CIVIL LAW

01 February 2009    8 A.M. - 12 Noon

 

INSTRUCTIONS

This questionnaire consists of twenty (20) numbers contained in SEVEN (7)

pages. Read each question very carefully. Answer legibly, clearly, and concisely.
Start each number on a separate page; an answer to a sub-question under the
same number may be written continuously on the same page and immediately
succeeding pages until completed. Each question is worth 5%. A mere "Yes" or
"No" answer without any corresponding discussion will not be given any credit.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!

(Sgd.) EUSTOLIA J. MATA

Chairperson
2009 Mock Bar Examination Committee
PLEASE CHECK THE NUMBER OF PAGES IN THIS SET
WARNING: NOT FOR SALE OR UNAUTHORIZED USE

1. X and Y are married. X, the man, is working in Saudi Arabia and has
been there for five (5) years. He sends his family letters and support
regularly. Can Y, the wife, go to court and file a summary petition for
declaration of his presumptive death and subsequently get married?

A No, because it cannot be said that X has been absent because Y has always
known the whereabouts of X. For this reason, the marriage subsequently
contracted is void.

2. A parcel of land was acquired by Miguel and Erlinda who got married
while Miguel’s marriage with Carlina was still subsisting. The
question was what law governs the acquisition of such property. Can
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Erlinda be considered a co-owner since there is no showing of her
contribution to the acquisition of the same considering that was only
20 years old then? Why?
A No, the property relation cannot be considered governed by the law on co-
ownership since Erlinda failed to prove that she contributed money to the
purchase price of the Riceland. It should therefore belong to the conjugal
partnership of Miquel and Carlina. Under Art. 148, Family Code, only the
properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions. Actual contribution is
required by Art. 148 F.C. in contrast to Art. 147, F.C. which states that efforts
in the care and maintenance of the family and household are regarded as
contributions to the acquisition of common property by one who has no salary
or income or work or industry. If actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares.
(Agapay vs. Palang, G.R No. 116668, July 28, 1997, 85 SCAD 145).

3. Boyet and Baby, both Filipino citizens, met in California, U.S.A. where
they were working. They fell in love with each other and got married.
What law shall govern their property relationship?

A Philippine Laws shall govern their property relationship, unless there is an

agreement to the contrary. Article 80 of the Family Code states that in the
absence of a contrary stipulation in the marriage settlement, the property
laws, regardless of the place of the celebration of the marriage and their
residence.

4. May mandamus lie to compel the Local Civil Registrar to register a

certificate of live birth of an illegitimate child using the alleged
father’s surname where the latter admitted paternity? Explain.

A No. Art. 176 of the Family Code of the Philippines provides that “illegitimate
children shall use the surname and shall be the parental authority of their
mother, and shall be entitled to support in conformity with this Code.” This is
the rule regardless of whatever or not the father admits paternity.
Consequently, the Local Civil Registrar correctly refused to register the
certificate of live birth of an illegitimate child using the surname of the alleged
father, even with the latter’s consent. Of course, the putative father, though
a much married man, may legally adopt his own illegitimate child. (Art. 185,
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F.C.). In case of adoption, the child shall be considered a legitimate child of
the adopter, entitled to use his surname.

The Family Code had effectively repealed the provisions of Article 366 of the
Civil Code of the Philippines giving natural child acknowledged by both parents
the right to use the surname of the father. The Family Code has limited the
classification of children to legitimate and illegitimate (Art. 163, F.C.), thereby
eliminating the category of acknowledged natural children and natural children
by legal fiction. (Marissa Mossesgeld vs. CA, et. al., G.R. No. 132524,
December 29, 1998, 101 SCAD 928).

With the amendment introduced by R.A. No. 9255 (Sec. Art. 176), the answer
should now be Yes.

5. Leouel Santos, Jr. was born of the spouses Leouel Santos, Sr., and
Julia Bedia-Santos. From the time of his birth, he was under the care
of his maternal grandparents. His mother left for the USA to work as
a nurse, and his father alleged in a Petition for the Care, Custody and
Control of the Minor that he was not aware of her whereabouts. The
RTC awarded the custody of the child to his maternal grandparents.
The CA affirmed it. The maternal grandparents contended that they
are in a better position to take care of the child for they have amply
demonstrated their love and affection for the boy since his infancy;
hence, they are in the best position to promote the child’s welfare.
Who should be awarded the custody of the child? Why?

