I think that you mentioned that publication is mandatory.
CIVIL LAW REVIEW I Explain why.
 PRELIMS PERIOD 
SEPTEMBER 18, 2020
PUBLICATION AND EFFECTIVITY OF LAWS
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette,
unless it is otherwise provided. This Code shall take effect
one year after such publication.
So lets go to Article 2. Can u tell me what Article 2 is?
Uh under Article 2 is law shall take effect after 15
days following the completion of the publication
either in the official reset or in the newspaper of
general circulation in the Philippines unless it is
otherwise provided
Ok, so what is covered by Article 2?
It covers all domestic laws and even laws of local
application and private laws
What rules does Article 2 provide for?
It provides that laws must be published
For the requirement of publication and what else?
Um and that there shall be elapse of 15 days
following the completion of the publication.
I agree that Article 2 provides for the requirement of
publication but apart for the publication what else does
Article 2 provide for?
Maam it provides for the 15 day period which
should be followed and also it provided for the
inspection wherein the 15 days used then maam.
That would be correct no, but that’s not the ideal way to
answer. You would want to sound lawyerly. You should
sound ethical to a lawyer. So what you say is that it
provides for the requirement for publication and it also
provides for the rule of effectivity of laws. That’s how
you answer it because what you answered Ms. that pertains
to the details. The details of the rules of effectivity right? Do
u follow Ms?
Yes maam.
Alright, now although at first glance, you must admit the
focus of Article 2 appears to be the effective date of that law.
Parang by the way nalang yung requirement of publication,
which is actually a misconception because the most
important part here is the requirement of publication. And
PAGE 1 OF 175
Because it is a matter of due process
What is your basis for saying that it is mandatory?
Because of the matter of due process for purposes
of applying Article 3 of the civil code.
But if you would read Article 2 it seems to provide for the
exception; a instance when we dispense publication of the
phrase “unless it is otherwise provided.”
Yes maam, but that exception applies to the
specification of the date of effectivity
Not the requirement of publication?
Yes maam
What is your basis for saying so?
There is this case maam of Tanada vs Tuvera,
wherein the Supreme Court held in that case that.
Do you have any idea how this case came about?
Uhm it came about for the petition of mandamus
filed by the petitioners to compel the respondent
public officials to publish or cost to publish certain
issuances by president Marcos at that time po.
Why is there a need for a mandamus petition?
Since Article 2 provides that the law must be
published then it is ministerial of the part of the
public officers to cost the publication of this
issuances.
Miss are you aware of the background of this case? Why
is there a need for a petition of mandamus?
Maam because during the time of President
Ferdinand Marcos wherein he is enacting laws in
favor of those who are related or close to him.
These people are not apprised about the effectivity
of such laws. Thus maam, a case was filed against
them about the effectivity of the laws because the
people are not aware that they are being taxed or
they are already committing acts to be punishable
maam. In this case president Ferdinand Marcos
granted a citizenship to a person close to him
wherein the people were not aware of it
Why was President Marcos was able to enact laws back
then?
I think because during his time he was executing all
the powers that he could have. He was exercising
legislative powers of his own po. He was abusing
his powers as a president.
Okay at that time we have an existing Constitution. But
there was an amendment to that constitution okay?
Because under the Constitution before it was amended –
please do observe the different separation of powers we have
the judiciary, legislative and the executive- but the
Constitution like I said was amended and the amended
allowed the executive through the president to enact laws
the so called Presidential Decrees. Now the problem is
that this Presidential Decrees were kept a secret. No one
knew about them. Until it was too late, what do I mean too
late? When you’re already been apprehended for having
violated one of these Presidential Decrees. That would be
the time you would be surprised that “Hey there is such a
law and under the provisions of this law you have violated
the law and you should be punished.” Okay now even
without being lawyers, you could see plainly that this is
unfair right? Because how could you be consider said
having violated a law if you were not even aware that there
was such a law to begin with. So enters Article 2.
So Article 2 requires what? Publication. Now nakakaloka
lang class because there was publication as well of these
laws but how did they publish these laws? Just the Titles.
And, the titles are not given actually descriptive of what the
provisions of the laws are. Misleading pa. So parang
tinutuya ka pa. Yes you published it but what you published
was just the title. So the petitioners went to the Supreme
Court. They wanted a writ of mandamus to be issued by the
Supreme Court to compel the executive secretary who
published all of these laws.
And these laws that we are studying now this came after the
EDSA revolution when we had a different set of magistrates
of the Supreme Court. And under this new set of magistrates
we now have this ruling Tanada v. Tuvera which we rely
upon to say that publication is mandatory. And the
phrase “unless it is otherwise provided” does not refer
to the requirement of publication but rather to the date
of effectivity.
To ruling that publication cannot be dispensed with
what was the justification given by the Supreme Court?
The Supreme Court said that the publication
cannot be dispensed with because this would be
the justification for applying of the conclusive
resumption under Article 3 which says that
everyone is presumed to doubt the law.
Miss, if you read the case, the justification mainly focused
on the process of due process. Okay so I need you to
correlate due process to Article 3 to justify the ruling that
publication is mandatory.
The Supreme Court said that publication is
mandatory because it is a matter of due process
because there would be a need to inform the people
of their conduct which they can be held liable.
Otherwise it would be the height of injustice to
PAGE 2 OF 175
punish them for it if in the first place they were not
apprised of the law.
Miss what’s your take on the matter?
I agree with miss … that it would be a violation of
the right of due process if such laws are published
and then people would be held responsible and
liable in cases wherein they commit acts which
would be punishable that they were not aware of
such existing laws.
Ok, the problem of the answers given by the two of you is
that you’re failing to connect it with Article 3 and that is the
very root cause of the need of due process. So the way to
answer this question is that to say Publication cannot be
dispensed with because of the conclusive presumption
of knowledge of the law under Article 3. Article 3 says
that ignorance of the law excuses no one and that
basically translates to the rule that no one can pay
ignorance of the law. So if everyone is conclusive
presumed to know what the law is then there is ought
to be a basis of that conclusive presumption. And what
would be your basis by that presumption? There must
be at least what? Notice. And how is notice given?
Through publication.
Matindi yung Article 3 di ba? How often had we encountered
a provision providing for a conclusive presumption. Alam
niyo ba kung gaano kabigat yan? It means that you cannot
present evidence to the contrary to review the
presumption. So heavy as it is that there must be a
corresponding basis. That is why publication is mandatory.
Claro? Is that clear?
Now the petitioners also took the opportunity to make
clarifications they asked several questions what laws must
be published? Where shall publication be made? How does
publication be made? And is publication in the official
Gazette? So these were the questions that they post to the
Supreme Court. And they had to post that because the office
of the Sol. Gen. back then was making the argument fine
publication must be made BUT of only certain types of laws
because there are other laws which are private in nature
and local application that need not be published. Un ang
sinasbai nung Sol. Gen. So how did the Supreme Court meet
these questions Miss?
Maam the Supreme Court said that there should be
no distinction to as laws of general application and
those which are private laws. The Supreme Court
said that laws should necessary be of public
interest even though the people are not affected by
it directly. Since otherwise if the legislature should
enact laws which are of particular application only
that would be ultra vires and contrary to the
constitution. Hence all laws should be published.
That is very clear. The general rule that all laws must be
published but Tanada vs Tuvera also pointed out there are
certain rules that need not be published right? Are you
aware of what these exemptions are?
Yes maam, those rules which are internal in nature
or those pertaining only to several agencies that
need not be published .
Yes and if that rules and regulations are only meant to be
for the internal guidelines of that personnel of a certain
agency then we do not need to have them published okay
now another question that was posed. How should
publication be made?
In this case that publication should be named
through the official Gazette or through the
publication in a general or in a newspaper of a
general circulation.
You have to listen to the question class. The question is
HOW should publication should be named not where be
publication made.
Ok, so just before u could give the right answer u have to
understand what the question is so again how should
publication be made?
Maam publication must be made in whole
otherwise it is no publication at all.
If not be made in whole, remember I did mention of a fact
that by way of compliance they would publish just the title.
That is not publication really diba? Para lang tayong inuuto
noon because the paper said if you’re going to publish you
have to publish the law in its entirely because that is the
only way for you to need the requirements of due process.
Okay next question, where should publication be
made?
Maam publication should be made in the
newspaper and circulation or the official gazette
maam.
Remember at that time sino kasi president non? Si
President Marcos diba and came the EDSA revolution this
was decided soon after the EDSA revolution. And at that
time, Article 2 has not been amended yet so what is our
basic common statutory construction: you apply the law as
it is worded in the absence of any ambiguity and as worded
Article 2 specified only one place of publication and that
was the official descent.
Have you seen an official gazette class? Have you seen a
copy of the official gazette of the Philippines? Some are
nodding their heads and some are not. And you are law
students, now just imagine the ordinary Filipinos what
would be their chances of having seen the official Gazette.
So if we’re going to require publication and yet we are going
to require it to be published in a publication that is not
accessible to the public then you aren’t deceiving the
purpose of the publication. That is why the petitioners
PAGE 3 OF 175
humirit pa sila ng isa they said perhaps the Supreme Court
should order that the publication should not be limited to
the official Gazette. Perhaps the Supreme Court should also
rule that publication should be made in a newspaper of
general circulation. But miss, how did the Supreme Court
respond to this suggestion
Maam the Supreme Court said that their duty is
only to apply the law. And the law as stood during
that time that the only publication should be made
only through the official gazette. And even if they
admitted that the official Gazette is not a effective
medium for publication of laws, it is not within
their power to order the publication to be made in
other medium.
Supreme Court then was very mindful of the separation of
powers sabi nila “Di na namin papalitan kasi yan e”
Eh kung mapapansin niyo, Article 2 was amended by an
Executive Order issued by president Aquino. Clear? Ok.
Now Tanada v. Tuvera, this was decided decades ago and
then the issue of sufficiency of publication was also once
again in this case involving the infamous commissioner
Garcilliano. I’m not aware or sure who he is Garcilliano vs.
House of Representatives, that is the kick mix and this was
decided in December 2, 2008.
So I post this question to you which was the subject of the
ruling in this case of Garcilliano. Would publication online
be sufficient compliance with the requirement of the
Article?
No maam, because the law is clear that the
publication should be made either in the official
Gazette or in a newspaper of general civilization
hence publication online is not the publication that
is intended by.
TAÑADA v. TUVERA
G.R. No. L-63915 April 24, 1985
The very first clause of Section I of Commonwealth
Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein
imposes upon respondent officials an imperative
duty. That duty must be enforced if the
Constitutional right of the people to be informed on
matters of public concern is to be given substance
and reality. The law itself makes a list of what should
be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded
from such publication.
The publication of all presidential issuances "of a
public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees
that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the
 people, such as tax and revenue measures, fall within
this category. Other presidential issuances which
apply only to particular persons or class of persons
such as administrative and executive orders need not
be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of
presidential issuances "of a public nature" or "of
general applicability" is a requirement of due
process. It is a rule of law that before a person may
be bound by law, he must first be officially and
specifically informed of its contents.
Ok. So if you would rely on Article 2 alone it should be a
settled issue. It does not speak of online publication. But the
problem is Article 2 does not exist in a vacuum we have the
E-commerce Law. Diba? The E-commerce Law or
Republic Act 8792 and one of this provisions 8792 is that
electronic documents are treated to be the functional
equivalent of written documents. I’m sure you’ve come
across that provision. Right? We cannot assail the validity
or the enforceability of the electronic documents simply
because it is not printed out it is not in a hard copy right?
So given this functional equivalents recognized in
electronic documents can we say that publication
online would be satisfactory of the requirements of
Article 2?
No maam. Since Article 2 of the civil code
specifically dealt with the publication of laws hence
it will be pale as to the medium where laws should
be published and until congress seem it proper to
amend Article 2, online publication is not yet
sufficient.
Again. What was the last thing you said?
I feel the congress in its proper to or wise to amend
Article 2 as to include internet as a medium for
publication of laws. Online publication is still not
sufficient compliance to the publication.
Miss. What’s your take on the matter
Online publication will not be sufficient because
Article 2 specifically provided that it will be
published in the official and not in any other
medium.
You have to stop focusing on what Article 2 says kasi sinabi
ko naman kanina eh. If we were to rely on Article 2 by itself
then tapos na ang usapan tapos na ang boxing. Maliwanag e.
Article 2 as amended only specify two modes of publication
official gazette and a newspaper of general circulation but
the thing is sabi ko nga sainyo na Article 2 does not already
exist on the vacuum. We have the E-commerce law and that
E-commerce law basically tell us that even electronic
documents na meron tayo ngayon these are functional
equivalents of written documents. Okay? So to put it even
more vividly, basically ang sinasabi dito is if publication
PAGE 4 OF 175
online would be as good as a publication in news paper or
publication in the official gazette. Kasi functional equivalent
sila. So di kailangan hatihin ngayon yung E-commerce law.
You have to stop focusing in Article 2. Wala doon yung sagot.
Hindi yun yung battlefield e. Imagine some of us are arguing
with your opponent. Kayo, siya yung kalaban niyo dinadala
niya kayo sa E-commerce Act kayo naman ang ginagawa
niyo ay nagtatago parin kayo sa Article 2. That is not the way
to litigate. You have to make this argument. You have to tell
him why that provision in E-commerce law is not sufficient
to justify in recognizing online publication as coming with
the scope of Article 2. Do you get it? Okay?
So in that case of Garcilliano vs the House of Representatives.
The Supreme Court simply said: Yes enough electronic
documents are functional equivalents of written
documents but only for what evidentiary purposes. It
does not cover compliance with Article. Claro? Alright.
Art. 10. In case of doubt in the interpretation or
application of laws, it is presumed that the lawmaking
body intended right and justice to prevail.
Now what if I asked you this question. You are aware of
Article 10 says right Article 10 says that in case of doubt you
are to presume that the legislature intended right and
justice to prevail. Okay. Now can you site that provision and
argue that yes, Article 2 does not make question of online
publications, but under Article 10, we have to allow the
inclusion of online publication within the scope of Article 2
on the basis of the spirit of that law. We were not really
relying on that letter of the law. We are now involving the
spirit of the law. Eh kasi ung gusto lang naman ng batas eh
yung magkaroon ng publication, magkaroon ng notice and
in todays world, mas marami na ang nagbabasa online kesa
humahawak ng diyaryo. Kailan ka huling humawak ng
diyaryo? Maliban nalang kung magbalot kayo ng sapatos ng
luma o kung ano man. Diba? San na kayo kumukuha ng
information ninyo? Online right? So cannot be argued that
by the spirit of the law, online publication was intended
to be included in Article 2?
No maam because Article 10 specifically states that
in case doubt in the interpretation or application,
Article 2 is very clear that should be meeting two
mediums.
Miss…?
I agree with Miss... Because the application of the
presumption that in lawing making intended in
justice to prevail. Article 10 applies only in case of
doubt in the interpretation application of the laws.
Miss…?
Maam, I think po correlating Article 10 to Article 2
would be, since it is said a while ago that in using
the E-commerce that it should be only for intent
 and evidentiary purposes and not for appraising
the people of the effectivity of laws maam.
Miss…?
Maam, Article 10 as already stated only applies
when there is doubt as to the interpretation and
application of law. However, it is very clear in
Article 2 that the publication should be made in 2
mediums and following Tanada vs. Tuvera, it is
not for the court to decide on whether on
publication would be sufficient compliance to
Article 10.
The answer she gave class this would be the given by 90%
of the examinees. We don’t want that. What we want is for
you to give the answer that will stand-out from the rest.
What does Article 10 speak of? Kasi you’re focusing on
when there is doubt. But the mere fact that what we are
arguing about with means that there is already doubt. Kasi
meron na tayong online publication eh. You simply do not
measure it by the provisions of Article 2. Kailangan tignan
niyo ano ang situasyon na yon. Oo nga online publication
nga talaga ang ginagamit ng mga tao not so much than
newspaper. Not so much pa than the official gazette. Right?
So how do you use Article 10? Article 10 speaks of what?
Intention. Right? Had Congress intended the provisions
of Article 2 to cover online publications class back in
1950?.
No maam
No. why not?
Because at that time maam, there is no technology
yet that.
Because at that time, the technology that we have,
allowing internet to be so probative in our lives was not
around when congress enacted the civil code. So this
would not have been intended by the law makers back
then. So we cannot justify including online publication
within the spirit of the law.
Imagine we come up with that answer and only a half of you
came up with that answer you would leave such a good
impression with the examiner. He may not agree with you
but he sees that you know how to argue. Like a lawyer.
Claro? Alright now, let’s go to the meat of the matter of
Article 2 the effectivity of laws. What is the rule for the
effectivity of laws?
As a rule, laws shall take effect After 15 days
following the publication in the official gazette
unless the contrary provided.
So when does the law take affect here immediately ?
Maam if the law uses the phrase “following the
completion of the publication” then it would take
effect on the 16th date of its publication.
PAGE 5 OF 175
Why on the 16th day?
Because it says after 15 days following the
completion of the publication.
And when do we apply this rule?
When the law does not provide for it within the
date. When the law is silent with regards on its date
of effectivity.
Now how does the phrase “unless otherwise provided”
come into play?
It comes into play when the law did not use the 15
day period provided in Article 2.
If the law itself specifies a different date. So can the law
say today is September 18 can the law say that the law
will take effect In December 25 ?
Yes mam provided that publication is made maam.
Yes provided when publication is made. So in this case
when the law itself provides for a specific date which is
December 25, is it required that publication be
completed atleast 15 days before December 25?
No maam
No. It’s no longer relevant how long the law was
published before it came into effect. The only thing that
must have that there should be publication before it
becomes effective.
But can the law provide that it will take effect
immediately?
Yes maam.
If it is, in that provision found in the law, when will that
law take effect?
It would still take effect after the completion of its
publication.
After the completion of its publication. When exactly
For exactly after publication
Use the example. So the law published today (September
18) instead of saying it will take effect on December 25 it
actually says that the law will take effect immediately.
Yes maam then if publication is completed on that
day (sept 18) then it would be effective.
When?
Immediately after publication on the day
On the day of publication?
Yes maam
September 18?
Yes maam
Basis?
Because it already complied.
If the question is what is your basis, you do not have to start
your answer with “because.” Diba? When do you start your
answer with a because? If the question is a valid. But if its
what is your basis then you have to provide me with a noun.
Okay so where were we? Was asking for the basis right?
Maam in the case of La Bugal-B’laan Tribal
Association Inc., vs. Ramos, the court rule that if
the law provides that it shall be effective
immediately upon approval. It means that it will
become effective after publication, which cannot be
dispensed with.
LA BUGAL-B’LAAN TRIBAL ASSOCIATION, INC.
VS RAMOS
(DECEMBER 1, 2004)
There is nothing in E.O. No. 200 that prevents a law
from taking effect on a date other than—even
before—the 15-day period after its publication;
Where a law provides for its own date of effectivity,
such date prevails over that prescribed by E.O. No.
200.
From a reading then of Section 8 of E.O. No. 279,
Section 1 of E.O. No. 200, and Tañada v. Tuvera, this
Court holds that E.O. No. 279 became effective
immediately upon its publication in the Official
Gazette on August 3, 1987.
It becomes effective upon publication now the reason why
we are discussing this at length is that there is another case
Farinas vs Executive Secretary. Also an En Banc ruling
which requires that we observe the 15 day period after
publication has been made before the law becomes effective
even the law itself provides that it shall become effective
immediately which is wrong.
FARIÑAS VS EXECUTIVE SECRETARY
(DECEMBER 10, 2003)
An effectivity clause which provides that the law
“shall take immediately upon its approval” is
defective, but it does not render the entire law
invalid—the law takes effect fifteen days after its
publication in the Official Gazette or a newspaper of
general circulation.
Eh ang pinagkakaiba niyan sa ating default rule, diba? When
the law is silent as to its date of effectivity we have observed
the 15th day period that’s why this ruling in La Bugal-
B’laan Tribal Association Inc., vs. Ramos decided back in
PAGE 6 OF 175
2004 this is the better ruling. It is more in keeping with the
tenor of Article 2. Okay? So what is the ruling of that case?
It becomes effectively immediately upon publication.
CONCLUSIVE PRESUMPTION OF KNOWLEDGE OF
LAWS
Art. 3. Ignorance of the law excuses no one from
compliance therewith.
Claro? Lets go to Article 3. Mr…
Yes maam
Tell me about Article 3.
Article 3 states that ignorance of the law excuses no one
compliance therewith.
Okay. What does it mean?
It means that everyone is presumed to know the law
That is presumed. Di ba. Kanina, conclusively presumed
to know the law. Right? And why did the congress
provide for this kind of a rule concussive presumption
of the law?
That is based on necessity. For public for order.
Ma’am because if this is otherwise provided it will
amount to injustice where violators of the law will
just be thinking that to escape their liabilities.
And what is so bad about allowing people to face
ignorance of the law? What is so bad about that? Di ba?
Kapag meron patayan na naganap, may nilapitan kang tao
ano nangyayare? And that person will say that ayaw niya
makisali edi di ko alam! Di ko alam kung ano nangyare?
Right? And that’s fine with us. But how come when it comes
to a person saying that I don’t know that there is such a law.
But in our defense ayaw nating pumayag. So what is so
wrong in allowing a person to face ignorance of the law?
Because persons done either not follow them or
follow them based on their knowledge maam.
You are not addressing my question Mr… listen to my
question. Why isn’t it unacceptable by way of defense a
person saying, I did not know that there is such a law?
Maam because it cannot be proven because
ignorance is a condition of the mind maam.
You cannot prove otherwise. Right? Because ignorance is
a state of mind. How do you prove that? How do you prove
that there is nothing in his brain which would indicate that
he knows what the law is and that is all through the pointed
out there will be chaos and there will be public disorder
because everyone will get away from not complying with
the law by simply saying “I do not know what the law is.”
Right? Now what laws are covered by these conclusive
presumptions?
 Uhm domestic laws maam
That’s domestic laws what about foreign laws?
No maam. Foreign laws are not covered because
they are needed to be a prove as a fact.
Why?
Because maam the courts do not take the judicial
notice of the existence of foreign laws. It is also in
accordance with the principal of Processual
presumption, where foreign laws are proven as a
fact and proven in evidence otherwise it would be
presumed to be the same as our laws.
Okay do not lump the principal of Processual presumption
when the statement that we not take judicial notice of
foreign laws. Processual presumption would come in later
di ba? The first notice would be that we do not take
judiciary notice of foreign laws, they must be alleged
and they must be proven as facts. That is the rule.
Walang kinalaman ang processual presumption sa rule na
yan. Maliwanag ba? Do not just lump principles together.
Now you fail to alleged and you fail to prove, that processual
presumption will come in. Ok. And under processual
presumption we presumed that the foreign law which was
neither alleged nor proved or may have it alleged or not
proved it is simply the same as our local laws. That is what
It meant right? Now incidentally mister.... What is more
important, alleged in the foreign law or proving the foreign
law?
Proving the foreign law maam.
Miss…which is more important alleging or proving ?
Both are important po.
Im not asking if they are both important. I’m asking you to
make a choice which is more important?
Alleging maam.
Alleging, why is alleging more important?
Because it is where in you in vocal of such existence
of law maam so it goes to show that you are
knowledgeable of the said law
An important way to answer would be to answer directly
and concisely okay? So how should you answer that
question. Allege is more important because you can only
prove what you allege. So if you fail to make your
allegations in the first place, then there is no point.
There’s no point anymore for the introduction of proof.
It would be just rejected. So we’re clear?
Okay now when it comes to domestic laws, domestic laws
sabi naten covered by the previsions of Article 3. Would all
domestic laws mister be covered by the conclusive
presumptions?
PAGE 7 OF 175
No maam only mandatory or prohibitory laws
maam.
What laws are not included?
Directory laws maam are not included .
Directory laws. You need permissive laws, right?
Yes maam.
Can you give me an example of a permissive law that
would not be covered by Article 3?
Maam in the family code the need for parental
advice maam.
The need for parental advice? What do you mean?
Maam if the parties failed to get a parental advice
their marriage license will nonetheless be issued
by only after 8 longer period of time than the usual.
There’s this case Floresca vs Philex Mining. Said that if
choice is given to the plaintiff between 2 remedies. Hence
the availment of one not knowing that doing so would meet
forsake in the other. Then she cannot present it with the
other on the basis of Article 3 because that law providing
her with 2 different remedies that is not mandatory. That is
permissive so not covered by Article 3.
Floresca vs Philex Mining
G.R. No. L-30642 April 30, 1985
Even assuming, without conceding, that an employee
is entitled to an election of remedies, as the majority
rules, both options cannot be exercised
simultaneously, and the exercise of one will preclude
the exercise of the other. The petitioners had already
exercised their option to come under the Workmen's
Compensation Act, and they have already received
compensation payable to them under that Act.
Stated differently, the remedy under the Workmen's
Compensation Act had already become a "finished
transaction".
Now let us say Mister…that you and your girlfriend got
married before the governor of Bulacan. And you both
believed that the governor had the authority to solemnized
your marriage. What would be the status of your marriage?
The marriage would be valid because we can
invoke ignorance of the fact. Under the civil code
even though the solemnizing officer has in fact no
authority in solemnized the marriage if at least one
of the parties believed that such solemnizing officer
has the authority then the absence of the authority
of the solemnizing officer will not affect the ability
to give the marriage.
Do you agree mister…?
 No maam, I do not agree the parties know that their
solemnizing officer is a governor would have one of
the authorities provided by the law under the
family code authorizing solemnizing manages. It is
an ignorance of the law maam.
Okay I need you to be able to express yourselves
completely. You have to address the issue. Always when you
are answering address the issue, ano ang topic naten? It is
the ignorance of the law right? And we are correlating it to
Article 35 whereby way of exception a void marriage can be
sustained valid if there is good faith of the contracting
parties to regards to the authority of the solemnizing
officer. Other facts that I gave you are established on the
part is where on good faith and what good faith consist of?
They thought that the governor had authority to marry
them. So the issue here whether or not which is really
good faith that can be recognized as exception under
Article 35 but in good faith that they are involving here
is premised on what kind of mistake.
Is it a mistake of law? Or is it a mistake of fact. If
definitely not a mistake of fact. Bakit? Because they know
very well that the person who solemnized their marriage
was the governor. Only they thought that the governor was
authorized by law to solemnized marriages. So clearly it is
what? A mistake of law. And even Article 3 class
ignorance of the law excuses no one then they cannot
invoke good faith. Because good faith cannot be
premised as a general rule on what? A mistake of law.
Maliwanag ba?
Now Mr. how would you tweak. How would you modify my
example to make the marriage of the parties come within
exception under Article 35?
If the parties would be giving good faith that the
governor had the legal authority to.
Think about it mister…ha. I’m asking you to deviate to
deviate a part of my example that I gave. Modify it in such a
way that the marriage would become valid. How would you
do it.
Miss…?
Um in that case maam the parties thought that the
governor was the mayor. So in that case there
would be a mistake of fact hence good faith is a
valid defence.
Yes that would be correct. If the parties thought that the
governor was actually the mayor siguro nangyare twins
ang governor at mayor. Kasi uso naman talaga sa atin ung
mga magkakamag anak lang ang mga naka pwesto. Diba? So
di malayo mangyare yon.
So they may have mistaken the governor for the mayor.
In which case, their mistake, their good faith now would
be premised on a distinct of man. And they can now
invoke this to sustain the validity of their marriage.
PAGE 8 OF 175
PROSPECTIVE APPLICATION OF LAWS
Art. 4. Laws shall have no retroactive effect, unless the
contrary is provided
Lets go to Article 4. Article 4 would be self explanatory
right?
WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a
right recognized by law.
Lets go to Article 6. What does Article 6 provide miss?
Alright now the attacker would be more controversial to the
provision. What do we mean by a person with the right
recognized as by law?
It means that the person has a vested right in the
law.
A vested right with the law. Let us say that your parents
have executed waivers of their inheritance from their
old parents. Can you, the potential heir of your parents,
question the waiver saying that this waver will
prejudice you
No maam. Because I do not have a right yet. I only
have an inchoate right.
So otherwise the right should already be existing for
you to be considered as someone who would be
prejudiced by the waver. Correct?
Yes po.
Can you give me an example then of a person who can object
to the waiver to be made by your parents.
The predecessors of the parents can object
The predecessors of the parents can object. In the other
rules of succession, how will the creditors object to the
waivers to be made by its debtors.
Maam if they received notice of the waiver
Remember ung succession class if an heir repudiates
and it happens to have creditors. What can the creditors
do? Anyone?
Yes? They would be the one to accept the inheritance on
behalf of the debtor. Diba? That is similar to what kind of
relief of obligations and contracts? Ano ung counterpart
niyan sa obligations and contracts? One of extreme
remedies diba? We have this hierarchy. Yes? Accion
subrogatoria. Now that is a recognition that a waiver can be
questioned by the creditor because the creditor is such a
person with a right recognized by law.
 JUDICIAL LEGISLATION
Art. 8. Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal
system of the Philippines.
What is Article 8 about?
Article 8 of the civil code is all about the power of
the court to interpret laws. It states that judicial
decision applying or interpreting the laws in
conclusion shall part from the legal system of the
Philippines.
To fall part of the legal system of the Philippines. So is
this tantamount to granting Supreme Court judicial or
legislative power?
No maam this is not tantamount to indulging upon
or congress.
But what does the law mean which says that judicial
decisions would form part of the legal system. Isn’t that
the same as saying that judicial decisions on laws
themselves?
No maam. Article 8 says that the decisions of the
court are not part of the law in case of PLDT vs
Aalvarez. The Supreme Court held that whenever
the Supreme Court interprets the law it nearly
establish its contemporaneous intent of the law
and their interpretations need part of the law as of
the date it was passed.
So what would be the consequence of that ruling of the
judicial decision is deemed to depart of the law as of the
time of its enactment?
This means that whenever the Supreme Court
makes an interpretation of the law, they are not
changing the author amending the law but making
a clarification as to the intent of the legislators.
Actually we have tackled that. I agree that the Supreme
Court is not allowed to legislate under Article. That instead
the Supreme Court have tasked to simply establish the
contemporaneous intent of congress at the time of the
enactment of the law. Okay we’re pass that. What I’m asking
now is this question: What would be the consequence of
that finding that judicial decisions formed part of the
law as of the time of its enactment? So far the application
of this judicial decisions is concerned. Halimbawa, the
Republic v. Molina, right ? The case came up with a list of
requirements for Article 36. Now can someone or parties
who got married before the ruling of the Republic vs. Molina
and who now said that after marriage nullified under Article
36 can they say “Wait, the ruling in Republic vs. Molina
should not be made applicable to us. Because that ruling was
laid down after we got married.” To make it applicable to
PAGE 9 OF 175
us would mean that we are even in retroactive
application. Can they make that argument?
If the parties filed their petitions before the
decision was made and the parties relied on
decisions from the previous rulings, then the
decisions of the Supreme Court are prospective in
application.
Decisions of the Supreme Court are prospective in
application, wouldn’t that be inconsistent? Wouldn’t
what we are saying is the teaching of Article 8 that
judicial decisions of the Supreme Court for point of the
law they are interpreting as of the time of its enactment.
So if it’s supposed to be part of the law as of the time of
its enactment, then we do not have to think about
prospective application because it has always been a
part of the law. So it should not matter that the petition
was found before the ruling on Molina. Molina should still
be applicable to them because Molina is if to be a part of
Article 36 from the outset from the time that the family code
was enacted. Diba? Un ang sinasabi naten? Right? And that
is how it should be. Kasi it’s deemed to be part of the legal
system. But we have to qualify this? And how do we
qualify this rule? Dun papasok ngayon ung binabanggit ni
Mr… na prospective application. When exactly are we
supposed to give Supreme Court rulings prospective
applications? The decisions of the Supreme Court
should be given prospective application if the parties
relied on the form the previous rulings since it would
be inequitable to apply the new ruling to them when
they have already made reliance to all the ruling that
they could think.
A variety of cases starting from Pesca vs Pesca and Ting vs.
Velez-Ting. It is only when a prior ruling of the Supreme
Court is overruled and a different ruling is adapted that the
new doctrine may have to be applied prospectively. And
only then in favor of parties who have relied on the old
doctrine.
Okay so just to recap we adhere to Article 8 judicial
decisions specifically decisions of the Supreme Court they
are taken to be part of the legal system which means that
they are a part of the law as of that time of its enactment. So
that means we do not speak of prospective or
retroactive application because they have been part of
the law at the outset. However if you have a ruling of the
Supreme Court which overturns the prior ruling then
we will have to give that new ruling prospective
application.
SILENCE, OBSCURITY, INSUFFICIENCY OF LAWS
Art. 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or
insufficiency of the laws.
What is Article 9 Mr…?
 Yes maam Article 9 states that no judge or court
shall decline to render judgement to decision of
silence obscurity or insufficiency of the laws.
Okay so in that case when the law is silent when the law
is obscure or sometimes when there is no applicable at
all what is the judge supposed to do?
The judge is still mandated to rule the case brought
upon him or on the basis of other of customs or
general principles of law
Why say general principles of law? What do you mean?
These are the norms accepted by the international
treaty as the basis of judge within the society.
It’s much easier to simply say that judges can resort to
customs or principles of equity. Diba equity comes in
when there is no applicable law. But to draw me this
general principals of law concept when you are clearly
grasping for its meaning yourself. Then that is deceit. You
only speak of things you understand. Do not speak of things
you have no ideas about. Okay?
Now there is this interesting case under Article 9 Reyes vs
Lim, August 11 2003. It is interesting because in this case
the Supreme Court sustained that the defendant to deposit
the amount of 10 million pesos. Noh with the coin which
ensured that the said amount would be returned to the
blamed thieves. Should the blamed thieves complain for this
decision was granted. Nagkabayaran kasi dito and then the
defendant was not able to deliver. So that victim was
seeking the decision of the contract and you know what is
the primordial effect towards mutual restitution, right? So
that the defendant would not be in the position to give back
what he receive. Then your complaint your victory will be
hold for not. Balewala. Ang problema there is nothing in our
rules of procedure which would allow the making of the
deposit meron tayong attachment pero ito iba e. The court
required that the money to be returned just in case
complain was sustained to be deposited to the court and it
was not premised on any specific provisions pertaining to
provisional remedies. But as to same as the case which the
Supreme Court said this is allowable and the court invoked
Article 9 kasi nga the efforts of the parties would be negated
if the defendant would not be able to give back the money
should the provision be granted.
DAVID REYES vs. JOSE LIM, CHUY CHENG KENG and
HARRISON LUMBER, INC.
G.R. No. 134241 August 11, 2003
Reyes’ contentions are without merit.
Reyes points out that deposit is not among the
provisional remedies enumerated in the 1997 Rules
of Civil Procedure. Reyes stresses the enumeration in
the Rules is exclusive. Not one of the provisional
remedies in Rules 57 to 6118 applies to this case.
PAGE 10 OF 175
Reyes argues that a court cannot apply equity and
require deposit if the law already prescribes the
specific provisional remedies which do not include
deposit. Reyes invokes the principle that equity is
"applied only in the absence of, and never against,
statutory law or x x x judicial rules of procedure."
Reyes adds the fact that the provisional remedies do
not include deposit is a matter of dura lex sed lex.
The instant case, however, is precisely one where
there is a hiatus in the law and in the Rules of Court.
If left alone, the hiatus will result in unjust
enrichment to Reyes at the expense of Lim. The
hiatus may also imperil restitution, which is a
precondition to the rescission of the Contract to Sell
that Reyes himself seeks. This is not a case of equity
overruling a positive provision of law or judicial rule
for there is none that governs this particular case.
This is a case of silence or insufficiency of the law and
the Rules of Court. In this case, Article 9 of the Civil
Code expressly mandates the courts to make a ruling
despite the "silence, obscurity or insufficiency of the
laws." This calls for the application of equity, which
"fills the open spaces in the law."
Thus, the trial court in the exercise of its equity
jurisdiction may validly order the deposit of the P10
million down payment in court. The purpose of the
exercise of equity jurisdiction in this case is to
prevent unjust enrichment and to ensure restitution.
Equity jurisdiction aims to do complete justice in
cases where a court of law is unable to adapt its
judgments to the special circumstances of a case
because of the inflexibility of its statutory or legal
jurisdiction.Equity is the principle by which
substantial justice may be attained in cases where
the prescribed or customary forms of ordinary law
are inadequate.
YEARS, MONTHS, DAYS, NIGHTS
Art. 13. When the laws speak of years, months, days or
nights, it shall be understood that years are of three
hundred sixty-five days each; months, of thirty days;
days, of twenty-four hours; and nights from sunset to
sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively
have.
In computing a period, the first day shall be excluded, and
the last day included.
Let’s go to Article 13 miss…? Okay so if you have a treaty
that is due within 60 days from January 31 2020. Miss when
will be your deadline?
It would be on march 31 of the same year
 Sec. 31. Legal Periods. - "Year" shall be understood to
be twelve calendar months; "month" of thirty days,
unless it refers to a specific calendar month in which case
it shall be computed according to the number of days the
specific month contains; "day," to a day of twenty-four
hours; and "night," from sunset to sunrise.
Now I’m calling your attention to the provisions of the
Administrative Code of 1987 specifically Section 31,
Chapter 8, Book 1 of the said code. Section 31 defines legal
periods as well. Problem is under section 31 of the Admin
Code, a year is supposed to be understood as consisting 12
calendar months. So this is what? Definitely different from
how the civil code defines a year. Under the Civil Code a year
should be of 365 days
Under the Admin code a year is to be taken as consisting of
12 calendar months right. The Admin Code took effect after
the Civil Code. So what would be the effect of this
contradictory provision of the Admin Code on Article
13 of the Civil Code?
It would supersede the provision of the civil code
being the later law which expresses the latest
legislative intent
Supersede, what does that mean?
It would take the place of the old law.
So in other words, the Admin Code has repealed Article 13
of the civil code its far as the definition of a year is
concerned kasi andon lang naman ang ating incompability
right. So long story short and based on the ruling of the
Supreme Court in CIR vs. Primetown Property Group Inc.
decided in 2007, we will now follow the provisions of the
admin code in defining what a year.
COMMISSIONER OF INTERNAL REVENUE vs.
PRIMETOWN PROPERTY GROUP, INC.
G.R. No. 162155 August 28, 2007
Both Article 13 of the Civil Code and Section 31,
Chapter VIII, Book I of the Administrative Code of
1987 deal with the same subject matter — the
computation of legal periods. Under the Civil Code, a
year is equivalent to 365 days whether it be a regular
year or a leap year. Under the Administrative Code
of 1987, however, a year is composed of 12 calendar
months. Needless to state, under the Administrative
Code of 1987, the number of days is irrelevant.
There obviously exists a manifest incompatibility in
the manner of computing legal periods under the
Civil Code and the Administrative Code of 1987. For
this reason, we hold that Section 31, Chapter VIII,
Book I of the Administrative Code of 1987, being the
more recent law, governs the computation of legal
periods. Lex posteriori derogat priori.
PAGE 11 OF 175
It is said that the definition of a year under the admin code
is 12 calendar months. 12 calendar months would make up
1 year under the admin code. But what is a calendar month
miss…?
It refers nearly to the months as the name of the
months regardless of the number of days they have.
So what calendar month from today would be
(September 19, 2020 to October 18, 2020)
A calendar month is defined or the definition adapted by the
Supreme Court in that case of Commissioner of internal
revenue this is as follows. It ends the month designated
in the calendar without regard to the number of days it
may contain. It is the pinnacle of time running from the
beginning certain number day up to but not including
the corresponding number of days of the next month.
COMMISSIONER OF INTERNAL REVENUE vs.
PRIMETOWN PROPERTY GROUP, INC.
G.R. No. 162155 August 28, 2007
A calendar month is "a month designated in the
calendar without regard to the number of days it
may contain. It is the "period of time running from
the beginning of a certain numbered day up to, but
not including, the corresponding numbered day of
the next month, and if there is not a sufficient
number of days in the next month, then up to and
including the last day of that month." To illustrate,
one calendar month from December 31, 2007 will be
from January 1, 2008 to January 31, 2008; one
calendar month from January 31, 2008 will be from
February 1, 2008 until February 29, 2008
Okay so to illustrate what calendar month from today
would mean that we are beginning from today, September
18. We begin from a certain numbered day September 18
then up to the but not including the corresponding
numbered day of the next month. What is the corresponding
day of the next month of September 18? It would be October
18. But the definition of what the Supreme Court says, we
will not include the corresponding numbered day so what
calendar month from today Sept 18 would be Oct 17 2020.
And if we’re going to compute for 1 year or 2 years then you
would do the same thing. You’ll do it from month to month.
So if I’m going to ask you miss, what would be 2 years from
April 15 2018?
It would be April 14 2020.
It would not include the corresponding numbered day diba?
However please note the ruling of the Supreme Court in
Spouses Sy vs. China Banking Incorporation, this was
decided in August 2016. In that case the Supreme Court still
applied Article 13 of the civil code which uses 365 days
as the basis of a year to determine the accrual of
interest.
 SPOUSES JOVEN SY AND CORAZON QUE SY v. CHINA
BANKING CORPORATION
G.R. No. 215954, August 01, 2016
Article 13 of the Civil Code provides that when the
law speaks of years it shall be understood that years
are of 365 days each and not 360 days. There being
no agreement between the parties, this Court adopts
the 365 day rule as the proper reckoning point to
determine the daily basis of the interest rates
charged per annum
TERRITORIALITY PRINCIPLE
Art. 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in
the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
Lets go to Article 14. So are we saying that penal laws would
be applicable to everyone in the Philippines regardless of
nationality?
Generally yes maam. There is one exception of this,
commissioners of public international law
And why must foreigners abide from our penal laws?
Because the purpose of penal law is to maintain
public order and public safety. And when
foreigners come here maam, it is still the duty to
maintain such peace.
So in otherwise what you’re saying is that in exchange for
the protection that this foreigners enjoy under our law
then they must be obligated to abide from the same
laws which assured their public safety and protection
right?
Yes maam
Now Article 14 also specifies Philippine territory. So
conversely that would mean that our penal laws do not have
any effect outside the Philippine?
Generally. However Article 2 of the revised penal
code provided some exception, mainly that PHL
penal laws will still apply to PHL airship or ship and
PHL. Penal laws will still apply to public officers in
abroad in relation to their performance to public
duties. It would still apply to those times as called
public national security and safety. It will also
apply to those crimes which involve counterfeiting
of Philippine currency and introduction such
counterfeited.
RPC. Article 2. Application of its provisions. - Except as
provided in the treaties and laws of preferential
application, the provisions of this Code shall be enforced
not only within the Philippine Archipelago, including its
PAGE 12 OF 175
atmosphere, its interior waters and maritime zone, but
also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or
airship
2. Should forge or counterfeit any coin or currency note
of the Philippine Islands or obligations and securities
issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the
introduction into these islands of the obligations and
securities mentioned in the presiding number;
4. While being public officers or employees, should
commit an offense in the exercise of their functions; or
5. Should commit any of the crimes against national
security and the law of nations, defined in Title One of
Book Two of this Code.
If a married woman were to have an adulterous affair
with another man not her husband outside the
Philippines would she be held liable?
No maam. she cannot be liable because the crime
was committed outside the Philippines.
Should it be “absolutely without criminal liability?”
Yes maam
What do you say Miss…?
Yes maam I agree with mister… that there is no
criminal liability because…
Absolutely no criminal liability. No possible criminal
liability at all?
No maam. When we speak of criminal liability but
it can be a grant for legal separation because of
sexual infidelity.
Miss…?
I agree with mr… that there is no criminal liabiliy
because under the principal of territoriality,
criminal laws can only be those committed within
its territory .
Mister…?
I agree with mister… that the crimes that are
committed are liable only in the Philippines and
not abroad.
If you would note that I emphasized rather emphatically the
word absolutely no criminal liability so you would have
to be wary and the question would be absolute in its tenor
because that note would more likely call for qualification.
laging tandaan niyo. If you’ve noticed there are very few
instances in the law where the rule is absolute. Lagi tayong
may exceptions. Okay so if your question, if the question
is to be imposed to you is absolute in its tennor then be
on guard. And on this case you should have made the
qualification. Obviously there would be no criminal
liability under Philippine law. Because the crime was
committed outside our territory. And our penal laws are
only effective within our territory. However, this incident
have prejudice to criminal liability under the law of the
place where the crime may have been committed.
Okay? So ulit ulit kong sinasabi sayo na absolutely no
criminal liability. And if you say yes, d na tama ung
sagot. Alright? Okay.
That’s also correct, you may not be able to prosecute her
under Philippine law for adultery but that may serve as
ground for what serve as ground for legal separation. Sexual
infidelity may not be committed within the Philippines so it
should be a ground for legal separation. And of course I
would now want to know why not in relation to the next
Article.
NATIONALITY PRINCIPLE
Art. 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though
living abroad.
Maam in the next Article, Article 15 states that
nationality principle which states that laws
regarding family rights and duties jurisdictions,
status, legal capacity shall govern Filipinos expense
whenever they resign.
Okay so going back to my pending question. Sabi natin
kanina “Yes she will now be liable under Philippine law for
adultery but her sexual infidelity may be ground for legal
separation even though the scene was committed outside of
the Philippines right? Claro yon. You all understand that to
be the correct rule. What I’m interested is how can we
justify that rule that yes she committed infidelity abroad but
still that can be basis for her husband to file a petition for
legal separation against her. Ang tanong diyang ay bakit?
Maam because sexual infidelity is a law which was
under family rights and duties. A violation of duties
of the wife to be to maintain fidelity to the husband
even though the woman may be living abroad
according to nationality principle. The Philippine
family law may still apply to her so even though she
committed it abroad she is still under that law
maam.
I get what you’re saying no, but listen to this version. A
commission by this woman of sexual infidelity is rooted
on her status as a married woman. And under the
nationality principle embodied in Article 15 that the
rights and obligations would be determined under the
Philippine law as a married woman no matter where
she may be.
Now I am saying the exact things that you were saying right?
Pero as within your version and my version. My version
PAGE 13 OF 175
would appear to be the more concise, more cohesive one.
Right? And of course you would say that eh maam abogado
kami ang tagal na. But that is and I’m saying this to you
because this is what you should aspire. Ganitong level dapat
ang gusto niyong marating. And imagine if you were able to
do that for the bar examinations. If you would be able to
think on your feet under pressured and if you would notice
I took the time to point out the mistakes and the way you
are answering. Hopefully this would be limited to the
official meetings that as we progress on hindi na ako mag
cocorrect ng pagsagot ninyo because you already know how
to answer. That is the goal as well. Right?
Okay now it has been said miss… that as we Filipinos we are
the only people in the world who can get married anywhere
and yet we will not be able to get a degree of divorce where
we may be. And in answering this question. I would want
you to disregard for the moment the ruling of the Republic
v. Manalo. Wag muna nating isipin yon ha kasi Republic v.
Manalo would exception to Article 15. How would you
explain that?
Maam. first we follow the nationality principle
which provides that laws that are leading to family
right or status of legal capacity of persons are
binding upon citizens of the Philippines even living
abroad. Hence Philippine laws follow Filipino
citizens wherever they go. And should Filipino
citizens get a Divorce decree abroad it would not be
recognized here in the Philippines following the
nationality principle as well as Article 17
paragraph 3. Which provides that acts concerning,
prohibited laws and as well as those concerning
public, prohibitive laws pertaining to rights,
pertaining to persons and property shall not be
rendered ineffective by judgements committed by
a foreign country. And as such, the divorce decree
will not be recognized here as it will be
contradictory to our public policy.
Miss…there a law in the Philippines which said that
Filipinos cannot divorce?
None.
None. So what is our basis for saying that we cannot
obtain a degree of divorce?
Maam, it is the public policy of the state as
embodied in Article 1 of the Family Code. Maam
under Article 1 of the Family Code which provides
that a marriage is a special contract of a family
union and its special consequences are not subject
to speculations by the parties. Hence, a divorce
degree obtained by a Filipino citizen will not be
valid here.
Article 1 does not say that the parties cannot divorce. Have
you ever wondered class why that is the case? Filipino
citizens cannot obtain a degree of divorce and yet you have
not heard or you are not aware of any laws explicating
prohibiting divorce. Meron ba? Meron bang batas na
nagsasabing Filipinos cannot divorce. None. So how do we
get on saying that it does not matter where you have
married, it does not matter where they may be. Filipinos
citizens can never get a degree for divorce. Have you ever
wondered about that? It’s not so much that we do not
have a law prohibiting divorce as it is that we do not
have a law on divorce. Since our laws do not provide for
divorce then it follows that Filipinos are denied this
right to divorce. And since this is a part of family law. This
very status as married people then this will follow them
wherever they may go. Maliwanag?
Now I don’t know if you’ve also wondered, eh maam kung
totoo po yan, bakit po yung mga kakilala namen na pamilya
namen na Filipinos na nakatira sa abroad, bakit po sila
binibigyan ng divorce degree ng mga korte ng mga lugar
kung saan sila nakatira. Sa Las vegas maam ang bilis
makakuha ng divorce degree doon ng uncle ko at ng auntie
ko. Sa California po binigyan rin po sila ng divorce. Sa
Australia binigyan sila ng divorce sa japan. Kung bawal po
talaga bakit po sila nakakakuha ng divorce degree? Do you
have any idea? Why that is mister…?
Maam I think they would want to change their
citizenship abroad maam. Because the change of an
citizenship, the family laws will no longer prove
worth them maam.
No. We’re speaking of Filipinos e, di ko namang sinabing
former Filipinos. Sabi ko Filipinos. Pay attention no. pay
attention to my question do not change the facts in my
question.
It is because class this jurisdiction, japan, las vegas,
California they do not require the nationality of the
parties who come to them who ask for divorce. Usually
what do they consider? The residence. If you establish
that you were residing in that place for six months then you
have a standing to go to the court and ask for a divorce
degree and that is their only concern. Right? Yun nga lang.
Since we’re dealing with Filipinos, the Filipinos cannot
just take off their Philippine nationality and embrace
this laws provided by this places where they are
residing. Because precisely we have Article 15 to
contend with. So kahit sa Japan, sa Las Vegas, sa California
nag issue ng divorce degree, this will not be recognized in
the Philippines because they do not have the capacity to get
a divorce degree. And even if the laws of these places allow
them that divorce degree. They cannot be given effect here
on account of Article 17, its contradictory to its to public
policy.
Okay however, we are inching closer to the Republic vs.
Manalo. Our adherence to the national in principle also have
ill effects. Especially before the advent of the family code.
Specifically when it came to mixed marriages. Filipina with
foreigners, Filipino with foreigners. But usually the bulk of
these mixedd marriages would involve a Filipina marrying
PAGE 14 OF 175
a foreigner. Konti lang ung Filipinos marrying foreign
woman. At inaapi na ang mga babae class, hindi ba sa
pilipinas palang inaapi na abroad api parin sila. So ang
mangyayare non is, they would be married to this foreign
husband and the foreign husband would tire of them and
the foreign husband would divorce them. This is prior to the
Family Code ha.
So husband is a foreigner, he is divorced we apply the
nationality principle even in regard to him so we treat him
as what? A divorced man. Ang masakit as a divorce man
minsan babalik pa sila sa Pilipinas ulet mag shoshopping
siya ulit ng bagong asawa dito. At magpapakasal siya ulet sa
isa pang Filipina. And paano na si Filipina number 1? We
apply the nationality principle to her. She is a Filipina. And
under our laws there is no divorce so the divorce degree
paid by the husband that cannot benefit her. So other
ending natin si husband single ready to mingle. Has moved
on with his life. His Filipina wife is in limbo. She is married
to someone who is not married to her. Okay? Parang mas
masaklap yon sa unrequited love. So, we have this
interesting case. I’m sure you have heard of this. Van Dorn
v. Romillo Jr. DibaWhat happened in that case?
Maam in that case the woman the Filipina was
married to foreigner maam but then he got the
divorce degree abroad maam and then he came
back to the Philippines and he found a new lover
and they subsequently married.
Was that the issue there?
Maam in that case the foreigner who acquired the
divorce degree went back to the Philippines to get
a share allegedly to the conjugal properties.
Sa sobrang kakapalan ng mukha ng mister. He followed the
wife here in the Philippines sguro nalaman niya na medyo
established na ulet ung business ng babae. Right? And what
did he want?
He wanted a share maam
He wanted a share in the business. In what theory?
That the business is their conjugal property.
Conjugal partnership law yon. Hindi ba and that system,
ginagamit niya yung nationality principle laban dun sa
Filipina. Ayon sa batas niyo kasal ka parin saken. So kung
kasal ka parin saken, may conjugal partnership parin tayo.
At kung may conjugal partnership parin tayo, I am entitled
to have a share in whatever you are earning. But here this is
one ruling where you would really appreciate the Supreme
Court. In how it approach the resolution to favor the
Filipina. Kasi kung titignan mo ung kaso class. May mga kaso
kasi na nakakaliwanag na dehado kaagad kayo e. But it
takes creative thinking to turn the tide in favor for your
client. And I think this is one of the Supreme Court did here,
right so how did the Supreme Court ruled in this case?
 The Supreme Court ruled this as a divorce degree
obtained by the former husband was invalid in
pointing as against and it would be unfair if the
foreigner husband would be allowed to use the
divorce degree against the Filipina wife. And the
Supreme Court further ruled that Article 15
pertains to the nationality principle only applies to
Filipino citizens.
No. that is not how the Supreme Court ruled. The Supreme
Court had two options class first option, apply the
nationality rule to the Filipina and consider her
married to the husband. That was the obvious choice.
Or it could opt to take the national principle and apply
it to the husband. And that is what the Supreme Court did.
Guess we have heard of the nationality principle but we also
apply it to foreigners. And under your national law. You
are no longer married to her. And if you’re no longer
married to her, you are no longer her husband. And
only a husband can ask for a share for the conjugal
property partnership. Di ba ang ganda. Don’t you
appreciate that kind of argument wouldn’t you have wanted
to have made an argument for your client. And that was the
board runner of the second paragraph of Article 26. Pwede
pala, we can turn this thing in its head to favor our country
men.
ALICE REYES VAN DORN vs. HON. MANUEL V.
ROMILLO, JR
G.R. No. L-68470 October 8, 1985
Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as
petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation
before said Court from asserting his right over the
alleged conjugal property.
To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still
married to private respondent and still subject to a
wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and
fidelity, and render support to private respondent.
The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should
not be discriminated against in her own country if
the ends of justice are to be served.
LEX REI SITAE
LEX LOCI CELEBRATIONIS
Art. 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
PAGE 15 OF 175
However, intestate and testamentary successions, both
with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the
national law of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found.
How do we refer Article 16 paragraph 2?
Lex Loci Celebrationis, Maam.
Okay. And regard to the properties being govern by the
place where they are situated we refer to that rule as?
Lex Rei Sitae
In regards with succession, it would be the national law of
the person whose succession and other consideration
which get govern. Okay. Are you familiar with the case of
estate of Edward Christenson vs. Garcia?
Yes maam. It introduced the Renvoi doctrine
Lucy is the legitimate child, while Helen was an
acknowledge natural child.
Helen was given a legacy. Right? Just a legacy. And I am
emphasizing this because I am going to make a point later.
In regard to this matter. So majority of the property given
to Lucy then Helen was given a legacy. If I’m not mistaken,
around 3000 Helen of stocks.
Helen is arguing that the Philippine law shall apply because
according to the national law of Edward, there is a referring
back to the Philippine Law. Why was she asking that
Philippine law should apply? She wanted the law the
Philippine law to compulsory succession to be applicable,
right? Okay. Kaya lang ang problema naten what was the
nationality of the father. He is an American citizen. That is
his nationality.
Miss…?
Maam in that case, since the father was a resident
of, was an American citizen was domiciled here in
the Philippines when he died, the laws of California
provides for 2 laws which are applicable. 1 st for
those residence, those who died as residence of the
California. And those who are domiciled elsewhere
when he/she died.
Did the Supreme Court apply Article 16?
Yes maam. It referred back to the national law of
the father.
So what part applied of Article 16? But the problem is the
United State is a federal state. Right? So it does not have 1
national law. What it has would be is a totally of different
states laws. So there was no national law that referred to so
by default, our law, Article 16 had to refer to the laws of
California. Where they thought there was a resident. But the
thing is California law had 2 sets of laws. 1 internal law and
the other conflicts of law. Apply this to whatever there is a
foreign element. And there is a foreign element in this case.
Supreme Court said we had to apply conflicts law
instead of the internal California law. Problem with the
conflicts law is that it refers back to the matter of law of
domicile. Right? And the law of domicile, the domicile
was the Philippines. And the Philippines intern we also
have 2 sets of law. Article 16 our conflicts law and of
course our own law on succession. Which provides for
what? Compulsory succession.
Supreme Court said this time around we have to defer to the
internal law of the Philippines already. We can’t apply
Article 16 can we? We would have to refer that back to the
law of California. Only to have the law of California refer
back to us. So it has to stop at some point. So that in the
doctrine was established by the Supreme Court. And it
accepted the referral of the case to us. But this time around,
applying our internal law in succession. Which in turn
provides for what? Compulsory succession. Which is
favorable to? Helen. Why was it favorable to Helen? Because
she stood to get more. Diba? How much more?
Maam she will get half of the estate of the sales
Ditto papasok ang punto na sinasabi ko sainyo. Diba?
Because she did receive something by way of legacy. And
since she received something by way of legacy, there is no
preterition and their only remedy is to ask for what? The
completion of her legitimes which will amount to ¼ of the
estate. So lamang pa rin si Lucy, ¾ kay Lucy, ¼ kay Helen.
Kasi ¼ lang, helen bilang isang acknowledged natural child.
Ha now what was my point? Just imagine class if no legacy
was given to Helen. What will you have then? Preterition.
Diba? You would have a Preterition of compulsory heir to
the direct line. And what is the effect of Preterition? It
will invalidate the will. The will of Edward in favoring
Lucy would be invalidated.
And if the will would be invalidated class, what would
happen to the succession to his estate? It will be now be
govern by what rule? Intestate succession.
And if its intestate succession how much Helen get? She gets
half the estate. Hating kapatid na talaga sila. See? Were it
not for that legacy of 3000 shares. There would have been
preterition. And there will have been preterition because
Philippine law was made applicable by virtue of the renvoi
doctrine. Diba? Can you see? How we tied everything
together using matches of provisions of the civil code
preliminary chapter but we also used provisions on
succession. Everything ties together class. Ung kala niyong
di connected dito sa civil law, dito natin pagtutugma
tugmain at kakabit kabiten. Right?
PAGE 16 OF 175
IN THE MATTER OF THE TESTATE ESTATE OF
EDWARD E. CHRISTENSEN vs.
HELEN CHRISTENSEN GARCIA
G.R. No. L-16749 January 31, 1963
Appellees argue that what Article 16 of the Civil Code
of the Philippines pointed out as the national law is
the internal law of California. But as above explained
the laws of California have prescribed two sets of
laws for its citizens, one for residents therein and
another for those domiciled in other jurisdictions.
Reason demands that We should enforce the
California internal law prescribed for its citizens
residing therein, and enforce the conflict of laws
rules for the citizens domiciled abroad. If we must
enforce the law of California as in comity we are
bound to go, as so declared in Article 16 of our Civil
Code, then we must enforce the law of California in
accordance with the express mandate thereof and as
above explained, i.e., apply the internal law for
residents therein, and its conflict-of-laws rule for
those domiciled abroad.
It is argued on appellees' behalf that the clause "if
there is no law to the contrary in the place where the
property is situated" in Sec. 946 of the California Civil
Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the
Philippines is the provision in said Article 16 that the
national law of the deceased should govern. This
contention can not be sustained. As explained in the
various authorities cited above the national law
mentioned in Article 16 of our Civil Code is the law
on conflict of laws in the California Civil Code, i.e.,
Article 946, which authorizes the reference or return
of the question to the law of the testator's domicile.
The conflict of laws rule in California, Article 946,
Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of
his domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer
the case back to California; such action would
leave the issue incapable of determination
because the case will then be like a football,
tossed back and forth between the two states,
between the country of which the decedent was a
citizen and the country of his domicile. The
Philippine court must apply its own law as
directed in the conflict of laws rule of the state of
the decedent, if the question has to be decided,
especially as the application of the internal law
of California provides no legitime for children
while the Philippine law, Arts. 887(4) and 894,
Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of
the parent recognizing them

SEPTEMBER 24, 2020
HUMAN RELATIONS
Q: What is Article 19?
A:
Art. 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
It stands for the Principle against the Abuse of Rights
Q: What are the requisites for one to have a Cause of
Action for Abuse of Rights?
A: The requisites are:
1. There is legal right or duty;
2. Such duty is exercised in bad faith;
3. It is for the sole intent of prejudicing or injuring
another;
4. The Absence of good faith is essential to abuse of right
(Rabuya, 2009)
Q: How do we know that the exercise of the right is with
the sole intention of causing damage to another?
A: In reality people do not announce what their sole
intentions are. But you would be able to tell that the right
was exercised solely to cause damage to another if there is
no benefit to the person exercising such right.
An example: A lot of you may have been living in
dormitories, prior to the occurrence of the pandemic. So,
you would have dormmates and your bedrooms may have
only been separated by thin walls. Because the wall is thin,
you can hear the noise each other makes.
Now, it is well within your right to enjoy music. But if you
do so and you leave your unit and the music is still raging
on, just to bother your dormmate, then that is clearly a case
of an abuse of a right.
UNNAMED CASE (ejectment)
FACTS: The defendant had a writ of demolition, so the
plaintiff would be evicted and furthermore, his dwelling
would be demolished. But the defendant did not give the
plaintiff an opportunity to retrieve his belongings. The
defendant insisted on having the writ of demolition
implemented immediately.
ISSUE: Was the exercise of the right valid?
PAGE 17 OF 175
RULING: No, it was not. And the plaintiff was awarded
damages. The exercise of immediate implementation of the
writ without giving the plaintiff an opportunity to collect his
belongings was clearly unreasonable. What was there to
gain or to lose for that matter? Clearly, he was abusing his
right.
And for that the defendant was made liable by the Supreme
Court for damages.
Q: If you would read Art. 19, you would notice that this
is not self-executory. At most, it simply states what
should be done by people in the exercise of their right
or in the performance of their duties. How do you
implement Art. 19?
A: We have to look to Art. 20 and Art. 21. These are the
provisions which would give you a Cause of Action for
Damages.
Article 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the
latter for the same.
Article 21. Any person who willfully causes loss or injury
to another in manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.
Q: What are the differences between Art. 20 and Art. 21?
A:
Art. 20 Art. 21
Covers actions which goes Does not require that a law
against a specific provision be violated.
of law. It is enough that the acts
are contrary to morals,
good customs, or public
policy.
Does not provide that the Provides that the act must
act should be done with be exercised with malice or
malice or willful intent. willful intent.
Enough that there be an act
of negligence
Q: If what is involved is a breach of promise to marry,
will there be a cause for damages to be awarded to the
plaintiff?
A: As a general rule, a breach of promise to marry is not an
actionable wrong. The promise is based on affection, love or
emotions, and emotions and feelings change. One cannot be
faulted for changing his mind about marrying another.
Exceptions: When the act constitutes one where damages
pursuant to Art. 21 may be recovered. In a sense, then it is
no longer a mere breach of promise to marry.
If we would examine these cases decided by the Supreme
Court to this effect, we would notice that the award of
damages was not based solely on the fact of the breach of
the promise to marry.
You have to understand that when you make a promise to
marry, that is usually rooted in emotions. And emotions, sad
to say, are not the most stable thing is this world.
I am sure you have experienced the highs of being in love.
Those initial 3-months, pakiramdam niyo na hindi niyo
kaya na mabuhay na mawala yung tao na yun. You cannot
last one day without seeing that person. But upon the lapse
of time, siguro semestral break, you haven’t seen that
person and nakita mo, aba buhay ka pa. At the time you said
that you could not go a day without seeing him, were you
lying? No, you really felt that way.
The same way that you proposed and promised that other
person that you would love them forever. At that time, you
really believed that with all your heart. Because this is
emotion-based, it is understandable that the emotions
would fade and you will now have a change of heart.
Atty. Sena tip: Don’t propose within the first 6-months or
accept a proposal within the first 6-months. Traydor ang
puso.
WASSMER VS VELEZ
(DECEMBER 26, 1964)
FACTS: The parties had invitations printed and sent out,
they had the dresses made, they had the preparations all
laid out, even the matrimonial bed bought. However, two
days before the wedding, the groom-to-be called off the
wedding, citing his mother’s disapproval as the reason. Not
only that but he did it by leaving a note. (Leaving a note to
cancel a wedding is like for your generation, breaking up via
text.)
ISSUE: Whether or not the bride-to-be was entitled to
damages.
RULING: Yes, the groom-to-be is liable for damages. This is
to answer for the actual expenses and the humiliation
suffered by the bride.
❖ Ordinarily, a mere breach of promise to marry is not
an actionable wrong. But to formally set a wedding
and go through all the necessary preparations and
publicity, only to walk out of it when the matrimony
is about to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good customs,
for which the erring promisor must be held
answerable in damages in accordance with Article
21 of the New Civil Code.
BAKSH VS CA AND MARILOU GONZALES
(FEBRUARY 19, 1993)
PAGE 18 OF 175
FACTS: An innocent and naïve, provincial lass left her
province to study and met this foreigner. This foreigner
wooed her, convinced her that he would marry her to the
point that he went home to the province with her to meet
her parents. It is very significant for someone to come back
to the province with your loved one, basically that is an
announcement in your province that you would marry the
person. That’s why the girl relented and agreed to have sex
with the foreigner. After he had his way with her, he
dropped her like a hot potato, and he married another
woman.
ISSUE: Is the breach of promise to marry actionable?
RULING: The Supreme Court sustained her cause of action.
The promise of marriage was used to defraud and deceive
her in agreeing to have sex with the foreigner.
❖ The existing rule is that a breach of promise to marry
per se is not an actionable wrong.
❖ Article. 21 of the Civil Code designed to expand the
concept of torts or quasi-delict in this jurisdiction
grants adequate legal remedy for the untold number
of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the
statute books.
❖ Damages pursuant to Article 21 may be awarded not
because of promise to marry but because of fraud
and deceit behind it.
HERMOSISIMA VS CA
(SEPTEMBER 30, 1960)
FACTS: Like the case of Baksh vs CA, a similar plea was
made by the woman. The problem here is the woman was
older than the man. She was not like the innocent provincial
lass. And unlike the other suit, she freely admitted that the
reason she had sexual relations was because she loved the
man and that she wanted to bind herself to him. Therefore,
the promise of marriage had nothing to do with her
agreeing to engage in sexual relations.
ISSUE: Is the breach of promise to marry an actionable
wrong?
RULING: No, the Supreme Court did not sustain her cause
of action. The is no cause of action for damages or breach of
promise to marry.
❖ Where a woman, who was an insurance agent and
former high school teacher, around 36 years of age
and approximately 10 years older than the man,
"overwhelmed by her love" for a man approximately
10 years younger than her, had intimate relations
with him, because she "wanted to bind" him "by
having a fruit of their engagement even before they
had the benefit of clergy," it cannot be said that he is
morally guilty of seduction.

BUÑAG VS CA
(JULY 10, 1992)
FACTS: The promise of marriage was used to appease the
ex-girlfriend after she was kidnapped by the ex-boyfriend
and raped in a motel. The father of the ex-boyfriend was in
connivance with the son. After the woman was brought to
the house of the ex-boyfriend, the father convinced her that
the son would be marrying her. This was so that she would
not sue for rape. As it turned out, the ex-boyfriend had no
intention of doing so and in fact, he abandoned her soon
after.
ISSUE: Are damages warranted?
RULING: Yes, the Supreme Court sustained her cause of
action.
❖ Generally, a breach of promise to marry per se is not
actionable, except where the plaintiff has actually
incurred expenses for the wedding and the necessary
incidents thereof.
❖ However, the award of damages is allowed in cases
specified in or analogous to those provided in Article
2219 of the Civil Code. Correlatively, under Article 21
of said Code, in relation to paragraph 10 of said
Article 2219, any person who wilfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for moral damages.
ARTICLE 22
Article 22. Every person who through an act or
performance by another, or any other means, acquires or
comes into possession of something at the expense of the
latter without just or legal ground, shall return the same
to him.
Q: What is the principle embodied here?
A: The Principle against unjust enrichment.
Q: What are the requisites for a cause of action for
unjust enrichment under Art. 22?
A: The requisites are:
1. The defendant must have been benefitted or
acquires or comes into possession of something
2. The benefit or acquisition was at the expense of the
plaintiff
3. The defendant has no legal ground to be enriched
PAGE 19 OF 175
4. No other action based on contract, quasi-contract,
crime or quasi-delict.
Q: Why is this last requisite the most important?
A: it will tell you under which provision to base your claim.
Q: if you read Art. 22, what would notice about its
scope?
A: It is very broad.
Q: it’s broad enough to include what kind of quasi-
contract?
A: Solutio indebti.
Q: You might ask yourself, if I have a cause of action
where there was payment when payment was not due,
under which provision do I sue for? Do I sue under Art.
22 or under Solutio indebiti?
A: the last requisite will tell you. It is a requirement that
there is no action for quasi-contract. That means if there is
mistake in the payment and this would bring your cause of
action under solutio indebiti, a quasi-contract, then Art. 22
will not be available to you.
Conversely, if there is payment made, where payment is not
due, but there is no element of mistake, then we go for Art.
22. Which is plainly unjust enrichment.
INDEPENDENT CIVIL ACTIONS
ARTICLE 29. “When the accused in a criminal prosecution
is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be instituted.
Such action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require the
plaintiff to file a bond to answer for damages in case the
complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not the
acquittal is due to that ground.”
Q: It is often been said that anyone who is criminally
liable is also civilly liable. What does that mean?
A: When a criminal action is filed, a civil action arising from
the same offense is also implied instituted. These are civil
obligation ex-delicto. Those which are sourced from delicts.
Q: Why did you have to point out the fact that these are
civil actions which are impliedly instituted in criminal
cases? Are there other civil actions which are related to
or may arise from the same acts, which may also be
impliedly instituted in the criminal action?
A: No, only civil actions arising from the criminal actions or
delicts are impliedly instituted. When the civil liability
arises from another source, it will not be affected by the
dismissal of the criminal action.
Q: Prior to the passage of the rules on criminal
procedure, there were questions as to whether the so-
called independent civil actions would still have be
preserved in order for them not be impliedly instituted
with the criminal actions. What are these independent
civil actions?
A: These are civil actions that may be based on the acts
constituting the felony but are to be prosecuted under
different provisions of the law. For instance, Art. 33, 34,
2176.
Under the new rules, it has been made clear that they will
not be impliedly instituted with the criminal action based
on the same acts or omissions. The only thing that would be
impliedly instituted would be the civil actions ex-delicto.
Q: What can be done in order to avoid these implied
institutions?
A: the following can be done:
1. The plaintiff can waive the right to institute the civil
action
2. The plaintiff can reserve the right to institute the
action separately
3. The plaintiff can institute the civil action prior to
the institution of the criminal action
Between the criminal action and the civil action ex-delicto,
it is the criminal action which is given preference. This
means that even if the civil action ex-delicto was filed ahead
of the criminal action, the civil action ex-delicto will have to
be suspended until after the criminal proceeding is
completed.
Similarly, if you make a reservation to file your civil action
ex-delicto separately, then that mean you have to wait it out
until the criminal action is completed.
Q: If this would require postponing your civil action or
you have to wait out for the criminal proceeding to be
completed for you to be able to sue on a criminal action
ex-delicto, then why would anyone want to do away
with the implied institution?
A: The complainant may not have confidence with the
public prosecutor, so he may desire to hire a private
prosecutor in order to have full control over the case.
Public Prosecutors serve the public in general, and they may
not give you the attention that you think you deserve. They
have a lot of clients: the public.
Q: Will there be an instance where we are not allowed
to make a reservation to file separately the civil action?
PAGE 20 OF 175
A: In the case of BP. 22 or the Bouncing Checks Law. Here,
the civil aspect is not allowed to be prosecuted separately
from the criminal suit. Reservation is not allowed.
Q: Let us say that we have a criminal prosecution and
that there is an implied institution of the civil aspect,
what will be the degree of proof that is required to
establish criminal liability and to establish civil
liability?
A: to establish criminal liability proof beyond reasonable
doubt is needed, while mere preponderance of evidence is
needed to establish civil liability.
Q: Sometimes you are not able to meet the standard of
proof beyond reasonable doubt, but the evidence that
you have adduced covers the standard for
preponderance of evidence. What will happen then?
A: The judge will acquit the accused for the criminal offense;
however he will render a judgement for civil liability of the
accused.
Q: So it is possible in case that there is an acquittal by
reason of reasonable doubt for civil liability to still
subsist?
A: Yes.
So it is only when the acquittal is based on the finding that
it was not the accused who committed the crime or that no
crime was committed at all that the acquittal would also
negate civil liability. This is the general rule.
G.R: Acquittal based on reasonable doubt will not
necessarily negate civil liability if the quantum of evidence
required for civil liability is met.
Q: What are the exceptions to this rule? That even
though the acquittal is based on reasonable doubt, civil
liability is none the less negated?
A: that provided in Pilipinas Shell Petroleum Corporation
vs. Duque. Decided in February of 2017.
The Supreme Court held that if a corporate officer who is
sued for BP 22 as the responsible officer of the corporation
is acquitted of BP 22, regardless of the basis. Then his civil
liability will also be extinguished.
The entity that would be civilly liable would be the
corporation, in whose name the check was issued. The
corporate officer is simply an agent of the corporation in
issuing the bounced check, hence the rule. A corporate
officer has a personality that separate and distinct from the
corporation. This should be an exception to Article 29.
Q: What is the exception to the exception?
A: the following are the exceptions:
1. when the corporate officer assumes solidary or
personal liability for that corporate obligation
covered by the bounced check.
 2. when the piercing of the veil of corporate fiction is
warranted due to the attendance of fraud.
Article 31. When the civil action is based on an obligation
not arising from the act or omission complained of as a
felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the
latter.
Q: Art. 31 is usually lumped up with the so-called
independent civil action but Art. 31 does not provide
for another instance of an independent civil action, why
not?
A: Just by reading the first part of Art. 31, it will tell you that
it is a civil action that is based on an obligation not arising
from an act or omission constituting a felony. There is no
need to say that it can proceed independently of the
criminal proceedings because it IS without regard to any
criminal act.
Q: What can be an example of a civil action under Art.
31?
A: Civil actions ex contractu. Obligations arising from
contracts.
For example there is an accident involving a bus and private
vehicle. Of course there would be causes of action arising
from delict and quasi-delict but the passenger who choses
to sue the company which owns the bus would have his
cause of action not based on delict or quasi-delict but based
on the contract of carriage. An obligation ex contractu.
If it is allowed to proceed independently from the criminal
action, it is only because it is separated from the other
causes of actions. It has nothing to do with delict or quasi-
delict.
PREJUDICIAL QUESTIONS
Art. 36. Pre-judicial questions which must be decided
before any criminal prosecution may be instituted or may
proceed, shall be governed by rules of court which the
Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code.
Q: What do you understand by the term prejudicial
question?
A: Prejudicial question is understood in law to be that which
must precede the criminal action, that which requires a
decision before a final judgment is rendered in the principal
action with which said question is closely connected. Not all
previous question is prejudicial, although all prejudicial
question are necessarily previous. (Herbari vs. Concepcion,
40 Phil., 837).
PAGE 21 OF 175
It is an issue which arises from another proceeding that will
determine if the accused in the criminal proceeding is guilty
or innocent.
If you would check your rules on preliminary investigation
you would know that you can also invoke a prejudicial
question during preliminary investigation
Q: That the same issue arises from another proceeding.
But is this the only requirement? If so what are the
other requirements?
A: No, this is not the only requirement. It is further required
that the civil action be filed before the criminal action.
Q: But that was not always the case, previously it did not
matter when the civil action was filed. The only thing
that mattered was that the issues were so related that
it would be determinative of the guilt of the accused.
Why was this rule changed?
A: it was made to address the abuse that was being
perpetuated by the defendants. But bigamy is not the
landscape in which the modification was made.
Q: How was the abuse committed?
A: The abuse was committed by accused who after being
sued in criminal actions would file any related or
corresponding civil action. And then insist that there is a
prejudicial question that would have to be resolved ahead
of the criminal proceeding. Towards having the criminal
proceeding suspended.
Q: What benefit will the accused have by suspending the
criminal action?
A: if the criminal action is suspended for the duration of the
civil proceeding is pending you are looking at 5 years, at
least. In those 5 years a lot of things may happen.
The complainant in the criminal case may have a change of
heart, he may lose interest or resources and may now refuse
to cooperate with the public prosecutor. He may no longer
appear at hearings and subsequently the case may have to
be dismissed for failure to prosecute. If the complainant is
poor or has no resources during this time, he may succumb
to offers of settlement.
To address these abuses, the Supreme Court required
that the civil action must at least precede the institution
of the criminal action. This is to show good faith in the
invocation of prejudicial issue.
TENEBRO V. CA
G.R. No. 150758 | Feb. 18, 2004
This case discusses the concept of prejudicial question in
the context of bigamy.
FACTS: Petitioner Tenebro contracted marriage with
complainant Ancajas on 10 April 1990. They lived together
continuously until in 1991 when Tenebro inforemed
Ancajas of his prior marriage to Villareyes on 10 November
1986. Invoking this previous marriage Tenebro left the
conjugal dwelling and cohabitated with Villareyes.
On Jan 1993, Tenebro contracted another marriage to
Villegas. When Ancajas learned of this third marriage, she
verified with Villareyes whether she was married to
petitioner. And the latter confirmed such marriage. Ancajas
then filed a complaint for bigamy.
The court convicted Tenebro. He now assails the conviction,
he argued that his second marriage, with Ancajas, has been
declared void ab initio due to psychological incapacity.
Hence he cannot be charged for bigamy.
ISSUE: Whether or not the petitioner is liable for bigamy.
RULING: Yes, the petitioner is liable. A declaration of the
nullity of the second marriage on the ground of
psychological incapacity is of absolutely no moment insofar
as the State’s penal laws are concerned.
The subsequent judicial declaration of nullity of marriage
on the ground of psychological incapacity does not retroact
to the date of the celebration of the marriage insofar as the
Philippines’ penal laws are concerned.
As such, an individual who contracts a second or
subsequent marriage during the subsistence of a valid
marriage is criminally liable for bigamy, notwithstanding
the subsequent declaration that the second marriage is void
ab initio on the ground of psychological incapacity.
Prior to the Family Code there was confusion as to how the
void status of a marriage would affect the criminal liability
for bigamy. Although the provisions of the Revised Penal
Code when it comes to bigamy is clear.
Art. 349. Bigamy. — The penalty of prision mayor shall
be imposed upon any person who shall contract a second
or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a
judgment rendered in the proper proceedings.
A person would be liable for the crime if he contracts a
subsequent marriage before the prior marriage has been
legally dissolved or declaration of presumptive death of the
absent spouse.
However, in the Civil Law at that time, there were
authorities who adhered to the belief that if a marriage was
void from the beginning then it is no marriage at all and
nothing needs to be done to have it declared as null and
void.
Authorities at that time were extending the concept of null
and void contracts to marriages. And it is not without basis
because it is reasonable. However, such interpretation
would run counter to Art. 349 of the Revised Penal Code and
PAGE 22 OF 175
its definition of bigamy. Under this provision even if the
marriage was null and void, there is still a need to declare
that marriage as a nullity.
The second group of civilists, they believed that the parties
should not be allowed to pass judgment on the nullity of
their own marriage. It would be akin to taking the law into
their own hands. The parties would have to go to court and
the court has to pass judgment in order for them to get
married again.
The issue was settled by Art. 40 of the Family Code.
Q: What does Art. 40 of the Family Code say?
A:
Art. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage
void.
If you are going to invoke the nullity of your prior marriage
and your purpose for doing so is because you want to
remarry then you cannot invoke it without a judicial decree
of nullity.
BUT make no mistake about it class, if you are invoking the
nullity of your prior marriage for reasons other than
remarriage, for example to assail successional rights, you do
not need a decree of nullity. You can establish the nullity of
the marriage in the same estate proceedings. This is
because you are not invoking it for purposes of remarriage.
It is now clear that the nullity of the first marriage
cannot constitute a prejudicial question in a suit for
bigamy. Even if your prior marriage is null and void yet you
got married without obtaining a decree of nullity of
marriage, you would still fall under the definition of bigamy
under the Revised Penal Code under Art. 349 in relation to
Art. 40 of the Family Code.
Q: What about the nullity of the 2nd marriage? Would
that constitute a prejudicial question?
A: This is where Tenebro changed the game. For the longest
time the rule has always been that one of the elements of
bigamy is that the second marriage should be valid in all
aspects except for its bigamous character. So that if you can
show that the 2nd marriage is void for reasons other than it
being bigamous then you can ask for an acquittal.
This was changed by Tenebro. Tenebro, while the case for
bigamy on going he was able to acquire a declaration of
nullity of marriage on the ground of psychological
incapacity as to the 2nd marriage. His motion to suspend on
the ground of a prejudicial question was transformed into a
motion to dismiss.
Q: But the issue remained the same, what would be the
impact of the nullity of the 2nd marriage on the ground
of psychological incapacity to the charge of bigamy?
A: The Supreme Court stated that it does not matter that the
2nd marriage was subsequently nullified. Because the crime
of bigamy has been committed the moment the 2nd marriage
was contracted.
Q: There was an argument made to the effect, what
about the idea that we would give retroactive effect to
the decree of nullity? Such decree retroacts to the time
when the marriage was contracted.
A: This is where the cause for the nullity becomes
important. The Supreme Court stated that marriages which
are null and void under Art. 36 of the Family Code are not
without legal effect because they produce legitimate
children. So therefore, you cannot say that there is
absolutely no effect from the start.
Q: Would this now hold true for all null and void
marriages, regardless of the cause?
A: Majority of null and void marriages have no legal effect.
It is only by way of exception do we have the effect of
legitimate children born under 36 and 53 or conjugal
partnership or community property regimes arising out of
void marriages under Art. 40 in relation to Art. 50. These
are the exceptions.
All other void marriages have no legal effect, in which case
the argument before in favor of recognizing the existence of
a void marriage under Art. 36 (legitimate children) would
not be applicable to other void marriages.
To answer this question, we still have no jurisprudence. But
if you would look at the ruling of the Supreme Court in the
Tenebro Case, it is often repeated how it is unfair for the
accused to benefit from his evil designs to ensure the nullity
of the 2nd marriage to avoid prosecution for bigamy.
EXAMPLE:
If were a man who is somewhat learned in the law and I am
romantic in nature, and I would want to contract a 2 nd
subsequent marriage, the first thing I would do to avoid a
prosecution for bigamy would be to make sure that the 2 nd
marriage would be void for other reasons (license,
authority of the solemnizing officer, etc). And then I would
invoke that by way of defense.
If I were to be prosecuted prior to the case of Tenebro then
I would be entitled to an acquittal. Which would be unfair.
We would be allowing the accused to benefit from his own
designs, from his manipulation of the law.
Opinion ni ma’am: In the future, Tenebro case would be
expanded in order to encompass void marriages who’s
nullity are based on other grounds than just Art. 36. But we
have to wait for that.
PAGE 23 OF 175
MERCED VS. DIEZ
G.R. No. L-15315 | 26 August, 1960
FACTS: The husband was also accused of bigamy but the
husband sued for the annulment of the 2 nd marriage on the
ground that his consent was vitiated. He wanted to be
acquitted of the criminal case.
ISSUE: Whether or not he should be acquitted of the charge
of bigamy
RULING: The Supreme Court sustained his position. If his
consent was truly vitiated, then he could not have
committed the crime of bigamy with criminal intent. There
would be no voluntariness to his actions. For crimes under
the Revised Penal Code it is required that there always be
what criminal intent.
CAPILI V. PEOPLE
G.R. No. 183805 | Jul. 03, 2013
The Supreme Court asked the question “what would stop
people from contracting subsequent marriages and making
sure that these subsequent marriages suffer from certain
defects so that they can get away with the crim of bigamy?”
Would there be a situation where the validity of the second
marriage may be a prejudicial question? Yes. If you are
dealing with someone who was only forced into the second
marriage. Someone who was threatened or intimidated
could use the second marriage’s defect as a prejudicial
question for lack of criminal intent. That ought to be an
exception
PIMENTEL V. PIMENTEL
G.R. No. 172060 | Sept. 12, 2010
FACTS: In this case, the husband committed frustrated
parricide on his wife. He sought to have the case suspended
or dismissed on account of the fact that he was seeking the
dissolution of their marriage. The Supreme Court rejected
the motion saying that it does not matter that the marriage
is now being sought to be nullified. The fact remains that the
accused was married when he attempted to kill the
complainant.
Thus, whether or not that person was the accused’s wife,
legally speaking or validly speaking, the thing is the object
of the crime that the accused wanted to commit was the
person he was supposed to spend the rest of your life with,
and that justifies the higher penalty for parricide. The
accused then invoked the ruling in Tenebro that said the
nullity retroacts to the time the judgement was awarded
RULING: The Supreme Court said that that may be true but
the accused filed for nullity under article 36 (fc), and nullity
under article 36 is not like the other causes for nullity of
marriages under the family code because article 36 unlike
most causes for nullity has a legal effect, it can produce
legitimate children, and the fact that it can produce
legitimate children means that it was never legally non-
existent, it existed.

