Civil Law Areas 2019

Civil Law Areas in the 2019 Bar
Atty. Genesis M. Auza - #auzalawreview - 09207025338
GENERAL PRINCIPLES 6. Emergency laws;

7. Laws creating new rights.
But vested rights must not be impaired.
CIVIL LAW VS. COMMON LAW 8. Tax Laws, up to certain limits.
As regards "governance": Governance in Civil Law is
codal, statutory and written law. It is additionally derived
from case law. Common law is basically derived from LAW ON EQUITY
case law. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the
As regards "trend": Civil law is now tending to rely more laws. (Art. 9, NCC)
and more on decisions of the courts explaining the laws.
Common law is now codifying laws more and more. So Note: but in criminal cases, the judge shall have to
they are now merging towards similar systems. dismiss the case if there is no law punishing an act
subject of a criminal prosecution. (Nullum crimen, nulla
poena sine lege) – art. 5, RPC.
EFFECTIVITY OF LAWS
Laws shall take effect after fifteen days following the “Equity Follows the law” means that courts exercising
completion of their publication in the Official Gazette, equity jurisdiction are bound by rules of law and have no
unless it is otherwise provided. This Code shall take arbitrary discretion to disregard them. (Arsenal v IAC,
effect one year after such publication. (Art. 2, NCC) 143 SCRA 40 [1986]). Equity is applied only in the
absence of but never against statutory law. (Toyota
GR: Laws take effect after completion of publication in Motor Phil. V CA 1. The civil action involves an issue
OG or in a newspaper of general circulation. similar or intimately (216 SCRA 236 [1992]).
EXCEPTION: When the law provides for its own date of
effectivity; either less than or greater that 15 days after
publication. Art. 10. NCC In case of doubt in the interpretation or
 Publication is MANDATORY (even if the law provides application of laws, it is presumed that the lawmaking
its own date of effectivity. body intended right and justice to prevail. (n)
 Publication must be in full; otherwise, it is not deemed
published at all. The purpose is to inform the public of its Art. 11. NCC Customs which are contrary to law, public
contents. order or public policy shall not be countenanced. (n)
EFFECT OF PUBLICATION NOTE:

The people are deemed to have conclusively been
notified of the law even if they have not read them. Acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the
WHAT ARE COVERED BY PUBLICATION law itself authorizes their validity. (Art. 5, NCC)
REQUIREMENT:
1. Laws enacted by Congress; GR: Acts violating mandatory or prohibitory laws are
2. Presidential Decrees and Executive Orders; VOID.
3. Administrative Rules and Regulations, if their purpose Exceptions:
is to enforce or implement existing law pursuant to a 1. When the law itself authorizes their validity;
valid delegation. 2. When the law makes the act only VIODABLE and not
void;
NOT COVERED BY PUBLICATION REQUIREMENT: 3. When the law makes the act valid but punishes the
1. Interpretative regulations and those administrative violator.
regulations internal in nature;
2. Letters of instruction;
3. Municipal ordinances, except those penal in nature IGNORANCE OF THE LAW VS. MISTAKE
under the Local Government Code. OF FACT
GR: Laws are prospective in application. MISTAKE OF IGNORANCE OF THE LAW

EXCEPTIONS: FACT
1. Penal laws when favorable to the accused who is not Relieves Ignorance of the law excuses no
a habitual delinquent; criminal liability one from compliance therewith
2. Interpretative statutes;
3. When the law itself expressly provides for its
While ignorance of the law is not an excuse for not
retroactivity;
complying with it, ignorance of fact eliminates criminal
intent as long as there is no negligence (Art, NCC). In
Exception to the exception:
addition, mistake on a doubtful or difficult question of law
a. Ex post facto law;
may be the basis of good faith (Art. 526. NCC). Mistake
b. When the retroactivity impairs the obligation
of fact may, furthermore, vitiate consent in a contract
of contract.
and make it voidable (Art. 1390. NCC).
NOTE: Contracts may be impaired if the new law is
pursuant to the Police Power of the State. SC DECISIONS
4. Remedial statutes; Judicial decisions applying or interpreting the laws or the
No vested rights in the rules of procedure. Constitution shall form a part of the legal system of the
5. Curative statutes; Philippines. (Art. 8, NCC)
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PREJUDICIAL PREVIOUS QUESTION

INFERIOR COURT DECISIONS QUESTION
NOTE: Lower courts should take judicial notice of the Civil and Criminal
decisions of the Supreme Court. Decisions of the Court cases I I. Administrative and civil
of Appeals, however, may have also binding (or at least cases;
guiding effect to lower courts. II II. Civil then
administrative cases;
STARE DECISIS III III. Civil and civil cases;
The doctrine which requires the courts to follow the rule IV IV. Administrative and
established in earlier decisions of the SC. However, it is criminal (ULP case before Labor
not inflexible, so that when in the light of changing Arbiters before filing a Criminal
conditions, a rule has ceased to be beneficial to the case for ULP)
society, courts may depart from it. V V. Criminal then civil
(Falsification and Probate of Will)
Effectivity of SC Interpretation:
A judicial interpretation becomes a part of the law as of
the date the law subject thereof took effect, subject only Note: It is not in all cases that the decision (finding of
to the qualification that when a doctrine of this Court is facts) in the administrative case will bind the civil case.
overruled and a different view is adopted, and more so
when there is a reversal thereof, the new doctrine should
be applied PROSPECTIVELY and should not apply to PERSONS
parties who relied on the old doctrine and acted in good CHANGE OF NAME
faith. (Tañada, eta al. vs Guingona, Jr., et al.,235 SCRA NOTE: The law does not allow dropping of middle name
507). from registered name unless there are justifiable
• Judicial decisions also have prospective reasons to do so. Mere convenience is not justifiable.
application. Middle name serves to identify the maternal lineage of
filiation of a person as well as further distinguish him
If the decision reversing a previous ruling of the court be from others who may have the same given name and
not given a prospective effect, the same would deprive surname as he has.
the law of its quality of fairness and justice, if there is no
recognition of what had transpired prior to such An illegitimate child whose filiation is not recognized by
adjudication. This is now known as the “doctrine of the father bears only a given name and his mother’s
operative facts”. (Albino S. Co vs CA, et al., L-100776, name, and he does ot have a middle name, unless
Oct. 28, 1993) legitimated or subsequently recognized by the father.
A child can use the surname of the mother instead of the

PREJUDICIAL QUESTIONS father if there are clear justifiable reasons to do so such
NOTES: Art. 36, NCC. Pre-judicial questions which must as to avoid confusion (In Re Petition for Change of
be decided before any criminal prosecution may be Name, Petitioner Julian Lin (Carulasan) Wang, GR No.
instituted or may proceed, shall be governed by rules of 159966, March 30, 2005).
court which the Supreme Court shall promulgate and
which shall not be in conflict with the provisions of this Note: clerical and typographical errors may be corrected
Code. without judicial order under RA 9048.
PREJUDICIAL QUESTION
It is one which arises in a case, the resolution of which is Section 4. RA 9048. Grounds for Change of First
a logical antecedent of the issue involved therein and Name or Nickname. – The petition for change of first
cognizance of which pertains to another tribunal (Agpalo, name or nickname may be allowed in any of the
p. 137). following cases:
Prejudicial question is based on a fact distinct and (1) The petitioner finds the first name or nickname to be
separate from the crime but so intimately connected with ridiculous, tainted with dishonor or extremely difficult to
it that it determines the guilt or innocence of the write or pronounce.
accused. (2) The new first name or nickname has been habitually
REASON: To avoid two conflicting decisions. and continuously used by the petitioner and he has been
WHERE TO FILE PETITION FOR SUSPENSION OF publicly known by that by that first name or nickname in
CRIMINAL ACTION: the community: or
1. Office of the Prosecutor; (3) The change will avoid confusion.
2. Court where the case is filed for trial, at any time
before prosecution rests.
JURIDICAL CAPACITY VS. CAPACITY TO
Section 7, Rule 111 of ROC: Elements of prejudicial ACT
question. — The elements of a prejudicial question are: Juridical capacity, which is the fitness to be the subject
of legal relations, is inherent in every natural person and
(a) the previously instituted civil action involves an issue is lost only through death. Capacity to act, which is the
similar or intimately related to the issue raised in the power to do acts with legal effect, is acquired and may
subsequent criminal action, and be lost. (Art. 37 NCC)
(b) the resolution of such issue determines whether or
not the criminal action may proceed. Minority, insanity or imbecility, the state of being a deaf-
mute, prodigality and civil interdiction are mere
restrictions on capacity to act, and do not exempt the
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incapacitated person from certain obligations, as when Every person must, in the exercise of his rights and in
the latter arise from his acts or from property relations, the performance of his duties, act with justice, give
such as easements. (Art. 38 NCC) everyone his due, and observe honesty and good faith.
PRINCIPLE OF ABUSE OF RIGHTS
Birth determines personality; but the conceived child It is when the right is exercised for the purpose of
shall be considered born for all purposes that are prejudicing or injuring another.
favorable to it, provided it be born later with the Requisites:
conditions specified in the following article. (Art. 40 NCC) 1. There is a legal right or duty;
2. Which is exercised in bad faith;
For civil purposes, the fetus is considered born if it is 3. For the sole intent of prejudicing or injuring another.
alive at the time it is completely delivered from the
mother's womb. However, if the fetus had an intra- DOCTRINE OF VOLENTI NON FIT INJURIA
uterine life of less than seven months, it is not deemed Pertains to self-inflicted injuries or to the consent to
born if it dies within twenty-four hours after its complete injury which precludes the recovery of damages by one
delivery from the maternal womb. (Art. 41, NCC) who has knowingly and voluntarily exposed himself to
danger, even if he is not negligent in doing so.
DEATH; EFFECTS; SIMULTANEOUS
Art. 20. NCC Every person who, contrary to law, willfully
DEATH or negligently causes damage to another, shall
Art. 43. NCC If there is a doubt, as between two or more indemnify the latter for the same.
persons who are called to succeed each other, as to Art. 21. NCC Any person who willfully causes loss or
which of them died first, whoever alleges the death of injury to another in a manner that is contrary to morals,
one prior to the other, shall prove the same; in the good customs or public policy shall compensate the
absence of proof, it is presumed that they died at the latter for the damage.
same time and there shall be no transmission of rights ACTS CONTRA BONUS MORES
from one to the other. Presupposes loss or injury, material or otherwise, which
one may differ as a result of such violation.
Note: This applies only to cases involving succession. If Requisites:
it is not involving succession, sec. 3 (jj), Rule 131, of the 1. There is an act which is legal;
Rules of Court governs. (Survivorship Rules). 2. But which is contrary to morals, good customs, public
• The proof of death must be established by order or public policy;
positive evidence. Proof of death can never be 3. And it is done with intent to injure.
established from mere inference arising from another
inference or from presumptions or assumptions. Under arts. 19 and 21, the act must be done
intentionally. However, art. 20 does not distinguish, the
act may be done either intentionally or negligently, as
WAIVER OF RIGHTS long as the act is contrary to law.
Rights may be waived, unless the waiver is contrary to
While breach of promise to marry is, generally, not
law, public order, public policy, morals, or good customs,
actionable, it has been held that to formally set a
or prejudicial to a third person with a right recognized by
wedding and go through and spend for all the wedding
law.
preparations and publicity, only to walk out of it when the
REQUISITES FOR A VALID WAIVER OF RIGHTS:
matrimony was about to be solemnized is a different
1. The person making the waiver must have the right he
matter. Such act is palpably and unjustifiably contrary to
is waiving (existence of right);
good customs for which the defendant must be held
2. He must know the existence of such right;
answerable for damages in accordance with art. 21,
3. He must have the capacity to make the waiver;
NCC.
4. The waiver must be made in a clear and unequivocal
manner;
Damages are also available when breach promise to
5. Waiver must intelligently made;
marry is attended with deceit or moral seduction.
6. Waiver must not be contrary to law, public order,
public policy, morals or good customs or prejudicial to a
Art. 23. NCC Even when an act or event causing
3rd person with a right recognized by law (or contract);
damage to another's property was not due to the fault or
7. In certain instances; in the formalities required by law
negligence of the defendant, the latter shall be liable for
(like waiver of the right to counsel which must be in
indemnity if through the act or event he was benefited.
writing and in the presence or assistance of a lawyer).
NOTE: This is the Principle of Unjust Enrichment.
• Take note that theft is likewise committed by any
SOME RIGHTS THAT CANNOT BE WAIVED person who, after having maliciously damaged the
1. Right to support (ART. 301, NCC); property of another, shall remove or make use of the
2. Right of action against future fraud (art. 1171, NCC); fruits or objects of the damaged caused by him (art. 308
3. Right to future inheritance (art. 1043, NCC); [2], RPC).
4. Right to counsel during arraignment of the accused
(sec. 6, Rule 116, Rules of Court);
5. Future prescription cannot be waived (art. 1112, CONFLICT OF LAWS
NCC). LAW ON NATIONALITY
6. Right to set up defense of illegality of contracts (art. Laws relating to family rights and duties, or to the status,
1409, NCC). condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
ABUSE OF RIGHTS (Art. 15, NCC)
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CAPACITY TO BUY LAND

