Title VII-Easement or servitudes It is only the owner of the tenement or piece of land who may
constitute an easement over his property.
Chapter 3: Voluntary Easements
Arts. 688 - 693, NCC
Voluntary Easements
Concept
 An easement may either be compulsory or voluntary.
 It is compulsory if it can be demanded by the claimant as a
matter of right upon payment of the proper indemnity.
 If the claimant is not entitled to demand for an easement as a
matter of right because the requisites for legal easement are
not present, the easement may only be constituted upon the
will of the owner of the servient estate, in which case, the
easement is classified as voluntary.
 Only the owner of the property may constitute an easement over
a tenement because the creation of a servitude is a disposition of
a part of the right of ownership and only an owner can do that.
 A voluntary easement of right of way is like any other contract.
 As such, it is generally effective between the parties, their heirs
and assigns, except in case where the rights and obligations
arising from the contract are not transmissible by their nature,
or by stipulation or by provision of law,
Establishment of voluntary easement on property held in
usufruct
 Since easement consists of a limited use and enjoyment of the
thing without possession, the establishment of a voluntary
easement on a tenement or piece of land is not inconsistent with
the existence of a usufruct over the same property.
 Hence, the owner of such tenement or piece of land may
impose any servitude thereon and he may do so even without
the consent of the usufructuary.
 If is the usufructuary who will impose the same servitude upon
the property held in usufruct, it is not, in reality, easement or
servitude because it will not bind the owner or the property
itself In short, the right created is not a real right but a mere
personal right which is binding against the usufructuary only.
 Hence, upon the termination of the usufruct the servitude
likewise ceases.
Establishment of Easement Over Co-owned Property
 If the tenement or piece of land is in a state of co-ownership, the
unanimous consent of all co-owners is required in order to
constitute a voluntary easement upon the same.
 Consent by the co-owners may be given by them either
simultaneously or successively.
 In the latter case, the consent given by one of the co-owners
separately from the others shall already bind him and his
successors.
 In other words, he cannot later on change his mind and
withdraw his consent, if the other co-owners decide to
subsequently give their consent.
Abandonment of Property
 If, upon the establishment of a voluntary easement, the owner of
the servient estate bound himself to bear the cost of the work
required for the and preservation of the easement he may free
himself from this obligation by renouncing his property to the
owner of the dominant estate.
 The owner of the servient estate need not renounce his
ownership over the entire property if the servitude affects only a
part thereof in which case. he may abandon only that part which
is burdened with the servitude.
1
  Needless to say, if the servitude affects the entire servient
tenement, the abandonment must be total.
 Must the abandonment be reduced in some form? Since the
abandonment contemplated in Article 693 of the New Civil Code
produces the transmission of ownership over a real property, the
law (Art. 1358, par. 1 of the NCC) requires that the same must
appear in a public document.
 However, the provision of Article 1358 of the NCC on the
necessity of a public document is only for convenience, not
for validity or enforceability.
Title VIII
Nuisance
Arts. 694 - 707, NCC
Title IX - Registry of Property
Arts. 708- 711, NCC
Concept of Nuisance
Definition
 The word nuisance is derived from the French word "uire which
means to injure, hurt or harm.
 Literally, therefore, it means annoyance, anything that works
hurt or injury.
 Under Article 694 of the Civil Code, a nuisance defined as "any
act, omission, establishment, business, condition of property, or
anything else which:
1. Injures or endangers the health or safety of others, or
2. Annoys or offends the senses, or
3. Shock defies or disregards decency or morality, or
4. Obstructs or interferes with the free passage of any public
highway or street on any body of water, or
5. Hinders or impairs the use of property.
 But other than the statutory definition, jurisprudence recognizes
that the term "nuisance" is no comprehensive that it has been
applied to almost all ways which have interfered with the rights
of the citizens, either in person, property, the enjoyment of his
property, or his comfort.
Nuisance restriction on ownership
 The law on nuisance is a restriction or limitation upon ownership
and a manifestation of the principle that every person should so
use his property as not to cause damage or injury to others - "sic
utere tuo ut alienum non laedas”
Distinguished from negligence.
 It has been held that the legal basis of liability for nuisance is not
negligence but the resulting injury to others regardless of the
degree of care or skill exercised to avoid such injury.
 Stated otherwise, liability for negligence in based on want of a
proper care, while, ordinarily, a person who creates or
maintains a nuisance is liable for the resulting injury to others
regardless of the degree of care or skill exercised to avoid
such injury.
 However a nuisance may be and frequently is the
consequence of negligence, or the same acts or omissions
which constitute negligence may give rise to a nuisance.
Classification of Nuisance
In general
 A nuisance is classified in two ways
according to the object it affects; or
according to its susceptibility to summary abatement.
 According to objects affect
 As for a nuisance classified according to the object or objects
that it affects, a nuisance may either be:
1. Public Nuisance
2
 One which affects a community or neighborhood or any possession of land enjoyment of land.
considerable number of persons, although the extent of the In principle, the boundary between trespass and nuisance is fixed
annoyance, danger or damage upon individuals may be unequal. by the nature of the interests these actions are said to protect.

2. Private Nuisance
 Concept  Any intentional intrusion that deprives another of possession of
 One that is not included in the foregoing definition" which, in land, even if only temporarily is considered a trespass, and one
jurisprudence, is one which "violates only private rights and who commits an intentional trespass is subject to liability
produces damages to but one or a few person. "irrespective of whether he thereby causes any harm to any
 It affects only an individual or a limited number of individuals. legally protected interest of the other.
 As distinguished from a public nuisance, a private nuisance  There is no inquiry therefore into the balance of interests
includes any wrongful act which destroys or deteriorates the between the plaintiff and defendant or whether the intrusion
property of an individual or of a few persons or interferes with was reasonable.
their lawful use or enjoyment thereof, or any act which  This is so because the private landowner's right to exclude
unlawfully hinders them in the enjoyment of a common or others from his or her land is one of the most essential sticks
public right and causes them as a special injury different from in the bundle of rights that are commonly characterized or
that sustained by the general public. property.
 Unlike in trespass to land which does not require damage to
the property in order for the plaintiff to recover damages, it is
necessary in private nuisance that the plaintiff must suffer
Private nuisance vs. trespass to Land
some form of damage.
TRESPASS PRIVATE NUISANCE
is an invasion of the plaintiff’s is an interference with his use Requisites for recovery under private nuisance
interest in the exclusive and enjoyment of it. As applied to land, a private nuisance has been defined as a
posession of his land substantial and unreasonable interference with the private use
is a direct infringement of nuisance consists of a use of and enjoyment of another's land.
another's right of property. one's own property in such a  Hence, the essence of a private nuisance claim is the
manner as to cause injury to protection of a property owner's interest in the private use and
the property or other right or enjoyment of his land.
interest of another and
generally results from the
In order for a private nuisance suit to prosper, the plaintiff
commission of an act beyond
the limits of the property must be able to prove the following:
affected 1. That there was damage to the property
Thus, where there is no actual physical invasion of the plaintiff's  Unlike in trespass to land which does not require dam age to
property, the cause of action is for nuisance rather than trespass. the property in order for the plaintiff to recover damages, it is
necessary in private nuisance that the plaintiff must suffer
said to protect the interest in is said to protect the use and some form of damage.

3
 Damage may be proved in one of two ways:
1. by proving physical damage to the property (otherwise
known as "tangible nuisance"; or
2. by proving personal discomfort. (loss of amenity in the
claimant's use of the premises (otherwise known as
"intangible nuisance").
 If there were physical harm to property then it would be
necessary only to show that the harm had been caused by the
defendant's action and that some kind of harm was foreseeable
consequence of the defendant's action If the land is physically
affected, for example, "damage may be presumed by the court,
even if the claimant cannot show that his land has diminished
in value.
 If the damage relates to the amenity of the land, rather than its
physical state or condition, a claim for private nuisance may
likewise prosper if the defendant's actions cause the land to
become less valuable.
 That the interference is either:
1.intentional and unreasonable of
2.unintentional and otherwise negligent reckless conduct; or
3.resulting in abnormally dangerous activities in an
appropriate place.
Interference is intentional when the actor knows or should know
that the con duct is causing a substantial and unreasonable
interference.
 The unreasonableness of an intentional interference must be
determined by a balancing of the landowners' internets.
 Interference in una sonable when the gravity of the harm
outweighs the social value of the activity alleged to cause the
harm In other words, there is only a nuisance if the annoyance
outweighs the utility to the ac tor and to society as a whole.
 This is known as the doctrine of comparative utility or
balancing of utilities.
 In deciding the issue of unreasonableness, courts are therefore
called upon to maintain a balance between the interests and
rights of the defendant to use his land and the claimant's
interests.
 In determining what is reasonable interference, the following
factors are generally considered
1. the locality of the plaintiff because inhabitants of industrial
areas must expect more interference
2. the extent of the interference- even in industrial areas, there
are limits
3. and the time of day- a continuous loud noise made during the
middle of the night, for example, is considered less accept
able than the same during the day.
Mixed Nuisance
 Although the ground of distinction between public and private
nuisances is still the injury to the community at large or, on the
other hand, to a single individual, it is evident that the same thing
or act may constitute a public nuisance and at the same time a
private nuisance.
 A mixed nuisance is of the kind last described, that is, it is one
which is both public and private in its effects — public because it
injures many persons or all the community, and private in that it
also produces special injuries to private rights.
 According to susceptibility to legal summary abatement
 A nuisance may also be classified as to whether it is
susceptible to a legal summary abatement, in which case, it
may either be:
1. Nuisance per se (or nuisance at law)
 When it affects the immediate safety of persons and property,
which may be summarily abated under the undefined law of
necessity.
 It is recognized as a nuisance under any and all circumstances,
because it constitutes a direct menace to public health or
4
 safety, and, for that reason, may be abated summarily under
the undefined law of necessity.
2. Nuisance per accidens or nuisance in fact
 Which "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 whether such a
thing does in law constitute a nuisance;
 it may only be so proven in a hearing conducted for that
purpose and may not be summarily abated without judicial
intervention.
 It refers to those which are not nuisance per se but may
become a nuisance by reason of the circumstances of the
location and surroundings or manner in which it is performed or
operated, 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 does in law constitute a
nuisance.
 Test: The traditional test for determining the existence of a
nuisance per se is whether the nuisance has become dangerous
at all times and under all circumstances to life, health, or
property.
 Good examples of nuisances per se are those which are
prohibited by law, such as houses of ill fame (or prostitution)
and gambling houses.
 These activities are nuisances per se regardless of their
location or surroundings.
 Also considered as nuisance per se, culling from examples
cited in jurisprudence, are the following a mad dog on the
loose, which may be killed on sight because of the immediate
danger it pones to the safety and lives of the people,
pornographic materials, contaminated meat and narcotic drugs
which are inherently pernicious and which may be summarily
destroyed, a filthy restaurant which may be summarily
padlocked in the interest of the public health.
Doctrine of Attractive Nuisance
 Statement of the doctrine
 The doctrine of attractive nuisance is of American origin and
recognized in this jurisdiction in the case of Taylor Manila
Electric.
 The doctrine may be stated, in short, as follows: 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.
 The principal reason for the doctrine is that the condition or
appliance in question although its danger is apparent to those of
age, is so enticing or alluring to children of tender years as to
induce them to approach, get on or use it and this attractiveness
is an implied invitation to such children.
 Application of the doctrine
 Is a swimming pool or water tank an instrumentality or appliance
likely to attract the little children in play?
 In Hidalgo Enterprises, Inc. a Balandan, supra, it was held
that the attractive nuisance doctrine, generally, is not
applicable to bodies of water, artificial as well as natural, in
the absence of some unusual condition or artificial feature
other than the mere water and its location
Remedies against Nuisance
In general
 Whether the nuisance is public or private, the following remedies
are available:
1. a civil action, or
2. abatement, without judicial proceedings.
 With regard to a public nuisance, the additional remedy of
criminal prosecution under the provisions of the Revised
5
 Penal Code or any applicable local ordinance is also
available.
 Aside from the remedy of summary abatement which should
be taken under the parameters stated in Articles 704 (for
public nuisances) and 706 (for private nuisances of the Civil
Code, a private person whose property right was invaded or
unreasonably interfered with by the act, omission,
establishment, business or condition of the property of
another may file an civil action to recover personal damages
 Abatement may be judicially sought through a civil action
therefor if the pertinent requirements under the Civil Code for
summary abatement, or the requisite that the nuisance is a
nuisance per se, do not concur.
 To note, the remedies of abatement and damages are
cumulative; hence, both may be demanded.
Criminal prosecution in case of public nuisance
As distinguished from private nuisance, a public nuisance may
also be the subject of a criminal prosecution under the Revised
Penal Code or any local ordinance
 For example, the conduct of an illegal gambling is a form of
public nuisance which shall subject any person who shall
knowingly permit the commission of the same in any inhabited
or uninhabited place or any building, vessel or other means of
transportation owned or controlled by him.
Abatement of nuisance:
 Whether a nuisance is a public or private one, it may be abated,
and the abatement may either be without the necessity of judicial
proceedings or only upon due hearing thereon.
 It is a standing jurisprudential rule that unless a nuisance is a
nuisance per se it may not be summarily abated In a number of
cases, the Supreme Court clarified, however, that the abatement
of a nuisance without judicial proceedings is possible only if it is
a nuisance per.
 The reason for this is that a nuisance per accidens is that which
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 does in law constitute a nuisance.
 Unless a thing is nuisance per se, however, it may not be abated
via an ordinance, without judicial proceedings.
 Such ordinance is null and void because it violates the
guarantee of due process under the Constitution.
 Generally, LGUS have the power to declare a particular thing
as a nuisance unless such a thing in a nuisance per se.
 Under Section 447(a)(3)(i) of RA No 7160, otherwise known
as the Local Government Code, the Sangguniang
Panglungsod is empowered to enact ordinances declaring.
preventing or abating noise and other forms of nuisance. It
bears stressing, however, that the Sangguniang Bayan
cannot declare a particular thing as a nuisance per se and
order its condemnation.
 It does not have the power to find, as a fact, that a particular
thing is a nuisance when such thing is not a nuisance per se;
nor can it authorize the extrajudicial condemnation and
destruction of that as a nuisance which in its nature, situation
or use is not such.
 Those things must be determined and resolved in the
ordinary courts of law. If a thing be in fact, a nuisance due to
the manner of its operation that question cannot be
determined by a mere resolution of the Sangguniang Bayan
 To repeat, only courts of law have the power to determine
whether a thing is a nuisance.
 In Parayno Jovellanos, the Supreme Court struck down the
resolution passed by the Sangguniang Bayan of Calasino,
Pangasinan authorizing the closure or transfer of location of a
gasoline station upon the authority of its Official Zoning Code.
6
 The Court held that the business of gasoline station could not be
considered a nuisance per se which the municipality could
summarily abate in the guise of exercising its police power.
 Hence, it could not be closed down or transferred summarily
to another location.
 In Lucena Grand Central Terminal Inc. JAC Liner, Inc. the
Sangguniang Panlungsod of Lucena City, with the aim of
localizing the source of traf fic congestion in the city to a single lo
cation passed an ordinance prohibiting the operation of all bus
and jeepney terminals within Lucena, including those already
existing, and allowing the operation of only one common terminal
located outside the city proper, the franchise for which was
granted to Lucena Grand Terminal, Inc.
 The common carriers plying routes to and from Lucena City
were thus compelled to close down their existing terminals
and use the facilities of Lucena Grand Central. Hence, they
questioned the va lidity of the ordinance. The Court held that
the bus and jeepney terminals are not nuisances per se, for
their opera tion is a legitimate business which, by itself,
cannot be said to be injurious to the rights of property, health,
or com fort of the community. Hence, they may not be abated
via an ordinance, with out judicial proceedings, as was done
in this case
 In City of Manila Judge Laguio, Jr., the Court likewise struck
down the ordinance passed by the City Council of Manila
prohibiting the operation of sauna parlors, massage parlors,
karaoke bars night clubs, day clubs, co per clubs, discotheques,
cabarets, dance halls, motels and inns within the Ermita-Malate
area.
 The Court held, among others, that the City of Manila could
not seek cover under the general welfare clause authorizing
the abatement of nuisances without judicial proceedings
because motels are not nuisances per se.
 In Salao v. Santos, the Court declared null and void the order of
the municipal president of Malabon, Rizal and those of its health
authorities which was issued with a view to the summary
abatement of the appellant's smoked fish factory.
 The Court reasoned that the smoked fish factory is a
legitimate industry and not a nuisance per se which could be
abated summarily.
 In Aquino a Municipality of Malay, Aklan, it was held that while a
hotel, in itself, cannot be considered as a nuisance per se but
only a nuisance per accidens because it was build in the no build
zone, nonetheless, the LGU may nevertheless properly order the
hotel's demolition because it failed to comply with the legal
requirements prior to construction.
 Under Section 444(b)(3)(vi) of the LGC, mayors are
empowered to order the closure and removal of il legally
constructed establishments for failing to secure the necessary
permits.
 Given the presence of the requirements under Section 444(b)
(3)(vi) of the LGC, whether the building constituted a
nuisance per se or a nuisance per accidens becomes
immaterial.
 In this case, the hotel was demolished not exactly because it
is a nuisance but because it failed to comply with the legal
requirements prior to construction.
 Under the premises, a court order that is required under
normal circumstances is hereby dispensed with.
Other jurisprudence
 The storage of copra in the quonset building is a legitimate
business. By its nature, it cannot be said to be injurious to rights
of property, of health or of comfort of the community
 If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose.
 It is not per se a nuisance warranting its summary abatement
without judicial intervention
7