PAGE 24 OF 175

FAMILY CODE
Q: What is Article 1 of the Family Code?
A:
Article 1. Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits
provided by this Code.
Q: Article 1 may be your lifesaver. When you are faced
with a question that you do not know the answer and
you cannot recall any applicable provision, what can
you do?
A: Look to Article 1 as a last resort and you may be able to
find a basis for your answer.
Q: If a friend would to approach you and she tells you
that she and her husband have separated and would
want to be allowed to live their lives have sexual
relations with other people, have relationships with
other people and they want you to draft the affidavit
and notarize the same, what will you tell them?
A: I would tell them that the agreement will be null and void.
Q: Why would the agreement be null and void?
A; Because it goes against public policy. Because of public
policy under Art. 1 of the Family Code states that you cannot
stipulate on the nature consequences and incidents of
marriage only exception being property relations.
Q: Supposing that you were asked by a same sex couple
who were able to validly marry abroad. They now want
to come home to the Philippines and they want their
marriage to be recognized as valid in the Philippines.
And of course you tell them the that PH does not
recognize same sex marriage, they would ask you
where is that stated?
A: I would tell them that as stated in Art. 1 of the Family
Code that marriage is a special contract of permanent union
between a man and a woman.
Q: The problem lies now that one of the contracting
parties also studied the Family Code and they would
answer you back saying that Art. 26 is the provision
which should apply. Because they celebrated their
marriage abroad. And under Par.1 of Art. 26, it is
provided that all marriages solemnized outside the
Philippines, in accordance with the laws in force in the
PAGE 25 OF 175
country where they were solemnized, and valid there as
such, shall also be valid in this country, except those
prohibited under Articles 35, 37 and 38. And that same
sex marriages are not part of the prohibited marriages
What would you reply?
A: The way to answer this would be to invoke Art. 1 in
relation to Art. 17 last paragraph of the Civil Code.
Yes, it is not included in those marriages which are
considered void even though validly celebrated abroad. But
the policy enshrined in Art. 1 limiting marriages to a man
and a woman. And by virtue of Art. 17 of the NCC that public
policy cannot be rendered null by any act that may be valid
abroad.
Q: What are the two kinds of requisites of marriage?
A: These are the essential requisites under Art. 2 and the
formal requisites under Art. 3 (MEMORIZE)
Art. 2. No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties who must be
a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided
for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the presence
of not less than two witnesses of legal age.
Q: What would be the components of legal capacity of
the contracting parties?
A: These include the following:
1. The age of the contracting parties;
2. Lack of legal impediment to marry; and
3. They must be man and a woman
Q: What is the marrying age under the Family Code?
A: They must be at least 18 years of age.
Q: What about under the Civil Code, what is the
marrying age?
A: For females, they must at least be 14 years of age. And for
males, they must at least be 16 years of age.
Q: Under the Civil Code, what was the age of majority?
A: 21 years of age. would allow post-operative male or female transexual
would be included in the category female because back in
Q: What is now the age of majority? the 1900s, this was not even thought to be possible. Sex
A: 18 years of age. change were beyond the imagination of the law makers.
They could not have intended to change the birthcertificate
Q: What is your basis for lowering the age of majority? on the account of gender reassignment procedures.

A: RA 6809, which in turn was passed after the Family Code. Q: What is the exception?
Which is why there are certain provisions in the Family
Code which do not make sense. A: The case of Cagandahan. Those who were born intersex.

Example: A party who has been emancipated by marriage REPUBLIC V. CAGANDAHAN

or emancipation by agreement. These provisions no longer
holds true. Under RA 6809, we only have one way to be
emancipated: and that is reaching the age of majority, which
is 18 years of age.
Q: Why was there such a drastic shift between 14 and
16 to 18?
A: This is because for the longest time under the Civil Code,
the purpose of marriage was procreation. That was
consistent with the times before, the theory was that you
would not have sex, you would not have children, unless
you are married. And you only get married to have children.
By the age of 14 a girl is already menstruating.
Thankfully, that has changed. Marriage in the Philippines is
now permanent and yet you are expecting a child who is 14
years old and 16 years old to make a decision for a lifetime.
Q: How is gender determined under our laws?
A: It is determined at the time of birth by the birth
attendant. This is done by a visual examination by the
genitals of the baby.
Q: is the determination made at birth, if correctly made,
is it irrefutable?
A: Yes, it cannot be changed.
Q: Why not?
A: Sex reassignment procedures would not revisit the
assignment at birth. This was the ruling in the case of
Silverio. This is the general rule.
G.R. No. 166676 September 12, 2008
Cagandahan was an intersex person. An intersex person is
one who has genitals which are vague. Or born with 2 sets
of genitals, male and female. It is hard really to determine
his gender at the time of birth. They exhibit both
characteristics but only one is more dominant than the
other. The dominance, however, changes as the person
grows. As Jennifer was growing up, her male aspect
prevailed over her male aspect. She now identified as a man
and her body was not equipped with a genitals of a man. She
also let nature take its course and did not employ any
artificial means to have his sex changed.
In case of intersex persons, Supreme Court said it is up to
the person to determine what his gender is. The court
cannot dictate on him. The petition to change the gender
and name was allowed. From Jennifer, he became Jeff
Cagandahan.

SILVERIO V. REPUBLIC
G.R. No. 174689 | Oct. 22, 2007

The Supreme Court ruled sex is determined at birth

usually done by the birth attendant by examining the
genitals and such determination in the absence of mistake
and in the absence of any law legally recognizing sex
reassignment, that determination is immutable.
When a term is not defined in the law, we interpret its
ordinary meaning. sex is not determined in the civil register
law, and since the civil register law was enacted way back
in the 1900s, we cannot subscribe to it a meaning that

PAGE 26 OF 175
 OCTOBER 1, 2020
VOID MARRIAGES
Notably class, there is one marriage that has been taken out
of void marriages by reason of public policy and this is the
marriage between stepbrothers and stepsisters. Under the
Family Code, they can now marry.
Q: Would this new provision in the Family Code make a
marriage between a stepbrother and a stepsister
celebrated under the Civil Code valid?
A: No. Marriages are governed by the law in effect when it
was celebrated. Hence, even if this is valid under the Family
Code, this will not benefit the marriage between a
stepbrother and stepsister celebrated under the Civil Code.
The validity of a marriage is determined by the law at the
time of its celebration.
CONSENT
Q: Whose consent is referred to here?
A: The consent of the contracting parties and in appropriate
cases, the consent of the parents. Parental consent.
Q: How do the parents give their parental consent? Do
they also give it before the solemnizing officer?
A; No. It is manifested in writing or in an affidavit executed
between two witnesses and attached to the application for
marriage license. To put simply, it goes to the procurement
of the marriage license. Theoretically, if there is no parental
consent is given, then no marriage license must be issued by
the Civil Registrar office. Should the marriage license be
issued then that license would still be valid. The issue is only
that it has been irregularly made. An irregularity in the
formal requisite will not affect the validity of the marriage.
However, the absence of parental consent will render the
marriage voidable. That is, valid until annulled.
Q: When we speak of parental consent, do we have
specific people who are authorized to give parental
consent?
A: Yes. Under Art. 14 these are the father, mother, the
surviving parent or guardian, or the person having legal
charge of the party. As you can see, we have this superfluous
phrase at the end. Why? On account of RA 6809, anyone who
is capacitated to marry is necessarily of legal age and will
not be under anyone’s care.
Note
You must also note that Art. 14 states that the authority
will be exercised in the order given. Hence, in case of
PAGE 27 OF 175
disagreement, the father’s decision to give or not to give
consent will prevail.
Q: Is parental consent the same as parental advice?
A: No. In parental advice it applies to contracting parties
who are between 21-25 years of age. Explain how these two
age groups will not overlap. Parental consent will be
required of a party who is 18-21 years old. 18 and above but
below 21. Because from 21-25 he would require parental
advice.
Q: How would parental advice be different from
parental consent?
A: From the context, the parental advice is necessary
because at that time, the age of majority was 21 so parental
consent was needed in order to make the consent perfect.
On the other hand, parental advice, from the reading of the
law, it can be gleaned that the law enforces various
safeguards.
Hence, there would be no better persons who will advice
the parties of the nature consequences of marriage other
than the parents themselves. For parental consent, it refers
to the permission given by the parents of the concerned
parties.
For parental advice, more of guidance because in ages 21-
25, the parties are already presumed to be equipped and
have enough knowledge to make a decision but still
relatively young so he/she still needs the guidance of the
parents.
Of course, the consequences of parental consent and
parental advice are relevant. If parental consent is withheld,
the license should not be issued at all. The parties should
not be allowed to marry. Should they still marry, the
marriage is voidable. But if it is parental advice which is
withheld, then the issuance of the license is simply deferred
for a period of 3 months. The law considers that waiting
period enough time for the parties to think more thoroughly
about the decision that they are making.
FORMAL REQUISITES
Q: What are the formal requisites?
A: Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for
in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that they
take each other as husband and wife in the presence of not
less than two witnesses of legal age.
Q: Who is authorized to solemnize marriages under the
law?
A: Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within
the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect and registered with the
civil registrar general, acting within the limits of
the written authority granted by his church or
religious sect and provided that at least one of the
contracting parties belongs to the solemnizing
officer's church or religious sect;
(3) Any ship captain or airplane chief only in the
case mentioned in Article 31;
(4) Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the
cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the
case provided in Article 10.
As authorized by the Local Government Code, the Mayor
may also solemnize a marriage. On purpose, the Family
Code removed this authority from the mayor because it was
being used as a tool for politicking. Most often than not, the
power is being used to increase popularity. Hence, mayors
may abuse this opportunity and forget to check the
qualifications of the parties.
From August 3, 1988 to December 31, 1991, before the
Local Government Code took effect, the Mayors don’t have
any authority to solemnize marriages. It is unlikely but in
case you will be faced with a question pertaining to the
authority of the mayors to solemnize marriages, pay
attention to the date. There is a period of time when they
did not have such authority.
Since the lack of authority is a matter of law, then the
parties cannot even claim good faith. Ignorance of the law
excuses no one. But now, mayors already have authority to
solemnize marriages.
By looking at the list, you will see that most of these people
may solemnize marriages which have both ordinary
marriages and articulo mortis marriages. The only
exceptions are the military commander, the airplane chief,
and the ship captain. They can only solemnize marriages in
articulo mortis.
Q: When do we consider a marriage in articulo mortis?
A: This is a marriage celebrated at the point of death. It is
not enough that there would be danger of death. It must be
at the point when either of the contracting parties is in
mortal peril. It is not enough that there is a chance of death.
PAGE 28 OF 175
The person must be in the process of dying or at the point
that he is dying. It is not about the possibility of dying. Death
must be probable.
Example: In the movie Titanic, there was one scene when
Jack and Rose were in the danger of death but they are not
dying yet. But when Rose became selfish and left Jack, at
that point Rose was still in danger of death but Jack was
already dying. He was in the process of dying. So that’s the
difference.
What the law requires is that it should be in articulo mortis
for us to give authority to these specific solemnizing
officers. All others, it does not matter what kind of marriage
they would be celebrating. But be mindful that even if they
have the authority to solemnize all kinds of marriages, there
are other factors to be considered.
For instance, territory. For consul and vice consul, they only
have the authority to solemnize marriage between Filipino
citizens abroad and even then only within the premises of
the consular office. Principle of extraterritoriality.
Also, more importantly when it comes to incumbent
member of the judiciary – they can only celebrate marriages
within this territorial jurisdiction. It depends on the court
involved.
If you’re dealing with the Suprem Court and any of the
appellate courts, as held in Navaro v. Dagohoy, their
jurisdiction would be national. But if we are dealing with
the trial court judges, municipal trial court judges, and
metropolitan trial court judges, they would be limited to
their respective territories. It makes sense because they
are only judges within their territory.
Q: If an RTC judge who is stationed in Quezon city would
solemnize marriage in Paranaque, what would be the
status of that marriage?
A: Void because it was not within the RTC judge’s territorial
jurisdiction. According to the Family Code, a judge may only
solemnize a marriage if it is within his territorial
jurisdiction. It is void for lack of authority of the solemnizing
officer.
In Navarro, the Supreme Court held that a marriage
celebrated by a judge outside of his territorial jurisdiction,
would just be suffering from an irregularity of a formal
requisite. Now this is not a binding precedent. For one, the
issue of validity of marriage was not even raised. It was an
administrative complaint. Secondly, it is wrong because we
all know that the court would be limited in its power within
its territory.
Q: In case the parties would request to change the
venue of their marriage, how would this affect the
discretion of the party in choosing a venue?
A: The parties may request the judge to solemnize their
marriage at a place other than the court where the judge is
sitting, provided that the same is still within the territorial
jurisdiction of the trial court judge. The substitute venue
should still be within the territorial jurisdiction of the
judge who will be solemnizing judge.
However, as soon to be practicing lawyers, to give you a
practical input, what parties usually do is that they will hold
the wedding wherever they want and the judge may not be
authorized to solemnize marriage in the place where the
parties chose to hold the wedding, but what they do is that
in the marriage certificate, the place of marriage would still
show as if it was held within the territorial jurisdiction of
the judge.
For example, the judge’s jurisdiction is only in Paranaque
and the marriage was celebrated in Makati. In the marriage
certificate, it will show that the marriage was celebrated in
Paranaque. The same way when a notary public would
indicate that the parties appeared before him in Makati but
in fact it was in Paranaque.
MARRIAGE LICENSE
Q: What is the purpose of a marriage license?
A: A marriage license is required in order to notify the
public that two persons are about to be united in matrimony
and that anyone who is aware or has knowledge of any
impediment to the union of the two shall make it known to
the local civil registrar.
The requirement and issuance of marriage license is the
State’s demonstration of its involvement and participation
in every marriage. The State is getting permission to the
parties to get married.
Q: Why does the State have a say to allow the parties to
marry?
A: Article 1 of the Family Code provides that marriage is a
permanent union. It is a special contract and it affects public
interest.
Q: Is marriage contract the same as marriage license?
No, they are not the same.
MARRIAGE LICENS MARRIAGE
CERTIFICATE
Authorization by the state Best evidence of the
to celebrate marriage. existence of the marriage.
Formal requisite of Neither essential nor
marriage. formal requisite of
marriage.
Q: Which is more crucial?
PAGE 29 OF 175
A: Marriage license is crucial because it is a formal requisite
of marriage. Marriage is neither an essential nor formal
requisite.
GR: As a general rule, a marriage license is required.
XPNs: The following are the exceptions:
1. Marriages among Muslims or members of ethnic cultural
communities – Provided they are solemnized in accordance
with their customs, rites or practices;
2. Marriages in articulo mortis:
a. In case either or both of the contracting parties
are at the point of death;
b. Solemnized by a ship captain or airplane pilot;
c. Within zones of military operation
3. Marriages in remote places
4. Marriages between parties cohabiting for at least 5 years
and without legal impediment to marry each other
5. Marriages solemnized outside the Philippines where no
marriage license is required by the country where it was
solemnized.
MARRIAGES IN REMOTE PLACES
Before the Family Code, this is only recognized as an
exception if it is the woman who is residing in a remote
place. Before, there was a distance which was specified but
this has already been removed under the Family Code. Here,
the exception would apply if either party is residing in a
remote place where there is no means of transportation.
Q: Do we take that literally, that there must be no means
of transportation?
A: No. What the law means is that it must be highly difficult
for the parties to travel just to apply for a marriage license.
It does not require total absence of a means of
transportation.
We have pedicabs, bicycles, carabaos, horses, etc. The focus
should be the difficulty of the parties to obtain a marriage
license. The purpose here is to encourage the marriage
rather than deterring it because of the difficulty of travelling
to the civil registrar’s office.
Q: Does it follow that if a marriage is exempted from a
marriage license, that the parties would no longer be
required to comply with the other essential requisites
of marriage?
A: No. It does not follow that they are exempted from the
other essential requisites. The law provides that the
solemnizing officer must ascertain that the parties about to
get married are of legal age and that there is no legal
impediment for them to marry.
Remember that this exemption only applies to the license
requirement. The parties must still be compliant with the
other requirements of the law to get married. In lieu of
applying for the marriage license, the solemnizing officer
will take it upon himself to ascertain the qualifications of
the parties. Otherwise, the marriage would be null and void.
MARRIAGES BETWEEN PARTIES COHABITING FOR
AT LEAST 5 YEARS AND WITHOUT LEGAL
IMPEDIMENT TO MARRY EACH OTHER
Q: Do you have an idea why this is included as one of the
exceptions?
A: The law encourages those who live in common law
relationship to marry each other and experience the
benefits of marriage.
Q: How does exempting them from the marriage license
requirement considered an encouragement?
A: Those who live in common law relationship have been
holding out themselves as husband and wife. Applying for a
marriage license requires publication of such fact. Hence,
the public will know that they are not legally married and
from the point of view of those living in common law
relationship, it might embarrass them resulting to
hesitation.
Also, when they apply for a license, they also need to appear
before a local civil registrar, attend seminars, marriage
counselling, etc.
Imagine your grandfather and grandmother. They are the
epitome of morality but we sometimes we forget that at one
point in their lives, they were also young, reckless and free.
They used to be like you too. They might have made a
decision back then to live together without the benefit of
marriage. Then life happened, they bore children, then they
had grandchildren. They might feel embarrassed to disclose
this to the entire family. So imagine if they can do it
discreetly, just execute an affidavit and go to a judge or
mayor discreetly and without the publicity.
But the provision is very strict also. They must be living
together as husband and wife at least 5 years before the
marriage.
The 5 year period must be characterized by:
a. Exclusivity – the partners must live together exclusively,
with no other partners, during the whole 5-year period.
b. Continuity– such cohabitation was unbroken. Also, there
must be no legal impediment to marry each other during the
period of cohabitation.
There used to be a debate as to when the 5-year period
should be counted until the case of Ninal v. Bayadog. In
PAGE 30 OF 175
that case, the husband caused the death of the wife and 18
months after, he remarried. He married his mistress. They
simply executed an affidavit of cohabitation stating that
they have been cohabiting so that they will be exempt from
the marriage license requirement. In the affidavit, they
stated that they have been cohabiting with each other 5
years immediately before the marriage. How will that
happen? The wife just died 3 months ago. Worse, the
husband killed the wife. The husband also died soon after.
The children from the first marriage questioned the validity
of the second marriage in the settlement proceedings with
the end in view of excluding the mistress from succeeding.
They attacked the lack of marriage license. The mistress
insisted that at the time they got married, they have no legal
impediment to marry each other. The Supreme Court ruled
in favor of the children and the Supreme Court settled once
and for all that the entire 5-year period should be counted
from the date of celebration of marriage. It should be the
years immediately before the day of the marriage.
The problem with this provision is that it is prone to abuse.
It has been abused by people who don’t want to go thru the
process of applying for a marriage license. So instead of
going thru the process, they would just execute an affidavit
of cohabitation and claim that they have been together as
husband and wife for the period required even though that
is far from the truth. Worse, is when they do so apparently
with the deliberate intent to make way for a ground in
questioning the validity of the marriage later on. This
actually happened in one case.
In Republic v. Bayot, the husband said that it is not true
that they have been living together for 5 years. According to
him, the truth is that he met her only for a month before
they decided to get married. Now he wants to get out of the
marriage and his ticket is by assailing the marriage and
attacking the affidavit which he freely executed and
benefited from. The Solicitor General objected. But the
Supreme Court said that it cannot deny the petition to
nullify the marriage because he is not deserving of the relief.
Remember that the affidavit of corporation is the equivalent
of a marriage license and the fact that they committed
falsehoods in that affidavit, it means that they essentially
had a fake marriage license. The consequence of a fake
marriage license is that the marriage is rendered null and
void regardless of the good faith or bad faith of the parties.
Q: Going back to the case of Ninal v. Bayadog, what could
have the parties done in order to save the validity of the
second marriage?
A: They could have waited for 5 years before they
celebrated their subsequent marriage for them to make the
subsequent marriage valid.
Q: Any other practical way?
A: They could have simply applied for a marriage license.
Had they done so, the marriage would have been valid and
the children from the first marriage will not have a ground
to exclude the mistress from the estate of the husband. In
the case of Ninal, they wanted to take a shortcut.
MARRIAGE CEREMONY
Q: Are there any magic words or certain rites that must
be observed?
A: There is none. No particular form of words that is
required. As long as it can be inferred from the acts or from
the words employed by the party that they take each other
as husband and wife, then that would be sufficient. Doing
thumbs up is enough. What is important here is that they
can communicate their consent to the marriage.
Q: What if there is no marriage ceremony at all and
there was only a signing of a marriage certificate?
A: If what took place is merely a signing of a marriage
certificate and there was no solemnizing officer, then the
marriage is null and void. No valid marriage to speak of.
Q: Will there be a need to have this marriage declared
null and void?
A: No. There is no marriage. In the case of Morigo v. People,
since the parties merely signed the marriage certificate
without the presence of a solemnizing officer, the Supreme
Court held that there is really no marriage to speak of. Since
there is no marriage, there is no need for them to apply Art.
40 of the Family Code. This is a case where the marriage is
not just void but there is in fact no marriage at all. It is
inexistent. No marriage took place. Therefore, the husband
in that case can remarry without the need of applying Art.
40 of the Family Code:
Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void.
He cannot be charged of Bigamy.
Q: How fatal is it if the marriage certificate is not signed
by the parties?
A: It is not fatal since a marriage certificate is neither an
essential nor a formal requisite of marriage. It is merely the
best documentary proof of marriage. Aside from the
marriage certificate, marriage can still be proved by
testimony of a witness to the matrimony, the open
cohabitation of the parties as husband and wife or the
baptismal or birth certificate of their children, or other
documents or jurisprudence which mentions the parties as
being married.
Now, people who are getting married gets a hashtag. It is
published in social media. Every moment is broadcast. If we
are just talking about proof, we will never run out of proof.
Official photographers even have a hard time especially
when the bride starts walking down the aisle. Everyone is
in the way and taking pictures of the bride already. There is
PAGE 31 OF 175
a lot of proof even without the marriage certificate.
Nevertheless, the marriage certificate is still the best
evidence because it is a public document. Once you get a
certified copy of the same, then no testimony would be
required. No need to authenticate and establish where,
from whom and how the evidence was obtained.
Notes
The absence of either formal or essential requisite will
render the marriage void.
If there is a defect in the essential requisite, such as when
there is vitiation of consent, then the marriage is
voidable.
If there is an irregularity in the formal requisite, the
marriage is still valid but the but the party responsible
for such irregularity shall be civilly, criminally or
administratively liable.
Illustration of the above:
If you got married using a fake marriage license (procured
from Recto) that marriage is null and void for absence of a
formal requisite – obtaining a marriage license. But if the
parties were able to procure a marriage license from the
local civil registrar’s office express (procured the license on
the same day) the fact that it was still issued by the local
civil registrar, it means that the marriage is valid. Definitely
there is an irregularity. However, it will not affect the
validity of the marriage. It will still be valid.
ART. 26, PAR. 1 AND 2 OF THE FAMILY CODE
Paragraph 2 was only added after the Family Code has
already been enacted. It was only lobbied. The fear then was
that it will be used as a backdoor for divorce to get inside
the Philippines. We take pride in the fact that Philippines is
the only country which does not have a law on divorce. Even
Spain which taught us Christianity, they have divorce. This
is to be expected because that has been our training. Still,
paragraph made its way into the Family Code.
We cannot ignore paragraph 1 as well. It establishes our
conflicts law on marriages celebrated abroad. What is the
rule when it comes to marriages celebrated abroad? Art. 26,
paragraph 1 of the Family Code provides:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35
(1), (4), (5) and (6), 36, 37 and 38.
As you can see, as long as the marriage is valid in the
country where it was celebrated, we recognize that
marriage here in the Philippines. However, the law provides
for exceptions. These marriages are considered void in the
Philippines. Hence, even if the marriage celebrated abroad
is valid but it falls under the exceptions enumerated, the
marriage is void. Even if the exceptions are not one of the
grounds to nullify a marriage in the place where the
marriage is celebrated, the parties may still avail of these
grounds to nullify the marriage.
Q: For example, you got married in California. In
California, there is no concept of psychological
incapacity. But you are already observing that your
husband acts differently – your husband has
psychological incapacity. So what are you going to do?
A: You go home to the Philippines and file a petition to
nullify the marriage on the ground of psychological
incapacity. Your husband might argue that such is not
allowed because the marriage was validly celebrated in
California and psychological incapacity is not one of the
grounds available in California. Your saving grace is Art. 26,
par. 1 of the Family Code. It may be true that the marriage
was validly celebrated in California, but it falls under the
exceptions under Art. 26, par. 1 of the Family Code. Art. 15
of the Civil Code will apply:
Article 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living
abroad.
Marriage pertains to your status, condition and legal
capacity. Definitely, you can invoke psychological
incapacity as a ground to nullify the marriage, even though
such was validly celebrated in California and there is no
such ground in California.
Another example: let’s say that in California the marrying
age is 16 years old but here in the Philippines the marrying
age is 18. It is valid in California. But for you, what will
govern is the Family Code. Not just because of the
Nationality Principle, but by the express provision of Art.
26, par. 1 of the Family Code.
ART. 26, PAR. 2 OF
THE FAMILY CODE
The precursor of this provision is the case of Van Dorn v.
Romillo and Ibay Pilapil v. Somera. Basically, the ruling was
along the same line. Judging from these 2 cases, you can see
readily that the intention of the application or scope of Art.
26, par. 2 of the Family Code was for mixed marriages.
Mixed from the beginning. The reason is that this is where
the injustice lies – the foreign national is allowed to move
on with this life and leave the Filipino spouse in limbo.
By virtue of the nationality principle, the Filipino spouse
would still be considered married to the foreign national. In
fact, that was one of the arguments used by one of the
members of the Family Code Committee, to include par. 2.
This should only apply to mixed marriages at the beginning.
PAGE 32 OF 175
The fear was that this provision would be used by Filipinos
married to other Filipinos, who would then embrace foreign
citizenship so that they would be able to come within the
scope of the Art. 26, par. 2 of the Family Code. That was the
assurance before – that it will only apply to mixed
marriages from the beginning. It will not apply to parties
who changed their citizenship midway.
Later on, in the case of Republic v. Orbecido, the Supreme
Court declared for the first time that what matters here is
not the citizenship at the time the marriage was celebrated,
but the citizenship at the time that the divorce decree was
obtained. There is now a deviation from the intention to
confine this to mixed marriages from the beginning.
The rationale of the Supreme Court is that once a Filipino
change his citizenship, the Philippines loses control over
that person. If a Filipino embraces US citizenship and he
applies for divorce, the Philippines cannot stop him.
On the other hand, if you will still insist that you will not
recognize the divorce decree because it was not a mixed
marriage from the beginning, who will you be
punishing? Still, the Filipino spouse. You will still treat that
Filipino spouse as married to the former-Filipino national
which is unfair in two levels: First, because the Filipino
spouse is still in limbo, while the former-Filipino spouse has
moved on. Second, you are punishing someone who is loyal
to the Philippines. We can now appreciate why the Supreme
Court made that ruling.
Later on, in the case of Republic v. Manalo, everything
really changed. We not only look at the changing of
nationality of the parties, but we altogether set aside the
clear requirement of the provision, that is: a divorce must
be validly obtained abroad by the alien spouse capacitating
him or her to remarry. This is crystal clear. But in the case
of Republic v. Manalo, the Supreme Court recognized the
divorce decree obtained by the Filipino national. According
to the Supreme Court, the provision merely provides that
the divorce decree must be obtained by the foreign spouse.
It does not say that the foreign spouse should be the one
filing the petition.
Since this is the Supreme Court which said so, then follow
this rationalization. We are bound with whatever the
Supreme Court says. But as students of the law, even if you
read the law, that is really not what the law says.
There is a deeper reason why that should not be the
intention: Art. 15 of the Civil Code. It does not allow us to
get a divorce decree anywhere in the world. That is very
clear. Republic v. Manalo is good for the Filipino in a mixed
marriage. But it will also have an impact on the nationality
principle under Art. 15 of the Civil Code.
If a Filipino, married to a foreign national, is allowed to
get a divorce decree, then what is stopping us from
extending the same privilege to a Filipino citizen who is
married to another Filipino citizen? What is now the
difference, right? But of course, we cannot apply that to a
Filipino married to another Filipino because they do not fall
under Art. 26 of the Family Code and most importantly since
Art. 15 of the Civil Code is still in play. Maybe there will
come a time when we will have a clarification regarding this
ruling.
Whenever a case is decided other than what the law
requires, it makes bad jurisprudence. Kapag pumapasok
talaga ang puso at damdamin, medyo nababago. As lawyers,
you will need constancy in the rulings of the Supreme Court
because that is the only way you can predict how the courts
will be acting on your cases. Constancy is also vital in
advising your clients regarding the case, right? It is hard to
predict, especially in labor cases.
Lawyers will be at a loss as to what advice to give to his
client. Alangan naman, i-enumerate mo sa client mo lahat ng
jurisprudence: “Alam mo kasi, client, noong 2018 ganito
yung ruling eh, tapos nung 2019 ganito.” Your client will
surely walk out, saying: “Ang labo mo naman kausap,
Attorney.”
Q: Now, you have to remember also that the national
law of the foreign spouse allowing him to remarry must
be proven. The question that now arises is, when is this
required to be done?
If you can remember, if it is a foreigner who is going to
get married here in the Philippines, if he was previously
divorced and he asks a Filipino counsel – “Do I need to
have my divorce decree recognized first so that I can
apply for a marriage license here? Or would it be
sufficient to get a certificate of capacity to marry?”
How will you answer that query?
A: It depends if his first marriage has nothing to do with the
Philippines i.e. he is not married to a Filipino or he did not
get married here in the Philippines. In such case, a capacity
to marry from the embassy is sufficient. We don’t have
anything to do with his previous marriage. It would be
different if he is a returning “customer”. For some reason,
they would marry a Filipino, get divorced, and then come
back to the Philippines looking for another Filipina and he
will get married again.
Now, if that is the case, then they would have the first
marriage recorded here in the Philippines. If he will apply
for a license (this is not part of the law, but the civil registrar
will require this), he will have to obtain a Certificate of No
Marriage or CENOMAR.
Practical tip, if in case you have a girlfriend or boyfriend and
the relationship is already getting serious, require a
CENOMAR. You can obtain that even if the both of you are
not really getting married yet. It is not limited to those who
are about to get married. Use your legal knowledge.
Going back, so if the foreigner will obtain a CENOMAR, the
foreigner will get a “hit” in the records because his previous
marriage was recorded here in the Philippines. In such case,
PAGE 33 OF 175
the divorce decree needs to be recognized here in the
Philippines so that the entry in the civil registrar may be
amended to reflect his status as a divorcee.
Q: How should he go about having his divorce decree
recognized? Can he bring the petition under the
provision of Art. 26, par. 2?
A: He cannot bring a petition under Art. 26, par. 2 because
this substantive provision only applies to Filipino citizens.
He can file the petition under Sec. 48 of Rule 39 of the Rules
of Court:
SECTION 48. Effect of foreign judgments or final orders.
The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment
or final order is as follows:
(a) In case of a judgment or final order upon a specific thing,
the judgment or final order is conclusive upon the title to
the thing; and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right
as between the parties and their successors in interest by a
subsequent title. In either case, the judgment or final order
may be repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake of
law or fact.
Bring it as an ordinary case for Recognition of Foreign
Judgement accompanied by a Petition for Correction of
Entries in the Civil Registrar’s office under Rule 108 of the
Rules of Court. Art. 26, par. 2 is a substantive provision
which is limited to Filipino nationals. Under said provision,
the divorce decree can already be recognized, and the
Filipino can seek a declaration from the court that he is now
capacitated to marry.
Be mindful of the evidence required to prove the foreign
divorce decree as well as the national law 0f the foreigner
allowing the divorce. You would need official publications
or copies attested to by the officer having legal custody of
the documents. If the documents cannot be obtained in the
Philippines, then in addition, they must be consularized or
authenticated by the pertinent Philippine consular office.
VOID AND VOIDABLE MARRIAGES
VOIDABLE MARRIAGE VOID MARRIAGE
There will be conjugal We apply Arts. 147 and 148
partnership or community (Property Regime of
property Unions Without Marriage)
The children will be GR: The children will be
legitimate illegitimate.
XPNs: psychological
incapacity under Art. 36
 nullity proceeding from declared presumptively dead by means of a judgment
Art. 53 rendered in the proper proceedings.
An action to annul Art. 39. The action or
prescribes defense for the declaration We now have Rules on Declaration of Nullity. We say that
of absolute nullity of a collateral attack may be made by any interested party. That
marriage shall not also holds true in ordinary contracts. However, in the Rules
prescribe promulgated by the Supreme Court, the right to invoke
nullity of the marriage is now restricted to the parties of the
The defect may be cured The defect may not be
marriage. Third persons are no longer allowed to file a
by ratification cured by ratification
petition to nullify a marriage.
Only one of the parties to Other interested persons
the marriage may attack may question the nullity of Let me clarify, we are talking about the standing to file a
the defect in a voidable the marriage even without petition to nullify. The right to collaterally attack or
marriage obtaining a judicial decree question the validity of the marriage in any proceeding
of nullity, but if the purpose where the purpose is anything other than nullifying that
is remarriage, the judicial marriage is still available. What was only limited was
decree of nullity is with regard to the right to file the petition to nullify and
required. the limitation here is that only the parties to the marriage
Should any one of the Other interested persons can file the petition, subject to certain exceptions:
parties die without may question the nullity of
bringing an action for the marriage even after the The first exception would be with regard to those petitions
annulment, that issue is death of the contracting for nullity commenced before March 15, 2003, which is the
moot parties effective date of the Rules. The second exception would be
Open only to direct attack Open to collateral attack with regard to those petitions filed regarding marriages
Enumerated under Art. 45 Enumerated under Arts. celebrated during the effectivity of the Civil Code and those
35, 36, 37 and 38 celebrated under the Family Code but prior to March 15,
2003.
Q: How does a void marriage work? Q: What happens if the marriage that is void is
A: If you have a void marriage, then you can always invoke bigamous in character? Let’s say Ms. A is the first wife.
its nullity in any proceeding without need of acquiring first Her husband, Mr. B married Ms. C. Since Mr. B and Ms. C
a decree of nullity of that marriage. are in love, of course they will not file the petition to
nullify their marriage. Now who will file the petition?
Example: if you want to exclude the second wife of your
father, you do not need to secure a decree of nullity of A: Of course, Ms. A, the aggrieved spouse.
marriage first for you to be able to do that. You only have to Q: But how will Ms. A’ standing to file the petition fare
establish the nullity of the marriage in the settlement of the in light of the provisions of the Rules on Declaration of
estate. You can also invoke it by way of defense. Nullity? Will she still be able to file the case?
For example, someone is suing you, and the person suing A: Yes, this has been decided by the Supreme Court.
you is doing so in his supposed capacity as the husband of According to the Supreme Court, the first spouse here is the
the registered owner of the property. You can question his aggrieved party. It is not the two people in the second
standing to do so if you have proof that that he is not marriage. So, if there is anyone who has standing to file the
married to that person or that their marriage is null and petition it will be the first spouse who was betrayed by the
void. The purpose here is to question his standing to sue you spouse who married anew during the subsistence of their
by way of defense. No need to have a decree of nullity on marriage. From the practical point of view, you cannot
hand. You will only need the decree of nullity for purposes expect the parties to the second marriage to ask for the
of remarriage. Meaning to say, you want to get married. You nullity of their own marriage unless they get sick of each
want to remarry. You are making this attempt to marry other and they now want to free themselves of each other.
because you know that your first marriage was null and Only then will you expect them to file a petition for nullity.
void. You can only do so if you have a decree of nullity.
Notes
We want to align the provisions of our Civil and Criminal
law, particularly the provision on Bigamy under art. 349 of
the Revised Penal Code: Read the Rules. This also provides for certain
clarifications as to what should be done during the
Art. 349. Bigamy. — The penalty of prision mayor shall be proceeding for petition for nullity.
imposed upon any person who shall contract a second or
subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been

PAGE 34 OF 175
Let us go to the meat of the matter. The null and void cases
can be found under Arts. 35, 36, 37, and 38. Do not lose sight
of Art. 4 of the Family Code:
Art. 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio xxx
We will go back to the same-gender marriage and how will
this be considered as void in the Philippines because of the
absence of the essential requisite which is the capacity to
marry. One of the components in determining capacity to
marry is the gender of the parties. The parties are required
to be a man and a woman.
Another important point. When it comes to void
marriages, good faith or bad faith does not matter. Case
in point:
Let us say that your life is like a telenovela. You got
separated from your sibling and then in a very strange twist
of fate you found one another and then you fell in love. Now
you want to get married. You were able to get married but
you find out that you are actually siblings. Now, is there any
doubt that the parties here acted in good faith? Yes, they
acted in good faith and their good faith is even based on a
mistake of fact. Hence, they can really claim good faith.
However, in void marriages, it does not matter whether
they acted in good faith or not – that they did not know that
they are actually siblings and they entered into an
incestuous marriage. It does not matter. Good faith is
irrelevant. Exception is only in case of mistake of fact
regarding the authority of the solemnizing officer, where
good faith of either parties may save the validity of
marriage.
Another instance when good faith may save the validity of
the marriage would be the exception to bigamous or
polygamous marriages. In other words, the application of
Art. 41 on terminable subsequent marriages. Third, those
solemnized without a license except those covered by the
preceding Chapter. Fourth, those bigamous or polygamous
marriages not falling under Art. 41.
ART. 35, PAR. 4, FAMILY CODE
Let us contextualize Art. 35, par. 4:
Art. 35. The following marriages shall be void from the
beginning:
(4) Those bigamous or polygamous marriages not failing
under Article 41.
What you have here is like a swinging ball. Generally, the
characterization of a marriage that is contracted during the
subsistence of a prior marriage is bigamous in character.
The only thing that would make it sway towards the
opposite end and make the subsequent marriage valid
would be if this case would fall under Art. 41 and crucial
PAGE 35 OF 175
element for Art. 41 to apply is that there should be good
faith on the part of the spouse present.
Q: You have to understand the terminable subsequent
marriages is not a new concept. It has a counterpart
under the Civil Code. In the Civil Code, it is known as a
voidable bigamous marriage. Would this difference in
the nomenclature of the marriages be simply
semantics?
A: No. There is a reason why under the Family Code, it is
called terminable subsequent marriage. Under the Family
Code, the terminable subsequent marriage can be
terminated by the mere recording of an affidavit of
reappearance. Also, the absent spouse doesn’t have to be
the one to file the affidavit of reappearance. It can be filed
by any interested party. As you can see, it is so easy. In a
matter of minutes or hours, a terminable subsequent
marriage can be brought to its end which is not the same
under the Civil Code. Under the Civil Code, it is called
voidable bigamous marriage. By its term, this clearly
requires a petition for annulment to be brought to put an
end to the voidable bigamous marriage.
Q: What does it take for Art. 41 to apply?
A: Art. 41 provides:
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years
and the spouse present has a well-founded belief that the
absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse.
There must be a judicial decree declaring the absent spouse
as presumptively dead. You can file such petition if the
absent spouse has been missing for 4 consecutive years and
when there is danger of death, 2 years will suffice.
Apart from the number of years that the absent spouse has
disappeared, it is also required that the spouse present shall
have a well-founded belief that the absent spouse was
already dead.
Q: When do you acquire a well-founded belief?
You must have exerted efforts to look for the absent spouse
before you file the petition and before you marry the
present spouse.
 Notes
There are 3 characters:
1. Spouse present
2. Absent spouse
3. Present spouse
Q: Without Art. 41 which sanctions the filing of a
petition for declaration of presumptive death, there
would be no basis for this kind of action to be brought
to the courts. The courts, without Art. 41 would refuse
to recognize such a petition. Why?
A: Because you are only seeking to establish a presumption.
It will be useless for the court to make such a judgment. It is
only a presumption – it will never attain finality. It can
always be overcome by proof to the contrary.
Q: Now, why do we need Art. 41?
A: We will go back to Art. 349 of the Revised Penal Code:
Art. 349. Bigamy. — The penalty of prision mayor shall be
imposed upon any person who shall contract a second or
subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a
judgment rendered in the proper proceedings.
Again, this is to align the civil law with our criminal law.
Under the Family Code, there are certain proceedings that
need to be carried out in a summary character which
includes the declaration of presumptive death. The
proceeding being summary in nature means that it is
immediately executory. There is no appeal and there is no
motion for reconsideration. If you want to question the
decree of presumptive death and there was no MR or
Appeal, how do you go about it? File a petition for certiorari
under Rule 65. If the period to file a petition for certiorari
has lapsed and there was extrinsic fraud which prevented
you from bringing the action in a timely manner, then you
can resort to the remedy of filing a Petition for Annulment
of Judgment.
Illustration:
Ms. A is the absent spouse. Mr. B is the spouse present. Ms.
C is the present spouse. Ms. and Mr. B are husband and wife,
but Mr. B always had a wandering eye. Ms. A got fed up and
left Mr. B. This made Mr. B happy, actually. He is now free to
be with Ms. C. Mr. B and Ms. C wanted to get married. Mr. B
filed a petition to declare Ms. A as presumptively dead.
However, Mr. B knows upon filing that Ms. A is still alive. In
fact, they still fight via Facebook Messenger and curse each
other. Hence, Mr. B is in bad faith.
PAGE 36 OF 175
As you will know, once you finally get to practice law, it is
not always a matter of what is true, but it is about the
evidence you can produce. This is the truth. You will be
advising the client based on what the evidence would prove.
Just pray that when you’ re in the right, you have the
evidence to support your case. If you’re in the defense, pray
that there is no evidence against your client.
Going back, so Mr. B produced evidence that he exerted
effort to locate Ms. A, he testified and even presented
witnesses, and so on and so forth. The court issues the order
declaring Ms. A as presumptively dead. Ms. A learned about
the order declaring her presumptively death. Of course, she
was in shock, got depressed and eventually got angry. She
went to court and filed a Petition for Certiorari since she
was told that the order was immediately executory.
In the meantime, Mr. B lost no time in getting married to Ms.
C. Ms. A is now consulting Atty. D. Ms. A told her lawyer that
she wanted to file an affidavit of reappearance instead.
However, Atty. D said that what should be filed is a Petition
for Certiorari regarding the decree of presumptive death.
Ms. A thought to herself that no doubt, filing an affidavit of
reappearance is easier and less costly. Atty. D persisted in
her advice that what should be filed is a petition for
certiorari to set aside the decree of presumptive death.
Q: Why should that be the correct cause of action?
A: The decree of presumptive death establishes the good
faith of the spouse present from the time the absent spouse
disappeared. Well, at least until the decree was issued. After
the decree was issued, it is now an altogether different
game. But so long as that decree is in existence, you cannot
impute bad faith since that decree is his shield. If you really
want to attack the subsequent marriage, then you need to
have the decree of presumptive death set aside.
If you simply file an affidavit of reappearance, it means that
you are recognizing the validity of that marriage as a
valid terminable subsequent marriage. You may not
want that because if you recognize its validity, then the good
faith or the bad faith of the parties here would no longer be
relevant insofar as the validity of the second marriage is
concerned. It will produce economic consequences.
Worse, even though the subsequent terminable marriage
has been terminated by the filing of an affidavit of
reappearance, it will already have valid consequences
among them. The children born out of that marriage will be
considered legitimate and there will be an establishment of
conjugal partnership of gains/ absolute community of
property. On the other hand, if you will have the decree of
presumptive death set aside, and thereafter file a case for
Bigamy and attack the validity of that marriage and you
succeed, then the children born out of that subsequent
marriage would be illegitimate. They will also not be
governed by absolute community of property or conjugal
partnership of gains. Instead, they will be governed by Art.
148 of the Family Code:
Art. 148. In cases of cohabitation not falling under the marriage producing illegitimate children and governed by
preceding Article, only the properties acquired by both of Art. 148.
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in What is the takeaway? It matters how the subsequent
proportion to their respective contributions. In the absence marriage is terminated. We are not limited to the filing of an
of proof to the contrary, their contributions and affidavit of reappearance. You can question it by attacking
corresponding shares are presumed to be equal. The same it as a bigamous marriage, subject to the requirement that
rule and presumption shall apply to joint deposits of money you set aside the decree of presumptive death. You can also
and evidences of credit. establish bad faith in the issuance of the decree of
presumptive death and the celebration of marriage. The
If one of the parties is validly married to another, his or her parties to the second marriage may also ask for the
share in the co-ownership shall accrue to the absolute dissolution of their marriage for being void, for reasons like
community or conjugal partnership existing in such valid psychological incapacity, lack of marriage license, death, or
marriage. If the party who acted in bad faith is not validly annulment. But my point is this: the consequences will be
married to another, his or her shall be forfeited in the determined by the action that is filed. It is equally important
manner provided in the last paragraph of the preceding that you file the right action.
Article.
Art. 43, at first glance, appears to be contradictory because
The foregoing rules on forfeiture shall likewise apply even it speaks of good faith and bad faith. There will be
if both parties are in bad faith. consequences depending on which party is in bad faith. I am
sure that when you were still in first year, you got confused
It is based on actual contribution. Hence, if the other party upon reading this provision because it was emphasized to
did not contribute, then he or she will not get any share you that your spouse present must always be in good faith.
upon liquidation. Therefore, parties to the second marriage And yet, we have here Art. 43 speaking of good faith or bad
will be better off if you simply file a notice of reappearance. faith on the part of either party. So you might think, what if
You do not want that – you want revenge. He was not only the spouse present is in bad faith?
unfaithful to you, he even declared you as presumptively
dead. Would you just let them walk away into the sunset, Now that you are in 4th year, I am letting you know that if
that they have legitimate children and that they share in the the terminable subsequent marriage gets terminated thru
community property or conjugal partnership? Of course the filing of an affidavit of reappearance, we will no longer
not, right? talk about the good faith or bad faith of the parties for
purposes of determining whether the marriage was valid or
Just imagine this – your husband testified under oath that not. That is already conceded by the filing of the affidavit of
you are presumptively dead even though he knows for a fact reappearance. Hence, after the filing of the affidavit we will
that you are not. And for what reason? He just wanted to get now only talk about the economic consequences, nothing
married to his mistress. I am giving you this perspective more.
because I want you to see how it is very important to know
which remedy to take. If you will stay silent, there will come
a time when your philandering, no-good husband dies, what
will happen is that the consequences attending ordinary
marriage terminated by death will apply.
Q: In that example, let’s say that Ms. A found out about
the decree after it was issued but before the subsequent
marriage has taken place. What should she do to make
that marriage null and void without need for her to file
a Petition for Certiorari to set aside the decree of
presumptive death?
A: She can call Mr. B the night before the wedding. She can
also crash the wedding or appear to both parties. There is
that portion in a wedding ceremony wherein the priest will
ask, “Sino ang tumututol?” Ms. A can just stand in front of the
people and her presence will establish actual knowledge on
the part of both parties that she is alive. Should they still
insist on getting married, they are now getting married in
bad faith and the decree of presumptive death will no
longer be able to shield them. There is actual knowledge
and the presumption has been overcome. Here, the
subsequent marriage will only be an ordinary bigamous

PAGE 37 OF 175
 OCTOBER 2, 2020
VOID MARRIAGES
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-
founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse. (83a)
Q: What are the requisites for a terminable subsequent
marriage under Article 41?
A:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of
death under the circumstances laid down in Article
391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief
that the absentee is dead;
4. That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee;
Q: What are the circumstances under Article 391 of the
Civil Code which will shorten the period to 2 years?
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
2) A person in the armed forces who has taken part
in war, and has been missing for four years;
3) A person who has been in danger of death under
other circumstances and his existence has not
been known for four years. (n)
PAGE 38 OF 175
Note
Do not forget the qualifications cited in the law.
Q: When do we have “well-founded belief”?
A: There must be a showing that he exerted effort in looking
for the absent spouse.
REPUBLIC v. NOLASCO
The SC rejected the claim of the husband that he exerted
enough effort for him to have a well-founded belief that his
wife was already dead. The court noted that the wife was
residing in Liverpool in the UK, and yet per the testimony of
the husband, he conducted his search in London. He
conducted his search by foot, as though he would simply
have the chance to run into his wife by searching the streets
of London, which is highly improbable. The husband did not
even reach out to the family of the wife, who logically would
have knowledge of the wife’s whereabouts.
Q: Who are the 3 characters in a terminable subsequent
marriage?
A:
1. Absent spouse
2. Present spouse - 2nd spouse
3. Spouse present – spouse who contracts the
subsequent marriage
Q: Whose good faith is vital to the validity of the
terminal subsequent marriage?
A: The spouse present.
Q: Do we factor in the good faith or bad faith of the
absent spouse?
A: No. The absent spouse is not doing anything here. Its
possible that he/she is staying away on purpose or that
he/she abandoned the spouse present, but no matter what
his/her motivations may be for staying or being away,
nothing changes about his/her status. He/she remains to be
married to the spouse present. And his/her good faith or
bad faith has no bearing on the validity of the terminable
subsequent marriage. What he/she can do is to question the
marriage.
Q: Do we factor in the good faith or bad faith of the
present spouse?
A: No, it has no bearing, except that Article 44 (FC) does
speak of the marriage becoming void ab initio if both parties
to the 2nd marriage would be in bad faith.
It appears to be a superfluity because so long as the spouse
present is in bad faith, then it follows that the subsequent
marriage is null and void. But what is telling under Article
44 is that it provides for the revocation by operation of law
of the donations made between the parties, because both of
them are in bad faith. So we can conclude that again,
consistent with Article 43, Article 44 also provides for
economic sanctions depending on the good faith or bad faith
of the parties.
Art. 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at
the instance of any interested person, with due notice to
the spouses of the subsequent marriage and without
prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
Q: Who has the right to file a notice of reappearance?
A: Any interested person.
Q: Who is an interested party?
A: It may be the absent spouse or the children of the absent
spouse. The latter would be interest parties because they
stand to be affected by the subsequent marriage.
Q: If the affidavit of reappearance is filed by a person
other than the absent spouse, what would be the
guarantee that it is authentic, or that it is true?
A: The fact of reappearance may be judicially determined.
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage
conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community
property or conjugal partnership property shall
be forfeited in favor of the common children or,
if there are none, the children of the guilty
spouse by a previous marriage or in default of
children, the innocent spouse;
(3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to
said donee are revoked by operation of law;
PAGE 39 OF 175
(4) The innocent spouse may revoke the
designation of the other spouse who acted in bad
faith as beneficiary in any insurance policy, even
if such designation be stipulated as irrevocable;
and
(5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession. (n)
Q: When we say that the share in the net profits of the
community property or conjugal partnership property
will be forfeited, does it automatically follow that the
guilty spouse will end with nothing at all?
A: No.
Q: What is “net profits”?
A: It is the difference between the value of the community
or conjugal property at the start of the marriage and the
value of the properties at the end of the marriage.
Note
The guilty spouse would only walk away with nothing if there
was no community property or conjugal property at the
beginning of the marriage.
EXAMPLE:
Start of Marriage: 5 Million (capital of community prop)
End of Marriage: 10 Million
10 Million – 5 Million(capital) = 5 Million (net profits)
The forfeiture will only apply as to the net profits. That
means in the 5 Million representing the net profits, the
guilty spouse will not be getting any share. The 2.5 Million
share of the guilty spouse in the net profits will go to the
common children, children from a prior marriage, or to the
innocent spouse.
BUT as to the 5 Million representing the capital of the
community property, the guilty spouse would still get his
2.5 Million share.
QUIAO v. QUIAO
Q: If the marriage will be terminated by the filing of the
notice of reappearance, then it also follows that the
parties would no longer be husband and wife. Why did
the law still have to provide for the disqualification to
inherit by intestate succession when the parties would
cease to be husband and wife?
A: It is possible that the parties may be related within the
5th civil degree of consanguinity, in which case there will be
successional rights between them. No longer on the basis of
the marital bond, but on the basis of their relationship.
 Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are
revoked by operation of law. (n)
This is just a variation of the economic consequences that
would befall the parties because of their bad faith.
Q: If the parties do not comply with Article 41, what
kind of marriage do they have?
A: Void bigamous marriage.
Q: If the marriage is bigamous and would be void under
Art. 35(4), what would be the effects?
(1) the children born to that marriage would be
illegitimate.
(2) there would be no community property or conjugal
partnership of gains to speak of; they would be
governed by co-ownership under Art. 148, which
requires actual contribution to have a share in the
co-ownership.
(3) Donations propter nuptias would be governed by
Article 86 (without regard to good faith or bad
faith)
Art. 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially
declared void ab initio except donations made in
the marriage settlements, which shall be
governed by Article 81;
(2) When the marriage takes place without the
consent of the parents or guardian, as required
by law;
(3) When the marriage is annulled, and the donee
acted in bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the
condition is complied with;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of the
Civil Code on donations in general. (132a)
The peculiarity of the situation brought about by Article 41
is that effectively you have 2 subsisting valid marriages. The
provisions do not say anything about the state of the first
marriage, during the time the 2nd marriage is still in
existence. The most that was said about the first marriage
was that it will be revived by the recording of the affidavit
of reappearance. It will only be revived because the
subsequent marriage is terminated.
PAGE 40 OF 175
Note
• It is not the fact of reappearance but the recording of
the affidavit of reappearance which terminates the 2nd
marriage.
Q: What is the state of the first marriage until that point
when there is the recording of the affidavit of
reappearance?
A: Authorities believe that during that time that the
subsequent marriage is still subsisting, then the 1 st
marriage would have to be suspended. Look to the decree
of presumptive death. The absent spouse has been
presumed dead. Until the presumption is overcome, (you
overcome it by filing the notice of reappearance) then we
have to treat that first marriage as also “dissolved”, but
subject to revival.
This is also the reason why the second marriage can stand
alone, and be treated like any other ordinary marriage. For
example, one of the parties to a subsequent marriage suffers
from psychological incapacity, then there is a cause of
action to nullify the 2nd marriage on the basis of the
psychological incapacity. You don’t even need to consider it
as a terminable subsequent marriage in relation to the 1 st
marriage because it can stand alone.
One of the causes for dissolving the 2nd marriage is death. If
the spouse present dies, the 2nd marriage will be dissolved.
This will be a more complicated scenario because there will
be an opening of succession. This will not only affect the
parties to the 2nd marriage, but also the parties interested
because of the 1st marriage. The absent spouse will not just
be an absent spouse but a potential heir as well.
Q: If the terminable subsequent marriage has not been
terminated by the filing of the notice of reappearance,
even though in fact the absent spouse has already
reappeared, and the spouse present dies thereby
terminating both marriages, who would be entitled to
inherit from the spouse present?
A: The present spouse will be entitled to inherit. The law
allowed them to get married because of the presumption
that the absent spouse is dead. That presumption would
have been overturned if there was a notice of reappearance
filed. So if there was none, then the presumption continues.
Therefore, the estate or the benefits should go to the
subsequent spouse or the present spouse.
SSS v. JARQUE VDA. DE BAILON
Art. 35. The following marriages shall be void from the
beginning:
xxx
 (5) Those contracted through mistake of one contracting
party as to the identity of the other;
Q: What kind of mistake is contemplated here?
A: Mistake as to the physical identity of the other. For
example, in case of twins. This goes to the consent given to
marry the other party. If there is mistake as to the physical
identity, then the aggrieved party never agreed or never
consented to marry that other person. If the mistake is as to
the reputation, personal background of the party, it is
doubtful that it will be about consent.
Art. 35. The following marriages shall be void from the
beginning:
xxx
(6) Those subsequent marriages that are void under
Article 53
Art. 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the
properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons.
Art. 53. Either of the former spouses may marry again
after compliance with the requirements of the
immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
Article 53 provides for the nullity of a marriage which does
not comply with the registration requirement under Article
52. Article 53, just like Article 36, by way of exception,
produces legitimate children.
Article 35 (4), (6), and Article 40 – In these situations we
would always have a prior marriage and the validity of the
subsequent marriage would be in question.
Q: When will you have a void marriage under Article
35(4)?
It is when your first marriage is valid, or presumed to be
valid. The subsequent marriage contracted during the
subsistence of the prior valid marriage would be void for
being bigamous.
Q: What is the situation referred to in Article 35 (6)?
A: There is a prior marriage, but unlike in 35(4), this
marriage has been assailed as void. You got the court to
have it nullified. However, for some reason, you did not
comply with the registration requirement.
Q: What about Article 40?
A: It presupposes that there is a prior void marriage. Article
40 is referred to by Article 50, and it is on account of that
reference made by Article 50 that we conclude that Article
40 provides for another specie of a void marriage.
PAGE 41 OF 175
Art. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage
void. (n)
Art. 50. The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall also apply
in the proper cases to marriages which are declared ab
initio or annulled by final judgment under Articles 40 and
45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified
of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.
Q: How do you differentiate a void marriage under
Article 40 from the void marriage under Article 35(6)?
A: Under Article 40, you contracted another marriage
without having the prior marriage nullified. Under Article
35(6), you did something to have the prior marriage
nullified, pero “kapos” (neglected to comply with the
registration requirement).
* Q: What kind of void marriages would have to comply
with Article 52 which calls for the recording of the
decree of nullity, of distribution of property between
the spouses, and of delivery of the presumptive
legitimes? Because if we are able to identify the void
marriages that must comply with Article 52 then we
would be able to define the scope of Article 53.
Student:
Article 52 is referring to Article 50 in relation to Article 40
of the Family Code. This is because Article 50 made mention
the fact that the judgment must contain a distribution,
partition, or liquidation of the property, and the support
and custody of the common children, and the delivery of the
presumptive legitime of the children. Article 52 also made
mention of such enumeration, namely that the judgment or
the decree of nullity, or judgment of annulment, as well as
the distribution and partition of the property and the
delivery of the presumptive legitimes should be registered
with the civil registry as well as the registry of property. So
it could be implied that Article 52 is referring to Article 50
in relation to Article 40 of the Family Code.
Atty:
Yes, that would be correct. There is no other provision
which imposes that kind of requirement except for Article
50 and as you correctly pointed out, Article 50 refers to
Article 40. It is the only void marriage mentioned in Art. 50.
Logic tells us that the subsequent provisions between Art.
50 and Art 53 would have to be referring to a marriage that
is void under Article 40 in relation to Art 50.
To recap, as it turns out, Article 35(6) would be referring to
a subsequent marriage that is entered into without
complying with Article 52. And the compliance with Article
52 is in turn in relation to a prior void marriage under
Article 40 in relation to Article 50.
* Q: Effectively, para magapply yung Art.35(6), how
many marriages should be involved at the very least?
A: There should be at least three marriages. Kasi sabi natin,
the prior void marriage involved here is one that is void
under Article 40 in relation to Article 50. Yan yung prior
void marriage mo. Pinanullify mo yang prior void marriage
under Article 40. Pero pano mo sya napanullify? Kasi ang
dahilan mo, it was entered into without having the prior
void marriage before it nullified, making it fall under Article
40.
So meron kang first void marriage, nagpakasal ka without
having that first void marriage nullified, pumasok ka
ngayon sa Article 40. Pinanullify mo si Article 40 pero sabi
sa Article 50 pag pinannullify mo si Article 40, kailangan
yung final judgment should provide for liquidation,
partition, distribution, delivery of presumptive legitimes.
Hindi mo ginawa. So ngayon, since hindi mo ginawa at
nagpakasal ka the 3rd time around, without complying with
those requirements, yung 3rd marriage mo would also be
null and void, but this time around, not under Article 40 but
under Article 53(non-compliance with Article 52)
PSYCHOLOGICAL INCAPACITY
Art. 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)
Q: What do you understand by psychological
incapacity? Is it the same as insanity?
A: No. In psychological incapacity, the party enters the
marriage knowing fully well that what he is entered is a
marriage contract.
In insanity, the party who is insane has no knowledge that
what he enters is a marriage contract.
Q: Which is worse? Insanity or psychological
incapacity?
A: Insanity is more serious
PAGE 42 OF 175
Q: Is someone who is insane necessarily psychologically
incapacitated?
A: Yes. If you are insane, what can you do as a husband or
wife. You cannot take care of the children or manage the
household.
Q: Kung papipiliin ka, sinong mas gusto mong maging
asawa. Someone who is insane or someone who is
psychologically incapacitated?
A: someone who is psychologically incapacitated. Atleast
makakausap mo yung tao. Kung insane yung tao, you cannot
even converse with them intelligently.
Q: Why do you think that when insanity is the ground,
the marriage would still be valid until annulled, but if it
is psychological incapacity, the marriage is void?
A: Because we only lifted psychological incapacity from
canon law. And canon law only has 2 kinds of marriages:
valid and void marriages.
Q: What is psychological incapacity? Is it a disorder?
A: Yes. The law stated that one is psychologically
incapacitated if the person cannot comply with his marital
obligations on account of a personality disorder. The SC
itself said that “this is limited to the most serious of
personality disorders that prevent a person from complying
with his marital obligations”. It is not refusal, its an inability.
It must have a medical root cause. It must be existing at the
time of the marriage even though the symptoms only
manifested after.
Ang problema kasi, we speak of psychological incapacity
under Art. 36 and Art 36 is comprised of only 1 short
paragraph, and we are asking lawyers to apply Art.36, give
their own interpretation of what psychological incapacity
is, and you know how lawyers think, bigyan mo lang yan ng
maliit na loophole, and they will try to bring in all the cases
that they can within the scope of that provision. Kaya
basically, para na din itong semi-divorce sa pilipinas,
because of how parties who want to get out of their
marriages have abused this provision. Lahat nalang
psychological incapacity.
REPUBLIC v. SANTOS
Q: What are the 3 requites laid down in Republic v.
Santos? Explain each.
A:
1. Gravity – the incapacity is so grave that it brings
about the incapacity to perform the marital
obligations
2. Juridical Antecedence – it must be innate, it must be
ingrained in the personality of a person
 3. Incurability – that there appears to be no cure for
the disorder, or there may be a cure but it is beyond
the means of the afflicted party.
REPUBLIC v. CA and MOLINA
Q: What are the guidelines laid down in CA v. Molina?
A:
1. The burden of proof to show the nullity of the marriage
belongs to the person seeking the nullity of the
marriage.
2. The root cause of the psychological incapacity must be
a) medically or clinically identified
b) alleged in the complaint
c) sufficiently proven by experts and
d) clearly explained in the decision
3. The court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the
state.
4. Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts.
5. Such illness must be grave enough to bring about the
disability of the party to assume the essential
obligations of marriage.
6. The incapacity must be proven to be existing at "the
time of the celebration" of the marriage. The evidence
must show that the illness was existing when the
parties exchanged their "I do's."
7. Such incapacity must also be shown to be medically or
clinically permanent or incurable.
8. The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220,
221 and 225 of the same Code in regard to parents and
their children.
Q: Is there a requirement that the Solicitor General
should also participate?
A: Previously part of the guidelines was the requirement
that the Solicitor General must submit to the Court a
certification. However, because of the very heavy workload
of the Office of the SolGen, that requirement has been
subsequently dispensed with.
PAGE 43 OF 175
Q: How crucial or fatal is it if your petition is not
accompanied by a (inaudible) or an opinion rendered
by psychiatrist or psychologist?
Student:
No. The requirement of expert opinion of a psychiatrist or
psychologist is not indispensable because the case must be
decided in its totality.
Atty:
Class, you have to remember that there are instances where
the psychological incapacity would be very plain to see. You
just need to present evidence that this is what happened
and still happening. And the court would (inaudible) see
from these circumstances from what you proved as what
happened that the party is really psychologically
incapacitated.
Halimbawa, let us say na yung babae ay extremely
promiscuous. Someone who would pick up men and then
have sex with them and she would do this on a daily basis
and without regard to whoever may see what she’s doing. If
you establish this behavior, these things she has been doing
even though you may not have been able to adduce expert
testimony or attach any expert opinion to your petition,
then following the ruling in the case of MARCOS v.
MARCOS, your petition should still be allowed to prosper
because expert testimony is not indispensable in this
circumstance where it is plain to see how she is really
psychologically incapacitated and only because no woman
in her right mind would do those things, more so a married
woman.
And there are also certain facts that we know will only
happen if a party is unable to comply with his marital
obligations.
CHI MING TSOI v. CA
The wife claimed that the husband refused to have sexual
intercourse with her, but the husband “put up a fight”. He
resisted the petition to have the marriage declared a nullity.
The wife had to disclose that they have not had sex yet. In
fact during their honeymoon, it was not a honeymoon, it
was an excursion, kasama yung buong pamilya ng lalaki.
Talagang walang plano makipagsex sakanya. Now, do you
need to be a psychiatrist or a psychologist to know what is
happening here? A man refusing to have sex with a woman,
especially a woman he loves? For this man to refuse and in
fact to resort to these schemes to avoid having sex, what will
be your conclusion? What kind of psychological incapacity
is he suffering from? He is homosexual or gay, that is the
only plausible explanation. If you are gay or a homosexual,
then that means you are psychologically incapacitated to
discharge your marital obligations because first and
foremost of those marital obligations would be sexual
intercourse.
Similarly, kung nymphomaniac yung babae then she would
not be able to discharge a very important marital obligation
– fidelity. You have to be faithful to your spouse. But if you
are a nymphomaniac, that means you are a slave to your
urges. Hindi mo kontrolado. Remember, it is an inability or
disability. You have no say on the matter, di mo talaga kaya
gampanan.
On the other hand, sabihin na natin, na ang pinakadisorder
or peculiarity mo ay meron kang * obsessive compulsive
behavior. Halimbawa, pagnagaaral kayo parang di nyo
naabsorb kapag di nyo hinihighlight or sinusulatan. Lalo na
pag magbabar exam kayo, andami nyong magiging ritual
nyan na kailangan nabless ang inyong mga ballpen, na ang
damit nyo kailangan pula or puti pag nageexam, and this
would be some kind of obsessive-compulsive disorder, wala
na syang logic eh. But would that be grave to say that the
marriage is void for psychological incapacity? The answer
is no, because we lack one of the qualifications which is it
should be a disorder which prevents me from (inaudible)
my marital obligations. Wala naman syang kinalaman sa
marital obligations.
Untitled case
There is also this one case decided by the SC. In this case,
what was involved was a woman who was married to a
Filipino, went to Japan, met a Japanese man, had an affair
with the Japanese man and she had the (inaudible) to even
invite the Japanese man in the Philippines, make him stay in
the marital abode, sleep with him in the marital bed and
introduce her husband to him as his brother. The petition
for nullity was granted.
But if you would look at the basis for juridical antecedence
medyo manipis. The SC pointed to her upbringing. There
was inconsistency with how she was raised and disciplined
by the father and how the mother went a different direction.
Sabi ng SC, conflicting yung upbringing sakanya so parang
di nya talaga alam how to act.
But at a certain point you can no longer blame your parents.
You have to take responsibility for your actions. To my
mind, pinagbigyan lang yan ng SC dahil naawa sa lalake.
CAMACHO-REYES v. REYES
Dito naman the woman was a compulsive liar. She lied
about everything. She lied about becoming a singer, being
the top recording artist of a certain record company, she
lied about an attempt in her honor by the brother of the
husband, she lied about her earnings, she hid the fact that
she had a child from a previous relationship. The SC granted
the petition for nullity. Here, you can understand why.
Trust is very important in a marriage. If your wife is a
compulsive liar, then how can you make your marriage
work?
PAGE 44 OF 175
INCESTUOUS MARRIAGES AND VOID MARRIAGES
FOR REASONS OF PUBLIC POLICY
Q: What marriages are considered void under Article
37?
Art. 37. Marriages between the following are incestuous
and void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any
degree; and
(2) Between brothers and sisters, whether of the
full or half blood. (81a)
Q: What marriages are considered void under Article
38?
Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives whether
legitimate or illegitimate, up to the fourth civil
degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted
child;
(5) Between the surviving spouse of the adopting
parent and the adopted child;
(6) Between the surviving spouse of the adopted
child and the adopter;
(7) Between an adopted child and a legitimate child
of the adopter;
(8) Between adopted children of the same adopter;
and
(9) Between parties where one, with the intention
to marry the other, killed that other person’s
spouse, or his or her own spouse. (82)
Q: Supposing that the woman fell in love with the man
who killed her husband and she only met this man after
he was caught following the commission of the murder.
If they were to get married, what would be the status of
their marriage.
A: In this case, you can say that the marriage was still valid
because from the facts, it appears that they only married
each other, or that the woman married the killer after the
husband was murdered. You can also say that there is no
showing that the killer knew the woman prior to the
murder of the husband. So if they did not know each other
prior to the marriage then it is not possible for the killer to
have had the intention to marry the woman in killing the
husband.
PRESCRIPTIVE PERIOD
 Art. 39. The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. (As
amended by Executive Order 227 and Republic Act No.
8533; The phrase “However, in case of marriage
celebrated before the effectivity of this Code and falling
under Article 36, such action or defense shall prescribe in
ten years after this Code shall taken effect” has been
deleted by Republic Act No. 8533 [Approved February
23, 1998]).

This has been partially repealed by R.A. 8533.

Q: Do you know how this was partially repealed by RA
No. 8533?
A: Because previously, there was a qualification for
marriages celebrated prior to the Civil Code that they
should be brought for nullification within 10 years from the
effectivity of the Family Code. Ang nangyari parang
nagkaroon ng race to the finish line. Thousands of petitions
where filed for the nullification of marriages celebrated
under the Civil Code so to remove that incentive for filing
the petitions the law was amended. There’s no longer any
prescriptive period for the filing of nullity regardless of
when the marriage was celebrated.