A The father should be given the custody of the child. The law vests on the
father and mother joint authority over the persons of their common children.
(Art. 211, F.C.). In the absence or death of either parent, the parent present
shall continue exercising parental authority. (Art. 212, F.C.). Only in case of
the parent’s death, absence or unsuitability may substitute parental authority
be exercised by the surviving grandparent. (Art. 214, F.C.; Santos, Sr. vs.
CA, et. al., G.R. No. 113054, March 16, 1995, 59 SCAD 672).

6. Petitioner, a Filipino, was a common-law spouse of a Chinese named

Go Eng, with whom she had seven children, two of whom were
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erroneously registered as legitimate and Chinese citizens in their birth
certificates. All the other five children had birth records correctly
reflecting the fact that their parents were both single; that they were
illegitimate; and that they were Filipino citizens. The Petition was
published in a newspaper of general circulation as required by Rule
108 of the Rules of Court. Notice thereof was duly served on the
Solicitor General, the Local Civil Registrar, and Go Eng. The order
setting the case for hearing also directed the civil registrar and the
other respondents or any person claiming any interest to file their
opposition and cross-examined the petitioner during the trial.

This petition sought to correct the civil status and citizenship of

petitioner as appearing in her children’s birth certificates, as well as
the civil status of said children. If your were the judge, how would
you decide? Explain.

A I would grant the petition. This case is similar to the case of Republic vs.
Valencia, 141 SCRA 462, where the Supreme Court said that it is undoubtedly
true that if the subject matter of a petition is not for the correction of clerical
errors of a harmless and innocuous nature, but one involving nationality or
citizenship, which is indisputably substantial as well as controversial,
affirmative relief cannot be granted in a proceeding summary in nature.
However, it is also true that a right in law may be enforced and a wrong may
be remedied as long as the appropriate remedy is used. This Court adheres
to the principal that even substantial errors in a civil registry may be corrected
and true facts established, provided the parties aggrieved by the error avail
themselves of the appropriate adversary proceeding. x x x To follow (the
Solicitor General’s) argument that Rule 108 has been followed, a petition for
correction can no longer be described as “summary.” There can be no doubt,
said the Court, that when an opposition to the petition is filed either by Civil
Registrar or any person having or claiming any interest in the entries sought
to be cancelled and/or corrected, and the opposition is actively prosecuted,
the proceedings thereon become adversary proceedings. After noting the
well-documented proof which was never contradicted by the Republic, the
High Court observed that it would be a denial of substantive justice if two
children proven by the facts to be Philippine citizens, and whose five sisters
and brother born of the same mother and father enjoy all the rights of
citizens, are denied the same rights on the simple argument that the “correct
procedure” not specified or even intimidated has not been followed.
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7. X is the owner of a parcel of land which he converted into a

subdivision with egress and ingress to and from the highway by
means of its own road lots. Y is the owner of two parcels of land
which he purchased from its previous developer with a subdivision
plan approved by the HSRC. This plan was approved because it
indicated an access road to the public highway through the lot of Z,
not X, but the supposed right of way was only on paper as no actual
work was done on Z’s lot. Instead of constructing the right of way on
Z’s land, Y approached X for the right of way who consented verbally
while negotiations were going on. X imposed certain conditions after
Y used it for one month upon X’s tolerance which were rejected by Y,
who went to court to compel him to use the right of way. X approved
contending that he merely voluntarily agreed that Y would use it,
hence, he did not acquire the right of way, and even if he acquired it,
he had another access road. Is Y correct? Why?

A No, because the use of X’s lot for one month was by mere tolerance pending
negotiations of the terms and conditions of the right of way. Although such
use was in anticipation of a voluntary easement of right of way, no such
contract was perfected between X and Y by reason of the failure to agree on
the terms and conditions, hence; Y cannot claim entitlement to the right of
way. Furthermore, he has another access road as shown by the plan. If his
property was isolated, it was due to his own fault. (Floro vs. Llenado, et. al.,
G.R. No. 75723, June 2, 1995, 61 SCAD 665).

8. Maria, to spite her husband Jorge, whom she suspected of having an

affair with another woman, executed a will, unknown to him,
bequeathing all the properties she inherited from her parents to her
sister Miguela. Upon her death, the will was presented for probate.
Jorge opposed the probate on the ground that the will was executed
by his wife without his knowledge, much less consent, and that it
deprived him of his legitime. After all, he had given her no cause for
disinheritance, added Jorge in his opposition.

