page;
7. The will must contain an attestation clause;
and
8. The will must be acknowledged before a
notary public by the testator and the
witnesses (Arts. 804-806, NCC).
NOTE: In addition to the above-requirements,
there are also special safeguards or solemnities
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which are prescribed by the Code in case the
testator is deaf, or a deaf-mute, or in case he is
blind (Arts. 807 & 808, NCC).
Doctrine of Liberal Interpretation
Article 809 allows substantial compliance for
defects in the form of the attestation clause. The
rule must be limited to disregarding those defects
that can be supplied by an examination of the will
itself. But the total number of pages, and whether
all persons required to sign did so in the presence
of each other must substantially appear in the
attestation clause, being the only check against
perjury in the probate proceedings (Lopez vs.
Lopez, G.R. No. 189984, November 12, 2012).
Joint Wills
A joint will executed by Filipinos in a foreign
country shall not be valid in the Philippines, even
though authorized by the laws of the country
where they may have been executed (Art. 819,
NCC).
Formalities in the execution of a holographic
will (Arts. 804-810, NCC)
1. The will must be entirely written by the hand
of the testator himself;
2. The will must be dated by the hand of the
testator himself;
3. The will must be signed by the hand of the
testator himself; and
4. The will must be executed in a language or
dialect known to the testator.
Distinguish between attestation and
subscription
Attestation and subscription may be distinguished
from each other in the following ways:
1. Attestation is an act of the senses, whereas
subscription
2. is an act of the hand.
3. The first is mental, whereas the second is
mechanical.
4. The purpose of the first is to render available
proof during the probate of the will that such
will had been executed in accordance with the
formalities prescribed by law, whereas the
purpose of the second is identification.
Codicil
A codicil is a supplement or addition to a will, made
after the execution of a will and annexed to be
taken as a part thereof, by which any disposition
made in the original will is explained, added to, or
altered (Art. 825, NCC). The formalities which are
required in the execution of a codicil are the same
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as those required in the execution of a will (Art. 826,
NCC).
Different modes of revocation
1. By implication of law; or
2. By some will, codicil, or other writing executed
as provided in case of wills; or
3. By burning, tearing, cancelling, or obliterating
the will with the intention of revoking it, by the
testator himself, or by some other person in
his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by
some other person, without the express
direction of the testator, the will may still be
established, and the estate distributed in
accordance therewith, if its contents, and due
execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court
(Art. 830, NCC.)
When is a will expressly or impliedly revoked?
A will is expressly revoked when in a subsequent
will, or codicil, or other writing executed as
provided in case of wills, there is a revocatory
clause expressly revoking the will or a part thereof.
On the other hand, it is impliedly revoked when the
provisions of the subsequent will or codicil are
partially or absolutely inconsistent with those of the
previous will.
Probate of wills
The probate of wills is a special proceeding to
establish the validity of a will. More specifically, it
is a special proceedings for the purpose of proving
before some competent court or tribunal vested
with authority for that purpose that the instrument
which is offered for probate is the last will and
testament of the testator; that it has been executed
in accordance with the formalities prescribed by
law; and that the testator had the necessary
testamentary capacity at the time of the execution
of the will.
What is the effect of the allowance of a will?
Subject to the right of appeal, the allowance of the
will, either during the lifetime of the testator or after
his death, shall be conclusive as to its due
execution (Art. 838, par. 4, NCC).
Grounds for the disallowance of a will
1. If the formalities required by law have not
been complied with;
2. if the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
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3. if it was executed through force or under
duress, or the influence of fear, or threats;
4. if it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
5. if the signature of the testator was procured
by fraud;
6. if the testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time of affixing his signature
thereto (Art. 839, NCC.)
Institution of heirs
An act by virtue of which a testator designates in
his will the person or persons who are to succeed
him in his property and transmissible rights and
obligations (Art. 840, NCC).
Preterition
The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the
institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious (Art.
854, NCC).
Requisites of Preterition
1. There is a total omission in the inheritance;
2. The person omitted is a compulsory heir in
the direct line;
3. The omitted compulsory heir must survive the
testator, or in case the compulsory heir
predeceased the testator, there is a right of
representation; and
4. Nothing must have been received by the heir
by gratuitous title.