PAGE 45 OF 175

OCTOBER 08, 2020
VOIDABLE MARRIAGES
Q: What is a voidable marriage?
A; A voidable marriage is a valid marriage. It is valid until
annulled. Since it is voidable, it can only be directly
attacked.
Q: What is a direct attack?
A: It means if you want to question its validity, you have to
bring a direct action, a petition, for that purpose itself. It
cannot be collaterally attacked like in void marriages.
For example, there is a settlement of estate because one of
the parties to a voidable marriage died, one cannot assail
the validity of the marriage in that settlement proceeding.
With the death of one of the parties, so will any question
relating to the validity of the marriage die.
Q: Is a voidable marriage subject to ratification and
prescription?
A: Yes, unlike in void marriages. In fact, these are the two
defenses available against the grounds for annulment.
Q: When is the prescriptive period for a voidable
marriage?
A: This is fixed at 5 years.
Notes
• In void marriages, there is no prescription. You can
always file a petition for nullity at any time and it can
also assail the nullity of a marriage at any time. So
cause of action and defense are not subject to
prescription.
• A void marriage can never be ratified.
Q: How do you ratify a voidable marriage?
A: Through free cohabitation.
Q: Who has the power to ratify?
A: It depends on the ground for annulment.
Notes
Since a voidable marriage is a marriage which is valid until
annulled, then all the consequences attending a valid
marriage will also apply to a voidable marriage. Meaning
to say there would be:
o Legitimate children
o Property regimes and
o Recognition of donations propter nuptias,
unless there is ground to revoke the same.
PAGE 46 OF 175
* Q: What would be the grounds, if any, are common to
nullity, annulment, and legal separation?
The first ground that would probably cross your mind is
homosexuality, lesbianism, habitual alcoholism, and drug
addiction because these are explicitly mentioned in both
annulment and legal separation. In the case of nullity, they
may come within the scope of Article 36, either as
manifestations of the psychological incapacity or the root
causes for the psychological incapacity.
* Q: Given that we have this seemingly common grounds
for nullity, annulment, and legal separation, would it be
correct for us to say that these are indeed the common
grounds?
A: No. The circumstances qualifying these grounds for
nullity, annulment, and legal separation, are different.
Notes
• In nullity and annulment, it is a requirement that the
ground should be existing at the time of the
celebration of the marriage.
• In legal separation, the requirement is that it should
take place during the marriage, so it can come after
the celebration of the marriage
Keep in mind that for nullity, it is the lesbianism or
homosexuality per se which constitutes the psychological
incapacity.
In annulment, it is the concealment of the homosexuality,
lesbianism, drug addiction, or habitual alcoholism which
constitutes the ground for annulment.
Given the differing circumstances, we cannot say that we
have a common ground for all three causes of action.
Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have
the marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in that
order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived
together as husband and wife;
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the
other as husband and wife;
(3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with the
other as husband and wife;
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.
(85a)
Q: What is the first ground?
A: Lack of parental consent. When there is lack of parental
consent, the marriage is voidable.
* Q: Who may ratify this?
A: It is only the party requiring parental consent who may
ratify the marriage. It cannot be ratified by the parents or
guardians whose consent were not secured.
Effectively, if the parent or guardian whose consent was not
secured, does not file an action for annulment before the
affected party turns 21, this amounts to some kind of
ratification, because they did not do anything. But strictly
speaking, they are not ratifying, they cannot ratify.
Q: What is the 2nd ground?
A: If either party is of unsound mind.
Q: Can the spouse of sound mind (sane spouse) ratify
the marriage?
A: No, because his consent to the marriage is perfect. It’s not
defective. It is the consent of the insane spouse which is
defective.
Q: When can the insane spouse ratify?
A: When he comes to reason and he freely cohabits with the
other as husband and wife.
Q: Who can ratify in the 3rd (fraud) and 4th (force,
intimidation, or undue influence) ground?
A: The aggrieved party.
Q: Who is the aggrieved party?
A: the one who was deceived, forced intimidated, or one
upon whom undue influence was exercised.
Notes
• Keep in mind that in fraud, we are limited to the
instances of fraud enumerated under Article 46.
The last paragraph of Article 46 provides that “No
other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
PAGE 47 OF 175
fraud as will give grounds for action for the
annulment of marriage.”
Q: What is the 5th and 6th ground?
A: That either party was physically incapable of
consummating the marriage and such incapacity continues
and appears to be incurable (5th) and that either party was
afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable
These are significant because of all the grounds for
annulment, only these 2 are not subject to ratification. The
only defense available is prescription.
Q: Why is the defense of ratification not available for
these grounds, but the defense of prescription is
available?
A: Ratification can defeat your right of action even though
prescription has not set in yet.
For example, you got married without parental consent and
then you reached the age of 21. So you stayed on in the
marriage and cohabited with your spouse. When you turned
23, you want to end the marriage. Even if you still have 2
years before the action prescribes, you can no longer file for
annulment because you already lost the right. You already
ratified, and once the marriage is ratified, it is no longer
defective. There is nothing to annul.
In grounds 5 and 6, even if you freely cohabited with the
other, so long as prescription has not set in, you can always
seek an annulment. Remember, if you fall under these
grounds, the healthy spouse is looking at a lifetime of
sexless marriage, or a lifetime of a day to day endangerment
of acquiring a sickness that is serious and incurable. The law
recognizes that at some point, it is possible that the inherent
instinct for self-preservation or one of happiness, may kick
in.
Q: If the law recognizes the right to self-preservation,
why do we need the prescriptive period in grounds 5
and 6?
A: “Di pwede na forever mangangapa yung other party na
anytime pwede mo sya iwanan. “. The members of the code
committee also stated that 5 years is long enough for the
healthy spouse to decide whether he will stay on in the
marriage.
Art. 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the preceding
Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral 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;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of
the marriage; or
(4) Concealment of drug addiction, habitual
alcoholism or homosexuality or lesbianism
existing at the time of the marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of
marriage. (86a)
Q: What is the first ground?
A: Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude.
The first ground is unique because the other grounds used
the word concealment, but here, the word used was “Non-
disclosure”. Why? Because we are dealing here with
conviction, and convictions are a matter of public record. So
theoretically, it is known to everyone. There can be no
concealment. What the law does is it impliedly places the
obligation upon the convicted spouse to disclose to the
other spouse that he was previously convicted of a crime
involving moral turpitude.
Q: What is the second ground?
A: Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her
husband.
Notes
• In this ground, it is not enough that there is
concealment on the part of the wife. It is equally
important that there are no circumstances that will
alert the husband to be that he is not the father of the
child. If there are such circumstances and he still
married the woman, then he will be in estoppel. He
can no longer ask for annulment. He cannot claim that
he was deceived into the marriage.
Q: For example, the couple has been in a LDR, and they
agreed to marry. Their agreement was that the guy
would come back to the Philippines 2 months before
the wedding. For the entire year prior to the wedding,
they have not seen each other. The groom to be comes
home and he finds the bride to be with child (4 months).
He does not ask any question and marries the girl. After
their marriage, the child was born and the child looked
like the neighbor. The husband asked for a DNA test and
found out that the child was not his. He then filed an
action for annulment. Should the action for annulment
be granted?
PAGE 48 OF 175
A: No. The wife might have done something wrong, but the
husband was never deceived. He knew very well that that
could not have been his child, but he still proceeded with
the marriage.
If he did not know that the woman was pregnant at all, that
does not put him on notice. Knowledge gives rise to
responsibilities. Once there is knowledge, there may be a
corresponding obligation to ask questions. If he did not
know that she was pregnant, there’s no need for him to ask
questions.
There was an old case where the Supreme Court described
a woman as naturally plump so it wasn’t noticeable that she
was pregnant. So the man would not have known that she
was pregnant and therefore would not have suspected that
she was unfaithful or carrying the child of another man.
There is another aspect to this ground, this has something
to do with the filiation of the child in question. Since we are
dealing with a voidable marriage, this is essentially a valid
marriage. One of the consequences of a valid marriage is
that it produces legitimate children. You know how it is with
legitimate filiation, it attaches to the child upon its birth.
The only way it can be impugned is through a direct action
that can only be brought by one person: the husband, and
by way of exception, his heirs. If the impugnation is
successful, the husband will no longer be considered as the
father of the child. They will be strangers to one another.
The problem is you only have a very short period to impugn
legitimate filiation (1-3 years). In this kind of situation that
we are discussing right now under voidable marriages,
malamang yung 1 year period and magaapply, kasi kinasal
sila, so the birth of the child would be known to the
husband. So this 1 year period is shorter compared to the 5
year period to seek an annulment especially since you count
the 5 year period from the time of discovery of the fraud,
while the 1 year period to impugn filiation runs from the
birth of the child or the recording of his birth in the civil
registrar.
The point is this, it may happen that by the time the husband
finally discovers the fraud relating to the filiation of the
child, which now brings him to file an action for annulment,
it may happen that his period to impugn the legitimate
filiation may have already passed. In which case, forever na
nyang legitimate child yung bata, even though the
annulment may be subsequently granted by the court. So
you will be faced with the situation where the marriage was
annulled because the mother concealed the fact that at the
time of the marriage, she was pregnant by another man. So
annulled yung marriage, and yet, the very child that was
sired by another man would still be considered as the
legitimate child of the husband because there was no action
to impugn that was timely filed.
Q: What is the 3rd ground?
A: concealment of sexually transmissible disease. You just
need to distinguish it from ground number 6 in Article 45.
In Article 46(3), what matters is that there was
concealment. We do not pay attention to the nature or
seriousness of the sexually transmissible disease.
Same with Article 46(4), what we are using here as a ground
for annulment would be the concealment of drug addiction,
habitual alcoholism or homosexuality or lesbianism.
Notes
• For effects of decree of annulment, this would just be
the same as Article 43 save for the first paragraph, as
mandated by Article 50 in relation to Article 45.
• While Article 43, as referred to by Article 50 omits
paragraph 1, which pertains to legitimacy of children
conceived or born during a voidable marriage, that
effect still remains because by definition, legitimate
children are those who are conceived or born in a
valid marriage. And as we’ve said a voidable marriage
is valid until annulled.
LEGAL SEPARATION
Legal separation was used to be known as relative divorce
because it is supposed to be divorce in bed and board. The
marital bond subsists. Contrary to what may be thought of
by others, if you are legally separated, you cannot have
sexual relations with other people because you are still
married.
Q: Your client might ask you why should he still file a
petition for legal separation? What will you tell your
client?
A: You may not be able to obtain freedom from your
marriage but there are economic consequences that will
favor the innocent spouse. If you are the innocent spouse
then you would definitely want to benefit from this.
• There is the forfeiture of his share in the net profits
that will be meted out against the guilty spouse.
• The revocation by operation of law of testamentary
dispositions made in favor of the guilty spouse.
• There is a disqualification in intestate succession
against the guilty spouse.
• The custody of minor children will be given to the
innocent spouse subject to the provisions of Article
213.
• This in turn bears upon who will get the conjugal
dwelling. When you liquidate the ACP or CPG, the
conjugal abode will be awarded to the spouse with
whom majority of the children should choose to
remain.
PAGE 49 OF 175
Q: What if your client is still not convinced that he needs
to file a petition for legal separation?
A: At the very least, convince them to execute a last will and
testament disinheriting the guilty spouse, because giving
grounds for legal separation is a ground for disinheritance.
Art. 55. A petition for legal separation may be filed on
any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of
the petitioner; or
(10) Abandonment of petitioner by
respondent without justifiable cause for more
than one year.
For purposes of this Article, the term “child” shall
include a child by nature or by adoption. (9a)
Previously, we only had 2 grounds (1) adultery or
concubinage and (2) attempt on the life by one spouse
against the other. Nandito padin naman yung adultery and
concubinage pero ibang version na, it is now known as
“sexual infidelity”.
The change was lobbied for by pro-women groups because
adultery is easy to prove. Adultery is having sexual
intercourse by a woman with a man not her husband, and
each act of sexual intercourse would be a separate crime.
On the other hand, concubinage is committed when a man
has sex under scandalous circumstances, or bringing the
mistress home to the family abode, or ibabahay na yung
mistress (cohabitation). Walang gagawa nyan sa mga
lalaking intact pa ang marriage so paano mo mahuhuli ang
lalaki sa concubinage para makapagfile ka ng action for
legal separation?That’s why it was changed to sexual
infidelity and this applies to both genders.
Sexual Perversion
Also included as a ground is sexual perversion. The law will
not invade the confines of the bedroom of the spouses. It
will not tell the spouses what they can or cannot do. If the
act would deviate from the norm then it would still not be
sexual perversion so long as both parties are in agreement,
so long as no one is being forced to do something against
his/her will.
Notes
• Read the other grounds for legal separationn very
carefully and pay attention to the qualifications of the
law.
Art. 56. The petition for legal separation shall be denied
on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties
in the commission of the offense or act
constituting the ground for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to
obtain decree of legal separation; or
(6) Where the action is barred by prescription.
(100a)
Q: What are your defenses against a petition for legal
separation?
A:
1. Consent
2. Condonation
3. Connivance
4. Collusion
5. Mutual guilt
6. Prescription
Q: How is consent different from condonation?
A: Consent – you ask for permission before you do an act.
Pano ka naman hihingi ng permiso para gumawa ng mga
grounds for legal separation? For example, yung mga ibang
naghihiwalay gagawa pa ng agreement na they are free to
live their lives, pursue their happiness and have sexual
relations with other people. That will constitute consent.
Pero kung halimbawa, you were sneaking around or playing
around or fooling around with other men/women and your
spouse finds out and they find it in their hearts to forgive
you, yan yung condonation.
PAGE 50 OF 175
Condonation or forgiveness does not have to be express.
The SC has declared time and again that the act of having
sexual relations with your erring spouse after you learned
about his transgression also amounts to forgiveness.
Q: How is collusion different from connivance?
A: Collusion – they can easily deduce that what is involved
here is some kind of agreement between the parties. Kasi
dun sa mga sitwasyon na wala naman talagang ground for
legal separation but they just want to legally separate, they
might agree na aamin yung isa sakanila na alcoholic.
Magpanggap ka na isa kang drug addict.
Connivance – its more of a facilitation on the part of one of
the parties to make the other spouse commit a
transgression that would be a ground for legal separation.
One spouse is instigating the other to commit the ground for
legal separation. Halimbawa, the husband knows very well
that the wife never got over her first love. Tanggap naman
nya na wala na sya magagawa, and that the best possible
thing for him to do was to get economic revenge. Economic
revenge for him would mean bringing an action for legal
separation and to paint the wife as the guilty spouse. He
then paves the way for them to reconnect. Finally, the wife
commits the act of sexual infidelity at pagnangyari yon, the
husband, who has been laying in wait will now go to court
with his evidence and file a petition for legal separation all
for making the other spouse the guilty spouse.
Q: What is the prescriptive period for legal separation?
A: 5 years from the time of occurrence of the cause for legal
separation.
Q: Halimbawa, may ground talaga tayo for legal
separation and you filed the petition. What will take
place then?
A:
• The parties would then be allowed to live separately
from one another
• their support, while the action is pending, will have to
be provided either by mere agreement or court order
• the ACP or CPG may be entrusted to either of the
spouses or a third person for administration.
Q: Why is it important that there be a sanction for the
spouses to live separately from each other?
A: This goes to the right to be supported. The spouse who
leaves the conjugal dwelling or refuses to stay with the
other for no justifiable reason will not be entitled to
support.
Q: What happens after the filing?
A: There would be a cooling off period of 6 months. The
purpose of this is to allow the spouses to think things over.
It’s possible that during that cooling off period, they may
reconcile.
Q: What will happen if the spouses reconcile?
A: Should they reconcile, they simply have to file a joint
manifestation before the same court and the
petition/proceeding will be terminated at any stage it may
be in.
If there is already a decree of legal separation, you also file
a joint manifestation and the decree of legal separation will
be set aside and the parties will have the option to revive
their former property regime, but this time a round but this
time around they get a say as to what will be contributed
anew to the revived property regime.
Q: There is a bit of an issue here. Dun sa rules on legal
separation that was promulgated by the supreme court,
the parties are given the option to adopt a totally
different regime, which is inconsistent with what the
family code says, because in the family code, your only
option is to revive your former property regime and
your only discretion is to determine the which
properties will remain to be your exclusive properties
and which will be contributed anew to the revived
property regime. Which will prevail? The rules on legal
separation (SC) or the family code?
A: Under the rules on statutory construction, procedural
law will have to defer to substantive law, and the family
code is the substantive law. Given the inconsistency, the
family code prevails.
Notes
• Read the provisions on the rights and obligations of
the husband and wife.
PROPERTY RELATIONS
Art. 74. The property relationship between husband
and wife shall be governed in the following order:
(1) By marriage settlements executed before the
marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
The property relations between the spouses are first
governed by the marriage settlement also known as the
ante-nuptial agreement. In the absence of the marriage
settlement, it will be the Family Code. In the absence of the
Family Code, it will be the local customs.
Q: What is the default property regime now?
A: Absolute Community of Property, previously it was the
conjugal partnership of gains.
Q: When do you apply the default property regime?
PAGE 51 OF 175
A: When you do not have a marriage settlement or when
your marriage settlement is null and void.
Q: Why did we shift from Conjugal Partnership of Gains
to Absolute Community of Property?
A: Before we answer this question, we must first distinguish
one from the other.
Community property is essentially based on the principles
of co-ownership. But here, there is greater merging of
interests kasi napakabroad ng scope ng community
property ownership. The law says that everything that the
future spouses own prior to the marriage and everything
that they acquire during the marriage that do not fall under
the exceptions would be community property. Kung
community property lahat ng property na to, it also follows
that should the marriage be dissolved o kahit yung
community property ang nadissolve, that means this
properties will be divided between the spouses equally.
For example, isa ka lang ordinaryong lalaki, wala ka pang
napatutunayan, bata ka pa, and then a female celebrity
fancies you at napakayaman ng celebrity na to. She’s also
known to be impulsive at pinakasalan ka nya before a judge
without any ante-nuptial agreement. So ikaw, who started
with zero in your name is now married to one of the biggest
celebrities in the Philippines. However, as predicted, your
marriage does not last and naghiwalay din kayo. Kung
maghihiwalay kayo, you can now seek the dissolution of the
community property to which you hardly contributed, but
now you’ll be entitled to half of her millions. Would this be
unfair? No, if we will follow the notion that when man and
woman marry, they become one. And whatever is owned by
one will also belong to the other kasi yan ang konsepto ng
marriage.
That is not the case in Conjugal Partnership of Gains. In CPG,
yes, you become one, but the recognition that you are still
individuals apart from one another remains. In conjugal
partnership, as the term indicates, this is premised on
partnership. Titignan kung anong cnontribute mo or dinala
mo sa marriage. Whatever you bring to the marriage would
still belong to you after the marriage. Ang hahatiin lang
would be whatever profits were earned by those properties
or whatever profits were earned by your properties
together, or by your labor. Yung profits lang ang
paghahatian at kung ano man yung properties na binili nyo
together. Itong konsepto na to, this calls for lesser merging
of the personalities and assets of the husband and wife na
sa tingin ng ating mga code makers not consistent with what
a marriage should be. Kaya inabandon natin ang CPG as
default property regime.
Notes
• The ante-nuptial agreement must be executed before
the wedding. It cannot come after the wedding.
Q: What is the form that must be observed for the
marriage settlement?
A: Magkaiba ang Family Code and Civil Code.
Sa Family Code, it is explicitly required that the marriage
settlement be in writing for it to be valid.
Sa Civil Code, it was covered by the Statute of Frauds. Sa
statute of frauds, if your agreement is something in
consideration of marriage, then it must be in writing or
there must be some kind of note or memorandum
subscribed by the party charged. Otherwise, the agreement
is unenforceable.
Q: What is the status of an unenforceable agreement?
Q: It is valid but it is unenforceable. However, being that it
is unenforceable, then it may still be ratified.
Q: Why is the difference between the forms in FC and CC
important?
A: If you entered into an oral marriage settlement under the
Family Code, and you adopted the regime of separation of
property and throughout the marriage you complied with
that regime, that agreement would still be null and void no
matter the compliance they have made and the parties will
be governed by the absolute community of property. The
requirement of it being in writing was necessary for validity
and non-compliance made the agreement void, and a void
agreement can never be ratified.
If the oral marriage settlement was executed under the
provisions of the Civil Code, an oral marriage settlement is
considered to be simply unenforceable (and not null and
void). That is subject to ratification. And one way to ratify
an unenforceable agreement is by performing its terms
which the parties (inaudible).
Q: Who are the parties in a marriage settlement?
A: the future spouses. Always use the term future spouses
to emphasize that this takes place before the wedding.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of
contracts affecting property not situated in the
Philippines and executed in the country where
the property is located; and
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting property situated in a foreign country
whose laws require different formalities for its
extrinsic validity. (124a)
Art. 81. Everything stipulated in the settlements or
contracts referred to in the preceding articles in
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be
rendered void if the marriage does not take place.
However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (125a)
Should the marriage not take place, the marriage
settlement will not have any effect. Should there be any
donations made therein (donations propter nuptias) they
will be considered void. However, any provision in the
marriage settlement that is not dependent upon the
happening of the marriage, these may still subsist. An
example of such provision would be a recognition of an
illegitimate child.

Notes
• If any of the parties is between 18 and 21, it is
required that the parents should be made parties to
the ante-nuptial agreement.

* Q: What is the governing law in property relations?

A: Philippine laws shall govern, regardless of the place of
celebration of the marriage or their residence subject to the
exceptions enumerated in Article 80.

Art. 80. In the absence of a contrary stipulation in a

marriage settlement, the property relations of the
spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the marriage
and their residence.

PAGE 52 OF 175

OCTOBER 9, 2020
DONATION PROPTER NUPTIAS
Q: What is a donation propter nuptias?
A: A donation propter nuptias is made before the
celebration of the marriage in consideration of the same
and in favor of one or both of the future spouses.
Q: How is this different from an ordinary donation?
A: In donation propter nuptias, the donee or recipient is
either of the future spouses. In ordinary donations, the
donee or recipient can be anybody.
2 Important Distinctions:
1. The recipients were limited to either or both of the
future spouses.
2. With regard to time, this must be made prior to the
marriage. It cannot be made after the marriage.
Q: Who may make a donation propter nuptias?
A: Anybody can make a donation propter nuptias, since the
law did not make a distinction as to who the donor could be.
Q: What about the future spouses themselves? Can they
also be the donors in a donation propter nuptias with
regard to one another?
A: Yes. Even the future spouses may make donations
propter nuptias in favor of one another. In fact, moving
forward, this would be the only donation that they can
validly make because once they get married they are
prohibited from donating to one another subject to certain
exceptions.
Q: What can be donated?
A: Anything can be donated as long as it is within the
commerce of men.
Q: So real and personal properties may be the subject of
donation propter nuptias?
A: Yes.
Q: Will it matter what kind of property is being donated
whether it is personal or real property?
A: It only matters with regard to formalities required. It will
only have bearing with regard to the form that would have
to be observed.
Q: If it is personal property we are donating, what is the
form of donation?
A: If it is personal property which exceeds P5,000, the
donation and acceptance must be in writing. If it is real
PAGE 53 OF 175
property, the donation and acceptance must be made in a
public instrument.
Q: But otherwise, if the personal property does not
exceed P5,000, then the donation may be accomplished
with the mere delivery of the property to the other
party or to the donee. Correct?
A: Yes.
Q: What about future property? May this be donated?
A: Yes. As long as in the form of donation propter nuptias
and the donee is the future spouse. The formalities would
be governed by testamentary provision or the forms of
wills.
As a general rule, you cannot donate future property. But if
the donation is mortis causa, then that would be allowed.
Now, the law has likewise made an exception with regard to
donation propter nuptias, in that, it also allows the donation
of future property. But there is a caveat, under the Family
Code (FC) it is required that such a donation propter
nuptias of future property should be contained in an
instrument like a last will and testament.
Q: Was this always the rule? Under the Civil Code? Prior
to the FC, were we observing the same rule?
A: No.
Q: What was the rule before?
A: Previously, under the Civil Code, you can make a
donation propter nuptias involving future property in the
marriage settlement.
This is why for some time, we had the so called, “contractual
succession.” As you must know, a marriage settlement is not
required to abide by the formalities affecting last wills and
testaments. Yet, under the Civil Code, you may make a
donation propter nuptias of future property merely in the
marriage settlement. So, in a way, this is like succession by
contract or contractual succession. But this was done away
with under the FC.
So under the FC, even though you are still allowed to make
a donation propter nuptias of future property, to take effect
upon death, you are now further required to observe the
formalities of a last will and testament.
So if you are asked, do we still have contractual succession
under the present law, the answer would be, “No.” The
reason is because of this change in the form for donation
propter nuptias of future property now imposed under the
FC.
Q: Is there any limit as to what or how much may be
donated by a person?
A: Let us establish the general rule first.
General Limitation: When you make a donation you have
to make sure that you leave sufficient properties to
yourselves that would be able to answer for your needs, for
your support, as well as for the support of other people, who
under the law, are entitled to receive support from you.
Another Limitation: If you have compulsory heirs, then
you cannot impair or infringe the legitimes. Limitations on
inofficious donations also apply. This would apply
regardless of the character of the donation either as an
ordinary donation or a donation propter nuptias.
In addition, if the spouses agree in their marriage
settlement that their property regime is other than an
Absolute Community Property (ACP), they are not allowed
to donate more than 1/5th of their present property, and any
excess will be considered void.
Q: When do we apply this limitation?
A:
First Condition: When they have executed an antenuptial
agreement. Because that is the only way by which they can
choose a property regime other than the ACP regime.
Q: What else? What is the second condition?
A:
Second Condition: The donation propter nuptias must be
made in the antenuptial agreement itself.
Conversely, if we will follow this condition set out in the law,
we can conclude that even if the parties were to execute that
antenuptial agreement where they elect a property regime
other than the ACP regime, but if the donation propter
nuptias is not made in that antenuptial agreement, the
limitation will not apply.
We have to make sense of the law. Remember, the
presumption is our lawmakers intended the language
deliberately and their intention is for right and justice to
prevail. At the same time, we cannot really go beyond the
literal tenor of the law, in the absence of clear justification
for us to do so.
So, extending the limitation to donations executed outside
the antenuptial agreement that is not within the letter of the
law. But at the same time, we can justify why we should
limit the limitations to those instances when the donation is
made in the antenuptial agreement because if you would
allow the donation to be made in the antenuptial agreement
and there is no limitation, and the parties agree on a
property regime other than the ACP regime, it would appear
as though the other party, the party who has more in terms
of material wealth, is paying off the other. So that other
spouse will agree to a property regime other than an ACP
regime.
Ma-rereduce ngayon ‘yung antenuptial agreement into a
contractual negotiation. Nagbibilhan ‘yung parties. It leaves
PAGE 54 OF 175
a bad taste in the mouth. Kaya ka lang pumayag sa ibang
propery regime kasi binayaran ka. (Example: Hollywood
celebrities)
This is like a business deal. So ganon din, yung sa tingin ko,
iniiwasan ng batas mangyare dito. Na sa kapalit ng pera,
papayag ‘yung isang spouse to give up the option to choose
ACP. Kase tatandaan niyo iba ‘yung benefits na makukuha
ng asawa sa ACP regime compared to the other property
regimes.
Sa ACP regime, pwede pumasok ka sa marriage na ikaw ay
dukkha o pulubi, pero kapag nadissolve ‘yung marriage at
nagkahatian kayo lalabas kang milyonaryo. Kasi ganon
katinindi ‘yung integrity ng pagsasama ng mag-asawa
covered by the ACP regime. Essentially what is mine is
yours, what is yours is mine.
So kapag pumayag ka sa ibang property regime that means
you are giving up a lot. At kung babayaran ka doon sa
antenuptial agreement niyo in the guise of a donation, para
na kayong nag business deal. It is no longer akin to a marital
union.
So if we take that as the purpose of the law, then it will also
be equally acceptable for us to allow them to make the
donation without limitation outside of the marriage
settlement kasi di makukulayan ‘yung antenuptial
agreement ng business character dahil nasal abas ‘yung
donation. It does not even have to be known to other people.
Sabe naten kanina, kapag tayo nagdonate ng real property
or personal property exceeding P5,000, we need to have the
donation and acceptance embodied in a public instrument.
Pero pwede naten gawin ‘yan sa marriage settlement. But
as you must know, in dealing with a marriage settlement,
the only requirement is that it should be in writing. The
requirement of registration which in turn would require a
public instrument that only goes to affecting third persons.
Q: How do we reconcile this basic requirement of a
marriage settlement as only being in writing with the
formalities that we must observe in the donation
propter nuptias involving real property or personal
property exceeding P5,000? Papano mo execute
ngayon ‘yung marriage settlement kung meron kang
donation propter nuptias doon ng personal property
worth more than P5,000 o ng real property?
Basic lang ‘yung requirement for the validity of the ante
nuptial agreement, it only has to be in writing. Pero papano
mababago ‘tong requirement na ‘to kapag ikaw ay naglagay
ng donation propter nuptias sa iyong antenuptial
agreement? Sabi naten kanina pwede eh. May limitation pa
nga kapag ikaw ay naglagay. Di ka pwede lumagpas 1/5 th
kapag ikaw ay nagadopt ibang property regime. So pwede
ka maglagay donation propter nuptias.
Ang problema, ang antenuptial agreement, ang kelangan
lang mangyare ay in writing ito. Pero kapag nag-donation
propter nuptias ka at ito ay real property, it must be in a
public instrument both the donation and acceptance. So
paano mababago ang marriage settlement mo kung
makakaroon ka ng donation propter nuptias sa loob ng
iyong marriage settlement?
A: The marriage settlement will now have to comply with
the formalities of a donation. So it must be in a public
instrument. Acceptance must be contained in the marriage
settlement too.
Q: Can we donate encumbered property?
A: Yes. But the donee will not be liable for the obligation
secured by the donated property.
ARTICLE 86. – GROUNDS FOR REVOCATION OF A
DONATION PROPTER NUPTIAS
Q: What are the grounds?
A:
Art. 86. A donation by reason of marriage may be revoked
by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of
the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in
general.
Art. 81. Everything stipulated in the settlements or
contracts referred to in the preceding articles in
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be
rendered void if the marriage does not take place. However,
stipulations that do not depend upon the celebration of the
marriages shall be valid.
Q: Ground 1. – If the marriage is not celebrated or
judicially declared void ab initio except donations made
in the marriage settlements, which shall be governed by
Article 81. Let’s focus on that first exception. Why is this
an exception (except donations made in the marriage
settlements, which shall be governed by Article 81)?
PAGE 55 OF 175
A: Under Article 81, the donation propter nuptias contained
in the marriage settlement will be revoked by operation of
law if the marriage will not be celebrated.
It is not even revoked by operation of law, class. It is void. It
will be void, because there is no marriage that has taken
place.
Ground 1. – If the marriage is not celebrated or judicially
declared void ab initio except donations made in the
marriage settlements, which shall be governed by Article
81
We go now to the need to revoke under Ground 1. You must
file a petition to revoke the donation propter nuptias if the
marriage did not take place or the marriage is null and void.
Q: Would there be any additional exception to this rule?
Apart from what we have just mentioned?
A: In case of void marriages under Article 40 in relation to
Article 50. If the donee is in bad faith, then the donation
propter nuptias would be revoked by operation of law. But
this is not the only exception under Article 40 in relation to
Article 50 because remember, Article 50 makes Article 43,
paragraph 3 applicable to void marriages under Article 40.
And Article 43 paragraph 3 actually provides for two (2)
rules. The donation propter nuptias will remain to be valid
unless the donee acted in bad faith in which case it would
be revoked by operation of law. So, dalawang layers ‘yon.
First, donations in favor of the donee who is in good faith,
they will remain valid. Then, donations made in favor of
donees who acted in bad faith, they will be revoked by
operation of law.
So dito maglalaro ‘yung exception naten under Article 40 in
relation to Article 50. Pero meron pa.
Tignan ninyo, sa Ground 1, the law does not pay attention
to good faith or bad faith. The only thing that the law is
concerned with is that the marriage did not take place and
that the marriage is void ab inito. There is no mention of
good faith or bad faith on the part of the parties.
Let us move on to Grounds 2 and 3. We are taking them
together because they are somehow related.
Ground 2. – When the marriage takes place without the
consent of the parents or guardian, as required by law.
A marriage celebrated without parental consent when such
is required is voidable. Yet, we have Ground 2 provided
separately from Ground 3. Ground 3 speaks of the
annulment of a marriage where the donee acted in bad faith.
Apparently, lack of parental consent as a ground for
annulment would also provide for a separate ground to
revoke the When the marriage is annulled, and the donee
acted in bad faith. And, quite significantly, under Ground 2,
you do not need a decree of annulment. It is enough that you
establish that the marriage took place without parental
consent, and we are no concerned with good faith or bad
faith.
Q: Saan papasok ‘yung requirement for a decree of
annulment? Plus bad faith on the part of the donee?
A: Sa Ground 3.
Ground 3. – When the marriage is annulled, and the
donee acted in bad faith.
So, for Ground 3, you must have the deceree of annulment
and the donee must act in bad faith.
Q: But the problem is this is not the only complication
presented by Ground 3 because if you would compare
this with Article 43, paragraph 3, which Article 50
makes applicable to voidable marriages under Article
45, what do you notice?
A: Under Article 43, when the donee is in bad faith, the
donation is revoked by operation of law. However, in Article
86, it is only a ground for revocation.
So, these would be inconsistent provisions. There is a world
of a difference between having a donation revoked by
operation of law, and having the need to still file a petition
to revoke the donation.
Q: Which will prevail between these two?
A: Article 86 will prevail. Under the rules on statutory
construction, the latter provision is taken to be the latest
expression of the legislative intent. Therefore, it shall be
made to prevail.
Ground 4. – Upon legal separation, the donee being the
guilty spouse.
Ground 5. – If it is with a resolutory condition and the
condition is complied with.
Q: What is a resolutory condition?
A: The happening of the condition will extinguish the
obligation. But, in this case, the happening of the condition
extinguishes the right created by the donation.
Ground 6. – When the donee has committed an act of
ingratitude as specified by the provisions of the Civil
Code on donations in general.
Q: What are these acts of ingratitude?
A:
Article 765, NCC. – The donation may also be revoked at
the instance of the donor, by reason of ingratitude in the
following cases:
PAGE 56 OF 175
(1) If the donee should commit some offense against the
person, the honor or the property of the donor, or of his wife
or children under his parental authority;
(2) If the donee imputes to the donor any criminal offense,
or any act involving moral turpitude, even though he should
prove it, unless the crime or the act has been committed
against the donee himself, his wife or children under his
authority;
(3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the donor.
Sabi ko kanina, that after the marriage, the husband and
wife is no longer allowed to make donations to one another,
save for moderate gifts that may be given during family
rejoicing.
Q: What is moderate is relative. What do you mean by
this?
A: There is no absolute rule. It would depend on the
capacity or circumstances of the parties.
Q: What is a moderate gift for you?
A: I think a gift which would not exceed P10,000.
For example, abogado ka na. May sarili ka ng law firm. The
moderateness of the gift would now change.
Example: Kasi kung kumikita ka naman ng
P300,000/month, so P50,000 should still be moderate.
Q: Why are husbands and wives prohibited from
making donations to one another?
A: The primary reason is to prevent undue influence by the
more dominant spouse over the more submissive spouse.
Second, to protect third persons.
Q: Who are these third persons?
A: Any persons other than the spouses.
Q: How would this third person be prejudiced by the
donation made by one spouse in favor of the other?
A: When you speak of third persons here, we are referring
to creditors, we need to protect the creditors because of the
close relationship of the spouses, it is very easy for them to
transfer properties to one another to defeat the rights of the
creditors of the debtor-spouse. When we speak of creditors
here, we refer to creditors for the personal obligations of
that spouse. Personal meaning not chargeable to the
community property.
Because if there was no prohibition against this donation
between the spouses, the husband can transfer to the wife
by way of donation and since this is by gratuitous title, that
property becomes the separate property of the wife. As you
must know, separate properties of the spouses do not
answer for the personal obligations of one another.
This prohibition also extends to those people who are living
together as husband and wife without the benefit of
marriage for the same reason because there is potential
undue influence as well as potential to hide property to
defeat the right of creditors of one another.
You must also know that husband and wife are also
prohibited from selling to each other. This may be a
circumvention on the prohibition against donation. Also
because there is always the danger of undue influence.
The exception to this prohibition against selling to one
another would be if the spouses are governed by the regime
of separation of property. Either from the start of the
marriage or by virtue of a judicial decree obtained after the
marriage.
PROPERTY RELATIONS
There is only one aspect of marriage that may be the subject
of stipulation, that is, the property relations between them.
For you to be able to make such stipulation, you must draw
up a marriage settlement. That is why under the law, the
hierarchy of the rules that will govern the property
relations between the spouses are as follows:
1. Marriage Settlement;
2. In lieu thereof, the Family Code;
3. If the FC not applicable, then we will have local
customs.
Q: When will local customs ever come into play?
A: According to Dean Aligada, local customs will become
applicable if the parties were to execute a marriage
settlement and will simply provide that they are not
adopting the ACP regime. In such an instance, they do away
with the FC’s default property regime, leaving local customs
the chance to become applicable. It is unlikely that there will
be parties who would go to that extent. At least, that is how,
this might play out.
Q: What is the default property regime?
A: Absolute Community Property (ACP).
ABSOLUTE COMMUNITY PROPERTY (ACP)
Q: When will this commence?
A: The ACP shall commence at the precise moment of the
celebration of marriage.
Q: How do we interpret and apply this?
A: It means that the ACP shall commence on the day of the
marriage itself.
PAGE 57 OF 175
Q: If this is the default property regime, does it make
sense for the parties to still execute an antenuptial
agreement adopting the ACP regime?
A: No need for them to do so.
Q: No added benefit for them to execute an antenuptial
agreement if they are going to adopt the ACP regime
anyway?
A: Yes. It serves additional benefit.
Q: What would that be?
A: This allows them the opportunity to add to the
exceptions in the law as to what shall be treated as exclusive
property, and not part of the community property regime.
Q: Now, since they are executing an antenuptial
agreement anyway, and they are adopting this ACP
regime, can they modify the concept of the ACP regime
by providing for deferred effectivity? Is that possible?
A: No. They cannot defer its commencement because it is by
way of public policy that it should commence at the
celebration of the marriage.
Q: What constitutes ACP?
A: The property regime shall consist of all the property
owned by the spouses at the time of celebration of the
marriage or acquired thereafter.
From this definition, you can see how broad the scope of
community property is. Everything you own, prior to the
marriage, regardless of the source, everything you acquire
during the marriage, again regardless of the source, subject
only to the exceptions provided in the law, these will be
community property.
So halimbawa, nagmana ka prior to the marriage, that
would still form part of the community property. As
opposed to a situation where nagmana ka after, and not
prior to the marriage, that will now become your exclusive
property.
Even the engagement ring, that will become community
property. Kaya ganon kaimportante that you would be able
to include additional exceptions to what the law provides.
Tatandaan niyo ‘yung rule class ha, if it is acquired during
the marriage and not fall under the exception, then that will
now become part of the community property. We can
correlate this to the presumption that the law provides. You
only need to establish the date of acquisition as falling
within the marriage, for the presumption that it is
community in character to apply. If you want to dispute that
presumption, what do you do? You show that it falls under
the exceptions. If you are not able to show that it falls under
the exceptions, then the presumption remains. It is
community property.
Q: What are the exceptions to this rule?
A:
Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by gratuitous
title by either spouse, and the fruits as well as the income
thereof, if any, unless it is expressly provided by the donor,
testator or grantor that they shall form part of the
community property;
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community
property;
(3) Property acquired before the marriage by either spouse
who has legitimate descendants by a former marriage, and
the fruits as well as the income, if any, of such property.
Do not forget the first exception. The first exception
would be those treated as exclusive properties under
the antenuptial agreement. This should always be the
first exception.
FIRST EXCEPTION. – Property acquired during the
marriage by gratuitous title by either spouse, and the
fruits as well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor that
they shall form part of the community property.
Q: How can we acquire by gratuitous title?
A: Donation or through intestate and testate succession.
This includes legacies and devises. Pay attention as well to
the option given to the grantor to provide explicitly that
what was given by way of gratuitous title including the
fruits and income thereof would be part of the community
property.
Q: Who may be the grantee of such gratuitous
acquisition?
A: Can be either or both of the spouses. If it is either of the
spouses, it is easy to appreciate that the property given
either to the husband or the wife would now become the
exclusive property of either the husband or the wife.
Pero pwede rin naman that a donation or a testamentary
disposition is made in favor of the husband and the wife.
Q: Supposing this happens, the acquisition by
gratuitous title is made by the husband and the wife.
How should we treat the property?
A: It is exclusive property, but if the donation is made in
favor of the husband and wife jointly, they become co-
owners of that property. This co-ownership is not the same
as this property becoming community property. This will be
co-owned separate properties by the husband and the wife.
PAGE 58 OF 175
Sa marriage we have basically three entities. The third is the
community property, pero fictional ‘yan. Pero we are
recognizing it as an entity dahil there are properties that are
recognized as belonging to the community property and
there are obligations that are recognized as chargeable to
the community property. Essentially, community property
regime is co-ownership.
So you have this marriage, husband and wife, and then the
community property regime. This would have separate
patrimonies.
A patrimony is the totality of the rights and obligations and
properties of a person.
The husband would have his own patrimony, his rights and
obligations as well as his exclusive properties. The wife, too,
the same. She would have her own patrimony. Then we will
have the community property regime and its own
patrimony.
If the property is donated jointly to the husband and the
wife, then that property is co-owned. Pero it is a separate
patrimony of the husband and wife, who will be co-owners
of that separate co-owned properties. It will not be part of
the community property regime.
This will become significant when you are dealing with the
charges and obligations against the community property
because maiinsulate mo na etong co-owned separate
properties. Because the first properties that would be
answerable are the community properties. Secondary lang
ito. If the community properties are not sufficient, in which
case, husband and wife will be solidarily liable with their
separate properties. Doon, significant na siya.
SECOND EXCEPTION. – Property for personal and
exclusive use of either spouse. However, jewelry shall
form part of the community property.
Q: Can you give me an example of those for the personal
and exclusive use of either spouse?
A: Clothing would be the best example.
Q: What about jewelry? How do we treat it under the
law?
A: It is community property.
Q: What could be the reason excluding jewelry from the
scope of exclusive properties?
A: Jewelries are of great value. They are valuable.
THIRD EXCEPTION. – Property acquired before the
marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well
as the income, if any, of such property.
The law speaks of the presence of legitimate descendants
from a prior marriage. You have to note that the law does
not limit it to the presence of legitimate children.
Q: What are the charges that may be made against the
ACP?
A:
Art. 94. The absolute community of property shall be liable
for:
(1) The support of the spouses, their common children, and
legitimate children of either spouse; however, the support
of illegitimate children shall be governed by the provisions
of this Code on Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse for the
benefit of the community, or by both spouses, or by one
spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the family
may have been benefited;
(4) All taxes, liens, charges and expenses, including major
or minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made
during marriage upon the separate property of either
spouse used by the family;
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, or other
activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-
improvement;
(9) Antenuptial debts of either spouse other than those
falling under paragraph (7) of this Article, the support of
illegitimate children of either spouse, and liabilities
incurred by either spouse by reason of a crime or a quasi-
delict, in case of absence or insufficiency of the exclusive
property of the debtor-spouse, the payment of which shall
be considered as advances to be deducted from the share of
the debtor-spouse upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the
suit is found to be groundless.
If the community property is insufficient to cover the
foregoing liabilities, except those falling under paragraph
(9), the spouses shall be solidarily liable for the unpaid
balance with their separate properties.
PAGE 59 OF 175
One of the consequences of having the property classified as
community property is that the same will be under the joint
administration of the spouses. This is a departure from the
previous rule under the Civil Code where only the husband
had the power of sole administration. It is likewise provided
under the law that any disposition or encumbrance under
the community property must be with the consent of both
spouses. Absent the consent of either one, then such
disposition or encumbrance will be null and void. Just the
same, the law further provides that the transaction while it
may be void as an encumbrance or disposition may
nonetheless be considered as a continuing offer that may be
accepted by the non-consenting spouse at any time before
the offer is withdrawn.
The effect of such acceptance is to give rise to a perfectly
valid transaction, either a disposition or an encumbrance.
Now, this does not amount to a ratification of the previously
void transaction. Because you cannot ratify a void
agreement.
Another reason why this does not amount to a ratification
is that we do not retroact the effect of the acceptance to the
date of the original void transaction. You will only get the
valid transaction from the time there is acceptance by the
non-consenting spouse.
Q: How should the consent be given? Should it always
be explicit? Or express?
A: The Supreme Court in the case of Mormont Hotel vs.
Guiang, said that it is enough that the husband was a
witness to the transaction for us to say that he gave his
consent because he knew about the transaction, and he did
not object. So, by all indications, he consented to it. He
cannot later on claim that the transaction was void for lack
of his consent.
Mormont Hotel vs. Guiang
Article 165 and 172 state the general principle under our
civil law, that the wife may not validly bind the conjugal
partnership without the consent of the husband, who is
legally the administrator of the conjugal partnership. In
this particular case, however, as noted earlier, the
second Memorandum of Agreement, although
ostensibly contracted solely by Aurora Guiang with
Maris Trading, was also signed by her husband
Federico, as one of the witnesses thereto. This
circumstance indicates not only that Federico was
present during the execution of the agreement but also
that he had, in fact, given his consent to the execution
thereof by his wife Aurora. Otherwise, he should not
have appended his signature to the document as
witness. Respondent spouses cannot now disown the
second Memorandum of Agreement as their effective
consent thereto is sufficiently manifested in the document
itself. (Marmont Resort Hotel v. Guiang, G.R. No. 79734,
[December 8, 1988], 250 PHIL 372-383)
There are situations where the consent of the other
spouse may not be secured for any reason. Maaring he
is absent or he is incapable of giving his consent, then
what would be the option of the other spouse? Her
option is to go to court to secure a decree or an order
allowing the disposition or encumbrance.
Will this take time? Alam naten na litigation tumatagal ng
taon. In which case, the disposition or encumbrance is
defeated. Tatandaan niyo na you will only think to dispose
of your property when there is a pressing need. Now, in this
situation, the proceeding to secure the consent from the
court will be governed by summary procedure. The
proceeding will be expedited.
CHARGES THAT MAY BE MADE TO THE COMMUNITY
PROPERTY UNDER ARTICLE 94, FC
Art. 94. The absolute community of property shall be liable
for:
(1) The support of the spouses, their common children, and
legitimate children of either spouse; however, the support
of illegitimate children shall be governed by the provisions
of this Code on Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse for the
benefit of the community, or by both spouses, or by one
spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the family
may have been benefited;
(4) All taxes, liens, charges and expenses, including major
or minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made
during marriage upon the separate property of either
spouse used by the family;
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, or other
activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-
improvement;
(9) Antenuptial debts of either spouse other than those
falling under paragraph (7) of this Article, the support of
illegitimate children of either spouse, and liabilities
incurred by either spouse by reason of a crime or a quasi-
delict, in case of absence or insufficiency of the exclusive
property of the debtor-spouse, the payment of which shall
PAGE 60 OF 175
be considered as advances to be deducted from the share of
the debtor-spouse upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the
suit is found to be groundless.
If the community property is insufficient to cover the
foregoing liabilities, except those falling under paragraph
(9), the spouses shall be solidarily liable for the unpaid
balance with their separate properties.
Q: What does it mean to be among these charges?
A: It means that the creditors corresponding to these
obligations may run after community property, and should
community property be insufficient, then can run after the
personal or separate properties of the spouses who shall be
solidarily liable. Save for those personal obligations
chargeable to the community property.
Personal Obligations:
1. Support of the illegitimate children;
2. Antenuptial debts contracted by either spouse
prior to the marriage, which did not redound to the
benefit of the family;
3. Liabilities arising from delicts or quasi-delicts.
FIRST CHARGE: Pertains to the support of the spouses,
common children, and legitimate children of either spouse.
The law also provides that the support of illegitimate
children may be charged to the community property as part
of the chargeable personal obligations of the spouses. “One
of the trinity.”
The trinity or trifecta:
1. Support of the illegitimate children;
2. Antenuptial debts contracted by either spouse
prior to the marriage, which did not redound to the
benefit of the family;
3. Liabilities arising from delicts or quasi-delicts.
Support
Important Qualification: Remember, under the law, a
person is responsible not just for the support of his children
and descendants, a person is also liable for the support of
his legitimate ascendants, descendants, whether legitimate
or illegitimate, brothers and sisters, whether legitimately or
illegitimately related.
Pero kung makikita niyo, there is no mention of these
other kinds of support sa charges under Article 94. So
how do we treat them? We need to treat them in relation
to Article 94 as well. These should also be personal
obligations that may be charged just like the obligations to
support legitimate children. But there is a twist.*
The support of illegitimate children may be charged to
the community property in case of absence or
insufficiency of separate property. There are two
conditions: (1) insufficiency; or (2) absence.
But when it comes to the support of legitimate
ascendants, descendants, whether legitimate or
illegitimate, brothers and sisters, whether legitimately
or illegitimately related, you can only charge these to
the community property if there is no separate
property in the name of the debtor spouse. Mere
insufficiency would not be enough. It must be that he
does not have any separate property before you can charge
the community property. Mas mataas ‘yung bar that must
be hurdle. In the case of these latter obligations to support.
I hope that is clear.*
Debts and Obligations Contracted During Marriage
Let’s tackle the debts and obligations contracted during the
marriage.
Permutations ng debts and obligations naten, naglalaro ‘yan
sa with consent, without consent, with authority, and with
benefit to the family.
Now, of course it goes without saying that if the obligation
was contracted by both spouses or by one spouse with the
consent of the other then that ought to be enough. Di na
naten titignan kung may benefit ba or wala because both of
them have consented. So the obligation should be properly
chargeable to the community property.
But it is a different case if we are only dealing with one
spouse and that spouse is acting either because he is a
designated administrator-spouse or even without such
designation, but he is acting presumably on behalf of the
interest of the family.
In this latter case, since wala tayong consent nung other
spouse, what do we look for? We look for the benefit to
the family.
Now, if that can be supplied, even if the other spouse has not
consented, then the obligation contracted by only one of the
spouses, may be charged to the community property.
How do we know that the obligation was contracted for
the benefit of the family? You have to look at the
circumstances. The Supreme Court in the case of Ayala
provided for a simple guideline. The Supreme Court said
that if the obligation is somehow related to the livelihood,
profession, or business of either of the spouses, then we can
presume that the same was meant for the benefit of the
family. The reason why either spouse is trying to earn a
living is to raise and support the family. So if may kinalaman
yan sa profession or sa business, then we can presume that
such benefit exists.
PAGE 61 OF 175
Conversely, if the transaction is so far removed from one’s
profession, then we cannot presume that it is intended for
the benefit of the family.
Case in point of Ayala, where the husband agreed to act as a
guarantor for a friend. The husband is an ordinary
employee he is not in the business of providing a guarantee
or acting as a surety.
Eto kasing mga nangyayare sa opisina kung saan ‘yung
kaopisina mo, manghihiram sa employer. Gagawa
promissory note. The employer would require a co-maker.
Ikaw, lalapitan ka, at pipirma ka naman kasi nahihiya ka
tumanggi. But you have to remember that signing as a co-
maker is very significant because it means that you are
solidarily liable. At anong benefit sayo? Wala. Wala kang
kikitain dito.
Next scene, wala na kaopisina mo. You are now left with the
obligation, at ikaw na ngayon ang sinisingil. And since you
are solidarily liable, the director can go directly against you.
Pero since community property ang property regime mo
with your spouse, malamang kesa sa hindi wala kang
separate property, kasi lahat magiging community property
eh. So anong gagawin ng creditor? Hahabulin niya ngayon
‘yung community property. Imagine class, ‘yung pinundar
mong property para sa pamilya mo, hinahabol na ngayon ng
creditor for an obligation that you had nothing to do with.
So what can be the possible defense here? Possible
defense would be, this cannot be charged to the community
property. Unang sasabihin ng asawa mo, eh wala naman
akong consent dyan eh. So kung wala kang consent, you
have to show that may benefit ‘yan sa pamilya namen. Eh
anong benefit niyan sa pamilya namen? Wala. Kasi walang
kinalaman ‘yan sa pamilya namen eh. He was simply
accommodating his co-employee. There being no benefit,
then it cannot be charged against the community property.
Would that mean that the obligation of the husband is
null and void as a guarantor or a surety? The answer is
No. It is still valid. ‘Yun nga lang, the creditor will have to be
content with whatever separate property the husband has
kasi that is now a personal obligation of the husband. It is
not an obligation chargeable to the community property. As
personal obligations go, personal obligations of either
spouses, they are not chargeable to the community
property, save for those three exceptions:
1. Support of the illegitimate children;
2. Antenuptial debts contracted by either spouse
prior to the marriage, which did not redound to the
benefit of the family;
3. Liabilities arising from delicts or quasi-delicts.
All other personal obligations, that would have to be
shouldered by the debtor-spouse, and when the debtor-
spouse does not have properties to his name, sorry na lang
‘yung creditor. Wala siyang ibang hahabulin.
Taxes and Liens
If you would notice, all taxes and liens on the community
property will have to be shouldered by the community
property regime. But when it comes to the taxes and
expenses for mere preservation of separate property, this
will only be chargeable if such separate property is used by
the family. Ang kaibahan sa ACP regime, ‘yung separate
property ng spouses, hindi ‘to automatically subject to
usufruct ng community property unlike in conjugal
partnership of gains, it goes without saying that since the
conjugal partnership is entitled to the profits of the separate
properties of the spouses, the conjugal partnership enjoys
usufruct over the separate properties of the spouses. Pero
sa ACP regime, walang ganyang provision. The separate
property’s income will belong to the separate property
owner spouse. Consequently, the charges for the taxes and
expenses of preservation, pwede mo lang ‘yan icharge sa
community property if the said separate property is being
used by the family. Otherwise, it should be the owner-
spouse who should be shouldering the same.
Expenses for Professional or Vocational Course (self-
explanatory)
Antenuptial Debts (one of the trinity or personal
obligations)
The value of what is donated or promised by both of the
spouses in favor of their common legitimate children. Here,
just pay attention to the nuances. The promise shall be
made by both spouses and must be made in favor of
common legitimate children.
Antenuptial debts of either spouse other than those falling
under paragraph 7. Not inuring to the benefit of the family.
Expenses of litigation between the spouses and the suit
is found to be groundless
Pay attention to the last paragraph of Article 94, because it
said that if the community property is insufficient to cover
the foregoing liabilities, except those falling under
paragraph 9, the spouses shall be solidarily liable for the
unpaid balance with their separate properties. So, the
spouses, they will be solidarily liable for whatever remains
of the obligations that cannot be satisfied by the community
property.
Exception: Personal obligations or the trifecta of personal
obligations. These cannot be charged to the personal
properties of the spouses.
How will this work? After paying support, taxes, there
would still be a balance of the unpaid obligations chargeable
to the community property. Kabilang na dito kunwari ‘yung
support of illegitmate children of the husband. It is only the
wife who has separate properties. The husband does not
have any property anymore. But the law says they will be
solidarily liable for the unpaid obligations of the community
property.
PAGE 62 OF 175
So what does it mean? It means that the creditors can go
after either the husband or wife on the account of their
solidary liability. But in all likelihood, since it is only the
wife who has separate properties, they will now only go
after the wife.
So, can the wife say, “I can only be made liable for half of
the unpaid balance. Kasi dalawa dapat kami ni husband
liable dito. Dahil solidary liability?” No, the wife cannot
say that because by its nature, if there is solidary obligation,
then anyone of the debtors may be made liable for the entire
obligation. So when the creditors run after the wife, the wife
will have to pay the entire unpaid obligation.
Would that be unfair to the wife? No, because in the
solidary liability, the paying solidary obligor will now have
recourse against the co-solidary obligor, in this case the
husband. So ang gagawin ng wife, after paying, she will now
go collect from the husband. But it is another thing whether
or not makaka-collect pa siya eh kung wala na ngang pera si
husband.
But, in any event, the unpaid obligation, that may be
enforced against her, in her personal capacity, and as the
solidary co-debtor of her husband, cannot include the
personal obligation of the husband for the support of his
illegitimate children. Hindi ‘to kasama doon sa mga
obligations na pwede ieenforce against the husband and the
wife, and their separate properties.
Anong mangyayare sa support ng illegitimate children?
It will remain unsatisfied kung wala ng pera si husband at
wala na rin’yung community property. Kase may bar. ‘Yung
bar is provided by the last paragraph of Article 94.
Is the ACP co-terminus with the marriage itself? Would
the termination also signal the termination of the
marriage? Or will the termination of the marriage also
signal the termination of the community property?
The latter one is correct. If the marriage is terminated, then
it will necessarily bring about the termination of the
community property. But the termination of the community
property will not necessarily mean the termination of the
marriage because it may happen that the parties in the
course of the marriage, may decide to have a complete
separation of property regime.
Of all the property regime, allowed by law, it is only the
separation of property regime which may be adopted after
the marriage. Pwede ito i-adopt at the start walang
problema, pero tatandaan niyo, the rule is, ‘yung mga
property regime naten, nagco-commence ‘yan at the precise
moment when the marriage is celebrated.
Exception is the separation of property regime. Kasi pwede
rin siya mag-commence after the marriage by obtaining a
judicial decree of separation of property.
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Article 134 to 138.
Under Article 99, it is provided that the absolute community
of property will terminate upon the death of either spouse
when there is a decree of legal separation, when the
marriage is annulled or declared void and in case of judicial
separation of property, during the marriage under Articles
134 to 138.
Art. 134. In the absence of an express declaration in the
marriage settlements, the separation of property between
spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may
either be voluntary or for sufficient cause. (190a)
Art. 135. Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to
a penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the
latter or failed to comply with his or her obligations to the
family as provided for in Article 101;
(5) That the spouse granted the power of administration in
the marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is
highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the
decree of judicial separation of property. (191a)
Art. 136. The spouses may jointly file a verified petition
with the court for the voluntary dissolution of the absolute
community or the conjugal partnership of gains, and for the
separation of their common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the
filing thereof. The court shall take measures to protect the
creditors and other persons with pecuniary interest. (191a)
PAGE 63 OF 175
Art. 137. Once the separation of property has been decreed,
the absolute community or the conjugal partnership of
gains shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of
property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and
their children. (192a)
Art. 138. After dissolution of the absolute community or of
the conjugal partnership, the provisions on complete
separation of property shall apply.
If the marriage is terminated by death, and we say that
this brings about the termination of the community
property, how should we proceed with the dissolution
and liquidation of the community property? What will
happen is that you will now liquidate the community
property in the same proceeding for the settlement of the
estate of the deceased spouse.
Why do we do that? We do that because the estate of the
deceased spouse cannot proceed to settlement unless it is
determined how much the interest of the deceased spouse
is in the community property because that will form part of
his estate.
Hence, his interest in the community property plus his
separate properties less his obligations that would become
his net estate. Starting off point naten would be the
liquidation of the community property.
What would be the consequence if marriage is
terminated by death but there is not settlement of
estate that is intiated? Ibig sabihin ba nito, pati ‘yung
ating ACP, ay mabibinbin din ang liquidation? The
answer is No. Because the surviving spouse may always
choose to dissolve the ACP, separately from the settlement
of the estate should there be no settlement proceeding
commenced within 1 year from the death of the deceased
spouse.
Bakit kelangan etong gawin? Because there are
consequences is she will not do so. If she does not do so,
then any transaction, any disposition or encumbrance
involving the community property, will be null and void.
Also, should the surviving spouse remarry without the ACP
or the former marriage being liquidated, the marriage will
be automatically be governed by the regime of separation of
property which again would now constitute an exception.
Exception nanaman ‘to class don sa ating rule na it is the
community property which is the default property regime if
the parties will not execute an antenuptial agreement
choosing a different property regime.
Default Property Regime: ACP.
Except if the parties should execute a marriage settlement
adopting a different property regime. Another exception if
there was no prior marriage dissolved by death and there is
no liquidation of the community property regime in that
prior marriage before the celebration of the subsequent
marriage, because in this case, the subsequent marriage will
be governed by the complete separation of property regime.
The death that we speak of here under Article 99, di naman
tayo limited doon sa actual death. Presumptive death will
also apply. Presumptive death refers to the general
provisions on the presumption of death for all purposes
including the opening of succession. Bakit ko dinadala sa
opening of succession because it will require the liquidation
of the community property.
Second cause: When there is a decree of legal separation.
Remember if there is a decree of legal separation, then the
parties will be governed by the complete separation of
property regime. Also, should there be reconciliation, the FC
gives them the option to revive the former property regime
and to determine what would be contributed anew to the
property regime.
Third cause: When the marriage is annulled or declared
void. Isa ito sa mga pinanghahawakan ng mga advocates of
the position that there is a void marriage created under
Article 40.
In the case of Valdes vs. RTC, they were saying that this is
further proof that the law indeed intended Article 40 to
provide for a separate kind of a null and void marriage.
Otherwise, we won’t have any reason to apply Article 99,
paragraph 3 when it comes to void marriages.
Valdes vs. RTC
The first paragraph of Article 50 of the Family Code,
applying paragraphs (2), (3), (4) and (5) of Article 43,
relates only, by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40 of the
Code, i.e., the declaration of nullity of a subsequent
marriage contracted by a spouse of a prior void marriage
before the latter is judicially declared void. The latter is a
special rule that somehow recognizes the philosophy and
an old doctrine that void marriages are inexistent from the
very beginning and no judicial decree is necessary to
establish their nullity. In now requiring for purposes of
remarriage, the declaration of nullity by final judgment of
the previously contracted void marriage, the present law
aims to do away with any continuing uncertainty on the
status of the second marriage. It is not then illogical for the
provisions of Article 43, in relation to Articles 41 and 42, of
the Family Code, on the effects of the termination of a
subsequent marriage contracted during the subsistence of
a previous marriage to be made applicable pro hac vice. In
all other cases, it is not to be assumed that the law has also
meant to have coincident property relations, on the one
hand, between spouses in valid and voidable marriages
(before annulment) and, on the other, between common-
law spouses or spouses of void marriages, leaving to ordain,
in the latter case, the ordinary rules on co-ownership
PAGE 64 OF 175
subject to the provision of Article 147 and Article 148 of the
Family Code. (Valdes v. RTC, Br. 102, Quezon City, G.R. No.
122749, [July 31, 1996], 328 PHIL 1289-1304)
Do you understand why? Because as you must know, the
general rule is, if you have a marriage that is void, then you
do not have a property regime.
What do you have? Co-ownership under Article 147 or
148. So, generally, you do not have any occasion to dissolve
a property regime on the ground that the marriage has been
declared void. Kasi nga walang property regime. You only
have co-ownership.
Pero dahil kay Article 40 in relation to Article 50, which
makes Article 43 applicable, which in turn presupposes
the existence of a community property or conjugal
partnership of gains, Article 99, paragraph 3 now
makes sense. We are now limiting this provision calling
for the dissolution of the community property because
of the nullity of a marriage to those marriages null and
void only under Article 40. Clear?*
Lastly, in case of judicial separation of property during the
marriage under Articles 134 to 138.
Another important point that you must remember, kasi
kapag minsan, akala ng mga laymen na once they separate
from their spouses and they lead separate lives. Then that
is it. That the other spouse would no longer have any claim
on their properties. But they are mistaken. The separation
in fact by the spouses does not affect the community
property. The community property subsists and kung ano
man ‘yung mga napundar mo, kalahati agad non kanya.
Hindi pa ‘yon mana ha. Kalahati ‘yung kanya because that
would be his share in the community property. Then doon
sa kalahati na share mo naman supposedly, magmamana pa
siya as your spouse.
Why? Kasi nakipaghiwalay ka lang sakanya in fact. Hindi ka
kumuha ng decree of legal separation. Or kahit sana
humingi ka lang ng separation of property decree. Kahit
‘yon man lang.
Apart from that, these would be the exceptions to that rule
that the separation in fact between the spouses would not
affect the community property.
Natatandaan niyo ‘yung sinabe ko sainyo why is it
important to have that sanction from the court when
you filed a petition for legal separation to finally live
separately? It is because under the law if you refuse to stay
in the conjugal abode without any justifiable reason, then
you will not be entitled to be supported. That makes it clear
that you are entitled to be supported.
The rest of the exceptions here requiring consent to which
would authorize you to go to court to obtain the consent of
the court in lieu of the consent of the other spouse in a
summary proceeding we have discussed that.
And then, this is also important. This allows the spouse who
has stayed put to obtain the authority to administer and
even encumber the property of the spouse who has left.
So, when you encumber, it might not be the same as
disposition. When you encumber, you also put that property
at the risk of disposition. Encumbrance can only mean
subsequent foreclosure.
LIQUIDATION
You will have a list for the ACP properties. The husband’s
properties. The wife’s properties.
Then you go through the debts and obligations, and you
will now use Article 94 to classify them. Would this be
chargeable to the community property? Would this be
personal obligations of either the husband or the wife?
If yes, further qualify it. Would this be a chargeable
personal obligation under Article 94 paragraph 9, yung
ating trifecta? Or if not, then this would just be personal
obligations of either the husband or the wife.
After that, you will now pay off the obligations using first, of
course, the community properties. And then whatever
remains, these will be now divided between the spouses.
Pero syempre, pwede rin mangyare na kulang pa nga ‘yon.
In which case, the personal properties of the spouses would
now have to be touched. Save for the personal obligations
that we have under Article 94. ‘Yung ating trifecta.
Pero don tayo sa sitwasyon na enough ‘yung community
property at may matitira pa. Paano naten ‘to hahatiin?
Hahatiin naten equally. Unless they have provided a
different proportion in the marriage settlement. Malamang
naman wala silang pinrovide na ibang proportion. Pero if
meron ganong provision, ayon ‘yung susundin naten.
Saan papasok ‘yung forfeiture ng net profits? Papasok
‘to depende sa grounds for terminating the community
property.
Let’s say we terminated because of nullity, under Article 40,
papasok tayo sa Article 43, meron tayong forfeiture doon.
What can be forfeited? Only the share in the net profits.
And what is net profits ba? Sabi dito sa Article 102, the net
profits would be the increase in value between the market
value of the community property at the time of celebration
of marriage and at the time of its dissolution.
In Quiao vs. Quiao, this was interpreted by the Supreme
Court as simply the difference between the value of the
community property at the beginning of the marriage and
the value of the community property at the end of the
marriage.
Quiao vs. Quiao
PAGE 65 OF 175
Moreover, as to the definition of "net profits," we cannot but
refer to Article 102 (4) of the Family Code, since it expressly
provides that for purposes of computing the net profits
subject to forfeiture under Article 43, No. (2) and Article 63,
No. (2), Article 102 (4) applies. In this provision, net
profits "shall be the increase in value between the
market value of the community property at the time of
the celebration of the marriage and the market value at
the time of its dissolution."
Let us now discuss the difference in the processes between
the absolute community regime and the conjugal
partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community,
the husband and the wife becomes joint owners of all the
properties of the marriage. Whatever property each spouse
brings into the marriage, and those acquired during the
marriage (except those excluded under Article 92 of
the Family Code) form the common mass of the couple's
properties. And when the couple's marriage or community
is dissolved, that common mass is divided between the
spouses, or their respective heirs, equally or in the
proportion the parties have established, irrespective of the
value each one may have originally owned.
Under Article 102 of the Family Code, upon dissolution of
marriage, an inventory is prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each; then the debts and obligations of the
absolute community are paid out of the absolute
community's assets and if the community's properties are
insufficient, the separate properties of each of the couple
will be solidarily liable for the unpaid balance. Whatever is
left of the separate properties will be delivered to each of
them. The net remainder of the absolute community is its
net assets, which shall be divided between the husband and
the wife; and for purposes of computing the net profits
subject to forfeiture, said profits shall be the increase in
value between the market value of the community property
at the time of the celebration of the marriage and the market
value at the time of its dissolution.
Applying Article 102 of the Family Code, the "net profits"
requires that we first find the market value of the properties
at the time of the community's dissolution. From the totality
of the market value of all the properties, we subtract the
debts and obligations of the absolute community and this
result to the net assets or net remainder of the properties of
the absolute community, from which we deduct the market
value of the properties at the time of marriage, which then
results to the net profits.
Granting without admitting that Article 102 applies to the
instant case, let us see what will happen if we apply Article
102:
(a) According to the trial court's finding of facts, both
husband and wife have no separate properties, thus, the
remaining properties in the list above are all part of the
absolute community. And its market value at the time of the
dissolution of the absolute community constitutes the
"market value at dissolution."
(b) Thus, when the petitioner and the respondent finally
were legally separated, all the properties which remained
will be liable for the debts and obligations of the
community. Such debts and obligations will be subtracted
from the "market value at dissolution."
(c) What remains after the debts and obligations have
been paid from the total assets of the absolute community
constitutes the net remainder or net asset. And from such
net asset/remainder of the petitioner and respondent's
remaining properties, the market value at the time of
marriage will be subtracted and the resulting totality
constitutes the "net profits."
(d) Since both husband and wife have no separate
properties, and nothing would be returned to each of them,
what will be divided equally between them is simply the
"net profits." However, in the Decision dated October 10,
2005, the trial court forfeited the half-share of the
petitioner in favor of his children. Thus, if we use Article 102
in the instant case (which should not be the case), nothing
is left to the petitioner since both parties entered into their
marriage without bringing with them any property.
On Conjugal Partnership Regime:
Before we go into our disquisition on the Conjugal
Partnership Regime, we make it clear that Article 102 (4) of
the Family Code applies in the instant case for purposes
only of defining "net profit." As earlier explained, the
definition of "net profits" in Article 102 (4) of the Family
Code applies to both the absolute community regime and
conjugal partnership regime as provided for under Article
63, No. (2) of the Family Code, relative to the provisions on
Legal Separation.
Now, when a couple enters into a regime of conjugal
partnership of gains under Article 142 of the Civil Code,
"the husband and the wife place in common fund the fruits
of their separate property and income from their work or
industry, and divide equally, upon the dissolution of the
marriage or of the partnership, the net gains or benefits
obtained indiscriminately by either spouse during the
marriage." From the foregoing provision, each of the couple
has his and her own property and debts. The law does not
intend to effect a mixture or merger of those debts or
properties between the spouses. Rather, it establishes a
complete separation of capitals.
Considering that the couple's marriage has been dissolved
under the Family Code, Article 129 of the same Code applies
in the liquidation of the couple's properties in the event that
the conjugal partnership of gains is dissolved.
PAGE 66 OF 175
In the normal course of events, the following are the steps
in the liquidation of the properties of the spouses:
(a) An inventory of all the actual properties shall be made,
separately listing the couple's conjugal properties and their
separate properties. In the instant case, the trial court
found that the couple has no separate properties when they
married. Rather, the trial court identified the following
conjugal properties, to wit: x x x
(b) Ordinarily, the benefit received by a spouse from the
conjugal partnership during the marriage is returned in
equal amount to the assets of the conjugal partnership; and
if the community is enriched at the expense of the separate
properties of either spouse, a restitution of the value of such
properties to their respective owners shall be made.
(c) Subsequently, the couple's conjugal partnership shall
pay the debts of the conjugal partnership; while the debts
and obligation of each of the spouses shall be paid from
their respective separate properties. But if the conjugal
partnership is not sufficient to pay all its debts and
obligations, the spouses with their separate properties shall
be solidarily liable.
(d) Now, what remains of the separate or exclusive
properties of the husband and of the wife shall be returned
to each of them. In the instant case, since it was already
established by the trial court that the spouses have no
separate properties, there is nothing to return to any of
them. The listed properties above are considered part of the
conjugal partnership. Thus, ordinarily, what remains in the
above-listed properties should be divided equally between
the spouses and/or their respective heirs. However, since
the trial court found the petitioner the guilty party, his share
from the net profits of the conjugal partnership is forfeited
in favor of the common children, pursuant to Article 63 (2)
of the Family Code. Again, lest we be confused, like in the
absolute community regime, nothing will be returned to the
guilty party in the conjugal partnership regime,
because there is no separate property which may be
accounted for in the guilty party's favor.
In the discussions above, we have seen that in both
instances, the petitioner is not entitled to any property at
all. Thus, we cannot but uphold the Decision dated October
10, 2005 of the trial court. However, we must clarify, as we
already did above, the Order dated January 8, 2007. (Quiao
v. Quiao, G.R. No. 176556, [July 4, 2012], 690 PHIL 220-249)
Now, it will benefit the guilty spouse or the spouse in bad
faith, if there was property at the beginning. Because ang
ibig sabihin non, the value of the property at the end of the
marriage, will not be automatically be the value of the net
profits of the community property.
Formula: Value of the properties at the END less value
of the properties at the BEGINNING = NET PROFITS.
Example #1: They both started from scratch, so wala silang
properties at the beginning of the marriage, and then at the
end of the marriage, meron silang P10M. So para makuha
mo ‘yung net profits, idededuct mo ‘yung P10M sa value ng
properties at the beginning.
Value of the
Property
Beginning of the Marriage 0 kapag ang void marriage mo is under Article 40. Mas
End of the Marriage P10M
Net Profits P10M
Here, P10M less 0 equals P10M. The net profit is P10M,
which is the same as the value of the property at the end of
the marriage. In which case, what will happen is that the
guilty spouse or the spouse in bad faith will now be
forfeiting his share in the entire community property value
existing at the end of the marriage. He is walking away
without anything.
Example #2: They had some properties at the beginning.
May P5M sila from the beginning.
Value of the
Property
Beginning of the Marriage P5M
End of the Marriage P10M
Net Profits P5M
Here, P10M less P5M equals P5M. The net profit is P5M. So
‘yung forfeiture ni husband dito ay only with regard to the
P5M net profits. That means magsshare parin siya doon sa
P5M na pwede nating itrato na “capital,” ‘yung difference.
He will walk away with P2.5M at least kase ‘yung forfeiture
nga lang niya, doon lang sa net profits na P5M. All because
they had properties at the beginning.
Sa Conjugal Partnership of Gains (CPG) naman, wala tayong
provision saying that properties existing at the time of
marriage will become conjugal partnership. At the most, the
income earned by the separate properties of the spouses,
that will become conjugal partnership.
In all likelihood, at the beginning of marriage governed by
CPG, wala tayong properties agad. Magkakaroon lang after
the marriage. Unless doon sa marriage settlement, they will
provide that these properties will be conjugal properties, in
which case, sa umpisa pa lang meron na silang conjugal
properties. In all likelihood, they will not do so, kaya wala
tayong conjugal properties at the beginning. Kaya ang
mangyayare nyan, kapag nadissolve ‘yung conjugal
partnership and there is a provision for forfeiture,
malamang kesa sa hindi, the guilty spouse would not be
walking away with anything. Kase, yung value ng conjugal
property at the beginning is likely to be zero. Kaya kapag
minus mo ‘to sa conjugal property existing at the end of the
marriage, the net profits would be equivalent to the value of
the property existing at the end. In which case, the
PAGE 67 OF 175
forfeiture will now pertain to the value of whatever remains
of the conjugal property at the end of the marriage. So, zero
ngayon si guilty spouse.
Next step in the liquidation proceeding: Presumptive
legitimes of the common children shall be delivered upon
partition in accordance with Article 51. We have established
that when it comes to void marriages, and if cinorelate mo
‘to sa Article 99, paragraph 3, mag-aaply lang talaga ‘to is
maliwanag ngayon basehan naten.
Then paragraph 6, unless otherwise agreed upon by the
parties in the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall be
adjudicated to the spouse with whom majority of the
common children choose to remain. The provisions on legal
separation have titled the scale on favor of the innocent
spouse by providing that to the innocent spouse goes the
custody of minor children. When we apply this, that means
the innocent spouse will be getting the conjugal dwelling
and the lot on which it is situated.
Now, the law is not yet very clear in those situations, kung
saan pinaguusapan lang naten community property ay
‘yung conjugal dwelling. So paano ‘yung share ng guilty
spouse. Well, may forfeiture naman, so forfeited na ‘yan. In
which case talagang wala na siyang say dyan. Pero kung
halimbawa may iba pang properties, how should we
designate the sharing? The law is not very clear on how this
would be carried out.
Thus far, what we have is simply this, saying that the
conjugal dwelling and the lot on which it is situated should
go to the spouse with whom the majority of the common
children choose to remain.
Siguro, kung wala tayong application for forfeiture, ang
pwede mangyare dyan would be, you will make the
partition so that the value of the conjugal dwelling and the
lot should already cover the share that should pertain to the
spouse with whom majority of the common children choose
to remain.
Halimbawa, kung ‘yung house and lot ay worth P10M and
ang pinaghahatian naten is P20M, that means, kung sakanya
mo binigay ‘yung house and lot, yan na ‘yung P10M niya. All
other properties constituting the other half of the total
value of the properties, that should go to the other spouse.
Kase otherwise, unfair naman.
CONJUGAL PARTNERSHIP OF GAINS (CPG)
This is more of a partnership. You are supposed to be
contributing and partaking in the profits earned from your
contribution.
Ano pwede mo icontribute sa conjugal partnership?
Well apart from the properties, you can also contribute your
labor, so whatever you earn from your labor or
employment, that would be conjugal property. Labor also
includes anything that you produce with your hands.
What sets conjugal partnership apart from the other 2
property regimes is that, sabe naten ‘yung ACP is a property
regime that may be adopted even though there is no
marriage settlement between the parties. Separation of
property is a property regime that may be adopted even
after the celebration of the marriage.
CPG is the only property regime that you must adopt in a
marriage settlement in order for you property relations to
be governed by it. It is the only way that it can apply to your
property relations.
Article 106 tells us what transpires in a CPG.
Art. 106. 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 separate properties
and those acquired by either or both spouses through their
efforts or by chance, and, upon dissolution of the marriage
or of the partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally between
them, unless otherwise agreed in the marriage settlements.
The corresponding rules previously discussed under the
ACP on joint administration, need for consent, and lack of
effect of separation in fact on the conjugal partnership, the
same rationalization and interpretation will be applicable.
What are considered to be the separate properties of
each spouse?
vague how we are supposed to treat a property that is
acquired with the separate money of either spouse
governed by the ACP.
Halimbawa nagmana sila, pagnagmana ka minsan pera
ipapamana sayo, so kapag nagmana ka ng pera at you are
covered by the ACP regime, that money will be your
exclusive property. And then bumili ka ngayon ng kotse o
lupa.
How should you treat that acquisition? Would that be
community property because acquired during the
marriage ro should that be separate property since we
have to trace the source of the purchase to the money
which you own exclusively? The law is not clear. The law
does not say so. In fact, the law is leaning to treating the
same as community property. If only because of the
considerations acquired during the marriage and it does not
fall under the exceptions. Pero pagdating naten sa CPG, wala
tayong ganyang vagueness. Kasi nakaprovide talaga siya sa
Article 109, paragraph 4. It will be separate property.
Art. 109. The following shall be the exclusive property of
each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only one of the
spouses; and