Intestate and testamentary successions, both with Philippine law governs the capacity of the Filipino to buy the
respect to the: land. In addition to the principle of lex rei sitae given above.
1. order of succession Article 15 of the NCC specifically provides that Philippine laws
2. amount of successional rights relating to legal capacity of persons are binding upon citizens
of the Philippines no matter where they are.
3. the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the
person whose succession is under DIVORCE
consideration, whatever may be the nature of Divorce obtained abroad by the alien spouse, or the
the property and regardless of the country Filipino spouse which capacitates the alien spouse to
wherein said property may be found. (Art. 16, marry, when valid abroad shall also be valid here in the
NCC) Philippines. The same has the effect of capacitating the
4. Capacity to succeed is governed by the law of the Filipino spouse to marry. (Manalo case)
nation of the decedent. (Art. 1039.NCC)
Remedy of the Filipino spouse is to file a Petition for
LEX REI SITAE Correction of Entry in the civil status with Recognition of
Real property as well as personal property is subject to the Divorce Decree which was obtained abroad.
the law of the country where it is situated. (Art. 16 NCC)
LONG-ARM STATUTE
LEX LOCI CELEBRACIONES Long arm statutes – statutes allowing the courts to
The forms and solemnities of contracts, wills, and other exercise jurisdiction when there are minimum contacts
public instruments shall be governed by the laws of the between the non-resident defendant and the forum.
country in which they are executed.
DOMICILIARY THEORY
When the acts referred to are executed before the Domiciliary theory – in general, the status, condition,
diplomatic or consular officials of the Republic of the rights, obligations, and capacity of a person should be
Philippines in a foreign country, the solemnities governed by the law of his domicile.
established by Philippine laws shall be observed in their
execution.
FORUM NON CONVENIENS
Prohibitive laws concerning persons, their acts or A forum may resist imposition upon its jurisdiction even
property, and those which have, for their object, when jurisdiction is authorized by law on the ground that
public order, public policy and good customs shall the forum is inconvenient or the ends of justice would be
not be rendered ineffective by laws or judgments best served by trial in another forum or the controversy
promulgated, or by determinations or conventions may be more suitably tried elsewhere.
agreed upon in a foreign country.
NATURALIZATION
LEX LEX RAE LEX LOCI
See discussion on Political Law
NATIONALIS SITAE (art. CELEBRACIONIS
(art. 15) 16) (art. 17)
Basis: Basis: law of Basis: law of the RENVOI DOCTRINE
citizenship the place place where the Renvoi Doctrine – doctrine whereby a jural matter is
where the contract was presented which the conflict of laws rules of the forum
property is executed refer to a foreign law which in turn, refers the matter
situated back to the law of the forum or a third state. When
Covers: family Covers: real Covers: only forms reference is made back to the law of the forum, this is
rights and and personal and solemnities said to be remission, while reference to a third state is
duties, status, property (extrinsic validity) called transmission.
condition, and
legal capacity Double Renvoi – occurs when the local court in
Exception: art Exceptions: Exceptions: adopting the foreign court theory, discovers that the
26 par. 2 1. Capacity to 1. Art. 26 par. 1 of foreign court accepts the renvoi; ultimately, then, the
succeed; Family Code; foreign internal law shall be applied.
2. Intrinsic 2. Intrinsic validity
validity of the of contracts
will;
SIGNIFICANT RELATIONSHIP THEORY
There are contracts which are deemed significant to the
3. Amount of
Philippines such as contracts involving labor. In this
successional
case, our forum should consider the Paramount State
rights;
Interest and disregard the provisions in the contract and
apply the law of our forum in order to protect labors.
DOCTRINE OF PROCESSUAL PRESUMPTION

It is that doctrine which lays down the presumption that TERRITORIALITY
the foreign law is the same as the law of the forum. It Art. 14. NCC Penal laws and those of public security
arises if the foreign law, though properly applicable, is and safety shall be obligatory upon all who live or
either not alleged, or if alleged, is not proved before a sojourn in the Philippine territory, subject to the
competent court. principles of public international law and to treaty
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stipulations.
WHO MAY BE ADOPTED (sec. 5):
EXTRA-TERRITORIALITY 1. Any person below 18 years of age who has been
By treaty stipulation granting immunity to certain persons judicially declared available for adoption OR voluntarily
or things. committed to he DSWD;
EXTRA-TERRITORIALITY 2. The legitimate child of one spouse by the other
A place (like an embassy, or a public vessel) is spouse;
considered as an extension of territory. 3. An illegitimate child by a qualified adopter to raise the
status of the former to that of legitimacy;
DEPECAGE 4. A person of legal age regardless of civil status, if, prior
The phenomenon where the different aspects of the to the adoption, said person has been consistently
case involving a foreign element may be governed by considered and treated by the adopters as their own
different systems of laws. child since minority;
ADOPTION 5. A child whose adoption has been previously
An act which renders a child legitimate in relation to the rescinded;
adopting parents, to whom the child may or may not be 6. A child whose biological or adoptive parents have died
related. but no proceedings shall be initiated within 6 months
NOTE: Adoption is now governed by RA 8552, The from the time of death of said parents; and
Domestic Adoption Act, and some pertinent portions 7. A child not otherwise disqualified by law or this Rules.
of the Family Code and the New Civil Code.
SALIENT PROVISIONS: CHILD LEGALLY AVAILABLE FOR ADOPTION
WHO MAY ADOPT (sec. 4): This refers to a child who has been voluntarily or
A. Any Filipino Citizen- involuntarily committed to the DSWD or to a duly
1. Of legal age; licensed and accredited child-placing or child caring
2. In possession of full civil capacity and legal agency, freed from the parental authority of his biological
rights; parents, or in case of rescission of adoption, his
3. Of good moral character; guardian or adopter/s.
4. Has not been convicted of any crime involving 2 WAYS TO COMMIT A CHILD:
moral turpitude; 1. Administrative/Voluntary—in this case, the parent or
5. Emotionally and psychologically capable of guardian of the child voluntarily committed him to the
caring for children; DSWD or any duly licenses child placement of child
6. In a position to support and care for his/her caring agency. The child must be surrendered in
children in keeping with the means of the family; and WRITING. Such written instrument must be notarized
7. At least 16 years older the adoptee. and signed in the presence of an authorized
representative of the department after counseling has
B. Any Alien possessing the same qualifications as been made to encourage the parents to keep the child
above; Provided: (sec. 5, AM 02-1-19-SC).
1. That his/her country has diplomatic relations
with the Philippines; 2. Judicial/Involuntary—follow the procedure in AM 02-1-
2. That he/she been living in the Philippines for 19-SC.
at least 3 continuous years prior to the filing of the
application for adoption; GR: Husband and Wife shall JOINTLY adopt.
3. Maintains residence until the adoption decree Exceptions:
is entered; 1. If one spouse seeks to adopt the legitimate child of
4. Certified to have legal capacity to adopt by the other;
his/her country; and 2. If one spouse seeks to adopt his/her own illegitimate
5. That his/her government allows the adoptee child provided the other spouse has signified his consent
to enter his/her country as his/her adopted child. thereto; or
3. If the spouses are legally separated from each other.
C. The Guardian, after termination of guardianship.
The requirement of 16 years difference between INTER-COUNTRY ADOPTION
adopter and adoptee may be waived if adopter is: FORMALITIES
1. The biological parent of the adoptee; INTER-COUNTRY ADOPTION (sec. 26-32)
2. The spouse of the adoptee’s parent. WHERE to file Petition (sec. 28):
1. A verified petition to adopt a Filipino child may be filed
The residency requirement and certification of aliens by a Filipino permanently residing abroad or foreign
qualification to adopt may be waived for the national with the Family Court having jurisdiction of the
following: place where the child resides or may be found; or
1. The adopter is a former Filipino citizen who seeks to 2. It may be filed directly with the ICAB.
adopt a relative within the 4 th degree of consanguinity or
affinity; WHO may Adopt:
2. One who seeks to adopt the legitimate child of his/her 1. Any alien or Filipino citizen permanently residing
Filipino spouse; abroad who is at least 27 years of age;
3. One who is married to a Filipino citizen and seeks to 2. Other requirements are the same as with R.A. 8552
adopt jointly with his/her spouse a relative within the 4 th (Domestic Adoption Act of 1998).
degree of consanguinity or affinity of the Filipino spouse.
WHO may be Adopted: (legally free child)
D. Guardian of Ward. Only a child legally available for domestic adoption
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may be the subject of inter-country adoption. the civil registry)

Exception: adoption will not be recognized if it is contrary
A child under the Inter-Country Adoption Act is defined to public policy or resident’s interest forbids its
as any person below 15 years of age. enforcement (Agpalo).
PARENTAL AUTHORITY: RECISION OF RIGHTS OF ADOPTED CHILD

ADOPTION EFFECTS OF ADOPTION:
RESCISION OF ADOPTION 1. Adopter shall exercise parental authority;
Under the Domestic Adoption Act of 1998, the adopter 2. All legal ties between biological parents and adoptee
CAN NO LONGER RESCIND the adoption, he can shall be severed, except when biological parent is the
merely DISINHERIT the adoptee in accordance with the spouse of the adopter;
provisions of the Civil Code. 3. Adoptee shall be considered legitimate child of the
Rescission relates only as to the date of the judgment. adopter for all intents and purposes;
Hence, vested rights prior to the rescission shall be 4. Adopters shall have reciprocal rights of succession
respected. without distinction from legitimate filiation.
WHO files (sec.19):
1. Adoptee NOTES: under the law:
a) Over 18 years of age; Art. 979,NCC, par. 2. An adopted child succeeds to the
b) If minor, with the assistance of DSWD. property of the adopting parents in the same manner as
2. Guardian or Counsel, if over 18 but incapacitated a legitimate child.
GROUNDS for Rescission (sec.19): FAMILY CODE

1. Repeated physical violence and verbal maltreatment
by the adopter despite having undergone counseling; MARRIAGE REQUISITES
2. Attempt on the life of the adoptee; Marriage as a Contract: - has two kinds of requisites
3. Sexual assault or violence; or –
Art. 2, FC. No marriage shall be valid, unless these essential
4. Abandonment or failure to comply with parental
requisites are present:
obligations. (1) Legal capacity of the contracting parties who must be a
male and a female; and
WHEN to file verified petition (sec.24): (2) Consent freely given in the presence of the solemnizing
Within 5 YEARS from reaching the age of majority or officer.
after recovery from incompetency. Art. 3,FC. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
Adverse party shall file his answer within 15 days from (2) A valid marriage license except in the cases provided for in
receipt of order of court requiring him to answer (sec. Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
22).
appearance of the contracting parties before the solemnizing
EFFECTS OF JUDGMENT OF RESCISSION: officer and their personal declaration that they take each other
1. Parental authority of the biological parent or legal as husband and wife in the presence of not less than two
custody of DSWD will be restored; witnesses of legal age.
2. Reciprocal rights of adopter and adoptee is
extinguished;
3. Vested rights prior to the judicial rescission shall be EMANCIPATION
respected; Emancipation takes place by the attainment of majority.
4. Successional rights shall revert to its status prior to Unless otherwise provided, majority commences at the
adoption, as of the date of judgment of judicial age of twenty-one years.
rescission;
5. Adoptee shall use the name in his original birth or Emancipation also takes place:
foundling certificate; and (1) By the marriage of the minor; or
6. Civil Registrar shall reinstate his original birth or (2) By the recording in the Civil Register of an
foundling certificate. agreement in a public instrument executed by the parent
exercising parental authority and the minor at least
eighteenyears of age. Such emancipation shall be
QUALIFICATION OF ADOPTER irrevocable.
CAPACITY OF ALIENS TO ADOPT
The cumulative substantive requirements of the forum
and of the national law of the adopter must be complied FAMILY CODE: RETROACTIVE
with (Salonga). APPLICATION; VESTED RIGHTS
EFFECTS OR CONSEQUENCES OF ADOPTION The provisions of the Family Code may apply retroactively but
a. Successional rights – governed by the conflict only if such application will not impair vested rights.
rules on succession.
b. Parental authority – governed by the national FAMILY HOME
law of the adopter. A family home is a dwelling place of a person and his family. It
confers upon a family the right to enjoy such property, which
RECOGNITION OF DECREE ON ADOPTION must remain with the person constituting it as a family home
The Philippines recognizes the principle of foreign and his heirs. It cannot be seized by creditors except in special
adoptions validly rendered and recognized where cases. (Taneo, Jr. v. Court of Appeals, G.R. No. 108532,
effected. However, such adoption is still subject to the March 9, 1999)
municipal law (like obligation to register said adoption in
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CONSTITUTIONAL MANDATES; periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by
DIVORCE the party whose parent or guardian did not give his or
Divorce obtained abroad by the alien spouse, or the her consent, within five years after attaining the age of
Filipino spouse which capacitates the alien spouse to twenty-one, or by the parent or guardian or person
marry, when valid abroad shall also be valid here in the having legal charge of the minor, at any time before such
Philippines. The same has the effect of capacitating the party has reached the age of twenty-one;
Filipino spouse to marry. (Manalo case) (2) For causes mentioned in number 2 of Article 45, by
the same spouse, who had no knowledge of the other's
This ruling, in effect, modified the Nationality Theory insanity; or by any relative or guardian or person having
under Article 15, NCC which originally restrict Filipino legal charge of the insane, at any time before the death
nationals from obtaining abroad a divorce decree, but of either party, or by the insane spouse during a lucid
with qualification that their marriage is a mix-marriage. interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by
GROUNDS FOR ANNULMENT the injured party, within five years after the discovery of
Art. 45. FC. A marriage may be annulled for any of the fraud;
the following causes, existing at the time of the (4) For causes mentioned in number 4 of Article 45, by
marriage: the injured party, within five years from the time the
(1) That the party in whose behalf it is sought to have the force, intimidation or undue influence disappeared or
marriage annulled was eighteen years of age or over but ceased;
below twenty-one, and the marriage was solemnized (5) For causes mentioned in number 5 and 6 of Article
without the consent of the parents, guardian or person 45, by the injured party, within five years after the
having substitute parental authority over the party, in that marriage. (87a)
order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived VOID MARRIAGE VOIDABLE
together as husband and wife; MARRIAGE
(2) That either party was of unsound mind, unless such
Inexistent from the time of Valid until annulled
party after coming to reason, freely cohabited with the
performance
other as husband and wife;
No community of property, Absolute community
(3) That the consent of either party was obtained by
only co-ownership exists unless another
fraud, unless such party afterwards, with full knowledge
system is agreed upon
of the facts constituting the fraud, freely cohabited with
in marriage settlement
the other as husband and wife;
Children are illegitimate, Children are legitimate
(4) That the consent of either party was obtained by
except art. 36 and art. 53 if conceived before
force, intimidation or undue influence, unless the same
decree of annulment
having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife; Cannot be ratified Can be ratified by free
(5) That either party was physically incapable of cohabitation or
consummating the marriage with the other, and such prescription
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually- •  May be attacked •  Cannot be
transmissible disease found to be serious and appears directly or collaterally but for attack collaterally, only
to be incurable. (85a) purposes of remarriage, directly.
there must be judicial •  Can no
declaration of nullity. longer be impugned
Art. 46. FC Any of the following circumstances shall
•  Can still be after the death on one
constitute fraud referred to in Number 3 of the
impugned even after death of the parties.
preceding Article:
of parties. •  Action
(1) Non-disclosure of a previous conviction by final
•  Action for nullity prescribes.
judgment of the other party of a crime involving moral
does not prescribe
turpitude;
(2) Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than her
husband; GROUNDS FOR DECLARATION OF
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
NULLITY
marriage; or VOID MARRIAGES
(4) Concealment of drug addiction, habitual alcoholism Art. 35. FamCode The following marriages shall be
or homosexuality or lesbianism existing at the time of the void from the beginning:
marriage. (1) Those contracted by any party below eighteen years
No other misrepresentation or deceit as to character, of age even with the consent of parents or guardians;
health, rank, fortune or chastity shall constitute such (2) Those solemnized by any person not legally
fraud as will give grounds for action for the annulment of authorized to perform marriages unless such marriages
marriage. (86a) were contracted with either or both parties believing in
good faith that the solemnizing officer had the legal
authority to do so;
PRESCRIPTION OF ANNULMENT CASE (3) Those solemnized without license, except those
ANNULMENT PROPER PARTY covered the preceding Chapter;
Art. 47. FamCode The action for annulment of marriage (4) Those bigamous or polygamous marriages not failing
must be filed by the following persons and within the under Article 41;
Page 7 of 29
(5) Those contracted through mistake of one contracting before its decree –
party as to the identity of the other; and termination – LEGITIMATE
(6) Those subsequent marriages that are void under LEGITIMATE
Article 53. (liquidation, partition and distribution of the Property relations
properties of the spouses, the custody and support of ACP/CPG shall be liquidated. Spouse who contracted
the common children, and the delivery of their the marriage in bad faith, his/her share in the net
presumptive legitimes. TAKE NOTE HOWEVER, this profits of the community property shall be forfeited in
requirement is not needed when declaration of nullity of favor of common children or if there are none, children
marriage is under Article 36 of FC. Article 53 is required of the guilty spouse by previous marriage or in default,
only in relation to Article 40 and 45) the innocent spouse.
PSYCHOLOGICAL INCAPACITY Donations Propter Nuptias
Art. 36. FC. A marriage contracted by any party who, at Shall remain VALID except:
the time of the celebration, was psychologically a. If donee contracted the marriage in bad
incapacitated to comply with the essential marital faith, donations propter nuptias made to the donee are
obligations of marriage, shall likewise be void even if revoked by operation of law.
such incapacity becomes manifest only after its b. If both spouses acted in bad faith,
solemnization. (As amended by Executive Order 227) donations propter nuptias made by one in favor of the
NOTES: other are revoked by operation of law.
PSYCHOLOGICAL INCAPACITY
Has no exact definition but is restricted to psychological Insurance
incapacity to comply with the essential marital If one spouse acted in bad faith, innocent spouse may
obligations of marriage. In involves a senseless, revoke his designation as beneficiary in the insurance
protracted, and constant refusal to comply with the policy even if such designation be stipulate
essential marital obligations by one or both of the irrevocable
spouses although he or she, or they are physically Succession
capable of performing such obligations (Chi Ming Tsoi If one spouse contracted the marriage in bad faith, he
vs. CA, 266 SCRA 234, [1997]). shall be disqualified to inherit from the innocent
• Note that in this case, there is refusal to have spouse both testate and intestate.
sex by the husband to the wife.
Art. 37. FC Marriages between the following are