BAR 1988
Q: What is the effect of preterition?
A: The effect is to annul entirely the institution of
heirs; but legacies and devises shall be valid
insofar as they are not inofficious (Art. 854,
NCC).
Substitution of heirs
Substitution is the appointment of another heir so
that he may enter into the inheritance in default of
the heir originally instituted (Art. 857, NCC).
Different kinds of substitution
1. Simple Substitution (Art. 859, NCC)
2. Brief or Compendious
3. Reciprocal (Art. 861, NCC)
4. Fideicommissary (Art. 866, NCC)
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What is the distinction between modal
substitution and conditional testamentary
disposition?
1. A mode imposes an obligation upon the heir
or legatee but it does not affect the efficacy of
his rights to the succession; while in a
conditional testamentary disposition, the
condition must happen or be fulfilled in order
for the heir to be entitled to succeed the
testator;
2. The condition suspends but does not
obligate; while the mode obligates but does
not suspend. To some extent, it is similar to a
resolutory condition (Johnny Rabadilla vs.
CA, G.R. No. 113725, June 29, 2000.)
What are the requisites of fideicommissary
substitution?
In the case of Perez v. Garchitorena, 54 Phil. 431,
the Supreme Court gives the following as the
essential requisites of a fideicommissary
substitution:
1. A first heir called primarily to the enjoyment of
the estate.
2. A second heir.
3. An obligation clearly imposed upon the first
heir to preserve and transmit to the second
heir the whole or a part of the estate.
BAR 1988
Q: What are the different limitations imposed
by law upon fideicommissary substitution?
A: There are four (4) limitations. They are:
1. The substitution must not go beyond one
degree from the heir originally instituted
(Art. 863, NCC).
2. The fiduciary and the fideicommissary
must be living at the time of the death of
the testator (Ibid.)
3. The substitution must not burden the
legitime of compulsory heirs (Art. 864,
NCC)
4. The substitution must be made expressly
(Art. 865, par. 1, NCC)
Disposition Captatoria
The condition that the heir shall make some
provision in his will in favor of the testator or of any
other person is what is known as a condition
captatoria. Consequently, if the testator makes a
testamentary disposition in his will subject to such
a condition, it is known as a disposicion captatoria.
Under our law, not only the condition but the entire
testamentary disposition shall be void (Art. 875,
NCC).
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The reason for this is that succession is an act of
liberality and not a contractual agreement. Besides,
to permit it would impair the heir’s freedom of
disposition with respect to his own property.
Furthermore, it would be equivalent to allowing the
testator to dispose of the property of another after
the latter's death (6 Manresa 241).
What is the effect if an heir, legatee, or devisee
is instituted subject to a suspensive or
resolutory term or period?
1. If the term or period is suspensive, the rights
of the instituted heir, legatee, or devisee are
suspended until the arrival of the date or time
designated by the testator. Pending the
arrival of such date or time, the inheritance,
legacy or devise shall be given to the legal
heirs of the testator (Art. 885, NCC). Such
legal heirs, however, must file a bond or
security (Ibid.); if they cannot, the property
shall be placed under administration (Art.
880, NCC). Upon arrival of the date or time
designated by the testator, the instituted heir,
legatee, or devisee can demand immediately
for the conveyance of the property to him.
2. If the term or period is resolutory, the rights of
the instituted heir, legatee, or devisee are
immediately demandable, although they are
extinguished upon the arrival of the date or
time designated by the testator. The property
shall then pass to the legal heirs of such
testator (Art. 885, NCC).
Legitime
Legitime is that part of the testator's property which
he cannot dispose of because the law has
reserved it for certain heirs who are, therefore,
called compulsory heirs (Art. 886, NCC).
Completion of Legitime
Any compulsory heir to whom the testator has left
by any title less than the legitime belonging to him
may demand that the same be fully satisfied (Art.
906, NCC).
Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they
may be inofficious or excessive (Art. 907, NCC).