First: That which is brought to the marriage as his or her (4) That which is purchased with exclusive money of the
own. Wala tayong ganyang provision sa ACP. This is a wife or of the husband.
recognition of the patrimony of either the wife or the
husband existing prior to the marriage and subsisting even
throughout the marriage, walang conversion na
nangyayare.
Second: That which is acquired during marriage by
gratuitous title. If your children will be governed by the
CPG, then it does not matter when you die. Dahil kung mag
co-community property kayo at ako ay mamamatay bago ka
ikasal, eh ‘yung mamanahin mo saken, magiging community
property ‘yan eh. Eh ‘kung di na ako makaantay na ikasal
kayo bago ako mamatay. But kung mapapangako mo saken
na kayo ay mag-eexcute ng antenuptial agreement adopting
the CPG, edi mamatay na lang ako kung kelan dapat ako
mamatay kasi either way whatever you inherit from me will
remain your separate property.
Third: That which is acquired by right of redemption by
barter or exchange with property belonging to one of the
spouses. This is important. It is significant because we do
not have the corresponding provision in the ACP regime. I
am referring to the provision which states that which is
purchased with the exclusive money of the wife or husband.
That will be his or her exclusive property as well. It is still

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OCTOBER 15, 2020
Retirement Benefits, Pensions, and Annuities
Art. 115. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits shall be governed
by the rules on gratuitous or onerous acquisitions as may
be proper in each case.
You have to determine whether it is gratuitous or onerous.
If it was given out of “liberality” by the company, then it is
given by gratuitous title. In which case, the retirement
benefits are now considered as exclusive property of the
beneficiary-spouse.
It will be a different case when there is a contribution, just
like when it comes from the salary. It is partly gratuitous
and party onerous, and classified as partly exclusive and
partly conjugal.
Payments of Credits Falling Due
Art. 119. Whenever an amount or credit payable within a
period of time belongs to one of the spouses, the sums
which may be collected during the marriage in partial
payments or by installments on the principal shall be the
exclusive property of the spouse. However, interests falling
due during the marriage on the principal shall belong to the
conjugal partnership.
When it comes to credits or any property belonging
exclusively to either of the spouse. The fruits and the
income belong to the conjugal partnership. The net fruits or
income.
When it comes to payment made on credits earning
interests, the payment on principal is considered as
exclusive property and belongs to the creditor-spouse.
Meanwhile, the interests therein are considered as conjugal
property.
Supposing a property was bought on installment prior
to the marriage and the payment was made using partly
exclusive and partly conjugal funds. What we look to
determine ownership is the time when the ownership over
the property is vested.
If it was before the marriage, then it belongs to the debtor-
spouse. If after the marriage, it belongs to the conjugal
partnership. Subject in both cases, to reimbursement.
It will be relevant to recall that in Sales, it is the delivery of
the property bought which transfers ownership as a general
rule. The exception is that in cases where the seller reserves
title upon full payment of the purchase price.
It is possible that title may be transferred already prior to
the marriage, even though the installments have not yet
been fully paid.
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Improvements
Art. 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the
conjugal partnership, or to the original owner-spouse,
subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more
than the value of the property at the time of the
improvement, the entire property of one of the spouses
shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-
spouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the owner-
spouse, likewise subject to reimbursement of the cost of the
improvement.
In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the
time of the liquidation of the conjugal partnership.
Improvements introduced on separate properties
belonging to either of the spouses, and the improvements
are introduced through the efforts or labor of the spouses.
We have a formula. The law says if the cost of the
improvement plus the increase in value will be more
than the value of the property at the time of
improvement, then the entire property, meaning
separate property plus improvement will belong to the
conjugal partnership. Otherwise, the entire property
will belong to the owner-spouse.
But, we have to remember that the ownership will only vest
upon reimbursement and reimbursement supposed to be
made at the time of liquidation of the conjugal partnership.
Between the time of liquidation and the time where the
improvement may have been introduced, a period of time
may lapse. During that period of time, the status quo of the
ownership of these two separate properties will subsist.
Meaning, during that lapse, the improvement will belong to
the conjugal partnership, the separate property on which it
was built will belong to the owner-spouse.
Q: Will there be consequences?
A: Yes. It means that the conjugal creditors cannot run after
the separate property (the lot) on which the improvement
was made to satisfy conjugal obligations because the lot
remains to be the property of the owner-spouse.
Only exception would be if the conjugal properties are
no longer sufficient to cover all the obligations of the
conjugal partnership. Doon, pwede na habulin ‘yung
separate property or the lot on which the improvement was
made.
Q: The complication would be, what if the improvement
was made on the lot belonging to the mother of the
wife? The improvement was made upon the invitation
of the mother-in-law. Do we apply Article 120 here to
determine the ownership of the entire property if after
the improvement was made, the mother-in-law passes
away and the lot passes on to the wife?*
A: No. At the time the improvement was made, the lot
belonged to a third person. It was not the separate property
of either spouse, so Article 120 will not apply.
Q: Who will own the improvement and lot?
A: We now apply the ordinary rules of accession.
Particularly, the rules on builder in good faith.
General Rule: We do not apply the rules on builder in good
faith. If the one who built is simply a possessor in the
concept of a holder, not in the concept of an owner.
There is a jurisprudence to the effect that where a
father or mother-in-law or any relative would invite the
builders to build on their property, then by exception
established by jurisprudence, we will now apply the
rules on builder in good faith. Even if the builders are
not possessor in the concept of an owner.
CHARGES AGAINST THE CONJUGAL PARTNERSHIP OF
GAINS
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and
the legitimate children of either spouse; however, the
support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse for the
benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the family
may have benefited;
(4) All taxes, liens, charges, and expenses, including major
or minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made
during the marriage upon the separate property of either
spouse;
(6) Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity for
self-improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
PAGE 70 OF 175
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-
improvement; and
(9) Expenses of litigation between the spouses unless the
suit is found to groundless.
If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable for
the unpaid balance with their separate properties.
Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not
be charged to the conjugal properties partnership except
insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed
upon them be charged to the partnership.
However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if
the spouse who is bound should have no exclusive property
or if it should be insufficient; but at the time of the
liquidation of the partnership, such spouse shall be charged
for what has been paid for the purpose above-mentioned.
Found under Articles 121 and 122, FC. They are largely
similar with the charges made against the ACP. However,
there is a twist.*
The difference is that in addition to the requirement or
condition that the debtor-spouse must not have
sufficient or must not have any separate properties at
all to this name, it is further required that all the
obligations under Article 121, FC must have been
satisfied before the conjugal partnership may be made
liable for these personal obligations under Article 121.
The trifecta of personal obligations for ACP same with the
personal obligations chargeable with the CPG.
Q: If it is required that all of the charges under Article
121 must first be satisfied. Does it follow too that the
creditor of these personal obligations chargeable to the
CPG must wait until the conjugal partnership is
liquidated and distributed before they can enforce
against the conjugal partnership?
A: The Supreme Court in People vs. Lagrimas ruled that
there is no need for the creditor to wait until the CPG is
liquidated or dissolved. The law speaks of “assets.” The
law treats any payment made up of charges as an advance
of the share of the debtor-spouse. If the law speaks of it as
an advance the that means that payment is contemplated as
being made prior to the liquidation or dissolution of the
conjugal partnership. There is no need to wait for the
dissolution of the CPG before payment of personal
obligations may be made.
People vs. Lagrimas
Fines and indemnities imposed upon either husband or wife
"may be enforced against the partnership assets after the
responsibilities enumerated in Article 161 have been
covered, if the spouse who is bound should have no
exclusive property or if it should be insufficient.'' It is quite
plain, therefore, that the period during which such a
liability may be enforced presupposes that the conjugal
partnership is still existing. The law speaks of
"partnership assets." It contemplates that the
responsibilities to which enumerated in Article 161,
chargeable against such assets, must be complied with
first. It is thus obvious that the termination of the
conjugal partnership is not contemplated as a pre-
requisite. Whatever doubt may still remain should be
erased by the concluding portion of this article which
provides that "at the time of the liquidation of the
partnership such spouse shall be charged for what has been
paid for the purposes above-mentioned." (People v.
Lagrimas, G.R. No. L-25355, [August 28, 1969], 139 PHIL 612-
619)
However, if you were the creditor, the condition that the
obligations under Article 121 are paid, is impossible for you
to satisfy because you have no idea what the obligations of
the CPG of your debtor and his spouse are.
In People vs. Lagrimas, the Supreme Court said that we
cannot be exacting in the requirement that there should be
proof that all the obligations under Article 121 are satisfied
because this is information known only to the spouses
concerned.
TIPS: If I were the one handling the case, I will make an
allegation that all the obligations under Article 121 have
been paid and leave it up to the spouses to make
appropriate denial coupled with request for admission. If
the spouses do not deny under oath within 15 days,
whatever you requested will be deemed admitted. Or at the
very least, they will have to provide you the details.
As to the procedure for liquidation for CPG will follow the
same procedure with ACP. (Note: Nasa materials daw na
ibibigay)
SEPARATION OF PROPERTY REGIME
The spouses are proportionately liable for the expenses of
the family.
Proportionate because hindi equal ang capacity or
properties. So di dapat equal ‘yung hatian. It will be
proportionate to one’s property and income. But that is
PAGE 71 OF 175
between them. Insofar as the creditors are concerned,
the spouses are solidarily liable.
Solidary liability is imposed on the spouses for the
protection of third person. It ensures to a certain extent that
creditor will be paid notwithstanding the insolvency of one
of the spouses. It will be the risk taken by the paying
spouses that he will not be able to recover any share from
the non-paying insolvent spouse.
There are two (2) ways to adopt the Separation of
Property Regime:
1. Adopting it at the outset through the execution of a
marriage settlement; or
2. Adopting it after the marriage by filing a petition
for judicial declaration of separation of
property either for:
a. A cause; or
b. By agreement.
This makes separation of property regime unique. The only
regime that may be adopted after the celebration of the
marriage.
Please go through the grounds seeking a decree of
separation of property and grounds for revival of the
former property regime.
Once you have availed of separation of property, by
agreement, and thereafter, there was a revival of the
former property regime, you can only avail of the same
[the separation of property] again only for cause. Dahil
parang niloloko niyo na ‘yung korte nyan.
ARTICLES 147 AND 148
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall
be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivos
of his or her share in the property acquired during
cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common 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 descendants. In the absence of
descendants, such share shall belong to the innocent party.
In all cases, the forfeiture shall take place upon termination
of the cohabitation. (144a)
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money
and evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in 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 both faith.
Both provides for co-ownership.
Article 147 will apply to those who are capacitated to
marry and are living together exclusively as husband and
wife without the benefit of marriage or in those situations
where there is no impediment to marry but the marriage
happens to be void.
Article 148 is where there is a void marriage but there is
an impediment affecting the parties from marrying one
another.
Article 147 is more generous than Article 148.
In Article 147, there is co-ownership created over the
wages and salaries of the parties. We do not have that in
Article 148.
The law also provides that there is a presumption of
whatever is acquired during the union, this is presumed to
have been acquired through their joint efforts. There is no
such presumption in Article 148. You have to show actual
contribution. If there is none, you have no interest in the
supposed co-owned property.
But the presumption in Article 147 is a disputable
presumption. How do you dispute it? You show that the
PAGE 72 OF 175
acquisition was made solely through your efforts or using
only your funds.
The law also provides that under Article 147, the care of the
children and management of the household may be taken as
contribution as well.
Q: Paano papasok sa Article 147?
A: ‘Yung requirement na the marriage is void but the parties
are capacitated to marry, madali lang yan:
1. Lack of marriage license;
2. Psychological incapacity.
These kinds do not go to the capacity of the party to marry.
Ang vague dito is ‘yung cohabiting as husband and wife
without the benefit of marriage. It is more difficult to
establish that today than before.
So what is my point? My point is where do we draw the
line? Dati madali eh, kapag kayo ay nakatira sa isang bahay
you share expenses, you sleep in the same bed, you stay
together exclusively, then you are cohabiting as husband
and wife because the intent is to make one another your
lifetime partner, short of marriage. Ngayon kase, iba na.
Everything is so casual.
For us lawyers, if we are faced with Article 147, we will need
to establish that their relationship was more than just a
boyfriend and girlfriend, that they were actually cohabiting
as husband and wife.
The co-ownership established in Article 147 is also
peculiar because it is not like an ordinary co-ownership
where the co-owner is free to disposed of his interest in
the co-owned property even without the consent of the
other party.
In ordinary co-ownership, you are allowed to dispose of the
interest without the consent of the other co-owner, except
if the co-owned property happens to be personal in
character.
Here in Article 147 and even in Article 148, so long as
the parties are living together, so long as the union
exists, they cannot dispose of their interest in the co-
owned property without the consent of the other.
But, you have to understand that in all likelihood, the co-
ownership will outlive the union. The parties may have
broken up but they remain to be co-owners. However, there
will be a transformation because here, after the parties
cease to live together, the co-ownership will now become
an ordinary co-ownership. Meaning to say, either parties
may dispose of their interest in the co-owned property
without the consent of the other.
In Article 148, it is simpler because it requires actual
contribution and if one of the parties happen to be married
to another then his share will pertain to the ACP or CPG of
said marriage. There is also a provision for forfeiture of the
party acting in bad faith.
For example, they are relatives within the prohibited
degree of consanguinity and this fact was known to one of
the parties, then he will be acting in bad faith, since they are
not capacitated to marry, then they will be governed by
Article 148. So may forfeiture parin na magaganap.
For marriages void under Article 53 for non-compliance
with Article 52, we established before that nullity does not
represent an impediment to marriage. Kasi nga non-
compliance with the reportorial requirements under Article
52 is not listed among the impediments under Articles 37
and 38. So if you are faced with marriage that is void under
Article 53, what you apply is Article 147.
FAMILY HOME
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family,
is the dwelling house where they and their family reside,
and the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to
the extent of the value allowed by law.
The purpose of classifying a home as a family home is to
exempt it from levy on execution. For the goal is to make
sure that the family has a roof over their heads.
PATERNITY AND FILIATION
Paternity refers to the relationship between the parent to
the child. Specifically, the father to the child.
Filiation is the relationship of the child to the parent.
Two (2) Kinds of Filiation:
1. By nature – can either be legitimate or illegitimate;
or
2. By adoption.
Up until the FC, we have different kinds of illegitimate
children. We had illegitimate children, natural children,
acknowledged natural children, natural children by legal
fiction, and spurious children.
The differences were not mere semantics. Their shares in
the successional rights were also different. The FC has done
away with this classification. We now only have one kind of
illegitimate child.
PAGE 73 OF 175
A child conceived and born outside a valid marriage is
illegitimate. Whereas, a child conceived and born in a valid
marriage would be legitimate.
‘Yung ikinakasal na kung saan buntis na ‘yung babae at
manganganak after the marriage, the child born to this
couple, this would “not” be legitimated children. This would
be “legitimate” children because birth took place during the
marriage.
Pano naman ‘yung conception that took place during
the marriage? For example, we have husband and wife,
they were able to successfully ask for the annulment of their
marriage. Nabalitaan nila na may favorable decision, but of
course may 15-day period para maging final ‘yung decree of
annulment eh. So, they decided, for the last time, that they
would have sex. The problem is doon pa sila nagkaroon ng
anak. So, conception took place while the marriage was still
valid kasi hindi pa final ‘yung decree of annulment. But
definitely, the child would be born after the annulment. Just
the same, under the definition of the law for legitimate
children, the child born to them would be considered
legitimate only because conception took place before the
finality of the decree of annulment.
Artificial Insemination
The FC has also introduced a novelty of sorts. For the first
time, the law recognized the validity of artificial
insemination as a means of conceiving children and giving
rise to legitimate filiation.
In artificial insemination, you use the sperm of the husband
or a third person (a donor), or a mixture of their sperms,
and you use introduce this into the womb of a woman in the
hopes that they will fertilize an egg of a woman that would
give rise to pregnancy.
The FC now recognizes that the child conceived through
this means may be the legitimate child of the husband
and wife.
Now, apart from the fact that the FC is acknowledging this
medical advancement, it is also quite significant that this
means of conceiving actually allows for the introduction of
foreign blood into the family line. It is possible that the
sperm that fertilizes the egg of the wife would belong solely
to a third person, not the husband. So parang ang
nakabuntis don sa asawa, ay ibang lalake. At ‘yung magiging
anak ng babae ay hindi talaga anak ng asawa. No blood
relationship. They are strangers to one another. ‘Yun nga
lang, under the law, even though they are not related by
blood, even though biologically they are strangers to one
another, under the law that child is considered to be the
legitimate child of the husband.
Provided, that consent of both spouses are given to the
artificial insemination or at the every least, the
insemination is ratified prior to the birth of the child.
Q: What does it mean when you say that a child is
legitimate?
A: Previously, under the Civil Code, the legitimate filiation
that is accorded to a child at birth was simply a
presumption. Not anymore, under the FC, since you are
already accorded that status at birth.
Once you acquire the status of legitimacy, that cannot
be taken away from you unless an action to impugn is
filed by the husband. He can only do so on certain
grounds and within a specified period. The only
instances when the husband may be substituted by his
heirs would be if:
1. He dies prior to the expiration of the period to
impugn;
2. He dies after filing the action to impugn and he does
not desist from the action; or
3. The child is born after his death.
In which case, his heirs will now be the substituted for him
if they want to bring the action to impugn. In any event, the
action to impugn must always be brought within a period
ranging from 1-3 years.
1. 1 year – the husband is in the same city or
municipality or province at the time of birth;
2. 2 years – in the Philippines but is in a different city
or municipality or province at the time of birth; or
3. 3 years – if the birth was hidden from the husband
or if he happens to be outside the Philippines.
These periods are quire short especially when we compare
it to the prescriptive period in annulling a marriage which
is 5 years on the ground of fraud committed by the wife who
concealed the fact that she was pregnant by a man other
than her husband at the time of the marriage. 5 years from
the discovery of fraud.
The law was written this way for the protection of the child
as well. We cannot make the status of the child hostage to
the whims of the parents.
This right given to the husband is exclusive and cannot be
taken away from him even through a direct action.
There was this case where the daughters were born into a
marriage of a husband and wife who are not well-off.
Eventually, the husband whom they recognize as their
father from birth, died. Thereafter, they found out that they
were actually the daughters of one of the rich men in town.
They were now interested in claiming from the estate of this
man. They filed a claim with the estate and would need to
establish their filiation. They have with them a recognition
of their illegitimate filiation and asking the court that they
be allowed to present the same in evidence. The court
rejected on the ground that the evidence is irrelevant. It is
PAGE 74 OF 175
because you cannot prove that you are the illegitimate
children of the deceased because this means that you are
impugning your legitimate filiation with your recognized
father, the husband of your mother. Under the law, it is only
the husband who can impugn your legitimate filiation. They
cannot do indirectly what they are not allowed to do
directly.
This bar in impugning one’s filiation except in a direct
action brought by the husband himself will only apply if the
child is at least born to the wife. It will not apply if the child
is a stranger to both husband and wife. Thus, the relatives
can actually establish that the child is actually a stranger to
the spouses. This was the ruling of the Supreme Court in the
case of Benitez Badua vs. Court of Appeals.
Benitez Badua vs. Court of Appeals
A careful reading of Articles 164, 166, 170 and 171 of
the Family Code will show that they do not contemplate
a situation, like in the instant case, where a child is
alleged not to be the child of nature or biological child
of a certain couple. Rather, these articles govern a
situation where a husband (or his heirs) denies as his
own a child of his wife. Thus, under Article 166, it is the
husband who can impugn the legitimacy of said child by
proving; (1) it was physically impossible for him to have
sexual intercourse, with his wife within the first 120 days of
the 300 days which immediately preceded the birth of the
child; (2) that for biological or other scientific reasons, the
child could not have been his child; (3) that in case of
children conceived through artificial insemination, the
written authorization or ratification by either parent was
obtained through mistake, fraud, violence, intimidation or
undue influence. Articles 170 and 171 reinforce this reading
as they speak of the prescriptive period within which the
husband or any of his heirs should file the action impugning
the legitimacy of said child. (Benitez-Badua v. Court of
Appeals, G.R. No. 105625, [January 24, 1994], 299 PHIL 493-
506)
If the action to impugn is successful, you do not say that
the child becomes the illegitimate child of the father.
The truth is, the child becomes a “stranger” to the
husband. That is why the law uses the term “husband” at
hindi father para kapag maging successful ‘yung action to
impugn, there would be no confusion as to the fact that the
husband and the child will not be related at all. Ang
mangyayare, illegitimate child siya ‘nung nanay.
At least prior to the advancement of science and medicine
with regard to DNA testing or blood typing to establish
paternity, paternity was a matter of fact, a matter of fate.
Prior to DNA testing, ‘yung nanay lang naman talaga ang
nakakaalam kung sino ‘yung tatay ng kanyang mga anak.
That is why, it is a little confusing, under our present law,
the statements of the mother are declared not to be given
weight. Ang sabi is, any declaration made by the mother
against the legitimate filiation of the child or even the intercourse during the period of conception, then you will
finding that she was an adulteress, that cannot be basis to have a ground to impugn legitimate filiation. But you have
say that the child is in fact illegitimate. to show that physical impossibility is on account of the
following:
Samantalang kung meron ka dapat paniwalaan, ay ‘yung
nanay ‘yon. The ratio for the provision is baka daw kasi 1. Physical incapacity;
minsan magalit ‘yung nanay and would say things just to
hurt the father. But class, walang nanay na ganon. 2. Living separately in such a way that sexual
intercourse is impossible. Hindi ito pwede ‘yung
It also makes no sense that the vitiation of the wife’s consent tipong babyahe lang ng 10 hours by land para lang
to the insemination, or the vitiation of the wife’s ratification, makarating. Dapat parang covid pandemic ang
is a ground to impugn the legitimate filiation and yet she is conditions;
not given the power to bring the action. The power is still
with the husband. Eh paano kung ‘yung husband nag-vitiate 3. Serious illness of the husband which absolutely
ng consent niya? Paano ‘yon? prevented sexual intercourse. Porke may sakit ang
lalaki, he would no longer be able to have sexual
What if the husband’s consent was vitiated? Pero sperm intercourse. Dapat ‘yung sakit would be such that
niya ‘yung ginamit but his consent was vitiated. He did not he is really incapable of having sexual intercourse.
want the artificial insemination and he impugns the
legitimate filiation on this ground. What then would be the Art. 168. If the marriage is terminated and the mother
status of the child? Samantalang, biologically the child is still contracted another marriage within three hundred days
his. Ang problema lang vitiated consent. I do not understand after such termination of the former marriage, these rules
what the law was trying to achieve here in providing this as shall govern in the absence of proof to the contrary:
a ground for impugning legitimate filiation and why is the
(1) A child born before one hundred eighty days after the
wife is not given any say on the matter. Right?
solemnization of the subsequent marriage is considered to
Grounds for Impugning Legitimate Filiation have been conceived during the former marriage, provided
it be born within three hundred days after the termination
Art. 166. Legitimacy of a child may be impugned only on the of the former marriage;
following grounds:
(2) A child born after one hundred eighty days following the
(1) That it was physically impossible for the husband to celebration of the subsequent marriage is considered to
have sexual intercourse with his wife within the first 120 have been conceived during such marriage, even though it
days of the 300 days which immediately preceded the birth be born within the three hundred days after the termination
of the child because of: of the former marriage.
(a) the physical incapacity of the husband to have sexual
intercourse with his wife;
(b) the fact that the husband and wife were living separately
in such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband,
except in the instance provided in the second paragraph of
Article 164; or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence.

Q: Why 120 days?

A: Because 120 days is 4 months. Deduct this from 300 days
which is 10 months, you will be left with 6 months. 6 months
will be the shortest possible period of gestation. So any
amount of time prior to gestation would be the period of
conception. So if it was impossible for them to have sexual

PAGE 75 OF 175

OCTOBER 16, 2020
PATERNITY AND FILIATION
1. First-tier evidence - the record of birth that is filed
with the local civil registrar
a. in case this is not available then
i. an admission either in a public
document or
ii. a private handwritten document
both signed by the parent would
suffice.
2. Second-tier evidence - open and continuous
possession of the status of either an illegitimate
child or a legitimate child; and
3. other pieces of evidence would also be acceptable
a. DNA tests
b. Blood typing paternity tests
If you are proving illegitimate filiation and you are relying
on Second-tier evidence, then you must claim your
illegitimate filiation during the life time of the parent
otherwise you would not be allowed to introduce evidence
or even to lay claim to any illegitimate filiation after the
parent has died.
RIGHTS OF A CHILD
Q: What are the rights given to a legitimate child?
A: the right to support, the right to use the surname,
legitime, and other successional rights.
These rights also extend to illegitimate children. Previously,
under the Family Code, illegitimate children were not
allowed to use the surname of the putative father, even if
the father would give his consent.
This was changed by RA 9255 which gives the option to
illegitimate child to use or not to use the father’s surname.
JURISPRUDENCE: The father wanted the child to use his
surname, after he acknowledged him. But the child did not
want to do so. The Supreme Court ruled that the option was
with the child and not the father.
PARENTAL AUTHORITY
Illegitimate children are under the Parental Authority of the
Mother. It does not matter whether they are above or below
7-years of age.
PAGE 76 OF 175
The right to chose between the two parents is unavaible for
the illegitimate child. Even if that child is above 7. Because
that child by law is placed under the parental authority of
the mother.
No rights really are given to the putative father of an
illegitimate child. It is only by jurisprudence that visitation
rights in favor of the father were recognized. Even then the
recognition was based, not on any right of the father but on
the father’s obligation to get to know his child.
SUCCESSIONAL RIGHTS
An illegitimate gets half the legitime of a legitimate child.
LEGITIMATED CHILDREN
Q: Who are legitimated children?
A: This are children who were conceived at the time when
the parents were not married but we're not under any
impediment to marry one another. What matters here is
that at the time of conception there were no legal
impediments and then they become legitimate after the
parents get married subsequent to their birth.
Q: Marriages na “nag-hahabol” meaning the parents
were pregnant during the marriage, what is the status
of the child?
A: The child is legitimate and not legitimated. Legitimated
children are the “flower girls” or the “ring bearers” in their
parents’ wedding. They were already born before their
parents were married.
If the child marched on their own during the wedding, the
child is legitimated. If the child marched in the stomach of
the mother during the wedding, then the child is a
legitimate child.
Requisite of valid subsequent marriage in relation to
legitimated children
Technically speaking, if the subsequent marriage was
voidable and thereafter it was annulled. That means the
legitimation remains. Because a voidable marriage is valid
until it is annulled.
But if the subsequent marriage was void then the
legitimation would have to be set aside and cease to have
any effect. Because the requisite of a valid subsisting
marriage is wanting.
Q: Let us say that Mr. Arzadon and Ms. Giyang are
married. But prior to getting married they had a child,
Mr. Ramos. Mr. Ramos was born before they were
married. After the marriage the parents had two more
children: Ms. Mendoza and Ms. Dela Cruz. There would
be no negative effect because legitimation retroacts to
the date of the birth of the child.
The complication would arise if the subsequent
marriage is declared null and void. Why?
A: As a general rule is that if a subsequent marriage is
declared null and void then all of them would be declared
illegitimate except that if the nullity is based on either
Article 36 or Art. 53.
Let's now say that in the present case article 36 is the basis
for nullity, Now, Mr. Ramos, his legitimation would now
have to be set aside for lack of the requisite of a valid
subsequent marriage.
But as for miss Mendoza and miss Delacruz, since they were
born to a marriage which was declared null and void under
Article 36, they will remain to be legitimate children.
Now as for their successional rights, would it be 1/5, 2/5,
and 2/5. This is because Mr. Ramos is now an illegitimate
child.
Q: How can Mr. Ramos be a legitimate child of his
parents?
A: he should be adopted by his own parents in order to raise
his status to a legitimate child.
IMPEDIMENT TO MARRY
The impediment is not absent at the time of the conception
of the child then their subsequent marriage will not do
anything to legitimize the child.
For example, both parties were married to other people at
the time of the child's conception. And then their spouses
died or there was a subsequent declaration of nullity of
their marriage it would not affect the status of the child.
because there was an impediment at the time of conception.
Q: what is an exception to this rule?
A: if the impediment between the parents were minority. In
this case there would still be legitimation. Under Republic
Act 9858.
ADOPTION
Q: What is the purpose of adoption?
A: The law seeks to create legal relationship between the
adapter and the adapted where previously there was none.
That can only be the general rule because as we have
mentioned, adoption sometimes is for the purpose of just
elevating the status of an illegitimate child to a legitimate
child.
The love that we would be studying is the Domestic
Adoption act or RA 8552.
The Family Code has its own laws regarding adoption but
this has been superseded by the enactment of RA8552.
There is another law the so-called intercountry adoption
law. can we apply this not in case of the adoption or Filipino
PAGE 77 OF 175
children abroad by persons who did not qualify under the
domestic adoption law.
Adoption to be valid must be by judicial decree. Adoption
de facto or simulated births are not valid adoptions. And the
child would be stripped of the benefits he had enjoyed
during the lifetime of the parents and the relatives legally
claim what belongs to them.
However there has been a strong clamor for administrative
adoption. In the present process, there are duplication of
papers and process due to the investigation of the social
worker and the court itself. However no law has yet to be
enacted.
RA 11222 – simulated birth certification act
Provides new rules on simulation of birth and the penalties,
this law also provides for administrative adoption in
relation to simulated births.
Under the Domestic adoption law, a child under certain
circumstances must be declared by the DSWD as legally
available for adoption. Previously it was not How such
declaration may be made. Because definitely the DSWD will
not make it motu proprio. There must be some kind of
proceeding.
Q: Must this proceeding also be done before the court
or should it be done administratively by the DSWD?
A: To address this RA 9523 was passed. This made the
process for the declaration that a child was legally available
for adoption purely administrative in character. And it has
also been made clear that you would only need such
declaration in case you are dealing with abandoned
children, neglected children, or children who have been
Voluntarily committed to the DSWD or any government
placement institutions.
Q: But if you are dealing with children whose biological
parents are consenting to such adoption, and whose
biological parents are still around There is no need to
have them declared as legally available for adoption.
Why?
A: Because we have the biological parents on hand to give
consent to such adoption.
Under RA 8552 a child is defined as someone who is below
18 years of age. We have a similar definition under RA 9523
but the definition of a child would be broader.
Under RA 9523 even those under the age of 18 and unable
to take to fully take care or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition would still be
considered that child.
The domestic adoption law is an example of a law wherein
the devil really is in the details. You have to pay attention
what term is used.
The last use of the word person, child, or son or daughter
it's not merely semantics. It has significance.
If the term “child” is used, then you are limited to people
who are under 18 years of age. If the term used is “son”
“daughter” or “person” then that means that you are not
limited to the definition given to the term child and this
may very well include people above 18 or people of
majority.
One important guideline in adoption is that it should
always be for the best interest of the adopted. Previously,
the treatment for adoption was it was for the benefit of the
adopting parent. And this was consistent with how
adoption was treated under Roman law. Remember our
civil law was patterned after Roman law. Under Roman law,
it was considered a source of shame for someone to die
without an heir.
Q: Who may adopt?
A: In this regard you have to know that citizenship matters.
Because if you are a foreigner you need to comply with all
the qualifications and have none of the disqualifications for
adoption. A child would be taken out of the country, hence
the requirements for foreigners.
Q: What are the general requirements for Filipinos?
A:
1. Full legal capacity
2. Good moral character
3. Not been convicted of a crime involving moral
turpitude
4. Must have been at least 16 years old older than the
adopted child
5. Must have be emotionally and psychologically
capable of caring for the children
6. Must have the capacity to take care of his family
7. Must have financial capacity
Q: What are the requisites for foreigners?
A: We must have additional qualifications.
1. His government must have diplomatic relations
with the Philippines.
2. Must be living in the Philippines for at least 3 years
prior to the filing of the petition for adoption and
must maintain that residence for another 3 years
following the decree of adoption.
3. There is a need for certification that the alien who
is adopting is capacitated to do so under his own
country and
4. That upon the adoption being granted the child
would be able to enter the country of the adopting
PAGE 78 OF 175
parent and recognized as his child.
In certain instances, our law also recognizes that the
requirement of residence and the requirement for
certification may be dispensed with. This is applicable to:
1. former Filipinos who wish to adopt a relative
within the 4th degree of consanguinity or affinity.
2. A foreigner who seeks to adopt the legitimate son
or daughter of his Filipino spouse.
3. One who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse or relative
within the 4th degree of consanguinity or affinity
As to the second instance it is clear that the law uses the
term son or the daughter. Hence the adopted person may
not be a child or below 18 years of age. This is one of the
landmines in the domestic adoption law. Keep your eyes
opened.
Guardians are also allowed to adopt after the termination
of the guardianship and clearance of his financial accounts.
Q: What about married people are they allowed to
adopt?
A: The answer is yes if you are married then it is required
that you jointly adopt. One of the requirements in order for
married persons to adopt is that both parties must jointly
adopt and if one of them does not have the capacity or is
incapable of adoption then there can be no valid adoption.
Example: I had a client who was a former Filipina, she was
married to an Italian/Australian citizen. And she wanted to
adopt her niece, the child of her first cousin, so not actually
a niece. In order for her to able to adopt the child, she
acquired dual citizenship in order for there to be no
problems.
The problem that arise was the husband, because he would
not fit in with the exception to the residence requirement.
The child of a first cousin would no longer fall within the
first degree of consanguinity or affinity coma therefore the
husband was not entitled to the exemption. They could not
jointly adopt as he could not maintain the residence
requirement.
There are exemptions to the joint adoption of married
people. These are:
1. When one spouse seeks to adopt the legitimate son
or daughter of the other spouse
2. If one spouse seeks to adopt his or her own
illegitimate son or daughter but there is need for
consent of the other spouse.
3. If the spouses are legally separated.
Q: In the second exemption, why is there a need for the
consent of the other spouse?
A: This is so because there would be an adverse effect on
the successional rights of the other spouse. His or her
legitime would be impaired by the adoption of the child ask
the child is now considered a legitimate child. Hence there
is a need for consent.
Q: Can single people adopt?
A: Yes, in my prior example of the former Filipino in order
for her to adopt her niece she divorced her husband. She
was a single mother, but the adoption was granted.
Q: Can you be adopted by your sibling?
A: Yes, because there is no prohibition this has already been
sustained as allowed by the Supreme Court. The guidelines
in this instance would only be so long as the adopting sibling
has all the qualifications and none of the disqualifications
for adopting.
Q: Who may be adopted?
1. Any person who is below the age of 18 who has
been declared administratively legally available for
adoption,
2. Legitimate son or daughter of the other spouse
3. An illegitimate son or daughter qualified adopter to
improve his status
4. A person of legal age who prior to the adoption has
been constantly and continuously treated by the
adapter as his or her own child
If you look at the third instance the law says that it is not the
biological parent who adopts but rather a qualified adopter.
A qualified adapter is broader than a biological parent, In
fact this is broad enough to allow a grandparent to adopt
the illegitimate son or daughter of his or her own child.
Q: So if you were to be asked a grandparent wants to
adopt the illegitimate son of his daughter Get that
adoption we allowed?
A: Apparently so, under this provision
A person of legal age who prior to the adoption has been
constantly and continuously treated by the adapter as his or
her own child alright
Q: What if I ask you a question Mr. Adora, if you were to
be adopted by Dean Divina would you consent? You
answered in the positive. But the problem is your
biological parents would not allow you to be adopted,
would the petition for adoption still prosper if they
withhold their consent?
A: The consent of the biological parents would not be
required. If you look at the provision, the law says consent
must be obtained from the biological parents of the child.
And who is a child someone who is below 18 years of age,
PAGE 79 OF 175
Mr. Adora is not below 18 so it is Arguable that the consent
of his biological parents is not needed.
Q: Whose consent are needed in order for adoption to
prosper?
A:
1. It would be the child if he is over 10 years of age,
2. the legitimate sons and daughters of the adaptor
3. and the biological parents of the child
Q: What is the effect of adoption?
A: Once the degree of adoption is issued It will sever all the
legal ties between the biological parents and the adopted
child under Sec. 16.
Q: What is the exemption?
A: If the biological parent is the spouse of the adopting
spouse. In this case there would be no severance of the legal
ties between the child, son or daughter, and the parent.
Compare the situation wherein the putative father adopts
the illegitimate son or daughter That he shared with
another woman not his wife. What would apply here is the
general rule, there would be severance of legal ties between
the biological mother and the illegitimate children or son or
daughter. Precisely because that biological mother is not
married to the putative father.
But the situation is limited to the adopting parent and the
adopted child. The adopted child would still remain a
stranger to the rest of the family of the adopting parent.
Hence in succession the adopted child cannot represent the
adopting parent in substitution.
But that child can exclude the parent of the adopting parent
from succeeding to the estate of the adopting parent.
Because he takes on the role of a legitimate child of the
adopting parent.
The rule that there would only be a relationship formed
between the adopting parent and the adopted child
presupposes that we are only dealing with Ordinary
Adoption who’s the purpose is to create for approximate
parent child relationship where previously there was none.
It would be a different case if we're dealing with adoption
whose purpose is to elevate the status of a child to
legitimacy. We are not simply creating an artificial
relationship. There was already a relationship prior to the
adoption.
RESCISSION OF ADOPTION
Rescission under the Family Code states that both parties
the adopting parent and the adopted child can rescind the
adoption. But this is no longer true under the domestic
adoption. Under the domestic adoption law it is now only
the child who may received such adoption.
Q: What are the grounds for recession of adoption?
A: SEC. 19 of RA 8552
SEC. 19. Grounds for Rescission of Adoption. – Upon
petition of the adoptee, with the assistance of the
Department if a minor or if over eighteen (18) years of age
but is incapacitated, as guardian/counsel, the adoption
may be rescinded on any of the following grounds
committed by the adopter(s): (a) repeated physical and
verbal maltreatment by the adopters) despite having
undergone counseling”; (b) attempt on the life of the
adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental
obligations.
Adoption, being in the best interest of the child, shall not
be subject to rescission by the adopters. However, the
adopters may disinherit the adoptee for causes provided,
in Article 919 of the Civil Code.
Q: since the adopting parents can no longer rescind the
adoption what is now the remedy?
A: It is to disinherit the adopted child for causes provided
under the New Civil Code.
SUPPORT
Q: Who are those obligated to give support to each
other?
A: Art. 195 of the FC
Art. 195. Subject to the provisions of the succeeding
articles, the following are obliged to support each other to
the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the
legitimate and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or
half-blood
Pay particular attention to Par. 3 and 4 of Art. 195. These
two paragraphs carve out additional qualifications to the
rule that legitimate ascendants and descendants are only
obligated to support one another. This approximates all
right to representation under successional laws, but only
that provided under Par. 4 is allowed. Iron bar rule under
Art. 992.
Par. 5- Illegitimate brothers and sisters are also entitled to
support but with a twist. If they are already of age and his
need for support is due to his own fault then he is not
entitled to be supported.
PAGE 80 OF 175
The important thing about support is that it is always
provisional in character because the right will have to
depend on 2 factors. First factor would be in the need of
support and the second is the capacity to provide support.
There must always be balancing out.
The love will not presume that you need support. It Has to
be established that you need support because if you survive
without asking for support then the conclusion is that there
is no need for support. Support is triggered by necessity and
need.
Q: How do you make it known that you need support?
A: Demand. If you don't make a demand, then the law thinks
that there is no need to for support.
Let us say that you are a woman who has gotten pregnant
by your boyfriend and you broke up with the boyfriend
without him knowing that you were pregnant. because of
your pride and the fact that you still are mad at him You felt
that you could do it on your own. You would not ask for his
support. Then the reality of parenthood hits you both
psychically and financially and you now make a demand.
But this time what you are asking it's not only limited to
what you currently need now but it also extended to the
time that you were pregnant.
The problem is you did not make any demand for those
expenses when you incurred them so that means you did
not need support and you cannot insist on them anymore.
PARENTAL AUTHORITY
Parental authority is not limited to the authority of the
parents to discipline their child. It pertains to the obligation
of the parents to raise their children to be productive
members of society. And it is only incidental to this
obligation do parents exercise their authority to discipline
and guide their children.
Q: Parental authority cannot be given up except in three
instances. What are these instances?
A: adoption, guardianship or if you're going to voluntarily
commit your child to the DSWD.
There is emphasis of parental authority of mothers over
their illegitimate children and how the putative father will
not have any parental authority over his illegitimate
children. The most would be Visitation rights.
However, if you are dealing with a legitimate child there
would be joint parental authority exercised between the
mother and the father. Although in certain instances the
father is allowed to prevail.
Q: Supposing now that we're dealing with an
illegitimate child, and the illegitimate child was left in
the care of the grandparents as the mother went abroad
to work. The father is more than willing to take custody
and care of the child. Doesn’t it make sense for the
father to take care of the child? That he should be the
one to exercise substitute parental authority over the
child in the absence of the mother?
A: The problem is if you are going to apply Article 214 of the
family code which provides substitute parental authority,
the father is not there.
But you would say ma’am even if the child were to be a
legitimate child the father would still not be there. But they
would be exercising joint parental authority and the
grandparents mentioned in the article Whatever it to the
grandparents of both the husband and the wife.
But if you are dealing with an illegitimate child then the
grandparents mentioned in the article Can only refer to the
parents of the mother because it is the mother who
exercised his parental authority.
Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised
by the surviving grandparent. In case several survive, the
one designated by the court, taking into account the same
consideration mentioned in the preceding article, shall
exercise the authority.
There is this case recently decided by the Supreme Court
MASBATE V. RELUCIO
MASBATE V. RELUCIO
G.R. NO. 235498, July 30, 2018
Even though the father of an illegitimate child is not
mentioned under article 214 of the family code as among
those who can exercise substitute parental authority, he
may still qualify as the actual custodian of the child.
In this case the mother left the care in the custody of the
child to her parents and she left. What the grandparents did
was to interest the custody and care of the child to the
father. However, they soon wanted to recover custody and
care of the child and the father fought for the child. He filed
a petition for writ of habeas corpus in relation of minors to
recover custody of the child.
This was extraordinary as usually when a boyfriend and a
girlfriend have a child and they eventually broke up the
boyfriend usually has amnesia in regard to a child and
would stop visiting. This was noted in the decision by
Justice Bernabe, the ponente. He stated that during these
times wherein fathers usually forgot their responsibilities
to their child we should encourage Fathers like the
petitioner who strive to be with their children.
So therefore the ruling was, although the father it's not
along those provided under article 214 if he can show that
the mother is unfit and that he has actual custody of the
child then he can ask for custody of the child as a person
entitled to substituted parental authority.
PAGE 81 OF 175
However, he would still have to show that he would be
preferred than the grandparents. Because that is still a
hierarchy in 214. He has to show that it is in the best interest
of the child to stay with him rather than the grandparents.
Parents are to exercise parental authority over their
children as a matter of right. If the children should have
property worth more than fifty thousand pesos
(P50,000.00), all that the parents would have to do is go to
court and ask that the security bond be fixed, but they do
not have to be appointed as guardians over the property of
their children.
TAMARGO VS CA
G.R. NO. 85044, June 3, 1992
The child was made liable for damages while the adoption
was pending. The biological parents were sued But what
they did was deflect and say it must be the adopting parents
who should be made liable for the action because in the
mean time the adoption was allowed so the decree would
retroact to the date of the filing of the adoption.
So by legal fiction, they allege, it would be the adopting
parents who would have parental authority over the child
At the time that he committed damage to another.
The Supreme Court said that we cannot do that because the
purpose of giving retroactive effect to the degree of
adoption is to benefit the adopted child, it was not mean to
hurt or to punish the adopting parents. There Is no reason
for the adopting parents to be made liable for the axe of the
child during that time that they had no actual parental
authority over him.
In adoption the adopted child would be issued a new birth
certificate And the new birth certificate would have no uh
indication that it would have been issued pursuant to a
decree of adoption And the child would be able to use
whatever name would be selected for him by the adopting
parent.
There was this one case where in the child was adopted by
the putative father and the Supreme Court allowed him to
use the surname of the putative father and the surname of
his mother as his middle name. this could be allowed
because there was no probation against the use of the
adopted child of the surname of the biological mother as his
surname.

CIVIL LAW REVIEW I
 FINALS PERIOD 
NOVEMBER 5, 2020
PROPERTY
Property are things which may be or are the subject or
object of appropriation.
Classifications as provided under Articles 415, 416, and
417:
1. Immovable
2. Movable
Art. 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all kinds
adhered to the soil;
(2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of an
immovable;
(3) Everything attached to an immovable in a fixed manner,
in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or
ornamentation, placed in buildings or on lands by the
owner of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;
(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece
of land, and which tend directly to meet the needs of the said
industry or works;
(6) Animal houses, pigeon-houses, beehives, fish ponds or
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
permanent part of it; the animals in these places are
included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while the matter
thereof forms part of the bed, and waters either running or
stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at a fixed
place on a river, lake, or coast;
PAGE 82 OF 175
(10) Contracts for public works, and servitudes and other
real rights over immovable property.
Art. 416. The following things are deemed to be personal
property:
(1) Those movables susceptible of appropriation which are
not included in the preceding article;
(2) Real property which by any special provision of law is
considered as personal property;
(3) Forces of nature which are brought under control by
science; and
(4) In general, all things which can be transported from
place to place without impairment of the real property to
which they are fixed.
Art. 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their object
movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and
industrial entities, although they may have real estate.
There is a correlation among Articles 415, 416, and 417.
This was demonstrated by the Supreme Court in Laurel vs.
Abrogar.
Laurel vs. Abrogar
DOCTRINE:
Moreover, since the passage of the Revised Penal Code on
December 8, 1930, the term "personal property" has had a
generally accepted definition in civil law. In Article 335 of the
Civil Code of Spain, "personal property" is defined
as "anything susceptible of appropriation and not included in
the foregoing chapter (not real property)". x x x
Cognizant of the definition given by jurisprudence and the
Civil Code of Spain to the term "personal property" at the time
the old Penal Code was being revised, still the legislature did
not limit or qualify the definition of "personal property" in
the Revised Penal Code. Neither did it provide a restrictive
definition or an exclusive enumeration of "personal property"
in the Revised Penal Code, thereby showing its intent to retain
for the term an extensive and unqualified interpretation.
Consequently, any property which is not included in the
enumeration of real properties under the Civil Code and
capable of appropriation can be the subject of theft under
the Revised Penal Code.
The business of providing telecommunication or
telephone service is likewise personal property which
can be the object of theft under Article 308 of the Revised
Penal Code. Business may be appropriated under Section
2 of Act No. 3952 (Bulk Sales Law), hence, could be object
of theft.
Interest in business was not specifically enumerated as
personal property in the Civil Code in force at the time the
above decision was rendered. Yet, interest in business was
declared to be personal property since it is capable of
appropriation and not included in the enumeration of real
properties. Article 414 of the Civil Code provides that all
things which are or may be the object of appropriation are
considered either real property or personal property.
Business is likewise not enumerated as personal property
under the Civil Code. Just like interest in business, however, it
may be appropriated. Following the ruling
in Strochecker v. Ramirez, business should also be
classified as personal property. Since it is not included in
the exclusive enumeration of real properties under
Article 415, it is therefore personal property.
As can be clearly gleaned from the above disquisitions,
petitioner's acts constitute theft of respondent PLDT's
business and service, committed by means of the unlawful use
of the latter's facilities.
FACTS:
❖ In this case, we saw how the Supreme Court used
Article 415 as a filter to arrive at the conclusion
that a certain thing was considered as property,
specifically, movable property.
❖ This case involves PLDT and its long-distance call
business. Long-distance calls cost a lot.
❖ The electronic signals constituting the long-
distance calls, they were still made to pass through
the PLDT cables. However, they were able to divert
it such that the calls do not pass through PLDT’s
gateway. Not passing through the PLDT gateway
means that it will not be billed by PLDT as cost
made through its system.
❖ Lugi PLDT dito, kasi ginagamit ‘yung
infrastructures and facilities ng PLDT, but they are
not able to bill because the calls were being
diverted away from the gateway.
❖ PLDT filed a complaint for theft against the people
doing the stealing.
❖ PLDT already suffered a loss because the case was
dismissed before the trial court on the ground that
it was not the proper crime to charge the
defendant. It is because the long-distance calls
cannot be considered, first, as property. Second,
even if it can be considered as property, it is not
movable property. The case went up to the
Supreme Court. In their initial foray before the
PAGE 83 OF 175
Supreme Court, they were not successful. They
sought a reconsideration.
ISSUES:
Whether or not the business of providing long-distance
calls is a property. (YES)
Whether or not the business of providing long-distance
calls is a movable property. (YES)
RULING:
❖ On their motion for reconsideration, they finally
won. This is how the Supreme Court decided the
case in their favor. The Supreme Court stated that
there can be no doubt that the long-distance calls
are considered to be business, and business is
property. Under the Bulk Sales Law, you can
dispose of your entire business. Disposition means
it can be the subject of appropriation. Settled na
‘yung issue na property nga itong business of
providing long-distance calls.
❖ The Supreme Court further classified it as a
movable property. If you would look at Article 415,
416, and 417, there is no long-distance calls.
❖ The Supreme Court applied Article 415, and it is
nowhere to be found in such Article. Therefore, the
conclusion is that, it is not an immovable property.
Eh dalawa lang classification naten ng property eh,
it is only immovable and movable. Kung hindi ka
immovable, then you are movable property. That is
even justified under Article 416. So, makikita naten
na ginamit ng Supreme Court Article 415 as a filter.
It came to the conclusion that this is movable
property and that it can, therefore, be the subject of
theft. The case was then allowed to proceed.
(Laurel v. Abrogar, G.R. No. 155076 (Resolution),
[January 13, 2009], 596 PHIL 45-76)
❖ Transcriber’s Note: ‘Yung facts, issues, and ruling
na nakalagay dito, kung ano lang din ‘yung diniscuss
ni Ma’am. Cinopy paste ko na lang sa doctrine part
‘yung SC ruling na relevant sa discussion ni Ma’am
IMMOVABLE PROPERTY
Article 415 is an enumeration of what the law considers as
immovable property. No need to memorize, just pay
attention to the nuances of the law.
In Article 415, most of the time, what is required by the law
is that there should be incorporation in a permanent
manner into an immovable. But, in some instances, that is
not required. Instead, what is required is authorship by the
owner of the immovable property of the incorporation
(Note: Ganito talaga ‘yung pagkasabe ni Ma’am). Regardless
of whether it was made in a permanent or fixed manner.
For example, statues, reliefs, and paintings, hindi naman
kelangan na iturnilyo mo ‘yung painting sa wall. What the
law requires is that it should be done by the owner himself
with the apparent intention of permanently fixing the
statues, reliefs, et. al. in that location of the immovable
premises.
Four (4) Kinds of Immovable Property Under Article
415 (N-I-D-A)
1. Immovable by Nature;
(1) Land, buildings, roads and constructions of all kinds
adhered to the soil;
(2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of an
immovable;
This is self-explanatory. For example, lands or trees
adhered to the soil. If nakalagay ‘yan sa paso, movable
property ‘yan because they can be taken from one place to
another.
2. Immovable by Incorporation;
Kasama parin dito ‘yung Paragraphs 1 and 2, but this time,
we have to limit it to constructions of all kinds adhered to
the soil.
For example, house of light materials. Do not pay attention
on how it was constructed, pay attention as to whether or
not it is adhered to the soil. May mga bahay kubo na
ibinabaon parin naman sa lupa.
(3) Everything attached to an immovable in a fixed manner,
in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or
ornamentation, placed in buildings or on lands by the
owner of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;
Paragraph 3, this is self-evident. It is enough that it is so
incorporated in a fixed manner that we do not even
consider who made the incorporation. It is irrelevant for
Paragraph 3.
Not so, for Paragraphs 4 and 6. We do not need it to be
permanently fixed on to the immovable premises but we
look at authorship.
Q: What is trickier here is determining whether there
was such intention. There must be an intention to
attach them permanently to the tenements. How can we
tell that there was such an intention?
A: Judge it from the circumstances.
Example: You have all been to the National Museum, I
suppose. When you enter into the National Museum, ang
PAGE 84 OF 175
una niyong makikita ay ‘yung masterpiece ni Juan Luna,
‘yung Spolarium.
Q: How do we know that this has been immobilized by
incorporation because of the intention to attach it
permanently to its location?
A: Check the surroundings. Check how it looks like in the
National Museum. Hindi ba meron don isang kwarto para
don at andon lang siya sa isang side ng kwartong ‘yon. May
velvet rope sa paligid niya. Hindi ka pwede lumapit at
pindutin ‘yung painting. There are spotlights fixed and
focused on the painting. All of these taken together will tell
you that it is the intention to place the Spolarium
permanently in that area. So satisfied na ‘yung requirement
na ‘to.
Ang titignan na lang naten is kung sino ‘yung naglagay
because in lieu of permanent incorporation, the law
requires authorship. It must have been placed by the
owner of the immovable of the tenement.
We can assume that the owner of the National Museum,
which is the government, was also the one which placed it
there.
Tandaan niyo ha. It is not the owner of the painting, who
must have authored the placement. It is the owner of
the tenement, the immovable. Clear?*
(6) Animal houses, pigeon-houses, beehives, fish ponds or
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
permanent part of it; the animals in these places are
included;
Paragraph 6 pertains to animal houses, pigeon houses, and
fish ponds. Dito naman medyo overkill kase apart from the
manner of the incorporation being required to be
permanent, eh kelangan parin ng authorship. The owner of
the tenement must have been the one who had place the
bird cages, pigeon houses, etc. Here, what is immobilized
by incorporation would just be the cages. The animals,
however, they are immobilized, but by destination.
3. Immovable by Destination; and
(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece
of land, and which tend directly to meet the needs of the said
industry or works;
Paragraph 5 is a source for bar exam questions.*
Usually, this provision is taken together with the provisions
on mortgage to determine whether or not a valid mortgage
has been constituted.
For example, a chattel mortgage was constituted on a
machinery. That would fall under Paragraph 5, and
therefore, immobilized by destination. Then, the chattel
mortgage should be considered as null and void because
you cannot constitute, as a general rule, a chattel mortgage
on immovable property.
Q: When do we apply Paragraph 5?
A: What we have to consider here are the following:
1. The nature of the business. It must be something
that must be carried out on that parcel of land or
inside a building;
2. The machineries or instruments concerned tend to
directly meet the needs of that business or
industry; and
3. Authorship. We have to look at the identity of the
person who caused the incorporation. It must be
the owner of the tenement.
Example: The hotel business would require beds, seats,
tables, etc. for every room. Taken by themselves, this would
just be personal property. But, since they tend to directly
meet the needs of the hotel business, and the hotel business
is something which can be carried out in a building, then we
now have 2 out of the 3 requisites satisfied. The clincher is
authorship. It is now important to establish that the person
running the hotel business must also be the owner of the
building and the lot on which the building stands. If we
satisfied that, then the beds, chairs, et. al., these would be
considered as immobilized by destination.
(7) Fertilizer actually used on a piece of land;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at a fixed
place on a river, lake, or coast;
The rest of immovables by destination such as fertilizers
actually used on a piece of land, docks and structures
floating but intended to remain on a fixed place, these are
self-explanatory.
4. Immovable by Analogy.
(10) Contracts for public works, and servitudes and other
real rights over immovable property.
Q: Can you think of real rights over immovable
property? What is a real right?
A: It is a right without a definite passive subject. An example
would be the right of ownership.
Q: If you own something, who would be your debtor in
relation to that property? Is there a specific person
against whom you can enforce your right as an owner?
PAGE 85 OF 175
A: No, but you can definitely enforce your right as an owner
against the entire world. Everyone must respect your
ownership over your property.
As opposed to a personal right which you can enforce only
against a specific person.
Example: You have a promissory note, who can you run
after for payment? It would only be the maker of a
promissory note. You cannot run after other people who are
not privy to your transaction. What you have is only a
personal right.
Mortgage over a parcel of land is an example of a real right.
Q: What about mortgage over an easement? Easement
is a real right and mortgage is a real right. Can there be
a mortgage over an easement or servitude? Should we
consider the same as real property?
A: You cannot constitute a mortgage on easements. It is
because an easement has no existence separate from the
immovable property it burdens.
Articles 416 and 417 are self-explanatory.
Q: Is it important to know whether a property is
movable or immovable?
A: Yes, because legal consequences flow from the
classification.
Legal Consequences:
1. Prescription
a. Movable
i. In Good Faith: 4 years
ii. In Bad Faith: 8 years
b. Immovable
i. In Good Faith: 10 years
ii. In Bad Faith: 30 years
2. Formalities
If you are dealing with donation, the formalities would be
different if you are donating an immovable or a movable
property.
3. Crimes that may have been committed
If an owner is disposed of his property, it may be a crime of
usurpation of real property. If personal property, you will
be dealing with theft.
General Rule: A chattel mortgage constituted on an
immovable property, it is considered null and void because
real property cannot be subject of a chattel mortgage.
Exception: However, the Supreme Court has come up with
several rulings sustaining the validity of a chattel mortgage
constituted on immovable property.
Q: When do we apply now the exception?
A: Essentially, the Supreme Court is saying that first, the
parties are bound by their agreement. They are in estoppel.
Second, their agreement will be binding upon them so long
as no third person is injured thereby.
Practical approach is to look at who is questioning the
validity of the mortgage.*
If the mortgage is questioned by a third person, who is
not privy to the agreement of the parties, you apply the
general rule.
If the mortgage is questioned by one of the parties, or
anyone who claims rights from the parties (usually, the
mortagagor), then invoke the exception. State that they
are bound by their agreement, having agreed to treat
the immovable property, a chattel, they cannot renege
on that agreement. Estoppel sets in.
MOVABLE PROPERTY
Art. 418. Movable property is either consumable or
nonconsumable. To the first class belong those movables
which cannot be used in a manner appropriate to their
nature without their being consumed; to the second class
belong all the others.
Movable property is either:
1. Consumable means that you cannot use it
according to its purpose without consuming the
property.
2. Non-Consumable
Note: Fungible is different from consumable.
Fungible means that the property is susceptible of
substitution. It is always referred to in terms of volume or
weight because pwede siya mapalitan. You just have to
satisfy the following requirements:
1. Giving back the same quality; and
2. Giving back the same quantity.
The interchanging of consumable and fungible was also
done in the definition for loans (mutuum). In the
preliminary chapters, specifically the common provisions
between commodatum and mutuum, mutuum was defined
as a loan involving consumable property. Towards the end,
in the chapter dedicated solely to mutuum, fungible na
‘yung ginagamit. Magkaiba ‘yan, class.
PAGE 86 OF 175
For instance, an old newspaper is non-consumable. So
kapag hiniram mo ito sa kaibigan mo, at ang intention mo
ay gagamitin mo siyang panglinis ng bahay, it is understood
that your friend would no longer expect to see the same
newspaper that he lent to you. Kung nag-eexpect sila na
ibabalik niyo pa ‘yan, it will definitely be a different
newspaper.
But, if the law were to ignore this intention between the
parties, and insist that this is a non-consumable object
subject of a “loan.” Therefore, the contract between the
parties is one of commodatum. If you did not return the
newspaper, you will now liable for estafa.
But, if the law were to pay attention to the intention of
the parties, which is to treat this as something that may
be replaced, and therefore, fungible, your contract
would now be a contract of “mutuum.” Ownership passes
to you over the newspaper. Should you feel to pay back your
friend, you will not be criminally liable. You will only be
civilly liable.
The characterization of an object as to whether it is
consumable or non-consumable, that is based on the
nature of the object itself.
However, the characterization of an object as to whether it
is fungible or non-fungible goes to the intention of the
parties. The intention of the parties should prevail.
Art. 419. Property is either of public dominion or of private
ownership.
Classification of property in relation to the person who
owns them:
1. Property of private ownership; or
2. Property of public dominion.
The Civil Code does not define what property of public
dominion is.
As to the people, property of public dominion is property
belonging to the State.
However, according to Senator Tolentino, it does not belong
to the State, it only pertains to the State. It is because
property of public dominion that is outside the commerce
of man. It cannot be owned. Being outside the commerce of
man, no length of time of possession would ripen your
possession into ownership by acquisitive prescription.
Prescription does not lie against property of public
dominion.
Art. 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the State,
banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for
public use, and are intended for some public service or for
the development of the national wealth.
Art. 421. All other property of the State, which is not of the
character stated in the preceding article, is patrimonial
property.
Three (3) Classes of Property of Public Dominion
1. For public use;
It can be used by anybody such as sidewalks, parks,
dolomite beachfront.
2. For public service; and
It cannot be used by anyone. Only those who have
authorization may use them, but they are for the public
welfare such as firetrucks.
3. For the development of national wealth.
These are the natural resources such as mountains.
Q: Does the State own anything of private ownership?
A: Yes. It is referred to as “patrimonial property.” When it
comes to its patrimonial property, the State descends to the
level of the private owner. Most important consequence of
which is its patrimonial property may be acquired by
acquisitive prescription.
Q: Saan kumukukha patrimonial property ang State?
A: It may buy property and depending on the law
authorizing its purchase, it may be treated as patrimonial
property. However, pwede naman na they transform
property of public dominion into patrimonial property.
The law itself says that property of public dominion would
become patrimonial property once it is no longer intended
for public use, public service, or development of national
wealth. However, we need to know when does this happen.
Examples: ‘Yung mga restaurants, sari-sari stores, and
nagtitinda ng barbeque, encroaching on the sidewalks. In
these cases, kapag sinita mo, ang sasabihin nila, “Eh wala
naman sumisita samen eh.” However, that kind of argument
will not lie if they were to claim to have obtain the same by
acquisitive prescription. No amount of inaction on the part
of the government to assert its right over property of public
dominion and no length of possession will transform that
property of public dominion into patrimonial property.
Unless there is a law passed by Congress or a
presidential proclamation, if the President is so
authorized, declaring the property as patrimonial
property. (Note: Hindi ko mahanap ‘yung Dungo vs.
Republic na case. Baka mali ‘yung title since hindi masyado
narinig sa recording ‘yung case na nabanggit niya. Sorry.
Pero ‘yung naka-bold ayon sabe niya na ruling sa case na
‘yon)
PAGE 87 OF 175
Q: What if the property, while not declared to be
patrimonial, was nonetheless declared to be alienable
and disposable, would this be sufficient?
A: No. It is because if you have property declared to be
alienable and disposable, this simply means that it may be
disposed of by the State. It does not cease to be property of
public dominion. It will only become patrimonial property
in two instances: (1) if there is a law declaring the property
as patrimonial property; and (2) if it is already disposed of.
‘Yung second transformation point, nakakaloko ‘yan.
Syempre kapag dinispose mo siya, eh moot na ‘yung issue
kung naging patrimonial property siya of the government
because at the same moment that it was disposed, when it
became patrimonial property, it also now becomes private
property of a private entity or individual.
But this latter rule, this was laid down in the case of Dream
Village Neighborhood Association vs. Bases Conversion
Development Authority.
Dream Village Neighborhood Association vs. Bases
Conversion Development Authority
DOCTRINE:
In Heirs of Mario Malabanan v. Republic, it was pointed out
that from the moment R.A. No. 7227 was enacted, the subject
military lands in Metro Manila became alienable and
disposable. However, it was also clarified that the said lands
did not thereby become patrimonial, since the BCDA law
makes the express reservation that they are to be sold in order
to raise funds for the conversion of the former
American bases in Clark and Subic. The Court noted that the
purpose of the law can be tied to either "public service" or
"the development of national wealth" under Article 420 (2) of
the Civil Code, such that the lands remain property of the
public dominion, albeit their status is now alienable and
disposable. The Court then explained that it is only upon their
sale to a private person or entity as authorized by the BCDA
law that they become private property and cease to be
property of the public dominion:
For as long as the property belongs to the State, although
already classified as alienable or disposable, it remains
property of the public dominion if when it is intended for
some public service or for the development of the
national wealth.
Thus, under Article 422 of the Civil Code, public domain
lands become patrimonial property only if there is a
declaration that these are alienable or disposable,
together with an express government manifestation that
the property is already patrimonial or no longer
retained for public service or the development of
national wealth. Only when the property has become
patrimonial can the prescriptive period for the
acquisition of property of the public dominion begin to
run. Also under Section 14 (2) of Presidential Decree (P.D.)
No. 1529, it is provided that before acquisitive prescription
can commence, the property sought to be registered must not
only be classified as alienable and disposable, it must also be
expressly declared by the State that it is no longer intended
for public service or the development of the national wealth,
or that the property has been converted into patrimonial.
Absent such an express declaration by the State, the land
remains to be property of public dominion.
Fort Bonifacio remains property of public dominion of
the State, because although declared alienable and
disposable, it is reserved for some public service or for
the development of the national wealth, in this case, for
the conversion of military reservations in the country to
productive civilian uses. Needless to say, the acquisitive
prescription asserted by Dream Village has not even
begun to run.
FACTS:
❖ This has something to do with Republic Act No.
7227. In the said law, certain military lots in Metro
Manila were declared to be alienable and
disposable with the express intention of selling
them to finance the transformation of the
abandoned American bases in Clark.
❖ ‘Yung tinutukoy dito na property is ‘yung nasa Fort
Bonifacio, yung “The Fort” na tinatawag ngayon.
There were areas occupied by private individuals.
It was the hope of these individuals that when the
military camps were declared to be alienable and
disposable, then the years that they have been in
possession of their respective lots, would now be
considered in their favor for purposes of
acquisitive prescription. They were banking on the
classification of the property as alienable and
disposable.
ISSUE:
Whether or not the areas occupied by the private
individuals are susceptible of acquisition by prescription.
(NO)
RULING:
❖ The Supreme Court said that it does not work that
way. First, the property was declared alienable and
disposable for a particular purpose, to sell the
property for the bases convertion. Second, they can
only become patrimonial, if there is a law so
declaring them to be patrimonial. In this particular
case, they can only become patrimonial, the
moment they are sold. ‘Yun nga lang, the moment
they are sold, they now belong to the buyers in the
private sector. (Dream Village Neighborhood
Association, Inc. v. Bases Conversion Development
Authority, G.R. No. 192896, [July 24, 2013], 715 PHIL
211-244)
PAGE 88 OF 175
❖ Transcriber’s Note: ‘Yung facts, issues, and ruling
na nakalagay dito, kung ano lang din ‘yung diniscuss
ni Ma’am. Cinopy paste ko na lang sa doctrine part
‘yung SC ruling na relevant sa discussion ni Ma’am.
Q: Does it mean then that if what we have simply a
declaration of the property of public dominion as
alienable and disposable, it can no longer be the subject
of prescription?
A: Yes. You cannot acquire it by prescription under the Civil
Code because the Civil Code says that prescription can only
run against the patrimonial property of the State.
However, you have to be aware of Commonwealth Act No.
141 or “The Public Land Act,” Sections 11 and 48,
paragraph b. They used a different term under the law, it
is “Confirmation of an Imperfect or Incomplete Title.”
Section 11. Public lands suitable for agricultural purposes
can be disposed of only as follows, and not otherwise:
(1) For homestead settlement;
(2) By sale;
(3) By lease;
(4) By confirmation of imperfect or incomplete titles:
(a) By judicial legalization
(b) By administrative legalization (free patent).
CHAPTER VII: JUDICIAL CONFIRMATION OF
IMPERFECT OR INCOMPLETE TITLES
Section 48. The following-described citizens of the
Philippines, occupying lands of the public domain or
claiming to own any such lands or an interest therein, but
whose titles have not been perfected or completed, may
apply to the Court of First Instance of the province where
the land is located for confirmation of their claims and the
issuance of a certificate of title therefor, under the Land
Registration Act , to wit:
(a) x x x x;
(b) Those who by themselves or through their predecessors
in interest have been in open, continuous, exclusive, and
notorious possession and occupation of agricultural lands
of the public domain, under a bona fide claim of acquisition
or ownership, for at least thirty years immediately
preceding the filing of the application for confirmation of
title except when prevented by war or force majeure. These
shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be
entitled to a certificate of title under the provisions of this
chapter.
If you will check the requisites, parang same lang din naman
ng prescription. So, even if di tayo papasok sa prescription
under the Civil Code, papasok naman tayo sa “prescription-
like remedy” under Commonwealth Act No. 141. However,
do not use the prescription-like remedy sa bar exam ha! Use
the term in the law which is confirmation of an imperfect or
incomplete title.
Requirements:
1. Open, notorious, exclusive, and continuous
possession in the concept of an owner; and
2. The possession must have begun on June 12, 1945
or earlier.
If these requisites are satisfied, then acquisition of the
property of public dominion declared to be alienable and
disposable may now be made.
Q: How do we prove that the property is in fact alienable
and disposable?
A:
1. You have to produce a certified copy of the original
classification approved by the Secretary of the
Department of Environment and Natural
Resources (DENR); and
subsequently declared patrimonial property after you
have long been in possession of the same. Let us say, you
have been in possession of the property for 35 years,
but its classification as patrimonial was only made on
the 30th year. Would that also benefit you the way the
classification of property of public dominion into
alienable and disposable may benefit someone
claiming an imperfect title over it?
A: No. Prescription never ran. It only began running on the
30th year.
OWNERSHIP
Ownership is the absolute right that one enjoys over his
property to subject the same to his absolute will. The only
exception are the limitations that may be imposed by public
laws or insofar as his rights may concur with the rights of
other people.
Ownership has many attributes such as jus utendi, jus
disponendi, jus abutendi, and jus fruendi. The important
thing to know about ownership is that even though you
may strip the owner of all the attributes, he would still
be the owner because the naked title remains with him.
It is called as “elasticity of ownership.”

2. There must be a certificate of land classification Kung pagaari mo ‘yung isang bagay, it also goes without
and status issued by the Community Environment saying that you might want to exclude all others from the
and Natural Resources Officer (CENRO) or the enjoyment of your property. It is a natural human reaction.
Provincial Environment and Natural Resources You can be possessive of your property. The law recognizes
Officer (PENRO) based on the land classification this.
approved by the DENR Secretary.
The law also grants the remedy of a right of action to
If you do not produce these documents, then your petition recover the property against the holder and possessor of
for the perfection of an incomplete or imperfect title will the same.
have to be denied.
Remember, Commonwealth Act No. 141, Sections 11 If it is a movable property, then your right of action is
and 48, paragraph b, will only apply if you are dealing replevin.
with alienable and disposable land of public dominion.*
If it is an immovable property, then your right of action is
Q: Does it matter when the land was declared as accion interdictal, accion publiciana, and accion
alienable and disposable? Dapat ba from the time he reivindicatoria. They are not the same.
began possessing in June 1945 or earlier, it has already
been so classified? Or can classification can come Accion
Accion
anytime after the beginning of possession so long as it Accion Interdcital Reivindicato
Publiciana
comes before the filing of the application? ria
In accion interdictal, If it is not just
A: It is the latter. He can begin possessing it at the time If dispossession
what is in issue here possession
when it is not yet alienable and disposable so long as he has lasted for
is the physical you are trying
possessed it beginning June 1945 or earlier. Then, the more than 1
possession. The to recover,
characterization of the property as alienable and year, then you
physical possession but
disposable, this can come at any time before he files the can no longer
is immediately lost. ownership,
application. That is sufficient. avail of accion
then your
interdictal. You
But if the recourse is
Q: If we are dealing with property of public dominion, must now avail
dispossession lasts accion
and you want to acquire it by acquisitive prescription, of accion
for more than 1 year, reivindicatori
would you be able to do so if the property was publiciana.
then it is not just a.

PAGE 89 OF 175
 physical possession eventually the plaintiff tolerated the possession. Then, after
which is lost, it will sometime, the plaintiff decided to take back his property
now be the legal and made a demand for the defendant to vacate.
possession.
Kasi diba kapag tolerated possession, that comes with the
Two (2) Classes of Accion Interdictal implied promise to vacate the premises upon demand. Kaya
lang nung nagdemand, ayaw na nilang umalis. Now, they
1. Forcible Entry will make out a case for unlawful detainer even if the
dispossession took place 8 or 5 years ago. So definitely hindi
2. Unlawful Detainer
na siya dapat accion interdictal, dapat accion publiciana na
Forcible Entry Unlawful Detainer siya. Pero ayaw nila pumunta sa RTC kasi matagal. Mapunta
Possession which is legal in the man sila sa MTC dahil sa value ng property that would fall
beginning, but became illegal within the jurisdiction of MTC, they will be tried under
subsequently. ordinary procedure, not summary procedure.

Dispossession through In one case, the Supreme Court said that if you are suing for
Example: the right of the
the use of force, unlawful detainer, your complaint must show that the
lessee over the leased
stealth, threat, or possession of the defendant was valid at the beginning and
premises. At the beginning his
strategy. only became illegal subsequently.
possession is valid and legal,
but after the lapse of the lease
and he refuses to leave, then his Spouses Valdez vs. Court of Appeals
possession becomes illegal.
You do not have to establish DOCTRINE:
You have to establish
prior physical possession since
prior physical
the defendant is in prior Under existing law and jurisprudence, there are three
possession because
physical possession on account kinds of actions available to recover possession of real
you were
of the rights given to him at the property: (a) accion interdictal; (b) accion publiciana; and
dispossessed.
beginning. (c) accion reivindicatoria.
Within 1 year from the date of
last demand. Accion interdictal comprises two distinct causes of action,
namely, forcible entry (detentacion) and unlawful detainer
Note: It implies there can be (desahuico).
Within 1 year from the several demands. Each demand In forcible entry, one is deprived of physical
date of dispossession. would sort of renew the 1-year possession of real property by means of force, intimidation,
period to bring the action, strategy, threats, or stealth whereas in unlawful detainer,
provided that said demand is one illegally withholds possession after the expiration or
not a mere reiteration of the termination of his right to hold possession under any
previous demands. contract, express or implied.