 If the Chief of the Marikina Demolition Office indeed found
respondents fence to have encroached on the sidewalk, his
remedy is not to demolish the same summarily after respondents
failed to heed his request to remove it.
 Instead, he should go to court and prove respondents
supposed violations in the construction of the concrete fence.
Indeed, unless a thing is a nuisance per se, it may not be
abated summarily without judicial intervention,
 Respondents fence is not a nuisance per se.
 By its nature, it is not injurious to the health or comfort of the
community.
 It was built primarily to secure the property of respondents
and prevent intruders from entering it.
 Not being a nuisance per se, but at most a nuisance per
accidens, its summary abatement without judicial intervention
is unwarranted.
 The concrete posts summarily removed by the Municipal
Engineer did not at all pose a hazard to the safety of per sons
and properties, which would have necessitated immediate and
summary abatement.
 What they did, at most, was to pose an inconvenience to the
public by blocking the free passage of people to and from the
national road.
 In Tayaban v People, the Municipal Mayor and several Municipal
Councilors were charged with violation of Section 3(e) of RA. No.
3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, for demolishing a public market without a court order.
 The Court ruled that the accused could not seek cover under
the general welfare clause authorizing the abatement of
nuisances without judicial proceedings because this principle
applies only to nuisances per se, or those which affect the
immediate safety of persons and property and may be
summarily abated under the undefined law of necessity,
 A basketball ring is not a nuisance per se that is susceptible to a
summary abatement.
 At most, it is a nuisance per accidents.
 A basketball ring, by itself. poses no immediate harm or
danger to anyone but is merely an object of recreation.
 Neither is it, by its nature, injurious to rights of property of
health or of comfort of the community and, thus, it may not be
abated as a nuisance without the benefit of a judicial bearing
Who may abate
 Under Article 700 of the NCC, it is the City and/or the Municipal
Health Officer, who is charged with the responsibility of abating
public nuisances.
 As explained by the Court, "under Article 700 of the Civil
Code, the abatement, including one without judicial
proceedings of a public nuisance is the responsibility of the
district health officer.
 Under Article 702 of the Code, the district health officer is also
the official who shall determine whether or not abatement,
without judicial proceedings, is the best remedy against a
public nuisance.
 The two articles do not mention that the chief executive of the
local government, like the Punong Barangay, is authorized as
the official who can determine the propriety of a summary
abatement.
 A private person may likewise abate a public nuisance which is
specially injurious to him by removing, or if necessary, by
destroying the thing which constitutes the same, with it
committing a breach of the peace. or doing unnecessary injury
 This rule, however, applies only to nuisance per se and prior
to the abatement, it is necessary:
8
 1. That demand be first made upon the owner or possess or of same in that property shall be liable for damages in the same
the property to abate the nuisance; manner as the one who created the nuisance.
2. That such demand has been rejected,
3. That the abatement be approved by the district health officer
and executed with the assistance of the local police and BOOK II
4. That the value of the de struction does not exceed three DIFFERENT MODES OF ACQUIRING OWNERSHIP
thousand pesos. Preliminary Provision
Art. 712, NCC
 The same procedure shall be applied in case of extrajudicial Title I – Occupation
abatement of a private nuisance by any person injured by the Arts. 713 -720, NCC
same. Title II - Intellectual Creation
Arts. 721 - 724, NCC
 A private person or a public official who extrajudicially abates a
nuisance shall be liable for dam ages in the following situations Modes of Acquiring and Transmitting Ownership and Other
1. if he causes unnecessary in jury; or Real Rights.
2. if an alleged nuisance is later declared by the courts to be not
a real nuisance.  Different Modes of Acquiring Ownership
1. Occupation,
Civil Action 2. Intellectual Creations
 For injunction: Whether a nuisance is a public or private one, a 3. Law;
civil action for its abatement or for injunction may be filed. In 4. Donation
case of a public nuisance which is not nuisance per se, in which 5. Succession
case the remedy of summary abatement is not available, the 6. Tradition, and
action for its abatement or injunction should be commenced by 7. Prescription
the city or municipal mayor.
 If the nuisance is a private one, any person injured by the same
may file the action for abatement or for injunction. REMINDERS

Modes which are merely for acquisition of ownership

 For Damages
1. Occupation;
 Aside from the action for abatement or injunction, a claim for
2. Intellectual Creations and
damages may likewise be maintained by any person who is
3. Prescription
injured by a private nuisance.
 In case of a public nuisance, generally, no action for damages Modes which are both for acquisition and transmission of
may be maintained by a private individual unless it is especially ownership
injurious to himself. In the said action for damages not only the 1. Law
person who caused the nuisance but every successive owner 2. Donation:
or possessor of the property who fails or refuses to abate the 3. Succession, and

9
 4. Tradition  Under Article 712 of the Civil Code, the modes of acquiring
ownership are generally classified into two classes, namely, the
Modes of Acquiring Real Rights original mode (i.e, through occupation, acquisitive prescription,
1. Law law or intellectual creation and the derivative mode Ge, through
2. Donation succession mortis causa or tradition as a result of certain
3. Succession, contracts, such as sale, barter, donation, assignment or mutuum)
4. Tradition, and
5. Prescription
Modes of lasing Ownership
 Voluntary Modes
REMINDERS  Those which depend upon the will of the owner.
 The voluntary modes are abandonment and alienation
Mode which is merely for acquisition of real right
1. Prescription
 Involuntary Modes:
 Those which are independent of the will of the owner.
Modes which are both for acquisition and transmission of
 The involuntary modes, on the other hand, are the following
real right
1. the destruction of the thing, which may either be physical or
1. Law
juridical as when the thing goes out of commerce;
2. Donation,
2. revocatory acts, which may include the nullity, rescission,
3. Succession, and
revocation or resolution of that which gave rise to the
4. Tradition
acquisition;
3. extinguishment by legal precept and in virtue of certain acts,
Original and Derivative Mode
by the owner or third persons (e.g, accession and acquisitive
 Original Mode
prescription),
 Modes of acquiring ownership are called "original" when they
4. extinguishment by judicial decree, such as confirmation of a
result in the independent creation of a new right of ownership,
judicial sale as a result of levy on execution, and
independent of the ownership of a definite third person.
5. extinguishment by act of the State, such as confiscation of the
 Examples of original modes are occupation, acquisitive
effects and instruments of a crime and expropriation for public
prescription and intellectual creation.
use.
 Derivative Mode:
Law as Mode of Acquisition of Ownership
 It refers to those modes of acquisition of ownership which
 It refers to those special legal provisions which directly vest
depend on the existence of the right of a certain other person.
ownership or real rights in favor of certain persons,
 Here, there is a person who has ownership and who transmits independently on the other mode of acquiring and transmitting
the same to a successor. ownership or other real rights.
 Examples of derivative modes are tradition, succession and
donation.

10
Examples
 Mode and title may further be distinguished. as follows:
 The existence of an apparent sign of easement between two
estates, established or maintained by the owner of both, shall be MODE TITLE
considered, should either of them be alienated, as a title in order requires not only the intention requires mere intention
that the easement may continue actively and passively, unless, to acquire but also either a right
at the time the ownership of the two estates is divided, the previously vested over the thing
contrary should be provided in the title of conveyance of either of on the part of the person who
them, or the sign aforesaid should be removed before the makes the transmission or the
execution of the deed. special condition or state of the
thing to be transferred as the
 This provision shall also apply in case of the division of a thing
fact that they are ren nullius
owned in common by two or more persons. directly and immediately merely serves as a means and
produces a real right a pretext to that acquisition:
 Fruits naturally falling upon adjacent land belong to the owner of is the cause is the means
said land. creates a real right creates a real right

 When a person who is not the owner of a thing sells or alienates

and delivers it, and later the seller or grantor acquires title
thereto, such title passes by operation of law to the buyer or
grantee.
Tradition or Delivery
 Mode and Title Distinguished:
 A mode is the legal means by which dominion or ownership is
created, transferred, or destroyed, but title is only the legal basis
by which to affect dominion or ownership.
 In this jurisdiction, the term "title" is used in contradistinction with
the term "mode."
 The former being understood as referring to every juridical act,
right or condition which gives a means to the acquisition of
ownership and other real rights, but which in itself is insufficient
to produce them.
 While title is the juridical justification made in the actual process
of acquisition or transfer of ownership over a thing in question.
Contract only constitutes "title"
 Contracts, under our laws, only constitute titles or rights to the
transfer or acquisition of ownership, while delivery or tradition is
the mode of accomplishing the same.
 Stated otherwise, ownership is transferred, not by contract
alone, but by tradition or delivery.
 Non nudis pactis, sed traditione dominia rerum transferentur.
 This much is clear from Article 712 of the New Civil Code when it
provides that "ownership and other real rights over property are
acquired and transmitted in consequence of certain contracts, by
tradition.
 The delivery of a thing, therefore, constitutes a necessary and
indispensable requisite for the purpose of acquiring the
ownership of the same by virtue of a contract.
 In relation to the acquisition and transfer of ownership, it should
be noted therefore, that sale is not a mode, but merely a title.
 Sale by itself does not transfer or affect. ownership: the most
that sale does is to create the obligation to transfer ownership