Compulsory heirs
1. Primary compulsory heirs
• Legitimate descendants
2. Secondary compulsory heirs
• Legitimate ascendants
• Illegitimate parents – only if illegitimate
child has no legitimate descendants
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3. Concurrent heirs
• Surviving spouse
• Acknowledged natural child
• Illegitimate descendants
Reserva Troncal
It is a system of reserva by virtue of which an
ascendant who inherits from his descendant any
property which the latter may have acquired by
gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such
property as he may have acquired by operation of
law for the benefit of relatives who are within the
third degree and who belong to the line from which
said property came (Art. 891, NCC).
BAR 1973
Q: What are the essential requisites of
reserva troncal?
A: In order that there will be a reservation of
property in accordance with the provision of Art.
891, the following requisites must concur:
1. The property should have been inherited
by operation of law by an ascendant from
his descendant upon the death of the latter;
2. The property should have been previously
acquired by gratuitous title by the
descendant from another ascendant or
from a brother or sister; and
3. The descendant should have died without
any legitimate issue in the direct
descending line who could inherit from him.
Disinheritance
A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for
causes expressly stated by law (Art. 915, NCC).
NOTE: This includes inheritance from the free
portion. However, the disinherited her may be
represented by his children or descendants (Art.
923, NCC).
What are the requisites of a valid
disinheritance?
1. The disinheritance must be for a cause
expressly stated by law;
2. It must be effected only through a will;
3. The legal cause for the disinheritance must
be specified in the will itself;
4. The cause must be certain and true;
5. The disinheritance must be total; and
6. The disinheritance must be unconditional.
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Legacy and Devise
A legacy may be defined as a testamentary
disposition by virtue of which a person is called by
the testator to inherit an individual item of personal
property, while a devise may be defined as a
testamentary disposition by virtue of which a
person is called by the testator to inherit an
individual item of real property.
NOTE: An heir can be a devisee or legatee. A
distinction between an heir and legatee or devisee
is important only in case of preterition which
annuls the institution of heirs, but does not affect
the institution of legatees and devisees to the
extent that the legitimes are not impaired (Art. 854,
NCC).
Who may be charged by the testator with the
payment or delivery of a legacy or devise?
1. Any compulsory heir,
2. any voluntary heir;
3. any legatee or devisee; and
4. the estate, represented by the executor or
administrator.
INTESTATE SUCCESSION
Legal or intestate succession is a disposition of the
decedent’s estate based on his presumed will, in
the absence of a valid will.
Intestate Heirs
1. Legitimate relatives of the deceased;
2. Illegitimate relatives of the deceased;
3. Surviving Spouse;
4. The State (Art. 961, NCC).
Principle of Preference of Lines
The principle of preference of lines in intestate
succession merely refers to the principle by virtue
of which relatives of the decedent who are in the
direct descending line shall exclude those who are
in the direct ascending or in the collateral line,
while those who are in the direct ascending line,
on the other hand, shall exclude those who are in
the collateral line.
Principle of Proximity
The principle of proximity merely refers to the rule
by virtue of which relatives of the decedent nearest
in degree shall exclude the more remote ones (Art.
962, NCC).
Exception: When the right of representation
properly takes place (Ibid).
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Representation
Representation is a right created by fiction of law,
by virtue of which the representative is raised to
the place and the degree of the person
represented, and acquires the rights which the
latter would have if he were living or if he could
have inherited (Art. 970, NCC).
Rules in Representation
1. Voluntary heirs cannot be represented (Art.
856, NCC).
2. Illegitimate children may be represented by
their legitimate and illegitimate ascendants
(Art. 902, NCC).
3. Legitimate children may not be represented
by their illegitimate descendants (Art. 992,
NCC).
4. It only takes place in the direct descending
line (Art. 972, NCC).
5. In the collateral line, it takes place only in
favor of the children of brothers or sisters,
whether they be of the full or half-blood (Art.
972, NCC).
6. Heirs who repudiate their share may not be
represented (Art. 977, NCC).
7. An adopted child can neither represent nor be
represented (Teotico v. Del Val, G.R. No. L-
18753, March 26, 1965).