Q: If you are the plaintiff, and you want to out someone
from your property, you will want to do so through
summary proceedings. Why?
A: It is because the proceedings are abbreviated, judgment
of the MTC is immediately executory, subject only to a stay
if a supersedeas bond is paid and monthly rentals are
deposited. Further, if on appeal, the RTC approved the
judgment of the MTC in favor of the plaintiff, that judgment
becomes absolutely immediately executory. It cannot be
restrained by a TRO.
However, ang problema, minsan nakalipas na pala yung 1
year from the time of dispossession through force, violence,
stealth, strategy, etc. Therefore, forcible entry is no longer
available.
Ang ginagawa nung ibang abogado, sasabihin nila nun
umpisa nga, pumasok ‘yang defendant by force, but
The two are distinguished from each other in that in forcible
entry, the possession of the defendant is illegal from the
beginning, and that the issue is which party has prior de
facto possession while in unlawful detainer,
possession of the defendant is originally legal but became
illegal due to the expiration or termination of the right to
possess.
The jurisdiction of these two actions, which are summary in
nature, lies in the proper municipal trial court or
metropolitan trial court. Both actions must be brought
within one year from the date of actual entry on the land, in
case of forcible entry, and from the date of last demand, in
case of unlawful detainer. The issue in said cases is the right
to physical possession.
Accion publiciana is the plenary action to recover the
right of possession which should be brought in the proper
regional trial court when dispossession has lasted for more

PAGE 90 OF 175
than one year. It is an ordinary civil proceeding to determine
the better right of possession of realty independently of title.
In other words, if at the time of the filing of the complaint
more than one year had elapsed since defendant had turned
plaintiff out of possession or defendant's possession had
become illegal, the action will be, not one of the forcible entry
or illegal detainer, but an accion publiciana.
On the other hand, accion reivindicatoria is an action to
recover ownership also brought in the proper regional
trial court in an ordinary civil proceeding.
To justify an action for unlawful detainer, it is essential
that the plaintiff's supposed acts of tolerance must have
been present right from the start of the possession which
is later sought to be recovered. Otherwise, if the
possession was unlawful from the start, an action for
unlawful detainer would be an improper remedy. As
explained in Sarona v. Villegas:
If right at the incipiency defendant's possession was with
plaintiff's tolerance, we do not doubt that the latter may
require him to vacate the premises and sue before the
inferior court under Section 1 of Rule 70, within one year
from the date of the demand to vacate.
A close assessment of the law and the concept of the
word "tolerance" confirms our view heretofore expressed
that such tolerance must be present right from the
start of possession sought to be recovered, to categorize
a cause of action as one of unlawful detainer —
not of forcible entry. Indeed, to hold otherwise would
espouse a dangerous doctrine. And for two
reasons: First. Forcible entry into the land is an open
challenge to the right of the possessor. Violation of that
right authorizes the speedy redress — in the
inferior court — provided for in the rules. If one year
from the forcible entry is allowed to lapse before suit is
filed, then the remedy ceases to be speedy; and the
possessor is deemed to have waived his right to seek relief
in the inferior court. Second, if a forcible entry action in
the inferior court is allowed after the lapse of a
number of years, then the result may well be that no
action of forcible entry can really prescribe. No matter
how long such defendant is in physical possession,
plaintiff will merely make a demand, bring suit in the
inferior court — upon a plea of tolerance to prevent
prescription to set in — and summarily throw him
out of the land. Such a conclusion is unreasonable.
Especially if we bear in mind the postulates that
proceedings of forcible entry and unlawful detainer are
summary in nature, and that the one year time-bar to
suit is but in pursuance of the summary nature of the
action.
It is the nature of defendant's entry into the land which
determines the cause of action, whether it is forcible entry or
unlawful detainer. If the entry is illegal, then the action which
may be filed against the intruder is forcible entry. If, however,
PAGE 91 OF 175
the entry is legal but the possession thereafter becomes
illegal, the case is unlawful detainer.
Indeed, to vest the court jurisdiction to effect the
ejectment of an occupant, it is necessary that the complaint
should embody such a statement of facts as brings the party
clearly within the class of cases for which the statutes provide
a remedy, as these proceedings are summary in nature. The
complaint must show enough on its face the court jurisdiction
without resort to parol testimony.
The jurisdictional facts must appear on the face of the
complaint. When the complaint fails to aver facts
constitutive of forcible entry or unlawful detainer, as
where it does not state how entry was affected or how
and when dispossession started, the remedy should
either be an accion publiciana or an accion
reivindicatoria in the proper regional trial court.
In the instant case, the allegations in the complaint do not
contain any averment of fact that would substantiate
petitioners' claim that they permitted or tolerated the
occupation of the property by respondents. The complaint
contains only bare allegations that "respondents without any
color of title whatsoever occupies the land in question by
building their house in the said land thereby depriving
petitioners the possession thereof." Nothing has been said on
how respondents' entry was effected or how and when
dispossession started. Admittedly, no express contract existed
between the parties. This failure of petitioners to allege
the key jurisdictional facts constitutive of unlawful
detainer is fatal. Since the complaint did not satisfy the
jurisdictional requirement of a valid cause for unlawful
detainer, the municipal trial court had no jurisdiction
over the case.
FACTS:
❖ Petitioners claim that the averments of their
complaint make out a case for unlawful detainer
having alleged that private respondents unlawfully
withheld from them the possession of the property
in question, which allegation is sufficient to
establish a case for unlawful detainer. They further
contend that the summary action for ejectment is
the proper remedy available to the owner if
another occupies the land at the former's tolerance
or permission without any contract between the
two as the latter is bound by an implied promise to
vacate the land upon demand by the owner.
❖ Allegations in the Complaint:
“x x x 3. That defendants, without any color of title
whatsoever occupied the said lot by building their house in
the said lot thereby depriving the herein plaintiffs rightful
possession thereof;
4. That for several times, plaintiffs orally asked the herein
defendants to peacefully surrender the premises to them, but
the latter stubbornly refused to vacate the lot they unlawfully
occupied; x x x.”
❖ The dispossession was carried out through stealth.
Hindi alam ng owner na pinasok na pala property
nila. They only discovered it later on, and even after
they discovered it, they did not do anything. They
did not file a case. Later on, they decided to sue for
unlawful detainer.
ISSUE:
Whether or not the averments of their complaint make out
a case for unlawful detainer. (NO)
RULING:
❖ The Supreme Court said hindi pwede kasi you
alleged that there was dispossession through force
or stealth at the beginning. This must be dismissed.
This is not the proper remedy. But the dismissal is
without prejudice to your right to bring an accion
publiciana.
❖ Practical Tip from Ma’am: Dapat ‘yung complaint
niya ay naging silent na lang or did not touch on the
illegality of the possession of the defendant at the
beginning. They could have simply said that they
have been tolerating the possession since the time
he came into the premises. Di naman niya kelangan
i-volunteer ‘yung info na ‘yon. True, the other party
may raise it as a defense. Okay lang ‘yon. At least
hindi nanggaling sayo. You should not volunteer
that kind of information that would destroy your
case. (Spouses Valdez v. Court of Appeals, G.R. No.
132424, [May 4, 2006], 523 PHIL 39-51)
❖ Transcriber’s Note: ‘Yung facts, issues, and ruling
na nakalagay dito, kung ano lang din ‘yung diniscuss
ni Ma’am. Cinopy paste ko na lang sa doctrine part
‘yung SC ruling na relevant sa discussion ni Ma’am.
PRINCIPLE OF SELF-HELP
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation of
his property.
Apart from bringing an action, the law recognizes the right
to self-help.
The owner may use such force as may be reasonably
necessary to repel or prevent an action or threatened
unlawful physical invasion or usurpation of his property.
PAGE 92 OF 175
Note: The reasonable force is use only to repel or
prevent, that means, the taking or dispossession has
not yet occurred. There is only an attempt.*
Illustration: Andon ka naglalakad sa kalye, nasnatch bigla
‘yung cellphone mo.
Q: Does it mean dapat panoorin mo lang ‘yung snatcher
na tumatakbo dala ‘yung cellphone mo because the law
does not allow you to use reasonable force anymore
dahil you have already been dispossessed?
A: No. The law is not unreasonable. The law permits you or
gives you a small window after bei ng immediately
dispossessed to exercise the right to self-help. You can run
after the snatcher. You can try to take back your phone.
The reason behind this is clear. At that moment, when you
have been immediately dispossessed, the facts are still very
clear. Maliwanag na ikaw ‘yung inagawan at may karapatan,
and siya ‘yung nang-agaw at magnanakaw. Within that time
frame, you can still assert your rights. However, if that
moment passes, for instance, nakatakas na at hindi mo na
siya nakita, pero you see him after two (2) days using your
cellphone, this time around, the facts are not so clear
anymore. Except for you.
This time around, the presumption of the law sets in. He is
now presumed to be the owner of the cellphone because
possession is 9/10ths of the law. If you are in possession in
the concept of an owner, the law presumes that you have
title to that property. You cannot be compelled to prove
your title. It must be the party claiming ownership who
must discharge the burden of proof.
DOCTRINE OF STATE NECESSITY
Art. 432. The owner of a thing has no right to prohibit the
interference of another with the same, if the interference is
necessary to avert an imminent danger and the threatened
damage, compared to the damage arising to the owner from
the interference, is much greater. The owner may demand
from the person benefited indemnity for the damage to him.
A limitation on one’s ownership rights. Under this doctrine
of state necessity, the owner has no right to prohibit the
interference of another with his property, if the interference
is necessary to avert an imminent danger and the
threatened damage, compared to the damage arising to the
owner from the interference, is much greater.
The recourse of the owner is against the person
benefitted, not against the actor.
Danger must be objectively existing. Hindi pwede ‘yung
nagkamali regarding the existence of the danger.
Let us say nakatira ka sa kalye na makitid, narrow streets. above the entire condominium building. Hence, it
Then nagkaroon ng sunog doon sa dulo ng kalye and ‘yung belongs to the condominium corporation, not to
firetruck will have to come in to your street. Eh hindi kasya, you.
nakapark ‘yung kotse mo. Here, all the requisites are met.
We have imminent danger, the danger is greater than what ❖ Further, under the Condominium Law, a unit is
may befall your vehicle, and if your vehicle is injured kung limited to the four walls, the doors, the windows. It
sasagasaan ng firetruck para makadaan, your recourse as does not include the airspace above it. Thus, you
owner is against the person who is benefitted by the cannot claim the airspace.
action of the firetruck.
❖ Finally, if the airspace above your unit is not
If it turns out na nagkamali pala ‘yung bumbero, hindi pala considered a part of your unit under the
doon ‘yung sunog, then the doctrine of state of necessity Condominium Law, then necessarily, it falls under
would not be applicable. The actor will be liable now for the common areas of the condominium, and the
damages. common areas belong to the condominium
corporation.
Art. 437. The owner of a parcel of land is the owner of its
surface and of everything under it, and he can construct
thereon any works or make any plantations and
excavations which he may deem proper, without detriment
to servitudes and subject to special laws and ordinances. He
cannot complain of the reasonable requirements of aerial
navigation.

Under Article 437, it is also provided that the owner of a

parcel of land is also the owner of the surface above it and
everything below it as well.

Untitled Case

Transcriber’s Note: Hindi nabanggit ni Ma’am ‘yung title ng

case.

FACTS:

❖ There is an interesting case where the owner of a

penthouse unit wanted to apply this principle with
regard to the airspace above his penthouse. His
penthouse unit was called a Concession 3. Sabe
niya penthouse na ako, ‘yung airspace sa ibabaw
ko, aken ‘yan. I can now build another level,
tatawagin kong Concession 4. The condominium
corporation and other unit owners really tried to
prevent this defendant from building on top of his
penthouse unit. In reality, nagawa talaga ‘yung
additional level.

ISSUE:

Whether or not the penthouse owner owns the airspace

above his unit. (NO)

RULING:

❖ The Supreme Court in 2018 finally rendered a

decision stating that you do not own the airspace
above your unit so as to give you the right to build
another level above it. It is because the airspace is

PAGE 93 OF 175

NOVEMBER 6, 2020
ACCESSION
Q: What is accession?
A: Another attribute or aspect of ownership.
The right pertaining to the owner of a thing over everything
which is produced thereby, or which is incorporated or
attached thereto, either naturally or artificially (NCC, Art.
440).
Note
The basic requirement that the incorporation be
inseparable. If it is not inseparable, then there is no basis for
accession. Accession exists only if separation is not feasible.
Otherwise, separation may be demanded.
2 CLASSIFICATIONS OF ACCESSION
1. Accession Discreta – pertains to the fruits. Fruits under
our law are classified into 3.
Q: How are these different kinds of fruits defined by
law?
a. Natural fruits – the spontaneous products of the
soil, and the young and other products of animals;
NOTE: for the young and other products of animals, there is
no qualification that it must be spontaneous or there must
be no human intervention.
b. Industrial fruits – are those produced by lands of
any kind through cultivation or labor;
NOTE: there is human intervention.
The difference becomes more telling today especially due to
the advancement of science and technology. It is now
possible to produce a young of an animal through cloning.
This was never envisioned by the lawmakers at the time of
drafting the Civil Code. However, the legal effect remains
the same. Because the young of an animal is not qualified by
the word spontaneous. Hence, even if there is human
intervention, it remains a natural fruit.
c. Civil fruits – the rents of buildings, the price of
leases of lands and other property and the amount
of perpetual or life annuities or other similar
income (NCC, Art. 441-442).
Q: As a general rule, the fruits belong to the owner.
However, what happens if the fruit is produced through
the labors of a 3rd person? Will there be a liability on the
PAGE 94 OF 175
part of the owner with regard to the expenses incurred
by the 3rd person?
A: Remember: when you apply the concepts of accession,
whether accession discreta or accession continua, it
presupposes that a controversy has arisen and it was
resolved in favor of the owner or the rightful possessor.
Hence, the only issue remaining is whether he should be
held liable to the 3rd person for any incurred expenses in
bringing forth fruits on the property of the owner.
ART. 448 VS. ART. 443 OF THE CIVIL CODE
2 RULES
1) Rule under Art. 448 (Building, Planting, Sowing – which
looks into the good faith or bad faith of the parties)
Art. 448. The owner of the land on which anything has
been built, sown or planted in good faith, shall have the
right to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided for
in Articles 546 and 548, or to oblige the one who built
or planted to pay the price of the land, and the one who
sowed, the proper rent. However, the builder or planter
cannot be obliged to buy the land if its value is
considerably more than that of the building or trees. In
such case, he shall pay reasonable rent, if the owner of
the land does not choose to appropriate the building or
trees after proper indemnity. The parties shall agree
upon the terms of the lease and in case of disagreement,
the court shall fix the terms thereof.
2) Rule under Art. 443 (It does not look into the good faith
or bad faith of the parties)
Art. 443. He who receives the fruits has the obligation
to pay the expenses made by a third person in their
production, gathering, and preservation.
Based on the foregoing, there is therefore an instance that
there is this person causing production of fruits on a land
belonging to another. He will be entitled to reimbursement
which is anathema to what is provided under Art. 448 and
its companion Articles. In Art. 448, it is clear that if they
acted in bad faith in planting or sowing, they will lose what
they have planted and sown and they will only be entitled
to necessary expenses. Hence, we need to find out when to
properly apply Art. 443 and the clue is in the provision
itself. It only speaks of expenses in production, gathering,
and preservation. This tells us that this provision will only
apply when the fruits have already been gathered. Unlike in
Art. 448 where we can now assume that the fruits are still
standing on the land cultivated by the 3 rd person in good
faith.
It is important to make a distinction, otherwise you will be
suppressing Art. 443. It is a basic rule in statutory
construction that we will try to give all provisions of the law
an effect.
2. Accession Continua
1. Immovable Property
a. Accession Industrial
i. Building
ii. planting
iii. sowing
b. Accession Natural
i. Alluvium
ii. Avulsion
iii. change of course of rivers
iv. formation of islands
2. Movable property
a. Adjunction
b. Mixture
c. specification
ACCESSION CONTINUA WITH REGARD TO
IMMOVABLE PROPERTY ARTIFICIALLY MADE
1. Landowner is building, planting or sowing on his own
property, but using the materials of another.
Rule: With no question, the landowner is entitled to the
ownership of whatever is built, planted, or sown on his own
property. Hence, we will only be looking at the rights and
obligations of the parties and how these will affect the
general rule.
For this purpose, we need to understand whether the
landowner and/or the owner of the materials acted in bad
faith. Unfortunately, the law does not give us a definition for
the good faith or bad faith of the parties. Hence, we will have
to contend with applying our definition of good faith or bad
faith by analogy. This means that the landowner, who used
the materials of another, is acting in bad faith. On the other
hand, if the owner of the materials knew that his materials
are being used by the landowner and the former did not say
anything to such use, then he is considered to be in bad faith.
Is there an instance when a person would allow another
person to use his materials knowingly and not saying
anything about it? That is possible. For example, you want
to sabotage the owner of the land. The owner of the
materials may leave substandard materials lying around
and to the owner’s detriment, he was able to build a house
but with substandard materials. This makes the integrity of
his infrastructure questionable.
PAGE 95 OF 175
If both parties are in good faith, the landowner will just have
to pay for the value of the materials. The owner of the
materials may remove, but he only has a limited right of
removal. That is, if the removal can be carried out without
the construction being destroyed.
If landowner acted in bad faith and the owner of the
materials acted in good faith, then the landowner has to pay
for the value of the materials plus damages. But this may be
defeated by the right given to the owner of the materials to
ask for the removal of the materials. This time around, since
the landowner acted in bad faith, the right of removal is
absolute. Hence, even if it will cause damage to the
construction, the same can be removed. In conjunction with
the right for removal, there is also a right to damages.
If it is the opposite situation, meaning the landowner acted
in good faith and the owner of the material acted in bad
faith, then the owner of the materials will lose the materials
to the owner. He will not have the right to be reimbursed
and he may even be made liable for damages.
When both parties acted in bad faith, then they will be
treated as having acted in good faith.
2. A third person building on the property of the
landowner but using his own materials.
In this case, we will be applying Art. 448 and its companion
Articles. We need to consider the good faith or bad faith of
the parties. The law provides who will be considered as a
builder in good faith for Art. 448.
Q: Who is a builder in good faith for purposes of Art. 448
and its companion articles?
A: The term "builder in good faith" as used in reference to
Article 448 of the Civil Code, refers to one who, not being
the owner of the land, builds on that land believing himself
to be its owner and unaware of the land, builds on that land,
believing himself to be its owner and unaware of the defect
in its title or mode of acquisition. The essence of good faith
lies in an honest belief in the validity of one's right,
ignorance of a superior claim, and absence of intention to
overreach another.
It is a state of mind.
A builder in good faith is given a right of retention. This is
the right to hold the property until he is reimbursed for the
necessary and useful expenses but not for luxurious
expenses. Remember: This is an obligation that is
unsecured in the context of credit transaction. Here, you do
not have any security. If you are the builder in good faith,
you will have no assurance that you will be paid. But with
the right of retention, you are now given a leverage against
the owner. As long as the owner does not pay, he will not be
able to enjoy the property. That shall be enough compulsion
for him to pay.
As a general rule, to be a builder in good faith, you must also
be possessing the property in the concept of an owner.
However, jurisprudence has also provided us with
instances when the definition of a builder in good faith were
made to extend beyond situations where the possessor was
only in the concept of a holder. If you will look at this
jurisprudence that provides for the exceptions, it is hard to
tell where to draw the line. In one instance, the exception
was applied to one situation where the builders relied on
the consent of another person who they thought was the
owner of the land. This was in Sarmiento v. Agana.
TAKE NOTE OF THESE CASES:
There were 2 other instances wherein family relations were
a factor e.g. Macasaet v. Macasaet and Javier v. Javier.
In Macasaet v. Macasaet, the married couple were invited
by the in-laws to build on the land belonging to the in-laws.
In Javier v. Javier, it was the son who was invited by the
father to build on the land belonging to the father. The
Supreme Court applied the principle under Art. 448 on the
theory that the builders were invited, and the building was
with the consent of the owner. However, that does not
change the nature of their possession if they were still
possessing in the concept of a holder. But if you will read
Javier v. Javier, you will feel that the Supreme Court
implying that in the future the land will anyway be inherited
by the son at the time of death of the father. The father will
eventually pass away and the land will pass on to the son. It
is like suspended ownership.
In this light, you can say that these 2 cases are exceptions
to the rule that for you to be a builder in good faith, you
must also be possessing the property in the concept of an
owner because in these cases there is only anticipation of
future ownership.
The ruling in the case of Cagayan v. Spouses ____ also makes
sense. In said case there was a contract to sell. Unlike in
other contracts to sell, here there is already delivery of the
land. With the delivery, there was permission to build on
the land. In other words, this is short of ownership having
been transferred. There is also an anticipation of ownership
which would justify as deviation from the general
requirement that the builder must be a possessor in the
concept of an owner.
Q: How do you apply these rulings?
A: Read the full text of the cases so that you will get the feel
of the exact situation when you are supposed to apply these
rulings. When you are faced with a question of this nature,
apply the general rule. Unless the facts will squarely fall in
the facts of these exceptions.
ANOTHER IMPORTANT POINT FOR BUILDING, SOWING,
AND PLANTING:
PAGE 96 OF 175
Useful expenses, necessary expenses, and luxurious
expenses.
We need to understand what these expenses are. Part of the
problem would be correctly classifying what kind of
improvement has been introduced. From the classification
will flow what must be reimbursed, what need not be
reimbursed, what can be done and what cannot be done.
These expenses are defined in a separate chapter.
Q: Please identify and define what these expenses are.
A:
1. Necessary expenses are expenses incurred to
preserve the property, without which, said
property will physically deteriorate or be lost. E.g.
having the roof fixed, painting of property, taxes
(otherwise property will be confiscated by the
government)
RULE: both builder, planter, and sower (BPS) whether in
bad faith or good faith are entitled to recover necessary
expenses. However, it is only the builder in good faith who
is entitled to the right of retention. No right of retention is
given to a builder in bad faith.
2.Useful expenses are those which increase the
value or productivity of the property.
RULE: Only refunded to a builder in good faith with right of
retention. A builder in bad faith is not entitled to
reimbursement for useful expenses. The law also grants
limited right of removal the builder in good faith for his
useful improvements. He can only carry it out if such
removal will not damage the principal thing. Remember, the
definition of accession that the incorporation must be
inseparable. Meaning they cannot be separated without
causing damage. Apparently, the law provides for a little
qualification. In the sense that if we speak of useful
improvements, there is right of removal only if such removal
will not damage the principal thing. This is at the option of
the builder.
This may, however, be defeated by the owner who may opt
to appropriate the useful improvement.
IMPORTANT POINTS:
Hence, even if the law on accession requires inseparability,
in case of useful improvements (provided that the removal
will not cause damage to the principal thing) there may be
separation. That will not defeat the definition of accession.
Also, the limited right of retention may be defeated by the
owner who may opt to appropriate (pay for) the useful
improvement.
Q: What if the owner is interested in the useful
improvement but he also made a determination that
the useful improvement cannot be removed without
damage to his property?
A: In this case, the builder in good faith cannot actually
exercise his limited right of retention because it will cause
damage to the principal thing.
Q: We said that the limited right of retention may be
defeated by the owner who may opt to appropriate the
useful improvement. But in the above-mentioned
scenario, can the owner refuse to reimburse the builder
in good faith for the useful improvement because
removal of such will cause damage to the property? Can
he now get the useful improvement for FREE? (In other
words, yung owner gusto lang maka-lamang.)
A: The very provision which defines useful expenses uses
the mandatory word: “shall”. Hence, it is mandatory. You
have to pay for the useful improvement. It only becomes
optional when there is an exercise of the limited right of
removal. That’s the only time when the landowner may
choose between appropriating or not appropriating to
defeat the limited right of removal.
Before applying principles of equity such as unjust
enrichment, make certain that there is no certain law
applicable to the case. If there is a law applicable, equity has
no place.
NOTE: Payment of useful expenses only become optional
when the limited right of removal is exercised by the builder
in good faith. It is important to grasp this rule on useful
expenses.
3. Luxurious expenses are expenses incurred for
improvements introduced for pure luxury or mere
pleasure. E.g. embellishment to the property.
RULE: The law is explicit. It is not to be refunded to a builder
in good faith. No obligation to reimburse for luxurious
expenses. Luxurious expenses are not refundable even if
made by a possessor who is in good faith.
But, the builder in good faith is given a limited right of
removal as well. And it is in relation to the exercise by the
builder in good faith of this right of removal that the
occasion for reimbursement may occur. How? Again, to
defeat the exercise by the builder in good faith of this
limited right of removal.
Student’s own note: The builder, whether in good faith or
in bad faith, shall not be refunded but he has a limited right
of removal, i.e. he may remove if the principal thing suffers
no injury thereby, and if the lawful possessor does not
prefer to refund the amount expended.
Back to discussion:
Hence, when you are faced with a problem as to which
provision to apply, you must properly classify what the
improvement is.
Rules which determine the rights and obligations of the
parties depending on their good faith or bad faith
PAGE 97 OF 175
Q: Let’s say both parties, the owner and the builder are
in good faith. What will be the rules that will be
applicable for their rights and obligations?
A: The landowner may choose to appropriate the building
subject to reimbursement of the necessary and useful
expenses. Pending reimbursement, the builder has the right
of retention. The landowner may also choose to sell the
property which must be purchased by the builder in good
faith but he is not compelled to purchase such property if
the value of the land is considerably greater than the
building etc., in which case, the builder will be obliged to
pay rent.
The parties shall agree upon the terms of the lease and in
case of disagreement, the court shall fix the terms thereto.
NOTE: the option is given to the landowner. He can choose
between selling or renting the property to the builder.
Q: Why is the landowner given the option?
A: The accessory follows the principal. The rights of the
owner will be greater than the builder. Hence, the option is
given to him.
Q: There will be an instance wherein the landowner
may refuse to make a decision. What is the REMEDY of
the builder?
A: The builder may initiate a court action to ask the
landowner to decide.
Q: What kind of action must be filed?
A: Action for specific performance to compel the landowner
to make a decision. The court will not make a decision for
the landowner because the court is not authorized to do so.
He will simply be compelled to make a decision.
Sometimes, the reason why the landowner does not want to
make a decision, is that the decision that he wants to
exercise is not among the options given to him. For example,
he wants the improvement to be removed. That is not an
option given by the law in case both of the parties are in
good faith.
Q: Why would the landowner choose removal instead of
paying for it, selling, or renting it out?
A: Not every house built on the land is according to the
“taste” of the landowner. For example, you’re a macho man
and another person built a very girly house on your land,
the improvement is not to your liking. You don’t want to sell
your property because this is location you have chosen for
your dream house. You also don’t want to be stuck with the
house that was built thereon by the builder in good faith. So,
in this case, you want the house to be removed. But
demolition will cost money.
The SC in one case held that if the landowner elected to sell
the property but the builder has no resources to pay, then
the landowner may require the builder to restore the
property to its former condition or removal of what was
built. However, this is risky, because what if the builder has
money and what the landowner really wanted was for the
house to be removed?
But if his desire to have that improvement removed is
greater than his fear of losing the property, then that is his
option.
Q: What will be the basis for the valuation of the useful,
necessary, and luxurious expenses?
A: For necessary expenses, the basis is actual expense
incurred by the builder.
For useful expenses, the basis is the current value of the
improvements.
For luxurious expenses, the basis is the amount incurred
at the time the luxurious expense was made.
This came from jurisprudence. This is not the definition
provided under the law.
Q: How was such valuation justified by the Supreme
Court? What made the SC deviate from what the law
provides?
A: The purpose of the law in providing the right to be
reimbursed to the builder in good faith is to avoid unjust
enrichment and this purpose is achieved if we will value the
improvement at its current market value.
Q: Let’s say that the choice was for the builder in good
faith to pay for the price of the property of the
landowner (meaning, the landowner chose to sell the
land to the builder). How much should the land be
valued?
A: The law does not tell us how much. But it should be the
fair market value of the land reckoned at the time when the
landowner made his choice to sell the lot and not at the time
that the property was purchased. This is the ruling in Vda.
De Roxas v. Our Lady’s Foundation (March 2013).
Q: What if the builder acted in bad faith?
A: This should be your favorite because the rules here are
very simple.
Here, the builder loses everything that he produces on the
property, subject to certain exceptions:
RULE: If the builder acted in bad faith, he loses everything
that he produces on the property without right to be
reimbursed except necessary expenses BUT without right of
retention. More importantly, the landowner may compel the
builder to remove the improvement. He may also compel
the builder to buy the property occupied by the
improvement, or to lease the property that has been planted
or sowed with the right to damages in all instances.
PAGE 98 OF 175
In case the circumstances under Art. 443 applies, meaning
to say, if by the time there is transfer of possession to the
owner, the fruits having been delivered to the owner
because they have been harvested, gathered, and stored,
then there will be a right to be reimbursed for the expenses
under Art. 44, even if the builder acted in bad faith.
How do we know that the builder was in bad faith? How
does the law define a builder in bad faith?
If the builder knows that has a defect in title or he knows
that he does not own the land, then he is considered a
builder in bad faith.
Q: Supposing this time that it is the owner who was
acting in bad faith and the builder was in good faith,
how do we know that the landowner was acting in bad
faith?
A: He allows the builder to build on his property without
calling the attention of the builder or objecting to such
building. In this case, apply the provisions of Art. 447:
Article 447. The owner of the land who makes thereon,
personally or through another, plantings, constructions
or works with the materials of another, shall pay their
value; and, if he acted in bad faith, he shall also be
obliged to the reparation of damages. The owner of the
materials shall have the right to remove them only in
case he can do so without injury to the work
constructed, or without the plantings, constructions or
works being destroyed. However, if the landowner
acted in bad faith, the owner of the materials may
remove them in any event, with a right to be
indemnified for damages.
Treat the builder as an agent of the landowner. In other
words, the builder in good faith will be considered as the
owner of the materials. The agency refers to the
service/effort rendered by the builder: as if the owner was
acting thru such builder and using the latter’s materials.
If both parties are in bad faith, then they will be treated as
though they were both acting in good faith.
ACCESION NATURAL WITH REGARD TO IMMOVABLE
PROPERTY
You are very familiar with this. We will not belabor these
provisions. But I will emphasize the provision pertaining to
alluvium. This is a consistent source of bar exam questions.
The question has always remained the same. It will always
involve accrued land attaching to registered riparian land.
Q: Will the registered owner have to do anything to
acquire ownership over the accrued portion of land
brought about by the ALLUVION?
A: No, he does not have to lift a finger to acquire ownership
over the alluvium. However, acquisition is not the same as
registration. He will have to register it. If he does not do so,
he runs the risk of losing the accrued portion thru
acquisitive prescription that may be exercised by a 3 rd
person.
ACCRETION CONTINUA IN RELATION TO MOVABLE
OBJECTS
The provisions here are self-explanatory. But I will
emphasize commixtion and confusion. It has a different
outcome in all instances of accession. Thus far, when we
speak of accession, it grants ownership either to the owner
of the principal or to the owner of the accessory. But
commixtion or confusion is different. They generally result
to co-ownership. Unless there is fault or bad faith on the
part of either parties. In which case, the party in bad faith
will lose ownership over his own property.
Student’s own notes:
Mixture
It is the combination of materials where the respective
identities of the component elements are lost either
voluntarily or by chance.
Kinds of mixtures
1. Commixtion – mixture of solids
2. Confusion – mixture of liquids
QUIETING OF TITLE
Q: What is an action to quiet title?
A: It is a proceeding in equity, the purpose of which is the
declaration of the invalidity of a claim on a title or the
invalidity of an interest in property adverse to that of the
plaintiff, and thereafter to free the plaintiff and all those
claiming under him from any hostile claim thereon.
It is an action filed to put an end to vexatious litigation in
respect to the real property involved.
NOTE: The instances when you can file an action to quiet
title are very specific:
1. Plaintiff must have a Legal or equitable title to, or interest
in the real property which is the subject matter of the
action;
NOTE: He need not be in possession of said property (NCC,
Art.477)
2. There must be Cloud in such title;
3. Such cloud must be Due to some:
a) Instrument;
PAGE 99 OF 175
b) Record;
c) Claim;
d) Encumbrance; or
e. Proceeding which is apparently valid but is in truth
invalid, ineffective, voidable or unenforceable, and is
prejudicial to the plaintiff’s title; and
4. Plaintiff must
a) Return to the defendant all benefits he may have
received from the latter; or
b) Reimburse him for expenses that may have
redounded to his benefit.
NOTE: even a proceeding may be a source of cloud on the
title. Hence, it may also be a subject of an action to quiet title.
Q: We have 2 scenarios that may be obtained here:
1. The instrument is really without effect for being void,
voidable, unenforceable or ineffective.
2. The instrument did have an effect, but the effect has
already ceased. Either because prescription has set in or it
was already extinguished or terminated.
Example: For instance, there is an instrument which
pertains to your parcel of land and that instrument says that
you have sold that parcel of land to Pedro. But you never
signed that instrument. Your signature was FORGED.
Therefore, quite clearly, at least to you, that instrument is a
nullity. Since it is a nullity, you have the option not to do
anything because a void instrument is without legal effect.
It is legally inexistent and your right to question the same
or to invoke nullity as a defense does not prescribe.
You can wait until there is an action in court to enforce the
contract as against you or action for specific performance to
make you deliver the property. In that action, you may
invoke the defense that the instrument is null and void
because your signature was forged.
In the meantime, this instrument is existing. It can be shown
to multiple people and such people may rely on that
instrument and transact with the supposed buyer, and then
acquire rights that in the future may be sustained by the
court based on the principle of buyer in good faith and for
value. It may also happen that you will die and the heirs you
will leave behind will not be knowledgeable ab0ut the
transaction. They may not be familiar with your signature.
Hence, the heirs, upon seeing the instrument, may believe
on its validity. They will not have personal knowledge to
equip them with the motivation to question the contract.
Example: You saw a Deed of Sale bearing the signature of
your grandfather, can you say with certainty that such
signature was forged? That the signature is fake? No. The
instrument was created a long time ago. That is why this
serves a purpose. You can put an end to any controversy
that may arise on account of that instrument by filing an
action to quiet title.
CO-OWNERSHIP
There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons (NCC,
Art. 484).
It is the right of common dominion which two or more
persons have in a spiritual (or ideal) part of the thing which
is not physically divided.
Q: How is co-ownership created?
A: It can be created by law, contract, succession, and
occupation.
NOTE: actually, when you say it is created by law, that will
already subsume succession. That happens when the
decedent dies intestate, without a will. Automatically there
will be co-ownership among the co-heirs over the property
in the estate.
Co-ownership involves different owners who have rights
over the same property. As co-owners, their interest will
not always be equal. Their interest may vary. It is not always
50-50.
We have to make a distinction between quantitative
interest and qualitative interest. It may be, that as a co-
owner, you have 25% interest over the property, but it does
not mean that you get to enjoy only 25% of the property.
Let us say the subject of co-ownership is a house and you as
co-owner, you only have 25% interest, and the other co-
owners have ¾ or 75% interest. But even then, you are
entitled to use the entire house. You will not be confined to
only ¼ or 25% of the property.
As co-owner, you are entitled to use the property in
accordance with its purpose, so long as in using the same
you are not injuring the rights of the other co-owners.
Q: Filipinos usually have a family home and the family home
here is not the ‘family home’ as defined under the Family
Code. ‘Ancestral homes’ may be the more apt name for it.
We are speaking of a house that your grandfather and
grandmother lived in. Where your parent and his siblings
grew up. Eventually, ancestral homes are emptied.
Everyone leaves. But the parent who will be left behind,
they are sometimes lucky to have a child who will be staying
with them. Then this child would be eventually living in that
ancestral home after the parents are gone. Meanwhile, the
other siblings who are now abroad or in Manila want to
charge the child living in that ancestral home payment of
rent. I-awas na lang daw yung 25% na share. Is their
demand for payment of rental have any basis?
PAGE 100 OF 175
A: NO BASIS. The one co-owner who stayed in the ancestral
house is entitled to the full use of the property and not
merely use of ¼ or 25% of the property.
Q: What about the other siblings who do not get to use
the property? Can they be compensated money in lieu
of using the property physically?
A: No. They are free to use the property, but they chose not
to exercise their right.
BOTTOMLINE: The co-owner who stayed in the ancestral
house is entitled to use the entire property. In this case, he is
not excluding the other siblings from using the property. It
will be a different matter when the co-owner who remains
in possession of the property decides to rent out the
property to 3rd persons e.g. he will convert the ancestral
house as an Air BNB. In such case, the other siblings can ask
for their share in the profits. This time around the use of the
property is no longer in accordance with the purpose of the
co-ownership.
Q: One important consequence of ownership is that
each co-owner will share in the benefits and charges in
proportion to their respective interests. Can there be a
stipulation providing otherwise?
A: No, they cannot stipulate. The share of the co-owners in
the benefits and charges arising from the co-ownership
shall be proportional to their respective interests and any
stipulation in a contract to the contrary shall be void (NCC,
Art. 485, par. 1).
Q: Can a co-owner avoid payment of charges and
expenses?
A: He can but he must renounce his interest in the co-
ownership to the extent of the charges.
However, there are instances when this cannot be done.
RULE: A co-owner may opt not to contribute to the
expenses for the preservation of the property.
GR: Yes, by renouncing his undivided interest equal to the
amount of contribution.
XPN: If the waiver or renunciation is prejudicial to the co-
ownership, otherwise he cannot exempt himself from the
contribution (NCC, Art. 488).
Q: Can you cite instances when renunciation will be
prejudicial to the co-ownership?
A: When the remaining co-owners do not have the financial
capacity to pay for the taxes and the one renouncing the
share has such financial capacity.
Q: Who decides for the co-ownership when it comes to
incurring expenses or other matters of administration?
A: In case of matters of administration, it is required that
majority of the co-owners consent to it.
Q: Tell me who decides in matters involving:
a) Ejectment: any of the co-owners because of the
fiduciary relationship among co-owners. The
theory is that any of the co-owners can act on the
interest of the co-ownership as a representative.
SUB-Q: If a co-owner brings a suit for ejectment on his
own and loses, how will this affect the other co-owners
who did not join him in such suit?
A student’s answer:
As a general rule, prejudicial acts of one co-owner will not
bind the other co-owners. However, when a co-owner
brings an action for ejectment and loses, such judgment will
bind the other co-owners. Otherwise, if that will not be the
case, then the other co-owners can keep on filing an
ejectment action against the defendant.
NOTE: Remember, that will only be true if there was an
authorization. But in our facts, he sued on his own because
the law allowed him to do so.
Another student’s answer:
If the law will allow several co-owners to pursue several
actions based on the same cause of action, there will be
multiplicity of suits. This will unduly burden the court.
Q: But that is a procedural rule. Are we putting a
premium on the procedural rule over substantive law?
Shouldn’t substantive law prevail over procedural law?
What can the defendant do in case he is only sued by a
co-owner?
A: He can ask the court to bring in the other parties on the
ground that the other parties are necessary or indispensable
parties. This is to put an end to the lawsuit. The suing co-
owner does not want to bring them in, under substantive
law, that will not bind the other co-owners who were not
joined in the lawsuit.
As a defendant you must to make them join. Ask the court
that the other co-owners be joined as necessary or
indispensable parties. We cannot presume that the co-
owner who brought the lawsuit is acting in favor of the co-
owners. For all we know, he may be in cahoots with the
defendant. He may be bringing the lawsuit with the
intention to lose on purpose. (THIS IS THE CORRECT
ANSWER)
Hence, the RULE is: If the case does not prosper:
GR: The other co-owners are NOT bound by the judgment.
XPN: If they were also served with summons, even as
unwilling plaintiffs.
The remedy of the defendant is to ask the court that the
other co-owners be joined as necessary or indispensable
parties.
PAGE 101 OF 175
b) Repairs and preservation
Q: Who may make the decision?
A: Any of the co-owners.
Q: Will there be any condition on his power to make
such decision?
A: He must notify the other co-owners for such repairs.
Q: Does it require the consent of the other co-owners?
A: No. He must notify the others prior to making the repairs
but only if doing so is practicable under the circumstances.
c) Improvement/ embellishment of the property or any act
of administration
Q: Who may make that decision?
A: The majority of the co-owners.
Q: When we say majority here, is it numerical majority?
A: The co-owner who has the controlling interest.
Q: Is it possible that if you have 7 co-owners, a single co-
owner (1 out of 7 co-owners) can make a decision to
improve or embellish the property?
A: Yes, so long as he has the controlling interest.
Q: Can you tell me how, in this example when we have 7
co-owners that a co-owner may have the controlling
interest?
A: The deciding co-owner may have 70% percent interest
over the co-owned property. Only 30% to be distributed to
the 6 remaining co-owners (5% interest each). Quite
clearly, the deciding co-owner having 70% interest in the
co-owned property would have controlling interest.
Q: Supposing that the decision was made by the
majority co-owner (co-owner with controlling interest)
and the minority co-owners are not in agreement with
the decision, what can they do? What can the minority
co-owners do?
A: Go to COURT. Ask the court for the proper remedy. The
court may, in some instances, place the property under
administration.
NOTE: the same remedy is available when there is no
majority or when the majority cannot be determined.
d) Alterations
Q: Who may be allowed to decide on such alteration?
A: Acts of alteration must be with the UNANIMOUS consent
of the co-owners.
It must be unanimous.
Q: What do you understand by alterations?
A: It changes the very essence or the nature of the thing co-
owned.

PAGE 102 OF 175


NOVEMBER 26, 2020
CO-OWNERSHIP
Q: When the law speaks of alteration in Art. 491, what
does it mean?
A: Something which changes the substance of the thing
owned in common or an act of dominion or ownership
which would include encumbrance or alienation.
Art. 491. None of the co-owners shall, without the
consent of the others, make alterations in the thing owned
in common, even though benefits for all would result
therefrom. However, if the withholding of the consent by
one or more of the co-owners is clearly prejudicial to the
common interest, the courts may afford adequate relief.
Since unanimous consent is required, you can also see
how it is possible for the minority co-owners to actually
veto the decision by simply not giving their consent to the
action to be taken.
Which can be frustrating for those who have majority
interest, but the law does not leave them without any
remedy. It says that if the decision of the minority of
withholding consent is prejudicial to the co-ownership,
then the consenting co-owners may go to the court for
relief. It’s possible to compel the non-consenting owners for
their consent.
Q: Since in our definition of consent as including the act
of alienation, is it possible for the other co-owners who
are willing to sell the entire property to go to court to
compel the non-consent co-owner to give his consent to
the sale?
A: This has already been settled, the SC has said that Art.
491, paragraph 2 does not apply in situations where the
decision is to sell.
In other words, the co-owner who does not want to sell may
not be compelled under paragraph 2 of Art. 491 to consent
to the sale of the entire property. The Court recognizes that
the co-owner is the sole owner of his proportionate interest.
Between the rights of the co-ownership and the dominion
enjoyed by the co-owner over his proportionate interest, it
is the latter which would prevail.
CLARIFICATION: Why do we need the consent of that co-
owner to the sale?
A: because it is the sale of the entire property. If one of them
refuses to the transaction, what would result is a sale but
not of the entire property. It would still be a valid sale but
not just complete.
PAGE 103 OF 175
Q: What is the next consequence of co-ownership?
A: Each co-owner enjoys full ownership over his
proportionate share. He can do whatever he wants to the
proportionate share without requiring the consent of the
other co-owners.
A co-owner may encumber, sell, dispose, transfer his
proportionate share in favor of any person without the
consent of the other co-owners.
Q: What are the exceptions?
A: Exceptions to the rule that a co-owner may validly
alienate his proportional share without the consent of the
other co-owners are:
1. When the property is personal in character.
2. Art. 147, par. 3 of the Family Code
Q: What is the 1st exception?
A: One would be if the property co-owned would be
personal in character.
An example would be a family residence if we are dealing
with the house and lot which serves as the family residence
of the co-owners. This is personal in character, specially if
all the co-owners live in that house.
Q: What determines whether or not a property is
personal in character?
A: The circumstances surrounding its ownership and use.
Q: What is the second exception?
A: Art. 147, paragraph 3. The law explicitly prohibits either
party from encumbering or disposing by acts inter vivos by
property obtained during the cohabitation and owned in
common, so long as the co-habitation has not been
terminated.
Art. 147, par. 3. Neither party can encumber or dispose
by acts inter vivos of his or her share in the property
acquired during cohabitation and owned in common,
without the consent of the other, until after the
termination of their cohabitation.
The co-ownership under Art. 147 may actually outlive the
relationship of the parties. And should this happen, the co-
ownership under Art. 147 would be transformed into an
ordinary co-ownership after the co-habitation.
And the transformation would consists of the fact that the
parties can now dispose and encumber their interest
without the consent of the other.
LEGAL REDEMPTION
Q: Supposing that a co-owner sells his share in the co-
ownership, we have established that the consent of the
other co-owners is not needed to make the sale valid, is
this to say that the other co-owners are totally without
power to prevent the sale?
A: No, because the law allows the right of legal redemption.
Q: Where is this provided?
A: Article 1620 of the New Civil Code.
Article 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the other co-
owners or of any of them, are sold to a third person. If the
price of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right
of redemption, they may only do so in proportion to the
share they may respectively have in the thing owned in
common. (1522a)
Q: What is the right to legal redemption?
A: Legal redemption is the right to be subrogated, upon the
same terms and conditions stipulated in the contract, in the
place of one who acquires a thing by purchase or dation in
payment, or by any other transaction whereby ownership is
transmitted by onerous title.
It is the opportunity to buy back the proportionate interest
of the property that has been sold.
Q: But there are conditions, what are the conditions?
A: the co-ownership must still be existing, which means that
there must have been no partition yet. If there has been
partition then we would not speak of legal redemption
anymore.
Q: When should the right to legal redemption be
exercised?
A: 30 days reckoned from the time of written notice by the
vendor.
Q: When the law speaks of vendor, who does it mean?
A: it is the co-owner who sold the property.
Q: Why is it that the obligation to give notice is imposed
upon the vendor and not the vendee?
A: Because it is the co-owner who is in the best position to
know who his co-owners are as well as details as to the
transaction. He therefore know who to give notices to.
Q: As to the manner of giving notice, what is the
requirement? (this is mandatory)
A: the law is clear that it must be notice in writing.
PAGE 104 OF 175
For a while, the SC was vacillating between strict adherence
to the requirement of written notice and actual knowledge.
But the most recent jurisprudence on the matter upholds
the mandatory character of the requirement of written
notice.
This is now the prevailing rule: There must be written
notice.
Q: There is a corollary question as well, does it matter
who gives the notice?
A: It does not matter. The SC has clarified that it does not
matter who gives the notice, so long as notice in writing has
been given.
This ruling makes sense as the law gives the duty to provide
notice to the vendor on the theory that he knows best and
he knows who the other co-owners are.
If for example the question of who the other co-owners are
is not even an issue then it follows that it does not really
matter who gives the written notice.
Bayan vs. Bayan
G.R. No. 220741, 14 August 2019
FACTS: A co-owner encumbered the co-owned property
but to do this, he forged the signature of the other two co-
owners in an SPA that he prepared. On the basis of this SPA
he mortgaged the co-owned property. When the other co-
owners discovered this, they filed an action to nullify the
SPA and by extension the mortgage as well. While the case
was pending, the mortgagees foreclosed on the mortgage.
Mortgage proceedings ensued which resulted in the sale of
the property and in the issuance of the certificate of sale.
All of these developments were known to the other co-
owners. They were notified in writing. In fact in one of their
pleadings they alleged that there was a certificate of sale
which was issued.
Subsequently, the Court nullified the SPA and the mortgage
but only insofar as the other two co-owners are concerned.
In other words, the mortgage was sustained to be valid in
regards to the share of the mortgagor co-owner.
The parties filed a motion for partial reconsideration and in
that motion they asked that they be allowed to exercise
their right of legal redemption. This was something that
they raised for the first time.
ISSUE: Whether or not the parties can exercise their right
of legal redemption
RULING: No, the parties cannot exercise their right of legal
redemption as the same has already prescribed.
The SC held that they had had written notice of the sale of
the property. They knew that the property had been sold
but they did not exercise their right of legal redemption.
Now they come years later after the court has nullified the
SPA and the mortgage it is only that they raised the issue.
The 30 days by which they could excessive the same, began
from the time they had written notice. At the very least that
would have started from the issuance of the certificate of
sale. Once that certificate has been issued the rights of the
mortgagor in relation to the property would be terminated
and it perfects the right of the purchaser of the property.
❖ What is important in this case?
It is a reiteration of the rule that so long as there
has been written notice, it does not matter who
provides the same.
Q: How will you exercise your right of legal redemption
under Art. 1620?
A: This is exercised by paying the price for which the share
was sold. If the price happens to be excessive, then the
redeeming co-owner’s may simply pay a reasonable price
for the proportionate share.
Q: Art. 1620 has a counterpart provision in our law on
succession and this is Art. 1080. Under this article, the
law is stricter.
A: Under this provision, the redeeming co-heirs will have to
pay the price for which the share of the selling co-heir was
sold. There is no option to sell in a reasonable price if the
price happens to be excessive.
Article 1080. Should a person make partition of his
estate by an act inter vivos, or by will, such partition shall
be respected, insofar as it does not prejudice the legitime
of the compulsory heirs.
A parent who, in the interest of his or her family, desires
to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted
him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be
paid in cash.
Q: When do we apply 1080 and when do we apply 1620,
when we are dealing with co-heirs as co-owners.
A: As we all know when you die with several heirs, it is
automatic co-ownership among them.
According to Sen. Tolentino, if the thing that is co-owned
refers to the entire hereditary rights, meaning to say there
is no specific property involved, you will apply Art. 1080.
EXAMPLE: Let us say there is an entire estate and you have
4 co-heirs and each one of them will be getting ¼ of the
estate, and should A sell his proportionate share of the
PAGE 105 OF 175
inheritance, others may redeem under Art. 1080 because
there is no specific property which is involved.
However, if it has gotten to the point that the heirs have
been allotted a specific property, a house and lot for
instance, and A sells his proportionate share in the inherited
house and lot, what we apply is Art. 1620 because specific
property is involved.
Q: Supposing that what the co-heir did was to sell the
entire property, what would be status of the sale?
A: The Sale would be valid to his own share but the Supreme
Court would be silent as to the status of the sale with regard
to the sale of the shares of the others.
The uncertainty stems from a provision of the law which
states that if you enter into a contract without any authority
or in excess of your authority, that makes the contract
unenforceable. It does not make the contract null and void.
An unenforceable contract is a valid contract and may even
be ratified.
However we saw in Bayan vs. Bayan that the Supreme Court
invalidated the mortgage in so far as the other two co-
owners are concerned. The invalidation of the mortgage
stemmed from the invalidation of the SPA because it was a
forgery.
Q: Let us extend this situation (previous paragraph)
where what is involved is a sale of a parcel of land. A co-
owner would sell a co-owned land by himself and
without the authority of the others, what is the status of
the sale?
Given that it is valid insofar as his share is concerned,
but what about the shares of the others?
A: It would depend on the allegations of the complaint.
If you were to assail the lack of authority for lack of an SPA,
and you know you cannot sell land without an SPA in
writing, it will make the sale null and void. Then, it would be
null and void. But that is because you represented to be
selling on behalf of the other co-owners.
Supposing, you glossed over that fact and you simply sold,
you glossed over the fact of misrepresentation in your
complaint. Here, the unenforceable character because you
acted without authority or in excess of your authority.
*Pero masyado na yang malalim na discussion for the bar
exams
Q: For example, you were asked this question, how will
you answer?
A: Just like how the rulings have been teaching you how to
answer.
You say that the sale is valid insofar as the sale of the selling
co-owner is concerned.
Q: What is the remedy of the other co-owners if they are
not happy with having the new co-owner with them in
the ownership?
A: to ask for partition or to sell their own shares to get out
of the co-ownership.
Q: When we say that the co-owner has the right to
dispose of his proportionate interest, we have to keep
in mind that what he can dispose of is his ideal share.
What does this mean?
A: He cannot specify any portion or part of the co-owned
property to be the subject of the sale.
For example, in a sale of a lot and there are 4 co-owners you
cannot say that your portion is the upper right portion of
the lot. Even if the contract between the co-owner and his
buyer should so specify that that is the portion which is
subject of the sale, the sale would still depend on the results
of the partition.
PARTITION
Q: Another consequence of co-ownership is that no
person shall be compelled to stay in the co-ownership.
What is the consequence of this?
A: Any one of the co-owners may ask a partition at any time.
Subject to certain exceptions.
Q: What are these exceptions?
A: The exceptions are the following:
1. If there is an agreement between the co-owners,
however this agreement cannot exceed a period of
10 years and can only be renewed once;
2. In cases of donation and succession where the
donor or the testator expressly prohibits partition,
however this prohibition cannot exceed a period of
20 years;
3. When it is prohibited by law; and
4. When the partition would render the common
property unserviceable to the use intended by the
parties.
Q: Give an example when partition is prohibited by law
A: the case of a Family Home. A Family Home may not be
subject to partition for a period of 10 years from the time of
death of the owner of the Family Home or so long as there
is a minor beneficiary residing in the same, which ever lasts
longer.
Q: How do you effect a partition?
A: It is anything which is designed or aimed to put to an end
the co-ownership. For this reason, selling the co-owned
PAGE 106 OF 175
property for the purpose of dividing the proceeds among
the co-owners may also be taken as a form of partition.
Q: It is ideal that the partition is carried out by
agreement but a voluntary partition presupposes that
the co-ownership is recognized. But sometimes that
becomes the issue, whether or not there is a co-
ownership.
A: This is usually the case when the parties cohabited under
Art. 147 (cohabitation without the benefit of marriage but
are capacitated to marry or cohabitation under a void
marriage) or 148 (cohabitation not falling under Art. 147)
of the Family Code.
Once the relationship deteriorates and the parties break up,
the tendency is to argue over properties. Hence, before
partition could be effected, the fact of co-ownership must be
established.
Q: So you have to establish that fact, how?
A: You go to court and file an action for declaratory relief in
order to establish the rights and the obligations of the
parties in connection with the property.
Once that has been established, the parties may either
decide to partition by agreement or ask the court to effect
partition if they cannot by themselves have an agreement.
The latter would be the case of judicial partition.
However, judicial partition would be more expensive
because it is not the court itself which would evaluate the
value of the property. There would be a commissioner and
of course the expenses for the commissioner would be
charged to the parties.
Q: The partition puts an end to the co-ownership but it
does not necessarily put an end to the obligation of the
parties to one another, why is that so?
A: Because after partition there should be mutual
accounting and other residual liabilities for any defect in the
title or in the character of the thing that has been allotted in
the partition.
The other co-owners may be liable should you suffer
damage from the partitioned property due to its defects or
in its make up.
PRESCRIPTION
Q: Another consequence of co-ownership is that
prescription does not lie against a co-owners. No
matter how long anyone of the co-owners may have
been in possession of the co-owned property. Why?
A: Because the theory is that possession of a co-owner is
actually in trust for the others. Prescription will only begin
to run when there has been repudiation of th e co-
ownership.
The Repudiation must be proven by clear and convincing
evidence.
Q: Give an example of a clear sign of repudiation
A: One clear sign would be when one of the co-owners
registers the property solely in his name.
Another would be if he brings an action for ejectment
against his co-owners. Because normally an ejectment
action cannot lie against another co-owner but if the suing
co-owner is repudiating the co-ownership and he is suing
precisely because he wants to establish sole dominion then
that ejectment suit may be allowed.
POSSESSION
Q: How do you define possession?
A: Holding of a thing and the enjoyment of a right.
Q: What are the requisites that must be met for
possession to exist?
A: The requisites are:
1. There must be actual occupancy; and
2. There must be intent to possess the property
Q: Keep in mind that it is not just the thing which may
be subject of the possession but also the right. And you
possess the right how?
A: by exercising the right.
The thing is tangible, you can actually have it your hands.
However, the right, unless you exercise it, there would be
no indication that you have that right.
Q: There are different classes of possession
A: these are:
1. Possession in one’s own name;
2. Possession in the name of another;
3. Possession in the concept of a holder;
4. Possession in the concept of an owner;
5. Possession in good faith;
6. Possession in bad faith
Q: What does it mean to be when the possession is in
one’s own name.
A: Both the fact of possession and the right of possession lies
with one in the same person and that there is recognition
form a third person that that person is the owner of the said
thing or right.
PAGE 107 OF 175
Q: And what does it mean when you are in possession of
a thing in the name of another?
A: it is possession by mere agency or instrument, there is no
right as compared to possession in one’s own name.
Q: Why is there confusion between the concept of
possession in the concept of a holder and possession in
the name of another?
A: Because in both these instances, rightful possession is
recognized in another person.
The difference between the two is that in a possessor in the
name of another has no rights at all. He is a mere conduit
or agent.
An example of this would be a security guard, you would not
be able to enter the UST Main building without
encountering the security guard. But the security guard has
no rights at all and his authority to disallow you to enter the
building stems not from his ownership of the building but
because of the rules set down by the owner of the building.
A possessor in the concept of a holder is different
because he has a right to the property. Although at the
same just like a possessor in the name of another, he
recognizes ownership or better rights to the property in
another person.
Q: What is possession in the concept of an owner? What
does the law mean when it says “concept”? Whose
concept are we talking with? Whose perception matters
here?
A: The perception that matters is the belief of third persons
or others.
When we say concept, the law speaks of concept meaning
the perception of third persons have of you. Third persons
would perceive you based on your demeanor and how you
project yourself to be.
They will only have the perception that you are the owner
of the property, if you act though you are the owner of the
property.
Q: How do you act like the owner of the property?
A: By exercising acts of dominion over the properly.
If it is a lot then an act of dominion would be building a fence
around the property. If it is a dog, then it would be the act of
putting a collar around the dog.
Q: When we talk about possession in good faith and
possession in bad faith, this means that we have
reached the point wherein the rightful owner has
recovered the property. Why?
A: because if there no rightful possessor, we would no
longer talk about possession in good faith, we would be
talking about an owner. There would not be a defect in the
title. Always keep this notion in your mindset.
The moment you speak of a possessor in good faith there
has already been a recovery or a finding that the possessor
must recover the property.
You must also be aware that a possessor in good faith must
necessarily become a possessor in bad faith at some point.
There would be a transformation because at some point he
would become aware of the defect in his title.
The only thing separating a possessor in good faith from a a
possessor in bad faith is his lack of awareness that there is
a defect in his title.
Q: Who is considered to be a possessor in good faith?
A: A possessor in good faith is one who believes that he
owns the property and so believes because he has at least
colorable title to the property.
Q: What do we mean by colorable title?
A: It just means that the possessor has basis to believe that
he has the right to the property.
Q: When we talk about title do we just mean Torrens
Title?
A: No, when we talk about colorable title, title here can be
any basis for his assertion of ownership. It can be
succession, donation, or even a sale which he believes to be
valid. And he is now aware that there is a defect in his title.
Q: When would he cease to be unaware?
A: The burden lies with whom ever is asserting that fact. In
our laws, good faith is presumed. Couple this with the rule
that possession continues in the character in which it was
acquired.
So if the presumption of good faith applies, that possession
would be considered as having continued in good faith until
the contrary is proven. If you fail to prove the contrary then
it would still be taken as possession in good faith.
(Unnamed case)
FACTS: There was no allegation much less proof that at
anytime prior to the filing of the complaint, that the
defendant was made aware of the defect of his title.
ISSUE: When did the defendant cease to be a possessor in
good faith?
RULING: SC held that in this situation we can only say that
the defendant became aware of a possible defect in his title
when he was served his summons. It was only from this
point that the defendant became a possessor in bad faith.
PAGE 108 OF 175
Q: Why is the reckoning point where possession in good
faith material? What are the legal consequences?
A: The rights and obligations of the parties with regard to
improvements, loss, fruits are dependent on good faith and
bad faith.
Q: May Good faith be based on a mistake of law?
A: Yes, good faith may be based on a mistake of law. This is
an exception to Art. 3 of the New Civil Code. This exception
can be found in Article 526 of the New Civil Code.
Art. 526 says that a mistake upon a difficult or doubtful
question of law may be the basis of good faith.
Article 3. Ignorance of the law excuses no one from
compliance therewith.
Article 526. He is deemed a possessor in good faith who
is not aware that there exists in his title or mode of
acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in
any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may
be the basis of good faith.
Q: How does one acquire possession?
A: This has no difference with our rules on Sales. Under the
law on Sales, there must be delivery to transfer ownership.
Delivery connotes transfer of possession.
When you make a delivery, the other takes the possession.
The manner by which you make delivery is also the manner
takes possession.
So possession may be actual or constructive depending on
the way that you make the delivery.
Q: However it’s a different matter when it comes to
succession, why?
A: Because in succession by legal fiction, the heir is
considered to have been in possession from the time of the
death of the decedent. However, this requires acceptance.
Q: Why do we say legal fiction?
A: Because from the time the decedent dies to the time that
there is settlement of the estate and there is order of
partition.
There is a lot of things which could happen. In between it is
possible that the inherited property may be in the
possession of other people and the heir was nowhere near
the inherited property. Be that as it may, after there has
been an order of partition and the heir actually accepts the
inheritance, he is by legal fiction considered to be in
possession of the property since the time of death of the
decedent.
And conversely, he has been in actual possession since the
time of death of the decedent but for some reason he
repudiates. What would happen is that he is deemed to have
never been in possession at all and instead possession
would be recognized as having taken place with regard to
the heir who actually accepts.
Q: How does one lose possession?
A: Art. 555 lists down the different modes by which
possession may be lost:
Article 555. A possessor may lose his possession:
1. By the abandonment of the thing;
2. By an assignment made to another either by
onerous or gratuitous title;
3. By the destruction or total loss of the thing, or
because it goes out of commerce;
4. By the possession of another, subject to the
provisions of article 537, if the new possession
has lasted longer than one year. But the real
right of possession is not lost till after the lapse
of ten years.
But you have to remember that Art. 555 is qualified under
Art. 556 of the New Civil Code. That as for movables, their
possession is not deemed lost so long as they remain under
the control of the possessor, even though for the time being
he may not know their whereabouts.
Article 556. The possession of movables is not deemed
lost so long as they remain under the control of the
possessor, even though for the time being he may not
know their whereabouts.
Q: Why?
A: The moveables remain subject to their control.
Q: What if we are talking about a dog who escaped from
your home and you do not know its whereabouts?
A: In that instance, you have lost its possession. Because the
dog is no longer your control.
Q: Remember that par. 4 of Art. 555 is qualified under
Art. 537 of the New Civil Code.
A: Par. 4 states that possession in lost by the possession of
another, subject to the provisions of article 537, if the new
possession has lasted longer than one year. But the real
right of possession is not lost till after the lapse of ten years.
PAGE 109 OF 175
Article 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor
of a thing, or by violence, do not affect possession.
If the possession has lasted more than one year, then you
may stand to lose legal possession. However, if the
possession has not breached the one year period, only
physical possession has been lost. The real right of
possession will not be lost until after 10 years.
Q: The law also recognizes instances wherein that
certain acts will not operate to deprive possession
because what is only affected here is physical
possession. What are these acts?
A: Acts found in Art. 537 of the New Civil Code. These are
acts which are merely tolerated, those executed
clandestinely and without the knowledge of the possessor,
or those acts executed by violence, force or intimidation.
These circumstances are the basis for filing action
interdictal wherein physical possession is the only issue.
Q: The tricky bit here is acts which are merely tolerated,
what exactly does that mean? What is tolerated
possession?
A: an example would be if you would have a property in the
province. You are a rich person but you are a coward. Now
you see when you went into the province that someone
entered your lot and you were intimidated. Being that you
are scared, you turned a blind eye to the possession and that
you would only expel the person when you need the
property.
However, the time came when you finally needed the
property. What would you file?
An action for forcible entry because you were really
intimidated. The reckoning period for the forcible entry
would be the actual day from which the person entered the
property and you were intimidated.
However, you projected an image that the possession was
merely tolerated. In the latter case, the prescriptive period
would be moveable. Because the one year period would run
only when you started the demand, subject to the rule of
several demands, so long as the subsequent demand is not
a reiteration of the prior demands.
Q: Now, how will you say that it was a tolerated
possession?
According to Senator Tolentino, tolerated possession is
tolerance stemming from being neighborly or friendly.
Remember that if is tolerated possession it is always with
the implied promise that you would vacate upon demand.
Q: Another qualification is that if you are dealing with
possession of moveables and real rights covered by the
mortgage law or the torrens system, you must know
that there must always be registration. What is the legal
consequence of failure to register?
A: Any third person would not be bound by any loss of
possession or rights over the property.
Q: Since possession is also an indicator of ownership, it
cannot also be recognized in more than one person who
may both be claiming as owners with titles adverse to
one another. For this reason we have hierarchy of rules,
what are these?
A: These are comparable to the rules on double sale.
1. The present possessor is preferred;
2. If there are two possessors then the one longer in
possession is preferred;
3. If the dates of possession are the same then the one
who presents a title is preferred; and
4. If all these conditions are met by both parties, then
the courts will decide.
EFFECTS OF POSSESSION
We have tackled this in relation to building, planting and
sowing. See the previous discussion in relation to this rule.
Q: Every possessor has the right to be respected in his
possession. If he is possession in the concept of an
owner where does the burden lie?
A: the burden to dispute such possession lies in the person
who is disputing such claim of ownership. The possessor
would not even be required to prove his ownership, the case
would rise and fall on the evidence that may be presented
by the claimant.
The present possessor does not even have to say anything.
After the claimant has presented his evidence, he may even
move for a demurrer to evidence saying that the proof has
not been discharged. He does not even have to lift a finger.
Q: We have tackled before the concept of builder,
planter and sower. And it is clear that they must be
possessors in the concept of an owner. Subject to what
exception?
A: Those said by SC. Cagayan Communities case, Spouses
Macasait Case
Q: Builder, planter and sowers we discuss this in
relation to what kind of accession?
A: Accession Continua with regard to immovable property
through artificial means.
Q: But what is Accession Continua Natural?
A: Formation of islands, allusion, avulsion, etc.
PAGE 110 OF 175
Q: What is the other type of accession?
A: Accession Discreta. It refers to the fruits: natural,
industrial and civil fruits.
Q: When do natural fruits and industrial fruits exist?
A: When they become manifest or in regard to animals when
they are born. However, the law states that it is enough that
they young is in the womb.
Q: In possession we would merge accession continua
and accession discreta because they would be part of
these bundle of rights that the law recognizes in a
possessor.
A: The possessor in good faith would be entitled to the fruits
in certain circumstances, they would be entitled to
reimbursement in relation to improvements, would be
entitled to reimbursements for damages and would be
obligated for certain matters.
Q: Since accession continua has planting and sowing,
where do we draw the line between accession discreta
involving fruits and accession continua with regard to
planting and sowing?
A: Lets be guided on how the law defines fruits. There are
two sets of fruits:
1. With regard to fruits which have been received;
and
2. Fruits which are still standing – those which are
already manifest and existing but have not been
harvested yet.
Plants and tress which are manifest but there are no fruits
which are existing as defined by law then they would
become improvements in planting and sowing.
But what you have are trees which have fruits that are
existing or fruits which have been harvested, then it would
be fruit accession discreta. Without prejudice of course to
classifying the trees themselves to be considered as
improvements.
Q: What is the right of the possessor with regard to the
fruits?
A: We have to qualify whether or not the possessor is in
good faith or in bad faith.
If the possessor is in bad faith he does not have any right
except for necessary expenses without the right of retention
and except under Art. 443 – which states that if the fruits
have already been harvested and received by the rightful
possessor. In the latter case, the possessor in bad faith is
entitled to receive reimbursement for expenses of
cultivation, harvest, and storage. He would also been liable
for fruits which he may have received and fruits which the
rightful possessor could have received.
But if the possessor is in good faith, again we must qualify.
If the fruits have been received then the possessor in good
faith would be entitled to them. No need to return.
But if the fruits are still standing, then the possessor in good
faith and the rightful possessor would share in the expenses
as well as in the fruits. This is proportionately.
However, the rightful possessor has the option to waive
participation in the fruits. He would also not pay necessary
expenses.
Q: With regard to improvements, you already know the
rules regarding necessary expenses, useful expenses
and luxurious expenses. Emphasis on luxurious
expenses
A: A possessor in good faith does not have the right to be
reimbursed for luxurious expenses, the right would only
arise indirectly if he exercises the limited right of removal
that the law gives him.
The possessor in bad faith does not have the right to be
reimbursed for useful expenses or for luxurious expenses
unless of course the limited right of removal.
There would be a difference in the valuation of the
luxurious expenses
There would be a difference in the valuation of the
luxurious improvements. If he is in good faith, the valuation
would be based on the expenses that he spent in
introducing the luxurious expenses. If he is in bad faith the
basis would be based on the value of the luxurious expenses
at the time that the rightful possessor enters into
possession.
The right to be reimbursed for these improvements
would only exist so long as the improvements are still
existing at the time of the termination of the possession.