11
  It is tradition or delivery, as a consequence of sale, that
actually transfers ownership.
Tradition or Delivery, Concept and Requisites:
 Concept
 Tradition (traditio) or deliver as a mode of acquiring and
transmitting ownership and other real rights, refers to the transfer
of possession accompanied by an intention to transfer ownership
or other real rights.
 Requisites
 In order that there be tradition, the following requisites must
be present:
1. pre-existence of the right to be trans mitted in the estate of
the grantor, the same being a derivative mode of ac quiring
ownership:
2. just cause or title (causa traditionis) for the transmission,
such as sale;
3. intention on the part of the grantor to grant and on the part
of the grantee to acquire capacity to transmit on the part of
the grantor) and capacity to acquire con the part of the
grantee), and
4. an act which gives it outward form, physically, symbolically
or legally
 Intent to deliver
 In all forms of delivery, it is necessary that the act of delivery,
whether constructive or actual, should be coupled with the
intention of delivering the thing.
 The act, without the intention, is insufficient.
 The critical factor in the different modes of effecting delivery
which gives legal effect to the act, is the actual intention of the
vendor to deliver, and its acceptance by the vendee.
 Without that intention, there is no tradition.
Kinds of Tradition
 Real Tradition:
 Real tradition or physical or actual delivery takes place when the
thing is placed in the control and possession of the grantee,
which if it is movable, is when the thing is transferred from hand
to hand and if immovable, by certain material and possessory
acts by the grantee in the presence and with the consent of the
grantor, such as gathering fruits or entering upon the property
which are generally called taking possession.
 In the Law on Sales, the thing sold is understood as
delivered, when it is placed in the control and possession of
the vendee.
Constructive (or Feigned) Tradition:
 The change of possession or delivery need not, however, be
materially visible.
 Hence, delivery may likewise exist even when the change of
possession is not actual or material bat represented by
other signs or acts indicative thereof, in which case the
tradition in classified as constructive one.
 Constructive delivery may take place through any of the
following ways.
1. traditio simbolica laym bolical tradition;
2. traditio fonge manu;
3. traditro brer manu;
4. traditio constitu tum possessorium; and
5. execution of public instrument
Traditio simbolica
 In tradition simbolica, the transfer of owner ship is effected by the
delivery of symbols or things which represent those to be
delivered.
 Thus in the second paragraph of Article 1498 of the NCC is
provided that with regard to make property, its delivery may
also be made by the delivery of the key of the place or
depository where it is stored or kept.
12
 Traditio longa manu
 ln tradition longa manu, the transfer of ownership is effected by
the grantor by simply pointing out to the grantee the things which
are being transferred and which at the time must be within their
sight
Traditio brevi manu
 In traditio brevi manu, the grantee has already acquired actual
control or possession of the thing as when the thing is leased to
him.
 In thin case, a mere declaration on the part of the grantor that
the grantee shall now hold the thing which is already in his
control and possession, as owner, operates as a form of
delivers.
 The traditio longa manu and the tradition brevi manu are both
recognized in Article 1499 of the NOC which provides that
"the delivery of movable property may likewise be made by
the mere consent or agreement of the contracting parties, if
the thing sold cannot be transferred to the possession of the
vendee at the time of the sale, or if the latter already had it in
his possession for any other reason.
Traditio Constitutum Possessorium
 Traditio constitutum posessorium is the reverse of traditio brevi
manu.
 In the former, delivery in effected by a mere declaration on the
part of the transferor that he will hold the thing for the transferee.
 This, of course, may take place when the owner of the thing
alienates it but continues possessing it under another contract
or capacity as a lessee for example.
 Traditio constitutum possessorium is recognized in Article
1500 of the NCC.
 Execution of Public Instrument:
 The execution of a public instrument is recognized by law as
equivalent to the delivery of the thing which is the object of the
contract.
 Under the Law on Sales, the execution of a public instrument of
sale is recognized as equivalent to the delivery of the thing sold
 It has been held, however, that the execution of contract of
sale as form of constructive delivery is but a legal fiction.
 It holds true only when there is no impediment that may
prevent the passing of the property from the hands of the
vendor into those of the vendee When there is such
impediment, fiction yields to reality the deli has not been
effected.
 Stated otherwise, the execution of a public instrument gives
rise only to a prima facie presumption of delivery. Such
presumption is destroyed when the instrument itself
expresses or implies that delivery was not intended, or when
by other means it is shown that such delivery was not
effected, because a third person was actually in possession
of the thing.
 Hence, it is necessary that the vendor shall have had control
over the thing sold that, at the moment of the sale, its material
delivery could have been made.
 When there is no impediment whatever to prevent the thing
sold passing into the tenancy of the purchaser by the sole will
of the vendor, symbolic delivery through the execution of a
public instrument is sufficient.
 But if notwithstanding the execution of the instrument, the
purchaser cannot have the enjoyment and material tenancy of
the thing and make use of it himself or through another in his
name, because such tenancy and enjoyment are opposed by
the interposition of another will, then fiction yields to reality
the delivery has not been effected.
13
 Quasi-Tradition:
 Used to indicate the trans fer of rights or incorporeal things
through the exercise of the rights by the grantee with the
acquiescence of the grantor.
 Tradition by Operation of Law.
 Comprises all those cases not covered by the previous modes of
delivery and by which tradition is effected solely by virtue of a
legal precept.
Acquisitive Prescription, as Mode of Acquiring Ownership
 Concept and Requisites:
 Prescription, in general, is a mode of acquiring (or losing)
ownership and other real rights through the lapse of time in the
manner and under conditions laid down by law, namely, that the
possession should be in the concept of an owner, public,
peaceful, uninterrupted and adverse.
 Possession, to constitute the foundation of a prescriptive right,
must be en concepto de dueño, or, to use the common law
equivalent of the term, that possession should be adverse, if not,
such possessory acts, no matter how long do not start the
running of the period of prescription.
 Possession is open when it is patent, visible, apparent, notorious
and not clandestine It is continuous when uninterrupted,
unbroken and not intermittent or occasional, exclusive when the
adverse possessor can show exclusive dominion over the land
and an appropriation of it to his own use and benefit and
notorious when it is so conspicuous that it is generally known
and talked of by the public or the people in the neighborhood.
 The party who asserts ownership by adverse possession must
prove the presence of the essential elements of acquisitive
prescription
Two kinds of Acquisitive Prescription: Acquisitive prescription
of dominion and real rights may be ordinary or extraordinary:
 Ordinary Acquisitive Prescription: Ordinary acquisitive
prescription requires possession of things in good faith and with
just title for the time fixed by law.
 Possession is in good faith when there is a reasonable belief that
the person from whom the thing is received has been the owner
thereof and could thereby transmit his ownership.
 For purposes of prescription, there is just title when the ad verse
claimant came into por session of the property through one of
the modes recognized by law for the acquisition of owner ship or
other real rights, but the grantor was not the owner or could not
transmit any right.
 Further, the law requires that just title must be proved for
purposes of prescription, it is never presumed.
 Extraordinary Acquisitive Prescription
 Extraordinary acquisitive prescription does not require just title
and good faith.
 Period of Prescription:
For Movable Property
 Four years, for ordinary acquisitive prescription, and
 Eight years, for extraordinary acquisitive prescription
For Immovable Property:
 10 years, for ordinary acquisitive prescription and
 30 years, for extraordinary acquisitive prescription
 The ten-year ordinary prescriptive period to acquire title through
possession of real property in the concept of an owner required
uninterrupted possession coupled with just title and good faith.
There is just title when the adverse claimant came into
14
 possession of the property through one of the modes recognized
by law for the acquisition of ownership or other real rights, but
the grantor was not the owner or could not transmit any right.
 Good faith, on the other hand, consists in the reasonable belief
that the person from whom the possessor received the thing was
the owner thereof, and could transmit his ownership.
Rules in Computation of Period
 The present possessor may complete the period necessary
for prescription by tacking his possession to that of his grantor
or predecessor in interest.
 It is presumed that the present posessor who was also the
possessor at a previous time, has continued to be in
possession during the intervening time, unless there is proof
to the contrary.
 The first day shall be excluded and the Last day included.
When Prescription Does Not Lie
 Prescription, as a mode of acquiring ownership or other real
right, does not apply in the following cases:
 In case of registered land
 The rule is well-settled that prescription does not run against
registered land.
 Thus, under See 47 of PD. No. 1529, otherwise known as
the Property Registration Decree, it is specifically provided
that "no title to registered land in derogation of that of the
registered owner shall be acquired by prescription or
adverse possession.
 A title, once registered, cannot be defeated even by
adverse, open and notorious possession.
 In JM. Tuason & Co. Aguirre, the Court ruled that Man action to
recover possession of a registered land never pre scribes in
view of the provision of Section 44 of Act No. 496 to the effect
that no title to registered land in derogation to that of a
registered owner shall be acquired by prescription or ad verse
possession.
 It is clear that property of public dominion which generally
includes property belonging to the State, cannot be the object
of prescription or, indeed, be subject of the commerce of man.
 However, where lands of the public domain are patrimonial
in character, they are susceptible to acquisitive prescription.
 Article 1113 provides that all thing within the commerce of
man are susceptible to prescription, and the same provision
further provides that patrimonial property of the State may
be acquired by prescription.
 Note that the muling in Heirs of Mario Malabanan effectively
abandoned the ruling in Alonso Cebu Country Club, Inc,
where it was held that possession of patrimonial property of
the Government, whether spanning decades or centuries,
cannot ipso facto ripen into ownership.
 However, it was clarified in the Heirs of Mario Malabanan
that only lands of the public domain subsequently classified
or declared an no longer intended for public use or for the
development of national wealth, or removed from the sphere
of public dominion and are considered converted into
patrimonial lands or lands of private ownership, may be
alienated or disposed through any of the modes of acquiring
ownership under the Civil Code.
 And if the mode of acquisition is prescription, whether
ordinary or extraordinary, it must first be shown that the land
has already been converted to private ownership prior to the
requisite acquisitive prescriptive period.
 Otherwise, Article 1113 of the Civil Code, which provides
that property of the State not patrimonial in character shall
not be the subject of prescription, applies.
 Accordingly, although lands of the public domain that are
considered patrimonial may be acquired by prescription
under Section 142 of PD. No. 1529, before acquisitive
prescription could commence, the property sought to be
15
 registered must not only be classified as alienable and
disposable, it must also be declared by the State that it is no
longer intended for public in, public service or the
development of the national wealth.
 Thus, absent an express declaration by the State, the land
remains to be property of public dominion.
In case of trust
 There in a rule that a trustee cannot acquire by prescription the
ownership of property entrusted to him, or that an action to
compel a trustee to convey property registered in his name in
trust for the benefit of the cestui que trust does not prescribe, or
that the defense of prescription cannot be set up in an action to
recover property held by person in trust for the benefit of
another, or that property held in trust can be recovered by the
beneficiary regardless of the lapse of time That rule applies
squarely to express trusts.
 The basis of the rule is that the possession of a trustee is not
adverse Not being adverse, he does not acquire by prescription
the property held in trust.
 The rule of imprescriptibly of the action to recover property
held in trust may possibly apply to resulting trust as long as
the trustee has not repudiated the trust.
 Acquisitive prescription may bar the action of the beneficiary
against the trustee in an express trust for the recovery of the
property held in trust where:
1. the trustee has performed unequivocal acts of repudiation
amounting to an ouster of the cestui que trust;
2. such positive acta of repudiation have been made known to
the cestui que trust; and
3. the evidence thereon is clear and conclusive.
 The foregoing rule with respect to trustees likewise applies to
co-owners and co-heirs with respect to the property owned in
common since co-ownership is a form of trust and every co-
owner is a trustee for the others.
 Hence, the rule is that no prescription shall lie in favor of a co-
owner or co-heirs as long as he expressly or impliedly
recognizes the co-ownership.
 In order to ripen into ownership, possession must be in the
concept of an owner (en concepto de dueno).
 Thus, mere possession with u juridical title, such as as by a
usufructuary, a trustee, a lessee, an agent or a pledgee, not
being in the concept of an owner, cannot ripen into
ownership by acquisitive prescription, unless the juridical
relation is first expressly repudiated and such radiation has
been communicated to the other party.
 Acts of possessory character executed due to license or by
mere tolerance of the owner would likewise be inadequate
because possession, to constitute the foundation of a
prescriptive right, must be en concepto de duela, or, to use the
common law equivalent of the term that possession should be
adverse, if not, Much possessory acts, no matter how long, do
not start the running of the period of prescription.
 Possession obtained through force or intimidation does not also
ripen into ownership because the law on acquisitive
prescription requires that the position be peaceful.
 Possessory acts which are executed clandestinely and without
the knowledge of the pos senor does not likewise ripen into
ownership because the law on acquisitive prescription requires
that the possession be public.
 Prescription does not run between husband and wife, even
though there be a separation of property agreed upon in the
marriage settlements or by judicial decree.
16
  Neither does prescription run between parents and children,
during the minority or insanity of the latter, and between
guardian and ward during the continuance of the
guardianship.
Concept of laches
Definition:
 Laches is defined as the failure or neglect for an unreasonable
and unexplained length of time to do that which, by exercising
due diligence, could or should have been done earlier, it in
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.
 The principle of laches is a creation of equity which, as such, is
applied not really to penalize neglect on sleeping upon one's
right, but rather to avoid recognizing a right when to do so
would result in a clearly inequitable situation. The time-honored
rule anchored on public policy is that relief will be denied to a
litigant whose claim or demand has become "stale." or who has
acquiesced for an unreasonable length of time, or who has not
been vigilant or who has slept on his rights either by
negligence, folly or inattention.
 In other words, public policy requires, for peace of society, the
discouragement of claims grown stale for non-assertion; thus
laches is an impediment to the assertion or enforcement of a
right which has become, under the circumstances, inequitable
or unfair to permit.
Elements of laches:
 The four elements of laches, as first prescribed by the Court in
Go Chi Gun v Co Cho are as follows:
1. conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation of which complaint is
made for which the complaint seeks a remedy:
2. delay in asserting the complainant's rights, the complainant
having had knowledge of notice of the defendant's conduct
and having been afforded an opportunity to institute a suit
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. injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held to be
barred.
Recovery of titled property may be barred by laches
 Section 47 of P.D. No. 1529, otherwise known as the Property
Registration Decree, states that no title to registered land in
derogation of the title of the registered owner shall be acquired
by prescription or adverse possession.
 Thus, the Court has held that the right to recover possession
of registered land is imprescriptible because possession is a
mere consequence of ownership.
 In a number of cases the Court has held that luton to recover
registered land covered an action by the Torrens System may
not be barred by Inches.
 However, in Heirs of Anacleto B Nieto Municipality of
Meycauayan, Bulacan, un the Court had recognized the
jurisprudential thread regarding the exception to the foregoing
doctrine that while it is true that a Torrens title is indefeasible
and imprescriptible, the registered landowner may lose his
right to recover possession of his registered property by
reason of Inches.
 Thus, in Heirs of Bathing Acumen Heirs of Laruan to the
Court had held that while a person may not acquire title to the
registered property through continuous adverse possession,
in derogation of the title of the original registered owner, the
heir of the latter, however, may lose his right to recover back
17
 the possession of such property and the title thereto, by
reason of laches.
 In the more recent case of Bartola M Vda, de Tirona v.
Encarnacion, the Court similarly held that while jurisprudence
is settled on the imprescriptibly and indefeasibility of a
Torrens title, there is equally an abundance of cases where
the Court unequivocally ruled that registered owners may lose
their right to recover possession of property through the
equitable principle of laches.
 In Fernando, Jr. u Acuña, the Court also declared the right of
the registered owners as well as their successors in interest
to recover possession of the property as already a stale
demand and barred by laches.
Capacity to Acquire Ownership Through Acquisitive
Prescription
 As a rule, persons who are capable of acquiring property or
rights by other legal modes may acquire the same by means of
prescription.
 As a consequence, if just title is required in ordinary
acquisitive prescription, for example, the capacity to acquire
property by prescription shall be the same capacity required for
the particular title in question.
 Hence, if the just title is pursuant to a donation, the capacity
required is that of the donee;
 if it is by succession, the capacity to succeed, and if it is by
contract, the capacity to enter into contracts.
 But if just title is not required (in extraordinary prescription
for example), the capacity for possession is required.
 The foregoing rule shall apply also to minors and other
incapacitated persons. Hence, for purposes of ordinary
prescription where just title is required, the capacity to acquire
property by prescription shall be the same capacity required for
the particular title in question.
 For example, minors and other incapacitated persons are
qualified to become donees but acceptance shall be done
through their parents or legal representatives.
 For purposes of extraordinary prescription where just title is
not required, the capacity for possession is required.
 For example, even minor is qualified to acquire possession
of a a corporeal object through material occupation but he
may not acquire possession of a right because the latter
requires that he be possessed with full civil capacity. In case
of the latter, however, the minor may acquire ownership by
prescription through his parents, guardians or legal
representatives.
Occupation, as Mode of Acquiring Ownership
 Concept.and Requisites
 Occupation is a mode of acquiring ownership by the seizure or
apprehension of things corporeal which have no owner with the
intention of acquiring them and according to the rules laid down
by law
 It consists in taking possession of a thing over which no one
has a proprietary right.
 The rule of the law is res nullius cedit occupanti.
 Requisites:
 There are four essential conditions or requisites which must
coexist in order to give to occupation its full legal significance as
a mode of acquiring ownership:
1. The thing must be a res nullius-that is, a thing which either
never had an owner, or which, by virtue of a previous
abandonment (dereliction), has not an owner at the time of
its occupation
2. It must be appropriable by nature or one that can be seized
or apprehended. In other words, it must be corporeal
3. It must be brought into the actual possession or control of
the one professing to acquire it
18
 4. The person must acquire it with the intention of acquiring
ownership. He must therefore have the necessary capacity
to consent.
Animals, as Object of Appropriation
In General
 Wild beasts, birds, fishes, and in fact all animals which are still in
their natural state of freedom become the property of the captor
by virtue of occupation.
 This rule, of course, applies especially to hunting and
fishing.
 However, the right to hunt and to fish is regulated by special laws
Under Philippine law specifically RA No 9147, otherwise known
as the "Wildlife Resources Conservation and Protection Act":
R.A. No. 8650, otherwise known as the "Philippine Fisheries
Code of 1998 and Fisheries Administrative Order Nos 202 and
208) and international treaty (the Convention on International
Trade in Endangered Species of Wild Fauna and Flora or
CITES), the buying, using, gathering, killing, processing and/or
transporting of rare, threatened and endangered species are
prohibited.
 Hence, the rule on acquisition of ownership by virtue of
occupation stated in Article 713 of the NCC does not apply to
animals which are classified as rare, threatened or endangered
species.
Swarm of Bees
 The owner of a swarm of bees has a right to purse them to
another's land, with the obligation of indemnifying the possessor
of the latter for the damage.
 The law does not, however, authorize the owner of the swarm of
bees to enter an enclosed estate.
 In the case of the latter, it's necessary to obtain the permission
of the owner of the estate before entering the same.
 In case the owner of the swarm of bees fails to purse the warm
or if he initially makes a pursuit but he ceases to do so within two
consecutive days, the law considers him as to have abandoned
ownership of the swarm of bees in which case, the warm
becomes res nullius and ownership thereof may now be acquired
by the owner of the estate by way of occupation or the owner of
the estate fails to seize or capture the swarm of bees, the same
shall remain to be res nullius.
Wild Animals
Wild animals are those which are found in their state of natural
freedom.
 They are without an owner or res nullius.
 Hence, ownership thereof may be ac quired by occupation.
Pursuant to Article 560 of the NCC, wild animals are, however,
considered possessed only while they are under one's control.
 As a consequence, once they recover their natural freedom or
once they are restored to their original state of being free, they
ceased to be under one's possession.
 As a consequence, they will immediately regain their status of
being res nullius and their ownership may this be acquired by
another person through occupation.
Domesticated for Tamedi Animals
 Domesticated or tamed animals are those which were formerly
wild but which have been subdued and retained the habit of
returning to the premises of the possessor.
 They will be regarded an domesticated animals as long as they
retain such habit of returning to the premises of the possessor
19
 but once they lose said habit, they will immediately revert back to
their original status of being wild.
 As a consequence, they will re-acquire their original status of
being res nullius and may thus be acquired by another per son
by occupation.
 However, so long as they retain the habit of returning to the
premises of the possessor, the ownership over these animals is
not affected by the simple fact that they are no longer under the
control of the present possessor owner.
 Pursuant to Article 716 of the NCC, the possessor owner of
domesticated animals has a period of 20 days counted from the
occupation by another person within which to reclaim them if
after the expiration of this period the possess owner fails to
reclaim them, the ownership over the animals is considered to
have been abandoned Hence, they will now in be considered as
res nullius and they shall pertain to him who has caught and kept
them. In other words, the captor shall acquire ownership of the
animals by occupation
Domestic (or Tame) Animals
The foregoing rule on domesticated animals does not apply to
domestic animals, or those which are born and reared under the
control and care of man in the case of domestic animals, they
are considered as movable property.
 Hence, they are subject to the same rules governing the
acquisition of ownership over other movables.
 If they are lost their owner, as a rule, can recover them from the
present possessor without need of indemnifying the latter
unless they are acquired in good faith at a public sale.
 The ownership of domestic animals may not be acquired by
occupation unless they are abandoned by their owner.
 The ownership over them can be acquired, however, by
another per son through acquisitive prescription - the period of
prescription being four year if the pe r in in good faith or eight
years, in the event.
Hidden Treasure, as Object of Appropriation
A treasure, in the legal sense, in any hidden and unknown
deposit of money, jewelry, or other precious object the lawful
ownership of which does not appear It is considered, in law, as
res nullius and may thus be acquired by occupation.
 The right of the finder is regulated, however, by the provisions
of Article 438 of the NCC, in relation to Article 718 of the same
Code.
 Hence pursuant to these articles, the treasure belongs wholly
to the finder if found upon one own's ground but if found or
discovered by chance in another's property and the finder not
being a trespasser, the treasure is equally divided between the
finder and the owner of the ground.
Rule on Abandoned and Lost Property
 Abandoned property can be acquired by Occupation:
 Abandonment of things is the opposite of occupation.
 It takes place when the owner abandons the possession of a
thing with the intention of renouncing his ownership thereof.
 The effect of such abandonment is to make the thing a res
nullius the moment the abandonment is complete. Anyone may
therefore acquire ownership of the same by occupation.
Abandoned, lost and mislaid property, distinguished
 In the case of abandoned property, it is necessary that the spes
recuperandi (hope of recovery or recapture) is gone and the
animu revertendi intent to recover I given up.
 Thus, it has been held there is no real intention to abandon a
property when, as in the case of a shipwreck or a fire, things
are thrown into the sea or on the highway.
20
  The mere fact that the cargo is sunk with a shipwrecked at
sea by no means deprives the owner of said cargo of his
property therein.
 He still has the right to reclaim such property and to recover
the same if possible.
 In the case of lost and mislaid (misplaced) property, however,
the spes recuperandi and the animus revertendi are still alive.
Hence, its ownership is not yet lost by its owner.
 So long as the property is not under the control of another
person, the present owner does not lose both the ownership
and possession of the same.
 However, if the mislaid (misplaced property is already in the
control of another person, its possession is already deemed lost.
This is the difference between mislaid (misplaced property) and
lost property.
 But in the case of a lost property, note that it is only the
possession which is considered lost by the owner, not his
ownership thereof.
 The lost property is not, therefore, considered as res nullius but
as res alicujus,
 Hence, its owner ship may not be acquired by the finder
through occupation.
 The finder, far from becoming owner of the thing found, is
bound to return it to its previous owner, if known, or to
immediately de posit the same with the mayor of the city or
municipality where the finding has taken place, if the owner is
unknown.
 If the finder fails to comply with these procedural
requirements and ap propriates for himself the mov able
property he found, he shall be liable for the crime of theft.
 If the lost property is turned over to the mayor the latter is
then required to make a public announcement of such finding
for two consecutive weeks in a manner he deems best.
 If after six months, the owner does not appear, the thing
found, or its value, shall be awarded to the finder, with the
obligation to reimburse the expenses in curred in the
publication.
 It is only after compliance with the foregoing rules that the
finder shall acquire ownership of the thing found by
occupation. If the owner appears on time, he shall be obliged,
however, to pay, as a reward to the finder, one-tenth of the
sum or of the price of the thing found.
Intellectual Creation, as Mode of Acquiring Ownership
Concept
 Intellectual property refers to creations of the mind inventions,
literary and artistic work, and symbols, names, images, and
designs used in commerce Section 4.1 of RA No. 8293,
otherwise known as the "Intellectual Property Code of the
Philippines," defines the scope of the term intellectual property
rights," as follows:
1. Copyright and related right
2. Trademarks and service marks
3. Geographic indications
4. Industrial designs;
5. Patents,
6. Layout-designs (topographies) of integrated circuits and
7. Protection of undisclosed information.
Time of Acquisition of Ownership
 The author, the composer, the painter, the sculptor or other
artists, the scientists and the inventors acquire ownership over
their works from the moment of their creation even before the
same are published, copy righted or patented.
 Being the owner thereof, the creator has absolute control over
his work and he may do anything with it as he pleases, including
the right to share it with others.
21