How will you rule on Jorge’s opposition to the probate of Maria’s will,
if you were the Judge?

A I would rule that Jorge is entitled to receive his legitimate from the estate of
his wife. He was not disinherited in the will assuming he gave ground for
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disinheritance; hence, he is still entitled to his legitimate. Jorge, however,
cannot receive anything from the free portion. He cannot claim preterition,
the institution of the sister was valid; and the only right of Jorge is to claim
his legitimate.

9. There was a suit against a corporation and its board of directors. A

compromise agreement was signed by a lawyer in behalf of the
corporation and the defendants-directors, without their (defendants-
directors’) authority. On the basis of the compromise agreement, a
judgment was rendered. The judgment was partially complied with,
but upon default in the payment of the balance, a writ of execution
was sought from and granted by the trial court. It was only then that
the lawyer informed the court that he committed an oversight in
having filed the compromise agreement in behalf of the defendants-
directors when it was only the defendant corporation which hired his
services.

Suppose the action was filed after ten years, has the action
prescribed? Why?

A Not yet. In Paluwagan ng Bayan Savings Bank vs. King, G.R. No. 78252, April
12, 1989, it was said that the compromise agreement signed by the lawyer in
behalf of the defendants without their authority is null and void insofar as they
are concerned. By the same token, the compromise judgment is also null and
void as to the defendants. The ruling of the lower court that the motion to set
aside the judgment and the petition for relief from judgment were filed
beyond the reglementary period is untenable. An action to declare the nullity
of a void judgment does not prescribe. (See also Art. 1410, NCC).

10. X is indebted to Y in the amount of Php100,000.00 payable on or

before December 31, 1992. On December 10, 1992, ha gave an
extension to X until January 30, 1993. Another extension was
granted in February 1993 and two extensions more were given up to
March 1993. When X asked for another extension, Y refused and
asked you whether he can still exercise his reserved right of
rescission. Advise Y.

A Y can no longer the right of rescission because he waived it when he granted

a series of extensions for X to pay. (Pilipinas Bank vs. IAC, June 30, 1997).
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11. After Ong, in Dino vs. Valencia, L-43886, July 19, 1989,
registered an adverse claim on the title of Dino, he executed an
Affidavit and a Memorandum of Quitclaim waiving all of his rights
over the land. In consideration of the said quitclaim, Dino issued
several checks; but four of them bounced. Sued for breach of
contract, Dino put up the defense of novation claiming that the
original agreement had been altered after the issuance of said checks
since Ong agreed to the request that the checks be not deposited
immediately. When sued, she interposed the defense that the
original agreement of the parties had already been novated and
disregarded after the issuance of the checks and after the execution
of the Affidavit and Memorandum of Quitclaim.

Is the defense correct? Why?

A No. It will be noted that the original contract (Annex “A”) was not actually
altered or changed. The defense, as a matter of fact, and for all intents and
purposes, had issued checks in payment of her obligation as prestated by the
contract but asserted that the same were issued only to guarantee but not as
a payment in itself, but it is no denying the fact that one of the five checks
were cashed, thus making the balance of only P32,000.00, that is without
mention the liquidated damage of P20,000.00. The ambivalent attitude of the
defendant could only mean or should be construed as a mere pretense to
avoid an immediate demand for the payment of her obligation.

In order that an obligation may be extinguished by another which substitutes

the same, it is imperative that it be so declared in unequivocal terms, or that
the old and new obligation be on every point incompatible with each other.
(Art. 1292, New Civil Code).

In the present case, the contract referred to did not expressly extinguish the
obligation existing in said affidavit and memorandum of quitclaim. On the
contrary, it expressly recognized the obligation between the parties and
expressly provided a method by which the same shall be extinguished, which
method was expressly provided to the aforementioned contract by means of
periodical payments.

12. X is a franchise holder along THE ROUTE FROM Manila to Biñan,

Laguna. Z, a friend, wants to engage in the transportation business
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but he has no franchise; hence, he sought the assistance of X who told
him that he can accommodate his buses for a fee. They then entered
into a contract whereby Z made it appear that he conveyed the buses
to X just to have the same registered and covered by the franchise.
One year later, Y sold his franchise to Z. Thereafter, Z sought the
reconveyance of the buses to him from X. X, however, refused, hence,
this action for specific performance. Will the action prosper? Why?