Iron-Curtain Rule
Illegitimate children cannot inherit ab intestato
from the legitimate children and relatives of his
mother or father. Legitimate children and relatives
cannot inherit in the same way from the illegitimate
child (Art. 992, NCC).
NOTE: The iron curtain rule only applies in
intestate succession. There is a barrier recognized
by law between the legitimate relatives and the
illegitimate child so that one cannot inherit from the
other and vice-versa.
BAR 1983
Q: A spurious child, died intestate survived
by B, the brother of his deceased mother,
and C, his mother’s legitimate
granddaughter.
May B and C inherit from A? Reasons.
A: B and C cannot inherit from A. The reason is
what is sometimes known as the principle of
absolute separation between members of the
legitimate family and members of the illegitimate
family. According to this principle, an illegitimate
child cannot inherit ab intestato from the
legitimate children or relatives of his presumed
or putative parent; neither can such legitimate
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children or relatives of his presumed or putative
parent inherit ab intestato from the illegitimate
child. Obviously, B and C are legitimate
relatives of A’s mother. There is, therefore, an
impenetrable or impassable barrier existing
between A, the decedent, on one hand, and B
and C, on the other hand. One cannot inherit ab
intestato from the other.
Order of Intestate Succession
1. Legitimate children and descendants
2. Legitimate parents and ascendants
3. Illegitimate children and descendants
4. Surviving spouse
5. Brothers, sisters, nephews and nieces
6. Other collateral relatives up to the 5th degree
7. State
COMMON PROVISIONS
Accretion
Accretion is a right by virtue of which, when two or
more persons are called to the same inheritance,
devise or legacy, the part assigned to the one who
renounces or cannot receive his share, or who
died before the testator, is added or incorporated
to that of his co-heirs, co-devisees, or co-legatees.
(Art. 1015, NCC)
When is there no accretion?
1. When there is legitime (Art. 1021, NCC)
2. When there is substitute (Art. 1022, NCC)
3. If representation applies
What requisites must concur in order that
accretion will take place?
The requisites for accretion in testamentary
succession are as follows:
1. Two (2) or more persons are called to the
same inheritance, legacy or devise jointly or
pro indiviso.
2. There is a vacancy in the inheritance, legacy
or devise as a result of predecease,
incapacity, repudiation, or some other cause
(Art. 1016, NCC).
In intestate succession, only one requisite is
necessary -— that there must be a vacancy in the
inheritance as a result of predecease, incapacity
or repudiation.
In order that a person can inherit either by will
or by intestacy, what requisites must concur?
In order that a person can inherit either by will or
by intestacy, the following requisites must concur:
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1. That the heir, legatee or devisee must be
living or in existence at the moment the
succession opens; and
2. That such heir, legatee or devisee must not
be incapacitated or disqualified by law to
succeed (Arts. 1024, 1025, NCC)
When may an heir, legatee or devisee accept or
repudiate his inheritance?
An heir, legatee or devisee may accept or
repudiate his inheritance when the following
requisites are present: first, he is certain of the
death of the person from whom he is to inherit; and
second, he is certain of his right to the inheritance,
legacy or devise (Art. 1043, NCC).
How may an inheritance, legacy or devise be
repudiated?
Must always be express. This can be done by:
1. Means of a public instrument, or
2. Means of an authentic instrument, or
Means of a petition presented to the court
having jurisdiction over the testate or intestate
proceedings (Art. 1051, NCC).
Acceptance and repudiation of inheritance
The acceptance or repudiation of the inheritance
is an act which is purely voluntary and free (Art.
1041, NCC).
Acceptance refers to the act by virtue of which an
heir, legatee or devisee manifests his desire in
accordance with the formalities prescribed by law
to succeed to the inheritance, legacy or devise.
Repudiation, on the other hand, refers to the act
by virtue of which an heir, legatee or devisee
manifests his desire in accordance with the
formalities prescribed by law not to succeed to the
inheritance, legacy or devise (Jurado, 2009).
Forms of acceptance (Art. 1049, NCC)
1. An express acceptance must be made in a
public or private document.
2. A tacit acceptance is one resulting from acts
by which the intention to accept is necessarily
implied, or which one would have no right to
do except in the capacity of an heir.