 He also enjoys the exclusive right to its publication but this
exclusive right limited only to the first publication Hole placed
under the protection of the Copyright Law oner published, the
work is dedicated to the public and the author loses the
exclusive right to control subsequent publications by others.
 The special law governing patents and copyright RA No. 8293,
otherwise known as the "Intellectual Property Code of the
Philippines.
Ownership Over Letters
 With respect to the ownership of letters and other private
communications in writing a distinction must be made between
the material or physical object the letter itself and the ideas or
thought contained in the letter its contents.
 The physical object (the letter itself is owned by the person to
whom it is addressed and delivered the recipient but the ideas or
thoughts contained in the letter the contents are owned by the
author or writer (the sender).
 As a consequence, while the recipient may have the control and
possession of the physical letter itself by virtue of his ownership
of the same, the author's consent is required in case of
publication or dissemination of the letter.
 In addition, the copyright also be. longs to the author or writer
(the sender) If the author's consent is not obtained in the
publication and dissemination of the contents of the letter the
latter may seek injunctive relief from the courts, in addition to
his right to recover damages.
 However, if the public good or the interest of justice so
requires, the art may authorize the publication or
dissemination of a letter or other private communications.
Title I - Donation
Chapter 1: Nature of Donation (Arts. 725- 734, NCC 224)
Concept, Requisites and Classifications
Definition
 It is an act of liberality whereby a person dispones gratuitously of
a thing or right in favor of another, who accepts it.
 It may also be defined as "a gratuitous contract whereby the
donor divests himself, at present and irrevocably, of the thing
given in favor of the done
 The one who donates is called the donor and the one who
receives the donation is called the done.
Essential Elements of Donation
 Elements
1.The essential reduction of the patrimony of the donor
2.The increase in the patrimony of the done, and
3.The intent to do an act of liberality or animus donandi.
 Application
 In Republic v Guzman, for example, the Court held that there
was no donation since there was no animus donandi when the
mother (an American citizen) executed the deeds of quitclaim in
favor of her on false an American citizen.
 The Court noted that the mother merely contemplated a waiver
of her rights, title, and interest over the subject lands in favor of
her son, and not a donation.
 The intention of the mother was the preservation of the really
within the bloodline of the deceased husband a former Filipino
citizen but who died as a naturalized American citizen) from
22
 where the property originated, over and above the benefit that
would accrue to the son by reason of her renunciation
 According to the Court, the element of animus donandi
 Therefore was missing.
Donative Intent (Animus Donandi)
 Donative intent is a creature of the mind.
 It cannot be perceived except by the material and tangible act
which manifest its presence.
 This being the case, donative intent is presumed present when
one rives a part of one's patrimony to another without
consideration.
 Donative intent is not negated when the person donating has
other intentions, motives or purposes which do not contradict
donative intent.
 Thus, in Abello v CIR the Supreme Court held that the fact that
the donors would somehow in the future benefit from the
election of the candidate to whom they made campaign
contributions, in no way amounts to a valuable consideration so
as to remove political contributions from the purview of a
donation as their candidate was under no obligation to benefit
them.
 For a donation to exist, however, the intent to donate must be
effectively carried out.
 Hence, a mere declaration of an intention or desire to donate is
not a donation.
 In the Jutic case, for example, Arsenio Seville executed an
affidavit expressing his intention or desire to give to his brother
Melquiades Seville his properties in the event of his death at
some future time.
 The Court concluded that there was no donation be it inter
vivos or mortis causa, as such intention or desire was not
effectively carried out after the execution of the affidavit.
Donation, As a Contract:
 All the essential elements of a contract (consent, object and
cause) are present in a donation.
 Hence, there is no doubt that donation is a contract. Like any
contract, donation also requires the concurrence of the
reciprocal consent of the parties and it does not become
perfect until it is accepted by the donee.
 In other words, there is a concurrence of offer (coming from the
donor) and acceptance (coming from the donee), consequently,
a contract.
 It is for this reason that donations inter vivos are likewise
governed by the general provisions on contracts and
obligations in all that is not determined under the title of the
New Civil Code on donations,
 The fact that the New Civil Code in Article 725 use the term "act"
instead of "contract" does not militate against the view presented
above because this is merely a consequence of Emperor
Napoleon's era who could not conceive of contract without
reciprocal obligation, thereby confusing bilaterality of consent
and bilaterality of obligation.
 Donation is a bilateral act, and, as such, is a contract, but it is a
unilateral contract which imposes obligations only on the donor.
Donation and Mode of Acquiring and Transmitting
Ownership
 Donation is one of the modes of acquiring ownership.
 Hence, it is not simply a title which requires tradition delivery
in order that ownership may be effectively transmitted to the
done.
 The preceding discussion in Section 224 4 classifying donation
as a contract is not in conflict with the present view that donation
is also a mode of acquiring ownership.
23
  Pursuant to the second paragraph of Article 712 of the NCC,
not all contracts require delivery in order to transfer ownership
since the law requires tradition in consequence of certain
contracts" only and not in all contracts, thus admitting the fact
that there are contracts which do not require tradition
(delivery) in order to transfer ownership.
 A good example of such contract which does not require
tradition (delivery) in order to transfer ownership is the
gratuitous contract of donation.
 Hence, it may be named that our Civil Code treats donation a
contract that transfers ownership.
 As explained by the Court in L a donation does not need to be
completed by tradition since Article 712 prescribes that
ownership and rights therein are acquired and transmitted by
donation succession and in consequence of certain contracts
by tradition, thereby implying that donation is not one of the
contracts requiring tradition.
 As a mode of acquiring ownership, donation results in an
effective transfer of title over the property from the donor to the
door and the donation is perfected from the moment the donor
knows of the acceptance by the donee and once a donation is
accepted the donee become the absolute owner of the property
donated.
Classification of Donation
 As to their taking effect: Mortis Causa or Inter Vivos
 Donations Mortis Causa
 If the donation is made in contemplation of the donor's death,
meaning that the full or naked ownership of the donated
properties will pass to the donee only because of the donor's
death, then it is at that time that the donation takes effect, and it
is a donation mortis causa which should be embodied in a last
will and testament.
 Donations Inter Vivos
 But if the donation takes effect during the donor's lifetime or
independently of the donor's death meaning that the full or naked
ownership (nuda proprietas) of the donated properties passes to
the done during the donor's lifetime, not by reason of his death
but because of the deed of donation, then the donation is inter
vivos.
Classifications of Donation Inter Vivos Donations inter vivos,
on the other hand may be classified according to purpose or
cause into.
Pure or simple donation
 It is one where the underlying cause is plain gratuity or pure
liberality (no strings attached.)
 This is donation in its truest form.
Remuneratory or compensatory donation:
 It is one made for the purpose of rewarding the donee for past
services, which services do not amount to a demandable debt.
Conditional or modal donation:
 It is one where the donation is made in consideration of future
services where the donor imposes certain conditions, limitations
or charges upon the donee, the value of which is inferior than
that of the donation given.
Onerous donation
 That which imposes upon the donee a reciprocal obligation or to
be more precise, this is the kind of do nation made for a valuable
consideration, the cost of which is equal to or more than the
thing donated of all the foregoing classifications, donation of the
onerous type are the most di tinct.
 This is because, unlike the other forms of donation, the
validity of and the rights and obligations of the parties
involved in an onerous donation is completely governed not
by the law on donations but by the law on contracts.
24
 indirectly by means of a reserved power in the donor to dispose of
the properties conveyed;
Donations Mortis Causa
 Concept (3) That the transfer should be void if the transferor should survive
 Note that the New Civil Code does not use the term donation the transferee.
mortis causa.
 According to Manresa, a transfer mortis causa, which should
be embodied in a last will and testament, should not be called Distinguished From Donations Inter Vivos:
donation martis causa since it is in reality a legacy.
 The term "donation mortis causa" as commonly employed is Distinction:
merely a convenient name to designate those dispositions of
 It is the time of effectivity which distinguishes a donation inter
property that are void when made in the form of donations.
vivos from a donation mortis causa.
 And the effectivity is determined by the time when the full or
 Article 728 of the New Civil Code merged donations mortis
naked ownership (dominium plenum or dominium directum)
causa with testamentary dispositions and thus suppressed the
of the donated properties is transmitted to the donees.
said donations as an independent legal concept.
donation mortis causa donation is inter vivos
 A donation mortis causa partakes of the nature of testamentary If the donation is made in But if the donation takes effect
provision contemplation of the donor's during the donor's lifetime or
 As such, the same must be executed in accordance with the death, meaning that the full or independently of the donor's
requisites on solemnities of wills and testaments under Articles naked ownership of the death, meaning that the full or
805 and 806 of the New Civil Code; donated properties will pass to naked ownership (nuda
 otherwise, the donation is void and would produce no effect the donee only because of the proprietas) of the donated
 Unless and until the donation is probated, i.e., proved and donor's death, then it is at that properties passes to the donee
time that the donation takes during the donor's lifetime, not
allowed in the proper court. no right to the subject property has
effect, and it is a donation by reason of his death but
been transmitted to the donee. mortis causa which should be because of the deed of
embodied in a last will and donation
testament.
Characteristics of Donations Mortis Causa: Consequences:

(1) It conveys no title or ownership to the transferee before the death The distinction between a transfer inter vivos and mortis causa is
of the transferor or what amounts to the same thing, that the important as the validity or revocation of the donation depends upon
transferor should retain the ownership (full or naked) and control of its nature.
the property while alive;
Formal Requirement:
(2) That before his death, the transfer should also be revocable by
the transferor at will, ad nutuum; but revocability may be provided for donation mortis causa donation is inter vivos
it must be executed and it must be executed and

25
 accepted with the formalities
prescribed by Articles 748 and
749 of the NCC, except when it
is onerous in which case the
rules on contracts will apply.
Revocation:
donation mortis causa
An essential characteristic of
dispositions mortis causa is that
the conveyance or alienation
should be (expressly or by
necessary implication)
revocable ad nuturn, i.e., at the
discretion of the grantor or so-
called "donor," simply because
the latter has changed his mind.
Austria-M'agat v. CA
 Court held that
irrevocability is a quality
absolutely incompatible
with the idea of
conveyances mortis
causa, where
revocability is precisely
the essence of the act.
If the donor reserves the right to
revoke it or if he reserves the
right to dispose of all the
properties purportedly donated,
there is no donation
If the disposition or conveyance
or transfer takes effect upon the
donor's death and becomes
accepted with the formalities
prescribed by Articles 748 and
749 of the NCC, except when it
is onerous in which case the
rules on contracts will apply.
donation is inter vivos
 once accepted, becomes
irrevocable.
 As observed by Manresa,
upon acceptance by the
done, the donor can no
longer withdraw, and he can
be compelled compelled to
comply with his offering or to
deliver the things he wanted
to donate.
 Consequently, it may not be
revoked unilaterally or by the
sole and arbitrary will of the
donor.
The donation inter vivos,
however, may be made
revocable upon the fulfillment of
resolutory conditions, or may be
revoked only for the reasons
provided in Articles 760, 764
and 765 of the Civil Code.
Bautista, et al. v. Sabiniano
 except in the instances
expressly provided by law,
such as the subsequent birth
of children of the donor,
failure by the donee to
comply with the conditions
irrevocable only upon his death, imposed, ingratitude of the
it is not inter vivos but a mortis donee and reduction of the
causa donation donation in the event of
inofficiousness thereof, a
donation is irrevocable.
How to Distinguish One from the Other:
Basic Rule:
Crucial in determining whether the donation is inter vivos or mortis
causa is the determination of whether the donor intended to
transfer ownership over the properties upon the execution of
the deed.
If the donor intends to transfer the ownership of the property
donated upon the execution of the donation, as reflected from the
provisions contained in the donation, then it is inter vivos, otherwise,
it is merely mortis causa, or made to take effect after death.
When donee's enjoyment of the property donated is postponed
until after the donor's death:
 If the donor intends that the donation shall take effect during
his lifetime, the donation is inter vivos, although the property
may not be delivered until after the donor's death. In this
case, the fruits of the property from the time of the
acceptance of the donation shall pertain to the donee, unless
the donor provides otherwise.
 Likewise, the fixing of an event or the imposition of a
suspensive condition, which may take place beyond the
natural expectation of life of the donor, does not destroy the
nature of the act as a donation inter vivos, unless a contrary
intention appears.
 Thus, he who makes the donation effective upon a certain
date, even though to take place at his death, disposes of that
26
 which he donated and he cannot afterwards revoke the
donation nor dispose of the said property in favor of another.
How to ascertain intention of donor:
 In ascertaining the intention of the donor, all of the deed's
provisions must be read together.
 Apart from its language, the real nature of a deed may
likewise be ascertained from the intention of the parties as
demonstrated by the circumstances attendant upon its
execution.
 Hence, the designation of the donation as mortis causa, or a
provision in the deed to the effect that the donation is "to
take effect at the death of the donor" are not controlling
criteria; such statements are to be construed together with
the rest of the instrument, in order to give effect to the real
intent of the transferor
 In case of doubt the conveyance should be deemed a
donation inter vivos rather than mortis causa, in order to
avoid uncertainty as to the ownership of the property subject
of the deed.
Illustrative Cases:
Laureta v. Mata and Magno
 the deed of donation provided that the donor was donating
mortis causa certain properties as a reward for the donee's
services to the donor and as a token of the donor's affection
for him.
 The donation was made under the condition that the donee
cannot take possession of the properties donated before the
death of the donor", that the donee should cause to be held
annually masses for the repose of the donor's soul, and that
he should defray the expenses for the donor's funeral.
 It was held that said donation was inter vivos despite the
statement in the deed that it was mortis causa.
 The donation was construed as a conveyance in praesenti
("a present grant of a future interest") because it conveyed to
the donee the title to the properties donated "subject only to
the life estate of the donor" and because the conveyance
took effect upon the making and delivery of the deed.
 The acceptance of the donation was a circumstance which
was taken into account in characterizing the donation as
inter vivos.
Balaqui u. Dongso
 the deed of donation involved was more confusing than that
found in the Laureta case.
 In the Balaqui case, it was provided in the deed that the
donation was made in consideration of the services rendered
to the donor by the donee; that "title" to the donated
properties would not pass to the donee during the donor's
lifetime, and that it would be only upon the donor's death that
the donee would become the "true owner" of the donated
properties.
 However, there was the stipulation that the donor bound
herself to answer to the donee for the property donated and
that she warranted that nobody would disturb or question the
donees right.
 Notwithstanding the provision in the deed that it was only
after the donor's death when the "title" to the donated
properties would pass to the donee and when the donee
would become the owner thereof, it was held in the Balaqui
case that the donation was inter vivos.
 It was noted in that case that the donor, in making a
warranty, implied that the title had already been conveyed to
the donee upon the execution of the deed and that the donor
merely reserved to herself the "possession and usufruct" of
the donated properties.
27
Concepcion v. Concepcion
 it was provided in the deed of donation, which was also
styled as mortis causa, that the donation was made in
consideration of the services rendered by the donee to the
donor and of the donor's affection forthe donee; that the
donor had reserved what was necessary for his
maintenance, and that the donation “ha de producir efectos
solamente por muerte de la donante"”
 It was ruled that the donation was inter vivos because the
stipulation that the donation would take effect only after the
donor's death "simply meant that the possession and
enjoyment, of the fruits of the properties donated should take
effect only after the donor's death and not before."
Void Mortis Causa Transfers Because Not In Form of Wills:
In the following cases, the conveyance was considered a void mortis
causa transfer because it was not cast in the form of a last will and
testament as required in Article 728 of the NCC:
(a) Where it was stated in the deed of donation that the donor
wanted to give the donee something to take effect after his
death" and that this donation shall produce effect only by and
because of the death of the donor, the property herein
donated to pass title after the donor's death to.
In the Padilla case, the donation was regarded as mortis
causa although the donated property was delivered to the
donee upon the execution of the deed and although the
donation was accepted in the same deed.\
(b) Where it was provided that the donated properties would be
given to the donees after the expiration of thirty days from
the donor's death, the grant was made in the future tense,
and the word "inherit" was used. The Court explained that
the verb "to inherit" clearly implies the acquisition of property
only from and after the death of the alleged donors.
(c) Where the alleged donation expressly reserved the right to
dispose of the properties conveyed at any time before his
death, and limited the donation to whatever property or
properties left undisposed by (the donor) during (his)
lifetime." The Court explained that the alleged donor clearly
retained his ownership until his death and the reservation is
tantamount to a reservation of the right to revoke the
donation.
(d) Where the circumstances surrounding the execution of the
deed of donation reveal that the donation could not have
taken effect before the donor's death and the rights to
dispose of the donated properties and to enjoy the fruits
remained with the donor during her lifetime
(e) Where it was stated in the deeds of donation that the
donations shall become effective upon the death of the
donor" and that in the event that the donee should die before
the donor, the donation shall be deemed automatically
rescinded and of no further force and effect." The phrase "to
become effective upon the death of the donor" admits of no
other interpretation but that the donor did not intend to
transfer the ownership of the properties to the donee during
her lifetime.In addition, the deeds expressly provide that the
donation shall be rescinded in case the donee predeceases
the donor, which is one of the decisive characteristics of a
donation mortis causa.
Where Conveyance was Held to be Inter Vivos:
In the following cases, on the other hand, the conveyance was
considered a valid donation inter vivos, hence, essentially
irrevocable:
(a) When the attending circumstances in the execution of the
subject deed demonstrated the intent of the donor to transfer
the ownership over the properties upon its execution since
prior to the execution of the donation inter vivos, the donor
spouses already executed three donations mortis causa.
Such fact, according to the Court, shows that the donor
28
 spouses were aware of the difference between donations
inter vivos and mortis causa.
In addition, the donor made reservation of lifetime usufruct
and sufficient properties for their maintenance which
indicated that the donor intended to transfer the naked
ownership over the properties. Lastly, the fact that the donee
accepted the donation is an indication that the donation is
inter vivos because donations mortis causa are not required
to be accepted by the donees during their lifetime.
(b) Where the donation expressly provides that it is irrevocable
although there are provisions in the deed which state that the
same will only take effect upon the death of the donor and
that there is prohibition to alienate, encumber, dispose, or
sell the same.
Citing the earlier case of Bonsato v. Court of Appeals,the
Court explained that where the donation per the deed of
donation would also take effect upon the death of the donor
with reservation for the donor to enjoy the fruits of the land,
said statements only mean that "after the donor's death, the
donation will take effect so as to make the donees the
absolute owners of the donated property, free from all liens
and encumbrances; for it must be remembered that the
donor reserved for himself a share of the fruits of the land
donated.
On the issue of prohibition to alienate, the Court, citing the
case of Gestopa v. Court of Appeals , held that "the
prohibition to alienate does not necessarily defeat the inter
vivos character of the donation.
It even highlights the fact that what remains with the donor is
the right of usufruct and not anymore the naked title of
ownership over the property donated.
In the Austria-Magat case, the provision in the deed of
donation that the donated property will remain in the
possession of the donor just goes to show that the donor has
given up his naked title of ownership thereto and has
maintained only the right to use (Jus utendi) and possess
(fus possidendi) the subject donated property.
The Court also noted the existence of an acceptance clause
which is a mark that the donation is inter vivos.
(c) Where the donation expressly declares that it is irrevocable
and the owner makes reservation for himself, during his
lifetime, of the owner's share of the fruits or produce, the
deed is a donation inter vivos although it provides that the
donation shall become effective after the death of the donor.
The Court explained that the express irrevocability of the
donation is a quality absolutely incompatible with the idea of
conveyances mortis causa where revocability is of the
essence of the act.
(d) In the Bonsato case, the Court further adds that the
reservation made by the donor would be unnecessary if the
ownership of the donated property remained with him and
that the phrase "that after death of the donor the aforesaid
donation shall become effective" only means that after the
donor's death, the donation will take effect so as to make the
donees absolute owners of the donated property.
(e) When the deed of donation provides that the donor will not
dispose or take away the property donated (thus making the
donation irrevocable), he is in effect making a donation inter
vivos.
He parts away with his naked title but maintains beneficial
ownership while he lives.
It remains to be a donation inter vivos despite an express
provision that the donor continues to be in possession and
enjoyment of the donated property while he is alive.
Provision Prohibiting Donee to Dispose:
29
  A donation which purports to be one inter vivos but withholds
from the donee the right to dispose of the donated property
during the donor's lifetime is in truth one mortis causa.
 In a donation mortis causa "the right of disposition is not
transferred to the donee while the donor is still alive."
 Note, however, that a prohibition to alienate may not
necessarily defeat the inter vivos character of the donation.
 As explained earlier, in ascertaining the intention of the
donor, all of the deed's provisions must be read together
 Thus, in Austria-Magat u. Court of Appeals while there is a
prohibition to alienate the donated property, the deed, on the
other hand expressly declares that the donation is
irrevocable.
 According to the Court in the Austria-Magat case, the
prohibition to alienate does not go against the irrevocable
character of the donation.
 Such provision, adds the Court, is only necessary assurance
that during the donor's lifetime, the latter would still enjoy the
right of possession over the property; but, his naked title of
ownership has been passed on to the donees.
 In Gestopa v. Court of Appeals the Court explained that
the provision in the deed prohibiting the alienation of the
donated property even highlights the fact that what remains
with the donor is the right of usufruct and not anymore the
naked title of ownership over the property donated.
Provision Authorizing Donor to Alienate
 According to the Court, if the are no signs
contradicting or limiting the unqualified and
unrestricted right of the donor to alienate the
conveyed property in favor of other persons of her
choice at anytime that she should wish to do so, the
same is a true conveyance mortis causa since it
Classifications of Donations Inter Vivos
indirectly recognizes the donor's power to nullify the
conveyance to the alleged donee whenever the
donor wished to do so, for any reason or for no
particular reason at all.
 This faculty, according to the Court, is characteristic
of conveyances post mortem or mortis causa: for the
right of the transferor to alienate the "donated"
property to someone else necessarily imports that
the conveyance to the "donee" will not become final
and definite in favor of the latter until the death of the
"donor."
 Where the power to indirectly revoke is hedged in by
the specification that the donor could dispose of the
property only to satisfy her needs, the donation must
be held to partake of the nature of a conveyance
inter vivos
 In Puig case, while there is a clause that the donor
reserved her right "to mortgage or even sell the
donated property, when and if she should need
funds to meet her own needs," the Court held that
such donation is inter vivos
 According to the Court, the last sentence of the
stipulation appears incompatible with the grantor's
freedom to revoke a true conveyance mortis causa,
a faculty that is essentially absolute and
discretionary, whether its purpose should be to
supply her needs or to make a profit, or have no
other reason than a change of volition on the part of
the grantor-testator.
 If the donor, says the Court, wished or intended to
retain the right to change the destination of her
property at her sole will and discretion, there was no
reason for her to specify the causes for which she
could sell or encumber the property covered by her
bounty.
30
 Pure (Simple) and Remuneratory Donations
Pure or Simple Donation
 It is one where the
underlying cause is plain
gratuity or pure liberality
(no strings attached).
 This is donation in its
truest form.
In the case of simple (pure) and remuneratory donations, the
rules on donations shall primarily govern and the provisions
of the Civil Code on obligations and contracts shall apply in a
suppletory manner.
As a consequence:
Remuneratory Donation
It is one made for the
purpose of rewarding the
donee for past services,
which services do not
amount to a demandable
debt.
 it is necessary that the
services to be repaid be
not demandable
obligations, otherwise, the
so-called donation is in
reality paynient.
 It is likewise necessary
that the services must
have already been
performed for if the
services are still to be
performed in the future,
the donation is onerous.
valid because the illegal or impossible conditions are simply
considered as not imposed and will, thus, be disregarded.
Conditional (Modal) and Onerous Donations:
Conditional (or Modal) Onerous Donation
Donation
It is one where the donation That which imposes upon
is made in consideration of the donee a reciprocal
future services or where the obligation or, to be more
donor imposes certain precise, this is the kind of
conditions, limitations or donation made for a
charges upon the donee, valuable consideration, the
the value of which is inferior cost of which is equal to or
than that of the donation more than the thing
given. donated..
When the donation is A modal donation, on the
onerous, it is completely other hand, shall be
governed not by the law on governed by the law on
donations but by the law on contracts up to extent of the
contracts. burden and by the law on
donations as regards that
portion which exceeds the
value of the burden
imposed
Note that while Article 733 of the NCC uses the term "remuneratory
donations," the law is actually referring to modal donations. The use
of the term "remuneratory" in said article is improper.
As a consequence:

(a) Simple (pure) and remuneratory donations shall follow the (a) As to formalities, an onerous donation shall not be governed by
formalities required in Articles 748 and 749 of the NCC; and Articles 748 and 7491554 but by the general rule on contracts
(b) In addition, Article 727 of the NCC expressly provides that stated in Article 1356 of the NCC which states that "contract shall
"illegal or impossible conditions in simple and remuneratory be obligatory in whatever form it may have been entered into."
donations shall be considered as not imposed
In other words, if illegal or impossible conditions are imposed in
a simple or remuneratory donation, then the donation remains

31
(b) Since an onerous donation is governed by the law on obligations
and contracts, if an impossible or illegal condition is imposed in
such kind of donation, the obligation thus created shall be void
pursuant to the provisions of Article 1183 of the NCC.
Perfection of Donation
When Perfected:
Effects of Perfection:
 Like any other contract, donation also follows the theory of
cognition.
 Thus, Article 734 of the NCC provides that "the donation is
perfected from the moment the donor knows of the acceptance
by the donee.
 Before notice of the acceptance, therefore, the offerer (donor) is
not bound and may withdraw the offer of donation.
 Such revocation will have the effect of preventing the perfection
of the donation, although it may not be known to the offeree
(donee).
 The power to revoke is implied in the criterion that no donation
exists until the acceptance is known.
 As the tie or bond springs from the meeting or concurrence of
the minds, since up to that moment, there exists only a
unilateral act, it is evident that he who takes it must have the
power to revoke it by withdrawing his proposition.
 In the same manner, the acceptance made by the (donee) may
be revoked before it comes to the knowledge of the offeror
(donor).
 Since donation is also a contract, the pronouncement by the
Court in Jardine Davies, Inc. v. Court of Appeals may also be
applied: For a contract to arise, the acceptance must be made
known to the offeror. Accordingly, the acceptance can be
withdrawn or revoked before it is made known to the offeror"
Time for Making of Acceptance:
Acceptance is Indispensable:
 It is explicit in Article 725 of the NCC that acceptance is
necessary in a donation.
 Without acceptance, the donation is not perfected.
 The rationale behind the requirement of acceptance is that
nobody is obliged to receive a benefit against his will.
 A donation, as a mode of acquiring ownership, results in an
effective transfer of title over the property from the donor to
the donee and once a donation is accepted, the donee
becomes the absolute owner of the property donated,
notwithstanding the condition imposed by the donee.
 Once the donation is accepted, it is generally considered
irrevocable and the donee becomes the absolute owner of
the property donated.
 As observed by Manresa, upon acceptance by the donee,
the donor can no longer withdraw, and he can be compelled
to comply with his offering or to deliver the things he wanted
to donate.
 Consequently, it may not be revoked unilaterally or by the
sole and arbitrary will of the donor.
 The donation, however, may be made revocable upon the
fulfillment of resolutory conditions, or may be revoked only
for the reasons provided in Articles 760, 764, and 765 of the
Civil Code.
 As explained in Bautista, et at. v. Sabiniano, except in
instances expressly provided by law, such as the
subsequent birth of children of the donor, failure by the
donee to comply with the conditions imposed, ingratitude of
the donee and reduction of the donation in the event of
inofficiousness thereof, a donation is irrevocable."
32
  The acceptance must be made during the lifetime of the Who May Donate:
donor and of the donee.
To be a donor, the law requires that:
 The foregoing rule must, however, be interpreted in
1. a person must be in possession of the capacity to contract
conjunction with the provisions of Articles 734 and 1323 of
2. the capacity to dispose of his property and
the NCC.
3. is not specifically prohibited to make a donation.
 As earlier discussed, the Civil Code follows the theory of
cognition even insofar as donations are concerned pursuant
 Like any other contract, an agreement of the parties is essential.
to Article 734 which provides that "the donation is perfected
Consent in contracts presupposes the following requisites:
from the moment the donor knows of the acceptance by the
1. it should be intelligent or with an exact notion of the matter to
donee."
which it refers;
 Upon the death of either the donor or the donee prior to the
2. it should be free; and
perfection of the donation, the offer of donation, however,
3. it should be spontaneous.
becomes ineffective.
 This is clear from the provisions of Article 1323 of the NCC
which states that an offer becomes ineffective upon the
death, civil interdiction, insanity, or insolvency of either party  The parties’ intention must be clear and the attendance of a vice
before acceptance is conveyed." of consent, like any contract, renders the donation voidable.
 Article 1323 applies to donation in view of Article 732 of the  The provisions of Article 735 on capacity to donate must be
NCC which makes applicable the provisions on obligations interpreted, however, in conjunction with the provisions of Article
and contracts to donation in a suppletory manner. 751 which states that "donations cannot comprehend future
 Such being the case, an acceptance made by the donee property."
during the lifetime of both the donor and the donee will not  Future property includes all property that belongs to others at
result in a perfected donation if prior to the donor gaining the time the donation is made, although it may or may not later
knowledge of such acceptance, either him (the donor) or the belong to the donor.
donee dies. o It cannot be donated, because it is not at present his
property, and he cannot dispose of it at the moment of
making the donation.
o In other words, the law requires that the donor be the owner
of the property donated at the time of the donation,
otherwise, such donation is void, even if accepted, following
the rule that no one can give what he does not have" —
[Title III — Donation] nemo dat quod non habet
[Chapter 2: Persons Who May Give or Receive a Donation]
(Arts. 735 - 749, NCC)

 This must be the rule because donation, under the Civil

Capacity to Make Donations Code, is a mode of acquiring ownership.

33
  As a mode of acquiring ownership, it results in an effective
transfer of title over the property from the donor to the donee
Sufficiency of Juridical Capacity:
and once a donation is accepted, the donee becomes the
absolute owner of the property donated.
Time of Determining Donor's Capacity:
 The donor's capacity shall be determined as of the time of
the making of the donation.
 The phrase "making of the donation" must be held to mean
"perfection of the donation."
 Applying the provisions of Article 1332, if the donor is
capacitated at the time he makes the donation, his
subsequent incapacity by reason of civil interdiction, insanity
or insolvency before acceptance is conveyed will render the
offer ineffective, thus preventing the perfection of the
donation.
 Following the provisions of Article 734 of the NCC, the
donation is not yet perfected at any time before acceptance
is conveyed.
 Hence, if the offer becomes ineffective before acceptance is
conveyed, such supervening event will prevent the meeting
of the offer and the acceptance — thus preventing the
perfection of the donation.
Legal Impossibility of Double Donations:
 Article 744 of the NCC seems to suggest that there can be a
case of "double donations" to different donees with opposing
interest.
 This is not, however, legally possible in this jurisdiction.
 Note that the rule on double sales finds no relevance in an
ordinary donation where the law requires the donor to have
ownership of the thing or the real right he donates at the time
of its perfection since a donation, unlike a sale, constitutes a
mode, not just a title in an acquisition and transmission of
ownership.
Capacity of the Donee
 The law does not require that the donee must possess
capacity to act, which is defined as the power to do acts with
legal effect," it being sufficient that he must possesses
juridical capacity or the fitness to be the subject of legal
relations."
 So long as the donee possesses juridical capacity and not
specially disqualified by law, he may accept donations.
 Stated otherwise, all persons, whether natural or juridical,
who are not specially disqualified by law may become
donees.
 Hence, minors, persons who cannot enter into a contract
and even conceived and unborn children may become
donees.
 A conceived child, although as yet unborn, is given by law a
provisional personality of its own for all purposes favorable to
it.
 Since donation is favorable to the foetus, provided it be pure
or simple in nature, the foetus has the juridical personality to
become a donee.
 The personality of a conceived child, however, is provisional
or conditional in character such that it is required to be born
later with the conditions specified in Article 41 of the New
Civil Code.
 If the foetus had an intra-uterine life of at least seven
months, it is sufficient that it is alive after the cutting of the
umbilical cord.
 The foetus will then be considered a person even if it
eventually dies.
 In such situation, the donation will remain valid.
 But if the foetus is already dead at the time of compete
delivery, its personality disappears which will render the
donation invalid for lack of a donee.
34
  If the foetus, on the other hand, had an intrauterine life of
less than seven months, it is not deemed born if it dies within
24 hours after its complete delivery
 In such a case, the donation will become invalid for lack of a
donee. But if the foetus survives for at least 24 hours, the
foetus will then be considered a person even if it eventually
dies.
 In such situation, the donation will remain valid. While
minors, other incapacitated persons and conceived and
unborn children may become donees, the law requires that
the acceptance of the donation must be made through their
parents or legal representatives
 Notwithstanding the language of Article 741 of the NCC,
however, it is still believed that if what is donated is a
personal property the value of which does not exceed five
thousand pesos and the donation is pure, a minor or
incapacitated person referred to in said article may validly
receive such donation when made orally and simultaneously
delivered.
 However when the donation requires a written acceptance,
whether in a private or public instrument, the provisions of
Article 741 should strictly apply.
Effect of Unauthorized Acceptance:
 The law requires that the donee must accept the donation
personally, or through an authorized person with a special
power for the purpose, or with a general and sufficient
power;"1otherwise, "the donation shall be void."
 In other words, a donation may not be accepted by a person
who is not authorized to do so, either by the donee or by law
 In a donation which is not accepted in the manner provided
for in Article 745, the unauthorized acceptance will not result
in a perfected donation.
Persons Disqualified to Become Donees:
 Persons who are disqualified to become donees are those to
whom donations cannot be made by express provisions of
law.
Hence, the following persons are disqualified to become
donees:
1. Those who were guilty of adultery or concubinage at the time
of the time of the donation.
 Donations made between persons who were guilty of
adultery or concubinage at the time of the donation shall be
void
 No previous criminal conviction is necessary since the guilt
of the donor and the donee may be proved by
preponderance of evidence in a civil action for declaration of
nullify of the donation.
 Article 739 of the NCC does no t apply to case where the
alleged concubine did not know that the man was married.
To be guilty of concubinage, the woman must know the man
to be married.
 The same principle will likewise apply to the man accused of
committing the crime of adultery.
2. Those who were found guilty of the same criminal
offense, if the donation is made in consideration thereof.
 Par. 2 of Article 739 contemplates of a principal by
inducement and a principal by direct participation. If
a donation is made between these two persons in
consideration of the commission of a crime, such
donation shall be void.
 In par. 2 of Article 739, unlike in par. 1, a previous
criminal conviction is necessary since the law uses
the phrase "those xxx found guilty of the same
criminal offense." In addition, the last paragraph of
Article 739 refers only to par. 1 when it authorizes
35
 the proving of the guilt of the donor and donee by donations because no attesting witnesses are required in
mere preponderance of evidence. donation inter vivos.