PAGE 111 OF 175


NOVEMBER 27, 2020
EASEMENTS
ARTICLE 613. AN EASEMENT OR SERVITUDE IS AN ENCUMBRANCE
IMPOSED UPON AN IMMOVABLE FOR THE BENEFIT OF ANOTHER
IMMOVABLE BELONGING TO A DIFFERENT OWNER.
THE IMMOVABLE IN FAVOR OF WHICH THE EASEMENT IS
ESTABLISHED IS CALLED THE DOMINANT ESTATE ; THAT WHICH IS
SUBJECT THERETO, THE SERVIENT ESTATE. (530)
Q: What is an easement?
A: An easement is an encumbrance imposed upon an
immovable. The beneficiary of an easement may either be
another immovable or it may be the entire community at
large, or a private individuals or even just a private
individual.
REAL EASEMENT - the beneficiary of an easement may
either be another immovable, or it may be the entire
community at large or it may be the entire community at
large.
PERSONAL EASEMENT/SERVITUDE - the beneficiary of
an easement are private individuals or just a private
individual.
Easement and servitude are used interchangeably but they
are not the same.
Q: Would you know how are they different?
A: Basically, it’s a matter of perspective – easement and
servitude insofar is the dominant estate is concerned. That
is how it is viewed from a perspective of the servient estate.
Two estates are involved as a general rule – DOMINANT
ESTATE and SERVIENT ESTATE. Maliban nalang if what we
have is a praedial servitude, in which case, we don’t have a
dominant estate. What we have are beneficiaries.
Characteristics Peculiar to Easement
1. It is a real right that is imposed or enjoyed upon
immovable property.
2. Such immovable property (to which a real right is
imposed) must be owned by another person. It cannot be
imposed on an immovable that belongs to you if you were
the one who also owns the dominant estate. That is why,
one of the causes by extinguishing is when there is merger
in one person of the ownership of both the servient and the
dominant estate.
3. It produces a limitation on the ownership.
Q: How ownership is limited by an easement?
PAGE 112 OF 175
A: It is a limitation because the owner’s right to use
is limited.
Q: How it is limited?
A: You are limited because you are constrained or
refrained from doing things which otherwise you are
free to do.
Another aspect of the limitation would be that you
would have to allow people to do things to your
property. For instance, right of way. One of the
aspects of ownership that we emphasized early on
was the right to exclude other people. But with
right of way, that is gone. Because precisely, when
there is a right of way, you have no choice but to
allow people to get into your property or, more
accurately, to pass through your property.
4. It is inseparable from the tenements to which it is
actively or passively attached. It cannot have an existence
independent of the tenement to which it attaches.
Q: When we were discussing ARTICLE 415 par.
10 – classification of real rights over immovable
property as immovable property as well, I
asked you – Would it be possible for us to
encumber an easement considering that it is a
real right over immovable property, and
therefore, immovable property in itself?
A: No. It does not have an existence independent of
the tenement to which it attaches.
5. It can only exist between neighboring tenements. It
cannot be created on another servitude. They cannot have
an easement on an easement.
Different Kinds of Easement: (CLASSIFICATION)
1. As to who the beneficiary is:
a. Real
b. Personal
2. As to its source:
a. Legal – enforced by the law; the purpose may
either be public use or private interest.
b. Voluntary
LEGAL EASEMENTS
Subclassification Involving LEGAL EASEMENT
Depending on the Nature and Character Involved
1. EASEMENT RELATING TO WATERS:
ARTICLE 637. LOWER ESTATES ARE OBLIGED TO RECEIVE THE
WATERS WHICH NATURALLY AND WITHOUT THE INTERVENTION OF
MAN DESCEND FROM THE HIGHER ESTATES , AS WELL AS THE STONES
OR EARTH WHICH THEY CARRY WITH THEM .
THE OWNER OF THE LOWER ESTATE CANNOT CONSTRUCT WORKS
WHICH WILL IMPEDE THIS EASEMENT; NEITHER CAN THE OWNER OF
THE HIGHER ESTATE MAKE WORKS WHICH WILL INCREASE THE
BURDEN. (552)
If you happen to be occupying the valley, so there would be
a peak and there would be a valley, and you would be in the
valley and that would make you the lower estate. The
people occupying the peak will be forming the higher estate.
When it rains, water will flow down from the higher estate
to the lower estate. With water would also come stone,
earth, everything else, putik. And, the lower estate will be at
disadvantage. The lower estate can prevent this by putting
up some kind of bar or barrier that will divert the water to
someplace else. But he is not allowed to that because by law,
he is mandated to allow whatever water would be flowing
down naturally from the higher estate. Similarly, the owner
of the higher estate cannot do anything that would increase
or make things worse for the owner of the lower estate. And,
the law does not even speak of compensation here. It’s
something that the lower estate will have to bear. It
becomes such a pain. Wala kang magagawa.
Q: Why is the law allowing this?
A: Kailangan bumalik ng tubig sa dagat. Makakabalik lang
ang tubig sa dagat mula sa bundok kung dadaan siya sa
lower estates. At, makakarting siya sa ilog. Mula sa ilog, siya
ay dadaloy papuntang sa dagat. Aakyat ulit sa ulap.
Evaporation. Sa dagat, malawak, mas madali ang
evaporation dahil sa init ng araw. Kapag hindi siya
makakaakyat sa ulap, hindi siya babagsak. Wala tayong
ulan. ‘Pag walang ulan, walang laman ang mga dam. ‘Pag
walang laman ang mga dam, hindi kayo makakaligo. (Kaya
may legal easement under Art. 637 ay para makaligo kayo.)
Easier to understand if you know the reason behind the
rule.
ARTICLE 638. THE BANKS OF RIVERS AND STREAMS, EVEN IN CASE
THEY ARE OF PRIVATE OWNERSHIP, ARE SUBJECT THROUGHOUT
THEIR ENTIRE LENGTH AND WITHIN A ZONE OF THREE METERS
ALONG THEIR MARGINS, TO THE EASEMENT OF PUBLIC USE IN THE
GENERAL INTEREST OF NAVIGATION, FLOATAGE, FISHING AND
SALVAGE.
ESTATES ADJOINING THE BANKS OF NAVIGABLE OR FLOATABLE
RIVERS ARE, FURTHERMORE, SUBJECT TO THE EASEMENT OF
TOWPATH FOR THE EXCLUSIVE SERVICE OF RIVER NAVIGATION AND
FLOATAGE.
IF IT BE NECESSARY FOR SUCH PURPOSE TO OCCUPY LANDS OF
PRIVATE OWNERSHIP, THE PROPER INDEMNITY SHALL FIRST BE
PAID. (553A)
PAGE 113 OF 175
This is actually an easement that is imposed upon riparian
owners or owners of property fronting bodies of water. (ex.
beach) That length of the shore fronting the properties of
different people, 3 meters, would be subject to this
easement. Kahit pa private beach property, nakikita niyo na
dumadaan basta lang ang mga tao sa portion na malapit na
sa tubig. That is free for everyone for public use. Ang mga
bangka na dumadaong sa dalampasigan, do you notice that
they don’t even care kung saang tapat ng bahay sila
dadaong? It does not matter because they are, by law,
entitled to dock anywhere along that shoreline within that
three (3) meter easement.
Kung kayo ay mapunta sa isang beachfront property, at ang
kapitbahay ninyo ay suplada at ayaw magpadaan sa
kanyang beachfront estate, sabihin niyo “I have every right
to pass through because I have a 3 meter easement in my
favor under Article 638.” And in addition, may towpath pa
na kasama. Ito ang mga Karapatan ng mga mangingisda o
mga may bangka to pass through a certain path through that
property to bring their things and equipment to and from
the waters. Pero doon, since medyo mas invasive na, it’s
akin to the right of way, pwedeng magkaroon na ng danyos
or indemnity.
ARTICLE 639. WHENEVER FOR THE DIVERSION OR TAKING OF
WATER FROM A RIVER OR BROOK, OR FOR THE USE OF ANY OTHER
CONTINUOUS OR DISCONTINUOUS STREAM , IT SHOULD BE
NECESSARY TO BUILD A DAM , AND THE PERSON WHO IS TO
CONSTRUCT IT IS NOT THE OWNER OF THE BANKS, OR LANDS WHICH
MUST SUPPORT IT, HE MAY ESTABLISH THE EASEMENT OF
ABUTMENT OF A DAM, AFTER PAYMENT OF THE PROPER INDEMNITY.
(554)
Q: What exactly is the easement? What comprises the
easement? We know the purpose to be able to divert
water but where exactly does the easement lie?
A: The easement is abutment of a dam. It is not easement
of deluging your neighbor with water. You are not allowed
to flood your neighbor with water that you are diverting
from a river.
Example: The animals in Madagascar were relying on this
river for the source of water. Since they were competing
among themselves, it would favor one of the competing
groups if they can corner the water supply to the detriment
of the other group.
To do that, they would have to divert the water towards
them. And to diver the water, they would need to build a
dam. To build a dam, you put a wall into the waters because
by putting a wall, you prevent it from flowing it and you
contain it within a certain area. But, to be able to sustain or
to keep the wall from floating a way, you would need to
attach it to land. Nakakapit sa lupa. Para kumapit sa lupa,
kailangan mo ng abutment. Para siyang naka-hinge sa lupa,
sa portion ng river kung saan mo siya haharangan. But of
course, kailangan din na you would find the ideal points in
the body of water where the wall should be put depende sa
current and sa lalim. It may happen that the ideal point is no
longer within your property’s area. Maaring nasa property
na ng iba. Hindi pinaguusapan dito kung pwede or hindi
pwedeng gawin ng tao nung haharangin niya ‘yong tubig
ha? Ang pinaguusapan dito ay ‘yong easement. Ang
mangyayari niyan, if he is allowed to put a dam, then he
would be building his wall and his wall would have to be
hinged on the property of these riparian owners. And, the
act of being allowed to hinge the wall is known as easement
of abutment of dam.
ARTICLE 640. COMPULSORY EASEMENTS FOR DRAWING WATER OR
FOR WATERING ANIMALS CAN BE IMPOSED ONLY FOR REASONS OF
PUBLIC USE IN FAVOR OF A TOWN OR VILLAGE, AFTER PAYMENT OF
THE PROPER INDEMNITY. (555)
ARTICLE 641. EASEMENTS FOR DRAWING WATER AND FOR
WATERING ANIMALS CARRY WITH THEM THE OBLIGATION OF THE
OWNERS OF THE SERVIENT ESTATES TO ALLOW PASSAGE TO
PERSONS AND ANIMALS TO THE PLACE WHERE SUCH EASEMENTS
ARE TO BE USED, AND THE INDEMNITY SHALL INCLUDE THIS
SERVICE. (556)
It can only be a legal easement in the sense that it can be
made compulsory only if it is for public purpose. But if it is
easement to benefit private interest, then it cannot be by
way of a legal easement. It would have to be by voluntary
agreement. This should be rare today dahil meron na
tayong tap water kahit sa malalyong probinsya, may
internal plumbing na. Unlike the olden days na talagang ang
water source lang ay ang mga ilog, bukal, in which case
relevant pa ‘to noong unang panahon. But should this kind
of easement exists, it also carries with it a limited right of
way. Limited in the sense that it can only be used in relation
to the easement to carry water.
ARTICLE 642. ANY PERSON WHO MAY WISH TO USE UPON HIS OWN
ESTATE ANY WATER OF WHICH HE CAN DISPOSE SHALL HAVE THE
RIGHT TO MAKE IT FLOW THROUGH THE INTERVENING ESTATES ,
WITH THE OBLIGATION TO INDEMNIFY THEIR OWNERS , AS WELL AS
THE OWNERS OF THE LOWER ESTATES UPON WHICH THE WATERS
MAY FILTER OR DESCEND. (557)
This is the Easement of Aqueduct. The aqueducts
contemplated here are those aboveground. Kung pipes
underground ang pinag-uusapan, this would be something
that is beyond the capacity of the private individual to do on
his own. Kailangan ay public utility company ka.
Concept of Aqueduct – taking water from usually a higher
estate or from somewhere else and transporting it to an
estate which is farther away.
Dahil mahirap naman mag-igip ng tubig na pagkalayo-layo
at pabalik-balik ka. So ang ginagawa nila, they build a relay
of a poles. Pinaka-crude na sample nito ay ‘yong mga
bamboo poles na binubutas nila and then sad ulo ‘yong
medyo matulis, and then ‘pag umanod doon ang tubig,
PAGE 114 OF 175
meron pa isang bampoo pole sa ilalim niya na sasalo at
dadalo naman ulit. Series of bampoo poles from one estate
that is far away to the beneficiary estate. Marami siyang
masasagasaan na estate, at may mga estates na matutuluan
ng tubig.
‘Yong mga Europeans sa Portugal or even sa Rome, meron
din silang version ng aqueduct, pero since mas advance ang
civilization nila kesa satin, ‘yong sa kanila ay mga nagging
monument of history na. Ito ‘yong mga matataas na akala
mo ay mga pader lang na nakaarko, ‘yon pala aqueduct na
‘yon.
Essentially, the point is that this relay of poles or bamboo
stems or whatever is used will have to transgress to the
estates of your neighbors to get the water from your source
to your estate. And, this transgression is what constitutes
the easement. Dahil ang mangyayari niyan, this kind be an
eyesore. Pagdungaw mo sa bintana mo, makikita mo ‘yong
bamboong pagkalaki-laki ng kapitbahay mo, dumadaan
‘yong tubig doon. O halimbawa, nagpapahinga ka sa iyong
garden, akala mo umuulan, ‘yon pala may tulo lang ‘yong
aqueduct ng kapitbahay mo. That’s why proper indemnity
must be paid as well.
There is an added limitation. The law says that it cannot be
made to go through existing buildings, courtyards, annexes,
orchards or gardens if this is for a private interest. Kung
magkakaroon ka ng easement that will go through these
existing structures, it cannot be compulsory. It would have
to be by agreement under Article 644.
ARTICLE 644. THE EASEMENT OF AQUEDUCT FOR PRIVATE
INTEREST CANNOT BE IMPOSED ON BUILDINGS, COURTYARDS,
ANNEXES, OR OUTHOUSES, OR ON ORCHARDS OR GARDENS ALREADY
EXISTING. (559)
And the law imposes certain conditions before this kind of
easement may be considered a legal easement.
Q: What are these conditions?
A: Article 643.
ARTICLE 643. ONE DESIRING TO MAKE USE OF THE RIGHT
GRANTED IN THE PRECEDING ARTICLE IS OBLIGED :
(1) TO PROVE THAT HE CAN DISPOSE OF THE WATER AND THAT IT
IS SUFFICIENT FOR THE USE FOR WHICH IT IS INTENDED ;
(2) TO SHOW THAT THE PROPOSED RIGHT OF WAY IS THE MOST
CONVENIENT AND THE LEAST ONEROUS TO THIRD PERSONS ;
(3) TO INDEMNIFY THE OWNER OF THE SERVIENT ESTATE IN THE
MANNER DETERMINED BY THE LAWS AND REGULATIONS. (558)
Another important point for aqueducts is the rule under
Article 646.
 ARTICLE 646. FOR LEGAL PURPOSES, THE EASEMENT OF
AQUEDUCT SHALL BE CONSIDERED AS CONTINUOUS AND APPARENT ,
EVEN THOUGH THE FLOW OF THE WATER MAY NOT BE CONTINUOUS,
OR ITS USE DEPENDS UPON THE NEEDS OF THE DOMINANT ESTATE ,
OR UPON A SCHEDULE OF ALTERNATE DAYS OR HOURS . (561)
It declares the easement of the aqueduct as continuous and
apparent. That means that it is an easement that may be
acquired through prescription.
ARTICLE 647. ONE WHO FOR THE PURPOSE OF IRRIGATING OR
IMPROVING HIS ESTATE, HAS TO CONSTRUCT A STOP LOCK OR SLUICE
GATE IN THE BED OF THE STREAM FROM WHICH THE WATER IS TO BE
TAKEN, MAY DEMAND THAT THE OWNERS OF THE BANKS PERMIT ITS
CONSTRUCTION, AFTER PAYMENT OF DAMAGES, INCLUDING THOSE
CAUSED BY THE NEW EASEMENT TO SUCH OWNERS AND TO THE
OTHER IRRIGATORS. (562)
Article 647 would just be another variation of the dam that
we spoke of earlier because here, instead of a wall, what we
have is stop lock or a sluice gate.
2. EASEMENT OF RIGHT OF WAY
ARTICLE 649. THE OWNER, OR ANY PERSON WHO BY VIRTUE OF A
REAL RIGHT MAY CULTIVATE OR USE ANY IMMOVABLE, WHICH IS
SURROUNDED BY OTHER IMMOVABLES PERTAINING TO OTHER
PERSONS AND WITHOUT ADEQUATE OUTLET TO A PUBLIC HIGHWAY,
IS ENTITLED TO DEMAND A RIGHT OF WAY THROUGH THE
NEIGHBORING ESTATES, AFTER PAYMENT OF THE PROPER
INDEMNITY.
SHOULD THIS EASEMENT BE ESTABLISHED IN SUCH A MANNER THAT
ITS USE MAY BE CONTINUOUS FOR ALL THE NEEDS OF THE DOMINANT
ESTATE, ESTABLISHING A PERMANENT PASSAGE, THE INDEMNITY
SHALL CONSIST OF THE VALUE OF THE LAND OCCUPIED AND THE
AMOUNT OF THE DAMAGE CAUSED TO THE SERVIENT ESTATE.
IN CASE THE RIGHT OF WAY IS LIMITED TO THE NECESSARY PASSAGE
FOR THE CULTIVATION OF THE ESTATE SURROUNDED BY OTHERS
AND FOR THE GATHERING OF ITS CROPS THROUGH THE SERVIENT
ESTATE WITHOUT A PERMANENT WAY, THE INDEMNITY SHALL
CONSIST IN THE PAYMENT OF THE DAMAGE CAUSED BY SUCH
ENCUMBRANCE.
THISEASEMENT IS NOT COMPULSORY IF THE ISOLATION OF THE
IMMOVABLE IS DUE TO THE PROPRIETOR'S OWN ACTS. (564A)
Conditions for the Easement of Right of Way to
Exist
i. the owner or a person may cultivate or use
an immovable by virtue of a real right;
ii. the estate is surrounded by other
immovables which belong to others;
iii. there is no adequate outlet to a public
highway;
PAGE 115 OF 175
iv. there is a corresponding payment of
indemnity for the acquisition of the
easement;
v. it must be shown that the isolation of the
dominant estate was not due to the
acts/fault of the owner.
When it comes to indemnity, there are two (2) approaches
to the valuation of indemnity depending on the character of
the right of way because you have to understand that right
of way is a discontinuous easement. Its use will depend on
the intervention of man. Pwedeng may right of way but you
can hardly feel it dahil masyadong infrequent ‘yong
paggamit ng owners of the dominant estate of the right of
way. Meron din naming right of way na talaga namang hindi
mo na magagamit ‘yong portion of your property subject to
the easement because it is always being used by the
beneficiary estate.
So if it is the former, then indemnity will suffice. Siguro,
just damages for the inconvenience that you suffer. But if
there is akin to actual taking because you are effectively
deprived of the use of that portion of your property, then
it’s only but fair that you get paid for the price of the
portion of the property subject to the easement, because
essentially, there is already a taking. That portion of your
property has been taken and you must be compensated for
the same on top of damages.
ARTICLE 652. WHENEVER A PIECE OF LAND ACQUIRED BY SALE,
EXCHANGE OR PARTITION, IS SURROUNDED BY OTHER ESTATES OF
THE VENDOR, EXCHANGER, OR CO-OWNER, HE SHALL BE OBLIGED TO
GRANT A RIGHT OF WAY WITHOUT INDEMNITY.
IN CASE OF A SIMPLE DONATION, THE DONOR SHALL BE
INDEMNIFIED BY THE DONEE FOR THE ESTABLISHMENT OF THE
RIGHT OF WAY. (567A)
ARTICLE 653. IN THE CASE OF THE PRECEDING ARTICLE, IF IT IS
THE LAND OF THE GRANTOR THAT BECOMES ISOLATED, HE MAY
DEMAND A RIGHT OF WAY AFTER PAYING A INDEMNITY . HOWEVER,
THE DONOR SHALL NOT BE LIABLE FOR INDEMNITY . (N)
But to this, we make important qualifications in case
what we have is an isolated estate of the transferee or a co-
owner. In these cases, there will be no obligation to pay
indemnity for the right of way. But, if it is the donee who is
isolated by the other estates of the donor, then to enjoy the
right of way, he must pay indemnity to the donor.
Conversely, if it is the seller or transferor who is isolated,
then he is required to pay indemnity to be able to use the
easement of right of way. But if it is the donor who is
isolated by the estate of the properties that he has donated,
he will not be required to pay any indemnity for a right of
way that he may enjoy.
Q: Where do we place the right of way in the servient
estate?
A:
ARTICLE 650. THE EASEMENT OF RIGHT OF WAY SHALL BE
ESTABLISHED AT THE POINT LEAST PREJUDICIAL TO THE SERVIENT
ESTATE, AND, INSOFAR AS CONSISTENT WITH THIS RULE, WHERE THE
DISTANCE FROM THE DOMINANT ESTATE TO A PUBLIC HIGHWAY MAY
BE THE SHORTEST. (565)
Primarily, least prejudicial to the servient estate. And
secondarily, the most convenient that is the shortest
distance between the estate and the public highway. If
there is conflict between the two, since you said primarily,
it should be the least prejudicial to the servient estate. We
would have to go with the former.
Q: What if the situation changes? What if the owner of
the dominant estate ceases to be isolated because he
was able to purchase the property between his estate
and the public highway? So, may access na siya. What
happens now to the easement that he previously
enjoyed?
A:
ARTICLE 655. IF THE RIGHT OF WAY GRANTED TO A SURROUNDED
ESTATE CEASES TO BE NECESSARY BECAUSE ITS OWNER HAS JOINED
IT TO ANOTHER ABUTTING ON A PUBLIC ROAD , THE OWNER OF THE
SERVIENT ESTATE MAY DEMAND THAT THE EASEMENT BE
EXTINGUISHED, RETURNING WHAT HE MAY HAVE RECEIVED BY WAY
OF INDEMNITY. THE INTEREST ON THE INDEMNITY SHALL BE
DEEMED TO BE IN PAYMENT OF RENT FOR THE USE OF THE
EASEMENT.
THE SAME RULE SHALL BE APPLIED IN CASE A NEW ROAD IS OPENED
GIVING ACCESS TO THE ISOLATED ESTATE.
IN BOTH CASES, THE PUBLIC HIGHWAY MUST SUBSTANTIALLY MEET
THE NEEDS OF THE DOMINANT ESTATE IN ORDER THAT THE
EASEMENT MAY BE EXTINGUISHED. (568A)
He will have to give back what he has received but he gets
to keep the interest. But this presupposes that what was
given was by way of payment for the value of the portion of
the land subject to the easement. For us to speak of interest,
it must be a substantial amount and not just the damages
that would be due in case there is no actual taking that we
consider under the law.
Q: Why whenever there is construction that is going on
in your neighbor’s property, your parents would just
allow the carpenters to enter your property, put up
scaffoldings kasi pipinturahan nila ‘yong gilid ng bahay
ng kapitbahay niyo, bringing along their paint or their
equipment. Have you wondered if it’s possible for you
to disallow that?
A: It’s actually allowed under Article 656.
PAGE 116 OF 175
ARTICLE 656. IF IT BE INDISPENSABLE FOR THE CONSTRUCTION,
REPAIR, IMPROVEMENT, ALTERATION OR BEAUTIFICATION OF A
BUILDING, TO CARRY MATERIALS THROUGH THE ESTATE OF
ANOTHER, OR TO RAISE THEREIN SCAFFOLDING OR OTHER OBJECTS
NECESSARY FOR THE WORK, THE OWNER OF SUCH ESTATE SHALL BE
OBLIGED TO PERMIT THE ACT, AFTER RECEIVING PAYMENT OF THE
PROPER INDEMNITY FOR THE DAMAGE CAUSED HIM . (569A)
Payment of indemnity is also due here pero tayo kasing mga
Pilipino, hindi naman natin yan or we will not impose that.
Pakikisama lang parati ang ating currency or could be hindi
rin alam yan ng mga magulang natin.
3. EASEMENT OF PARTY WALL
Q: What do you understand by a party wall?
A: A party wall is the wall that is erected on the dividing line
of two (2) adjoining properties of different owners. It is not
between the dividing line. It must be on the dividing line,
because if it’s within the boundary of one of the estates, then
it’s not a party wall. Nandoon siya, struggling in the dividing
line.
Q: Is party wall significant?
A: Yes. It establishes a forced co-ownership between the
two (2) adjoining owners.
Sometimes, people take it for granted. Hindi nila ito
pinapansin. Halimbawa, ikaw ang unang nagtayo ng party
wall because it is your wall. And what the other estate does
is doon na rin niya kinabit ’yong kanyang mga beams. Noong
nagtayo siya ng bahay, idinikit niya don sa wall mo, at hindi
lang niya basta idinikit, doon niya na kinabit ‘yong kanyang
mga supporting beams. ‘Pag nagtayo ka ng bahay, ‘yong
structure mo, kailangan nakabaon ‘yan. Meron dapat haligi
na pagbabaunan nong magiging sahig or bubong mo.
Ideally, dapat magtatayo ka ng sarili mong wall at doon mo
ikakabit ‘yong mga haligi at sahig mo to support your own
house. Pero, ang ginawa ng kapitbahay mo ay kumabit doon
sa dingding mo mismo, such that the same wall supports
both houses, you now have an indication that it is a party
wall because it supports both houses. And, there are
consequences to it being a party wall. There is a co-
owenership created. At kung ikaw ay masyadong relax lang
o chill ka lang sa buhay mo, remember, co-ownership na ang
implication niyan! Usually, a wall would be a meter or 2
meters thick. And, the depth of the property, lalim niya from
the frontage, sabihin mon ang nasa 20meters. So the area
occupied by that wall would be 2m x 20m. So, 40sqm. Area
‘yan. Area = length x width. Area is the size of the wall.
Kung nasa QC ka, ‘yomg wall mo nakatayo sa lupa valued at
25,000/sqm and that valuation was 10 years ago. So,
25000pesos x 40sqm, that is a million pesos. And, because
you did not care enough to prevent your neighbor from
using the same wall, your wall, he now owns half of that
1million pesos because he now owns half of the party wall.
You lost 500,000 pesos. Nasa QC ka pa niyan, e kung nasa
Forbes park ka? ‘Yong 40sqm doon, how much is it valued?
Nasa 215,000/sqm easily. So, magkano Nawala sa’yo? Nasa
5M. Bakit? Kasi pinabayaan mo maging party wall ‘yang
dingding mo. Hindi pwedeng pagusapan dito ‘yong Torrens
system or registration system. All things being equal. That
is why it is important to know when there is a party wall
and when there is not. Because without you knowing it, you
will be losing your property all because the wall is
considered a party wall, and therefore, the land on which
the wall stands would now be subject to co-ownership.
ARTICLE 659. THE EXISTENCE OF AN EASEMENT OF PARTY WALL
IS PRESUMED, UNLESS THERE IS A TITLE, OR EXTERIOR SIGN, OR
PROOF TO THE CONTRARY:
(1) IN DIVIDING WALLS OF ADJOINING BUILDINGS UP TO THE POINT
OF COMMON ELEVATION;
(2) IN DIVIDING WALLS OF GARDENS OR YARDS SITUATED IN CITIES,
TOWNS, OR IN RURAL COMMUNITIES;
(3) IN FENCES, WALLS AND LIVE HEDGES DIVIDING RURAL LANDS.
(572)
Three (3) instances where a party wall is presumed to
exist (Article 659):
1. In dividing walls of adjoining buildings up to the point of
common elevation
❖ that illustrates, ‘yong meron kang bahay na
nakatayo tapos ‘yong kapitbahay mo kumabit lang
doon sa wall mo. Kunyare ‘yong building mo up to
6 floors, pero ‘yong kapitbahay mo na kumabit up
to 3rd floor lang kumabit. So, ‘yong party wall, up to
the point of common elevation which is the 3rd floor
lang.
2. In dividing walls of gardens or yards situated in cities,
towns, or in rural communities
❖ this is more common in subdivisions kung saan
pare-parehas ang bahay. Dito sa mga subdivisions
na ‘to, common ang mga stand-alone na properties
and since they were constructed by the same
developer, ang nangyayari, is they simply put one
(1) wall to divide the two (2) estates. Hindi siya
sandwiched. Kasi halimbawa, iba-iba ‘yong mga
taong nagpatayo, halimbawa sa mga non-
subdivisions sa Metro Manila, makikita niyo na
‘yong dalawanhg properties, magkakaroon sila ng
wall na naka-sandwich – ‘yong wall ng kapitbahay
and then ‘yong wall ninyo. So makikita niyo,
dalawang magkaiba – magkaiba ng kulay,
construction, maliwanag. Pero usually doon nga sa
mga subdivisions na pare-parehas ang
pagkakatayo, there will just be this one wall
standing the between the houses. And, that would
be a party wall.
3. In fences, walls and live hedges dividing rural lands
PAGE 117 OF 175
❖ Sa mga probinsya naman, mas environment
friendly, alam niyo ‘yong mga santan na halaman?
Kadalasan, sa probinsya, ‘yong bahay,
pinapalibutan ‘yan ng mga shrubs. And that would
already serve as the party wall. So, if between
estates, meron kang isa lang shrubbery, that would
be an indication of a party wall too. Paminsan nga,
kahit ditches. ‘yong hinukay lang? Tapos ‘yong
itinabon na lupa, hinukay mo lupa tapos inipon mo
sa gilid. So that would also be considered as some
kind of a fence. Party wall pa rin iyan. Presumed to
be party wall. It’s not so much the wall which is the
point here, but the boundary, and the boundary, in
turn, would indicate the area of the properties of
the neighboring estates.
ARTICLE 660. IT IS UNDERSTOOD THAT THERE IS AN EXTERIOR
SIGN, CONTRARY TO THE EASEMENT OF PARTY WALL :
(1) WHENEVER IN THE DIVIDING WALL OF BUILDINGS THERE IS A
WINDOW OR OPENING;
(2) WHENEVER THE DIVIDING WALL IS, ON ONE SIDE, STRAIGHT
AND PLUMB ON ALL ITS FACEMENT, AND ON THE OTHER, IT HAS
SIMILAR CONDITIONS ON THE UPPER PART, BUT THE LOWER PART
SLANTS OR PROJECTS OUTWARD ;
(3) WHENEVER THE ENTIRE WALL IS BUILT WITHIN THE
BOUNDARIES OF ONE OF THE ESTATES;
(4) WHENEVER THE DIVIDING WALL BEARS THE BURDEN OF THE
BINDING BEAMS, FLOORS AND ROOF FRAME OF ONE OF THE
BUILDINGS, BUT NOT THOSE OF THE OTHERS;
(5) WHENEVER THE DIVIDING WALL BETWEEN COURTYARDS,
GARDENS, AND TENEMENTS IS CONSTRUCTED IN SUCH A WAY THAT
THE COPING SHEDS THE WATER UPON ONLY ONE OF THE ESTATES ;
(6) WHENEVER THE DIVIDING WALL, BEING BUILT OF MASONRY,
HAS STEPPING STONES, WHICH AT CERTAIN INTERVALS PROJECT
FROM THE SURFACE ON ONE SIDE ONLY, BUT NOT ON THE OTHER;
(7) WHENEVER LANDS INCLOSED BY FENCES OR LIVE HEDGES
ADJOIN OTHERS WHICH ARE NOT INCLOSED .
IN ALL THESE CASES, THE OWNERSHIP OF THE WALLS, FENCES OR
HEDGES SHALL BE DEEMED TO BELONG EXCLUSIVELY TO THE OWNER
OF THE PROPERTY OR TENEMENT WHICH HAS IN ITS FAVOR THE
PRESUMPTION BASED ON ANY ONE OF THESE SIGNS. (573)
It is understood that there is an exterior sign, contrary to
the easement of party wall:
(1) Whenever in the dividing wall of buildings there is a
window or opening
❖ because of making an opening, that is an act of
ownership. So, if one of the neighboring estates
should open a window into the wall, then that
means, he is asserting his ownership to the wall.
And therefore, it’s not the party wall;
(2) Whenever the dividing wall is, on one side, straight and
plumb on all its facement, and on the other, it has similar
conditions on the upper part, but the lower part slants or
projects outward;
❖ Whenever you build your wall, what will happen is
that, in all likelihood, you would have to build your
house with your neighbor’s house already existing.
Ibigsabihin, may wall na rin siya. At ‘yong wall mo,
ididikit mo lang sa wall niya. So, kung mas tataasan
mo ‘yong wall mo kesa sakanya, ang mangyayari is
kontrolado mo lang ‘yong wall mo which means
your side and then so far as the top portion is still
visible and not yet eaten up by the wall of your
neighbor na existing na.
So, ang mangyayari, parehas ‘yong itsura nung loob
ng wall from inside your estate up to the top then
going down but only up to that portion before the
top of your neighbor’s wall. Kaya pagdating don,
‘yong top portion lang ‘yong makinis, ‘yong
straight. And then, pagdating sa baba, since doon na
nakadikit ‘yong wall ‘nong kapitbahay mo, bigla na
siyang magproprotrude kasi nga wall na ‘yon ng
iyong kapitbahay. But because of that, that is an
indication that this is not a party wall. This wall
belongs only to one of the estates.
5. Whenever the dividing wall between courtyards, gardens,
and tenements is constructed in such a way that the coping
sheds the water upon only one of the estates;
❖ Doon mo lang pinapatulo sa estate mo ‘yong tubig.
4. EASEMENT OF LIGHT AND VIEW
SECTION 5. - EASEMENT OF LIGHT AND VIEW.
ARTICLE 667. NO PART-OWNER MAY, WITHOUT THE CONSENT OF
THE OTHERS, OPEN THROUGH THE PARTY WALL ANY WINDOW OR
APERTURE OF ANY KIND. (580)
ARTICLE 668. THE PERIOD OF PRESCRIPTION FOR THE ACQUISITION
OF AN EASEMENT OF LIGHT AND VIEW SHALL BE COUNTED :
(1) FROM THE TIME OF THE OPENING OF THE WINDOW, IF IT IS
THROUGH A PARTY WALL; OR
(2) FROM THE TIME OF THE FORMAL PROHIBITION UPON THE
PROPRIETOR OF THE ADJOINING LAND OR TENEMENT, IF THE WINDOW
IS THROUGH A WALL ON THE DOMINANT ESTATE. (N)
ARTICLE 669. WHEN THE DISTANCES IN ARTICLE 670 ARE NOT
OBSERVED, THE OWNER OF A WALL WHICH IS NOT PARTY WALL ,
ADJOINING A TENEMENT OR PIECE OF LAND BELONGING TO ANOTHER,
CAN MAKE IN IT OPENINGS TO ADMIT LIGHT AT THE HEIGHT OF THE
CEILING JOINTS OR IMMEDIATELY UNDER THE CEILING, AND OF THE
SIZE OF THIRTY CENTIMETERS SQUARE, AND, IN EVERY CASE, WITH AN
IRON GRATING IMBEDDED IN THE WALL AND WITH A WIRE SCREEN.
PAGE 118 OF 175
NEVERTHELESS, THE OWNER OF THE TENEMENT OR PROPERTY
ADJOINING THE WALL IN WHICH THE OPENINGS ARE MADE CAN CLOSE
THEM SHOULD HE ACQUIRE PART-OWNERSHIP THEREOF, IF THERE BE
NO STIPULATION TO THE CONTRARY.
HE CAN ALSO OBSTRUCT THEM BY CONSTRUCTING A BUILDING ON HIS
LAND OR BY RAISING A WALL THEREON CONTIGUOUS TO THAT HAVING
SUCH OPENINGS, UNLESS AN EASEMENT OF LIGHT HAS BEEN
ACQUIRED. (581A)
ARTICLE 670. NO WINDOWS, APERTURES, BALCONIES, OR OTHER
SIMILAR PROJECTIONS WHICH AFFORD A DIRECT VIEW UPON OR
TOWARDS AN ADJOINING LAND OR TENEMENT CAN BE MADE, WITHOUT
LEAVING A DISTANCE OF TWO METERS BETWEEN THE WALL IN WHICH
THEY ARE MADE AND SUCH CONTIGUOUS PROPERTY .
NEITHER CAN SIDE OR OBLIQUE VIEWS UPON OR TOWARDS SUCH
CONTERMINOUS PROPERTY BE HAD, UNLESS THERE BE A DISTANCE OF
SIXTY CENTIMETERS.
THE NONOBSERVANCE OF THESE DISTANCES DOES NOT GIVE RISE TO
PRESCRIPTION. (582A)
ARTICLE 671. THE DISTANCE REFERRED TO IN THE PRECEDING
ARTICLE SHALL BE MEASURED IN CASES OF DIRECT VIEWS FROM THE
OUTER LINE OF THE WALL WHEN THE OPENINGS DO NOT PROJECT ,
FROM THE OUTER LINE OF THE LATTER WHEN THEY DO, AND IN CASES
OF OBLIQUE VIEW FROM THE DIVIDING LINE BETWEEN THE TWO
PROPERTIES. (583)
ARTICLE 672. THE PROVISIONS OF ARTICLE 670 ARE NOT
APPLICABLE TO BUILDINGS SEPARATED BY A PUBLIC WAY OR ALLEY ,
WHICH IS NOT LESS THAN THREE METERS WIDE, SUBJECT TO SPECIAL
REGULATIONS AND LOCAL ORDINANCES. (584A)
ARTICLE 673. WHENEVER BY ANY TITLE A RIGHT HAS BEEN
ACQUIRED TO HAVE DIRECT VIEWS, BALCONIES OR BELVEDERES
OVERLOOKING AN ADJOINING PROPERTY, THE OWNER OF THE
SERVIENT ESTATE CANNOT BUILD THEREON AT LESS THAN A DISTANCE
OF THREE METERS TO BE MEASURED IN THE MANNER PROVIDED IN
ARTICLE 671. ANY STIPULATION PERMITTING DISTANCES LESS THAN
THOSE PRESCRIBED IN ARTICLE 670 IS VOID. (585A)
Q: What is the Easement of Light and View? If I were to
make an opening to my house, if I were to make a
window in my house, would that comprise some kind of
an easement?
A: There is no easement yet if that is simply what I’m doing.
Q: When will there be an easement?
A: If I provide a window for my house, I will not be thereby
acquiring an easement because I am simply exercising an
act of ownership. But the easement here would lie in my
being able to prevent my neighbor from building of his own
property to block my view.
Q: How can I do that? How will I acquire that easement?
How can I prevent my neighbor from building on his
own property? Kasi if I had a right to build whatever I
want on my own property, then by the same token, my
neighbor should be able to do so as well with his own
property. Pero you’re telling me, by virtue of this
easement of light and view, I can prevent him from
constructing something that would block my view? E
maganda ‘yon. But how do I do that?
A: You have to make a notarial prohibition. A period of 10
years must pass from the making of the prohibition.
This is the overview. Essentially, you have to observe the
distances that the law imposes forming windows and other
openings in your property. If you are making or opening a
window that will have a direct view of your neighbor’s
estate, the distance that must be observed is two (2) meters
measured from the outer line of your wall up to the
dividing line. It must be 2 meters away.
Sone people, they’re not content with just a window.
Kailangan para silang si Juliet na pwedeng lumabas sa
balkonahe at haranahin but that means that you are now
given a better view of your neighbor’s estate. So, i-aadjust
din natin ang measurement. The 2 meters will now have to
become 10 meters from the outer line of the protruding
balcony. So, kung naka-protrude ‘yan, you will have to
measure it from the outer line of your balcony that is
protruding from your wall up to the dividing line. It should
be 2 meters.
But if the view is not direct, but it is oblique, the distance
should be 60cm. It is important for you to observe these
distances because, otherwise, you cannot acquire the
easement of light and view by prescription. We have to
comply with these distances. And, these distances would
also not be applicable if there is a road between the two
(2) estates. So, ‘yong bintana niyo na nakatapat sa kalye,
diba nakikoita niyo rin ang kapitabahay niyo? Okay lang
kung nakasagad ang bahay niyo doon sa kalye, sa bangketa
ng kalye, na wala ng space sa dividing line because there is
a road between you and your neighbor but the road must
measure at least 3 meters in width.
The reality is, people would now construct their houses in
such a way that they maximize the space. Sinasagad sa
boundary. So, nakadikit na doon sa boundary, in which case,
obviously, there will be no compliance with the 2meter
distance requirement. So, ano ngayon ang option nung
taong nagpatayo ng sagad sa boundary, well, meron pa ring
easement of light. Wala nang view.
‘Yong mga maliliit na rectangles sa bandang itaas ng mga
buildings na nakasagad sa boundary, right under the ceiling
or the roof, you would see this boxes, and you would know
that you cannot see anything through them dahil maliit siya
eh tapos naka-screen pa. And you wonder bakit pagkaliit-
liit? Because that is the prescribed size under the law.
PAGE 119 OF 175
Because the purpose here is not for view anymore but
simply for light. Makapasok lang ang liwanag.
If you have complied with these distances, then you will
now be qualified to acquire an easement of light and
view by sending your neighbor with a notarial
prohibition to build on his property in such a way that
will block your view. But in all likelihood, ididispute ‘yan ng
neighbor mo. While there is another way to go about it
which is to enter into an agreement with him kasi ito
pinaguusapan natin, legal easement naman ‘to. You can
always have a voluntary easement. But in case you want
to go through this round ng legal easement, the
prescriptive period is 10 years countered from the time
that you provided the notarial prohibition.
The easement of light and view can also be positive in that
you are not actually prohibiting your neighbor from
doing something but you are really allowed to do
something to your neighbor’s property. Usually, kung
halimbawang may party wall, ito ‘yong magiging assertion
mo din ng ownership. So, depende nalang din kung what
their intention is in making that opening. So, if it is really a
party wall, you can only make an opening into that wall only
up to half of its depth. Anong ibigsabihin? Kasi kaya mo nga
siya lalagyan ng opening e para magkaron ng influx of light
and allow you to have a view. For you to be able to board
through the entire wall at magkabutas ‘yon, you will need
the consent of the other party – your neighbor, kasi ‘yong
other side, kung saan dapat mong mabutas, that already
belongs to him. So, for you to be allowed to do that to a party
wall, so far as other side is concerned, that will now
constitute an easement of light and view. But it’s a different
thing kung sa palagay ninyo, hindi naman party wall ‘yan.
Kung hindi ‘yan party wall, that would simply be an act of
ownership kung bubutasing niyo ‘yong wall.
Just a recap. Kung party wall ‘yan at bubutasin mo ‘yong
wall throughout, then that is an easement. Pero kung
‘yong wall is not a party wall but your wall at bubutasin
mo siya, no easement is involved but an act of ownership.
5. EASEMENTS OF DRAINAGE OF BUILDINGS
ARTICLE 674. THE OWNER OF A BUILDING SHALL BE OBLIGED TO
CONSTRUCT ITS ROOF OR COVERING IN SUCH MANNER THAT THE RAIN
WATER SHALL FALL ON HIS OWN LAND OR ON A STREET OR PUBLIC
PLACE, AND NOT ON THE LAND OF HIS NEIGHBOR, EVEN THOUGH THE
ADJACENT LAND MAY BELONG TO TWO OR MORE PERSONS , ONE OF
WHOM IS THE OWNER OF THE ROOF . EVEN IF IT SHOULD FALL ON HIS
OWN LAND, THE OWNER SHALL BE OBLIGED TO COLLECT THE WATER
IN SUCH A WAY AS NOT TO CAUSE DAMAGE TO THE ADJACENT LAND OR
TENEMENT. (586A)
ARTICLE 675. THE OWNER OF A TENEMENT OR A PIECE OF LAND ,
SUBJECT TO THE EASEMENT OF RECEIVING WATER FALLING FROM
ROOFS, MAY BUILD IN SUCH MANNER AS TO RECEIVE THE WATER UPON
HIS OWN ROOF OR GIVE IT ANOTHER OUTLET IN ACCORDANCE WITH
LOCAL ORDINANCES OR CUSTOMS, AND IN SUCH A WAY AS NOT TO
CAUSE ANY NUISANCE OR DAMAGE WHATEVER TO THE DOMINANT
ESTATE. (587)
ARTICLE 676. WHENEVER THE YARD OR COURT OF A HOUSE IS
SURROUNDED BY OTHER HOUSES, AND IT IS NOT POSSIBLE TO GIVE AN
OUTLET THROUGH THE HOUSE ITSELF TO THE RAIN WATER COLLECTED
THEREON, THE ESTABLISHMENT OF AN EASEMENT OF DRAINAGE CAN
BE DEMANDED, GIVING AN OUTLET TO THE WATER AT THE POINT OF
THE CONTIGUOUS LANDS OR TENEMENTS WHERE ITS EGRESS MAY BE
EASIEST, AND ESTABLISHING A CONDUIT FOR THE DRAINAGE IN SUCH
MANNER AS TO CAUSE THE LEAST DAMAGE TO THE SERVIENT ESTATE ,
AFTER PAYMENT OF THE PROPERTY INDEMNITY. (583)
6. EASEMENT OF DISTANCES
The usual bar exam question would pertain to Article 679.
ARTICLE 679. NO TREES SHALL BE PLANTED NEAR A TENEMENT
OR PIECE OF LAND BELONGING TO ANOTHER EXCEPT AT THE
DISTANCE AUTHORIZED BY THE ORDINANCES OR CUSTOMS OF THE
PLACE, AND, IN THE ABSENCE THEREOF, AT A DISTANCE OF AT LEAST
TWO METERS FROM THE DIVIDING LINE OF THE ESTATES IF TALL
TREES ARE PLANTED AND AT A DISTANCE OF AT LEAST FIFTY
CENTIMETERS IF SHRUBS OR SMALL TREES ARE PLANTED.
EVERY LANDOWNER SHALL HAVE THE RIGHT TO DEMAND THAT
TREES HEREAFTER PLANTED AT A SHORTER DISTANCE FROM HIS
LAND OR TENEMENT BE UPROOTED.
THE PROVISIONS OF THIS ARTICLE ALSO APPLY TO TREES WHICH
HAVE GROWN SPONTANEOUSLY. (591A)
The distance at which you can plant trees – at least two (2)
meters from the dividing line if tall trees are to be
planted and 50 centimeters if shrubs or small trees are to
be planted.
Q: Why 2 meters and minimum distance from the
dividing line? At bakit mas maliit kung halimbawang
small trees or shrubs lang ang itatanim?
A: So that the canopy of the tree will not overlap the estate
or its branches will not overlap to the neighboring estate.
But insofar as structural concerns come into play, parang
mas malaki ang danger ng mga ugat if the trees are really
huge, halimbawang mango trees, they will wreak havoc on
walls dahil masyado silang lumalaki and it can cause
damage to your neighbor that’s why 2meters ‘yong
required.
The canopy is also a problem pero mas madaling
solusyonan yan eh dahil, remember, doon naman sa ating
easement against nuisance, the neighbor can always
demand that the branches be cut Pero ‘yong wall, yan ang
mas mahirap na problema dahil di mo namamalayan, it has
already weaken the integrity of your wall at babagsak
nalang ‘yon.
7. EASEMENT AGAINST NUISANCE
PAGE 120 OF 175
8. LATERAL AND SUBJACENT SUPPORT
When you build a house, hindi lang yan tinatayo doon sa
lupa eh. Malalim ‘yong foundation. So, they dig it up. E kung
mangayayari niyan ngayon, ‘pag nagkaroon ka ng cavity
doon sa katabing estate mo, pepwedeng bumigay ngayon
iyong subjacent support ng bahay mo at pwede kang
magka-sinkhole. So, hukay ng hukay kapitbahay mo dahil
magtatayo siya ng building na 5floors. Sa kakahukay niya, di
niya namamalayan nakukuhaan na rin ang iyong support –
‘yong foundation mo. Before you know it, bumagsak na ang
bahay mo. This is an easement against that possibility.
VOLUNTARY EASEMENTS
This is by agreement. We just have to remember that it is
only the owner who may constitute a servitude over his
property as it operates as a limitation upon its title or
ownership. If there are servitudes constituted by non-
owners such as a usufructuary, a possessor in good faith, a
lessee, this will not bind the servient estate but only these
people who established them. And, when the rights of these
people are extinguished, so will the servitudes they
established be terminated.
3. CONTINOUS AND DISCONTINUOUS. (cont. of the
classification enumerated in the 1st page of EASEMENT)
CONTINUOUS – the use is incessant. It does not
depend on the intervention of man. An example
would be easement of light and view.
DISCONTINOUS – depends on the intervention of a
man. Example: easement of right of way
4. APPARENT AND NON-APPARENT
APPARENT – are those which are made known and
not continually kept in view by external signs.
For right of way, kung permanent na, there will be
road through the property and that will be an
external sign of the right of way which will make
the right of way apparent. Kung medyo
intermittent na ‘yong gamit, walang path na
maeestablish to the property. Di mo talaga alam o
masasabi na may right of way because there is no
external sign. It will now be treated as non-
apparent.
NON-APPARENT
5. POSITIVE AND NEGATIVE
POSITIVE – We imposed upon the owner of the
servient estate the obligation of allowing
something to be done to his property.
NEGATIVE – the owner of the servient estate is
prohibited from doing something which he
otherwise could do with his property.
Modes of Acquiring Easements
1. by Title – can be any transaction (sale, donation,
succession ,etc).
2. by Prescription – only those which are apparent and
continuous may be acquired by prescription.
Q: How easements are extinguished? (READ)
ARTICLE 631. EASEMENTS ARE EXTINGUISHED:
(1) BY MERGER IN THE SAME PERSON OF THE OWNERSHIP OF THE
DOMINANT AND SERVIENT ESTATES;
(2) BY NONUSER FOR TEN YEARS; WITH RESPECT TO DISCONTINUOUS
EASEMENTS, THIS PERIOD SHALL BE COMPUTED FROM THE DAY ON
WHICH THEY CEASED TO BE USED ; AND, WITH RESPECT TO
CONTINUOUS EASEMENTS, FROM THE DAY ON WHICH AN ACT
CONTRARY TO THE SAME TOOK PLACE;
(3) WHEN EITHER OR BOTH OF THE ESTATES FALL INTO SUCH
CONDITION THAT THE EASEMENT CANNOT BE USED; BUT IT SHALL
REVIVE IF THE SUBSEQUENT CONDITION OF THE ESTATES OR EITHER
OF THEM SHOULD AGAIN PERMIT ITS USE, UNLESS WHEN THE USE
BECOMES POSSIBLE, SUFFICIENT TIME FOR PRESCRIPTION HAS
ELAPSED, IN ACCORDANCE WITH THE PROVISIONS OF THE PRECEDING
NUMBER;
(4) BY THE EXPIRATION OF THE TERM OR THE FULFILLMENT OF THE
CONDITION, IF THE EASEMENT IS TEMPORARY OR CONDITIONAL ;
(5) BY THE RENUNCIATION OF THE OWNER OF THE DOMINANT
ESTATE;
(6) BY THE REDEMPTION AGREED UPON BETWEEN THE OWNERS OF
THE DOMINANT AND SERVIENT ESTATES. (546A)
ARTICLE 632. THE FORM OR MANNER OF USING THE EASEMENT MAY
PRESCRIBE AS THE EASEMENT ITSELF , AND IN THE SAME WAY. (547A)
ARTICLE 633. IFTHE DOMINANT ESTATE BELONGS TO SEVERAL
PERSONS IN COMMON, THE USE OF THE EASEMENT BY ANY ONE OF
THEM PREVENTS PRESCRIPTION WITH RESPECT TO THE OTHERS .
(548)
DONATION
ARTICLE 725. DONATION IS AN ACT OF LIBERALITY WHEREBY A
PERSON DISPOSES GRATUITOUSLY OF A THING OR RIGHT IN FAVOR
OF ANOTHER, WHO ACCEPTS IT. (618A)
The peculiar thing about donation is that it is considered to
be a mode of acquisition of title. It’s not just title, it is also
a mode of acquisition.
Q: MODE OF ACQUISITION OF TITLE: What does that
signify?
A: It signifies that ownership is transferred on the deceased
(?) on the donation alone.
Q: When will this happen?
PAGE 121 OF 175
This happens upon the perfection of donation.
Q: When is donation perfected?
A: Upon knowledge by the donor of the acceptance by the
donee.
ARTICLE 734. THE DONATION IS PERFECTED FROM THE MOMENT
THE DONOR KNOWS OF THE ACCEPTANCE BY THE DONEE. (623)
This is very important. It’s not the acceptance which
perfects the donation. It is knowledge by the donor of such
acceptance.
If you’re dealing with movable property being donated, this
is not usually a problem simply because when you make a
donation of movable/personal property, the law usually
requires simultaneous delivery. The problem may lie if
you’re dealing with immovable property because for
immovable property, there are formalities that must be
followed. And if the formalities are not followed, then you
do not have a valid donation.
ARTICLE 748. THE DONATION OF A MOVABLE MAY BE MADE
ORALLY OR IN WRITING.
AN ORAL DONATION REQUIRES THE SIMULTANEOUS DELIVERY OF
THE THING OR OF THE DOCUMENT REPRESENTING THE RIGHT
DONATED.
IF THE VALUE OF THE PERSONAL PROPERTY DONATED EXCEEDS FIVE
THOUSAND PESOS, THE DONATION AND THE ACCEPTANCE SHALL BE
MADE IN WRITING. OTHERWISE, THE DONATION SHALL BE VOID.
(632A)
ARTICLE 749. IN ORDER THAT THE DONATION OF AN IMMOVABLE
MAY BE VALID, IT MUST BE MADE IN A PUBLIC DOCUMENT ,
SPECIFYING THEREIN THE PROPERTY DONATED AND THE VALUE OF
THE CHARGES WHICH THE DONEE MUST SATISFY.
THE ACCEPTANCE MAY BE MADE IN THE SAME DEED OF DONATION
OR IN A SEPARATE PUBLIC DOCUMENT, BUT IT SHALL NOT TAKE
EFFECT UNLESS IT IS DONE DURING THE LIFETIME OF THE DONOR .
IF THE ACCEPTANCE IS MADE IN A SEPARATE INSTRUMENT , THE
DONOR SHALL BE NOTIFIED THEREOF IN AN AUTHENTIC FORM, AND
THIS STEP SHALL BE NOTED IN BOTH INSTRUMENTS . (633)
To address this, the law makes it simple. It says that the
donation and the acceptance must be in the same public
instrument kasi with that, it would be clear that the
acceptance was known to the donor kasi nasa iisang public
instrument lang sila. Usually ganito, may deed of donation,
all the recitals are there, pangalan ng donor, and then sa
baba naman, andon naman ang acceptance by the done. So,
all in one transaction. But, the law also recognizes that
sometimes it’s not possible to have the acceptance in the
same instrument and that will still be allowed. But, you
must have the acceptance noted in the public instrument
containing the donation just to show that the same was
made known to the donor.
It is upon the perfection of the donation that ownership is
transferred. So, di na natin talaga kailangan dito ng separate
delivery pa because ownership is thereby acquired. But for
this to take place again, this presupposes that all the
conditions for a valid donation are met. This starts with the
capacity of the parties. This goes to: (a) who may donate;
(b) what may be donated; (c) who may accept; (d) how
should acceptance be made; And for the capacity of the
parties, you need to know who are the people who are not
allowed to donate to one another.
ARTICLE 735. ALL PERSONS WHO MAY CONTRACT AND DISPOSE OF
THEIR PROPERTY MAY MAKE A DONATION. (624)
ARTICLE 736. GUARDIANS AND TRUSTEES CANNOT DONATE THE
PROPERTY ENTRUSTED TO THEM. (N)
As to the question “what may be donated?”, essentially,
anything presently owned by the donor may be donated.
Exempted from these are future properties. Future
properties cannot be the subject of a donation. Except, if
such donation is made between a future husband and wife
in the ante-nuptial agreement.
But, binago ng Family Code with regard to the formalities.
There was such a thing as a contractual succession kasi
‘tong donations between future husband and wife of future
property, this was allowed but the donation must take the
form of a donation mortis causa. Under the Civil Code, you
can do it in the ante-nuptial agreement pero sa Family Code,
binago. You can still do it but you must take on the
formalities of a last will and testament doing away with
contractual succession. Wala nang contractual succession.
ARTICLE 750. THE DONATION MAY COMPREHEND ALL THE
PRESENT PROPERTY OF THE DONOR, OR PART THEREOF, PROVIDED
HE RESERVES, IN FULL OWNERSHIP OR IN USUFRUCT, SUFFICIENT
MEANS FOR THE SUPPORT OF HIMSELF, AND OF ALL RELATIVES WHO,
AT THE TIME OF THE ACCEPTANCE OF THE DONATION, ARE BY LAW
ENTITLED TO BE SUPPORTED BY THE DONOR. WITHOUT SUCH
RESERVATION, THE DONATION SHALL BE REDUCED IN PETITION OF
ANY PERSON AFFECTED. (634A)
ARTICLE 751. DONATIONS CANNOT COMPREHEND FUTURE
PROPERTY.
BY FUTURE PROPERTY IS UNDERSTOOD ANYTHING WHICH THE
DONOR CANNOT DISPOSE OF AT THE TIME OF THE DONATION. (635)
ARTICLE 752. THE PROVISIONS OF ARTICLE 750
NOTWITHSTANDING, NO PERSON MAY GIVE OR RECEIVE, BY WAY OF
DONATION, MORE THAN HE MAY GIVE OR RECEIVE BY WILL .
THE DONATION SHALL BE INOFFICIOUS IN ALL THAT IT MAY EXCEED
THIS LIMITATION. (636)
There is this all-important limitations against inofficious
donations. On top of the requirement must leave sufficient
PAGE 122 OF 175
properties for himself for his support and the support of
those who are entitled to receive support from him, we also
have this limitation against inofficious donations. That will
come interplay if your donor happens to have compulsory
heirs (CHs) dahil if you CHs, you cannot donate property
that will impugn the legitimes of CHs. All the donations that
you will be making, they must be accommodated in the free
portion.
Hindi mo kasi malalaman agad at the moment that the
donation was made, you have no way of making the
determination that the donation is inofficious. Malalaman
lang ‘to kapag namatay na ang donor at nagkaroon ng
proceeding for the settlement of his estate because at this
point, magkakaroon ng inventory and collation of donation.
Collation, meaning to say, you will account for all donations
that he made during his lifetime regardless of who the
recipient is. Hindi lang donation in favor of third persons ‘to.
Donation made to CHs would also be included in the
collation. You will bring back the value of the donated
property at the time of the making of donation. We will this
value to the estate, and then we will determine how much
the free portion is and if all of these donations may be
accommodated in the free portion. If the donations exceed
the free portion, then there will a cause for either
revocation or reduction. And, the reason why you are
revoking or reducing the donation is considered to be
inofficious because it exceeded the free portion, and by
exceeding the free portion, it has infringed the legitime.
The donor must have capacity to act, must have free
disposition of the property he is donating. The donee, on the
other hand, hindi niya kailangan ng capacity to act but he
must have personality. In Persons and Family Relations,
even an unborn child may be the recipient of the donation
because that unborn child is already accorded provisional
personality. It is provisional because the personality is
subject to the conditions of birth.
ARTICLE 737. THE DONOR'S CAPACITY SHALL BE DETERMINED AS OF
THE TIME OF THE MAKING OF THE DONATION. (N)
ARTICLE 738. AL THOSE WHO ARE NOT SPECIALLY DISQUALIFIED BY
LAW THEREFOR MAY ACCEPT DONATIONS. (625)
ARTICLE 740. INCAPACITY TO SUCCEED BY WILL SHALL BE
APPLICABLE TO DONATIONS INTER VIVOS. (N)
ARTICLE 741. MINORS AND OTHERS WHO CANNOT ENTER INTO A
CONTRACT MAY BECOME DONEES BUT ACCEPTANCE SHALL BE DONE
THROUGH THEIR PARENTS OR LEGAL REPRESENTATIVES . (626A)
ARTICLE 742. DONATIONS MADE TO CONCEIVED AND UNBORN
CHILDREN MAY BE ACCEPTED BY THOSE PERSONS WHO WOULD
LEGALLY REPRESENT THEM IF THEY WERE ALREADY BORN. (627)
ARTICLE 743. DONATIONS MADE TO INCAPACITATED PERSONS
SHALL BE VOID, THOUGH SIMULATED UNDER THE GUISE OF ANOTHER
CONTRACT OR THROUGH A PERSON WHO IS INTERPOSED . (628)
If the donation is made to someone with provisional
personality or someone who is suffering from an incapacity,
the acceptance will have to be made by the parents or
anyone who has guardianship over the person. So, it’s not a
big deal. You will still have a valid donation.
But, there is another kind of incapacity na fatal sa donation,
and this will be the incapacity in relation to the prohibition
against the donation being made between certain people.
Top of the list, husband and wife. H and W cannot donate to
one another or those who are guilty of adultery or
concubinage at the time of the making of the donation. Also
those who are guilty of the same crime when donation is
made for that purpose, etc.
ARTICLE 739. THE FOLLOWING DONATIONS SHALL BE VOID:
(1) THOSE MADE BETWEEN PERSONS WHO WERE GUILTY OF
ADULTERY OR CONCUBINAGE AT THE TIME OF THE DONATION;
(2) THOSE MADE BETWEEN PERSONS FOUND GUILTY OF THE SAME
CRIMINAL OFFENSE, IN CONSIDERATION THEREOF;
(3) THOSE MADE TO A PUBLIC OFFICER OR HIS WIFE, DESCENDANTS
AND ASCENDANTS, BY REASON OF HIS OFFICE.
IN THE CASE REFERRED TO IN NO. 1, THE ACTION FOR DECLARATION
OF NULLITY MAY BE BROUGHT BY THE SPOUSE OF THE DONOR OR
DONEE; AND THE GUILT OF THE DONOR AND DONEE MAY BE PROVED
BY PREPONDERANCE OF EVIDENCE IN THE SAME ACTION. (N)
Another important point: Donations are either be inter
vivos or mortis causa.
Donation inter vivos – if it is meant to take effect during
the lifetime of the donor.
ARTICLE 729. WHEN THE DONOR INTENDS THAT THE DONATION
SHALL TAKE EFFECT DURING THE LIFETIME OF THE DONOR, THOUGH
THE PROPERTY SHALL NOT BE DELIVERED TILL AFTER THE DONOR 'S
DEATH, THIS SHALL BE A DONATION INTER VIVOS. THE FRUITS OF
THE PROPERTY FROM THE TIME OF THE ACCEPTANCE OF THE
DONATION, SHALL PERTAIN TO THE DONEE, UNLESS THE DONOR
PROVIDES OTHERWISE. (N)
It should be very clear kung kelan donation inter vivos or
mortis causa but sometimes circumstances may cause some
confusion kasi ‘pag minsan, ang nangyayari, sasabihin ng
donor, “I’m donating my land to you but I will get to enjoy it
first for the rest of my life.” The important thing to
remember here is you have to look when title actually
passed. If it passes during the lifetime of the donor, then it
is donation inter vivos no matter what conditions are
attached to the donation.
That’s why in one case, kahit na tinawag na donation mortis
causa, kahit na sinabi na the donee will not get to enjoy the
PAGE 123 OF 175
property, the title while the donor was still alive, the
Supreme Court still ruled that the donation was a donation
inter vivos because the donor also provided for a warranty
of his title to the property. Supreme Court opined by the fact
that the donor made that warranty chose that he considered
the property as having been transferred already to the
donee. Similarly, if the donation is subject to a condition
which may not take place during the lifetime of the parties ,
that will still be considered to be a donation inter vivos in
the absence of any condition to the contrary.
Q: Is it important for us to know when a donation is
inter vivos or when it is mortis causa?
A: Yes. But only for purposes of determining the proper
form to be followed.
Kasi ‘yong donation mortis causa, essentially, that is a
testamentary disposition. Kahit pa tawagin mong mortis
causa yan, by all indications, it is a testamentary disposition.
It’s either a devise or a legacy. So, it must follow the
formalities of a last will and testament.
It doesn’t really makes sense to still have a separate
classification for donations as mortis causa. Basically,
you’re bequeathing property, either movable or immovable,
to take effect after your death which also how we define a
legacy or a devise. It must be contained in a last will and
testament. What justification can we have to have a
donation mortis causa still? Pwede naman nating tawaing
legacy or devise which is actually what it is.
Neither husband or wife may dispose of conjugal or
community without the consent of the other. And, such a
disposition will also include a donation. So, it follows that if
the wife alone were to make a donation of conjugal or
community property without the consent of the husband,
this should be considered as a nullity.
Spouses Carlos v. Tolentino
June 2018
FACTS: The wife donated conjugal property to third (?)
grandson. The donation was without the consent of the
husband whose signature was forged by the wife. The
husband even brought an action to dispute the donation.
Insert text here.
ISSUE: Whether or not the donation is null and void.
RULING: The Supreme Court has surprised us because in
this case, the SC said that the donation is void insofar as the
share of the husband is concerned but is valid with regard
to the wife’s share.
❖ Hindi ko rin alam kung san nila nakuha ang ruling
na yon. I would want you to realize that it is very
important for the SC to be consistent with its
rulings. If you are asked this question in the Bar,
ang isasagot niyo ay ayon doon sa batas na pinag-
aralan niyo diba? If you have not come across this
 case, then you would not even think that it’s AGAINST THE DONEE HIMSELF , HIS WIFE OR CHILDREN UNDER HIS
possible to have this kind of a conclusion. Pero, if AUTHORITY;
you read the original, the justification that I found (3) IF HE UNDULY REFUSES HIM SUPPORT WHEN THE DONEE IS
and I needed para magkaroon ng distinctive factor LEGALLY OR MORALLY BOUND TO GIVE SUPPORT TO THE DONOR .
from all the other rules is that the wife died during (648A)
the pendency of the case. So, the SC may have been
operating on a more practical level. Namatay na rin
ARTICLE 766. ALTHOUGH THE DONATION IS REVOKED ON ACCOUNT
naman ‘yong asawa. So, with her death,
OF INGRATITUDE, NEVERTHELESS, THE ALIENATIONS AND MORTGAGES
magkakaroon ng liquidation of the conjugal
EFFECTED BEFORE THE NOTATION OF THE COMPLAINT FOR
partnership. And with the liquidiation, hahatiin na
rin naman ang lupa between her and the husband REVOCATION IN THE REGISTRY OF PROPERTY SHALL SUBSIST. LATER
so might as well, give effect to the donation to half ONES SHALL BE VOID. (649)
of the property because this was obviously what
she wanted anyway. Ito lang ang nakikita kong
justification for the Court to deviate from
established rulings or rule in the law itself.
Donation mortis causa, since they are testamentary
dispositions, so apart from the formalities that must be
observed, donation mortis cause are revocable or
ambulatory. So, they may be revoked at any time for any
reason or for no reason at all. Donation inter vivos, on the
other hand, they are not revocable except for the grounds
that the law enumerate, and which grounds I am giving up
to you to study and understand.

ARTICLE 760. EVERY DONATION INTER VIVOS, MADE BY A PERSON

HAVING NO CHILDREN OR DESCENDANTS, LEGITIMATE OR
LEGITIMATED BY SUBSEQUENT MARRIAGE, OR ILLEGITIMATE, MAY BE
REVOKED OR REDUCED AS PROVIDED IN THE NEXT ARTICLE , BY THE
HAPPENING OF ANY OF THESE EVENTS:

(1) IF THE DONOR, AFTER THE DONATION, SHOULD HAVE LEGITIMATE

OR LEGITIMATED OR ILLEGITIMATE CHILDREN, EVEN THOUGH THEY BE
POSTHUMOUS;
(2) IF THE CHILD OF THE DONOR, WHOM THE LATTER BELIEVED TO BE
DEAD WHEN HE MADE THE DONATION, SHOULD TURN OUT TO BE
LIVING;
(3) IF THE DONOR SUBSEQUENTLY ADOPT A MINOR CHILD . (644A)

ARTICLE 761. IN THE CASES REFERRED TO IN THE PRECEDING

ARTICLE, THE DONATION SHALL BE REVOKED OR REDUCED INSOFAR AS
IT EXCEEDS THE PORTION THAT MAY BE FREELY DISPOSED OF BY WILL ,
TAKING INTO ACCOUNT THE WHOLE ESTATE OF THE DONOR AT THE
TIME OF THE BIRTH, APPEARANCE OR ADOPTION OF A CHILD . (N)

ARTICLE 765. THE DONATION MAY ALSO BE REVOKED AT THE

INSTANCE OF THE DONOR, BY REASON OF INGRATITUDE IN THE
FOLLOWING CASES:
(1) IF THE DONEE SHOULD COMMIT SOME OFFENSE AGAINST THE
PERSON, THE HONOR OR THE PROPERTY OF THE DONOR, OR OF HIS
WIFE OR CHILDREN UNDER HIS PARENTAL AUTHORITY ;
(2) IF THE DONEE IMPUTES TO THE DONOR ANY CRIMINAL OFFENSE,
OR ANY ACT INVOLVING MORAL TURPITUDE, EVEN THOUGH HE SHOULD
PROVE IT, UNLESS THE CRIME OR THE ACT HAS BEEN COMMITTED

PAGE 124 OF 175


DECEMBER 3, 2020
WILLS AND SUCCESSION
GENERAL PROVISIONS
ARTICLE 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent
of the value of the inheritance, of a person are transmitted
through his death to another or others either by his will
or by operation of law. (n)
❖ Article 774 defines what succession is. As you can
see, it is a mode of acquisition; it’s a mode of
acquiring ownership. So just like donation,
succession is the mode by which ownership is
transferred unto itself, there is no need for
separate delivery. This can be seen from the fact
that once there is acceptance, the accepting heir is
deemed to have been in possession of the inherited
property from the time of death of the decedent,
regardless of who may have had actual possession
of the property prior to his acceptance.
❖ If you would go a little further, this definition of
succession contains a qualifier—“to the extent of
the value of the inheritance”. This qualifies one
word and that is obligations. Simply means that the
obligation that passes to the heir would only be to
the extent that the heir inherits from the decedent.
He cannot be made liable for obligations the value
of which will exceed the value of the property and
the rights that he inherits from the decedent.
❖ Be that as it may, I am calling you attention to
Article 781:
Article 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession. (n)
❖ 781 qualifies the definition of inheritance at least
in so far as the extent of the heir’s liability for the
obligations of the decedent is concerned.
❖ Going back to Article 774, take note also that under
this definition of succession, the provision already
lays down the two modes by which succession can
take place—either by will or by operation of law. If
it is by operation of law, it is based on the presumed
intent or will of the decedent. Because if you would
look at the heirs who would receive by intestate
succession, you can see that these are the people
that are close in blood relationship to the decedent.
The only exception being the spouse and the state.
PAGE 125 OF 175
Because the law theorizes that had the decedent
was able to make a will, he would have left his
properties to these people who are closest to him.
❖ If the decedent on the other hand were to leave a
last will and testament, then we give him an option
to be called by another name, we call him either the
testator or the testatrix. And his last will and
testament will contain his express intent. So, the
last will and testament allows the testator to depart
from what the law prescribes in so far as
succession is concerned.
❖ The purpose of the will is inequality. Masakit man
pakinggan, but if you’re just going to give your heirs
the same share by way of intestate succession, in all
likelihood that would be equal if they belong to the
same class; in that case, what is the point of making
a will. So, you create a will because you want to
create distinctions and differences among your
heirs. You will favor some and you will not so much
favor others.
❖ Why do we even need succession in our lives? We
need it because of economic reasons. People die all
the time and without this concept of succession,
without these certain personalities provided by
law to which the personality of the decedent would
continue, then there will be no transactions that
would be entered into that would be immediately
executed and performed.
Example: There would no longer be a long
term loan since there is this feeling that the
obligation will be extinguished upon the
death of the debtor. In that case, what
would that leave the creditor with kung
wala tayong succession. But succession
allows the decedent to live beyond his
lifetime either through his heirs or though
his estate.
❖ Take note that although it is the estate that pays the
obligations of the decedent in the liquidation and
settlement of the estate, ultimately, there is no
question about it that it would still be the heirs
paying the obligations since any reduction in the
properties and rights of the decedent in payment of
the obligations of the latter would also mean
reduction in what the heirs would be receiving. So
sila pa rin talaga yung nagbabayad, may conduit or
agent lang known as the estate.
❖ Death opens succession. So death is a trigger which
opens succession but that is not the only element
that will bring about succession. Kase kunwari,
namatay ka nga kung wala ka naming iiwanang ari-
arian, eh di wala ding succession. So there must be
inheritance. O namatay ka nga pero wala ka naming
taga pag mana, wala pa ring succession. But that is
 not possible in our case eh because the law ensures
that in the absence of all the heirs related to you,
the state will receive the estate through escheat
proceeding. Also, you may have heirs but if none of
them would accept from you, then no succession
will take place as well. So all of these elements—
Death, inheritance, heirs and acceptance—must
concur in order for there to be succession.
ARTICLE 777. THE RIGHTS TO THE SUCCESSION ARE TRANSMITTED
FROM THE MOMENT OF THE DEATH OF THE DECEDENT. (657A)
Q: What kind of death is contemplated here?
A: It refers to both actual/physical death and presumptive
death.
Q: When is there presumptive death?
A: the law says that if someone has disappeared and has
been absent for a period of more than 10 years, then you
may now open succession to his estate. This period is even
reduced to 5 years if the person who disappeared is more
than 75 years of age. And may even be further reduced to 4
years if the disappearance was attended by any of the
dangers of death enumerated under Article 391 of the Civil
Code.
ARTICLE 390. AFTER AN ABSENCE OF SEVEN YEARS, IT BEING
UNKNOWN WHETHER OR NOT THE ABSENTEE STILL LIVES, HE SHALL
BE PRESUMED DEAD FOR ALL PURPOSES, EXCEPT FOR THOSE OF
SUCCESSION.
THE ABSENTEE SHALL NOT BE PRESUMED DEAD FOR THE PURPOSE
OF OPENING HIS SUCCESSION TILL AFTER AN ABSENCE OF TEN YEARS.
IF HE DISAPPEARED AFTER THE AGE OF SEVENTY-FIVE YEARS, AN
ABSENCE OF FIVE YEARS SHALL BE SUFFICIENT IN ORDER THAT HIS
SUCCESSION MAY BE OPENED. (N)
ARTICLE 391. THE FOLLOWING SHALL BE PRESUMED DEAD FOR
ALL PURPOSES, INCLUDING THE DIVISION OF THE ESTATE AMONG
THE HEIRS:
(1) A PERSON ON BOARD A VESSEL LOST DURING A SEA VOYAGE, OR
AN AEROPLANE WHICH IS MISSING, WHO HAS NOT BEEN HEARD OF
FOR FOUR YEARS SINCE THE LOSS OF THE VESSEL OR AEROPLANE;
(2) A PERSON IN THE ARMED FORCES WHO HAS TAKEN PART IN
WAR, AND HAS BEEN MISSING FOR FOUR YEARS;
(3) A PERSON WHO HAS BEEN IN DANGER OF DEATH UNDER OTHER
CIRCUMSTANCES AND HIS EXISTENCE HAS NOT BEEN KNOWN FOR
FOUR YEARS. (N)
Q: How do you go about opening the succession of
someone who is simply presumed to be dead? Can you
file a petition for declaration of presumptive death?
A: NO. In fact, if you were to file a declaration of
presumptive death for this purpose, your petition will be
dismissed motu proprio by the court because there is no
law sanction such a petition unlike in the case of Article 41
PAGE 126 OF 175
of the Civil Code by which the law itself requires that you
secure a decree presumptive death.
Also, the courts will dismiss such petition because any
judgment rendered in these petitions will never attain
finality give that they are merely presumptions.
*So, the proper action would be to file a petition for letters
of administration in conjunction with a petition to settle the
estate of the disappearing person by intestate succession.
And you prove the fact of his disappearance and the length
of time that he has disappeared in the same proceeding. So
simply put, you do not have to secure prior decree of
presumptive death.
Article 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death. (659)
Article 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession. (n)
❖ One term in succession that is repeatedly defined
under the law is “inheritance”.
❖ So you have to understand that each one of us right
now, while we are still alive have our own
patrimony. And the patrimony shall comprise of all
the rights, properties and obligations that you
have, while you are alive. Once you die, this will be
filtered wherein there will be rights and
obligations that will not survive your death; and
these are those that are purely personal in
character.
Example: The right of companionship of
the spouse is a purely personal right, it is
extinguished by your death, di mo naman
pwede ipamana yan sa best friend mo.
❖ So once these rights and obligations are filtered,
you will be left with your estate. So your patrimony
will be transformed as your estate after your death.
This will now cover the rights, properties and
obligations which survive your demise. But the
thing with rights and properties is that they will not
remain dormant even though the owner has died.
So if the property has been earning fruits before,
they will continue to be earned.
Example: If the property is an apartment, civil
fruits for the rent of the apartment will still accrue
despite the death of the owner.
❖ However, theoretically, the right that will accrue
after the death of the decedent no longer belongs to
him. Because when an heir accepts the inheritance,
he is deemed, by legal fiction, to have been the
 owner thereof from the time of the death of the
decedent.
o Why by legal fiction? Because there
may be a time lag between the time of
death and the final settlement of the
estate where the court issues the order
of partition and the heir accepts.
Pwedeng isang dekada na ang nakalipas.
But by legal fiction, the heir is deemed to
be the owner of the property from the
moment of the death of the decedent.
❖ With that premise, the property accruing to the
inheritance from the time of the death of the
decedent should no longer belong to him but to the
heir, not in his capacity as heir but as an owner
acquired through succession.
Q: For instance, Pedro died with 25 Million pesos in
his bank account. He died in 2010. It was only in
2020 that his estate was settled and was accepted
by his heir. So, the 25 million has grown to 35
million. So there is now an increase of 10 million
pesos. But Pedro also left an obligation worth 28
million.
❖ In this problem, if we are going to base on
Articles 774 and 776, Pedro’s heir will only be
liable to Pedro’s obligation to the extent of the
inheritance existing at the time of Pedro’s
death. Eh nung time na namatay si Pedro,
magkano lang pera niya? 25 million. Yung 10
million increase, hindi natin isasama sa estate
ni Pedro based on Article 774 and 776 because
this was earned after his death when there has
already been transfer of ownership through
succession.
❖ So ano ngayon ang mangyayari? Yung creditor
mababayaran lang ng 25 million out of the 28
million na utang sa kanya. Lugi na siya agad ng
3 million.
❖ Alam ko sa isip niyo, sinasabi niyo na hindi ito
tama kasi may pera naman eh, kayang kaya
bayaran yung kulang na 3 million. Buti nalang
may Article 781. Under this provision, it
expands the definition of inheritance to
include even those accruing after the death of
the decedent at least for purposes of defining
the limit of the liability of his heirs for his
obligations. So hindi na tayo limitado dun sa
valuation at the time of death for the purpose
of applying the qualifier in Article 774- “to the
extent of the value of the inheritance”. The
term “inheritance” here in Article 774
should be defined in accordance with Article
781.
PAGE 127 OF 175
❖ So the conclusion is that Pedro’s heir will be
liable for the entire 28 Million because under
Article 781 in relation to Article 774, his
inheritance is actually 35 million pesos which
is enough to discharge the entire 28 million
debt.
KINDS OF SUCCESSION
1. Intestate or Legal Succession - succession by
operation of law which will apply in case there is
no will, or even though there is a will, it was denied
probate or otherwise null and void.
2. Compulsory Succession - it is compulsory
because the decedent has no choice but to reserve
a certain portion of his estate in favor of certain
heirs called the compulsory heirs. The reserved
portion is known as legitime. This kind of
succession is also by operation of law, the
difference with intestate succession is that a
compulsory succession may coincide with
testamentary succession. There is compulsory
succession in both intestate and testamentary
succession. *
❖ Compulsory succession basically mirrors
intestate succession. If you would compare the
compulsory heirs to the intestate heirs, you
would notice that the very same people
occupying the preferred share in intestate
succession are also your compulsory heirs.
Such that if you have compulsory heirs, then
automatic na excluded na yung iba niyong
possible intestate heirs.
o Why? Because your second tiered
intestate heirs, your collateral
relatives, are in the collateral line as
opposed to your compulsory heirs
where most of them are in the direct
line, save for one, the surviving spouse.
And the presence of a compulsory heir in
the direct line excludes collateral relatives.
Ang pwede lang magkaroon ng
concurrence ay ang surviving spouse with
the collateral relatives.
❖ So if you are given a question with so many
facts, just look for a compulsory heir in the
direct line. Once you find one, just ignore all
other collateral relatives. Assuming however
that he is the correct compulsory heir, kasi as
you may know, there might have been a
disinheritance, repudiation etc; so all of these
factors must also be considered. But all things
being equal, once you have a compulsory heir,
chances are siya na rin yung legal heir mo,
unless surviving spouse yung compulsory heir
 mo in which case, they can concur with
collateral relatives.
3. Testamentary Succession - succession based on
the express will of the testator as indicated in his
last will and testament. This will only take place if
the will is valid and has been admitted to probate.
4. Mixed Succession - if intestate succession and
testamentary succession will take place with
regard to the same estate. This may happen if there
is a will and the will does not dispose of the entire
estate or there is a will but it did not comply with
Article 793 (after acquired property).
ARTICLE 793. PROPERTY ACQUIRED AFTER THE MAKING OF A WILL
SHALL ONLY PASS THEREBY, AS IF THE TESTATOR HAD POSSESSED IT
AT THE TIME OF MAKING THE WILL, SHOULD IT EXPRESSLY APPEAR BY
THE WILL THAT SUCH WAS HIS INTENTION. (N)
Article 793 Article 781
After acquired property Accruals after the death of
reckoned from the time of the decedent
the execution of the last
will and testament.
5. Contractual Succession
❖ Under the Family Code, this kind of succession has
been removed because in the FC, if you are to make
a donation propter nuptias of future property to
your future spouse to take effect upon death, the
same must be contained in a last will and
testament.
❖ It was called a contractual succession because the
document that was used to effect this kind of
succession is an ordinary contract—a marriage
settlement, to be exact.
❖ Under the civil code before, pinapayagan na
magkaroon ng donation propter nuptias between
future spouses of future properties, to take effect
upon death. Under the civil code before, you can
just make this in the marriage settlement which is
an ordinary contract. Kaya nagging contractual
succession.
TESTAMENTARY SUCCESSION
WILLS IN GENERAL
ARTICLE 783. A WILL IS AN ACT WHEREBY A PERSON IS
PERMITTED, WITH THE FORMALITIES PRESCRIBED BY LAW , TO
CONTROL TO A CERTAIN DEGREE THE DISPOSITION OF THIS ESTATE ,
TO TAKE EFFECT AFTER HIS DEATH. (667A)
PAGE 128 OF 175
❖ Sa umpisa palang, mali na agad yung Article 783
dahil sabi “a will is an act” where in fact, one of the
requisites of a valid will, whether notarial or
holographic, is that it must be in writing.
❖ Oral wills are not valid in the Philippines. I
remember, may teleserye dati, kung saan the plot
revolved around this oral last will and testament na
vinideo nung protagonist who later on
disappeared.
The antagonists were all over themselves killing
people and plotting schemes to suppress the
production of that video tape. Kasi para sa kanila,
kung lumabas kung sino ang tunay na tagapag-
mana, eh di tapos na ang maliligayang araw nila. So
sa teleseryeng ito, ang daming namatay, ang
daming buhay ang nasira dahil lang sa video nay
un.
Pero para sa ting mga nakaka intindi, sasabihin
nalang natin na ang tatanga naman ng mga ito. Ang
dami na nilang ginawa, ang dami na nila pinapatay,
di man lang nila naisipan na buksan yung civil code
at nakita sana nila na kahit pa lumutang yung video
na yun, that will be null and void because we do not
recognize oral wills in the Philippines, at least for
now. We do not know however in the future; the
law may recognize oral wills because technology
today is different.
In the future, the Supreme Court may interpret this
provision to mean that oral wills are recognized.
But until that day happens, we are content on the
requirement that the will must be in writing.
❖ Now, what is the purpose of a will? If you would
look at Article 783, it has a very limited
purpose. Because it’s supposed to be the vehicle
by which you allow the testator to control to a
certain degree, the disposition of his estate, to
take effect after his death.
❖ It is actually a privilege to make a will, kasi kung
patay ka na, wala ka na dapat saysay sa mundo,
wala ka na dapat say. Everything that happens after
your death should only be the concern of those you
leave behind, but the law allows you to still control
the disposition of you estate to take effect after
your death. May pagkakataon ka pang guluhin ang
buhay ng mga taong iiwan mo kasi nga when you
make a will, you facilitate inequality—you favor
some over others.
And kadalasan, if there is inequality, it may not
even be because of the monetary value that the
preference carries, it may be the emotional hurt.
“Ay totoo pal ana mas mahal ni papa si kuya kaysa
sa akin”. So the will is your final confirmation.
Sometimes, your reaction is emotional, so what will
 you do? You will fight and question the will kasi
hindi mo tanggap eh, hindi mo tanggap na hindi
ikaw yung mahal at paborito.
❖ Note that if the instrument has no disposition, even
if it is named as a last will and testament, is not a
last will and testament at all. So anong instrument
siya? It can be any other ordinary instrument.
Example: Si Pedro gumawa siya ng tinatawag
niyang last will and testament. Pero ang ginawa
niya eh sinalaysay niya lang ang buhay niya at
kinumpisal niya lahat ng kasalanan niya at in-
acknowledge niya all the children that he fathered
out of wedlock. He did not made any disposition
but he followed all the requisites for a notarial will.
But it suffers a defect, so it was denied probate.
Q: Would this mean that this instrument will not
serve any purpose at all?
A: No. At the very least, it is a public acknowledgement
of an illegitimate filiation and it will be effective as such
without any need for probate, precisely because it is not
a last will and testament. Why not? Because there is no
disposition.
Q: When do you have a disposition? Do you need to
have a designated heir?
A: No. Any disposition that takes effect upon death is a
testamentary disposition. So if what you have in the will
is simply devises and legacies, that would still be a valid
last will and testament.
Q: What if the will only contains a provision of
disinheritance?
A: It would still be a valid last will and testament.
Because whenever you disinherit, you effectively make
a disposition in favor of those who will inherit in the
absence of the disinherited compulsory heir. Besides,
the law requires that the disinheritance be made in a
last will and testament.
CHARACTERISTICS OF A VALID WILL
1. Purely Personal
2. Free Act
3. Must contain a disposition
4. Ambulatory or revocable
5. Formal instrument
6. Unilateral
7. Mortis Causa
Purely Personal
PAGE 129 OF 175
❖ Simply means that you cannot delegate the act of
disposition to a third person.
❖ Cannot make the disposition dependent upon the
will of a third person on whether or not they will be
effective.
❖ However, a testator can delegate the mechanical
act of making or drafting the will to a third person.
But the contents should come from the testator.
❖ The law defines what constitutes disposition as
provided under Article 785:
ARTICLE 785. THE DURATION OR EFFICACY OF THE DESIGNATION
OF HEIRS, DEVISEES OR LEGATEES, OR THE DETERMINATION OF THE
PORTIONS WHICH THEY ARE TO TAKE, WHEN REFERRED TO BY
NAME, CANNOT BE LEFT TO THE DISCRETION OF A THIRD PERSON.
(670A)
❖ If you compare Article 785 to Article 786, where a
delegation is allowed by law. The discretion in 786
is wider and broader than that of 785.
ARTICLE 786. THE TESTATOR MAY ENTRUST TO A THIRD PERSON
THE DISTRIBUTION OF SPECIFIC PROPERTY OR SUMS OF MONEY THAT
HE MAY LEAVE IN GENERAL TO SPECIFIED CLASSES OR CAUSES , AND
ALSO THE DESIGNATION OF THE PERSONS, INSTITUTIONS OR
ESTABLISHMENTS TO WHICH SUCH PROPERTY OR SUMS ARE TO BE
GIVEN OR APPLIED. (671A)
Article 785 Article 786
It’s prohibited to have a A third person is allowed to
third person determine the make a determination of
portions to be taken by the who will fall under the
heirs, devisees and legatees classes or causes benefited
if they are referred to by by the testator as well as
name. how much each of them will
be receiving from the
money allotted by the
testator.
INTERPRETATION OF WILLS
❖ This is actually not different from how you
interpret laws and contracts. In laws, we always
look for the legislative intent. In contracts, we
always look for the intention of the parties. In wills,
it’s the same, we look for the testamentary intent.
The question to ask is “what is the intention of the
testator?”.
❖ From this question all else follow because the law
provides that we should always maintain the
validity of the will and we should give effect to
every provision in the will.
 ARTICLE 788. IF A TESTAMENTARY DISPOSITION ADMITS OF
DIFFERENT INTERPRETATIONS, IN CASE OF DOUBT, THAT
INTERPRETATION BY WHICH THE DISPOSITION IS TO BE OPERATIVE
SHALL BE PREFERRED. (N)
ARTICLE 790. THE WORDS OF A WILL ARE TO BE TAKEN IN THEIR
ORDINARY AND GRAMMATICAL SENSE, UNLESS A CLEAR INTENTION
TO USE THEM IN ANOTHER SENSE CAN BE GATHERED , AND THAT
OTHER CAN BE ASCERTAINED.
TECHNICAL WORDS IN A WILL ARE TO BE TAKEN IN THEIR
TECHNICAL SENSE, UNLESS THE CONTEXT CLEARLY INDICATES A
CONTRARY INTENTION, OR UNLESS IT SATISFACTORILY APPEARS
THAT THE WILL WAS DRAWN SOLELY BY THE TESTATOR , AND THAT
HE WAS UNACQUAINTED WITH SUCH TECHNICAL SENSE. (675A)
ARTICLE 791. THE WORDS OF A WILL ARE TO RECEIVE AN
INTERPRETATION WHICH WILL GIVE TO EVERY EXPRESSION SOME
EFFECT, RATHER THAN ONE WHICH WILL RENDER ANY OF THE
EXPRESSIONS INOPERATIVE; AND OF TWO MODES OF INTERPRETING
A WILL, THAT IS TO BE PREFERRED WHICH WILL PREVENT
INTESTACY. (N)
Example: The will says “I am leaving this to my baby”. Ano
ba ordinary meaning ng word na baby? Infant diba? Pero
wala naman siya anak, pero alam natin na meron siyang
girlfriend na tinatawag niyang baby.
So, words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in
another sense can be gathered, and that other can be
ascertained.
ARTICLE 789. WHEN THERE IS AN IMPERFECT DESCRIPTION, OR
WHEN NO PERSON OR PROPERTY EXACTLY ANSWERS THE
DESCRIPTION, MISTAKES AND OMISSIONS MUST BE CORRECTED , IF
THE ERROR APPEARS FROM THE CONTEXT OF THE WILL OR FROM
EXTRINSIC EVIDENCE, EXCLUDING THE ORAL DECLARATIONS OF THE
TESTATOR AS TO HIS INTENTION; AND WHEN AN UNCERTAINTY
ARISES UPON THE FACE OF THE WILL, AS TO THE APPLICATION OF
ANY OF ITS PROVISIONS, THE TESTATOR'S INTENTION IS TO BE
ASCERTAINED FROM THE WORDS OF THE WILL , TAKING INTO
CONSIDERATION THE CIRCUMSTANCES UNDER WHICH IT WAS MADE,
EXCLUDING SUCH ORAL DECLARATIONS. (N)
KINDS OF AMBIGUITIES
1. Patent ambiguity
o If at first reading, you can already see the
ambiguity.
2. Latent ambiguity
o When you would only realize the
ambiguity once you consider extraneous
circumstances.
Example: If I were to make a will saying “I am
leaving P1M to some but not all of my students in
4A SY 2020-2021”. This will be a patent ambiguity
because by just reading the will on its face, you can
PAGE 130 OF 175
already see that there is an ambiguity without
considering extraneous circumstances.
❖ But if the will says: “I am leaving P1M to X” and it
turns our that the testator knows a lot of people
named X, there is an ambiguity because we do not
know which X the testator is referring to.
❖ So how do we resolve these ambiguities? The
first recourse is to examine the four corners of
the will because chances are the resolution may
be found in the will itself.
Example: Yung disposition na I leave P1M to some
but not all of my students in 4A, maaring may
paragraph pala sa dulo ng will na nag dedefine
kung ano yung “some but not all”. Or kung dun sa
second ambiguity, baka sa last part ng will
pinangalanan ng testator ng buo yung X na
tinutukoy niya. In that case, wala nang ambiguity.
❖ But if the will itself cannot provide the answers,
the question is can we resort to extrinsic
evidence? So for the longest time, it has been
well-settled that extrinsic evidence is
admissible to resolve latent but not patent
ambiguity. The justification has always been that
we allow extrinsic evidence in latent ambiguities
because in such kind of ambiguities, it was brought
about by extraneous circumstances.
❖ For patent ambiguity, supposedly, extrinsic
evidence cannot be admitted; but that kind of
holding which may hold true in American
jurisprudence is not supported by the wording of
our law. If you were to read our law, in both cases,
extrinsic evidence is allowed, magkaiba nga lang.
Sa latent, any kind of extrinsic evidence excluding
oral testimony of the testator may be used.
Pero sa patent, with the same exclusion of the oral
testimony of the testator, your extrinsic evidence
that may be admitted is limited to those relating to
the circumstances under which the will was
executed. So mas limited yung ating extrinsic
evidence sa patent ambiguity.
SUMMARY ON THE ADMISSIBILITY OF EXTRINSIC
EVIDENCE TO RESOLVE AMBIGUITIES
PATENT AMBIGUITY LATENT AMBIGUITY
GR: Extrinsic evidence is GR: Any kind of extrinsic
admissible to resolve the evidence is admissible to
ambiguity but it is limited resolve it.
only to those relating to the XPN: Oral testimony/
circumstances under which declaration of the testator.
the will was executed.
XPN: Oral testimony/
declaration of the testator