A No, because they are in pari delicto. In Teja Marketing vs. CA, March 9, 1987,
it was said that the kabit system has been the source of corruption in the
government agency (LTO or LTFRB); thus, the court would leave the parties
where they are.

13. The agreement between Luna Sosa and Popong Bernardo, a

sales agent of Toyota Shaw, Inc., shows that the former shall submit
all the necessary documents; that a down payment shall be made by
him in the amount of P100,000.00 on June 15, 1989, and that the car
shall be picked up on June 17, 1989. It was signed by Bernardo but
not by Sosa. There was no mention of how much the purchase price
was and how the balance would be paid. Was there a perfected
contract? Why?
A None, because there was no obligation of Toyota Shaw, Inc. to transfer
ownership of a determinate thing, and the correlative obligation to pay a price
certain. The agreement made no specific reference to a sale of a vehicle. If it
was intended to be a contract of sale, it could only refer to a sale on
installment basis; but nothing was mentioned about the full price and the
manner the installments were to be paid. A definite agreement on the
manner of payment of the price is essential element in the formation of a
contract of sale. (Velasco vs. CA, 51 SCRA, 439; Navarro vs. Sugar Producers
Cooperative Marketing Assn., 1 SCRA 1180). This is so because the
agreement as to the manner of payment goes into the price such that a
disagreement on the manner of payment is tantamount to a failure to agree
on the price. Definiteness as to the price is an essential element of a binding
agreement to sell personal property. (Toyota Shaw, Inc. vs. CA, et. al., G.R.
No. 116650, May 23, 1995, 61 SCAD 310).
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14. A is the owner of a lot on which he constructed a building with

the total cost of P10,000,000.00. Of that amount, B B contributed
5,000,000.00 provided that the building as a whole would be leased to
him (B) for a period of ten years from January 1, 1985 to December
31, 1995 at a rental of P100,000.00 a year. To such condition, A
agreed. On December 20, 1990, the building was totally burned.
Soon thereafter, A’s workers cleared the debris and started the
construction of a new building. B then served notice upon A that he
would occupy the building being constructed upon completion for the
unexpired portion of the lease term, explaining that he had spent
partly for the construction of the building that was burned. A,
rejected B’s demand.

Was A correct in rejecting B’s demand?

A Yes, because the lease was extinguished with the total burning of the building.
(Art. 1655, NCC).

15. X borrowed from Y money to gamble. He lost. Y, the creditor,

demand from X the payment of the obligation when it became due and
demandable, but X refused to pay contending that it was the result of
gambling. Is his contention valid? Why?

A No. It was not the result of gambling. The fact that the money was loaned to
him for the purpose of gambling is not sufficient to defeat the claim of Y since
only such money lost at gambling cannot be recovered (but not the money
loaned to be used for gambling). (Vasquez vs. Florence, October 28, 1985;
see Ban vs. IAC, December 17, 1986).

16. Cabanatuan City Colleges obtained a loan from Bancom

16Development Corporation secured by a mortgage over two parcels
of land within its school site. In the meantime and during the
existence of the mortgage, it leased 1,000 square meters to another,
who eventually constructed a house on said land. This was made
known to Bancom. The debtor failed to pay its obligation, hence the
foreclosure of the mortgage. Bencom was the highest bidder in the
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public auction. Certificate of sale was issued. There was failure to
redeem, hence, Bancom consolidated its title, then, it moved for the
issuance of a writ of possession which included the house erected by
the lessee. Is the action proper? Why?

A No, while the law (Art. 2127, NCC) provides that the mortgage extends to the
natural accessions, or to the improvements, among others, yet the law
extends the effects of real estate mortgage only to accessions and accessories
found on hypothecated property when the secured obligation becomes due.
The law is predicated on an assumption that that the ownership of such
accessions and accessories also belongs to the mortgagor as the owner of the
principal. (See Art. 440, NCC). The provision has thus been seen by the
Court, in a long line of cases beginning in 1909 with Bischoff vs. Pomar, 12
Phil. 690; Cea vs. Villanueva, 18 Phil. 538; Cu Unjieng vs. Mabalacat Sugar
Co., 58 Phil. 439; Berkenkotter vs. Cu Unjieng, 61 Phil. 663, to mean that all
improvements subsequently introduced or owned by the mortgagor on the
encumbered property are deemed to form part of the mortgage. That the
improvements are to be considered so incorporated only if so owned by the
mortgagor is a rule that can hardly be debated since a contract of security,
whether real or personal, needs as an indispensable element thereof the
ownership by the pledgor or mortgagor of the property pledged or mortgaged.
(Art. 2085, NCC). The rationale should be clear enough, in the event of
default on the secured obligation, the foreclosure sale of the property would
naturally be the next step that can be expectedly follow. A sale would result
in the transmission of title to the buyer which is feasible only if the seller
can be in a position to convey ownership of the thing sold. (Article 1458, Civil
Code). Foreclosure would be ineffective unless the mortgagor has title to the
property to be foreclosed. For the law only allows the possession of a
mortgaged property to be awarded to the purchaser in extrajudicial
foreclosures if there is no third party actually holding the property adversely
to the judgment debtor. (Castro, et. al. vs. CA, et. al., G.R. No. 97401,
December 6, 1995, 66 SCAD 264).