incestuous and void from the beginning, whether GROUNDS FOR LEGAL SEPARATION
relationship between the parties be legitimate or Art. 55. FC. A petition for legal separation may be
illegitimate: filed on any of the following grounds:
(1) Between ascendants and descendants of any (1) Repeated physical violence or grossly abusive
degree; and conduct directed against the petitioner, a common child,
(2) Between brothers and sisters, whether of the full or or a child of the petitioner;
half blood. (81a) (2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
Art. 38. FC. The following marriages shall be void (3) Attempt of respondent to corrupt or induce the
from the beginning for reasons of public policy: petitioner, a common child, or a child of the petitioner, to
(1) Between collateral blood relatives whether legitimate engage in prostitution, or connivance in such corruption
or illegitimate, up to the fourth civil degree; or inducement;
(2) Between step-parents and step-children; (4) Final judgment sentencing the respondent to
(3) Between parents-in-law and children-in-law; imprisonment of more than six years, even if pardoned;
(4) Between the adopting parent and the adopted child; (5) Drug addiction or habitual alcoholism of the
(5) Between the surviving spouse of the adopting parent respondent;
and the adopted child; (6) Lesbianism or homosexuality of the respondent;
(6) Between the surviving spouse of the adopted child (7) Contracting by the respondent of a subsequent
and the adopter; bigamous marriage, whether in the Philippines or
(7) Between an adopted child and a legitimate child of abroad;
the adopter; (8) Sexual infidelity or perversion;
(8) Between adopted children of the same adopter; and (9) Attempt by the respondent against the life of the
(9) Between parties where one, with the intention to petitioner; or
marry the other, killed that other person's spouse, or his (10) Abandonment of petitioner by respondent without
or her own spouse. (82) justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include
EFFECT OF DECLARATION OF NULLITY a child by nature or by adoption.
or ANNULMENT
VOIDABLE DECLARATION ANNULMENT Art. 56. FC. The petition for legal separation shall be
BIGAMOUS OF NULLITY denied on any of the following grounds:
MARRIAGE (1) Where the aggrieved party has condoned the offense
(ART. 41) or act complained of;
Status of Children (2) Where the aggrieved party has consented to the
Children of ILLEGITIMATE Children commission of the offense or act complained of;
subsequent except art. 36 conceived or (3) Where there is connivance between the parties in the
marriage and art. 53 born before commission of the offense or act constituting the ground
conceived annulment for legal separation;
Page 8 of 29
(4) Where both parties have given ground for legal Art. 218.FC. The school, its administrators and teachers,
separation; or the individual, entity or institution engaged in child
(5) Where there is collusion between the parties to care shall have special parental authority and
obtain decree of legal separation; or responsibility over the minor child while under their
(6) Where the action is barred by prescription. (100a) supervision, instruction or custody.
NOTE: The following should be added to the grounds for
the denial of the petition of for legal separation— Authority and responsibility shall apply to all authorized
1. Death of either party during the pendency of the case activities whether inside or outside the premises of the
(Lapuz-Sy vs. Eufemio, 43 SCRA 177, [1972]); school, entity or institution.
2. Reconciliation of the spouses during the pendency of
the case. Art. 219. FC. Those given the authority and responsibility
under the preceding Article shall be principally and
Art. 57. FC An action for legal separation shall be filed solidarily liable for damages caused by the acts or
within five years from the time of the occurrence of the omissions of the unemancipated minor. The parents,
cause. (102) judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily
liable.
USE OF SURNAME The respective liabilities of those referred to in the
CHILD CONCERNED SURNAME TO BE preceding paragraph shall not apply if it is proved that
USED they exercised the proper diligence required under the
Legitimate child Father’s surname particular circumstances.
Legitimated child Father’s surname All other cases not covered by this and the preceding
Illegitimate child Mother’s surname; or articles shall be governed by the provisions of the Civil
Father’s surname if Code on quasi-delicts.
requisites under RA
9255 are complied
Conceived prior to the Father’s surname SUBSTITUTE VS. SPECIAL PARENTAL
annulment of marriage AUTHORITY
Conceived after the Mother’s surname SUBSTITUTE SPECIAL PARENTAL
annulment of marriage PARENTAL AUTHORITY
Adopted child Adopter’s surname AUTHORITY
It is exercised in It is exercised concurrently
Under the Family Code, an illegitimate child is required case of death, with the parental authority of
to use only the surname of the mother. Under RA 9255, absence, or the parents and rest on the
otherwise known as the Revilla law, however, the unsuitability of theory that while the child is in
ILLEGITIMATE CHILD IS GIVEN THE OPTION to use parents. Hence, it is the custody of the person
the surname of the illegitimate father when the latter has not exercised by the exercising special parental
recognized the former in accordance with law. Since the parents authority, the parents
choice belongs to the illegitimate child, the child cannot temporarily relinquish parental
compelled, if already of age, to use the surname against authority over the child to the
his will. If the child is still a minor, to use the surname of latter
the father will require the consent of child’s mother who
has sole parental authority over her. PATERNIT Y & FILIATION; ARTIFICIAL
INSEMINATION; FORMALITIES
PARENTAL AUTHORITY; CHILD UNDER Art. 164.FC. Children conceived or born during the
7 YEAR OF AGE marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of
Art. 213. FC. In case of separation of the parents, the wife with the sperm of the husband or that of a donor
parental authority shall be exercised by the parent or both are likewise legitimate children of the husband
designated by the Court. The Court shall take into and his wife, provided, that both of them authorized or
account all relevant considerations, especially the choice ratified such insemination in a written instrument
of the child over seven years of age, unless the parent executed and signed by them before the birth of the
chosen is unfit. (n) child. The instrument shall be recorded in the civil
No child under seven years of age shall be separated from the registry together with the birth certificate of the child.
mother unless the court finds compelling reasons to order
otherwise. LEGITIMATE CHILDREN
Only children conceived or born during a valid marriage.
"Article 176. Illegitimate children shall use the surname Exceptions:
and shall be under the parental authority of their mother, 1. Conceived as a result of artificial insemination;
and shall be entitled to support in conformity with this 2. Born of a voidable marriage before decree of
Code.” annulment;
3. Conceived or born before judgment of annulment or
absolute nullity under art. 36 (becomes final and
PARENTAL AUTHORITY; SPECIAL executory;
PARENTAL AUTHORITY LIABILITY OF 4. Conceived or born of a subsequent marriage under
TEACHERS art. 53;
5. Of mothers who may have declared against their
legitimacy or was sentenced as an adulteress;
Page 9 of 29
6. Legally adopted; PROPERTY RELATIONS; ABSOLUTE