3. Public officers or their spouses, descendants and In relation to Article 1027, the following persons are disqualified
ascendants, if the donation is made by reason of their to become donees under the provisions of Article 740 of the
office. NCC:
 When the donation is made to a public officer or his
(1) The priest who heard the confession of the (donor) during his last
or her spouse, descendants or ascendants, the
illness, or the minister of the gospel who extended spiritual aid to
donation is likewise void.
him during the same period
 While par. 3 of Article 739 refers only to the "wife,"
(2) The relatives of such priest or minister of the gospel within the
this should be construed as referring to the
fourth degree, the church, order, chapter, community,
"spouse" so as to include the husband.
organization, or institution to which such priest or minister may
belong;
4. Those who are incapacitated to succeed by will.
(3) A guardian with respect to (donations) made by a ward in his
 Articles 1027 and 1032 of the NCC enumerate those
favor before the final accounts of the guardianship have been
persons who are incapacitated to succeed by will.
approved, even if the (donor) should die after the approval
However, the disqualifications contemplated in
thereof; nevertheless, any (donations) made by the ward in favor
Article 740 extend only to those persons who are
of the guardian when the latter is his ascendant, descendant,
incapable of succeeding by virtue of Article 1027 and
brother, sister, or spouse, shall be valid;
do not extend to those persons disqualified under
(4) Any physician, surgeon, nurse, health officer or druggist who took
Article 1032.
care of the (donor) during his last illness; and
(5) Individuals, associations and corporations not permitted by law to
(receive donations).
 As explained by the late Senator Tolentino, a donation made to a
person who falls under the provisions of Article 1032 would be
valid, because a testamentary provision made in favor of such a
 The spouses, if the donation is between them and made during the
person after the testator has knowledge of the act of
marriage, whether the donation be made directly or indirectly,
unworthiness would constitute a pardon under Article 1033.
except moderate ones given on the occasion of any family
 On the other hand, if the donation has already been made when
rejoicing.
the cause of unworthiness occurs, the donation is not revoked,
 Those who are living together as husband and wife without a valid
because donations inter vivos are revoked only by the causes
marriage, if the donation is between them and made during their
mentioned in Articles 760, 764 and 765.
cohabitation, whether the donation be made directly or indirectly.
 With respect to Article 1027, it is quite obvious that par. no. (4),
which speaks of "attesting witnesses," is not applicable to

Formalities in Donation

36
 Applicability of Articles 748 and 749. NCC:
 Such formalities are applicable only to donations inter vivos and
not to transfer mortis causa, the latter being governed by the
formalities for the validity of wills.
 With respect to donations inter vivos, the formalities required in
Articles 748 and 749 apply only to simple and remuneratory
donations and find no application to onerous ones, the latter
being governed by the rules on contracts.
 Following the provisions of Article 83 of the Family Code,the
formalities of donations propter nuptias are likewise governed by
Articles 748 and 749 of the Civil Code.
Formalities in Donations of Personal Property:
If value does not exceed P5,000:
(a) The donation may be made orally subject, however, to the
requirement that there must be simultaneous delivery of the
thing or of the document representing the right donated. If
there is no simultaneous delivery, the donation is void.
(b) There is nothing in the law, however, which prevents the
donation from being reduced in writing. If the donation is in
writing, there is no requirement of simultaneous delivery and
the law does not require that the acceptance must also be in
writing. As such, if the value of the personal property to be
donated does not exceed P5,000 and the donation is made
in writing, the acceptance may be made either orally or in
writing, expressly or tacitly, and without need of
simultaneous delivery.
If value exceeds P5,000:
(a) The law mandates that both the donation and the acceptance
must be in writing, otherwise, the donation shall be void.
(b) The law simply requires the donation and the acceptance to be
in written form and such requirement is complied with if both the
donation and the acceptance are embodied either in a private
instrument or a public instrument.
(c) In one case, where the alleged subject of donation was the
purchase money in a contract of sale in the amount of
P3,297,800, the Court held that the donation must comply with
the mandatory requirements of Article 748.
Formalities in Donations of Real Property:
Formalities Required:
 Article 749 of the Civil Code requires that the donation of
real property must be made in a public instrument.
 Otherwise, the donation is void.
 A deed of donation acknowledged before a notary public is a
public document.
 The notary public shall certify that he knows the person
acknowledging the instrument and that such person is the
same person who executed the instrument, acknowledging
that the instrument is his free act and deed.
 The acceptance may be made in the same deed of donation
or in a separate instrument.
 An acceptance made in a separate instrument must also be
in a public document.
 If the acceptance is in a separate public instrument, the
donor shall be notified in writing of such fact.
 Both instruments must state the fact of such notification.
There are, therefore, three requisites for the validity of a simple
donation of a real property, to wit:
1. it must be made in a public instrument;
2. it must be accepted, which acceptance may be made either in the
same Deed of Donation or in a separate public instrument; and
37
3. if the acceptance is made in a separate instrument, the donor must  In another case where the acceptance was not noted in the
be notified in an authentic form, and the same must be noted in Deed of Donation, the Court held that the actual knowledge
both instruments. by the donor of the construction and existence of the school
building pursuant to the condition of the donation already
fulfills the legal requirement that the acceptance of the
Requirement of Notification and Notation: donation by the donee be communicated to the donor.
 In Pajarillo and Silim,the Court explained that the purpose of
 Title to immovable property does not pass from the donor to the formal requirement for acceptance of a donation is to
the donee by virtue of a Deed of Donation until and unless it ensure that such acceptance is duly communicated to the
has been accepted in a public instrument and the donor duly donor.
notified thereof.
 The acceptance may be made in the very same instrument  The cases of Pajarillo and Silim must be distinguished from
of donation. If the acceptance does not appear in the same the cases of Legasto u. Verzosa and Santos v.
document, it must be made in another. Robledo1where the Court applied strictly the requirement of
 If the acceptance does not appear in the very same "notation."
instrument of donation, it is necessary that formal notice  In Legasto, there was no evidence whatsoever that the
thereof be given to the donor, and the fact that due notice claimed donations had been accepted, as stressed by
has been given must be noted in both instruments (that Justice Villa-Real.
containing the offer to donate and that showing the  The same observation is made in Santos, where Justice
acceptance). Torres noted that the acceptance of the donation did not
 Where the deed of donation fails to show the acceptance, or appear in the deed of donation or in any other instrument.
where the formal notice of the acceptance, made in a
separate instrument, is either not given to the donor or else
not noted in the deed of donation and in the separate
Registration of Donation:
acceptance, the donation is null and void.
 It is enough, between the parties to a donation of an
 It is well-settled that if the notification and notation are not
immovable property, that the donation be made in a public
complied with, the donation is void.
instrument but, in order to bind third persons, the donation
 However, a strict and literal adherence to the requirement of must be registered in the Registry of Property.
"notation" in Article 749 of the NCC should be avoided if
 However, such registration in the Office of the Register of
such will result not in justice to the parties but conversely a
Deeds or in the Assessor's Office is not necessary for the
distortion of their intentions.
donation to be considered valid and official.
 Thus, if the donor was not unaware of the acceptance for
 For, as between the parties to the donation and their
she in fact confirmed it later and requested that the donated
assigns, the registration of the deed of donation with the
land be not registered during her lifetime, the Court held that
Registry of Deeds is not needed for its validity and efficacy.
it cannot in conscience declare the donation ineffective
 In Pajarillo v. Intermediate Appellate Court, the Court
simply because there is no notation for that would be placing
emphatically dismissed the notion that registration was
too much stress on mere form over substance.

38
necessary to make the donation a binding commitment
insofar as the donor and the donee were concerned.

39
 [Title III — Donation]
[Chapter 3: Effects of Donations and Limitations Thereon]
(Arts. 750 - 759, NCC)
Extent of Donation
In General:
 A donor may donate all his property or part thereof subject
only to the following limitations:
1. He cannot donate future property;
2. He must reserve, in full ownership or in usufruct,
sufficient means for the support of himself, and of all
relatives who, at the time of the acceptance of the
donation, are by law entitled to be supported by him; and
3. He cannot give by donation more than he can give by
will.
Donation of Future Property:
Rule:
 Donations cannot comprehend future property.
 As being itself a mode of acquiring ownership, donation
results in an effective transfer of title over the property from
the donor to the donee once the donation is perfected.
 For this reason, the law requires that the donor must be the
owner of the thing donated at the time of the donation.
 If the rule were otherwise, it will be an inefficacious process
since the donor will have nothing to convey at the time that
the donation is made following the rule that "no one can give
what he does not have" — nemo dat quod non habet.
Hence, donation of a future property is void.
Meaning of "future property"
 By "future property" is understood anything which the donor
cannot dispose of at the time of the donation.
 Stated otherwise, future property includes all property that
belongs to others at the time the donation is made, although
it may or may not later belong to the donor.
 It cannot be donated, because it is not at present his
property, and he cannot dispose of it at the moment of
making the donation.
 The meaning of the phrase “at the time of the donation" in
the second paragraph of Article 751 must be held to mean
"perfection of the donation."
 In other words, the phrase "at the time of the donation" in
this article must not be given its literal meaning since the
requirement that the donor must be the owner of the property
donated attaches only at the time of the perfection of the
donation and not prior thereto.
 Hence, it is possible that, at the time of the execution of the
deed of donation or even up to the time of acceptance, the
donor may not be the owner of the property donated, so long
as at the time the acceptance reaches the knowledge of the
donor — at which point the donation is considered perfected
— the requirement of the law (that the donor must be the
owner of the property donated) is already complied with.
Donation of Future Property Between Future Spouses:
 In donation propter nuptias, however, the Family Code
allows a donation of future property between the future
spouses but the donation shall partake of the nature of a
testamentary provision and, as such, it is governed by "the
provisions on testamentary succession and the formalities of
wills."
40
Donor must Reserve Something for Support:
 While a donor may donate all his present properties, he must
not neglect himself and his family.
 Thus, one of the basic limitations to the donor's right to
donate is that he must reserve, either in full ownership or in
usufruct, sufficient means for the support of himself and all
relatives who. at the time of the acceptance, are by law
entitled to be supported by the donor.
 However, if the donor fails to make such reservation, the
donation is not void but subject only to a corresponding
reduction at the instance of "any person affected" and only to
the extent necessary for the support of the donor and his
relatives entitled to be supported by the donor.
 The provision of Article 750 of the NCC must be read in
conjunction with Articles 195 and 196 of the FC, which
enumerate the persons who are obliged to support each
other.
 Hence, any of the persons enumerated in Articles 195 and
196 of the FC may be deemed as a party in interest in any
petition for reduction of the donation by reason of Article 750
of the NCC.
Donations must not be Inofficious:
 A donor's prerogative to make a donation is further subject to
the limitation that he cannot give by donation more than he
can give by will.
 If he does, so much of what is donated as exceeds what he
can give by will is deemed "inofficious" and the donation is
reducible to the extent of such excess, though without
prejudice to its taking effect in the donors lifetime or the
donees appropriating the fruits of the thing donated.
 There is a portion of the inheritance which cannot be
disposed of freely either by way of donation inter vivos or by
testamentary provision in a will because the law has
reserved it in favor of the compulsory heirs.
 This portion is called the legitime.
 Inofficious donations are, therefore, those which prejudice
the legitime of the compulsory heirs.
 In officious donations are not void although they may be
subjected to a corresponding reduction or revocation, as the
case may be, if there is impairment of the legitime of the
compulsory heirs of the donor.
 And whether or not there is impairment of such legitime is a
matter that can be determined only upon the death of the
donor after considering the estimated net value of his
property at the time of his death.
 In Imperial u. Court of Appeals, the Court held that
inofficiousness may arise only upon the death of the donor
as the value of donation may then be contrasted with the net
value of the estate of the donor deceased.
Effect of Donations
Donation Made to Several Donees Jointly:
 When a donation is made to several persons jointly, the
following rules shall apply:
o The donees are entitled to equal portions, unless the
donor has otherwise provided.
o If the donees are not husband and wife, there is no
right of accretion among them, accretion taking
place only when expressly provided for by the donor.
o If the donation, however, is made to husband and
wife jointly, the rule is that there is a right of
accretion among them unless the donor provides to
the contrary.
o When there is a right of accretion among several
donees, the share of the one who did not accept or
could not accept or who died before he had
accepted shall go the other donees in proportion to
the interest of each in the donation.
41
 o In such a situation, the acceptance by any of the
donees of the donation shall result in its perfection
thereby preventing the donor from revoking that part
of the donation corresponding to the share of the
one who did not accept or who died prior to his
acceptance.
o If the donation is made to the spouses jointly in a
regime of conjugal partnership of gains, and with
designation of determinate shares, their respective
shares shall pertain to them as his or her own
exclusive property.
o In the absence of designation, they shall share and
share alike, without prejudice to the right of
accretion.
No Warranty Against Eviction and Hidden Defects:
Rule on warranty:
 The donor is not obliged to warrant the things donated.
Hence, as a rule, the donor has no liability to the donee in
case of eviction and hidden defects.
Exceptions: The donor shall be liable to the donee in the following
cases:
1. When there is bad faith on the part of the donor, he is liable for
eviction or hidden defects.
2. When the donation is onerous, in which case the donor shall
be liable up to the amount equal to the burden.
Reservation of Power to Dispose:
 If there is a reservation by the donor of the power to dispose
or alienate the property donated and such right is unqualified
or unrestricted, meaning, the donor can alienate the
conveyed property in favor of other persons of his choice at
anytime that he should wish to do so, the donation is mortis
causa.
 However, where there are several properties donated by the
donor and he reserved for himself the power to dispose of
some of thethings donated, or of some amount," such
reservation is valid and will not affect the character of the
conveyance as donation inter vivos.
 If the donor should die, however, without having made use of
this right, the property or amount reserved shall belong to the
donee.
 On the other hand, if there are several properties donated
and the donor has reserved the power to dispose of all of
them, which right is neither qualified nor restricted, meaning
he can alienate all the conveyed properties in favor of other
persons of his choice at anytime that he should wish to do
so, the donation is mortis causa, therefore, subject to the
rules governing testamentary provisions and formalities of
wills.
Separate Donation of Ownership and Usufruct:
The donor may donate separately the ownership of the property to
one person and the usufruct to another or others subject only to the
condition that all the donees must be living at the time of the
donation.
Donor may Provide for Reversion:
 The donor may validly provide for the reversion or return of
the property donated to him for any case and circumstances
 He may likewise establish a reversion in favor of a third
person provided that such person is living at the time of the
donation. If the latter condition is violated, only the provision
for reversion is considered void without affecting the validity
of the donation.
42
Payment of Donor's Debts:
 When the donation imposes upon the donee the obligation to
pay the debts of the donor, the following rules shall apply
unless a contrary intention clearly appears:
(1) the donee is understood to be liable to pay only the
debts which appear to have been previously
contracted (or previous to the donation; and
(2) the liability of the donee is limited only to the value of
the property donated.

 In the absence of any stipulation regarding the payment of

the debts of the donor, the donee shall be responsible
therefore only when the donation has been made in fraud of
creditors.
 And such donation is presumed to be in fraud of creditors
when at the time of the donation, the donor did not reserve
sufficient property to pay his debts prior to the donation.
 The liability, however, of the donee should be limited only to
the value of the property donated.

