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Mock Bar 2009 Civil Law With Answers
Mock Bar 2009 Civil Law With Answers
INSTRUCTIONS
GOOD LUCK!!!
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 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).
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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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).
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.
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).
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.
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 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.
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.
A Yes, because the lease was extinguished with the total burning of the building.
(Art. 1655, NCC).
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).
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).
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).
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).
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).