7. Legitimated child/ren.
COMMUNITY
Art. 92. FC. The following shall be excluded from the
Art. 165. FC Children conceived and born outside a valid community property:
marriage are illegitimate, unless otherwise provided in (1) Property acquired during the marriage by gratuitous
this Code. title by either spouse, and the fruits as well as the
income thereof, if any, unless it is expressly provided by
Art. 166. FC, Legitimacy of a child may be impugned the donor, testator or grantor that they shall form part of
only on the following grounds: the community property;
(1) That it was physically impossible for the husband to (2) Property for personal and exclusive use of either
have sexual intercourse with his wife within the first 120 spouse. However, jewelry shall form part of the
days of the 300 days which immediately preceded the community property;
birth of the child because of: (3) Property acquired before the marriage by either
(a) the physical incapacity of the husband to have sexual spouse who has legitimate descendants by a former
intercourse with his wife; marriage, and the fruits as well as the income, if any, of
(b) the fact that the husband and wife were living such property.
separately in such a way that sexual intercourse was not
possible; or
(c) serious illness of the husband, which absolutely
PROPERTY RELATIONS; ANTE NUPTIAL
prevented sexual intercourse; AGREEMENT
(2) That it is proved that for biological or other scientific Absent of prenuptial agreement, the default regime of
reasons, the child could not have been that of the property of the spouses is absolute community of
husband, except in the instance provided in the second property.
paragraph of Article 164; or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
PROPERTY RELATIONS ;CONJUGAL
either parent was obtained through mistake, fraud, PARTNERSHIP OF GAINS
violence, intimidation, or undue influence. Art. 106. FC. Under the regime of conjugal partnership
of gains, the husband and wife place in a common fund
the proceeds, products, fruits and income from their
RECOGNITION OF ILLEGITIMATE CHILD separate properties and those acquired by either or both
Art. 172.FC. The filiation of legitimate children is spouses through their efforts or by chance, and, upon
established by any of the following: dissolution of the marriage or of the partnership, the net
(1) The record of birth appearing in the civil register or a gains or benefits obtained by either or both spouses
final judgment; or shall be divided equally between them, unless otherwise
(2) An admission of legitimate filiation in a public agreed in the marriage settlements.
document or a private handwritten instrument and
signed by the parent concerned. Exclusive Property of Each Spouse
In the absence of the foregoing evidence, the legitimate Art. 109.FC. The following shall be the exclusive
filiation shall be property of each spouse:
proved by: (1) That which is brought to the marriage as his or her
(1) The open and continuous possession of the status of own;
a legitimate child; or (2) That which each acquires during the marriage by
(2) Any other means allowed by the Rules of Court and gratuitous title;
special laws. (265a, 266a, 267a) (3) That which is acquired by right of redemption, by
barter or by exchange with property belonging to only
Art. 175.FC Illegitimate children may establish their one of the spouses; and
illegitimate filiation in the same way and on the same (4) That which is purchased with exclusive money of the
evidence as legitimate children. wife or of the husband.
The action must be brought within the same period REVERSE ACCESSION
specified in Article 173, except when the action is based Art. 120.FC. The ownership of improvements, whether
on the second paragraph of Article 172, in which case for utility or adornment, made on the separate property
the action may be brought during the lifetime of the of the spouses at the expense of the partnership or
alleged parent. (289a) through the acts or efforts of either or both spouses shall
pertain to the conjugal partnership, or to the original
RIGHTS OF LEGITMATE CHILD owner-spouse, subject to the following rules:
Art. 174.FC. Legitimate children shall have the right: When the cost of the improvement made by the conjugal
(1) To bear the surnames of the father and the mother, partnership and any resulting increase in value are more
in conformity with the provisions of the Civil Code on than the value of the property at the time of the
Surnames; improvement, the entire property of one of the spouses
(2) To receive support from their parents, their shall belong to the conjugal partnership, subject to
ascendants, and in proper cases, their brothers and reimbursement of the value of the property of the owner-
sisters, in conformity with the provisions of this Code on spouse at the time of the improvement; otherwise, said
Support; and property shall be retained in ownership by the owner-
(3) To be entitled to the legitime and other successional spouse, likewise subject to reimbursement of the cost of
rights granted to them by the Civil Code. (264a) the improvement.
In either case, the ownership of the entire property shall
Page 10 of 29
be vested upon the reimbursement, which shall be made equivalent to half of the estate of the decedent
at the time of the liquidation of the conjugal partnership. Illegitimate children: entitled to equivalent of one half of
the share of the legitimate children which share must be
PROPERTY RELATIONS ; UNION taken from the free portion
Spouse: entitled to equal of the share of each legitimate
WITHOUT MARRIAGE; COMMON LAW child which share must be taken from the free portion.
UNION
If the property of decedent is not sufficient to satisfy the
NOT MARRIED BUT WITHOUT LEGAL IMPEDIMENT above computation, reduce the share in the free portion
Art. 147. FC When a man and a woman who are so as not to impair the legitime.
capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of Art. 1002. NCC. In case of a legal separation, if the
marriage or under a void marriage, their wages and surviving spouse gave cause for the separation, he or
salaries shall be owned by them in equal shares and the she shall not have any of the rights granted in the
property acquired by both of them through their work or preceding articles.
industry shall be governed by the rules on co-ownership.
BARRIER BETWEEN ILLEGITIMATE &
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to LEGITIMATE RELATIVES
have been obtained by their joint efforts, work or Art. 992. NCC. An illegitimate child has no right to inherit
industry, and shall be owned by them in equal shares. ab intestato from the legitimate children and relatives of
For purposes of this Article, a party who did not his father or mother; nor shall such children or relatives
participate in the acquisition by the other party of any inherit in the same manner from the illegitimate child.
property shall be deemed to have contributed jointly in (943a)
the acquisition thereof if the former's efforts consisted in
the care and maintenance of the family and of the COLLATION
household. Is the act by virtue of which, the persons who concur in
Neither party can encumber or dispose by acts inter the inheritance bring back to the common hereditary
vivos of his or her share in the property acquired during mass the property which they may have received from
cohabitation and owned in common, without the consent him, so that a division may be effected according to law
of the other, until after the termination of their and the will of the testator
cohabitation. “To Collate” – is to bring back or return to the
hereditary mass, in fact or by fiction, property which
When only one of the parties to a void marriage is in came from the estate of the decedent, during his lifetime,
good faith, the share of the party in bad faith in the co- but which the law considers as an advance from the
ownership shall be forfeited in favor of their common inheritance.
children. In case of default of or waiver by any or all of
the common children or their descendants, each vacant
share shall belong to the respective surviving DISINHERITANCE VS. PRETERITION
descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the PRETERITION DISINHERITANCE
forfeiture shall take place upon termination of the Deprivation of a Deprivation of the
cohabitation. (144a) compulsory heir of his compulsory heir of his
NOT MARRIED AND WITH LEGAL IMPEDIMENT legitime is tacit legitime is express
Art. 148.FC. In cases of cohabitation not falling under May be voluntary but law Always voluntary
the preceding Article, only the properties acquired by presumes that it is
both of the parties through their actual joint contribution involuntary
of money, property, or industry shall be owned by them Law presumes that there Done with legal cause
in common in proportion to their respective contributions. has been a mistake or
In the absence of proof to the contrary, their oversight on the part of
contributions and corresponding shares are presumed to the testator
be equal. The same rule and presumption shall apply to Omitted heir gets not only If disinheritance is
joint deposits of money and evidences of credit. his legitime but also his unlawful, compulsory
If one of the parties is validly married to another, his or share in the free portion heir is merely restored to
her share in the co-ownership shall accrue to the not disposed of by way of his legitime
absolute community or conjugal partnership existing in legacies and devises
such valid marriage. If the party who acted in bad faith is
not validly married to another, his or her shall be
forfeited in the manner provided in the last paragraph of
the preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith. (144a) HEIRS; INTESTATE HEIRS; RESERVA
TRONCAL
Art. 891. NCC. The ascendant who inherits from his
SUCCESSION LAW descendant any property which the latter may have
AMOUNT OF SUCCESSIONAL RIGHT; acquired by gratuitous title from another ascendant, or a
PRESUMPTIVE LEGITIME brother or sister, is obliged to reserve such property as
Legitimate children: entitled to the legitimate which is he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who
Page 11 of 29
belong to the line from which said property came. (871) grandparent in the maternal line while both grandparents
survived in the paternal line.
RESERVA TRONCAL
Art. 891 is the provision on Reserva Troncal. NOTE: I.S.R. R.A.I Rule (Paras)
PURPOSE: In all cases where there has been institution of heirs,
1. To reserve certain properties to certain persons; follow ISRAI. If the Institution fails, Substitution
2. To prevent person outside a family from acquiring, by occurs. If there is no substitute, right of Representation
some chance or accident, property which otherwise occurs in the direct descending line to the legitime if the
would have remained with the said family; vacancy is caused by predecease, incapacity, or
3. To maintain separation between paternal and disinheritance. The right of Accretion applies to the free
maternal lines. portion when the requisites in art. 1016 are present. If
there is no substitute, and the right of representation or
REQUISITES OF RESERVA TRONCAL: accretion does not apply, the Rule of Intestacy shall
1. The property should have been acquired by operation take over.
of law by an ascendant (RESERVISTA) from his
descendant (PROPOSITUS), upon death of the latter;
INTESTATE SUCCESSION; INTESTATE
Note: by operation of law means that the property is PROCEEDINGS; JURISDICTION
acquired by succession, either by legitime or intestacy. Real action: any action involving title to, or possession of
2. The property should have been acquired by the real property or any interest therein, except unlawful
propositus by gratuitous title from another ascendant or detainer and forcible entry, the jurisdiction is based on
from a brother or sister (ORIGINITOR). the assessed value of the real property.
Note: Gratuitous title encompasses succession and Sction 1 of Rule 73, settlement of Estate of deceased
donation. person, does not relate to jurisdiction but venue. Hence,
3. The propositus should have died without any it can be waived if an action is filed in a court of wrong
legitimate issue in the direct descending line who could venue, and there is no motion to dismiss filed on such
inherit from him. ground of wrong venue. (Uriati vs. CFI, L-21938 May 29,
1970)
NOTE: All the relationships must be legitimate (Nieva vs.
Alcala, 41 Phil. 495). WILLS; CODICIL; INSITUTION OF HEIR;
SUBSTITUTION
INTESTATE SUCCESSION A MODAL INSTITUTION is the institution of an heir made for a
INTESTATE HEIRS: certain purpose or cause (Arts. 871 and 882, NCC).
1. Legitimate children/descendants; SUBSTITUTION is the appointment of another heir so that he
may enter into the inheritance in default of the heir originality
2. Illegitimate children/descendants; instituted. (Art. 857, NCC).
3. Legitimate parents/ascendants;
4. Illegitimate parents; In a SIMPLE SUBSTITUTION of heirs, the testator designates
5. Surviving spouse; one or more persons to substitute the heirs instituted in case
6. Brothers and sisters, nephews and nieces; such heir or heirs should die before him, or should not wish or
7. Other collateral relatives up to the 5th degree; should be incapacitated to accept the inheritance.
8. State.
In a FIDEICOMMISSARY SUBSTITUTION, the testator
BASIC PRINCIPLES IN INTESTATE SUCCESSION: institutes a first heir and charges him to preserve and transmit
the whole or part of the inheritance to a second heir. In a
1. Intestate heirs always related by blood. simple substitution, only one heir inherits. In a fideicommissary
substitution, both the first and second heirs inherit. (Art. 859
Except: and 869, NCC)
a. Spouse;
b. Adoptive relation;
c. State. WILLS; FORMALITIES
LAWS GOVERNING VALIDITY OF A WILL:
2. Proximity rule applies – relative nearest in degree 1. Formal Validity—
excludes the more distant ones. a. If the testator is a Filipino and the will is executed in
3. Direct line is always preferred over collateral relatives. the Philippines, then its formal validity is governed by the
4. Descending line is always preferred than ascending NCC.
line and collateral lines. b. If the testator is a Filipino and will is executed in a
5. Rule of equal division – relatives in same degree foreign country, then its formal validity is governed either
(same class) shall inherit in equal shares. —
I. By the law of the place where the will was
Exception: made; or
a. Descending line – difference in class in the II. By the NCC.
cases of legitimate or illegitimate filiation. c. If the testator is a foreigner and the will is executed in
I. In case of paternal/maternal lines. a foreign country—
II. Collateral – half or full blood. I. Law of the place where will was executed;
II. Law of his own country;
b. Ascending line – the shares are divided III. By the NCC
equally between paternal and maternal lines which could
result to unequal shares when there is only one d. If testator is a foreigner and will is executed in the
Page 12 of 29
Philippines— contracts.
I. Law of his country;
II. By the NCC. KINDS: AS TO EFFECTIVITY OR EXTINGUISHMENT
1. Pure;
2. Substantive Validity—by the National law of the 2. Conditional;
decedent (art. 16, NCC). 3. With a term or period.
Aspects of the will governed by the national law— ACCEPTANCE: RULES

a. Order of succession; a. Acceptance must be made personally or thru
b. Capacity to succeed; an authorized agent;
c. Amount of successional rights; b. Donation may be made orally or in writing—
d. Intrinsic validity
Movable:
Art. 818.NCC. Two or more persons cannot make a will i. 5, 000 and below – may be oral or written. If oral, it
jointly, or in the same instrument, either for their must be with simultaneous delivery of the
reciprocal benefit or for the benefit of a third person. i thing/document and acceptance need not be in
(669) writing.
ii ii. If above 5,000 – must be written and
acceptance must also be written.
WILLS; HOLOGRAPHIC WILLS
Immovable: must be in a public document (instrument)
HOLOGRAPHIC WILL and acceptance must also be in a public instrument (in
Requisites: the same deed of donation or in any other instrument);
1) In writing and in a language or dialect known to the otherwise it is void.
testator; c. Must be made during the lifetime of the donor
2) Entirely written, dated and assigned by the hand of and the donee.
the testator himself;
DONATION VS. SALE
NOTE: As a GR, forms and solemnities of contracts, Art. 751. NCC. Donations May cover future
wills, and other public instruments SHALL be governed cannot comprehend property. For the sale to be
by lex loci celebracionis (art. 17, NCC). This article is future property. valid, the law does not
one of the exceptions. require the seller to be the
RULES IN INSERTION, CANCELLATION, ERASURE By future property is owner of the property at the
OR ALTERATION IN A HOLOGRAPHIC WILL: (by 3 rd understood anything time of the sale. (Article
persons) 1434, NCC). If the seller
which the donor cannot cannot transfer ownership
1. If made after the execution of the will, but without the dispose of at the time of
consent of the testator, such insertion is considered as over the thing sold at the
the donation. (635) time of delivery because he
not written because the validity of the will cannot be
was not the owner thereof,
defeated by the malice or caprice of a 3rd person. he shall be liable for breach
of contact.
2. If the insertion after the execution of the will was with
the consent of the testator (but not validated), the will
remains valid but the insertion is void; DONATIONS; CONDITION; REVOCATION
Until the contract of donation has been resolved or rescinded
3. If the insertion after the execution of the will is under Article 1191 of the Civil Code or revoked under Art. 764
validated by the testator by his signature thereon, then of the Civil Code, the donation stands effective and valid.
the insertion becomes part of the will, and the entire will
becomes void, because of failure to comply with the BIRTH OF NON- INGRATITU
requirement that it must be wholly written by the testator. CHILD FULFILLMENT DE
OF A CONDITION
4. If the insertion made by a 3 rd person is made Ipso jure Needs court Needs court
contemporaneous to the execution of the will, then the revocation, no action action
will is void because it is not written entirely by the need for court
testator. action. Court
decision is
merely
DONATION declaratory
KINDS: AS TO CONSIDERATION Extent: portions Extent: whole Extent:
1. Simple – the cause of which is pure liberality of the which may impair portion but court whole
donor in consideration of the donee’s merits legitime of heirs may rule partial portion
2. Remunatory or compensatory – that which is given Alienation/mortga revocation only returned
out of gratitude on account of the services rendered by ges done prior to Alienations/mortga Prior ones
the done, provided that they do not constitute a the recording in ges imposed are are valid;
demandable debt. the RoD: void unless demand
3. Modal – that which imposes upon the done a burden If already sold or registered with the value of
less than the value of the gift. cannot be RoD property
4. Onerous – the value of which is considered the returned – the when
equivalent of the consideration for which it is given and value must be alienated
is thus governed by the rules of obligations and returned and can’t be
Page 13 of 29
If mortgaged – recovered or
donor may redeem from WHO MAY ACCEPT DONATIONS:
redeem the 3rd persons 1. natural and juridical persons which are not specifically
mortgage with disqualified by law;
the right to 2. minors and other incapacitated—
recover from the a. by themselves
donee i. if pure and simple donation
ii. if it does not require written acceptance
b. by guardian, legal representative, if needs written
Fruits to be Return the Fruits to be acceptance
returned at filing property and the returned at i. natural guardian – if not more than 50, 000.
of action for fruits filing of ii. Court appointed guardian – more than 50, 000.
revocation complaint 3. Conceived and unborn child, represented by person
Prescription of Prescription is 4 Prescription who would have been guardian if already born.
action is 4 years years from non- is 1 years
from birth fulfillment of from
condition knowledge DONATIONS; MOVABLE
of fact and it Art. 748. The donation of a movable may be made orally
was or in writing.
possible for An oral donation requires the simultaneous delivery of
him to bring the thing or of the document representing the right
action donated.
Right of action is Right of action at Heirs can’t If the value of the personal property donated exceeds
transmitted to the instance of donor file action five thousand pesos, the donation and the acceptance
heirs but may be shall be made in writing, otherwise, the donation shall
transmitted to be void.
heirs.
Action extends to Action does not GR: cannot DONATIONS; REQUISITES; IMMOVABLE
donee’s heirs extend to donee’s extend to
heirs donees PROPERTY
heirs Immovable:
Action cannot be Action cannot be Action 1. must be in a public document (instrument) and
renounced renounced in cannot be acceptance must also be in a public instrument
advance renounced (in the same deed of donation or in any other
in advance instrument); otherwise it is void.
2. Must be made during the lifetime of the donor
and the donee.
DONATIONS; ILLEGAL
Art. 739. NCC. The following donations shall be void:
(1) Those made between persons who were guilty of
DONATIONS TO CONCEIVED CHILD
adultery or concubinage at the time of the donation; BUT NOT YET BORN
(2) Those made between persons found guilty of the See discussion supra.
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
DONATIONS WITH RESOLUTORY
In the case referred to in No. 1, the action for declaration CONDITION
of nullity may be brought by the spouse of the donor or
donee; and the guilt of the donor and donee may be RULES IN CASE OF DOUBLE DONATIONS:
proved by preponderance of evidence in the same Priority in time, priority in right.
action. a. Movable – one who first took possession in
good faith.
DONATIONS MORTIS CAUSA b. Immovable – one who recorded in registry of
property in good faith.
See law on succession
 If no inscription, one who first took possession
Art. 728. Donations which are to take effect upon the
in good faith
death of the donor partake of the nature of testamentary
 In the absence thereof, one who can present
provisions, and shall be governed by the rules
the oldest title.
established in the Title on Succession. (620)
Note: In case of doubt as to the nature of the donation; it
is presumed inter vivos. PROPERTY
BADGES OF MORTIS CAUSA DONATION: ACCRETION; ALLUVIUM
1. Title remains with the donor (full or naked ownership)
Art. 457. To the owners of lands adjoining the banks of
and conveyed only upon death;
rivers belong the accretion which they gradually receive
2. Donor can revoked ad mutuum;
from the effects of the current of the waters. (336)
3. Transfer is void if donor survives the done.
NOTE: The riparian owner owns the accretion as an
exchange of the risk that his land is subjected to by
DONATIONS INTER VIVOS; reason of the action of the river.
ACCEPTANCE • The natural action of the river causing loss of the
land is considered as “Natural Expropriation”.
Page 14 of 29
Land Owner Owner of