43
 [Title III — Donation]
[Chapter 4: Revocation and Reduction of Donations]
(Arts. 760 - 773, NCC)
Revocation or Reduction of Donations
Generally Irrevocable:
General rule:
 As a mode of acquiring ownership, donation results in an
effective transfer of title over the property from the donor to
the donee and once a donation is accepted, the donee
becomes the absolute owner of the property donated.
 Hence, as a rule, once the donation is accepted, it is
generally considered irrevocable.
Exceptions:
The exceptions to irrevocability are the following grounds expressly
provided in Articles 752,760,764, and 765 of the NCC:
(1) the subsequent appearance of children;
(2) the non-fulfillment of charges imposed in the donation:
(3) the ingratitude of the donee; and
(4) the fact that the donation is inofficious.
The donation may likewise be reduced based on the following
grounds:
1. that the donor did not reserve sufficient property for his own
and his family's support;
2. by the subsequent appearance of children; and
3. that the donation is inofficious.
Subsequence Appearance of Children:
Rule on Subsequent Appearance of Children:
Every donation inter vivos, made by a person having no children or
descendants, legitimate or legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced, by the happening of any of
these events:
(1) if the donor, after the donation, should have legitimate
or legitimated or illegitimate children, even though they
be posthumous;
(2) if the child of the donor, whom the latter believed to be
dead when he made the donation, should turn out to be
living; or
(3) if the donor subsequently adopts a minor child.
 The happening of any of the foregoing events shall only give
rise to a cause or ground to revoke the donation.
 If the proper action for revocation is not therefore instituted,
or it is instituted but after the lapse of the statutory period of
prescription, the donation shall forever be considered as
valid.
 For any of these events to be considered as grounds for the
revocation of a donation it is necessary, however, that the
donor, at the time of the donation, did not have or believed
did not have any children or descendants, whether
legitimate, legitimated, illegitimate or adopted.
Adoption of Minor Child:
 In order to be a ground for revocation of the donation under
Article 760 of the NCC, the person "adopted" must be a
minor child.
 If the "adopted" child is a person of legal age, the donation
may not be reduced or revoked pursuant to Article 760,
although it may be subjected to either reduction or
revocation pursuant to Article 752 of the NCC.
44
 Effect of Subsequence Appearance of Children:
 Upon the happening of any of the above-mentioned events, the
donor shall be entitled to demand either for the reduction or
revocation of the donation, as the case may be.
 Revocation, as distinguished from reduction, affects the entire
donation while the latter affects only a part or a portion thereof.
When the ground invoked is the subsequent appearance of
children under Article 760, the donation shall be revoked or
reduced insofar as it exceeds the portion that may be freely
disposed of by will.
 In other words, there shall be a corresponding reduction or
revocation of the donation in so far as it impairs the legitime of the
child who subsequently appeared after the making of the
donation.
 However, in the determination of the child's legitime, it is the
whole estate of the donor at the time of the appearance of the
child (be it by subsequent birth, re-appearance or adoption) that
shall be taken into consideration.
 In other words, there shall be a provisional liquidation of the
estate of the donor at the time of the birth, appearance or
adoption of a minor child for the purpose of determining the
donor's estate and the child's legitime.
 If there is no impairment of the child's legitime at that time — or
when the donation does not exceed the free portion — then the
donation shall not be reduced nor revoked.
 As distinguished from Article 752 of the NCC, in relation to Article
771 of the NCC, in Article 760 the "inofficiousness" of the
donation is to be determined during the lifetime of the donor, i.e.,
at the time of the birth, appearance or adoption of a minor child.
 In Article 752, in relation to Article 771, however, the
"inofficiousness" of the donation is determined only at the time of
death of the donor.
 If, at the time of the subsequent appearance of a child under
Article 760, the entire donation is found to be within the free
portion of the donor's estate, in which case, the donation is
neither reduced nor revoked at that time, and later on the donor
died after suffering financial reverses, such donation may still be
revoked on the ground of inofficiousness pursuant to Article 752
of the NCC.
 However, if the donation was either reduced or revoked because
it was found to be inofficious at the time of the subsequent
appearance of a child under Article 760, but later on the donor
dies a richer man and, at the time of his death, the previous
donation could have been accommodated in the free portion, the
donee is no longer entitled to the return of the thing donated or its
value.
 In this case, the ground for the revocation of the donation is Artide
760, which is an altogether different ground from that provided in
Article 752.
Effects of Revocation or Reduction By Reason of Subsequent
Appearance of Children:
 Upon the revocation or reduction of the donation based on
Article 760, the following effects are produced:
1. The property affected shall be returned, or if it cannot be
returned, at least its value:
2. If the property is mortgaged, the donor may redeem the
mortgage, by paying the amount guaranteed, with a right
to recover his payment from the donee.
3. The donee shall return the fruits of property affected only
from the filing of the complaint.
Prescriptive Period of Action under Article 760:
 The prescriptive period of an action for revocation or
reduction under Article 760 is 4 years reckoned from the
birth of the first child, or from his legitimation, recognition or
adoption, or from judicial declaration of filiation, or from the
time information was received regarding the existence of the
child believed dead.
 If, however, the child dies prior to the filing of the action, it is
believed that the action can no longer be brought.
45
  This action is not subject to waiver or renunciation and is
transmitted, upon the death of the donor, to his legitimate or
illegitimate children and descendants.
 if the donor dies within the four-year prescriptive period.
Failure to Comply with Conditions:
 When the donee fails to comply with any of the conditions
which the former imposed upon the latter, the donation may
be revoked at the instance of the donor.
Applicability of Article 764 of the NCC:
 While Article 764 uses the term conditions," what are actually
being referred to in said article are the obligations or charges
imposed by the donor on the donee.
 The word "conditions" in Article 764 does not refer to
uncertain events on which the birth or extinguishment of a
juridical relation depends, but is used in the vulgar sense of
obligations or charges imposed by the donor on the donee.
 It is used, not in its technical or strict legal sense, but in its
broadest sense."
 When the law and the deed of donation speaks of
"conditions" of a donation, what are referred to are actually
the obligations, charges or burdens imposed by the donor
upon the donee and which would characterize the donation
as onerous.
 Thus, an eminent civilist1686 opines that the manner of
revocation in Article 764 is applicable to onerous donation.
De Luna v. Abrigo
 however, the Supreme Court made a ruling to the effect that
Article 764 of the NCC does not apply to onerous donations
in view of the specific provision of Article 733 of the NCC
providing that onerous donations are governed by the rules
on contracts.
 The Court held further that in determining the prescriptive
period of an action to revoke an onerous donation, the rules
on contracts and the general rules on prescription and not
the rules on donations are applicable toonerous donations.
 Applying the ruling in De Luna u. Abrigo, which cited Article
1144(1) of the NCC as legal basis, the prescriptive period of
an action for revocation of an onerous donation by reason of
noncompliance with the condition/ obligation imposed is 10
years counted from the time within which the donee must
comply with the conditions/obligations of the donation.
 In the relatively recent case of Secretary of Education u.
Heirs of Rufino Dulay, Sr. the Court, citing Article 733 of the
Civil Code that a donation with an onerous cause is
essentially a contract and is thus governed by the rules on
contract, ruled that the four-year prescriptive period for the
revocation of donation provided under Article 764 of the New
Civil Code does not apply.
 Since the deed of donation is considered a written contract, it
is governed instead by Article 1144 of the New Civil Code,
which provides that the prescriptive period for an action
arising from a written contract is 10 years from the time the
cause of action accrues.
 The Court also ruled that in the case of donation, the accrual
of the cause of action is from the expiration of the time within
which the donee must comply with the conditions or
obligations of the donation.
 The donation is onerous when the donee is burdened with
the obligation to utilize the land donated for school purposes.
 Also, when a person donates land to another on the
condition that the latter would build upon the land a school,
the condition imposed was not a condition precedent or a
suspensive condition but a resolutory one.
 It is not correct to say that the schoolhouse had to be
constructed before the donation became effective, that is,
before the donee could become the owner of the land,
otherwise, it would be invading the property rights of the
donor.
46
 The donation had to be valid before the fulfillment of the
condition.
 If there was no fulfillment or compliance with the condition
the donation may be revoked and all rights which the donee
may have acquired under it shall be deemed lost and
extinguished.
 In such a situation, the legal possibility of bringing the action
begins with the expiration of a reasonable opportunity for the
donee to fulfill what has been charged upon it by the donor.
 In Central Philippine University v. Court of Appeals, the
Court held that the failure of the donee to comply with the
condition of establishing a medical college on the property
for more than 50 years results in the revocation of the
donation.
 In Secretary of Education u. Heirs of Rufino Dulay, Sr.,the
Court also held that the failure of the donee to comply with
the condition of utilizing the donated property for school
purposes resulted in the reversion of the property to the
donor.
 In Republic v. Silim,where the donation was subject to the
condition that the donated property should be used
exclusively and forever for school purposes only, the fact
that the donee exchanged the donated property for another
bigger parcel of land to satisfy the requirement for the
release of the funds necessary for the construction of the
school building is not considered a breach of the terms and
conditions of the donation because the purpose for the
donation remains the same, which is for the establishment of
a school.
 In CJ Yulo & Sons, Inc. v. Roman Catholic Bishop of San
Pablo, the donation is also onerous because an obligation is
imposed upon the donee to put upand operate a home for
the aged and the infirm.
 Alleging violations of the condition of the donation because
the donee leased out the donated property thrice without the
donor's consent, the latter filed an action to revoke the
donation.
 The Court ruled that the three lease contracts entered into by
the donee were for the sole purpose of pursuing the
objective for which the donation was intended, which is to
raise funds for the construction of the home for the aged and
the infirm.
 It was further ruled that the absence of the donor's prior
written consent to the lease contracts entered into by the
donee only constitute a casual breach which does not
warrant the revocation of the donation considering that the
donee's acts did not detract from the very purpose for which
the donation was made but precisely to achieve such
purpose.
Revocation by Reason of Ingratitude:
Rule:
The donation may also be revoked at the instance of the donor, by
reason of ingratitude of the donee.
Instances of Acts of Ingratitude:
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; or
3. If the donee unduly refuses to give support to the donor when
the former is legally or morally bound to give support to the
latter.
Prescriptive Period of Action:
The prescriptive period of the action for revocation of the donation on
the ground of ingratitude is one year, counted from the time the donor
47
 had knowledge of the fact and it was possible for him to bring the
action.
Reminders:
1. The action for revocation on the ground of ingratitude cannot
be renounced in advance.
2. The action is not transmissible to the heirs of the donor, if the
latter did not institute the same, although he could have done
so, and even if he should die before the expiration of the one-
year prescriptive period.
3. The action cannot be brought against the heirs of the donee,
unless upon the latter's death the complaint has been filed.
Effects of revocation under Article 765:
a. The donee shall not return the fruits except from the filing of the
complaint
b. The alienations and mortgages effected before the notation of the
complaint for revocation in the Registry of Property shall
subsist.The donor may, however, demand from the donee the
value of the property alienated which he cannot recover from third
persons, or the sum for which the same has been mortgaged
The value of said property shall be fixed as of the time of the
donation.
c. Alienations and mortgages effected after the notation of the
complaint for revocation in the Registry of Property shall be void.
Revocation by Reason of lnofficiousness:
Concept:
 A donation is inofficious if it exceeds what the donor may give
by will.
 An inofficiousness donation, therefore, is that which
prejudices the legitime of the compulsory heirs.
How to Determine Inofficiousness of Donation
 Donations which exceed the freely disposable portion of the
donor's estate and thus impair the legitime of the compulsory
heirs are inofficious and subject to reduction with regard to
the excess.
 In determining whether the donation is inofficious or not,
recourse must be had to the rules established by the Civil
Code for the determination of the legitime and, by extension,
of the disposable portion, taking into consideration the
estimated net value of the donor's property at the time of his
death.
 In Imperial u Court of Appeals, the Court held that
inofficiousness may arise only upon the death of the donor
as the value of donation may then be contrasted with the net
value of the estate of the donor deceased.
 The rules are set forth in Articles 908,909, and 910 of the
Code, on the basis of which the following step-by-step
procedure has been outlined:
1. Determination of the value of the property which
remains at the time of the testator's death;
2. Determination of the obligations, debts, and charges
which have to be paid out or deducted from the value
of the property thus left;
3. Determination of the difference between the assets
and the liabilities, giving rise to the hereditary estate;
4. Addition to the net value thus found, of the value, at
the time they were made, of donations subject to
collation; and
5. Determination of the amount of the legitimes by getting
from the total thus found the portion that the law
provides as the legitime of each respective
compulsory heir.
 Deducting the legitimes from the net value of the hereditary
estate leaves the freely disposable portion by which the
donation in question must be measured.
48
  If the value of the donation at the time it was made does not
exceed that difference, then it must be allowed to stand.
 But if it does, the donation is inofficious as to the excess and
must be reduced by the amount of said excess.
Status of Donation During Lifetime of Donor:
 While a donation may be found to be inofficious at the time of
the donor's death, it takes effect nonetheless during the
donor's lifetime.
 The mere fact that the donation turns out to be inofficious at
the time of the donor's death does not result in the automatic
revocation of the donation.
 The provision of Article 752, in relation to Article 771, is not
self-executory.
 In other words, if no action for revocation is filed, or if it is filed
after the lapse of the prescriptive period, the donation is
Effect of Reduction or Revocation on Ground of
forever considered as valid.
Inofficiousness:
Who May Revoke:
 Only those who at the time of the donor's death have a right
to the legitime and their heirs and successors in interest may
ask for the reduction of inofficious donations.
 In other words, persons who are not entitled to the legitime
(therefore not considered as compulsory heirs), such as
donees, devisees, legatees and creditors of the deceased
donor, cannot ask for the reduction of inofficious donations.
 During the lifetime of the donor, the compulsory heirs who are
entitled to ask for the reduction of inofficious donations cannot
renounce their right, whether the renunciation be done
expressly or impliedly.
Prescriptive Period:
 Donations, the reduction of which hinges upon the allegation
of impairment of legitime, are not controlled by a particular
prescriptive period.
 However, in Imperial v. Court of Appeals, the Supreme Court
held that an action for reduction of an inofficious donation
prescribes in 10 years following Article 1144 of the New Civil
Code.
 Since the cause of action to enforce a legitime accrues only
upon the death of the donor-decedent for it is only then that
the net estate may be ascertained and on which basis the
legitimes may be determined, the 10-year period
commences to run only upon the death of the donor-
decedent.
 When a donation is found to be inofficious, the same will be
reduced to the extent necessary to satisfy the legitimes of
compulsory heirs who were prejudiced by such donation.
 If there are two or more donations and the disposable portion
is not sufficient to cover all of them, those of the more recent
date shall be suppressed or reduced with regard to the
excess.
 If they are of the same date, they shall be reduced
proportionately.
 As in the case of revocation of donations for any of the
causes stated in Article 760 and by reason of ingratitude,
when the donation is reduced because it is inofficious, the
donee shall not return the fruits except from the filing of the
complaint.
49