17. May the owner of the truck involved in an accident be held

subsidiarily liable for the damages awarded to the offended parties in
the criminal action against the truck driver despite the filing of a
separate civil action by the offended parties against the employer of
the truck driver? Why?

A No, because the law prohibits recovery of damages by the injured party twice.
In negligence cases, the aggrieved party has the choice between: (1) an
action to enforce civil liability arising from crime under Article 100 of the
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Revised Penal Code; and (2) a separate action for quasi delict under Article
2176 of the Civil Code of the Philippines. Once the choice is made, the injured
party cannot avail himself of any other remedy because he may not recover
damages twice for the same negligent act or commission of the accused. This
is the rule against double recovery. (Rafael Reyes Trucking Corp. vs. People,
G.R. No. 129029, April 3, 2000).

18. XYZ Corporation acquired by purchased a parcel of land from A

who has been in possession of the same since 1900. The acquisition
was made in 1988. Can the corporation file an original application for
land registration?

A Yes, because the land is no longer a part of the alienable lands of the public
domain. The possession by A since 1900 or over 30 years converted the land
ipso jure into a private property, hence, divesting the land of its character as
alienable land of the public domain. (Dir. Of Lands vs. IAC, December 29,
1986; Magistrado vs. Esplana, G.R. No. 54191, May 8, 1990; Republic vs. CA,
G.R. No. 108998, August 24, 1994, 54 SCAD 612).

19. The contract entered into by and between the parties in

Engineering and Machinery Corp. vs. CA, et al., 67 SCAD 113, G.R. No.
52267, January 24, 1996, was a situation where the petitioner
undertook, to fabricate, furnish, and install the air-conditioning
system in the respondent’s building for P210,000.00.
Is the contract one of sale or a contract for a piece of work?

A It is one of a piece of work because it is not petitioner’s line of business to

manufacture air-conditioning systems to be sold “off-the-shelf.” Its business
and particular field of expertise is the fabrication and installation of such
systems as ordered by customers and in accordance with particular plans and
specifications provided by customers. Naturally, the price or compensation for
the system manufactured and installed will depend greatly on the particular
plans and specifications agreed upon by the customers.

“By the contract for piece of work the contractor binds

himself to execute a piece of work for the employer, in
consideration of a certain price or compensation. The
contractor may either employ only labor or skill, or also
furnish the material.” Art. 1713, NCC.
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A contract for a piece of work, labor, and materials may be distinguished from
a contract of sale by the inquiry as to whether the thing transferred is not one
in existence and which would never have existed but for the order of the
person desiring it. In such case, the contract is one for a piece of work, not a
sale. On the other hand, if the thing subject of sale to some other person
even if the order had not been given, then the contract is one of sale. (Com.
Of Internal Revenue vs. Engineering Equipment and Supply Corp. vs. CA, et
al., G.R. No. 52267, January 24, 1996, 67 SCAD 113.

20. X executed a deed of donation in favor of his son Y prior to his

death. Such donation is irrevocable in character. After his death, his
will was submitted to probate and Y was being required to collate the
said donation, but he contends otherwise, stating that since the
donation is irrevocable in nature, there is a prohibition against
collation. Is Y’s contention tenable? Why?

A No, because there was no express prohibition against collation. Collation shall
not take place among compulsory heirs if the donor should have so expressly
provided. (art. 1062, NCC). The fact that the donation is irrevocable does
not necessarily exempt the subject thereof from collation. Anything less than
an express prohibition will not suffice under the clear language of Art. 1062.
(Roma vs. CA, July 23, 1987).

END OF THE EXAMINATION

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