NOTE: This process of natural action of the river causing (LO) Materials (OM)
loss to other’s estate does not violate the indefeasibility OM = GF Becomes the 1. Entitled to
of titile issued under Torrens Title. Reason: Natural LO = GF; owner of the reimbursement
Expropriation. (Viajar vs. CA, 168 SCRA 405, [1988]). Or material but he (provided he
OM = BF must pay for does not remove
Dried up river bed is not considered as alluvium. The LO = BF (as their value. them).
dried up river bed is a property of public domain. Unless if both in Exception: 2. Entitled to
there is a positive act of the state which makes the land GF) When they can removal
as alienable and disposable, the same cannot be subject be removed (provided no
of acquisitive prescription. without substantial injury
destruction to is caused)
the work made
ACCRETION;AVULSION or to the plants.
AVULSION
In such case,
Is the process whereby a portion of a land is segregated
the owner of
from an estate by the current of a river, creek or torrent
the material
and transferred to another estate.
can remove
Requisites:
them.
1. The segregation and transfer must be caused by the
LO = BF He becomes Entitled to the
current of a river, creek or torrent;
OM = GF the owner of absolute right of
2. Sudden or abrupt;
the materials removal and
3. Portion of land must be identifiable.
but he must damages
pay: (whether or not
Note: Removal is not necessarily physical removal.
1. Their value; substantial injury
and would be
BUILDER and PLANTER IN GOOD FAITH 2. Damages. caused).
VS. BAD FAITH
OBLIGATIONS: Exception:
when the
owner of the
1. Gathered fruits.
materials
Planter Owner
decides to
Planter in GF Keeps fruits No necessity
remove them
to reimburse
whether or not
the planter for
destruction
expenses
would be
since he
caused. In this
retains the
case, the
fruits
materials would
Planter in BF Reimbursed Gets fruits,
still belong to
of expenses pay planter
the owner of
for expenses
the materials
production,
who in addition
gathering,
will still be
and
entitled to
preservation
damages
2. Standing Crops LO =GF 1. Exempted Will lose all rights
Planter Owner OM = BF from to the material,
Planter in GF Reimbursed Owns the reimbursement; such as the right
for expenses fruits provided 2. Entitled to of removal,
for production, he pays the consequential regardless of
gathering and planter damages. whether or not
preservation expenses for substantial injury
production, would be caused.
gathering and
preservation 2. Rules when on land of a person another builds,
Planter in BF Loses Own fruits sows or plants
everything. No Land Owner Builder (B)
right to (LO)
reimbursement LO = GF Choice either— 1. Right to
B = GF; a. Appropriate payment of
RULES WHEN THE LANDOWNER CONTSRUCTS OR or as his own indemnity—
PLANTS ON HIS LAND WITH MATERIALS OF LO =BF after paying a. Necessary
ANOTHER B = BF for indemnity; expenses,
(both as if b. Or to compel right of
1. LO and OM are both in good faith; or LO and OM in GF) the builder to retention
both in bad faith
Page 15 of 29
buy the land until value plus (substantial

upon which reimbursed; damages. injury is
the building is b. May Exception: When immaterial);
built. removed the the owner of the
ornaments material decides 2. Entitled to
Exception: if the with which to remove them reimburseme
value of the land he has whether or not nt and
is considerably embellished destruction would damages (in
more than the the principal be caused. In this cases he
value of the thing if it case, the chooses not
building. suffers no materials would to remove)
In such a case, injury, and if still belong to the
the builder shall his owner of said
pay reasonable successor in materials, who in
rent. They shall the addition, will still
agree upon the possession be entitled to
terms of the does not damages
lease. In case of prefer to
disagreement, refund the EASEMENT VS. USUFRUCT
court shall fix the amount
USUFRUCT EASEMENT
terms. expended
Object May be real or Involves only real
No right of
personal property property
retention, LO
entitled for Extent Fruits and all uses Limited to
removal of of the property particular use
improvement Cannot be May be
LO = GF 1. Gets the 1. Loses what is Coverag constituted on an constituted in
B = BF accessory built, planted, e easement; but it favor of a land
without paying or sown may be constituted held in usufruct
any indemnity without right to on a land burdened
for its value or indemnity; with an easement
expenses (but 2. Liability for Usually Not extinguished
with obligation damages; Effect of extinguished by by death of the
to pay 3. Entitled to death death of the owner of the
necessary necessary usufructuary dominant estate
expenses for expenses of
the preservation of
preservation of land USUFRUCT LEASE
the land); and Covers all fruits Generally covers
damages extent and uses as a only particular or
2. Demand the rule specific use
demolition of Real right only if
the work, or Is always a real lease is registered
that the Nature right or is for more that
planting or one year; otherwise,
sowing be it is only a personal
removed, at right
the builder’s Can be created The lessor may or
expense; and only by the may not be the
damages Creator owner, or by a owner as in a sub-
3. Compel the duly authorized lease or where
builder or agent, acting in lessor is only a
planter to pay behalf of the usufructuary
the price of the owner
land, and the As a rule created by
sower the contract.
proper rent May be created Exceptions:
whether or not Origin by law, contract, a. Implied new
the value of last will, or lease under art.
the land is prescription 1670, NCC;
considerabley b. Forced lease
ore that the under art. 448,
value of the NCC
building; and The owner is
damages more or less The owner or lessor
LO = BF He becomes the 1. Entitled to the Cause passive, and he is more or less
B = GF owner of the absolute right allows the active, and he
materials but of removal usufructuary to makes the lessee
must pay their and damages enjoy the thing enjoy
Page 16 of 29
given in usufruct
The Lessee generally
Repairs usufructuary has has no duty to make
RECOVERY OF POSSESSION
the duty to make or pay for repairs REMEDIES
ordinary repairs ACTIONS FOR POSSESSION:
The 1. Movable—
usufructuary The lessee  Repliven (Rule 60, ROC).
Taxes pays for the generally pays no  See Remedial Law Reviewer.
annual charges taxes
and taxes on the 2. Immovable—
fruits a. Accion interdictal (Rule 70)—(First Level
As to Usufructuary The lessee cannot Court)
other may lease the constitute a usufruct i. Forcible entry (detentacion);
things property to on the property ii. Unlawful detainer.
another leased.
b. Accion publiciana—plenary action to
recover the better right of possession; must
USUFRUCT be brought within a period of 10 years,
CHARACTERISTICS/ELEMENTS: otherwise the real right of possession is lost.
1. Essential – those without which, it cannot be Issue is possession de jure not de facto;
termed usufruct ordinary civil proceeding. (Real Action,
a. It is a real right (whether registered or jurisdiction is based on assessed value.)
not);
b. It is of a temporary nature or duration; c. Accion reinvindicatoria—recovery of
c. Its purpose is to enjoy the benefits and dominion of property as owner. Issue, is
derive all advantages from the object as ownership and possession (e.g. Cancellation
a consequence of normal use or of Title with Reconveyance, Quieting of Title)
exploitation. (Real Action, jurisdiction is based on
assessed value.)
2. Natural – that which ordinarily is present, but a
contrary stipulation can eliminate it because it is
not essential; PARTITION
a. The obligation of conserving or Governed by Rule 69. If an heir has not received his
preserving the form and substance share in the inheritance, the remedy is to file a case for
(value) of the thing. reconveyance. The other heirs are deemed constituted
as trustee of the property.
3. Accidental – those which may be present or
absent depending upon the stipulation of the Art. 1451. When land passes by succession to any
parties person and he causes the legal title to be put in the
a. Whether it be a pure or a conditional name of another, a trust is established by implication of
usufruct; law for the benefit of the true owner.
b. Number of years it will exist;
c. Whether it is in favor of one person or HIDDEN TREASURES
several, etc. Art. 438. Hidden treasure belongs to the owner of the
land, building, or other property on which it is found.
EASEMENT; NUISANCE; ABATEMENT Nevertheless, when the discovery is made on the
Article 637 of the New Civil Code provides that the owner of property of another, or of the State or any of its
the higher estate cannot make works which will increase the subdivisions, and by chance, one-half thereof shall be
burden on the servient estate. (Remman Enterprises, Inc. v. allowed to the finder. If the finder is a trespasser, he
CA, 330 SCRA 145 [2000]). shall not be entitled to any share of the treasure.
If the things found be of interest to science of the arts,
the State may acquire them at their just price, which
EASEMENT RIGHT OF WAY shall be divided in conformity with the rule stated. (351a)
REQUISITES:
NOTES:
1. The dominant estate must be surrounded by
 Usufructuary is considered a stranger.
other immovables, and which has no adequate
 Chance” does not mean sheer luck. It includes
outlet to a public highway;
intentional act of looking for the hidden treasure with the
2. Payment of proper indemnity;
use of gadgets.
No indemnity if land is acquired by and
 If there is agreement regarding the sharing, the
is surrounded by the other estates of the
agreement may be followed.
vendor, exchanger, or co-owner through
 If the finder is merely employed to dig or find the
—
treasure, he is not entitled to a share BUT is entitled to
a. Sale;
his wages.
b. Exchange;
c. partition
3. Isolation should not be due to proprietor’s own MORTGAGE; PACTUM COMMISSORIUM
acts; The property constituted as a security of a loan cannot
4. Right of way claimed is at a point least be stipulated to be automatically owned by the creditor in
prejudicial to the servient estate case of non-payment of the obligation. Such is against
Page 17 of 29
public policy.
Art. 2088. The creditor cannot appropriate the things CO-OWNERSHIP PARTNERSHIP
given by way of pledge or mortgage, or dispose of them.
No legal personality Has a distinct legal or
Any stipulation to the contrary is null and void. (1859a)
juridical personality
PROHIBITION AGAINST PACTUM COMMISSORIUM
Created by contract or Created by contract
1. Stipulation is null and void.
other things (like law, only
2. Requisites:
succession, etc.)
a. There should be a pledge or mortgage;
b. There should be a stipulation for an Purpose is collective Purpose is for profit
automatic appropriation by the creditor enjoyment of a thing
of the property in the event of non- Agreement for it to exist
payment. for more than 10 years
(valid as to the 10 years
3. Effect on security contract – nullity of the and void as to the No term limit
stipulation does not affect validity and efficacy of excess)
the principal contract.
If imposed by the
testator of a donor, valid
RIGHT OF REDEMTION VS. EQUITY OF up to 20 years (void as
REDEMPTION to the excess)
As a rule, there is
As a rule, no mutual mutual representation
JUDICIAL EXTRAJUDICIAL representation (when no managing
FORECLOSURE FORECLOSURE partner is appointed in
Requires court No court intervention the articles)
intervention necessary Not dissolved by death Dissolved by death or
There is only an equity Right of redemption exists or incapacity of a co- incapacity of a partner
redemption owner
Rule 68 Act 3135 Cannot dispose his
Can dispose of his share in such a way that
EQUITY of RIGHT OF REDEMPTION share without consent will make the transferee
REDEMPTION of other co-owners a partner without
Right of the defendant Right of the debtor, his consent of the other
mortgagor to extinguish successors in interest or partner
the mortgage and retain any judicial or judgment Profits are dependent Profits may be
ownership of the creditor of said debtor or on the proportionate stipulated upon by the
property by paying the any person having lien on share partners.
debt within 90- 120 the property subsequent to
days after the entry of the mortgage or deed of
judgment or even after trust under which the CO-OWNERSHIP JOINT TENANCY
the foreclosure but prior property is sold to redeem Involves a physical Involves a physical
to confirmation of sale the property within 1 year whole. But there is an whole. But there is no
by the court from the registration of the ideal or abstract ideal or abstract
sheriff’s certificate of division; each co-owner division; each and all of
foreclosure sale being the owner of his them own the whole
Governed by Rule 68 Governed by Rule 39 sec. ideal share thing
29- 31 Each co-owner may Each joint owner may
Period is 90- 120 days Period is 1 year from date dispose of his ideal or not dispose of his own
after entry of judgment of registration of certificate undivided share without share without the
or prior to confirmation of sale the other’s consent consent of all the rest,
of sale because he really has
no ideal share
NUISANCE If a joint tenant dies, his
Art. 694. A nuisance is any act, omission, establishment, If a co-owner dies, his share goes by accretion
business, condition of property, or anything else which: share goes to his own to the other joint tenants
(1) Injures or endangers the health or safety of others; or heirs by virtue of their
(2) Annoys or offends the senses; or survivorship or jus
(3) Shocks, defies or disregards decency or morality; or accrecendi
(4) Obstructs or interferes with the free passage of any If a co-owner is a minor, If one joint tenant is
public highway or street, or any body of water; or this does not benefit the under legal disability
(5) Hinders or impairs the use of property. others for the purpose (like minority), this
of prescription, and benefits the other
prescription therefore against whom
CO-OWNERSHIP runs against them prescription will not run
When a property is owned by several people, there exist
co-ownership.
CO-OWNERSHIP RIGHTS
RIGHTS OF CO-OWNERS:
1. Right to benefits proportional to respective
Page 18 of 29
interest; citizens. However, by way of exception, juridical persons