Effects of acceptance or repudiation
1. Retroactive - Retroacts to the moment of
death of the decedent (Art. 1042, NCC)
2. Irrevocable (Art. 1056, NCC)
NOTE: Knowledge of the death of the person from
whom he is to inherit, and of his right to inheritance
must be present (Art. 1043, NCC)
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Partition
Partition, in general, is the separation, division and
assignment of a thing held in common among
those to whom it may belong. The thing itself may
be divided, or its value (Art. 1079, NCC).
Every act which is intended to put an end to
indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it
should purport to be a sale, an exchange, a
compromise, or any other transaction (Art. 1082,
NCC).
Who may effect the partition of the decedent’s
estate?
The partition of the decedent's estate may be
effected:
1. By the decedent himself during his lifetime by
an act inter vivos or by will (Art. 1080, NCC),
or
2. by a third person designated by the decedent
by means of an act inter vivos or by will (Art.
1081, NCC), or
3. by the heirs themselves (Arts. 1083, 1084,
NCC), or
4. by a competent court in accordance with the
Rules of Court (Rules 74-90).
Effects of partition
1. Exclusive ownership (Art. 1091, NCC)
2. Reciprocal warranty (Art. 1092, NCC)
3. Warranty in case of insolvency of co-heirs
(Art. 1093, NCC)
4. Warranty over collectibles (Art. 1095, NCC)
Rescission and nullity of partition
A partition may be rescinded or annulled for the
same causes as contracts (Art. 1097, NCC).
Rescission on ground of succession
General Rule: In order that that you may be
justified in asking for rescission on the account of
lesion, the deduction must at least be ¼. If it is
less than ¼, you can only ask for a completion (Art.
1098, NCC).
Exception: If the partition is made by the
TESTATOR, even if the deduction is less than ¼,
you cannot ask for rescission (Art. 1099, NCC).
Exception to Exception:
1. When the legitime of the compulsory heirs is
prejudiced (Art. 1099, NCC)
2. If the intent of the testator is for his partition to
be rescinded should there be lesion (Art.
1099, NCC)
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CIVIL LAW BRAVO BASTE!
Omission of an heir in partition shall not cause 3. Those who have acquired ownership of private
its rescission lands or abandoned river beds by right of
A partition made with preterition of any of the accession or accretion under the existing laws.
compulsory heirs shall not be rescinded, unless it 4. Those who have acquired ownership of land in
be proved that there was bad faith or fraud on the any other manner provided for by law.
part of the other persons interested; but the latter
shall be proportionately obliged to pay to the Possession v. Prescription
person omitted the share which belongs to him (Art. Section 14 (1) Section 14 (2)
1104, NCC). Basis of registration: Prescription
Possession
Inclusion of non-heir in partition is void with Alienable and Private property
respect to such person disposable land
A partition which includes a person believed to be
Possession and Silent as to nature of
an heir, but who is not, shall be void only with
occupation must be possession and
respect to such person (Art. 1105, NCC).
open, continuous, occupation but Art.
exclusive and 1118 of NCC states
XI. LAND TITLES AND DEEDS notorious that possession, for
purposes of
Torrens System prescription, must be
A system of registration of transactions with in the concept of an
interest in land whose declared object is, under owner, public,
governmental authority, to establish and to certify peaceful and
to the ownership of an absolute and indefeasible uninterrupted
title to realty, and to simplify its transfer (Grey Alba
v. Dela Cruz, G.R. No. L-5246, September 16,
Decree of Registration
1910).