ARTICLE 793. PROPERTY ACQUIRED AFTER THE MAKING OF A WILL
SHALL ONLY PASS THEREBY, AS IF THE TESTATOR HAD POSSESSED IT
AT THE TIME OF MAKING THE WILL, SHOULD IT EXPRESSLY APPEAR
BY THE WILL THAT SUCH WAS HIS INTENTION. (N)
❖ As a rule, when you make a will, it will dispose of all
your properties, rights and obligations existing at
the time that you made the will; it will NOT cover
after-acquired properties or those acquired after
the will was made. Because tandaan niyo, maaring
gumawa kayo ng will today pero mabubuhay pa
kayo ng 25 years and in those 25 years, a lot can
happen. Maaring during those years, you will hit
your earing capacity peak. But if you fail to make a
provision in your will expressly extending it to cover
after-acquired properties, then the properties you
acquire after you make the will, will have to go by
intestate succession or under a subsequent will
should you execute one
❖ There was this one celebrated case where one of
the richest women in the Philippines died and she
had a will which was admitted to probate. She did
not have any children, so she was able to dispose of
her properties as she wanted, she favored nephews
and nieces. But there as a niece excluded. The niece
was not satisfied with how the dispositions were
made. So she questioned it.
So if you are an ordinary bystander and you heard
that there is a will, it was admitted to probate,
there’s no compulsory heirs, iisipin mo, ano pa
kayang hinahabol nitong niece?
But as it turns out, kahit na primyado yung mga
abogado na gumawa ng last will and testament
nung testatrix, they forgot to include this provision
in Article 793 which extends the will to after-
acquired properties. So in the end, it means na may
habol pa yung niece doon sa mga properties that
were acquired after the making of the will as an
intestate heir. So you see the beauty of the law?
Yung akala mo tapos na ang boxing tapos may isang
tiny detail pa pala na provision na pwede mag bago
sa lahat.
TESTAMENTARY CAPACITY
ARTICLE 796. ALL PERSONS WHO ARE NOT EXPRESSLY
PROHIBITED BY LAW MAY MAKE A WILL . (662)
ARTICLE 797. PERSONS OF EITHER SEX UNDER EIGHTEEN YEARS
OF AGE CANNOT MAKE A WILL. (N)
ARTICLE 798. IN ORDER TO MAKE A WILL IT IS ESSENTIAL THAT
THE TESTATOR BE OF SOUND MIND AT THE TIME OF ITS EXECUTION .
(N)
❖ Testamentary capacity is the ability to make a will.
PAGE 131 OF 175
❖ If a question is asked on who is allowed to make
a will? The best way of answering this is that
everyone can make a will unless you are under
18 years of age and unless you are of unsound
mind.
Q: Who is a person of sound mind with respect to
making a will?
A: Everyone is presumed to be of sound mind. But for
purposes of making a will, Article 799 gives the answer on
who is a person of sound mind.
ARTICLE 799. TO BE OF SOUND MIND, IT IS NOT NECESSARY THAT
THE TESTATOR BE IN FULL POSSESSION OF ALL HIS REASONING
FACULTIES, OR THAT HIS MIND BE WHOLLY UNBROKEN,
UNIMPAIRED, OR UNSHATTERED BY DISEASE, INJURY OR OTHER
CAUSE.
IT SHALL BE SUFFICIENT IF THE TESTATOR WAS ABLE AT THE TIME
OF MAKING THE WILL TO KNOW THE NATURE OF THE ESTATE TO BE
DISPOSED OF, THE PROPER OBJECTS OF HIS BOUNTY, AND THE
CHARACTER OF THE TESTAMENTARY ACT . (N)
❖ So, the bar has not been set to high in order to meet
the requirement of soundness of mind in making a
will.
❖ The law defines it negatively by saying that it is not
necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause.
❖ At the same time, the law also defines soundness of
mind in the sense that if your brain can do any of
these, it suffices:
o Know the nature of your estate
o Know the proper objects of your bounty
o Recognize the character of the
testamentary act.
Nature of Estate
Q: What does it take for one to know the nature of his
estate? Does this require that a person should have a
didactic recollection of what he owns?
A: No. This is impossible to do. You do not need to know it
all at once. But you just have to be able to recall that you
have it once you are reminded.
Example:
“Senorito, meron po kayong lupa sa Laguna”
“Senorito, may pinatabi po kayong P10 Million sa akin”
Proper Objects of Bounty
 ❖ This is usually the ground that is used by people
who may have been left out in the will when they
feel that they should have been the one benefited
by the will. This scenario will take place usually
kapag yung matatanda they are left behind in the
care of other people by their children and it’s not
because the children are evil but because
sometimes yung lifestyle ng children hindi na
tugma para maalagan pa yung parents nila.
Example: Yung parents sa probinsya naka based
tapos mga anak nasa Maynila, ayaw naman umalis
ng matanda sa probinsya. So ang ending, the
children are forced to hire someone to look after
the parent and the parent becomes reliant on this
third person. Before you know it, pag namatay na
yung parent, may will pala disposing and giving the
free portion of the estate to these third persons. Of
course, the children will question it. The ground
that they will use is that he no longer knew the
proper objects if his bounty; may dementia na siya,
senile na siya. The children will argue that have
their parent been in his full mental faculties, he
would not have given the free portion of his estate
to these third persons. He would have given it to us,
he would have wanted us to take these properties
because we are the proper objects of his bounty.
Character of the Testamentary Act
❖ Masakit man isipin pero there really are those
people who take advantage of those who are
helpless. So ang gagawin magpapa-pirma ng SPA,
mortgage at kahit last will and testament without
the person who signed it knowing that it is a last
will and testament.
ARTICLE 800. THE LAW PRESUMES THAT EVERY PERSON IS OF
SOUND MIND, IN THE ABSENCE OF PROOF TO THE CONTRARY.
THE BURDEN OF PROOF THAT THE TESTATOR WAS NOT OF SOUND
MIND AT THE TIME OF MAKING HIS DISPOSITIONS IS ON THE PERSON
WHO OPPOSES THE PROBATE OF THE WILL ; BUT IF THE TESTATOR,
ONE MONTH, OR LESS, BEFORE MAKING HIS WILL WAS PUBLICLY
KNOWN TO BE INSANE, THE PERSON WHO MAINTAINS THE VALIDITY
OF THE WILL MUST PROVE THAT THE TESTATOR MADE IT DURING A
LUCID INTERVAL. (N)
ARTICLE 801. SUPERVENING INCAPACITY DOES NOT INVALIDATE
AN EFFECTIVE WILL, NOR IS THE WILL OF AN INCAPABLE VALIDATED
BY THE SUPERVENING OF CAPACITY. (N)
Just read these two provisions.
FORMS OF WILLS
KINDS OF WILLS
1. Notarial Will
PAGE 132 OF 175
2. Holographic Will
COMMON REQUISITES OF BOTH WILLS
1. Must be in writing
2. Written in the language or dialect known to the
testator.
ARTICLE 804. EVERY WILL MUST BE IN WRITING AND EXECUTED IN
A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR. (N)
❖ Now, there is this very old case, may katangahan
din yung abogado ditto because he voluntarily
provided in the will that it has to be translated to
the testator in Filipino because the will was in
English.
So what is the implication of that? The testator
cannot understand English right? So, the will was
denied probate. Ang masaklap ditto, there’s no
such requirement that such declaration be made in
the will.
That’s what I’m telling you, kung ano lang yung
kailangan, yun lang ibigay niyo. Do not volunteer
information that is unnecessary. Well, in this case
pwede rin namang he just kept quiet but the other
parties would have still assailed it but do not hand
it to them in a sliver platter; make them work for it.
SUROZA v. HONRADO
FACTS:
❖ In 1973, Marcelina Suroza supposedly executed a
notarial will bequeathing her house and lot to a
certain Marilyn Suroza. In 1974, Marcelina died.
Marina Paje was named as the executrix in the said
will and she petitioned before CFI Rizal that the will
be admitted to probate. The presiding judge,
Honrado admitted the will to probate and assigned
Paje as the administratrix. Honrado also issued an
ejectment order against the occupants of the house
and lot subject of the will.
❖ Nenita Suroza, daughter in law of Marcelina (her
husband, son of Marcelina was confined in the
Veteran’s Hospital), learned of the probate
proceeding when she received the ejectment order
(as she was residing in said house and lot).
❖ Nenita opposed the probate proceeding. She
alleged that the said notarial will is void because
(a) the instituted heir therein Marilyn Suroza is
actually Marilyn Sy and she is a stranger to
Marcelina, (b) the only son of Marcelina, Agapito
Suroza, is still alive and is the compulsory heir, (c)
the notarial will is written in English a language not
 known to Marcelina because the latter was
illiterate so much so that she merely thumbmarked
the will, (d) the notary public who notarized will
admitted that Marcelina never appeared before
him and that he notarized the said will merely to
accommodate the request of a lawyer friend but
with the understanding that Marcelina should later
appear before him but that never happened.
❖ Honrado still continued with the probate despite
the opposition until testamentary proceeding
closed and the property transferred to Marilyn Sy.
Nenita then filed this administrative case against
Honrado on the ground of misconduct.
ISSUE:
Whether or not Honrado is guilty of misconduct for
admitting into probate a void will.
RULING:
❖ Yes. Despite the valid claim raised by Nenita, he
still continued with the testamentary proceeding,
which showed his wrongful intent. He may even be
criminally liable for knowingly rendering an unjust
judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory order
by reason of inexcusable negligence or ignorance.
❖ The will is written in English and was thumb
marked by an obviously illiterate Marcelina. This
could have readily been perceived by Honrado that
that the will is void. In the opening paragraph of the
will, it was stated that English was a language
“understood and known” to the testatrix. But in its
concluding paragraph, it was stated that the will
was read to the testatrix “and translated into
Filipino language.” That could only mean that
the will was written in a language not known to
the illiterate testatrix and, therefore, it is void
because of the mandatory provision of Article
804 of the Civil Code that every will must be
executed in a language or dialect known to the
testator.
❖ Had Honrado been careful and observant, he could
have noted not only the anomaly as to the language
of the will but also that there was something wrong
in instituting to Marilyn Sy as sole heiress and
giving nothing at all to Agapito who was still alive.
Honrado was fined by the Supreme Court.
❖ *Another important point is that illiterates can
also make a will.
Q: So, say that the testator is an illiterate and the last
will and testament is in English. Do we come to the
PAGE 133 OF 175
conclusion that the will is invalid because it was written
in a language not known to the decedent given that he
is illiterate?
A: OF COURSE NOT. Bilang kayo ay mga Tomasino, dapat
alam niyo na hindi nasusukat ang katalinuhan ng isang tao
kung siya ay pwedeng magsalita o may kakayahang
magsalita ng Ingles o Tagalog lang. It does not follow that
just because he is an illiterate, he cannot speak English.
Because if you come to that conclusion, eh di ginagamit mo
nga na batayan o standard of intelligence yung ability to
speak English. Sa America napakaraming mang-mang pero
sila ay nakakapag-Ingles naman diba. “Ang tunay na mang-
mang sa Pilipinas ay ang hindi makapag-Tagalog”.
❖ So, as Thomasians, you have the ability to speak
both English and the Filipino language well. Kaya
niyo makipag sabayan na makipag Ingles pero kaya
niyo rin magsalita ng Tagalog na parang lumaki
lang kayo diyan sa kanto ng Recto. And do not lose
that ability because once you are practicing, you
will be dealing with different people and if you can
speak their language the way they speak it, then
that will allow you to connect with them.
❖ Now, there is a presumption that if the will is
written in the dialect or language spoken in the
place of residence of the decedent prior to his
death, the presumption is he knows that language
or dialect. And anyone who says otherwise must
discharge the burden of proof.
❖ *You have to realize that insofar as the witnesses
are concerned, they have nothing to do with the
contents of the will. So it is not necessary that the
will is in a language or dialect known to the
witnesses. It is the attestation clause which must be
translated to the witnesses in case it is in a
language or dialect not known to them. Kasi, the
witnesses are attesting to the due execution of the
last will and testament, they are not witnesses to
the contents of the will.
ARTICLE 805. EVERY WILL, OTHER THAN A HOLOGRAPHIC WILL,
MUST BE SUBSCRIBED AT THE END THEREOF BY THE TESTATOR
HIMSELF OR BY THE TESTATOR'S NAME WRITTEN BY SOME OTHER
PERSON IN HIS PRESENCE, AND BY HIS EXPRESS DIRECTION, AND
ATTESTED AND SUBSCRIBED BY THREE OR MORE CREDIBLE WITNESSES
IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER .
THE TESTATOR OR THE PERSON REQUESTED BY HIM TO WRITE HIS
NAME AND THE INSTRUMENTAL WITNESSES OF THE WILL , SHALL ALSO
SIGN, AS AFORESAID, EACH AND EVERY PAGE THEREOF , EXCEPT THE
LAST, ON THE LEFT MARGIN, AND ALL THE PAGES SHALL BE NUMBERED
CORRELATIVELY IN LETTERS PLACED ON THE UPPER PART OF EACH
PAGE.
THE ATTESTATION SHALL STATE THE NUMBER OF PAGES USED UPON
WHICH THE WILL IS WRITTEN, AND THE FACT THAT THE TESTATOR
SIGNED THE WILL AND EVERY PAGE THEREOF, OR CAUSED SOME OTHER
PERSON TO WRITE HIS NAME, UNDER HIS EXPRESS DIRECTION, IN THE
PRESENCE OF THE INSTRUMENTAL WITNESSES, AND THAT THE LATTER
WITNESSED AND SIGNED THE WILL AND ALL THE PAGES THEREOF IN
THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER.
IF THE ATTESTATION CLAUSE IS IN A LANGUAGE NOT KNOWN TO THE
WITNESSES, IT SHALL BE INTERPRETED TO THEM. (N)
ARTICLE 806. EVERY WILL MUST BE ACKNOWLEDGED BEFORE A
NOTARY PUBLIC BY THE TESTATOR AND THE WITNESSES . THE NOTARY
PUBLIC SHALL NOT BE REQUIRED TO RETAIN A COPY OF THE WILL, OR
FILE ANOTHER WITH THE OFFICE OF THE CLERK OF COURT.(N)
REQUIREMENTS OF A NOTARIAL WILL
1. It must be subscribed at the end thereof by the
testator himself or by the testator’s name written
at the end thereof by the testator himself or by the
testator’s name written by some other person in
his presence and by his express direction.
2. It must be attested and subscribed by three or
more credible witness in the presence of the
testator and of one another.
3. It must be signed by the testator or the person
requested by him to write his name and the
instrumental witnesses of the will on each and
every page thereof except the last on the left
margin.
4. All pages must be numbered correlatively in letters
placed on the upper part of each page.
5. It must contain an attestation clause.
6. It must be acknowledged before a notary public by
the testator and witnesses.
FIRST REQUIREMENT
❖ When we say “at the end of the will” we refer to the
logical end of the will and not the physical end.
What is the logical end? It is the last disposition
made in the will.
o Why must it need to be placed on the
end? Because signature signifies
authorship or ownership of everything
that was written before the signature.
Also, it signifies that below the signature,
there would be no other dispositions.
❖ Subscription here would not be limited to a
signature of the testator. Although ideally,
signature talaga yung gagamitin mo; your full
signature if possible or your usual signature at the
PAGE 134 OF 175
very least. Why? Because you do not want to
make it difficult for those you leave behind who
will be interested in your will.
But can you use any signature? Yes. Because
what makes your signature, your signature is your
intention to make it your signature.
Example: Sa buhay niyo nakatatlong palit na
kayo ng signature from high school to college
to law school hanggang maging abogado kayo.
All those signatures will be valid because you
intended them to be you signature. So if you
make a will, it is ideal that you use any of those
three signatures because there will be a
document in this world existing that bears any
one of those signatures by which your
signature in the will may be compared to.
❖ But can I adopt a signature other than my usual
signatures? The answer is Yes. Pwede ba
kunwari letter “Z” parang si Zorro? Yes, as long as
it is my intention to make it my signature. The
problem is, once the testator dies, his heirs will be
having difficulties proving that such is the
testator’s signature in the absence of attesting
witnesses.
❖ So if you make a will, you must use a signature that
can be identified with you because there are
sample documents showing that you have used
that signature before or it can be associated with
you.
Example: Si Zorro gumawa ng will tapos letter
“Z” lang ang kanyang sinulat, would you even
entertain the possibility na si Zorro nga yung
sumulat non? Yes. Why? Because there is an
association. You have the basis to believe that
that might have been his way to sign. But in the
absence of any association, it will be difficult
for the court to accept a signature that is not
his usual signature.
❖ There was this case where the testator put an “X”
as his signature. The Supreme Court did not accept
it because there was no reason for the testator to
sign an X rather than his usual signature. It would
have been better if he thumb marked the last will
and testament kasi nga a subscription may include
any kind of sign or symbol and a thumbmark is a
sign or symbol. And note that a thumbmark is
unique to every person. No two thumbmarks are
alike.
Q: If it is a third person who signs for the testator, must
he write his own name?
A: No. Because the third person must only suppose to write
the name of the testator. But the fact that the third person
signed for the testator, under his express authority and his
presence, it must be reflected in the attestation clause.
❖ The problem arises when a third person signs for
the testator in cases of emergency. Kunware
habang nag sisign yung testator he fell ill, so
another witness must step up for him. There is no
problem in this case pero baka nakalimutan nila i-
amend yung attestation clause. And it will not be
reflected that the third person signed for the
testator. And that will then lead to a fatally
defective attestation clause.
❖ That is why in such case, it would still be ideal for
the testator to affix his thumbmark even if a third
person signed for him because even if the
attestation clause be not amended, there would
absolutely be no need for that amendment because
the thumbmark is a sufficient subscription. It is as
if the will was signed by the testator himself and
not by the third person, hence no need for the
attestation clause to be amended.

PAGE 135 OF 175


DECEMBER 4, 2020
FORMALITIES OF THE WILLS
Q: Is there a difference between subscription and
attestation?
SUBSCRIPTION
A: Subscription is more mechanical in character. It is
something that can be accomplished without putting much
attention to it; and the purpose of subscribing on the left
margin is to identify the will as the same with what was
published to the witnesses, each and every page thereof. It
is very easy to replace any of these pages and modify some
provisions without alerting people about the forgery that
has been done. The original appearance will be maintained,
but there will be modifications inserted which will defeat
the testamentary intent.
Atty Seña: If the original will was signed on each and every
page, then needless to say, such kind of forgery may be
deterred kasi mahirap mareproduce yung signatures of the
witnesses.
Q: What if the will was subscribed in each and every
page, pero may pasaway na witness, sa right hand
margin pumirma, would that matter?
A: It should not. These formalities, they are prescribed to
ensure the integrity of the will. We want to give effect to the
testamentary intent.
So if that purpose of safeguarding is otherwise achieved,
then we should not pay any [inaudible] anymore for any
slight departure from what the law prescribes. The same
purpose is achieved. You can actually accept substantial
compliance because it does not make any sense to defeat
testamentary intent just because of noncompliance with
formalities for the purpose of the formalities is otherwise
accomplished.
ATTESTATION
Attestation - something which is more substantial. It
requires more than the mechanical act of signing one’s
name.
Here, you are standing as witness to the publication of the
will. The attestation clause is purely the business of the
witnesses, walang kinalaman yung testator. That’s why the
witnesses must sign after the attestation clause (AC).
You cannot discount the fact that the signature appearing
on the AC also serves the purpose of identifying that page at
least, or the AC appears to be the true page of the authentic
will. It can serve a dual purpose - identifying and also
signing or claiming ownership of the AC. It’s not difficult to
imagine a situation where the page containing the AC where
PAGE 136 OF 175
the witnesses have signed the AC may still sustain the
validity of the will even though the left hand margin of the
page does not contain the signatures of the witnesses
because the signatures appearing after the AC would be
sufficient both for signing the AC and identifying that page
as an authentic page of the last will and testament. BUT the
opposite situation will not bode as well for the [inaudible]
of the last will and testament. If it so happens that it’s only
the left hand margin which bears the signature of the
witnesses, and the AC was unsigned, then that will not be
sufficient to sustain the validity of the will, because the AC
was never signed by the witnesses.
Q: Bakit hindi natin pwede i-extend yung signature sa
left hand margin for the Attestation Clause?
A: For the simple reason that the signature of the left hand
margin is simply to identify that page as the authentic page
of the will. It safeguards the integrity of the will. The AC is
a totally different matter. It is a testament to what
transpired in the execution of the will.
Q: How fatal is it if all the pages of the will were signed
by the witnesses and the testator but there was one
page which only contained the signature of 2 witnesses
and the testator because one of the witnesses
simultaneously lifted two pages when he was signing?
Later on, during the probate, the witness explained
that it was an accident that he failed to sign. What
should be the ruling here? Should the will be sustained
as valid or should it be denied probate?
A: The SC sustained the validity of the will.
NOTE: We cannot take this as a precedent of a ruling
relaxing the formalities of a will with regard to the
signatures on the left hand margin because the peculiar
circumstances in this case. In this case, there was a
duplicate original. There was another copy of the will which
was simultaneously executed with the original. In effect,
you have two originals of the wills. Secondly, the witness
was able to explain the absence of his signature on the page
concerned. So there was no danger at all that hovered over
the integrity of the will. This is not a doctrine that you just
can cite. Ang takeaway natin dito would be so long as the
purpose of the formalities is achieved, then we can
afford to sustain the validity of the will even if there is
lack of compliance with some of the requirements.
PRESENCE
The law also requires that the signing of the will by the
testator and the witnesses must be in the presence of one
another.
Q: What exactly is contemplated by presence? When is
there presence?
A: Presence, according to Justice Caguioa, requires two
elements:
 1. Sight
2. Proximity
There is SIGHT if by simply casting your eye in the right
direction, you will be able to see what is going on.
Atty Seña: Hindi naman kailangan na nakatutok ka sa papel
habang nag eexecute ng will. You can go about your usual
business so long as you would only need to cast your eyes
in the right direction and you will be able to see what’s going
on. If you are in another room and you don’t have a direct
line of vision into the other room where the execution is
taking place, then presence is not complied with. Similarly,
you may be able to see, but if you are too far away, then you
would not have any appreciation of what is transpiring.
From afar, everything would seem okay - nakikita niyo na
pumipirma yung testator, but a closer inspection would give
you other details to [inaudible] the validity of the will.
Nanginginig siya sa takot kasi tine-threaten na pala siyang
pumirma. SO MERE SIGHT WOULD NOT BE SUFFICIENT.
YOU HAVE TO BE CLOSE ENOUGH. Otherwise, balewala
ang iyong pagiging witness. So sight and proximity.
PAGINATION
The law also require that the PAGES MUST BE NUMBERED
IN LETTERS.
Atty Seña: This was never explained by the law. The only
logical conclusion that we can make is that if the purpose is
to safeguard against insertion, it goes to reason that the
pages must be in words. Madaling burahin ang numbers.
The law contemplates that it must be spelled out, as in 1 as
in o-n-e. You must be thinking in your heads, madaling
burahin yan sa adobe, which is true, but that technology was
not available before. Hindi naman pwede dati mag scan at
copy paste. So itong provision na ito will not even be
sufficient anymore kasi nasa 21st century na tayo.
ATTESTATION CLAUSE
Atty. Sena: This is proved to be the waterloo of many wills
kasi yung ibang mga abogado, for some reason,
dinadagdagan ng kung anu-anong palabok. They add things
which shouldn’t even be there, and in the process, they
forget to state what the law requires to be stated in the AC.
Ending is the will is invalidated. So make sure you comply
with the basics, before you embellish.
Q: What must be stated in the AC?
A:
1. The number of pages used upon which the will is
written
2. The fact that the testator signed the will and every
page thereof, or caused some other person to write
PAGE 137 OF 175
his name, under his express direction, in the
presence of the instrumental witnesses; and
3. Witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of
one another. (MARX)
Atty Seña: Napakasimple lang and yet some people get it
wrong because they are not paying attention to details.
They would just focus on the main dispositions, and then
the AC babastahin nalang nila which is wrong because if you
feel tripped over any of the requirements of the AC, that will
invalidate your will. Article 809 will only be able to help you
to a certain extent, only under certain circumstances.
Illustration: Take this case, the AC was signed by the
witnesses, but there was an obvious defect in its drafting,
and those missing words rendered the attestation clause
incomplete. Basically what it said is that the attestator
signed the will and the witnesses in the presence of one
another. So may missing link - failure of the AC to say that
the testator signed in the presence of the witnesses and
that the witnesses signed in the presence of the
testator. Even if we were to apply 809, you will have to give
up on the validity of the will because no amount of
examining the will will supply that missing statement
regarding the manner of its execution. The missing fact
cannot be supplied by the will itself. 809 WILL ONLY
APPLY IN ACCORDANCE WITH THE OPINION OF JBL
REYES THAT IF WHAT IS MISSING OR IF THE DEFECT
MAY BE CURED BY EXAMINING THE CONTENTS OF THE
WILL, which is not the case here. To be clear, under Art. 809,
you will only apply this in case where there is no bad faith,
forgery, fraud, undue and improper pressure and influence,
and according to JBL Reyes, if you can supply or cure the
defect from an examination of the will, then you may apply
liberality.
In the example given, that is not the situation.
Q: Ano yung pwede natin gamitan ng Art. 809?
A: If let’s say what is missing is a statement regarding the
pages comprising the will and the will itself provides for the
number of its pages. Example, page 3 of 20. The will tells you
that it is comprised of 20 pages.
ACKNOWLEDGMENT
Q: What is acknowledgment?
A: Basically, when you acknowledge, you affirm authorship
of the act embodied in the document. It is different from a
jurat. Yung jurat kasi subscribed and sworn to. There’s no
declaration made by the one affirming the document. Sa
acknowledgement, he is affirming his voluntary authorship
of the act.
Q: Is the acknowledgment supposed to be done in the
same transaction as the execution of the will? In one
sitting?
A: No. The acknowledgment is not part of the execution
anymore. It’s what comes after the execution. In fact,there’s
even no requirement that the testator and the witnesses
acknowledge all at the same time.
Atty Seña: From a practical point of view, what we do in
practice is that after the execution, acknowledgement
follows. We import a notary public to be present in the
execution para seamless na. If you let the witnesses go after
the execution, there is no guaranty that we would be able to
make them appear before the notary public for the
acknowledgment. Paano pag naaksidente, edi wala kang
last will and testament. Also, you have to videotape the
execution and the acknowledgment. Pictures will not do (In
practice ito) because the issues will not arise until a decade
later.
Acknowledgment is the authority of the notarizing
officer. If you are authorized to notarized in one city,
then that authority does not extend outside of that.
In one case, the testatrix was residing somewhere in New
Manila in QC. The notary public is licensed somewhere in
the South. Pero siguro dahil matanda na yung testatrix, yung
notary public ang pumunta sakanya sa New Manila.
Masyado sigurong honest sila or baka nakaligtaan,
nakalagay parin doon that the will was executed in QC and
acknowledged in QC. Pero yung details nung notary public
ay nakalagay na siya ay notary public for the city of Las
Piñas. That was a fatal mistake. So tatandaan niyo that
sometimes the last will and testament is the only barrier
against the inheritance of intestate heirs, so tatargetin
talaga nila yan. The lawyer of the intestate heirs will go over
the last will and testament that you helped draft. Every line
hahanapan yan ng butas and in this particular case
nakahanap ng butas - of all things, yung authority ng notary
public. Lusot na eh, biglang napakaliit na detail doon ka pa
mahuhuli. The notary public was not licensed to notarize in
QC. This could have been avoided. I am in no way
sanctioning this behavior pero kung gagawa ka nalang rin
ng kalokohan ay panindigan mo na. Wag mo na ilagay na
nagnotaryo ka sa QC. Pangatawanan mo na nagnotaryo ka
sa Las Piñas. Had that been the case, may laban pa yung last
will and testament. Let them prove that it was executed in
QC.
In litigation, you have no obligation to help the other party.
You are not preventing them to discover the truth. The
notary public should have known that his notarization
would not have any effect. He was at fault.
SPECIAL REQUIREMENTS
Article 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise,
he shall designate two persons to read it and
communicate to him, in some practicable manner, the
contents thereof.
PAGE 138 OF 175
Article 808. If the testator is blind, the will shall be read
to him twice; once, by one of the subscribing witnesses,
and again, by the notary public before whom the will is
acknowledged.
In case of blindness or if he is deaf-mute. The Civil Code
has prescribed the manner in which the will must be
executed.
NOTE: In Garcia vs. Vasquez, the lawyer departed from
the procedure prescribed in the law. Instead of having the
will read twice - once by one of the witnesses, and the other
by the notary public, what was done was that everyone was
given a copy of the last will and testament. One copy was
read out loud while the others were following what was
being read by reading silently along with the person reading
aloud. This was a departure from what the law prescribes,
but you cannot deny that it also achieved the same purpose.
Nagkaroon ng provision(?) for counterchecking the
contents of the will.
The SC said that that was sufficient to sustain the validity of
the will. Also, it was in this case that the SC declared that we
apply the same requirements for blind testators to
those who are suffering from poor eyesight and those
who are illiterate. Basically, if you are illiterate, you
may be compared to a blind testator because you have
no idea what is in the will that you are required to sign.
When it comes to these formalities, ang purpose nila is to
safeguard the integrity, authenticity of the will. If this is
otherwise accomplished, then any departure from these
formalities ought to be allowed and should not affect the
validity of the will. You cannot sacrifice testamentary intent
at the [inaudible] of formalities.
HOLOGRAPHIC WILLS
Atty Seña: Kung ang attested will ay sophisticated, ang
holographic will ay laid back lang, chill lang. It was criticized
because sobrang higpit natin sa notarial will pero sa
holographic will bare minimum lang. You might wonder, do
we even have a security feature in holographic wills kasi
walang witnesses. Parang sumusulat lang sa diary, yun pala
gumagawa ng will. Kahit siguro sa pader pwede ka gumawa
ng holographic will. Kunyari nakakulong ka tapos feeling
mo papatayin ka na kaya nagsulat ka ng will sa pader. To my
mind that is acceptable because hindi naman kaylangan na
nasa papel. Kailangan lang in writing.
Q: You have to wonder, why is the law so nonchalant
about the requirements of a holographic will. Ano yung
ating badge of authenticity sa holographic will?
A: The handwriting of the testator would be our badge of
authenticity.
REMEMBER: Iba yung signature and iba yung handwriting.
Sometimes yung signature can be a one letter affair. Minsan
parang ibon lang. In that case, even if you are familiar with
his signature, but you have never seen a handwriting of his,
you would not be able to identify that the person who
signed was also the same person who wrote the document
in his handwriting. So ang downside, you would need a good
enough size sample work of the handwriting of the testator.
What’s more, the sample handwriting must be made around
the same time when the holographic will was executed.
Otherwise, you won’t have basis for comparison. Your
handwriting changes over the years. So if you need to prove
that the testator signed this and wala kang makuhang
sample work, yun yung problema in holographic will. That’s
why in the probate of a holographic will, and it’s unopposed,
you need 1 witness who will expressly state that the
signature and the holographic will itself are in the
handwriting of the testator. If opposed, you need to produce
3 witnesses. Saan ka kukuha non? If wala ka maproduce,
the law allows expert testimony.
Problem: you need sample work of the testator that may
be studied by an expert. So yun ang problema ng
holographic will.
Q: Why must it be dated?
A: It will give us a timeframe when the will was executed
and the timeframe will allow us to determine if there is
basis to determine to even think that he was already of
sound mind.
Q: How should you date the holographic will?
A: Ideally, we follow the format: d/m/y. However, that is not
the only way to date, SO LONG AS WE CAN PINPOINT THE
TIME THAT IT WAS EXECUTED. Any manner will do. Ex:
Christmas of ’95, August 25 of the worst year ever, first
anniversary of the biggest mistake of my life (if it can be
connected to your wedding anniversary. So anything that
would allow you to make a determination of when that is.
If you depart from the idea, you make it difficult for the
people you leave behind, but that alone will not be a basis
to invalidate the will. As long as they would be able to prove
what date contemplated by the testator.
Q: What if wala yung date sa proper place niya? Nasa
loob mismo ng last will and testament.
A: That would still be sufficient. The idea is that the
testator is executing the holographic will on his own, that’s
why yan lang yung minimun requirements.
ALLOWABLE AS A WORK IN PROGRESS
- the testator may add to his holographic will every now and
then. Kunyari after a week, naalala niya si aling Bebang so
idadagdag niya. That is okay so long as it is dated and sign.
After a year pwede ulit. Unlike a notarial will which must be
PAGE 139 OF 175
done in one sitting. If you want to add to or modify, then you
have to execute either a codicil or a subsequent will.
Q: Supposing that modifications are made to the
holographic will, can these also be validly done? How?
(referring to making an insertion, cancellation,
erasure, or alteration)
A: Yes, the testator must authenticate with full signature.
If not, then the result would be that the insertion, erasure,
cancellation or alteration will not be given effect and the
will will be implemented as it was originally written.
XPN: what has been cancelled is the substance of the will
itself which may lead to a conclusion that a revocation has
taken place.
Kalaw vs. Relova
FACTS: There was this one case, Kalaw, in this case, there
were three siblings, a brother and two sisters. One of the
sisters, tawagin nalang nating Rosa, executed a holographic
will. It was a one sentence affair. She originally instituted
her sister, Teresa, as her sole heir, “I institute Teresa, my
sister, as my sole her”. Apparently, there was a falling out
between the sisters because Rosa changed her will. Binura
niya yung pangalan ni Teresa and sinulat niya yung
pangalang ng isang kapatid, si Gregorio. For some reason,
she failed to authenticate with her full signature. So, nag
away si Teresa at Gregorio. Sabi ni Gregorio: “The will shall
be considered modified”. Sabi ni Teresa, “Hindi nga na-
authenticate so hindi ako napalitan”.
RULING:
The Supreme Court ruled in favor of Teresa because hindi
authenticated yung modification in favor of Gregorio. Pero
pagdating kay Teresa, sabi ng SC hindi pwedeng isintabi na
pinalitan ang pangalan niya, na there was a change of heart
on the part of the testatrix. The cancellation of Teresa’s
name actually resulted to revocation of the will. One of the
ways of revoking is cancelling or simply putting a line or
striking out a provision in the will. It just so happens that
what was taken off was the essence of the will - the
designation of Teresa as the sole heir. Take that away, wala
nang matitira sa last will and testament. THE LAW DID
NOT DISTINGUISH BETWEEN A NOTARIAL WILL AND
HOLOGRAPHIC WILL WHEN IT COMES TO REVOCATION.
walang sinasabi yung batas na pag holographic will ang
iyong irerevoke through cancellation ay dapat mayroon
paring authentication. There is no such requirement. So it
should be considered as sufficient cancellation.
Marx:
The SC cannot ignore the change of intent of the testatrix.
The cancellation of the words “my sister Rosa” may be
interpreted in 2 ways:
 ❖ first - it is cancellation under Art. 814, and such was
not complied with
❖ second - it may be considered as revocation by
cancellation of the will itself. Such revocation need
not be authenticated. In this case, what was
cancelled was an essential part of the will.
Q: You might ask, kung linya linya lang ang pag
uusapan, ano ang kasiguraduhan na si Rosa nga yung
gumawa noong cancellation?
A: That is a valid question, but apparently the parties did
not have any doubt that it was Rosa who made the
cancellation and insertion kaya hindi na yan nadiscuss.
GOVERNING LAW
Q: What rules must be followed when we execute a last
will and testament?
A: We look first at the nationality of the person who is
executing the will. Second, the place of execution.
1. If he is a Filipino and executed in the PH, we
would follow PH law.
2. If he is an alien, then PH law, but the law allows
him to execute his last will and testament in
accordance with the law of the country of which he
is a citizen.
3. If Filipino abroad, adhere to Art. 17, lex loci
celebrationis, but our law expressly prohibits from
executing joint wills even if such may be valid
abroad.
Additionally, it has been argued that the same privileges
given to aliens should be extended to Filipinos abroad, that
is, they should be given the option to execute a last will and
testament in accordance with our laws.
Now, in holographic will, that can be executed in and
outside PH.
Aliens abroad have three choices:
1. law their residence
2. law of their nationality
3. Civil Code
JOINT WILLS
Article 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
PAGE 140 OF 175
Article 819. Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by the
laws of the country where they may have been executed.
Q: What are joint wills? Why are those prohibited?
A: One document executed by 2 testators. The characteristic
of a will of being purely personal is violated (MARX).
Q: How can joint wills violate the purely personal
character of last will and testament?
A: Because these two people will be meddling with the
dispositions made by the other. “Kaibigan mo yan? Eh hindi
ba inaway ka niyan dati?” “Bibigyan mo yan ng ganyan
kalaking halaga?” In other words, your discretion to dispose
will be compromised.
QUALIFICATIONS OF WITNESSES
Article 820. Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution
of a will mentioned in article 805 of this Code.
Article 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Atty. Sena: The law does not allow someone who is blind,
deaf of dumb, or someone who is illiterate to be witness to
a will, but the law allows these people to make a will.
Q: What are the qualifications?
A: 1. Sound mind
2. 18 years of age and above
3. Not blind, deaf or dumb
4. Able to read or write
5. Domiciled in the PH (habitual residence; you always have
the intention to return to your place of domicile)
6. No prior conviction for falsification of document, forgery
or false testimony.
NOTE: This is not one of those conviction involving
moral turpitude. Here, masyadong limited ang
focus. Ang proscription lang ay no prior conviction
on anything that touches on the witness’ integrity.
Pwedeng nakapatay siya pero honest naman, so
 pwede siyang maging witness sa last will and
testament.
Q: Why does the law require that the witness be
domiciled in the PH?
A: because we would want the witness to be within the
jurisdiction of the court. it would be easier for the court to
compel attendance.
Q: How would the court be able to compel attendance?
A: By issuing a subpoena. You cannot issue a subpoena to
someone who is not here in the Philippines, hence the
requirement of domicile.
Q: Supposing that your witness also happens to be your
heir, devisee, legatee or the spouse, parent or child of
an heir, devisee or legatee, would that disqualify him as
a witness?
A: This is not a disqualification to act as a witness, but this
may be a ground to invalidate the devise or the legacy or
the designation as heir.
Note that the law only mentions devise or legacy,
but designation as an heir is also testamentary
succession and the same danger being guarded
against by this prohibition also applies to those
situations where an heir is designated.
Q: What is the danger here?
A: You try to prevent undue influence or any possible
conflict of interest.
Q: Supposing that the witness is a creditor? He acts as a
witness to a will where the obligation in his favor is
directed to be paid by the testator? Would that have any
effect on the disposition directing payment to him?
A: No because he is simply receiving what is due him. It’s
not as though he is receiving something out of the liberality
of the testator. The danger that we are guarding against
does not apply here.
CODICIL
Article 825. A codicil is supplement or addition to a will,
made after the execution of a will and annexed to be taken
as a part thereof, by which disposition made in the
original will is explained, added to, or altered.
Q: What is a codicil?
A: A supplement or addition to a will, made after the
execution of a will and annexed to the same.
PAGE 141 OF 175
The purpose of a codicil is to explain, to add to, or to alter a
prior will. The thing is a codicil is supposed to be also
executed like a will.
Q:You might wonder, what will make a codicil become a
full-blown last will and testament? Why not just make a
last will and testament? What stops a codicil from being
a last will and testament because the purpose of the
codicil may be made through a subsequent last will and
testament?
A: A codicil does not contain any disposition which
prevents it from becoming a last will and testament. The
presence of a disposition makes it a last will and testament
and allows it to stand independently of a prior will. So if he
intend to modify, alter or explain something in a prior will,
edi mag antay ka nalang muna pag may additional
disposition ka na so that you can make another last will and
testament. If hindi ka na makakapag antay, then the law
allows you to make a codicil.
Q: Must a codicil be consistent with the form of your last
will and testament?
A: No. You can have a holographic will and a codicil that is
notarial in character and vice versa.
INCORPORATION BY REFERENCE
Article 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or
paper, such document or paper shall not be considered a
part of the will unless the following requisites are present:
(1) The document or paper referred to in the will must
be in existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof
as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses
on each and every page, except in case of voluminous
books of account or inventories.
Q: What does incorporation by reference mean?
Atty Seña: It’s no different from the attachment that you
make in your complaints or to your pleadings. There would
be paragraphs where it would be [inaudible] for you to
reproduce your basis for your allegations or cause of action
if you are speaking of a document that is a hundred pages.
It makes more sense to incorporate its contents by
reference into the paragraph and attach it as annex. Same
lang sa incorporation by refrence. Instead of reciting the
contents of the documents in the will, you incorporate it by
reference.
Atty Seña: One of the possible things that may be passed on
is credit. It make take many forms. Kahit utang sa sari-sari
store. Minsan nasa listahan yan sa notebook. If you would
accumulate of these amounts, substantial na pala yung
utang. These may be passed on to the heirs. Mayroon na
palang 25 notebooks filled with indebtedness. If you make
all of these indebtedness into the will, masyado na mahaba.
So you incorporate by reference.
You just have to comply with the requirements of the law:
1. The document must be existing
2. The will must sufficiently identify the document by
describing the same; if possible, state how many pages it is
composed of
3. Extrinsic evidence identifying the documents as the one
referred to in the will; and
4. If possible, if the document is not too voluminous, then
the testator and the subscribing witnesses must sign each
and every page of the document.
REVOCATION
You can revoke a will at any time for any reason or for no
reason at all.
Q: Do you know why?
A: Look at the definition of revocation - act of the mind
terminating the potential capacity of the will to take
effect at the death of the testator, manifested by some
outward and visible act or sign, symbolic of the same.
Atty Seña: Sa definition na ito, you can see that it is not the
will nor disposition that is terminated, but the
potential capacity of the will to operate at the death of
the testator; because until the testator dies, there’s nothing
to terminate because the will has not come into effect. It
only has potential. The revocation that may be made puts
an end to that potential, kaya pwede niya irevoke at any
time dahil WALA PANG VESTED RIGHT.
Article 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating
the will with the intention of revoking it, by the
testator himself, or by some other person in his
presence, and by his express direction. If burned,
torn, cancelled, or obliterated by some other
PAGE 142 OF 175
person, without the express direction of the
testator, the will may still be established, and the
estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or
obliteration are established according to the
Rules of Court.
Q: How many ways can we revoke a last will and
testament?
A: Three ways:
1. By implication of law
2. By a subsequent will or codicil
3. Burning, canceling, tearing, obliterating or physical
destruction.
A. By implication of law - takes place when certain acts or
events occur subsequent to the making of the will which
nullify or render inoperative the will itself or some
testamentary disposition.
Example: Preterition, the institution of heirs is
annulled; If there has been a legal separation, guilty
spouse is not allowed to inherit from the innocent
spouse.
B. Subsequent will or codicil or physical destruction -
lumped together because in these two, there must be
testamentary capacity. In the first way, there is no need for
testamentary capacity.
If you are going to revoke a prior will through a subsequent
will or codicil, the revoking will must be admitted to
probate. If it is not valid, there is no revocation that takes
place.
Revocation can either be express or implied and it can
also either be total or partial.
1. Express - there must be a revocatory clause expressly
revoking a prior will. Hindi pwedeng “any disposition made
in a prior will inconsistent with the dispositions here are
revoked”
NOTE: A revocatory clause is not a disposition. This is
important to know because the fact that it is not a
disposition means that it does not need to wait until after
the death of the testator to have an effect. Your
revocatory clause can be given instantaneous effect, subject
to the resolutory condition of not being admitted to
probate. It is immediately effective, but if the revocatory
will is denied probate, then it loses its efficacy and the prior
will will not be considered revoked anymore.
Q: Bakit hindi suspensive condition?
A: We cannot because that would be inconsistent with the
immediate efficacy of the revocatory clause because it is not
a disposition.
2. Implied - the testamentary dispositions in the two will
are so inconsistent that they cannot co-exist with one
another. We have to supress the dispositions in a prior will
because the subsuquent will is the latest expression of
testamentary intent.
NOTE: We have to wait until the death of the testator
because until he dies the dispositions cannot be given effect;
and until the dispositions are given effect, we cannot say
that there is an inconsistency. So doon lang magkakaalaman
after the death of the testator.
****IM SO SORRY GUYS NA DC ATA YUNG NAGRERECORD.
REMEMBER: The requirement that the revoking will must
be valid and admitted to probate has nothing to do with the
doctrine with dependent relative revocation. If your
revoking will is not admitted to probate, then it means that
your prior will was never revoked. The reason for that is not
because of the application of the doctrine of dependent
relative revocation, but simply because of non-compliance
with the requirement of revocation through a subsequent
will or codicil, which requirement is that the revoking will
be admitted to probate.
C. Physical Destruction
Atty Seña: the manner of revocation calls for the destruction
of the will, so ito yung pinakamahirap patunayan. Paano mo
hahanapin yung isang bagay na kailangan sirain to carry
out the revocation.
Illustration: You know that your lolo made a last will and
testament, then he passed away. You are looking for it, but
you cannot find it and there is no revoking will. You want to
prove that it has been revoked. Paano mo mapprove kung
hindi mo nga makita yung will? So the very fact that would
constitute the revocation is the very thing that prevents you
from locating the will and confirming such destruction.
That’s why THE LAW PRESUMES THAT IF IT IS KNOWN
THAT THE TESTATOR MADE A WILL AND THAT HE
WAS IN POSSESSION OF THE WILL SHORTLY BEFORE
HIS DEATH AND THE WILL CAN NO LONGER BE
LOCATED, THEN IT IS PRESUMED THAT THE WILL HAS
BEEN REVOKED BY PHYSICAL DESTRUCTION. This is
necessary, otherwise, hanggang kailan maghahanap ng will
yung heirs.
NOTE: It is a rebuttable presumption.
MANNER OF DESTRUCTION
The law enumerates four different ways. The law still allows
total or partial revocation. Pipiliin mo nalang yung bagay sa
gusto mong klaseng revocation. Kung partial, hindi naman
pwedeng by burning yung revocation mo.
PAGE 143 OF 175
Q: What should be the extent of the destruction of the
last will and testament? Would it be sufficient to
partially or slightly cause the destruction to the same?
A: It depends on the intention of the testator. What to his
mind is completed act of revocation.
Justice Caguioa: Subjective and Objective phases. These
phases would be relevant insofar as any act of desistance
that may be made by the testator. He may change his mind
and decide not to revoke anymore.
Illustration: He is tearing up his last will and testament. He
was about to tear it up anew when he was prevented by his
child and asked him to reconsider. If he desisted at that
point, then it would be a valid desistence and the will will
not be considered revoked kasi nasa subjective phase pa
siya. From his action of about to tear it up, we can see that
he was not yet done with the physical destruction of his will
as a mode of revocation.
However, kung he tore up the will and threw it in the trash
and left the room, if he were to have a change of heart and
come back and retrieve the last will and testament from the
trash, then it’s too late because the act of revocation has
crossed over to the objective phase because we can see from
his act of walking away that he is already done with the act
of revocation. If he changes his mind, he cannot just
physically repair the document and restore it to validity, he
will have to re-execute the same.
This would be more of a theoretical discussion. In all
likelihood, no one will witness the revocation and see what
actually happened because it is mostly a private affair, a
secret affair even. Siya lang din ang nakakaalam kung ano
ang nangyayari, but theoretically, that is the rule. There is a
certain point of no return.
NOTE: Revocation, just like the subscription of the will, may
be delegated to a third person. It must be under the express
direction and in the presence of the testator.
Illustration: Iba yung sinunog ‘nong 3rd person. We know
that there must be concurrence of PHYSICAL
DESTRUCTION and ANEMO REVOCANDI. One without the
other with not produce revocation. So if the instruction was
not carried out, we have no revocation. If there was physical
destruction but no intention to revoke, then we still have no
revocation. Problem is, would we still be able to prove
the execution of the will, its contents and then carry out
its dispositions?
A: Depends on the type of will involved and if we have
another copy of the will.
If it is a notarial will, and there’s no other copy of the will,
we will still be able to implement its dispositions and admit
it to probate, provided that we have evidence to establish
the fact of its unauthorized destruction, its due execution
and the contents of the will. Possible ito sa notarial will
because possible na may nag assist sa pagddraft ng will and
there will be exchanges between the testator and the
lawyer. So pwede maestablish yung contents. For due
execution, yun naman yung purpose ng subscribing
witness. Yung fact of unathorized destruction can be
testified to by the testator himself.
If it is a holographic will and we do not have any copy of
the same, kahit photocopy, tagilid na yan. The badge of
authenticity of the holographic will would be the
handwriting of the testator himself. You can only prove that
if you have a copy of the will, even a photo copy.
Gan vs. Yap
Here, there was this effort/fabrication of story of how the
testatrix made the holographic will and how the
holographic will has always been in the possession of the
testatrix such that when she suffered a stroke and brought
to the hospital, the only thing that she asked for was that her
purse where her last will and testament was contained be
delivered to someone. The proponent of the will was able
to read the last will and testament twice. Bago pa man
magkaroon ng aksidente, the testatrix would always show
her last will and testament to anyone who would visit he
(parang nag aalok lang ng kape). You can see that the
purpose of the proponent is to lay down the premise that
would allow these people who testified on having seen the
will and knowing its contents kasi wala nga siyang hard
copy of the holographic will.
SC: No. We need the will as basis to authenticate the
handwriting of the testator.
DOCTRINE OF DEPENDENT RELATIVE REVOCATION
The law recognizes that it is possible that the testator does
not want to die intestate at all cost. So that should he even
revoked a prior will, the revocation may be made
dependent upon the efficacy of a subsequent will. But we do
not make an inference that it is such an intention. (MARX)
You will revoke a will with a present intention to make a
new testamentary disposition as a substitute for the old
will. Such that the failure of the new testamentary
disposition to come into effect will now negate the
revocation that you have made. In other words, it speaks of
a revocation conditioned upon your making of a subsequent
valid testamentary disposition. Yun nga lang, when you are
making the revocation, wala ka pang new testamentary
disposition. Mayroon ka lang present intention. This was
discussed in the case of Molo vs. Molo.
Molo vs. Molo
FACTS:
1. Marcos Molo executed 2 wills, one in August 1918 and
another in June 1939. The latter will contained a revocation
PAGE 144 OF 175
clause which expressly revoked the will in 1918. He died
without any forced heirs but he was survived by his wife,
herein petitioner Juana. The oppositors to the probate were
his nephews and nieces.
2. Only a carbon copy of the second will was found. The
widow filed a petition for the probate of the 1939 will. It
was admitted to probate but subsequently set aside on
ground that the petitioner failed to prove its due execution.
3. As a result, the petitioner filed another petition for the
probate of the 1918 will this time. Again the oppositors
alleged that said will had already been revoked under the
1939 will. They contended that despite the disallowance of
the 1939 will, the revocation clause is valid and thus
effectively nullified the 1918 will.
ISSUE: Whether or not the 1918 will can still be valid
despite the revocation in the subsequent disallowed 1939
will
RULING: Yes. The court applied the doctrine laid down in
Samson v. Naval that a subsequent will,containing a clause
revoking a previous will, having been disallowed for the
reason that it was not executed in accordance with law
cannot produce the effect of annulling the previous will,
inasmuch as the said revocatory clause is void.
There was no valid revocation in this case. No evidence was
shown that the testator deliberately destroyed the original
1918 will because of his knowledge of the revocatory clause
contained in the will executed in 1939.The earlier will can
still be probated under the principle of dependent relative
revocation.The doctrine applies when a testator cancels or
destroys a will or executes an instrument intended to
revoke a will with the intention to make a new testamentary
disposition as substitute for the old, and the new
disposition fails of effect for some reason.
The revocation was done thru physical means, the interval
between the first will and second will is 20 years apart. The
revoking will was denied probate, by all indication the first
will should have subsisted.
However, there was an insinuation that the original copy of
the first will was destroyed by the testator. It indicated that
the revocation is supposed to have taken place thru another
means other than by the execution of a subsequent will. It is
thru physical destruction. The original copy cannot be
located. What was presented in probate was a carbon copy
of the original. We had a presumption that if the testator
have access or possession of the will and cannot be located
after his death, we presume that he had revoked it.
But the doctrine of relative revocation is applicable because
the SC cited the fact that the 2 wills name the same
beneficiary. The 2 wills are basically the same. And the SC
also said that had it been the intention of the testator to
absolutely revoke his first will then he should have also
recovered the carbon copy in the possession of his wife. The
mere fact that he did not do so means that he was still trying
to ensure that he would die testate or with a valid will. Just
in case his subsequent will and testament will not be
admitted to probate. (MARX)
Atty Seña: You have a first will and then you have a
revoking will. Sa revoking will pwede mong ipaliwanag “I
am revoking. Hindi ko naman gusto mag revoke but I am
planning to make a new will; and if that new will is effective,
then the first will will be considered revoked.” So if you
make a third will, and if that will does not become effective,
then you will now have basis to go back to your first will.
Kasi naipaliwanag mo sa revoking will na hindi mo naman
talaga gustong irevoke yung first will, nirevoke mo lang siya
kung sakaling makakagawa ka in the future ng isang valid
new will.
REMEMBER: Para magkaroon tayo ng doctrine of
dependent relative revocation involving subsequent will,
you have to have at least THREE WILLS: prior will, simple
revoking will and the replacement will.
Q: It is the invalidity of the replacement will which will
negate the revocation of the first will. Why?
A: Because the suspensive condition upon which the
revocation of the first will was made to depend was not
fulfilled and that is the condition because it was so
explained in the subsequent revoking will.
However, kung mayroong prior will and revoking will and
the revoking will did not mention any intention to have a
replacement will in the future but only focuses on revoking
the prior will, and this revoking will is denied probate, we
say that there is no revocation NOT BECAUSE OF THE
APPLICATION OF THE DOCTRINE BUT SIMPLY BECAUSE
WE DID NOT COMPLY WITH THE REQUIREMENT OF A
VALID REVOCATION THROUGH A SUBSEQUENT WILL
OR A CODICIL.
In Molo vs. Molo, mayroong dalawang wills. One was
executed in 1918, the other in 1939. 21 years apart and they
are exactly the same. Nung namatay ang testator, prinesent
ng biyuda yung 1939 will. But for some reason, invalid yung
1939 will. So the widow then presented a copy of the 1918
will. Nag object yung opponents because the widow was
named sole heir. Sabi ng opponents bakit photocopy yung
prinesent, hindi yung original. Sabi nila kasi daw the
original was already destroyed/revoked. They wanted to
show that the 2nd will is invalid and the1st will was
revoked, hence, they should succeed by intestate succession
alongside the widow. Since hindi makita yung original, we
apply the presumption that there has been a physical
destruction.
SC: Even assuming that there was physical destruction, that
revocation was conditioned on the effectivity of the
subsequent will.
Q: Can you appreciate the jump that the SC made in this
case? From a presumption of revocation by physical
destruction to the presumption that the revocation was
PAGE 145 OF 175
with the intention to make it dependent upon the
validity of the subsequent will?
Atty Seña: The SC tried to justify. First, the SC said bakit
natin massasabi na there was the intention tomake the
revocation conditioned on the validity of the 2nd will. First,
itinabi niya yung photocopy ‘nong kanyang first will, If the
intention was to revoke absolutely, then he would have
gotten rid of that copy also, hindi na dapat binigay sa asawa
para tumabi. Second, kung kukumpara mo yung first and
2nd will, you will see that the same provision was used -
everything was left behind to the wife. In fact, he may have
only executed the 2nd will because he wanted to make sure
that it will be sustained as valid.
REPUBLICATION AND REVIVAL
Article 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form.
Article 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil.
Republication - the method by which the testator restores
to validity, as his will, an instrument formerly executed by
him as his will thereafter revoked or gives validity to an
instrument originally invalid for want of proper execution.
Restoring a will to validity. (MARX)
Republication only means restoring the will to its validity.
Either you re-execute or republish. Republish means that
you use a codicil to republish a will. However, you cannot
republish without reproducing in a subsequent will
dispositions contained in the previous will which is void as
to its form. If you are just dealing with a revoked will, you
can have that republished in a codicil. If the will is void as to
its form, then you have to re-execute the same.
Article 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation of
the second will does not revive the first will, which can be
revived only by another will or codicil.
Article 837 provides for the rule on revival. It says if after
making a will, the testator makes a second will, expressly
revoking the first, the revocation of the second will does not
revive the first will.
Q: How many wills do we have here?
A: There are three - first will, revoking will and revoking the
revoling will.
It is important to consider the manner of revocation of the
first will by the second will. If it is an express revocation,
then the revocation of the revoking will will not revive the
first will. You will have to revive the first will through
another will or codicil.
If the revoking will revokes the first pair by implication
only, then the revocation of the revoking will by a third will
will revive the first will.
Q: Why?
A: Sen Tolentino: The reason why there is no revival of the
first will is that the revocatory clause is instantaneously
effective. We do not need to wait for the death of the
testator. So that even if the second will is revoked, it can no
longer undue the revocation effected through the
revocatory clause because it has taken effect. Kaya hindi na
marerevive yung first will. If you want to, you may republish
it through another will or codicil.
This rule is always subject to the requirement of probate. So
yung instantaneous even is still subject to the results of the
probate proceedings. So that in the end, if these expressly
revoking will is denied probate, then it cannot be taken as
having validly revoked the first will.
So yugn sinasabi na revocation, bigla nalang mawawalan ng
bisa. Hindi dahil sa hindi inirevoke, kung hindi dahil hindi
naadmit sa probate yung revoking will.
Ngayon, if it is revocation by implication, then you all know
that is can only arise because of inconsistent testamentary
dispositions which will all take effect after the death of the
decedent. If he revokes the second will with dispositions,
inconsistent might, the effect is the potential inconsistency
will no longer exist after the death of the decedent.
PROBATE OF THE WILL
It is very clear that a ruling laid down in a probate court
will only be conclusive as to due execution and validity
of the will and this covers the following:
1. The testator was of sound and disposing mind
2. His consent is not vitiated
3. The will was signed by him in the presence of
the required number of witnesses
4. The will was genuine
Any other issue especially the substantive ones pertaining
to the validity of the dispositions will not be passed upon by
the probate court.
XPN: NUGUID VS. NUGUID; NEPOMUCENO VS. CA
When the probate of the will might become an idle
ceremony if on its face it appears intrinsically void.
PAGE 146 OF 175
Nuguid vs. Nuguid
FACTS:
Petitioner Remedios Nuguid filed a holographic will
allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner prayed
that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the
deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor is that by the institution
of petitioner Remedios Nuguid as universal heir of the
deceased, oppositors — who are compulsory heirs of the
deceased in the direct ascending line — were illegally
preterited and that in consequence the institution is void.
ISSUE:
Whether there is preterition
RULING:
Yes. Preterition “consists in the omission in the testator’s
will of the forced heirs or anyone of them, either because
they are not mentioned therein, or, though mentioned, they
are neither instituted as heirs nor are expressly
disinherited.” Disinheritance, in turn, “is a testamentary
disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. The will here
does not explicitly disinherit the testatrix’s parents, the
forced heirs. It simply omits their names altogether. Said
will rather than be labeled ineffective disinheritance is
clearly one in which the said forced heirs suffer from
preterition.
On top of this is the fact that the effects flowing from
preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, “shall annul the institution of heir”. This
annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies.
In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also “annul the institution of
heirs”, put only “insofar as it may prejudice the person
disinherited”, which last phrase was omitted in the case of
preterition. Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the
disinherited heirs have been illegally deprived.
Atty Seña: Sister was designated as heir of the testatrix pero
buhay pa yung mga magulang nila. On its face, preterition is
already apparent. So imbes na magpabalik balik pa yung
findings, the court already passed upon the intrinsic validity
to save the parties the time.
 Nepomuceno vs. CA Probate may either be:
1. Post-mortem
FACTS:
2. Ante-mortem – the testator can already petition the court
1. Martin Hugo died on 1974 and he left a will wherein he to have his will probated before he dies. Kung matapang ka,
instituted Sofia Nepomuceno as the sole and only executor. gagawin mo yan because the will will be publicized. But this
It was also provided therein that he was married to Rufina is smoother transition because it is the testor himself who
Gomez with whom he had 3 children. is in the best position to testify as to the voluntariness of his
act.
2. Petitioner (Sofia) filed for the probate of the will but the
legal wife and her children opposed alleging that the will NOTE: Be mindful of the grounds of disallowing a last will
was procured through improper and undue influence and and testament
that there was an admission of concubinage with the
petitioner.
3. The lower court denied the probate on the ground of the
testator's admission of cohabitation, hence making the will
invalid on its face. The Court of Appeals reversed and held
that the will is valid except the devise in favor of the
petitioner which is null and void in violation of Art. 739 and
1028.
ISSUE: Whether or not the court can pass on the intrinsic
validity of a will
RULING: Yes, as an exception. But the general rule is that
the court's area of inquiry is limited to the an examination
and resolution of the extrinsic validity of the will. This
general rule is however not inflexible and absolute. Given
exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and
may pass upon certain provisions of the will. The will itself
admitted on its face the relationship between the testator
and the petitioner.
The will was validly executed in accordance with law but
the court didn't find it to serve a practical purpose to
remand the nullified provision in a separate action for that
purpose only since in the probate of a will, the court does
not ordinarily look into the intrinsic validity of its
provisions.
The devisee is invalid by virtue of Art. 739 which voids a
donation made between persons guilty of
adultery/concubinage at the time of the donations. Under
Art, 1028 it is also prohibited
Atty Seña: The will was executed by the husband who has a
long-standing relationship with a paramour. Ginawa pa
niyang executrix. Pinaliwanag pa niya na kahit may asawa
siya, yung kabit niya yung tinuturing niyang asawa, si Sofia.
In fact, pinakasalan niya kahit hindi niya pwedeng
pakasalan. Noong sinasubmit na yung will for probate, the
wife questioned the qualification of the mistress to be an
executrix. Yung parties sinubmit na agad lahat ng issues sa
court. You cannot fault the court for exceeding the extent of
its probate jurisdiction and that it ruling upon the intrinsic
validity of the dispositions because the parties themselves
brought these issues to the court for adjudication.

PAGE 147 OF 175

 DECEMBER 10, 2020
INSTITUTION OF HEIRS
Article 840. Institution of heir is an act by virtue of which
a testator designates in his will the person or persons who
are to succeed him in his property and transmissible
rights and obligations.
Q: What is institution of heirs?
A: It is an act by which the testator designates in his will the
person or persons who are to succeed him in his property
and transmissible rights and obligations. To put it simply, a
testamentary heir is someone who succeeds under a last
will and testament. However, the same definition may be
applied to a devisee and legatee, but they are different.
Q: How is a devisee or legatee different from a
testamentary heir?
A: An heir succeeds by a universal title or to an aliquot part
of the estate while a legatee or devisee succeeds by a
particular title or to a specific property from the estate.
Q: Supposing that the estate only has one property, a
parcel of land, and the will institutes you as heir to the
entire estate. In the process, someone was preterited.
What happens to the disposition made in your favor?
A: The question calls for a classification of your institution
either as an heir or devisee, because that will determine
what happens to the disposition made in your favor. The
catch is, you were named heir but as it turns out, the estate
only has one property. So the question is does the property
bequeathed in your favor essentially becomes a device? If
yes, then the impairment will only be half of the estate, you
still get to keep the half. But if we will concede that you are
instituted as heir, the entire disposition will have to be set
aside and the entire estate will go to the preterited heir in
his capacity as compulsory and intestate heir.
Q: How should we classify you under the
circumstances?
A: Always go by the wording of the will because that is your
basis to determine what the intention of the testator is.
Judging by the words used, the intention is to institute you
as an heir to the whole estate. It does not matter that the
estate only has one property, the fact remains that the
testator institutes you to the entire property.
Supposing that the entire parcel of land comprising the
estate was devised to you under the will, should it turn out
that that is the only property, that will not change your
qualification as a devisee because specific real property was
bequeathed to you. By definition, you are a devisee.
PAGE 148 OF 175
Q: When we institute an heir, are we required to
dispose of the entire estate?
A: No. In fact, you can have more than one heir and still not
dispose of the entire property, in which case mixed
succession will take place (testamentary and intestate).
Atty Seña: It also follows that if you have compulsory heirs
and you institute someone as your universal heir, barring
the occurrence of any preterition, it is understood that your
universal heir will only be succeeding to the available free
portion. It’s not even automatically the free portion kasi we
have the fixed legitime which is ½ of the estate. Even that so
called free portion is not subject to absolute disposition by
the testator, because there are legitimate heirs who will
take their legitimes from the free portion (Illegitimate
children, surviving spouse). It’s only after you deduct the
legitimes of these compulsory heirs will you get the
available free portion. It is what the testator may dispose of.
So if you have a universal heir and compulsory heir, your
universal heir will only succeed to the available free
portion. Minsan kulang pa yung available free portion pag
konti yung legitimate children and madaming illegitimate
children.
Q: Who are your compulsory heirs?
A: Remember: everyone is in the direct line, save for the
surviving spouse. If your decedent happens to be
illegitimate, he would also have the same compulsory heirs,
subject to one important qualification – for decedents who
are illegitimate, their parents may be excluded by all
kinds of children. Unlike where the decedent is legitimate,
in which case, the exclusion will only take place if his
children and descendants are legitimate.
Iron curtain rule – a bar prohibiting an illegitimate child
from succeeding to the inheritance of the legitimate
children and relatives of the parents and vice versa (MARX).
Article 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir.
Article 845. Every disposition in favor of an unknown
person shall be void, unless by some event or
circumstance his identity becomes certain. However, a
disposition in favor of a definite class or group of persons
shall be valid.
Q: How should we make the institution of heirs?
A: The first rule would be to institute using the full name
and with as much description as you can give to identify the
heirs. You will notice that the law also allows institution by
unnamed people; it is enough that they are described and
through the description they are identifiable.
Illustration: Dean Divina can make an institution to
students who will top BAR 2021. At the time of making a
will, he has no idea who will be benefited by the institution.
Article 846. Heirs instituted without designation of
shares shall inherit in equal parts.
Q: If we will institute several heirs, is it a requirement
that we specify the specific portions that will be given
to each one of them?
A: No, there is the RULE OF EQUALITY. If you do not specify
the portions, then the heirs will inherit in equal shares.
In the rule of equality, we also apply to the institution of
siblings of full and half blood. Each one will be getting as
much as the others. There is no distinction, which is
different than in the case of intestate succession where
there is a distinction between siblings of the full blood and
half blood.
Article 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C,"
those collectively designated shall be considered as
individually instituted, unless it clearly appears that the
intention of the testator was otherwise.
RULE OF INDIVIDUALITY – in case there are several heirs;
some are instituted individually and some are lumped
together.
Illustration: A, B, C and children of C (D and E). There are
actually four people instituted: A, B, D and E, but D and E
were referred to collectively.
Q: How do we distribute the inheritance among them?
Per capita or per stirpes (D and E will only receive the
portion given to C)?
A: The law says that those who are instituted collectively
shall also be considered as individually instituted, unless
contrary intention appears.
Q: Which would be more beneficial to D and E?
Individual institution or collective institution?
A: Individual institution, because they will be inheriting per
capita.
Q: What does per capita mean?
A: They will be inheriting in their own right; they will be
counted separately. In the example, the estate will be
divided into 4 and each will get ¼.
PAGE 149 OF 175
If per stirpes: two process.
1st: divide the estate into three: 1/3 to A, 1/3 to B and 1/3
to C
2nd: Share pertaining to C will be divided between D and E,
1/6 each.
Per capita: D and E will get ¼ each (they get more per
capita)
Per stirpes: D and E will get 1/6 each
Article 850. The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause.
Q: In revocation, there is no need for a reason. He can
revoke for any reason or no reason at all. What about in
institution of heirs, are you required to give reason for
your institution?
A: There’s no need for you to explain for making the
institution.
Q: Supposing your client goes to you and asked you:
would it hurt if I explain my institution?
A: Although you are allowed to give your reason, you don’t
have to. At the same time, you are not prohibited from
making the explanation. But from a practical standpoint,
you may be handing your oppositor a weapon to use against
your will and your instituted heirs because the law says that
the falsity of the cause for institution do not readily
invalidate the disposition, unless it can be shown that the
testator would not have made the institution had he known
of the falsity. So pwede maexploit yan, mahirap na.
Kung gusto mo makarating sa heir mo yung reason, pwede
naman private nalang.
Q: When will that apply? “had the testator known of the
falsity, he would not have made the institution?”
Illustration: One day, Yurii and Airon are walking on the
bridge. Naisipan nila na tumawid sa burol under the bridge
overlooking the pay. They saw a group of people loitering in
the are. Yurii fell in the water. Before he knows it, tumalon
na si Airon sa tubig at inakap si Yurii ng mahigpit. Habang
naka akap, nakakuha ng kahoy si Airon hanggang nahila
nasila sa lupa. Pagkauwi ni Yurii, gumawa siya ng
holographic will at ginawang tagapagmana si Airon at
inexplain mo na it was because he risked his life for you.
After his death, his will was opposed by Yurii’s relatives. As
it turned out, someone was taking a video at nahulo na hindi
pala tumalon si Airon, tinulak lang pala siya. At yung pag
yakap ni Airon, hindi pala niya sinasagip si Yurii, ginagawa
pala siyang salbabida. At habang lumalangoy si Airon,
nakasimangot siya dahil ang bigat ni Yurii.
Q: Here, there is no question that the cause was false.
What now becomes of the institution made in favor of
Airon?
A: Even though the stated cause turned out to be false, the
fact remains that there could be some other reason that
could justify the institution – the friendship between Yurii
and Airon. The law will invalidate only when it is shown that
the testator would not have made it had he known the
falsity. In the illustration given, the friendship would be
sufficient to make the institution. It would be different if
Airon was a total stranger or enemy. Logic will dictate that
Yurii would not have made the institution had he known of
the falsity of the cause.
Article 851. If the testator has instituted only one heir,
and the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to
the remainder of the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the
parts do not cover the whole inheritance.
Article 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the
inheritance and their aliquot parts together do not cover
the whole inheritance, or the whole free portion, each part
shall be increased proportionally.
Sometimes, the testator would already specify the portions
which the heirs will be getting from his estate. Minsan, hindi
magaling sa math, pag tinotal mo yung fractions, hindi
nagtototal ng 1.
Illustration: The will reads: “I am instituting A, B and C to
my estate. A will get 1/3, B will get 1/6 and C will get 1/6.”
Q: Only 2/3 of the estate was disposed of. How should
the remaining 1/3 be distributed?
A: It should go by intestate succession. We only apply 852 if
it is clear that the intention of the testator was to institute
the heirs to the entire estate. In the illustration, there was
no such intention.
Q: When do we apply 852?
A: if the will was worded this way: “I institute A, B and C as
my universal heirs, and they will be taking the following
portions: A will get 1/3, B will get 1/6 and C will get 1/6.”
Here, you will be justified in proportionately distributing
the remaining 1/3 to A, B and C. HINDI
PROPORTIONALLY/EQUALLY, but PROPORTIONATELY.
PAGE 150 OF 175
PRETERITION
Article 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as they
are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation.
Q: What is preterition?
A: The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious. (MARX)
Q: Omission where?
A: The omission stated means that the compulsory heir in
the direct line was not mentioned in the will, or although
mentioned, was neither instituted or expressly
disinherited. This is how the authorities explained it.
Atty Seña: Doesn’t the it bother you that if these are
supposed to be your compulsory heirs, there should be no
need for them to be mentioned in the will kasi compulsory
nga eh. So what exactly does the law expect for the testator
to do, such that if the testator fails to do it, there is deemed
to be an omission that has taken place and the omission
results in preterition.
APPARENTLY, THE LAW EXPECTS THE TESTATOR TO
ENUMERATE WHO THE MEMBERS OF YOUR FAMILY
ARE AND ACKNOWLEDGE THEM AS YOUR
COMPULSORY HEIRS. You are not instituting, but you must
at least acknowledge them. Otherwise, there will be a basis
to say that you have omitted them; and in ignoring them,
you are essentially trying to disinherit them, yung nga lang
it is not done expressly.
Annulling the institution of heirs is such a big step. Talagang
intestate succession ang mangyayari. Your preterited heir
will be most favored because he will not only stand to
receive his legitime, but he stands to receive the free
portion as well. At the very least, if there is preterition, the
minimum that the preterited heir will receive is his legitime
and at the maximum is the entire estate. If they are devisees
or legatees, it will be his legitime plus whatever remains in
the free portion, less the devise and legacy.
 Article 906. Any compulsory heir to whom the testator
has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied
Q: When do we apply 906?
A: if it happens that your compulsory heir who may have
been omitted has actually received something from the
decedent. If 906 applies, you cannot apply 854 because the
remedies are contradictory.
❖ In 906, the most that the compulsory heir would
get would be the completion of his legitime, that is
the maximum.
❖ In preterition, that is only the minimum that the
preterited heir will be getting. He always stands to
obtain more than his legitime.
Q: When is an heir preterited?
A: -If he has not received anything by way of donation inter
vivos or by way of devise or legacy
(Aznar vs. Garcia) – nakasama pa na may legacy kay
Hellen. Had she not receive a legacy, she would have
received half of the estate by intestate succession by way of
preterition. But since she received something, she is only
entitled to completion of her legitime.
You must know who is preterited?
A: It must be the CORRECT COMPULSORY HEIR – one who
is entitled to receive at the time of death at the time of death
of the decedent.
This tells you that we can only determine whether or not
there is preterition after the decedent has died.
Illustration: At this moment, your compulsory heirs are
your parents. If you were to make a will and you do not
mention your parents, there is potentially preterition. But
we are still young, and at the end of our lives, circumstances
may have changed, some married, some with children.
Siguro wala na yung parents mo. Should you die with the
will you executed, there is no more preterition because they
have to predecease you.
It would be different if you omitted one of your children and
this child survives you, which means upon your death,
buhay pa yung anak mo. Your child is your correct
compulsory heir in the sense that that is the entitled
compulsory heir. His/her omission results to preterition.
LAST PARAGRAPH OF 854
- speaks of right to representation
It tells us that if the omitted compulsory heir predeceases,
there is no preterition. The institution becomes effectual
PAGE 151 OF 175
because the heir is no longer the correct compulsory heir by
reason of predecease.
Q: What is the effect of the right of representation
mentioned in the provision? Is this the xpn to the xpn?
A: No. Sa example, yung anak na omitted. Sa unang example,
namatay after your death, in which case there would be
preterition. If the omitted compulsory heir predeceased the
testator, the institution remains effectual because there’s no
preterition since the omitted compulsory heir is no longer
the correct heir.
Q: What if the compulsory heir who predeceased also
has his own children? Would that constitute an xpn to
the xpn which makes the institution effectual because
of the predecease? Following the wording of the 2nd
paragraph of 854.
A: No. the right of representation does not carve an XPN to
the XPN. IT SIMPLY MEANS THAT ALTHOUGH THE
PREDECEASE BY THE OMITTED COMPULSORY HEIR
MAKES THE INSTITUTION EFFECTUAL, IT IS STILL
POSSIBLE THAT THERE WILL BE PRETERITION IF HIS
CHILD WHO STANDS TO REPRESENT HIM WAS ALSO
OMITTED IN THE LAST WILL AND TESTAMENT. By
virtue of right of representation, the grandchild of the
decedent steps into the shoes of the omitted compulsory
heir on account of the predecease. In this case, the
grandchild representing the omitted compulsory heir is
now the correct compulsory heir entitled to receive from
the estate.
Article 855. The share of a child or descendant omitted in
a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so
much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs.
Q: When do we apply 855? Do we apply this to
preterition or under a different circumstance?
A: No. 855 is contradictory to 854, so we do not apply this
in case of preterition. We can try in relation to 906 in
completing the legitime and we will only do so because the
aim is to harmonize all the provisions of the law.
Article 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except
in cases expressly provided for in this Code
The [inaudible] whether voluntary, intestate or compulsory
heir, should they die ahead of the decedent
(PREDECEASE), should they be incapacitated
(INCAPACITY) and should they be disinherited
(DISINHERITANCE) in the case of compulsory or should
they repudiate the inheritance (REPUDIATION), they do
not transmit any rights to their own heirs. When we say
rights, we are referring to the rights that they would have
received from the decedent.
Yun nga lang, pag dating sa intestate and compulsory heirs,
we have the so called right of representation which exists in
the case of disinheritance of the compulsory heir,
incapacity in both cases, and predecease. No right of
representation in case of repudiation.
The right of representation is not an XPN to the rule
that the compulsory heir or intestate heir does not
transmit any rights to their own heirs. The reason is that
by virtue of the right of representation, the represented heir
inherits directly from the decedent. Hindi dumadaan doon
sa person represented. The inheritance that they receive
does not pass thorugh the persons that they are
representing.
This is precisely the reason why an adopted child cannot
represent the adopter in the succession to the estate of the
parent of the adopter because there is no legal tie between
the parent of the adopter and the adopted child. You need
that relationship to enable the adopted child to inherit from
the parent of the adopter. Kasi nga doon sya mag iinherit,
hindi doon sa adopter, that’s why he cannot represent.
Q: What happens to the inheritance in case of
repudiation?
A: The same person who would have acted as the
representative would also be receiving the inheritance, but
this time HE WILL BE RECEIVING THE SAME IN HIS OWN
RIGHT, NOT IN HIS CAPACITY AS A REPRESENTATIVE.
NOTE: Don’t think of the representative as an agent. It just
allows him to jump into the level of the other heirs.
NOTE: There may still be preterition if the representative is
also omitted in the will. Do not be fixated na automatic
omitted yung representative kasi pwede naman na
mayroon lang antagonism between the decedent and the
omitted heir, pero wala naman antagonism between the
representative and the decedent.
BOTTOMLINE: still base the answer on the facts given.
SUBSTITUTION OF HEIRS
Article 857. Substitution is the appointment of another
heir so that he may enter into the inheritance in default of
the heir originally instituted.
Wala man right of representation sa voluntary heirs,
mayroon tayong close approximation of the right of
PAGE 152 OF 175
representation. Parang counterpart ang substitution ng
right of representation.
Q: What is substitution?
A: Substitution is the appointment of another heir so that he
may enter into the inheritance in default of, or subsequent
to, the heir originally instituted. (MARX)
This holds true for most kinds of substitution, except for
fideicommissary substitution because in FC substitution,
the substitute will inherit not in default of, but AFTER THE
FIDUCIARY HEIR.
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
Q: What are the different kinds of substitution?
A: (1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary
Actually dalawa lang talaga: simple or common and
fideicommissary. Yung iba would be variations of simple
substitution.
Q: What are the grounds for substitution?
A: 1. Predecease
2. Incapacity
3. Repudiation
Q: Must you specify which ground you would use?
A: No need, but if the testator would not specify, it would be
considered to cover all the three grounds.
Q: What is the reason of the law for allowing
substitution to be made?
A: It is possible that the testator would not want to die
intestate. He might want to ensure that the property will not
go to his relatives. Some people hate their relatives.
ILLUSTRATION:
SIMPLE: I will make Ms. Abelende as my heir, substitute si
Mr. Sarmiento. If Ms. Abelende cannot inherit, Mr.
Sarmiento will now be inheriting in her stead.
RECIPROCAL: I institute Abelende and Sarmiento. I will obligation of the fiduciary heir to preserve and to transmit
make them substitutes of one another. Should anything the inheritance to the 2nd heir, the fideicommissary
happen which will prevent either one to inherit, then the substitute.
share will go to the other person.
That means that the fiduciary heir must transmit the
BRIEF OR COMPENDIOUS: 2 or more persons substitute inheritance intact, without any deduction save for expenses
for one (brief); or one substitute for two or more people for administration.
(compendious)
Q: We say that the fideicommissary heir will only
FIDEICOMMISSARY SUBSTITUTION receive the inheritance after the fiduciary heir. Do we
have a timeline for this? Is there a period required by
Article 863. A fideicommissary substitution by virtue of which the delivery of inheritance must be made by the
which the fiduciary or first heir instituted is entrusted fiduciary heir to the fideicommissary heir?
with the obligation to preserve and to transmit to a A: None, the law does not specify. The presumption is, if the
second heir the whole or part of the inheritance, shall be institution is silent, the fiduciary heir gets to keep it for
valid and shall take effect, provided such substitution his lifetime. There is nothing preventing the testator from
does not go beyond one degree from the heir originally shortening the period. In no instance can it go beyond the
instituted, and provided further, that the fiduciary or first lifetime of the fiduciarty heir/.
heir and the second heir are living at the time of the death
of the testator. Q: Bakit ang higpit? Bakit kailangan 1 degree lang? It’s
like the law is discouraging this kind of substitution?
Fiduciary heir – first heir A: The law in fact discourages it. The law does not want to
restrict the circulation of property. Kasi tinatali yung
Fideicommissary heir – will inherit after the fiduciary heir property sa isang linya lang for around two lifetimes. That
Q: How is FC defined under the law? prevents the property from circulating; it prevents other
people from getting their hands on the property.
A: Article 863.
“one degree” – one degree of relationship. That means that
your fiduciary and fideicommissary heirs must be relatives
of the first degree, so parent and child lang.
It is required that both must be alive at the time of death of
the testator, but there is no requirement that the
fideicommissary heir should be alive or should survive the
fiduciary heir. So long as both are alive at the time of death
of the testator, it does not matter that your fideicommissary
heir would predecease your fiduciary heir.
Q: What happens in such case?
A: The inheritance would go to the heirs of the
fideicommissary substitute because the inheritance has
already vested. Take note that in this situation, we are
presuming that the predecease took place after the death of
the testator.