2. Right to use the thing co-owned— may apply for registration of leased agricultural and
a. For purpose for which it is intended; disposable lands not exceeding 1,000 hectares in area
b. Without prejudice the interest of the co- for a period of 25 years and renewable for not more than
ownership; 25 years (sec. 3, article XII, 1987 Constitution), and
c. Without preventing the other co-owners except when the land has been previously acquired by
from making use thereof; prescription by a natural person and subsequently
3. Right to change the purpose of the co-ownership transferred to a juridical entity (in this case, a corporation
by agreement; may apply for judicial confirmation of title).
4. Right to bring an ejectment suit in behalf of the
other co-owner;
5. Right to compel other co-owner to contribute to
ADVERSE CLAIMS; NOTICE OF LEVY
While an adverse claim duly annotated at the back of a title
necessary expenses for preservation of the thing under Section 7O of P.D. 1529 is good only for 30 days,
and taxes; cancellation thereof is still necessary to render it ineffective,
6. Right to be exempt from obligation of paying otherwise, the inscription thereof will remain annotated as a
necessary expenses and taxes by renouncing lien on the property. While the life of adverse claim is 3O days
his share but may do so only if such is not under P.D. 1529, it continuous to be effective until it is
prejudicial to the co-ownership; canceled by formal petition filed with the Register of Deeds.
7. Right to make repairs for the preservation of the
thing and receive reimbursement therefrom;
8. Right to full ownership of his part and fruits;
NOTICE OF LIS PENDENS
Annotation of a lis pendens can only be done in cases
9. Right to alienate, assign or mortgage own share, involving recovery of possession of real property, or to quiet
except personal rights like right to use and title or to remove cloud thereon, or for partition or any other
habitation; proceeding affecting title to the land or the use or occupation
10. Right to ask partition anytime, subject to some thereof.
exceptions;
11. Right of pre-emption; The purpose of the notice of lis pendens is to
12. Right of redemption; constructively advise, or warn all people who deal with
the property that they so deal with it at their own risk,
 Redemption of the whole property by a co- and whatever rights they may acquire in the property in
owner does not vest in him sole title over the any voluntary transaction are subject to the results of the
said property. Redemption within the period action, and may well be inferior and subordinate to those
prescribed by law by a co-owner will inure to which may be finally determined and laid down therein
the benefit of all co-owners. Hence, it will not (Heirs of Marasigan vs. IAC, 152 SCRA 253 [1987]).
put an end to existing co-ownership NOTE: It merely creates a contingency and not a lien.
(Mariano vs. CA, 222 SCRA 736).
FORESHORE LANDS; RECLAMATION;
REAL VS. PERSONAL PROPERTY LIMITATIONS
TESTS TO DETERMINE WHETER THE PROPERTY IS Foreshore lands is that strip of land that lies between the
REAL OR PERSONAL: high and low water marks and alternately wet and dry
1. Rule of Exclusion—not included in art 415; according to the flow of the tide belong to the public
2. Rule of Description—if the property can be domain, and can only be acquired by lease if not needed
transported from one place to another, and no by the government for public or quasi-public purposes.
injury would be suffered by it, then it is personal
property. (1) Under Chapter IX of C .A, No. 141, otherwise known
3. Test of Destruction. as the Public Land Act, foreshore lands are disposable
for purposes, and only by lease when not needed by the
LAND TITLES AND DEEDS government for public service.
(2) If the land is suited or actually used for fishpond or
ACQUISITION OF LANDS AND aquaculture purposes, it comes under the Jurisdiction of
CITIZENSHIP REQUIREMENT the Bureau of Fisheries and Aquatic Resources (BFAR)
WHO MAY APPLY IN ORDINARY REGISTRATION and can only be acquired by lease. (P.D. 705)
PROCEEDING UNDER PD 1529
1. Those who by themselves or through their
predecessors-in-interest have been in open,
INNOCENT PURCHASER FOR VALUE
continuous, exclusive, notorious possession of As a rule, an innocent purchaser for value acquires a
alienable and disposable lands of public domain good and a clean title to the property. However, it is
under a bona fide claim of ownership since June settled that one who closes his eyes to facts that should
12, 1945 or earlier. put a reasonable man on guard is not an innocent
2. Those who acquired ownership of private land purchaser for value.
by prescription under provisions of existing laws.
3. Those who acquired ownership of private land or MIRROR DOCTRINE
abandoned river beds by right of accession or Under the Torrens System, as a rule, a person is not
accretion under existing laws. required to go beyond the face of the certificate of title
4. Those who have acquired ownership of lands in when upon its face, the person can see that it is free
any manner provided by law. from encumbrances.
NOTE: All there persons must be natural-born Filipino

Page 19 of 29
PROCUREMENT OF PATENT WHEN done whimsically or arbitrarily; the right of the grantee
(would be buyer/seller) is damages and not specific
THERE IS FRAUD performance (Ang Yu vs. CA, 1994).
A free patent obtained through fraud or • The basis of liability is abuse of right (art. 19,
misrepresentation is void. Furthermore, the one-year NCC).
prescriptive period provided in the Public Land Act does
not bar the state from asking for the reversion of An option clause in order to be valid and enforceable
property acquired through such means. ---------- Well- must indicate the definite price at which the person
settled is the doctrine that the registration of a patent granting the option is willing to sell. Contract can be
under the Torrens system does not itself vest title; it enforced (specific performance) and not only damages
merely confirms the registrant’s already existing one. (Equatorial vs. Mayfair, 264 SCRA 483).
Verily registration under the Torrens system is NOT A
MODE of ACQUIRING OWNERSHIP (Republic vs. Heirs
of Felipe Alejaga, 393 SCRA 361 [2002]). INEXISTENT CONTRACTS VS.
ANNULLABLE CONTRACTS
PRESCRIPTION INEXISTENT CONTRACTS are considered as not having
been entered into and, therefore, void ob initio. They do not
When registration is procured by fraud, the action does create any obligation and cannot be ratified or validated, as
not prescribe, except if barred by estoppel by laches. there is no agreement to ratify or validate. On the other hand,
ANNULLABLE or VOIDABLE CONTRACTS are valid until
invalidated by the court but may be ratified. In inexistent
LACHES ELEMENTS contracts, one or more requisites of a valid contract are absent.
The four basic elements of laches are; (1) conduct on the part In anullable contracts, all the elements of a contract are
of the defendant or of one under whom he claims, giving rise to present except that the consent of one of the contracting
the situation of which complainant seeks a remedy; (2) delay in parties was vitiated or one of them has no capacity to give
asserting the complainant's rights, the complainant having had consent.
knowledge or notice of the defendant's conduct and having
been afforded an opportunity to institute suit; (3) lack of
knowledge on the part of the defendant that the complainant PRIVITY OF CONTRACTS
would assert the right on which he bases his suit; and (4) injury Art. 1159. Obligations arising from contracts have the
or prejudice to the defendant in the event relief is accorded to
the complainant, or the suit is not held to be barred.
force of law between the contracting parties and should
be complied with in good faith. (1091a)
Note: Art. 1159 is the principle of “pacta sunt
INDEFEASIBILITY RULE OF TORRENS servanda”.
TITLE OBLIGATION EX CONTRACTU (in general):
The rule of indefeasibility of a Torrens Title means that after 1. Must be complied with in good faith;
one year from the date of issue of the decree of registration or 2. It is the law between the parties;
if the land has fallen into the hands of an innocent purchaser 3. Neither party may unilaterally evade his obligation in
for value, the title becomes incontestable and incontrovertible. the contract, unless –
a. Contract authorizes it;
The one year period, however, refers only to the action b. Other party assents.
attacking the certificate of title and not the title over the
property. Title, as understood in our jurisprudence, refers to
• Note: However, equity may be a ground to relax
ownership. Thus, when a certificate of title is wrongly issued to
a person having no title over the property, the same can be the strict application of the terms of the contract and
attacked despite the lapse of one year since the registration is when the principle of ribus sic stantibus will apply.
void.
4. Parties may freely enter into any stipulations provided
they are not contrary to law, morals, good customs,
public order or public policy.
CONTRACTS
CONSENSUAL CONTRACT VS. REAL RELATIVITY OF CONTRACTS
CONTRACTS Art. 1311. Contracts take effect only between the
CONSENSUAL CONTRACTS are those which are perfected parties, their assigns and heirs, except in case where
by mere consent (Art. 1315. Civil Code). REAL CONTRACTS the rights and obligations arising from the contract are
are those which are perfected by the delivery of the object of not transmissible by their nature, or by stipulation or by
the obligation. (Art. 1316, Civil Code) Examples of real provision of law. The heir is not liable beyond the value
contracts are deposit, pledge, commodatum and simple loan
of the property he received from the decedent.
(mutuum).
NATURE OF OPTION CONTRACT RESCISSION OF CONTRACTS

Art. 1381. The following contracts are rescissible:
OPTION CONTRACT
(1) Those which are entered into by guardians whenever
A distinct agreement, founded upon a distinct and
the wards whom they represent suffer lesion by more
separate consideration granting a person the right to buy
than one-fourth of the value of the things which are the
or sell on a fixed period of time, which may not be
object thereof;
unilaterally withdrawn before the expiration of the period.
(2) Those agreed upon in representation of absentees, if
• Consideration need not be in money. It may
the latter suffer the lesion stated in the preceding
consist of anything of value (San Miguel vs. Cojuangco).
number;
(3) Those undertaken in fraud of creditors when the
Unilateral promise to buy or sell, if not supported by a
latter cannot in any other manner collect the claims due
distinct consideration, may be withdrawn but may not be
Page 20 of 29
them; PAYMENT
(4) Those which refer to things under litigation if they Requisites: (clue words only)
have been entered into by the defendant without the 1. Right amount;
knowledge and approval of the litigants or of competent 2. Proper parties;
judicial authority; a. Creditor
(5) All other contracts specially declared by law to be b. Debtor
subject to rescission. c. Their heirs, assigns, or agent/s
d. 3rd persons, in certain cases.
Sale undertaken in fraud of creditors maybe rescinded
by the creditors. 3. Proper time;
4. Proper place.
OBLIGATIONS
DACION EN PAGO
ALEATORY CONTRACTS Is a mode of extinguishing an obligation whereby the
Art. 2010. By an aleatory contract, one of the parties or debtor alienates in favor of the creditor property for the
both reciprocally bind themselves to give or to do satisfaction of monetary debt; extinguish up to amount of
something in consideration of what the other shall give property, unless there is a stipulation that the dacion
or do upon the happening of an event which is uncertain, would be a complete payment of the obligation.
or which is to occur at an indeterminate time.
EXTINGUISHMENT; CONDONATION
CONDITIONAL OBLIGATIONS CONDONATION/REMISSION
RESOLUTORY CONDITION Is a gratuitous abandonment of debt, or right to claim.
Art. 1179. Every obligation whose performance does not Requisites:
depend upon a future or uncertain event, or upon a past 1. There must an agreement;
event unknown to the parties, is demandable at once. 2. There must be subject matter;
Every obligation which contains a resolutory condition 3. Cause or consideration must be liberality;
shall also be demandable, without prejudice to the 4. Parties must be capacitated and must consent; it
effects of the happening of the event. requires acceptance by the obligor; implied in mortis
causa and express in inter vivos;
5. Formalities of donation is needed in case of express
EXTINGUISHMENT remission;
Art. 1231. Obligations are extinguished: 6. Obligation remitted must have been demandable at
(1) By payment or performance: the time of remission.
(2) By the loss of the thing due:
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor COMPENSATION
and debtor; Art. 1279. In order that compensation may be proper, it
(5) By compensation; is necessary:
(6) By novation. (1) That each one of the obligors be bound principally,
and that he be at the same time a principal creditor of
Other causes of extinguishment of obligations, are the other;
annulment, rescission, fulfillment of a resolutory (2) That both debts consist in a sum of money, or if the
condition, and prescription. things due are consumable, they be of the same kind,
and also of the same quality if the latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
DATION IN PAYMENT CESSION IN (5) That over neither of them there be any retention or
PAYMENT controversy, commenced by third persons and
One creditor Plurality of creditors communicated in due time to the debtor.
Not necessarily in state of Debtor must be
financial difficulty partially or relatively
insolvent EXTINGUISHMENT; EXTRAORDINARY
Thing delivered is Universality of property INFLATION
considered as equivalent of of debtor is what is Art. 1250. In case an extraordinary inflation or deflation
performance ceded of the currency stipulated should supervene, the value of
Payment extinguishes Merely releases debtor the currency at the time of the establishment of the
obligation to the extent of for the net proceeds of obligation shall be the basis of payment, unless there is
the value of the thing things ceded of, an agreement to the contrary. (n)
delivered as agreed upon, assigned, unless there NOTE: Applies only to contractual obligations. There
proved or implied from the is a contrary stipulation must be declaration by the government of such fact of
conduct of the creditor inflation or deflation.
Ownership is transferred No transfer of
ownership but only a
right to sell
EXTINGUISHMENT; LOSS
EXTINGUISHMENT; LOSS IMPOSSIBLE
SERVICE
WHEN IS THERE A LOSS:
EXTINGUISHMENT; PAYMENT 1. When the object perishes (physically)
Page 21 of 29
2. When it goes out of commerce assignor.