Decree of registration shall bind the land and quiet
title thereto. It shall be conclusive against all
Nature of land registration persons, including the government and its
Sec. 2 of PD 1529 expressly states that judicial
branches (Sec. 31, PD 1529).
proceedings for land registration of lands shall be
in rem. It means that the land registration court’s
Review of Decree Registration
decision ordering confirmation and registration of Courts may reopen the proceedings where a
title creates constructive notice and binds the
petition for review is filed within one year from the
whole world (Agcaoili, 2018).
issuance of the decree of registration, based on
actual or extrinsic fraud, and the property has not
What court has jurisdiction over land yet passed to an innocent purchaser for value
registration cases? (Eland Philippines v. Garcia, G.R. No. 173289,
RTC has plenary jurisdiction over land registration
February 17, 2010).
cases and all petitions after the original registration
(Sec. 2 of PD 1529). However, lower courts may
Requisites:
be assigned by the SC to hear and determine
1. Petitioner must have an interest in the land;
cadastral or land registration cases (Agcaoili, 2. Petition is based on actual or extrinsic fraud;
2018). 3. Petition is filed within one year from the
issuance of the decree of registration; and
ORIGINAL REGISTRATION 4. Property has not yet passed to innocent
purchaser for value (Walstrom v. Mapa, G.R.
Who may apply? No. L-38387, January 29, 1990).
1. Those who by themselves or through their
predecessors-in-interest have been in open, Certificate of Title
continuous, exclusive and notorious A certificate of title cannot be subject to collateral
possession and occupation of alienable and attack. It cannot be altered, modified or cancelled
disposable lands of the public domain under a except in a direct proceeding filed with the RTC
bona fide claim of ownership since June 12, (Sec. 48, PD 1529).
1945, or earlier.
2. Those who have acquired ownership of private
lands by prescription under the provision of
existing laws.
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CIVIL LAW BRAVO BASTE!
Direct Attack v. Collateral Attack to the whole world that a particular real property is
1. Direct attack – when the object of the action in litigation (Agcaoili, 2018).
is to annul or set aside the judgment, or enjoin
its enforcement. BAR 2001
2. Collateral attack – in an action to obtain a Q: Mario sold his house and lot to Carmen
different relief, an attack on the judgment is for P1 million payable in five (5) equal annual
nevertheless made as an incident thereof. installments. The sale was registered and
title was issued in Carmen's name. Carmen
SUBSEQUENT REGISTRATION failed to pay the last three installments and
Mario filed an action for collection, damages
Voluntary Involuntary and attorney’s fees against her. Upon filing
Purchaser becomes Registration is complete of the complaint, he caused a notice of lis
the registered owner upon filing and entry of pendens to be annotated on Carmen's title.
upon the filing, entry order in the day of the Is the notice of lis pendens proper or not?
of DOS in the day of book of the RD Why?
book and surrender
of owner’s duplicate A: The notice of lis pendens is not proper for the
of certificate of title to reason that the case filed by Mario against
the RD Carmen is only for collection, damages, and
In case of failure to Entry of dealings in the attorney's fees. Annotation of a lis pendens can
surrender the day book is a sufficient only be done in cases involving recovery of
owner’s duplicate of notice to all persons of possession of real property, or to quiet title or to
certificate and no such adverse claim remove cloud thereon, or for partition or any
payment of other proceeding affecting title to the land or the
registration fees use or occupation thereof. The action filed by
within 15 days, entry Mario does not fall on anyone of these.
in the day of the book
does not operate to XII. TORTS AND DAMAGES
convey and affect
the land sold TORTS

Adverse Claims Quasi-Delict

Statement in writing setting forth a subsequent
right or interest claimed involving property,
adverse to the registered owner (Sec. 70, PD
1529).
NOTE: Adverse claim duly annotated at the back
of a title under Sec. 70 of P.D. 1529 is good only
for 30 days. While the life of adverse claim is 30
days under P.D. 1529, it continuous to be effective
until it is cancelled by formal petition filed with the
Register of Deeds.
Is adverse claim ipso jure cancelled after 30
days?
Register of Deeds cannot unilaterally cancel the
adverse claim. There must be a court hearing for
the purpose (Agcaoili, 2018).
An unlawful violation of a private right, not treated
by contract, and which gives rise to an action for
damages. An act or omission producing an injury
to another, without any previous existing lawful
relation of which the said act or omission may be
said to be a natural outgrowth or incident (Robles
v. Castillo, 61 OG 1220; 5 C.A.R.(2s)213).
Expanded Scope of Quasi-Delict
The expanded concept as laid down in Elcano v.