Article 865. Every fideicommissary substitution must be

expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those
which arise from legitimate expenses, credits and
improvements, save in the case where the testator has
provided otherwise.

Important obligation: you must make the FC substitution

by giving it this name. You must call it a fideicommissary
substitution. If not, you must impose expressly the

PAGE 153 OF 175


DECEMBER 11, 2020
FIDEICOMMISSARY SUBSTITUTION
(CONTINUATION)
The fideicommissary heir and fiduciary heir inherit from
the decedent or testator. Both of them should have capacity
to inherit or capacity to succeed at the time of death of the
testator.
The basic requirement for a person to have capacity to
inherit or succeed is that he must be living at the time of
the death of the testator. Consequently, so long as this
requirement is met, it does not matter who dies ahead
between the fiduciary heir and fideicommissary heir. The
fideicommissary heir may predecease the fiduciary heir and
it will not affect the substitution. The inheritance will
simply go to the heirs of the fideicommissary heir.
Q: For the fideicommissary to be valid, it must be
expressly made. How is it done?
A: Either you refer to it as a fideicommissary substitution or
you expressly impose the obligation to preserve and to
transmit.
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not
made in an express manner, either by giving them
this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a
second heir;
What is the consequence of failing to apply this
requirement? This was answered in the case of PCIB vs.
Escolin.
PCIB vs. Escolin
DOCTRINE:
1. No Fideicommissary Substitution. – Indeed, legally
speaking, Mrs. Hodges’ (the wife) will provides neither for a
simple or vulgar substitution under Article 859 of the Civil
Code nor for a fideicommissary substitution under Article 863
thereof. There is no vulgar substitution therein because there
is no provision for either (1) predecease of the testator by the
designated heir or (2) refusal or (3) incapacity of the latter to
accept the inheritance, as required by Article 859; and
neither is there a fideicommissary substitution therein
because no obligation is imposed thereby upon Hodges
(the husband) to preserve the estate or any part thereof
for anyone else.
2. It is a Conditional Disposition. – In the process, We
overrule PCIB's contention that the provision in Mrs. Hodges'
PAGE 154 OF 175
will in favor of her brothers and sisters constitutes ineffective
hereditary substitutions. But neither are We sustaining, on
the other hand, Magno's pose that it gave Hodges only a
lifetime usufruct. We hold that by said provision, Mrs. Hodges
simultaneously instituted her brothers and sisters as co-heirs
with her husband, with the condition, however, that the latter
would have complete rights of dominion over the whole estate
during his lifetime and what would go to the former would be
only the remainder thereof at the time of Hodges' death. In
other words, whereas they are not to inherit only in case of
default of Hodges, on the other hand, Hodges was not obliged
to preserve anything for them. Clearly then, the essential
elements of testamentary substitution are absent; the
provision in question is a simple case of conditional
simultaneous institution of heirs, whereby the
institution of Hodges is subject to a partial resolutory
condition the operative contingency of which is
coincidental with that of the suspensive condition of the
institution of his brothers and sisters-in-law, which
manner of institution is not prohibited by law.
FACTS:
❖ Husband and wife were married. The wife
executed a Last Will and Testament. She made
the husband her sole heir. But with a twist. The
twist is that he can do whatever he wanted with
the inheritance – that would include disposing
and transforming – but anything that was not
disposed of or any residue of the inheritance
existing at the time of his death must go to her
siblings.
❖ The wife dies ahead. As provided in the will, the
husband succeeded to the inheritance. Then the
husband died. Upon his death, there was a residue
of the inheritance existing in his estate.
❖ But the husband was also survived by his own
siblings and they wanted all of the properties in his
estate, including the residue. They want to treat the
residue as his, and therefore, part of his estate after
his death.
❖ Problem is, the siblings of the wife were aware
of the qualification in the wife’s will and they
now wanted to get the residue. Their theory is
that the disposition was a substitution. It was a
fideicommissary substitution. They are
supposed to receive the residue after the husband.
Given that it pertains to us, the residue cannot form
part of the estate of the husband. It should be
excluded therefrom and should be delivered to us.
Their theory of the case hinged on the validity of
the fideicommissary substitution.
❖ However, the siblings of the husband said that,
if that is your theory then wala kayong habol,
because it is not even valid as a
fideicommissary substitution. There was no
 obligation to preserve and transmit and since
the fideicommissary substation was not valid,
then it is simply an ordinary, straightforward
institution. The property became absolutely the
ownership of the husband. Upon his death, it
became part of his estate, which should go to his
intestate heirs.
ISSUES:
Whether there was a valid fideicommissary substitution?
(NONE)
If there is no valid fideicommissary substitution, does it
automatically follow that the residue should now go to the
siblings of the husband by way of intestate succession?
(NO)
RULING:
❖ NONE. There was no valid fideicommissary
substitution in this case for failure to comply
with the requirement of imposing the
obligation to preserve and to transmit. Allowing
your heir to dispose, transform, and do whatever
he wanted is contradictory to the obligation to
preserve.
❖ NO. The Supreme Court ruled in the negative
since it is, nonetheless, a valid conditional
disposition.
It is conditional because the right of the siblings of the wife
to the inheritance was conditioned on two (2) things:
1. There should be a residue of the inheritance from
the wife existing in the estate of the husband upon
his death; and
2. The siblings of the wife must survive the husband.
Both conditions were fulfilled. Therefore, the
inheritance should pertain to the siblings of the wife.
(Philippine Commercial and Industrial Bank v. Escolin, G.R.
Nos. L-27860 & L-27896, L-27937, [March 29, 1974], 155
PHIL 228-400)
❖ Transcriber’s Note: ‘Yung facts, issues, and ruling
na nakalagay dito, kung ano lang din ‘yung diniscuss
ni Ma’am. Cinopy paste ko na lang sa doctrine part
‘yung SC ruling na relevant sa discussion ni Ma’am.
Take note of the circumstances under Article 867.
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not
made in an express manner, either by giving them
this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a
second heir;
PAGE 155 OF 175
(2) Provisions which contain a perpetual prohibition
to alienate, and even a temporary one, beyond the
limit fixed in Article 863;
Lifetime of the first heir if we have a fideicommissary
substitution. If there is none, then the maximum period
would be twenty (20) years.
(3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the
limit prescribed in Article 863, a certain income or
pension;
This simply means that you cannot obligate the heir to pay
or to give some kind of allowance to persons in succession.
Basically, you will be circumventing the prohibition against
successive usufructuaries.
The point of this prohibition is we do not want to tie up the
property beyond many lifetimes after the testator’s death.
(4) Those which leave to a person the whole or part
of the hereditary property in order that he may apply
or invest the same according to secret instructions
communicated to him by the testator.
In this case, you are not really instituting an heir. You are
simply appointing an agent. If you have to give a secret
instruction, then more likely than not, you are giving
instructions which are prohibited by law. Otherwise, why
even make it secret?
CONDITIONAL TESTAMENTARY DISPOSITIONS AND
TESTAMENTARY DISPOSITIONS WITH A TERM
Q: In testamentary succession, the testator essentially
has absolute discretion on how the disposition may be
carried out. How does the testator exercise this
discretion? In what ways can he exercise this discretion
in making testamentary dispositions?
Article 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause.
A: The testator may impose conditions, terms, or modes
upon the disposition. This is a unilateral disposition. He is
not under any obligation to make his testamentary
disposition. If he wants to do so under certain conditions,
subject to periods, or for specific purposes, then he is
allowed by law to do so subject to certain limitations.
Q: What are the limitations on the testator’s discretion
to impose conditions? What are the conditions he
cannot impose?
A: The following are the limitations:
 Article 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the
same shall be considered as not imposed.
1. The first limitation is that he cannot impose any
charge, condition, or substitution upon the
legitimes.
It is quite clear that he cannot impose any condition on the
legitimes. To begin with, he has no choice with regard to the
legitimes. It is compulsory, he has to honor that
requirement.
Article 873. Impossible conditions and those
contrary to law or good customs shall be considered
as not imposed and shall in no manner prejudice the
heir, even if the testator should otherwise provide.
2. The second limitation is impossible conditions.
Impossible conditions are both legal and physical
impossibility.
Q: What happens if he imposes an impossible condition
on a testamentary disposition?
A: We can ignore the impossible condition. It is as though
the disposition was made without any condition.
Q: Do we observe the same rule for ordinary contracts?
A: No. It is considered null and void. Under the law, one of
the requisites for a valid cause is that the consideration
should be legal and possible. Once the consideration
becomes illegal or impossible, it is as if you do not have a
consideration at all.
We do not apply the same rule in testamentary dispositions
because the consideration is essentially the generosity or
liberality of the testator. Even if you take away the
impossible condition, there would still be a valid cause or
consideration that would sustain the disposition.
Article 874. An absolute condition not to contract a
first or subsequent marriage shall be considered as
not written unless such condition has been imposed
on the widow or widower by the deceased spouse, or
by the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or
bequeathed to any person for the time during which
he or she should remain unmarried or in
widowhood.
3. Third limitation is the prohibition to contract
marriage.
Q: When will this be prohibited?
PAGE 156 OF 175
A: The first step is to qualify. To what does the prohibition
pertain?
If it prohibits a first marriage, then we look into the extent
of the prohibition. If it is absolute, it cannot be imposed.
If it is relative, it may be sustained.
Relative Prohibition: It is relative, meaning, the
prohibition only applies for a certain period of time or with
regard to certain people or with regard to a certain place.
Then, the prohibition may be sustained even if it pertains to
contracting a first marriage.
Absolute Prohibition (an instance where it is allowed):
If it pertains to contracting a subsequent marriage, even
though it is absolute, the prohibition may still be sustained
as valid if it was imposed by the deceased spouse or by the
descendants or ascendants of said deceased spouse.
Q: Why does the law allows an absolute prohibition
against contracting subsequent marriage if imposed by
the deceased spouses or by his descendants or
ascendants?
A: The law understands that the prohibition stems from a
natural reluctance to see your loved one move on with
someone else. Love is something essentially selfish.
Article 875. Any disposition made upon the
condition that the heir shall make some provision in
his will in favor of the testator or of any other person
shall be void.
4. The last prohibition is scriptura capcatoria.
Sciptura capcatoria are legacy-hunting dispositions. The
law provides that any disposition made upon the condition
that the heir shall make some provision in his will in favor
of the testator or of any other person shall be void.
Q: What is so bad about making a disposition
conditional upon the making of a similar disposition in
your favor?
A: It is considered void because the legacy-hunting
dispositions convert the testamentary dispositions into
contractual arrangements. Also, it deprives the heir of his or
her testamentary freedom. Lastly, it gives the testator the
power to dispose of properties that are not his or hers in the
first place.
It goes against the basic characteristics of a last will and
testament. It is supposed to be free, voluntary, and
purely personal in character. All of these will be thrown
out the window, if you will be acting in accordance with
what another person would want you to do.
Testamentary dispositions may be subject to the
following:
1. Conditional Testamentary Dispositions
 a. Potestative Conditions
b. Mixed Conditions
c. Casual Conditions
d. Suspensive Conditions
e. Resolutory Conditions
2. Testamentary Dispositions with a Term or Period
a. Suspensive Term
b. Resolutory Term
3. Testamentary Disposition with a Mode
Modes are the purpose or objective to which the disposition
will be dedicated to.
CONDITIONAL TESTAMENTARY DISPOSITIONS
POTESTATIVE, CASUAL, AND MIXED CONDITIONS
Article 876. Any purely potestative condition
imposed upon an heir must be fulfilled by him as soon
as he learns of the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again.
Article 877. If the condition is casual or mixed, it
shall be sufficient if it happen or be fulfilled at any
time before or after the death of the testator, unless
he has provided otherwise.
Should it have existed or should it have been fulfilled
at the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature
that it can no longer exist or be complied with again.
1. A potestative condition is one whose fulfillment
depends exclusively upon the will of the heir,
devisee, or legatee, and must be performed by him
personally.
Illustration: If the testator asks you to have your forehead
tattooed. “If you will have your forehead tattooed, I will give
you the inheritance.”
Fulfillment: It must be fulfilled by him as soon as he learns
of the testator's death. This rule shall not apply when the
condition, already complied with, cannot be fulfilled again.
PAGE 157 OF 175
2. A casual condition is one whose fulfillment
depends exclusively upon chance and/or upon the
will of a third person.
Illustration: Winning the lotto.
Fulfillment: It shall be sufficient if it happened or be
fulfilled at any time before or after the death of the
testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the
time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If the testator had knowledge thereof, the condition shall
be considered fulfilled only when it is of such a nature
that it can no longer exist or be complied with again.
3. A mixed condition is one whose fulfillment is
dependent partly upon the will of the heir, devisee,
or legatee and partly upon chance and/or the will
of a third person.
Illustration: Passing Civil Law Review I.
Fulfillment: Same with casual condition.
RESOLUTORY AND SUSPENSIVE CONDITIONS
Article 880. If the heir be instituted under a
suspensive condition or term, the estate shall be
placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article.
Q: What will happen to the inheritance if it is subject to
a suspensive condition? What is the effect of imposing a
suspensive condition on a disposition?
A: The effect of a suspensive condition is to defer the
effectivity of the disposition. In the meantime, when it is not
clear whether the inheritance will pertain to the
testamentary heir, place it under administration.
Note, however, that the inclusion of disposition subject
to a suspensive term under Article 880 was an
oversight.*
Article 880. If the heir be instituted under a
suspensive condition or term, the estate shall be
placed under administration x x x.
TESTAMENTARY DISPOSITIONS WITH A TERM OR
PERIOD
Terms are certain to happen. If the uncertainty pertains to
when it will happen, and not as to whether it will happen, it
will still be a term.
Q: How do we regard death?
A: It is a term.
Q: Supposing the provision goes as follows: “Disposition
will become effective if X will die before Y.” How will you
classify this disposition?
A: It is a condition. The uncertainty is whether X will die
before Y.
Q: What will happen if the disposition is subject to a
resolutory term?
A: The right to the inheritance is immediately effective and
upon the arrival of the term or day certain, the same shall
be extinguished.
With regard to effect, dispositions subject to a resolutory
term, dispositions subject to a resolutory condition, or
dispositions subject to a mode, they are all similar. They
will all become immediately vested upon the death of
the testator.
Q: What would be the distinction?
A: With regard to a disposition subject to a resolutory
term, we know for certain that the right given under the
disposition will come to end at some point.
With regard to a disposition subject to a resolutory
condition, we are not certain because the resolutory
condition which would put an end to the rights under the
disposition, may or may not be fulfilled.
With regard to a mode, it is also immediately vested, but
unlike in a resolutory condition, the purpose or objective
stated by the testator is obligatory. It has to be carried out
by the heir. Should he fail to do so, the inheritance may be
taken back from him.
This is different from a condition. A condition does not
obligate the heir to fulfill the condition. In fact, it may
even happen that the heir may not have a say on whether
the condition takes place or not, particularly if the condition
is casual.
You can also have a condition that is negative in character.
Negative means that the heir will be restrained from doing
something which would, otherwise, he would be able to do.
In most cases, this would be “negative potestative
conditions.”
NEGATIVE POTESTATIVE CONDITION
PAGE 158 OF 175
Article 879. If the potestative condition imposed
upon the heir is negative, or consists in not doing or
not giving something, he shall comply by giving a
security that he will not do or give that which has
been prohibited by the testator, and that in case of
contravention he will return whatever he may have
received, together with its fruits and interests.
Q: What is the danger in imposing a negative
potestative condition?
A: Sadyang pasaway ang mga tao. Sometimes, it can even be
malicious or impelled by ill motive.
For example, he would just accept the disposition and
promise to comply with the prohibition, then the moment
he is able to have his hands on the inheritance or the
moment he is able to use up the inheritance, he will now do
as he wishes and go against the prohibition. Malakas loob
niya, kasi what can you do to me? I cannot give it back
anymore. So what happens now to the testamentary intent
that we are supposed to safeguard?
To address this, the law requires that a bond or security
be given. It is called, “caucion muciana.”
CAUCION MUCIANA
Instances Where Caucion Muciana is Required:
1. Negative Potestative Conditions
2. Modal Institutions
In modal institutions, you make a disposition and you say
that a part of this disposition must be devoted to building a
shrine, chapel, or library. However, to enable the heir to
carry out the mode or purpose, you have to give them the
inheritance. The inheritance has to be delivered to him.
Once delivered to him, what can be your assurance that
he will do as he promised to do? So we have caucion
muciana.
Tatandaan niyo class, hindi naman agad ‘yung caucion
muciana ‘yung ibabalik sa estate. The caucion muciana is
only a guarantee.
General Rule: The rule is, if you break the negative
potestative condition or mode, you have to give back what
you have received.
Exception: However, if you are unable to do so, then the
security will now answer for such failure to do so. Then
papasok na diyan rules of guarantee. Remember, the
security may be provided by a third person such as
mortgage or pledge. Anything that will secure performance.
3. Suspensive Term
The legal heirs, who in the meantime will be called to the
inheritance, must give caucion muciana. This is to protect
the testamentary heir’s rights in the property.
Minsan, kapag alam ng mga tao na temporary lang ‘yung
right nila sa property and at some point, they will have to
give it up. Ano gagawin nila? Minsan aabusihin nila or hindi
nila aalagaan.
The testamentary heir will suffer. Hence, the caucion
muciana is supposed to guarantee that the legal heirs, who
come into the inheritance in the meantime, will be able to
restore the inheritance in the possession of the
testamentary heir.
There appears to be a very curious omission in the law.*
If your disposition is subject to a resolutory term, the
opposite situation will take place. The testamentary heir
would come into the inheritance ahead of the legal heir. The
testamentary heir would have the inheritance until the
arrival of the resolutory period. Once the resolutory period
arrives, his rights will then be extinguished and he will now
have to deliver the inheritance to the intestate heirs.
Q: However, the law does not require the testamentary
heir to post a similar bond. There is no caucion muciana
required. Why is that so? What could be the reason why
a similar bond is not required of your testamentary heir
if the term is resolutory in character?*
A: The testamentary heir is not in the same league as the
legal heirs. The testamentary heir is necessarily accorder
protection because he is the selected and designated heir of
the testator. On the other hand, the legal heir is just a
random relative of the testator, who would be inheriting the
property by operation of law.
Chances are, the intestate heir, who ultimately gets the
inheritance after the arrival of the resolutory term, may not
even be known to the testator. The testator does not even
care anymore whatever the condition of the inheritance
may be.

INSTANCES WHERE INHERITANCE IS PLACED UNDER

ADMINISTRATION

Two (2) Instances Where Inheritance is Placed Under

Administration:
1. Disposition is subject to a suspensive condition;
and
2. Disposition is subject to a negative potestative
condition and there is failure to post the bond.

PAGE 159 OF 175


DECEMBER 11, 2020
COMPULSORY SUCCESSION
Note: In our discussion of compulsory succession, I would also
be discussing the right of representation even though the
topic is still further down the provisions because there is right
of representation in compulsory succession. To the extent
necessary, I would also be mentioning collation, preference of
lines and accretion. Although, again, all these topics are
discussed in the Civil Code towards the end of the law on
succession.
I have emphasized this enough that essentially, your
compulsory heirs are the heirs in the direct line, save for the
surviving spouse. I likewise gave you a tip that so long as
you have compulsory heir, then, chances are no collateral
relatives would be inhering from the decedent. This is
because they are necessarily excluded by the compulsory
heirs who are all in the direct line. The direct line is
preferred over the collateral line. However, this is subject to
one exception. The exception being, if your compulsory heir
happens to be a surviving spouse. In which case, the
surviving spouse will not exclude the other collateral
relatives and will be inheriting alongside the collateral
relatives in intestate succession.
Q: Who are the compulsory heirs enumerated in the
law?
A:
1. Legitimate children and descendants, with respect
to their legitimate parents and ascendants;
2. In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate
children and descendants;
3. The widow or the widower;
4. Acknowledged natural children
5. Natural children by legal fiction; and
6. Other illegitimate children
The last two entries, however, no longer hold true. This is
because we only have 1 kind of illegitimate children. The
Family Code has done away with the classification of
illegitimate children into natural children, acknowledged
natural children, natural children by legal fiction and
spurious children.
Q: What do you understand with the terms "natural
children" and "natural children by legal fiction"? Who
are these other illegitimate children?
A: Natural children are those who are born to parents who
are not married but have no legal impediments to marry
PAGE 160 OF 175
each other. In other words, they could very well marry each
other if they wanted to. If the natural child is acknowledged,
then, he becomes an acknowledged natural child.
Natural child by legal fiction, on the other hand, would be a
child born to parents whose marriage is null and void.
Other illegitimate children would refer to the spurious
children. Meaning to say, these are children who are born to
parents who are in illicit relationship with one another.
Either one or both cannot marry the other, because most
likely, they are already married to someone else. This would
also include those whose fathers are not known. Ito yung
mga tinatawag natin sa society na putok sa buhok.
Q: What is the iron curtain rule?
A: The illegitimate child is not allowed to inherit from the
legitimate relatives of the father, the same way that the
relatives of the father is not allowed to inherit from the
illegitimate child.
The reason given was that the illegitimate child is presumed
to have antagonism towards the legitimate family because
he or she is an outcast - was never welcomed in the family.
The family, furthermore, is also presumed to have any liking
for the child because the child is a source of humiliation for
them. But time have changed, hindi ba? Perhaps, in the near
future, you would be seeing changes in the rights of
illegitimate children. Baka kahit itong rule na ito would also
be relaxed.
Among the compulsory heirs, there would also be some
kind of leveling. Not all the compulsory heirs would be
treated equally. We have the so-called primary compulsory
heirs and secondary compulsory heirs. The primary
compulsory heirs will exclude the secondary compulsory
heirs. This is the case of legitimate children and
descendants vs. the legitimate parents and ascendants. If
there are children and descendants, then, the parents and
ascendants will not be inheriting at all. Because the direct
descending line is preferred over the direct ascending line.
Q: Why is that a rule?
A: Because the law presumes that love first descends then
ascends then finally spread sideways. Poetic as that may
sound, those who come after us have more need that those
who came before us. They are more dependent. That's why
it is but natural that if you are going to choose between
those who came ahead and those who came later, you look
after those who came later.
In the descending line, we have the right of representation.
RIGHT OF REPRESENTATION
Q: What is exactly the right of representation?
A: It is a right given to an heir who is farther in degree to
inherit alongside heirs who are nearer in degree. This is an
exception to the rule of exclusion.
Under the rule of exclusion, if you are a relative of a farther
degree, you will be excluded by relatives of the nearer
degree. Case in point, if you have children and they are all
alive and capacitated to inherit, then, grandchildren will not
be inheriting anything. However, if one of your children is
not able to inherit, then, that vacated space will be filled in
by the representative(s) of the child who is not able to
inherit on account of (1) predecease; (2) incapacity; or (3)
disinheritance.
We are speaking of disinheritance here because we are
dealing with compulsory heirs. Only compulsory heirs may
be disinherited.
Q: What happens to the right of representation?
A: The representative(s) steps into the shoes of the person
he or she is representing. But, as I have pointed out before,
he or she inherits not from the person being represented
but from the decedent.
Q: What happens if there is renunciation?
A: In that case, we cannot have a right of representation.
What is possible to happen, however, is accretion. Under
accretion, the share of the renouncing heir will now accrue
to the shares of the other heirs in the same class. However,
there is no right of accretion in compulsory succession. The
vacated shares will go to the other compulsory heirs in their
own right.
To clarify, we have accretion in testamentary succession
and intestate succession. Wala din naman
kasing consequence if there would be accretion in
compulsory succession, except perhaps, in so far as it may
affect the shares of the surviving spouse and the illegitimate
children. I mean, if it will affect the computation of the
shares of the surviving spouse and the illegitimate children.
Halimbawa, the fixed legitime is 1/2. You have 3
compulsory heirs, legitimate children. Their shares in the
legitime would be 1/3 of 1/2 each, so 1/6 each. But let us
say, the 3rd legitimate child renounces. So, there would be
no right of representation.
Let us assume that there would be accretion in compulsory
succession. So that means, his 1/6 share will now go to the
other 2 legitimate children. So their original shares of 1/6
each will now be increased by 1/12 each. The total new
share would be 1/4 each.
The consequence, kung meron lang tayo nitong accretion in
compulsory succession, the share of the surviving spouse
which would be equal to the share of one legitimate child
would still be 1/6. Instead of 1/6 + 1/12. Kasi ang basehan
pa rin natin in the shares of the surviving spouse would be
the original share.
PAGE 161 OF 175
NOTE: Again, this is only if we have accretion in compulsory
succession. Pero dahil wala nga nitong accretion in
compulsory succession, the share of the surviving spouse
will now be based on the resulting shares of the legitimate
children following the renunciation by the other legitimate
child. Hence, the surviving spouse will be getting 1/4 also.
You also have to remember that we do not have the right of
representation in the ascending line. So, in the ascending
line, parati tayong rule of exclusion, rule of proximity. So, if
the survivors happen to be the father and then a maternal
grandparent, it is only the father who will be succeeding as
a compulsory heir. The maternal grandparent cannot
represent the deceased mother in the inheritance. Kasi
nga, we do not have the right of representation in the
ascending line.
Q: Apart from the descending line then, where else do
we have a right of representation?
A: We have it also in the collateral line. But in the collateral
line, only the nephews and nieces can represent. There is no
right of representation beyond the nephews and nieces.
Q: Who may be represented by nephews and nieces?
A: Do not answer uncles and aunts. They will be
representing their parents who happen to be the siblings of
the decedent.
So the IMPORTANT POINT is whenever you are describing
the relatives, the survivors, you have to maintain your
reference point. Do not shift reference points. It will always
be in relation to the decedent. "Who is this person in
relation to the decedent?" Kaya nga sasabihin natin, a
nephew or niece will represent a brother or sister because
that brother or sister is in relation to the decedent. But
obviously, in relation to the nephews and nieces, that
brother or sister is a parent. You cannot shift from saying
that the parent will be represented by the nephew or
niece. Kasi lolo o lola na yung tinutukoy mo. It should be the
nephew or niece of the decedent. So kapag sinabi mo
na representing the parent, eh ang gagawin natin ay parent
of he decedent which would be grandparent of the nephew
or niece.
Another IMPORTANT POINT, in the collateral line, if all the
brothers and sisters are gone, then the nephews and nieces
will be inheriting in their own right because of the rule of
proximity. They will now succeed to the estate per capita -
that means you will count them individually. You will not
lump them under their repsective parents.
Another IMPORTANT POINT, a nephew or niece would be
in the same degree related to the decedent as an uncle or
aunt. Again, the uncle or aunt would be in relation to the
decedent. But under the law on intestate succession, even
though they are of the same degree, the presence of
nephews and nieces would exclude uncles and aunts. The
law does not provide for an explanation. The law simply
says so.
We have learned before when we were discussing collective
institution versus individual institution that it is more
favorable for the heirs if they will treated as individually
instituted. Kaya mas pabor sa mga pamangkin kung lahat ng
kapatid ay mawawala na sa landas.
However, grandchildren and other descendants are always
supposed to inherit by right of representation. Meaning to
say, if there are no children surviving the decedent and the
decedent is survived solely by his grandchildren, these
grandchildren will still be inheriting by right of
representation, meaning, by stirpes. They will not be
inheriting per capita.
So, ang mangyayari, if there are 2 children and 1 of them
had an offspring and the other had 4, you would still have to
divide the estate by 2. Give 1/2 to the offspring of the child
with only one 1 offspring and give the other 1/2 to the 4
offsprings of the other child. So, ang magiging hatian ay
ganito, 1/2 and 1/2 divided by 4. So, 1/2, 1/8, 1/8, 1/8 and
1/8. Again, this is because they are inheriting by right of
representation.
If they were inheriting in their own right, ang mangyayari
dapat, you will simply divide the estate into 5. Hence, each
of them would be getting 1/5 of the fixed legitime of
1/2. Siguro, it is the law's way of ensuring some kind of
equality among the children given that they are the primary
heirs. Para naman hindi maging dehado yung mga anak na
kaunti lang yung supling. Kasi parang malulugi talaga yung
anak, mahihila yung shares nung anak nila.
What you have to remember is if the representatives
happen to be a legitimate child and an illegitimate child,
they would also have to follow the same rule. They would
have to adhere to the same proportion to the per stirpes
portion that they will be taking.
Decedent
X Y+
C
A
B
Q: Let us call this family, Pamilya Banal. The children, X
is the legitimate and Y is the illegitimate. X has four 4
children, 3 are legitimate and 1 is illegitimate. Y, on the
other hand, has 3 children, 1 is legitimate and 2 are
illegitimate. Let us kill the decedent and let us also kill
Y, the illegitimate child. Y also predeceased the
decedent. So, predecease means we have right of
representation. The question now here is, who can
represent Y?

Yung 1/2 sa unang scenario where they are inheriting by
right of representation, naging magkano na lang nung
binigay sa kanila per capita? It became 1/5. Malaki talaga
yung nabawas at ang tangi nating matuturong dahilan ay
dahil marami kasing supling yung isang anak.
ILLEGITIMATE FILIATION IN RIGHT OF
REPRESENTATION
Now, let us factor in illegitimate filiation in right of
representation. Papasok na dito yung mga pinag-aralan
sa Family Code, the effect of nullity of marriages, the effect
of failure to impugn legitimate filiation. You have to be
aware of the iron curtain rule, to be more specific, Article
992.
A: Well, he may be represented by both his legitimate and
illegitimate children because he, himself, is an illegitimate
child. In representing Y, the representatives would also be
following the same proportion of 2:1. Kung matatandaan
ninyo, Y has 3 children, 1 legitimate child and 2 illegitimate
children. So, Y's shares, which we earlier computed to be
1/3, kasi 2:1 din sila ni X, paghahatian ngayon nung 3 anak
niya. So 2:1:1. A will be getting 1/2, B will be getting 1/4 and
C will be getting 1/4 of Y's 1/3 share. So it will be 1/6 for A,
1/12 for B and 1/12 for C. (Legitime 1)
Legitime 1

Art. 992. An illegitimate child has no right to inherit ab

intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child.
A B C
Let us say that the decedent has 2 children, a legitimate and
an illegitimate. Ang mangyayari, sa hatian pa lang ay hindi
na parehas. You have to divide the estate in 2:1. The former Essentially, we were applying the same proportion in both
representing the share of the legitimate child and the latter levels - in the level of the person represented and in the
representing the share of the illegitimate child. 2/3 will go level of the representatives.
to the legitimate child and the remaining 1/3 will go to the
illegitimate child.

PAGE 162 OF 175


Decedent
X Y
D G
E F
Now, let us say that Y was still alive, and X was disinherited.
Disinheritance also allows the right of representation. Sabi
natin sa kwento natin kanina, may 4 na anak si X, 3 are
legitimate children and 1 illegitimate child. If X were to be
disinherited, there will be right of representation. However,
since X is a legitimate child, he cannot be represented by his
illegitimate child. So, yung 3 niyang anak niya lang yung
pwedeng mag-represent sa kanya. The inheritance that
should have gone to X will now go to the 3 legitimate
children. Since they are all legitimate children, they would
simply be dividing it equally among themselves.
Our basis for allowing right of representation or the
illegitimate children of an illegitimate child is Art. 902 and
our basis for prohibiting the illegitimate child in
representing the legitimate child is Art. 992, which
embodies the iron curtain rule.
Art. 902. The rights of illegitimate children set forth in the
preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate.
NOTE: MEMORIZE the formula for computing the shares
of the heirs in the legitime. Always remember that kung
sino yung pinka-bida, 1/2 yung mapupunta sa kanya.
Halimbawa, kung yung asawa lang yung compulsory heir,
1/2 of the estate ay sa kanya na o kaya legitimate children
lang o kaya yung nanay o tatay lang.
The share of the surviving spouse is always dependent on
the share of a legitimate child. It is always equal, except, if
you only have 1 legitimate child, in which case the surviving
spouse would only be getting 1/4.
In the case of the parents, madali lang din naman
yan because you only have to look down to see if there is
someone in the descending line. If there is someone and
legitimate, then, they are excluded. Except when you are
dealing with a decedent who happens to be an illegitimate.
In that case, the parents are excluded by any kind of
children, even by illegitimate children. On this note,
adopted children are treated as legitimate children and can
also exclude the parents.
PAGE 163 OF 175
The surviving spouse, generally, gets 1/2 unless the
marriage was celebrated in articulo mortis and the
decedent dies within 3 months from the time that the
marriage was celebrated. The decedent should be the party
dying when the marriage in articulo mortis was celebrated.
The reason from reducing the 1/2 to 1/3 is to discourage
those who take advantage of people who are dying for their
money. Essentially, the purpose of the provision is to guard
against unscrupulous men and women. But as an
exeception to the exception, if the parties are living together
for at least 5 years prior to the death of the decedent. The
fact that they have been living together for that long period
means that their relationship is genuine.
Decedent Surviving
Spouse
X
A D
B C
Q: If you have a surviving spouse and 4 legitimate
children and 1 illegitimate child, what will their
legitime be?
A: The key here is determining what the share of a
legitimate child is because that will determine the share of
the surviving spouse and the share of the illegitimate child
as well. So, in this case, you have 4 legitimate children, the
fixed legitime of 1/2 will be divided equally among them.
So, each will be getting 1/8. That means the surviving
spouse will also be getting 1/8 and the illegitimate child will
be getting 1/2 of 1/8 which is 1/16. That will leave you with
a free portion of 5/16 (Legitime 2). So, if there are
testamentary dispositions, dito yan kukunin sa 5/16. Kung
wala naman, then the entire estate can go by way of
intestate succession kung saan naman nating pag-aaralan if
there is a need to apply the formula or if we still need to
satisfy the legitime first. Because there may be instances
when simply applying the formula would mean impairing
the legitime which can never happen.
 Legitime 2 Legitime 3

A B C Surviving Spouse X Free Portion X A B D Surviving Spouse

Decedent Surviving
Spouse

A D

B C

Q: What if your free portion is not enough to satisfy the

legitime of both the surviving spouse and the
illegitimate children? This may happen kung kaunti
lang naman yung legitimate children at napakadami
naman ng illegitimate children.
A: Let us say that there is 1 legitimate child and 4
illegitimate children. So, the legitimate child will get 1/2 of
the estate as legitime and the surviving spouse gets 1/4.
Under our law, 1/2 the share of the legitimate child would
go to each illegitimate child. The problem is that is 1/4 as
well. The 1/2 free portion is not enough to answer for the
shares of the illegitimate children and the surviving spouse.
In this case, satisfy the legitime of the surviving spouse first.
That is the rule and dapat lang naman talaga. That is a rule
of practicality, you only have 1 spouse, you can have more
than 1 illegitimate child. The illegitimate children can
always outnumber the surviving spouse so it is better to
safeguard the share of the surviving spouse first. Ang
mangyayari, the illegitimate children would have to share in
whatever is available in the free portion. That means, the
remaining 1/4 will be divided into 4, 1/4 na lang kasi yung
other 1/4 binigay na sa asawa. Therefore, the illegitimate
children will be getting 1/16 each (Legitime 3).

PAGE 164 OF 175


DECEMBER 18, 2020
RIGHT OF REPRESENTATION
Correction: B should be illegitimate in the graph.
This would show the graph of the right of representation
that may exist in succession where there is both legitimate
and illegitimate filiation.
The dotted lines would represent illegitimate filiation and
unbroken lines would represent legitimate filiation.
We have Art 992 and Art 902 to contend with.
ARTICLE 992. AN ILLEGITIMATE CHILD HAS NO RIGHT TO INHERIT
AB INTESTATO FROM THE LEGITIMATE CHILDREN AND RELATIVES OF
HIS FATHER OR MOTHER; NOR SHALL SUCH CHILDREN OR RELATIVES
INHERIT IN THE SAME MANNER FROM THE ILLEGITIMATE CHILD .
Art. 902. The rights of illegitimate children set forth in the
preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate.
For Art. 902, this allows illegitimate children to represent
their parents to the succession to the estate of their
ascendants but only if their parents would also be
illegitimate.
SHARING:
UNDER THE FIRST SCENARIO - A’s 2/3 share (A gets twice
as much as B who is entitled to 1/3) will go to F, G AND H
only. Each of F, G and H will be getting 2/9 or 1/3 of 2/3
each.
UNDER THE SECOND SCENARIO - B’s 1/3 share will go to
J, K AND L in proportions of 2(J): 1(K): 1(L) OR 2/4; ¼ and
¼ for J, K AND L, respectively. J- 2/12, k-1/12 and L-1/12
NOTE: IN THE FOREGOING SCENARIO, WE APPLIED THE
PROPORTIONS DIRECTLY WITHOUT FIRST COMPUTING
PAGE 165 OF 175
FOR AND SATISFYING THE LEGITIMES. WE CAN DO THIS
BECAUSE THE RESULTING INTESTATE HEIRS DO NOT
IMPAIR THE LEGITIME. (THE LEGITIME OF F, G AND H IS
1/6 EACH; THE LEGITIME OF K,K,L IS 1/8, 1/16 AND 1/16)
In the graph, B is illegitimate and A is legitimate. If A were
to predecease, be incapacitated or be disinherited, he can
only be represented by F, G and H because of the bar that is
presented by Art. 992, disallowing illegitimate children
from inheriting ab intastato from the legitimate children
and other relatives of their parents. So if A were to
predecease, be disinherited or be incapacitated to inherit
from the decedent, he can only be represented by F, G and
H.
On the other hand, remember B is illegitimate. B being
illegitimate is allowed under Art. 902 to transmit his rights
to his own children, whether legitimate or illegitimate, that
means he can be represented by J, K and L all because of Art
902.
Remember that they would be succeeding in the same
proportions that A and B would have inherited and the
proportion of the sharing within A and B would be 2:1. They
would be dividing the estate 2/3 and 1/3, respectively. So
2/3 would be equally divided among F, G and H and 1/3
would be proportionately divided among J, K and L. So J, K
and L would be receiving in proportions of 2: 1 :1 and this
translates to under the first scenario wherein we have A’s
2/3 share going to his children then F, G, H will be getting
1/3 of 2/3 each or 2/9.
Q: How did we arrive at 2/9?
A: We divided 2/3 by 3 and that means 2/ 9.
Under the second scenario, B’s 1/3 share will go to J, K and
L, in the proportion I have mentioned (2:1:1), ending up
with:
J = 2/12
K = 1/12
L = 1/12
❖ Transcriber’s Note: 2/4, 1/4, and 1/4 divide by 3.
Hence, 2/12, 1/12, and 1/12.
If you have noticed, we no longer addressed the distribution
of the legitimes here, we distributed the estate directly
among the heirs ab intestato. We can do this because there
would be no impairment of the legitime.
Q: Why would there be no impairment of the legitime?
A: Because if you would compute the legitime:
F, G, and H is 1/6 each; and
J = 1/8
K = 1/16
L = 1/16
And these are all less than what they actually receive by
intestate and by directly applying all the proportions they
are supposed to receive.
repudiation which takes place. There is no point in making
a distinction.
There is also right of representation in the Collateral
Line.

Q: WHAT IF A AND B ARE BOTH NOT ABLE TO INHERIT

DUE TO PREDECEASE, INCAPCITY OR
DISINHERITANCE?
THE GRANDCHILDREN -F, G, H, J, K AND L WILL STILL BE
INHERITING BY RIGHT OF REPRESENTATION AND NOT IN
THEIR OWN RIGHT BECAUSE OF ART. 982 WHICH
PROVIDES THAT THE GRANDCHILDREN AND OTHER
DESCENDANTS SHALL INHERIT BY RIGHT OF
REPRESENTATION, AND IF ANY ONE OF THEM SHOULD
HAVE DIED, LEAVING SEVERAL HEIRS, THE PORTION
PERTAINING TO HIM SHALL BE DIVIDED AMONG THE
LATTER IN EQUAL PORTIONS.
THIS MEANS, THAT THE GRANDCHILDREN WILL BE
GETTING THE SAME SHARES AS WE DETERMINED IN THE
TWO SECNARIOUS, I.E., F-2/9; G-2/9; H-2/9; J-2/12; K-
1/12 AND L-1/12,
In the collateral line, we are limited to nephews and nieces
Even if the first layer, the first heirship are all gone, all and I remind you that it is important to maintain a
unable to inherit, the grandchildren and other descendants, consistent point of reference when it comes to graphing or
they will still inherit by right of representation. We would establishing the relationship among the decedents and
still apply the same proportions that we arrived at under those who survive him.
the first and second scenarios combined.
So in this case, we are now speaking of representation in the
THIS BRINGS TO QUESTION, WHAT WILL HAPPEN IF BOTH collateral line.
CHILDREN REPUDIATED INSTEAD OF PREDECEASED OR
GOT DISINHERITED OR INCAPACITATED. WILL THE In the graph, we have the parents of the decedents, the
GRANDCHILDREN AND THE OTHER DESCENDANTS STILL uncle/aunt of the decedent, we have the brother of the
INHERIT BY RIGHT OF REPRESENTATION? decedent, half-brother of the decedent and we have
nephews and nieces of the decedent. So all in relation with
THE ANSWER SHOULD BE YES GIVEN THAT THE PURPOSE the decedent.
OF THE LAW SEEMS TO BE TO LIMIT THE SHARE OF THE
GRANDCHILDREN AND OTHER DESCENDANTS TO THE Q: What must you remember in the collateral line?
PORTIONS THAT THEIR RESPECTIVE ASCENDANTS
A:
WOULD HAVE RECEIVED.
1. Rule of Proximity
THIS RULE WHICH PROVIDES THAT GRANDCHILDREN
AND OTHER DESCENDANTS WILL ALWAYS INHERIT BY 2. Rule of Equality, if heirs are inheriting in the
RIGHT OF REPRESENTATION IS DIFFERENT FROM THE same class
RULE OF REPRESENTATION IN THE COLLATERAL LINE .
ETR: Brothers and Sisters of the full-blood and half-blood.
We ask this question because as we know very well when
there is repudiation, we do not have the right of You ought to remember, by way of exception in the rule of
representation. proximity, uncles and aunts they are excluded by nephew’s
and nieces. So for your proper understanding, eto yung
In Ma’am’s opinion, the answer would still be yes, but it uncles and aunts na tinutukoy naten at eto namen yung
would not be legally speaking the exercise of the right of nephew’s and nieces. Always in reference with the
representation because I think the purpose of the law is to decedent.
ensure that the grandchildren and other descendants would
be limited to the portions allotted to the children or their Refer to the graph: So we have to kill the parents because if
parents who should have been inheriting. Since the purpose we have any relative in the direct line, that means that all
would be to allocate the portions and not really facilitate the these collaterals would not be inheriting, they would be
representation, we ought to apply the same rule even if it is barred.

PAGE 166 OF 175

Patay na si Parent and we have one brother to predecease
the decedent. This now calls for right of representation.
Q: Who would be representing?
A: We would still follow Art. 992, the bar between legitimate
and illegitimate filiation. Since B is a legitimate relative of
the decedent, his illegitimate child I cannot inherit by right
of representation from D. Only J can represent from B.
Si C since he also survives D, that means he would be
inheriting alongside J and his presence by virtue of the rule
of proximity will bar his own children, the nephew’s and
nieces of D from inheriting in these estate.
If both B and C are not able to inherit, then that means the
closest relatives would be the nephew’s and nieces and the
uncles and aunts. Same degree sila of relationship with the
decedent. But because of Art. 1009, uncles and aunts would
be excluded and the nephews and nieces here, they would
be inheriting in their own right or per capita.
Art. 1009. Should there be neither brothers nor sisters nor
children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood.
But if we want to complicate our lives a little bit more
(LOLOLOLOL) Let’s make C a half brother and that means
J, K and L will now also be inheriting in proportions of 2:1:1.
Because the half-blood relationship between C and E will
also translate into a half-blood relationship among J, K, L.
Ang proportions ng hatian:
J = 1/2
K = 1/4
L = 1/4
They would be inheriting in their own right or per capita
because they are in the collateral line. They are not in the
descending line.
TAKE NOTE: Beyond the nephews and nieces, there
would be no right of representation anymore.
We need to know all of this concepts for purposes of settling
the estate.
COLLATION
Collation requires that the value of all donations made by
the decedent during his lifetime be brough into the mass of
his estate. The value brought back is the value at the time
the donation was made as any increase or decrease in the
PAGE 167 OF 175
value of the donated property shall be for the account of the
donor. *DONEE
The rule applies to all donations whether made in favor of
compulsory heirs or strangers. These include:
a. any sums paid by a parent in satisfaction of the debts of
his children, election expenses, fins and similar expenses
shall be brought to collation (1069);
b. wedding gifts by parents and ascendants consisting of
jewelry, clothing and outfit, but the latter shall not be
reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will (1070);
c. consideration given for the renunciation or compromise
as regards a future legitime between the person owing it
and his compulsory heirs is void (905). Note the
renunciation is void.
Q: What happens in Collation?
A: In collation, you bring back the value of all donations
made by the decedent during his lifetime. You just bring
back the value. The value you bring back is the value at the
time the donation was made, the value of the property or
whatever it was that was given by gratuitous title at the
time it was made because any increase or decrease in
that property will be for the account of the donee. It
should be donee.
Q: What donations must we collate?
A: We collate all donations, we do not distinguish whether
it be made in favor of compulsory heir or in favor of a
stranger. A stranger here would be any person who is not a
compulsory heir. So not literally a stranger. And by way of
donations, we take these to include:
a. any sums paid by a parent in satisfaction of the
debts of his children, election expenses, fins and
similar expenses shall be brought to collation (1069);
b. wedding gifts by parents and ascendants consisting
of jewelry, clothing and outfit, but the latter shall
not be reduced as inofficious except insofar as
they may exceed one-tenth of the sum which is
disposable by will (1070);
c. consideration given for the renunciation or
compromise as regards a future legitime between the
person owing it and his compulsory heirs is void.
The renunciation itself is void by the consideration thereof
is recognized and must be brought back to collation.
Interesting point, the law only considers as void the
renunciation or the compromise entered into between
the compulsory heir and the person owing him the
legitime. This implies that if the agreement is between
siblings of the same parent and the compromise pertains to
the legitime of one sibling with regard to their parent then
it appears that the law does not consider the same as null
and void.
Another important point, collation actually involves 2
steps.
First, bring back the value; and
Second, you must impute the same.
Donations made to strangers are imputed to the free
portion. Donations made to compulsory heirs are imputed
to their legitime. These are considered as advances of their
legitime unless the donor expressly provides that the
donations made to compulsory heirs will not be subject to
collation or unless the donee repudiates the inheritance.
But if the donations exceed the free portion, then the excess
will have to be charged to the legitime. The compulsory heir,
however, is not required to bring to collation the value of
donations made by the decedent to their children. (1065)
If the children are represented by the grandchildren in the
inheritance, the latter must bring to collation donations
received by the children, their parents, as well as the
donations made to them directly by the decedent. (1064)
What are excluded from “donation”?
Expenses for support, education, medical attendance, even
in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation
(1067);
Expenses incurred by the parents in giving their children a
professional, vocational or other career shall not be brought
to collation unless the parents so provide, or unless they
impair the legitime; but when their collation is required, the
sum which the child would have spent if he had lived in the
house and company of his parents shall be deducted
therefrom (1068).
Q: How do you impute?
A: You impute by charging it either to the free portion or to
the legitime and this is so because any donation made to a
compulsory heir is considered as an advance to his legitime.
And similarly, a donation made to a stranger must fit into
the free portion otherwise it would be considered as
inofficious.
Q: What does the law mean when it says that the
testator can actually prohibit collation among
compulsory heirs?
A: This simply means that the testator who is a donor or a
grantor may direct that no imputation be made of the
donation given to a compulsory heir to his legitime. What is
that instead is we impute it to the free portion as well. It is
only the excess which can no longer be accommodated in
the free portion which would be imputed to his legitime.
PAGE 168 OF 175
If children are represented by the grandchildren in the
inheritance. The grandchildren, the representatives, they
must also bring to collation the donations received by the
children, their parents, as well as the donations made to
them directly by decedent.
Again, when we speak of collation under Art. 1064 we mean
imputation, imputation to the legitime. As I’ve stressed
before, the value of donations made without exception must
be brought back to the estate. The rule under Art. 1064
speaks of collation now refers to the imputation in the
legitime and rightly so because the representative as we
have discussed before is now actually the correct and right
compulsory heir.
ART. 1064. WHEN THE GRANDCHILDREN, WHO SURVIVE WITH
THEIR UNCLES, AUNTS, OR COUSINS, INHERIT FROM THEIR
GRANDPARENTS IN REPRESENTATION OF THEIR FATHER OR
MOTHER, THEY SHALL BRING TO COLLATION ALL THAT THEIR
PARENTS, IF ALIVE, WOULD HAVE BEEN OBLIGED TO BRING, EVEN
THOUGH SUCH GRANDCHILDREN HAVE NOT INHERITED THE
PROPERTY.
THEY SHALL ALSO BRING TO COLLATION ALL THAT THEY MAY HAVE
RECEIVED FROM THE DECEDENT DURING HIS LIFETIME , UNLESS THE
TESTATOR HAS PROVIDED OTHERWISE, IN WHICH CASE HIS WISHES
MUST BE RESPECTED, IF THE LEGITIME OF THE CO-HEIRS IS NOT
PREJUDICED.
*Also be aware of the items excluded from the term donations.
As you can see, this pertains to expenses which basically
constitutes support. If it is necessary to the sustenance,
education and growth of the heir, these are considered
as support and not donations and they ought not to be
brought back to the estate.
Another important concept would be the rules on
reduction and revocations of donations and legacies.
We have two important provisions on the matter: Art.
911 and Art 950.
ART. 911. AFTER THE LEGITIME HAS BEEN DETERMINED IN
ACCORDANCE WITH THE THREE PRECEDING ARTICLES , THE
REDUCTION SHALL BE MADE AS FOLLOWS:
(1) DONATIONS SHALL BE RESPECTED AS LONG AS THE LEGITIME
CAN BE COVERED, REDUCING OR ANNULLING, IF NECESSARY, THE
DEVISES OR LEGACIES MADE IN THE WILL ;
(2) THE REDUCTION OF THE DEVISES OR LEGACIES SHALL BE PRO
RATA, WITHOUT ANY DISTINCTION WHATEVER.
IF THE TESTATOR HAS DIRECTED THAT A CERTAIN DEVISE OR
LEGACY BE PAID IN PREFERENCE TO OTHERS , IT SHALL NOT SUFFER
ANY REDUCTION UNTIL THE LATTER HAVE BEEN APPLIED IN FULL TO
THE PAYMENT OF THE LEGITIME.
(3) IF THE DEVISE OR LEGACY CONSISTS OF A USUFRUCT OR LIFE
ANNUITY, WHOSE VALUE MAY BE CONSIDERED GREATER THAN THAT
OF THE DISPOSABLE PORTION, THE COMPULSORY HEIRS MAY
 CHOOSE BETWEEN COMPLYING WITH THE TESTAMENTARY WITH THE FOLLOWING LIABILITIES. HOSPITAL
PROVISION AND DELIVERING TO THE DEVISEE OR LEGATEE THE PART EXPENSES: 2M AND QUASI-DIRECT LIABILITY: 2M
OF THE INHERITANCE OF WHICH THE TESTATOR COULD FREELY
DISPOSE. (820A) 1. COMPUTE THE NET HEREDITARY ESTATE. But
since we’re dealing with a married decedent, we
would have to liquidate the ACP first.
ART. 950. IF THE ESTATE SHOULD NOT BE SUFFICIENT TO COVER
ALL THE LEGACIES OR DEVISES, THEIR PAYMENT SHALL BE MADE IN We do this by identifying what are the community property
THE FOLLOWING ORDER: which would be fairly easy because basically everything
would be community property.
(1) REMUNERATORY LEGACIES OR DEVISES;
COMPUTATION OF THE NET HEREDITARY ESTATE OF
(2) LEGACIES OR DEVISES DECLARED BY THE TESTATOR TO BE
A MARRIED DECEDENT
PREFERENTIAL;
1. LIQUIDATE THE ABSOLUTE COMMUITY OF
(3) LEGACIES FOR SUPPORT;
PROPERTY:
(4) LEGACIES FOR EDUCATION;
1. ACP
(5) LEGACIESOR DEVISES OF A SPECIFIC , DETERMINATE THING
a. LOT- 10M
WHICH FORMS A PART OF THE ESTATE;
b. FH- 8M
(6) ALL OTHERS PRO RATA. (887A)
c. CASH- 10M
We apply Art. 911 if the decedent is survived by compulsory PHP-28M
heirs; when we speak of legitimes; when there is danger of
impairing the legitime. (PHP 2M)- HOSPITAL EXPENSES

If there is no compulsory heirs, there is no concern of ACP-26M

impairing the legitime, we apply Art. 950, where there is 2. DETERMINE DECEDENT’S SHARE IN THE ACP
actually a hierarchy among the legacies and devises. and ADD THIS TO HIS EXCLUSIVE PROPERTIES
Under Art 911 we could see that the donations are supreme o 26M ÷ 2- 13M
and among the donation themselves we respect those who
were made first in time. May succession. And we would Ma’am: There is no showing that he has any exclusive
reduce the the devises and legacies pro rata without property, thus 13M would be his gross estate. In the gross
distinction. estate, we would be deducting his personal obligations.
Quasi-delict obligation not chargeable to the community
The rule is different under Art 950. property.
PROBLEM SOLVING FOR SETTLEMENT OF ESTATE 3. DEDUCT PERSONAL OBLIGATIONS TO
DETERMINE NET ESTATE
THE DECEDENT WAS MARRIED TO S. THEY HAD 3
LEGITIMATE CHILDREN- A B AND C. B HAD 2 o 13M
ILLEGITIMATE CHILDREN I AND J. C HAD TWO
LEGITIMATE CHILDREN-K AND L. o (2M)-QUASI-DELICT LIABILITY

THE DECDENT ALSO HAD AN ILLICIT AFFAIR WITH M. Net Estate-11M

THEY HAD A CHILD, E,WHO, IN TURN HAD 3 CHILDREN-F,
G AND H. OF THE 3, H IS ILLEGTIMATE. THE DECDENT
MADE SUCCESSIVE DONATION TO A- A 4M LOT; K- 1 4.5
HOUSE AND LOT AND L- 1 4.5 M RESORT.
DURING THEIR MARRIAGE, D AND S ACQUIRED THE
FOLLOWING PROPERTIES: LOT- 10M; FAMILY HOME- 8M
AND CASH 10M.
THE DECEDENT EXECUTED A WILL WHERE HE LEFT
LEGACIES TO K AND F IN THE AMOUNTS OF 1M AND 2 M,
RESPECTIVELY. HE DIED AFTER A LINGERING ILNESS
It would be at this point that we would be collating
donations. The donations he made during his lifetime would
be:
• COLLATE DONATIONS (ADD VALUE TO THE NET
ESTATE) TO DETERMINE NET HEREDITARY
ESTATE: 11M + 4.5M+4M= 24MILLION
Net Hereditary Estate- 24MILLION
*Sa exam whenever you are given this kind of a question.
This is a good way of presenting your answer. Maliwanag.
Naka step by step.

PAGE 169 OF 175

 2. DETERMINE WHO ARE THE HEIRS. It helps if you
have a graphic representation. Broken lines-
illegitimate; unbroken-legitimate
GRAPHIC REPRESENTATION
We would be taking into consideration the application of the
right to representation.
Q: Who would be the heirs of the decedent?
A:
A = survives, he is a legitimate child, hence ¼.
B = predeceased, survived by illegitimate children,
hence would not have representatives.
C = he also predeceased but he is survived by legitimate
children, he will be represented by K and L.
ABC are all legitimate children; but since B
predeceased and there is no right of representation
then the ½ would be divided between A and C, in
their own right. A gets ¼ and C gets ¼ which would
go to his representatives K and L, each of them would
be getting 1/8 each.
SS = ¼ as well
E = predeceased by the decedent and the 1/8 that goes
to A would now be divided to F, G, H in proportions of
2:2:1, hence 2/5, 2/5 and 1/5.
THE FOREGOING SCENARIO SHOWS THE DIFFERENCE
THAT THE ABSENCE OF ACCRETION AMONG
COMPULSORY HEIRS CAUSES. IF THERE WAS ACCRETION
AMONG A, B & C ON ACCOUNT OF THE PREDECEASE OF B,
THE SHARE OF THE SURVIVING SPOUSE AND OF THE
ILLEGITIMATE CHILD WOULD HAVE BEEN DIFFERENT AS
THESE WOULD BE BASED ON THE ORIGINAL SHARES OF
THE LEGITIME CHILDREN (I.E., WITHOUT THE
ACCRETION). THUS:
PAGE 170 OF 175
SS- 1/6 and E- 1/12.
BUT SINCE THERE IS NO ACCRETION AMONG THE
COMPULSORY HEIRS AND THEY INHERIT THE VACATED
PORTION IN THEIR OWN RIGHT, THE SHARE OF EACH
LEGITIME CHILD IS ¼ WHICH THEY RECEIVE IN THEIR
OWN RIGHT AND WITHOUT ACCRETION. THIS, IN TURN,
CAUSES THE SHARES OF THE SURVIVING SPOUSE AND
THE ILLEGITIMATE CHILD TO BE BASED ON ¼ INSTEAD
OF 1/6.
Since we do not have accretion among the compulsory
heirs, as you can see, we based the share of the surviving
spouse and the illegitimate child in the legitime which is ¼
and 1/8. Had there been accretion in compulsory
succession, the basis of the shares of the compulsory spouse
and the illegitimate child, would have been the orginal share
of the legitimate children without accretion, thus 1/6 each.
So dapat kung may accretion sana sa compulsory
succession makukuha sana ni ss is 1/6 and si e 1/12. Yan
ang impact ng accretion, it would affect the shares of the SS
and illegitimate child.
To be clear, since we do not have accretion in compulsory
succession, we would base the share of the SS and IC on
the resulting share of the LC predicated by the vacated
portion, which under the law they would take on their
own right.
Q: Saan tayo may accretion?
A: Testamentary succession if the conditions are warranted.
Whenever we have 2 or more heirs and the disposition
results in co-ownership. Eto ang guideline niyo lagi.
In intestate succession, there is always accretion as
long as you have more than one heir. In intestate
succession, if you have more than one heir it is
automatic that you would have co-ownership, so long as
there is no delineation or specification on the portions
that would go on each of the co-heir. Hangga’t di
pinaghiwa-hiwalay, there would always be potential
accretion.
Heir Representati
Status Shares
s ves
A SURVIVES 1/4
B PREDECEASED None
¼ to be
C PREDECEASED K&L Divided
Equally
SS SURVIVES ¼
1/8 to be
divided in
proportion
E PREDECEASED F, G, & H
s of 2:2:1
or 2/5;
2/5; 1/5
Translate the shares in monetary value and impute the So may sobra pa na 3M. Dun natin iimpute yung excess
donation and see what the effect of the imputation would donations, kay K and L. So may legacies sana na iiwanan,
be. yung 1M and 2M. But between donations and legacies,
donations take precedence under Art 911. So you would be
Collation would involve two-steps: (1) bringing back the suppressing the legacies, we would be absorbing the 1.5 M
value of what is donated; and (2) charging this either in excess for both K and L. So wala na tayong free portion but
the legitime or the free portion. there would be no need to reduce because this will be
accommodated in the free portion as we have
Imputati Effect Of determined.
Heir Moneta
Shares on Of Imputati
s ry Value
Donation on NOTES
Will
actually ❖ Memorize sharing in intestate succession
A ¼ 6M 6M-4M
receive ❖ Grounds for disinheritance
2M
B ❖ Effect of defective disinheritance
Donations
reduced ❖ Reserva Tronkal? Not so much (yey) panggulo
by 1.5M lang to sa computation ng estate. I would not do
¼ to be that to you. Too difficult.
K-3M 3M-4.5M which
C divided
L-3M 3.M-4.5M must be ❖ Partition and (no-nag no si maam bigla)
equally
returned
to the ❖ Repudiation and Acceptance
estate
SS 1/4 6M ❖ I won’t ask you anything about legacies and
F- devises.
1/8 to be 2/5(3M)
divided in = 1.2M Basically, that would be it for succession. YEY!
proportio
ns of 2:2:1 G-
E
OR 2/5(3M)
2/5. = 1.2M
2/5.
1/5 1/5(3M)
= 600K

A = 24M x ¼ = 6m
May donation sakanyang 4M and there is no provision
saying that there would be no collation among
compulsory heirs (so no imputation on the legitime),
hence since there is no such provision, impute in the
legitime. Parang naadavance na sakanya yung 4M na
portion ng legitime. In actuality, what he would receive
is just 2M
C = His share will be divided between K and L, 3 M each
but K and L also received donations in the amount of 4.5
Million each. Obviously, their legitime would not be
enough to absorb the 4.5M. So, either we reduce or
impute if it can syill be accommodated.
SS = Gets 1/4 thus 6M
E = 1/8 divided among F, G, H, by 2:1:1
Q: Magkano ba ang ating magiging FP?
A: 1/8 OR 3M

PAGE 171 OF 175

 ANSWERS TO PRELIMINARY EXAMINATIONS
PART I. MCQ
1. If the spouse present who acted in bad faith in
contracting a subsequent marriage under Article 41
dies, his estate will go to:
a. absent spouse
b. present spouse
c. both the absent and present spouse
d. neither the absent nor the present spouse
B. Because the subsequent marriage was not
terminated.
2. The power to ratify a voidable marriage may only be
exercised by:
a. the sane spouse who did not know about the insanity
of the other;
b. the healthy spouse of the spouse suffering from a
serious and incurable sexually transmissible disease;
c. the parents whose consent was not secured;
d. the insane spouse after coming to reason.
D.
3. The following are instances when a donation propter
nuptias is revoked by operation of law except:
a. When made in the antenuptial agreement and the
marriage does not take place;
b. In case of a subsequent terminable marriage
terminated under Article 42 of the Family Code and the
donee acted in bad faith;
c. in case the marriage was celebrated without parental
consent when such is required;
d. none of the above.
A. or B.
4. The provisions of Article 148 of the Family Code shall
govern the co-ownership created in the following
except:
a. marriages void under Article 53 in relation to Article
35(6);
b. bigamous marriages;
PAGE 172 OF 175
c. marriages contracted by minors;
d. marriages contracted by first cousins who acted in
good faith.
A.
5. A child born seven months after the celebration of the
father’s second marriage and within eight months from
the annulment of his first marriage is considered to be:
a. legitimate
b. illegitimate
c. conceived in the first marriage
d. conceived in the second marriage
A. Because it is the father who contracted
successive marriages.
6. An action for partition brought by an illegitimate
child after the death of the alleged father, if premised
on a claim of continuous possession of the status of an
illegitimate child must be:
a. granted
b. denied on the ground of prescription
c. denied on the ground for want of evidence
B. Because if that is the evidence you are invoking,
you must bring it within the lifetime of the father.
7. A donation propter nuptias made in consideration of
a marriage that is subsequently annulled because of
fraud committed by the donor is:
a. void
b. valid
c. revocable
d. revoked by operation of law
B. Because the fraud was committed by the donor
and not the donee.
8. The default property regime of a marriage contracted
by a widow the day after her husband’s death on 23
August 1988 is:
a. separation of property
b. conjugal partnership
c. community of property c. both a and b
d. as provided by local custom d. sometimes b but never a
A. Because the family code was already in effect. D. …if she posts the bond fixed by the court, but she
does not have to be appointed as his guardian. If the
amount is less than P50,000 (insurance code, does
not exceed P500,000) there is no need to post a
9. Blood relationship between the child and his
bond. Sometimes the posting of the bond must be
mother’s husband is not always necessary in:
dispensed with, but definitely, the Court need not
a. legitimation appoint the mother as a guardian since it is
inherent.
b. visitation rights
c. legitimate filiation
13. The adoption by the father of an illegitimate child
d. none of the above that he sired with his mistress results in the following
C. It is possible that there is artificial insemination except:
using the semen of the donor. a. termination of the mother’s parental authority
b. joint parental authority by both the mother and the
father;
10. If an action to impugn legitimate filiation is
successful, then the child whose filiation has been c. sole parental authority of the father
impugned will thenceforth be treated as an/a:
d. elevation of the status of the child as a legitimate
a. illegitimate child of the husband child of the father.
b. natural child of the husband B. The only exception to this rule is if the biological
parent happens to be the spouse of the adopter.
c. stranger to the husband
d. none of the above
14. The absolute community of property can never be
C. They will not be related at all.
made liable for this personal obligation of a spouse:
a. guaranty extended to secure the obligation of a friend
11. Mario, a lawyer, may be adopted by the person who incurred prior to the marriage;
raised him as though he was the latter’s own child even b. bank loan for the purchase of the house and lot which
without the consent of: serves as the family dwelling;
a. his biological parents c. gambling losses;
b. his adult legitimate son d. support of the husband’s parents.
c. his spouse C. Gambling losses are for the account of the
d. his adult adopted spouse. If there is none, then the creditor will not
have any recourse against him, cannot run after the
A. Because the law of adoption requires the community property.
consent of the biological parents of the child, and a
child is defined as someone below 18 years of age
under the Domestic Adoption Law.
15. Which of the following actions involves a prejudicial
question in a crime for bigamy brought against the
husband by the first wife:
12. The mother of a child whose father has died can only
receive the proceeds of his insurance policy on behalf a. an action to declare the first marriage void;
of the child if: b. an action to annul the second marriage on the ground
a. she is appointed by the court as his guardian of fraud;

b. she posts the bond fixed by the court

PAGE 173 OF 175

c. an action to declare the second marriage void on the
ground of psychological incapacity;
d. an action to annul the second marriage on the ground
of force or intimidation.
D. If there is force or intimidation then there is
question regarding the presence of criminal intent
for want of voluntariness.
PART II. ESSAY
(a) What is the status of Angelita and Georg’s marriage
in view of Angelita’s prior marriage to Reynaldo? (10
pts)
(a) An important fact to be taken into account here
would be that it was Angelita who filed for divorce
while she was still a Filipino citizen. But we have
Republic v. Manalo. Hence, the answer here ought
to be that the marriage is valid due to said case.
(b) Depending on your answer to the preceding
question, why should or why should not the ruling in
Republic vs. Manalo apply in this case considering that
the divorce decree here was obtained back in 1998 or
before the said ruling came out? (Argue on the basis of
Article 8 of the Civil Code.) (5 pts.)
(b) The doctrine of RP v. Manalo applies because the
interpretation of the SC of Art. 36 form part of that
provision of the law from the time of its enactment.
Judicial rulings interpreting the law only establish
contemporaneous legislative intent. If that is the
case, the interpretation is part and parcel of the law
from the time of its enactment.
(c) Can the separation of property agreement be
invoked by Angelita to insist that she and Georg are
governed by the separation of property regime? (10
pts)
(c) NO, because she failed to prove the German law
that allows the Spouses to agree on the marriage
settlement after the wedding. She should have
alleged and proved the German law, allowing this
kind of agreement in the wedding. Since she failed
to do so, we apply processual presumption. So, the
German law is taken as same as PH law, thus the
agreement adopting separation of property would
be void for being entered into after the marriage.
Any agreement must be entered into before the
marriage according to the FC.
(d) Assuming that the answer to the preceding question
is “no” and the default property regime of absolute
community of property applies to the parties, will the
Muntinglupa lot that was acquired during the marriage
between Angelita and Georg be presumed as
community property? (5 pts.)
PAGE 174 OF 175
(d) NO. This has been established by jurisprudence
already. When it comes to mixed marriages, there
is no community property that is formed in parcels
of land acquired during the marriage due to the
Constitutional prohibition of land acquisition by
aliens. The SC has been consistent on this point and
has emphasized that it does not even matter that
the money of the acquisition came from the foreign
spouse alone. And the prohibition is so extensive
that the foreign spouse cannot even lay claim to the
proceeds of the sale of the land.
(e) Will the petition for nullity filed by Angelita under
Article 36 of the Family Code on account of Georg’s
supposed psychological incapacity prosper? (10 pts)
(e) NO, because of our adherence to the nationality
doctrine. When it comes to family rights, status, we
apply the national law of the person concerned. In
the absence of proof that German law recognizes
psychological incapacity as a ground for nullity,
then psychological incapacity cannot be used
against George. This is different from a situation
wherein a petition for nullity is brought on account
of psychological incapacity of Angelita. In which
case, papasok tayo sa Art. 26—the exceptions (the
listed void marriages in Art. 26) therein would only
attach to the Filipino national. In this case,
psychological incapacity was being attributed to
the foreign national. So consistent with the
nationality doctrine, we will have to determine the
availability of that ground under the national law of
George, which is German law.
(f) Supposing that your answer to the preceding
question is “no,” will the doctrine of processual
presumption apply here in Angelita’s favor, i.e., will the
said doctrine allow her to claim that German law should
be presumed to be the same as Philippine law in that it
also provides for psychological incapacity as a ground
to nullify the marriage of its nationals? (5 pts)
(f) NO. She is already alleging Philippine law in
insisting on psychological incapacity. She is not
alleging a foreign law which she failed to prove. We
cannot apply processual presumption.
(g) Assuming that the petition for nullity is granted:
(i) How will you rule on the validity of the sale of the
house and lot made by Angelita in favour of her
sister? (10 pts)
(i) Since we are assuming that the nullity due to
psychological incapacity is granted, then the
parties will be governed by Art. 147. Under this
provision, the house was built with money earned
by Angelita alone. In 147 we have co-ownership in
the salaries of the parties to the void marriage.
Here we can say that there is co-ownership in the
 house. But in the lot, it was acquired by Angelita
and her first husband, so we will now have to
distinguish. The sale of the lot is valid because that
pertains to the first marriage, and given the
divorce, and Angelita’s continued possession of the
same, we can assume that it was awarded to her.
But the sale of the house, that can only be valid
insofar as Angelita’s share is concerned since it is
already co-owned.
(ii) What will be the filiation of Lisolette and who
shall be deemed to be her father? (10 pts)
(ii) Angelita entered into successive marriages.
Since she contracted a subsequent marriage within
the 300 day period after the termination of the first
marriage, and Lisolette was born which is before
180 days from the celebration of the second
marriage and within the 300 days period from the
termination of the first marriage, Lisolette is
deemed to be the legitimate child of Reynaldo in
the absence of proof to the contrary.
(iii) What will be the status of Angelita’s third
marriage if she were to contract the same without
delivering the presumptive legitime of Liselotte’s?
(5 pts)
(iii) Valid, because the obligation to deliver the
legitime does not apply to marriages void under
Art. 36.

 END. NOTHING FOLLOWS. 

PAGE 175 OF 175