3. When it disappears in such a way that it existence is
unknown or it cannot be recovered. CONVENTIONAL ASSIGNMENT OF RIGHTS
SUBROGATION
WHEN IS THERE IMPOSSIBILITY OF Governed by arts. Governed by arts. 1624 –
PERFORMANCE 1300 – 1304 1627
1. Physical impossibility; Debtor’s consent is Debtor’s consent is not
2. Legal impossibility – required required
a. Direct – caused as when prohibited by law;
Extinguishes the There is transmission of the
b. Indirect – caused as when the debtor is required to
obligation and gives right of the creditor to a 3rd
enter a military service.
rise to a new one person without modifying or
extinguishing the obligation
EXTINGUISHMENT; NOVATION Defects and vices in Defects and vices of the
Extinguishment of obligation by creating/substituting a the old obligation are obligation are not cured
new one in its place. cured
Requisites: Takes effect upon As far as the debtor is
1. Valid obligation; moment of novation or concerned, takes effect
2. Intent to extinguish old obligation; subrogation upon notification
3. Capacity and consent of parties to the new obligation;
4. Valid new obligation.
AGENCY TO SELL
AGENCY TO SELL SALE
LIABILITY; SOLIDARY OBLIGATION Agent receives the Buyer receives the
GR: When there is concurrence of two or more creditors goods as the principal’s goods as owner
or two or more debtors in one and the same obligation, goods
the presumption is that the obligation is only joint. Agent delivers the Buyer pays the price
Exceptions: proceeds of the sale
1. When it is expressly stated that there is solidarity; Agent can return the Buyer as a general rule
2. When law requires solidarity; object in case he is cannot return the object
3. When the nature of the obligation requires solidarity; unable to sell the same sold
4. When the will of a person imposed upon the heirs or to a 3rd person
legatees expressly states the charge or condition is Agent in dealing with Buyer can deal with the
solidary; the thing received is thing as he pleases
5. When solidary obligation is imposed by a final bound to act according being the owner
judgment upon several defendants (Gutierrez vs. to the instructions of his
Gutierrez) principal
SUSPENSIVE PERIOD CONTRACT TO SELL VS. CONTRACT OF

Art. 1182. When the fulfillment of the condition depends
upon the sole will of the debtor, the conditional obligation
SALE
shall be void. If it depends upon chance or upon the will CONTRACT OF SALE CONTRACT TO SELL
of a third person, the obligation shall take effect in Absolute Conditional
conformity with the provisions of this Code. Real obligation – to give Personal obligation – to
do
Such suspensive condition violates the rule on mutuality Ownership is reserved
of contracts. Title passes to the in the seller and will
buyer upon delivery pass only upon full
TRUST payment of the price
EXPRESS TRUST and IMPLIED TRUST full payment is a
Express trusts are created by the intention of the trustor Non-payment of the positive suspensive
or of the parties. Implied trusts come into being by price is a negative condition, the failure of
operation of law. resolutory condition which is not a breach
but prevents the
obligation of the vendor
SALES to convey title to arise
ASSIGNMENT OF CREDIT Remedies available: Remedies:
ASSIGNMENT a. Specific a. Resolution (not
The owner of a credit transfers to another his rights and performance; Rescission);
actions in consideration of a price certain in money or its b. Rescission; b. Damages
equivalent. c. Damages
Nature:
1. Transfers the right to collect the full value of the DOUBLE SALE
credit, even if he paid a price less than such REQUISITES: (double sale)
value. 1. Two or more sales transactions must constitute
2. Transfers all accessory rights. valid sales;
3. Debtor can set up against the assignee all 2. Two or more sales transactions must pertain to
defenses he could have set up against the the same object or subject matter;
Page 22 of 29
3. Two or more buyers at odds over the rightful RECTO LAW

ownership of the subject matter must each Art. 1484. In a contract of sale of personal property the
represent conflicting interest; and price of which is payable in installments, the vendor may
4. Two or more buyers must have bought from the exercise any of the following remedies:
very same seller. (1) Exact fulfillment of the obligation, should the
vendee fail to pay;
If not all the elements are present for art. 1544 to apply,
the principle of “prior tempore, potior jure” (he who is first (2) Cancel the sale, should the vendee's failure to
in time is preferred in right) should apply (Consolidated pay cover two or more installments;
Rural Bank vs. CA, Jan. 17, 2005).
(3) Foreclose the chattel mortgage on the thing
sold, if one has been constituted, should the
Good faith must concur with registration. To be entitled vendee's failure to pay cover two or more
to priority, the 2nd purchaser must not only establish prior installments. In this case, he shall have no
recording of his deed, but must have acted in good faith further action against the purchaser to recover
(Gabriel vs. Mabanta, et al. [2003]). any unpaid balance of the price. Any agreement
to the contrary shall be void.
EQUITABLE MORTGAGE
Art. 1602. The contract shall be presumed to be an OPTION CONTRACT
equitable mortgage, in any of the following cases: Discussion, supra.
(1) When the price of a sale with right to
repurchase is unusually inadequate;
(2) When the vendor remains in possession as
EARNEST MONEY
lessee or otherwise;
(3) When upon or after the expiration of the right OPTION MONEY EARNEST MONEY
to repurchase another instrument extending the Money given as distinct
period of redemption or granting a new period is consideration for an Part of purchase price
executed; option contract
(4) When the purchaser retains for himself a part Applies to sale not Given when there is
of the purchase price; perfected already a sale
(5) When the vendor binds himself to pay the Not required to buy When given, buyer is
taxes on the thing sold; bound to pay the
(6) In any other case where it may be fairly balance
inferred that the real intention of the parties is
that the transaction shall secure the payment of
a debt or the performance of any other REDEMPTION
obligation. Supra
In any of the foregoing cases, any money, fruits, or other
benefit to be received by the vendee as rent or otherwise RIGHT OF FIRST REFUSAL
shall be considered as interest which shall be subject to RIGHT OF FIRST REFUSAL
the usury laws. Creates a promise to enter into a contract of sale and it
has no separate consideration. Generally not subject to
MACEDA LAW specific performance because there is no contractual
The MACEDA LAW (R.A. 655) is applicable to sales of relationship here and it is not an obligation to give.
immovable property on installments. The most important
features are (Rillo v. CA, 247 SCRA 461): The right of first refusal is only subject to specific
performance insofar as it is attached to a valid written
(1) After having paid installments for at least two years, principal contract (e.g. lease). The right of first refusal
the buyer is entitled to a mandatory grace period of one becomes one of the considerations [conditions/terms] in
month for every year of installment payments made, to the contract (Equatorail Realty Dev’t Inc. vs. Mayfair
pay the unpaid installments without interest. Theater).
If the contract is cancelled, the seller shall refund to the TRANSFER OF OWNERSHIP; RISK OF
buyer the cash surrender value equivalent to fifty percent
(50%) of the total payments made, and after five years of LOSS
installments, an additional five percent (5%) every year WHO BEARS THE RISK OF LOSS:
but not to exceed ninety percent (90%) of the total 1. Before Perfection –
payments made. a. Res perit domino
b. Seller is the owner, so seller bears the
(2) In case the installments paid were less than 2 years, risk of loss.
the seller shall give the buyer a grace period of not less
than 60 days. If the buyer fails to pay the installments 2. At Perfection –
due at the expiration of the grace period, the seller may a. Res perit domino.
cancel the contract after 30 days from receipt by the b. Contract is inefficacious because loss of
buyer of the notice of cancellation or demand for the subject matter does not affect the
rescission by notarial act. validity of the sale.
c. Seller cannot anymore comply, so buyer
cannot anymore be compelled.
Page 23 of 29
novation
3. After perfection but before delivery – Subleasing is allowed Assignment is not
a. Loss – conflicting unless there is an allowed unless the
I. Paras – buyer express prohibition to lessor gives his consent
II. Tolentino – seller the contrary
b. Deterioration and fruits – buyer bears

loss. REMEDY FOR NON-PAYMENT
4. After delivery – 1.Demand to vacate.
a. Res perit domino 2.Within 1 year, after failure to vacate thru the demand,
b. Delivery extinguishes ownership. file unlawful detainer under Rule 70 of the Rules of Court
c. Buyer bears the loss. in the First Level Court.
COMMON CARRIERS
Art. 1732. Common carriers are persons, corporations,
LEASE firms or associations engaged in the business of carrying
CONTRACT OF LEASE or transporting passengers or goods or both, by land,
A contract by which one person binds himself to grant water, or air, for compensation, offering their services to
temporarily, the use of a thing or the rendering of some the public
service to another who undertakes to pay some rent,
compensation, or price. See discussion on Commercial Law.
RENT AGENCY
Is the compensation either in money, provisions, chattels AGENCY VS. SALE
or labor, received by the lessor from the lessee. AGENCY TO SELL SALE
Agent receives the Buyer receives the
Requisites: goods as the principal’s goods as owner
1. Must not be fictitious or nominal; otherwise goods
the contract is considered essentially Agent delivers the Buyer pays the price
gratuitous. proceeds of the sale
2. Must be capable of determination. Agent can return the Buyer as a general rule
3. Must be something of value; may be in the object in case he is cannot return the object
form of products, fruits, or construction. unable to sell the same sold
to a 3rd person
LEASE OF RURAL LANDS Agent in dealing with Buyer can deal with the
Supra the thing received is thing as he pleases
bound to act according being the owner
to the instructions of his
RIGHTS AND OBLIGATIONS principal
Art. 1654. The lessor is obliged:
(1) To deliver the thing which is the object of the BROKER IS ENTITLED TO COMPENSATION WHEN:
contract in such a condition as to render it fit for Whenever he brings to his principal a party who is able
the use intended; and willing to take the property, and enter into a valid
(2) To make on the same during the lease all the contract upon the terms named by the principal,
necessary repairs in order to keep it suitable for although the particulars may be arranged and the matter
the use to which it has been devoted, unless negotiated and completed between the principal and
there is a stipulation to the contrary; purchaser directly.
(3) To maintain the lessee in the peaceful and adequate
enjoyment of the lease for the entire duration of the The broker should be paid his commission where he is
contract. the efficient procuring cause in bringing the sale.
Art. 1657. The lessee is obliged: Efficient procuring cause means that there is a close
(1) To pay the price of the lease according to the proximate and causal connection between the efforts
terms stipulated; and labor of the agent and the principal’s sale of
(2) To use the thing leased as a diligent father of property (Manotoc Brothers Inc. vs. CA, 221 SCRA 224,
a family, devoting it to the use stipulated; and in [1994]).
the absence of stipulation, to that which may be
inferred from the nature of the thing leased, Art. 1874. When a sale of a piece of land or any interest
according to the custom of the place; therein is through an agent, the authority of the latter
(3) To pay expenses for the deed of lease. shall be in writing; otherwise, the sale shall be void
LEASEE; SUBLEASE COMMISSION AGENT

SUBLEASE ASSIGNMENT OF One whose business is to receive and sell goods for a
LEASE commission and who is entrusted by the principal with
Lessee remains a party Lessee is disassociated the possession of goods to be sold, and usually selling in
in the contract from the original his own name.
contract of lease
Sublessee does not Assignee has a direct ORDINARY AGENT COMMISSION AGENT
have any direct action action against the (FACTOR)
against the lessor lessor, there being no Acts for and in behalf of May act in his own
Page 24 of 29
the principal name or in that of the PARTNERSHI CO- CORPORATION

principal P OWNERSHI
Need not have Must be in possession P
possession of the of the thing he disposes Created by
principal’s goods contract, by Created by Created by law
mere law
agreement of
GENERAL AGENCY VS. SPECIAL the parties
AGENCY Has juridical Has juridical
GENERAL AGENT SPECIAL AGENT personality personality
Scope of Authority separate and No juridical separate and
Specific acts in distinct from personality distinct from that
All acts connected with pursuance of particular each other of each
the business or instructions or with partner stockholder
employment in which he restrictions necessarily Purpose: Common Purpose:
is engaged implied from the act to realization of enjoyment of depends on the
be done profits a thing or Articles of
Nature of Service Authorized right Incorporation
Involves continuity of No continuity of service Not more
service than Ten 50 years
Extent to which agent may bind the principal Duration: No years by maximum,
May bind his principal Cannot bind his limitation agreement; extendible to not
by an act within the principal in a manner or more than 50
scope of his authority beyond or outside the Not more years in any one
although it may be specific acts which he is than 20 instance
contrary to the latter’s authorized to perform years if
special instructions imposed by
Termination of authority the testator
Duty imposed upon the or donor
3rd party to inquire
makes termination of Parties may Stockholder has
Apparent authority does the relationship as not dispose of a right to transfer
not terminate by mere between the principal his individual Co- owner shares without
revocation of his and agent effective as interest unless may freely prior consent of
authority without notice to such 3rd person agreed upon transfer his the other
to the 3rd party unless the agency has by all the interest stockholders
been entrusted for the partners
purpose of contracting There is
to such 3rd party mutual Co-owner Management is
Construction of principal’s instructions representation cannot vested in the
Merely advisory in Strictly construed as in case the represent the Board of
nature they limit the agent’s management co-ownership Directors/Trustee
authority is not provided s
for in the
Articles
MODES OF EXTINGUISHMENT OF AGENCY
Death of Death of co- Death of