Hill, quasi-delicts include acts which are criminal in
character or in violation of the penal law, whether
voluntary or negligent, whether punishable or not
punishable by law, whether criminal or not criminal
in character, whether intentional or voluntary or
negligent, which results damage to another
(Jurado, 2010).

Notice of Lis Pendens Elements of Quasi-Delict

This refers to the jurisdiction, power or control
which a court acquires over a property involved in
a suit, pending the continuance of the action, until
final judgment. The notice of lis pendens is a notice
1. There must be an act or omission;
2. Such act or omission causes damage to
another;
3. Such act or omission is caused by fault or
negligence; and
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CIVIL LAW BRAVO BASTE!
4. There is no pre-existing contractual relation Doctrine of Vicarious Liability
between the parties (Chan, Jr. v. Iglesia Ni Vicarious Liability in relation to Article 2176
Cristo, G.R. No. 160283 October 14, 2005). provides that the employer of a negligent
employee is liable for the damages caused by the
Distinguish between a Culpa Aquiliana and latter. When an injury is caused by the negligence
Culpa Contractual of an employee there instantly arises a
Culpa Aquiliana Culpa Contractual presumption of the law that there was negligence
The foundation of The liability is founded on the part of the employer either in the selection
liability is independent on a contract. of his employee or in the supervision over him after
of a contract. such selection (Travel & Tours Advisers v. Cruz,
Negligence is direct, Negligence is merely G.R. No. 199282, March 14, 2016).
substantive and incidental to the
independent. performance of the Damnum Absque Injuria
contractual obligation. General Rule: One who makes use of his own
Vicarious liability Principal – direct and legal right does no injury. If damage results from a
immediate person's exercising his legal rights, it is damnum
The defense of “good The defense of “good absque injuria (Proline Sports Center vs CA, G.R.
father of a family” is a father of a family” is No. 118192, October 23, 1997).
complete and proper not a complete defense Exception: There is abuse in the manner of
defense insofar as in the selection of exercising such rights contrary to Articles 19, 20,
parents, guardians, employees. 21 of the Civil Code.
employers are
concerned. Malicious Prosecution
There is no There is presumption An action for damages brought by one against
presumption of of negligence as long as whom a criminal prosecution, civil suit, or other
negligence. The party it can be proved that legal proceeding has been instituted maliciously
injured must prove the there is a breach of and without probable cause, after the termination
negligence of the contract. of such prosecution, suit, or other proceeding in
defendant. favor of the defendant therein. While generally
associated with unfounded criminal actions, the
Distinguish between a Culpa Aquiliana and term has been expanded to include unfounded
Crimes civil suits instituted just to vex and humiliate the
Culpa Aquiliana Crimes defendant despite the absence of a cause of
There can be quasi There must be a law action or probable cause (Marsman & Company v.
delict as long as there is punishing the act. Ligo, G.R. No. 198643, August 19, 2015).
fault or negligence
resulting in damage or Res Ipsa Loquitur
injury to another. The thing which caused the injury, without the fault
Criminal intent is not There must be a of the inured, is under the exclusive control of the
necessary. criminal intent for defendant and the injury is such that it would not
criminal liability to have occurred if he, having such control, used
exist. proper care (Professional Services Inc. vs Agana,
G.R. No. 126897, January 31, 2007).
Quasi-delict is wrongful Crime is a wrong
act against a private against the State or the
individual. public interest. Elements of the Defense of Res Ipsa Loquitur
1. The accident was of a kind which does not
The quantum of proof The guilt of the accused
ordinarily occur unless someone is negligent;
for quasi-delict is must be proved beyond
2. The instrumentality or agency which caused
preponderance of reasonable doubt.
the injury was under the exclusive control of
evidence.
the person charged with negligence; and
The sanction is either The punishment is
3. The injury suffered must not have been due
reparation or either imprisonment, to any voluntary action or contribution on the
indemnification of the fine, or both (Pineda, part of the person injured (Malayan Insurance
injury or damage. 2019). vs Alberto, G.R. No. 1947320, February 1,
2012).
 S C B A R S T A G N O T E S [ 2019 ]
CIVIL LAW
Last Clear Chance Doctrine
The doctrine of last clear chance states that where
both parties are negligent but the negligent act of
one is appreciably later than that of the other, or
where it is impossible to determine whose fault or
negligence caused the loss, the one who had the
last clear opportunity to avoid the loss but failed to
do so, is chargeable with the loss (Sealoader vs.
Grand Cement, G.R. No. 157363, December 15,
2010).
Proximate Cause
Proximate cause is that cause, which, in natural
and continuous sequence, unbroken by any
efficient intervening cause, produces the injury,
and without which the result would not have
occurred (Ramos v. C.O.L. Realty, GR No. 184905,
August 28, 2009). It is not necessarily the
immediate cause; it’s not necessarily the nearest
time, distance or space (People v. Elizalde, 59 Off.
Gaz. 1241).
Application of Proximate Cause
The doctrine of proximate cause is applicable only
in actions for quasi-delict, not in actions involving
breach of contract. The doctrine is a device for
imputing liability to a person where there is no
relation between him and another party. In such a
case, the obligation is created by law itself. But,
where there is a preexisting contractual relation
between the parties, it is the parties themselves
who create the obligation, and the function of the
law is merely to regulate the relation thus created
(Calalas v. CA, G.R. No. 122039, May 31, 2000).
Principle of Concurrent Causes
Where the concurrent or successive negligent acts
or omissions of two or more persons, although
acting independently, are in combination with the
direct and proximate cause of a single injury to a
third person, and it is impossible to determine what
proportion each contributed to the injury, either of
them is responsible for the whole injury, even
though his act alone might not have caused the
entire injury (Sabido v. Custodio, G.R. No. L-
21512, August 31, 1966).
Efficient Intervening Cause
An efficient intervening cause is one which
destroys the causal connection between the
negligent act and the injury and thereby negates
liability (Morril v. Morril, 60 ALR 102, 104 NJL 557).
Test of Negligence
Would a prudent man, in the position of the
tortfeasor, foresee harm to the person injured as a
reasonable consequence of the course about to be
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BRAVO BASTE!
pursued? If so, the law imposes a duty on the actor
to take precaution against its mischievous results,
and failure to do so constitutes negligence (Picart
v. Smith, G.R. No. L-12219, March 15, 1918).
Standard of Care
If the law or contract does not state the diligence
which is to be observed in the performance, that
which is expected of a good father of a family shall
be required (Article 1173(2), NCC).
DAMAGES
Damages
The pecuniary compensation, recompense or
satisfaction for an injury sustained or as otherwise
expressed, the pecuniary consequences which the
law imposes for the breach of some duty or
violation of some rights (People v. Ballesteros,
G.R. No. 120921, January 29, 1998)
Distinguish Injury, Damage, and Damages
• Injury - an illegal invasion of a legal right.
• Damage - the loss, hurt, or harm, resulting from
the injury.
• Damages - the recompense or compensation
awarded.
Kinds of damages recoverable under NCC
1. Actual or Compensatory Damages - awarded
to a person as compensation or indemnity for
such pecuniary loss suffered by him as he
has duly proved (Arts. 2199-2215, NCC).
2. Moral Damages – cover physical suffering,
mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar
injury. Though incapable of pecuniary
computation, moral damages may be
recovered if they are the proximate result of
the defendant's wrongful act for omission
(Article 2217, NCC).
3. Nominal Damages - are adduced 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. 2221, NCC).
4. Temperate Damages – more than nominal
but less than compensatory damages, may
be recovered when the court finds that some
pecuniary loss has been suffered but its
amount cannot, from the nature of the case,
be provided with certainty (Art. 2224, NCC).
Temperate damages must be reasonable
under the circumstances (Art. 2225, NCC).
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5. Liquidated Damages – those agreed upon by
the parties to a contract, to be paid in case of
breach thereof (Art. 2226, NCC). Liquidated
damages, whether intended as an indemnity
or a penalty, shall be equitably reduced if they
are iniquitous or unconscionable (Art. 2227,
NCC).
6. Exemplary Damages - are imposed, by way
of example or correction for the public good,
in addition to the moral, temperate, liquidated
or compensatory damages (Art. 2229, NCC).

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