partner results owner does stockholder does
Art. 1919. Agency is extinguished:
in dissolution not not dissolve the
(1) By its revocation;
of partnership necessarily corporation
(2) By the withdrawal of the agent;
dissolve co-
(3) By the death, civil interdiction, insanity or
ownership
insolvency of the principal or of the agent;
May be Generally,
(4) By the dissolution of the firm or corporation
dissolved at may be Can be dissolved
which entrusted or accepted the agency;
any time by dissolved with the consent
(5) By the accomplishment of the object or
the will of any anytime by of the state
purpose of the agency;
or all of the the will of
(6) By the expiration of the period for which the
partners any or all of
agency was constituted. (1732a)
the co-
NOTE: The list is not exclusive. Causes particular only
owners
to agency; may be extinguished by the modes of
Minimum of 2 Minimum of Incorporator:
extinguishment of obligations in general, whenever they
persons two persons minimum of 5
are applicable.
Juridical
Agency is also terminated, as a matter of law, personality From date of
upon the outbreak of war. commenced None issuance of
from the time certificate of
of execution of incorporation by
PARTNERSHIP the contract of the SEC.
partnership.
Page 25 of 29
Principal purpose
PARTNERSHIP JOINT VENTURE Safekeeping Consumption Transfer for use
(particular) Demandability
A sort of informal May demand
A formal partnership partnership, with no firm return at will
name (American (PRECARIUM)
concept of Joint Demand of the Lender must or only after the
Account) thing at will (if wait until expiration of the
Has legal personality No legal personality unilateral) expiration of period or
Various transaction Limited to a single period granted accomplishment
transaction generally to debtor of the use of the
thing subject to
exceptions
PUBLIC INSTRUMENT AND INVENTORY Object
NEEDED IF IMMOVABLE PROPERTY IS Both movable
CONSTRIBUTED TO THE PARTNERSHIP and
CONTRACT immovable. Only money
But in extra- and other Both movable
judicial fungible thing and immovable
COMMODATUM & MUTUUM deposit, only may be object
COMMODATUM MUTUUM movable
(simple loan) property
Ordinarily non- Money or (corporeal)
Object consumable other may be object
consumable Nature
thing May be May be Essentially and
Ownership of Ownership is Ownership is gratuitous gratuitous always
the thing retained by the transferred to gratuitous
lender the borrower
Gratuitous or SURETY
Cause Essentially onerous (if
GUARANTY SURETYSHIP
gratuitous with stipulation
to pay interest) Liability depends upon Assumes liability as a
an independent regular party to the
Borrower need
agreement to pay the undertaking
Thing to be Borrower must only pay the
obligation if the primary
returned return the same same amount
debtor fails to do so
thing loaned of same kind
and quality Engagement is a Charged as an original
collateral undertaking promisor
May involve real Only personal
Subject matter or personal property Primarily liable –
property undertakes directly for
the payment without
Loan for use or Loan for
Secondarily liable – he reference to the
Purpose temporary consumption
contracts to pay if, by solvency of the
possession
the use of due principal, and is so
Bailor may
diligence, the debt responsible at once the
demand the Lender may
cannot be paid latter makes a default,
return of the not demand its
without any demand by
When to thing loaned return before
the creditor upon the
return before the the lapse of
principal whatsoever or
expiration of the the term
any notice of default
term in case of agreed upon
Only binds himself to Undertakes to pay if the
urgent need
pay if the principal principal do not pay,
Borrower
cannot or unable to pay without regard to his
suffers the
ability to do so
Loss of the loss (even if
Insurer of the solvency Insurer of the debt
Who bears the subject is caused
of the debtor
risk of loss suffered by the exclusively by
bailor since he is a fortuitous Less onerous More onerous
the owner event and he
is not therefore ANTICHRESIS
discharged
from his duty
to pay) PLEDGE
Nature Purely personal Not purely PLEDGE VS. MORTGAGE
personal PLEDGE MORTGAGE
DEPOSIT Constituted on Constituted on
DEPOSIT MUTUUM COMMODATUM movables movables and
immovables
Page 26 of 29
Property is delivered to foreclosure notwithstanding Act 3135, juridical

the pledge, or by Delivery is not persons shall have the right to redeem the
common consent to a necessary property until, but not after, the registration of
3rd person the certificate of foreclosure sale with the
Not valid against 3rd Register of Deeds which in no case shall be
persons unless a Not valid against 3rd more than 3 months after the foreclosure, which
description of the thing persons if not registered ever is earlier.
pledged and the date of
the pledge appear in a NOTE: Allowing redemption after the lapse of the
public instrument statutory period when the buyer at the foreclosure
sale does not object but even consents to the
redemption, will upholdd the policy of the law which
is to aid rather than defeat the right of redemption
MORTGAGE LAW (Ramirez vs. CA, 219 SCRA 598, [1993]).
REAL ESTATE MORTGAGE
It is a contract whereby the debtor secures to the CHATTEL MORTGAGE
creditor the fulfillment of a principal obligation, specially See commercial law
subjecting to such security immovable property or real
rights over immovable property in case the principal
obligation is not complied with at the time stipulated. REGISTRATION OF DEED OF
MORTGAGE
JUDICIAL EXTRA-JUDICIAL Art. 2125. In addition to the requisites stated in Article
FORECLOSURE FORECLOUSE 2085, it is indispensable, in order that a mortgage may
There is court No court intervention be validly constituted, that the document in which it
intervention appears be recorded in the Registry of Property. If the
Decisions are Not appealable, it is instrument is not recorded, the mortgage is nevertheless
appealable immediately executory binding between the parties.
Order of the court cuts Foreclosure does not The persons in whose favor the law establishes a
off all rights of the cut off right of all parties mortgage have no other right than to demand the
parties impleaded involved execution and the recording of the document in which
There is equity of the mortgage is formalized.
redemption except on There is right of QUASI-CONTRACTS
banks which provides redemption NEGOTIORIUM GESTIO
for a right of redemption
Art. 2144. Whoever voluntarily takes charge of the
Period of redemption Period of redemption agency or management of the business or property of
starts from the finality of starts from date of another, without any power from the latter, is obliged to
judgment until order of registration of certificate continue the same until the termination of the affair and
confirmation of sale its incidents, or to require the person concerned to
No need for a special SPA in favor of substitute him, if the owner is in a position to do so. This
power of attorney in the mortgagee is needed in juridical relation does not arise in either of these
contract of mortgage the contract. instances:
(1) When the property or business is not
PERIODS OF REDEMPTION: neglected or abandoned;
(2) If in fact the manager has been tacitly
1. Extra-judicial (Act No. 3135)- authorized by the owner.
a. Natural person -- 1 year from
registration of the certificate of sale with
the Register of Deeds. SOLUTIO INDEBITI
b. Juridical person – same rule as natural Art. 2154. If something is received when there is no right
person, to demand it, and it was unduly delivered through
c. Juridical person (mortgagee is a bank) – mistake, the obligation to return it arises.
3 months after foreclosure or before TORTS AND DAMAGES
registration of certificate of foreclosure, Section 5. Rule 111 of ROC. Judgment in civil action
whichever is earlier. not a bar. — A final judgment rendered in a civil action
absolving the defendant from civil liability is not a bar to
2. Judicial – before confirmation of sale by the a criminal action against the defendant for the same act
court. or omission subject of the civil action.
NOTE: There is no right of redemption in judicial
foreclosure sale after confirmation of sale.
Exception: If the mortgagee is a bank
QUASI-DELICT
(Government Insurance System vs. CFI of Iloilo, Art. 2176. Whoever by act or omission causes damage
185 SCRA 19). to another, there being fault or negligence, is obliged to
In extra-judicial foreclosure, the mortgagor has pay for the damage done. Such fault or negligence, if
the right to redeem the property within 1 year there is no pre-existing contractual relation between the
from registration of the deed of sale. parties, is called a quasi-delict and is governed by the
provisions of this Chapter. (1902a)
HOWEVER, sec. 47 of the General Banking Act ELEMENTS OF QUASI-DELICTS/TORTS
provides that in case of extrajudicial 1. Act or omission;
Page 27 of 29
2. Damage or injury is caused to another; breach of

3. Fault or negligence is present; public order
4. There is no pre-existing contractual relations Negligence Proof of existing Negligence
between the parties; must be contract and its must be
5. Causal connection between damage done and proved by breach is prima proved by
act/omission. preponderance facie sufficient to proof beyond
of evidence warrant recovery reasonable
doubt
Diligence in Diligence in the Diligence in
the selection selection and the selection
CONTRACT QUASI- DELICT and supervision is and
DELICT supervision of not a defense supervision is
Vinculum juris employees is a not a defense.
Negligent act Act or defense
or omission omission Liability of Liability of Liability of
(culpa, committed employer is employer is employer is
Contract imprudence) by means of direct and solidary subsidiary
dolo primary
(deliberate,
malicious, in
PROXIMATE CAUSE
bad faith)
The adequate and efficient cause which in the natural
Proof needed order of events and under the particular circumstances
Preponderanc Preponderance Proof surrounding the case, would naturally produce the event.
e of evidence of evidence beyond
reasonable
doubt FORTUITOUS EVENT
Defense available An event which could not be foreseen, or which though
Exercise of Exercise of foreseen, is inevitable.
extraordinary diligence of a REQUIREMENTS: (for fortuitous event)
diligence (in good father of 1. The cause of the breach of the obligation must
contract of a family in the be independent of the will of the debtor;
carriage), force selection and 2. The caso fortuito must be the sole cause;
majeure supervision of 3. The event is either unforeseeable or
employees unavoidable;
Pre-existing contract 4. The event must be such as to render it
There is pre- No pre-existing No pre- impossible for the debtor to fulfill his obligation in
existing contract existing a normal manner;
contract contract 5. The debtor must be free of participation in or
Burden of proof aggravation of injury to the creditor.
Contractual Victim prove
party proved the following – GR: No liability for fortuitous event.
the following – a. Negligence; Accused is Exceptions:
a. Existence b. Causal presumed 1. When expressly declared by law –
of contract; connection innocent a) Bad faith;
b. Breach between until b) Subject matter is generic;
negligence contrary is c) Objects of criminal offense;
and proved
damage 2. When expressly declared by stipulation in the
done contract;
3. When nature of obligation requires assumption
of risk (insurance business);
CULPA CULPA CULPA 4. When the debtor is in default;
AQUILIANA CONTRACTUA CRIMINAL 5. When the obligor has promised to deliver the
L same thing to 2 or more persons who do not
Negligence is have the same interest (art. 1165[3]).
Negligence is merely an Negligence is
substantive incident of also
and performance of substantive OWNER WHO WAS IN THE VEHICLE
independent an obligation Art. 2184. In motor vehicle mishaps, the owner is
There may or There is a pre- solidarily liable with his driver, if the former, who was in
may not be a existing No the vehicle, could have, by the use of the due diligence,
pre-existing contractual contractual prevented the misfortune. It is disputably presumed that
contractual relation relation a driver was negligent, if he had been found guilty of
relation reckless driving or violating traffic regulations at least
Source of Source of twice within the next preceding two months.
Source of obligation is the obligation is If the owner was not in the motor vehicle, the provisions
obligation is breach the right of the of Article 2180 are applicable. (Meaning, owner is liable
the negligence contractual state to as employer under Art. 2180)
itself relation punish for
Page 28 of 29
VICARIOUS LIABILITY capacity of teachers, the latter shall be deemed to have

The law on imputed negligence; a person who custody over the students. It is not necessary for the
himself is not negligent is made liable for the students to board and live with the teachers so that there
negligent conduct of another. can be custody over them
Liability is direct and primary.

Person vicariously liable is impleaded in the
complaint.
NOTE: Vicarious liability is not governed by the

doctrine of respondeat superior. Employers or
parents are made liable not only because of the
negligent or wrongful act of the person for whom
they are responsible but also because of their own “Believe that all your dreams will come
negligence (like he is negligent in the selection and
supervision of his employees). true. You will be rewarded of your
hardwork and devotion by the will of the
Exception: respondeat superior applies in –
a. Liability of employers under article 103, Greatest, the Supreme and Divine.”
RPC;
b. Liability of a partnership for the tort
committed by a partner. -Atty. Genesis M. Auza
PERSONS VICARIOUSLY LIABLE:
1. Parents
Other persons that may be held liable other than

the parents: (only in proper cases)
a. Those exercising substitute parental
authority;
b. Surviving grandparents;
c. Oldest sibling, over 21 years old unless
unfit or unqualified;
d. Child’s actual custodian, over 21 years
old unless unfit or unqualified.
2. Guardian – liable for acts of minor or

incapacitated persons under their authority who
live in their company.
3. Owners and managers of establishment/

enterprise – liable for damages caused by their
employees in the service of the branches in
which the latter are employed or on the occasion
of their function.
4. Employers – employees and house helpers

who are acting within their assigned task.
Defenses available to employers –

a. Due diligence in the selection and
supervision of employees;
b. Act or omission was made outside
working hours and in violation of
company’s rules and regulations.
5. State – when acting through special agent.
SPECIAL AGENT
A public officer performing acts foreign to his
ordinary duties.
6. School administrator, teacher
TEACHER’S LIABILITY
The basis of the teacher’s liability is the principle of loco
parentis (stand in place of parents). So long as the
students remain in the protective and supervisory
Page 29 of 29

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Civil Law Areas 2019

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Civil Law Areas in the 2019 Bar

Atty. Genesis M. Auza - #auzalawreview - 09207025338

GENERAL PRINCIPLES 6. Emergency laws;

EFFECT OF PUBLICATION NOTE:

GR: Laws are prospective in application. MISTAKE OF IGNORANCE OF THE LAW

PREJUDICIAL PREVIOUS QUESTION

A child can use the surname of the mother instead of the

CAPACITY TO BUY LAND

DOCTRINE OF PROCESSUAL PRESUMPTION

may be the subject of inter-country adoption. the civil registry)

PARENTAL AUTHORITY: RECISION OF RIGHTS OF ADOPTED CHILD

GROUNDS for Rescission (sec.19): FAMILY CODE

CONSTITUTIONAL MANDATES; periods indicated herein:

Art. 37. FC Marriages between the following are

6. Legally adopted; PROPERTY RELATIONS; ABSOLUTE

Aspects of the will governed by the national law— ACCEPTANCE: RULES

Land Owner Owner of

buy the land until value plus (substantial

interest; citizens. However, by way of exception, juridical persons

NOTE: All there persons must be natural-born Filipino

NATURE OF OPTION CONTRACT RESCISSION OF CONTRACTS

2. When it goes out of commerce assignor.

SUSPENSIVE PERIOD CONTRACT TO SELL VS. CONTRACT OF

3. Two or more buyers at odds over the rightful RECTO LAW

b. Deterioration and fruits – buyer bears

LEASEE; SUBLEASE COMMISSION AGENT

the principal name or in that of the PARTNERSHI CO- CORPORATION

Property is delivered to foreclosure notwithstanding Act 3135, juridical

2. Damage or injury is caused to another; breach of

VICARIOUS LIABILITY capacity of teachers, the latter shall be deemed to have

Liability is direct and primary.

NOTE: Vicarious liability is not governed by the

Other persons that may be held liable other than

2. Guardian – liable for acts of minor or

3. Owners and managers of establishment/

4. Employers – employees and house helpers

Defenses available to employers –

5. State – when acting through special agent.

6. School administrator, teacher

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