POWER NOTES IN QUESTION NO.
CIVIL LAW
ATTY. RONEY JONE P. GANDEZA
UNIT 10 2ND FLOOR BBCCC BLDG.
NO. 56 COOPERATIVE ST. COR. ASSUMPTION RD.
BAGUIO CITY
________
LAW PROFESSOR
COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS
HARRISON ROAD, BAGUIO CITY
________
BAR REVIEWER
POWERHAUZ LAW REVIEW CENTER
(BAGUIO CITY)
UNIVERSITY OF BOHOL
(TAGBILARAN, BOHOL)
BICOL COLLEGE
(DARAGA, ALBAY)
NORTHEASTERN COLLEGE
(SANTIAGO CITY, ISABELA)
DON VICENTE ORESTES ROMUALDEZ
EDUCATIONAL FOUNDATION
(TACLOBAN CITY)
*******************************************************
QUESTION NO. 1
Abe received a handwritten letter from his mother
in which she expressed a desire to give her diamond
ring to Abe’s wife. A short time later, Abe’s mother
died without a will. Abe’s wife claims the ring. Will
she prevail?
No. Every will must convey clearly the intention of the
testator to dispose of his property after his death. (Art.
783, Civil Code) The letter of Abe’s mother is merely an
expression of an intention to make a gift mortis causa
and, as the wishes of the donor had not been carried out
during her lifetime, the letter would have no legal effect
upon the distribution of the estate.
The letter does not even have the effect of a valid
donation inter vivos because there is no showing that
Abe’s wife had accepted the donation during the donor’s
lifetime; neither is there any showing that the donor
when she was still alive came to know of such
acceptance. (Art. 748, Civil Code)
QUESTION NO. 2
Abe agrees to paint Rey’s house within a month.
They agree that Abe will pay a penalty in the sum of
of Php10,000 in case of non-compliance. Before Abe
could start painting Rey’s house, he learns that
Larry wanted his services to paint Larry’s house for
a higher amount. Abe now goes to Rey and tells him
that he will not be able to paint Rey’s house and
offers to pay the penalty of Php10,000. Is Abe
allowed to pay the penalty?
Yes, but only if Abe had expressly reserved such right.
Article 1227 of the Civil Code expressly provides that
the debtor cannot exempt himself from the
performance of the obligation by paying the penalty,
save in the case where this right has been expressly
reserved for him.
Rey drafted and properly executed a notarial will.
Assume the following clauses in his will and the
following events. Discuss fully each situation and
the legal effects of the events on the testamentary
provisions.
a. Rey’s will provides, “I leave my white Mitsubishi
Montero with Plate No. AFB 346 to my friend, Abe.”
At the time of Rey’s death, Abe has already died,
leaving his son, Zandro.
Abe’s legacy is invalidated by Abe’s predecease. As a
result, the property devolves to Rey’s heirs in intestacy.
Zandro has no right to the property because a voluntary
heir who dies before the testator transmits nothing to
his heirs. (par. 1, Art. 856, Civil Code)
b. Rey’s will provides, “I leave to my friend, Abe, my
white Mitsubishi Montero with Plate No. AFB 346.”
Just prior to Rey’s death, Rey sold the Montero.
The sale of the property constitutes a revocation of the
legacy. The law grants Rey the right to revoke because
of the ambulatory character of a will. Abe has no right to
question the sale because the right of an instituted heir,
legatee or devisee to the inheritance is merely inchoate.
(Art. 777, Civil Code)
QUESTION NO. 4
When he was still a bachelor, Abe made out a will
naming his mother, Anne, as sole heir to an estate
valued at P1 million. A few years later, Abe marries
Bea. If Abe dies while married to Bea and without
changing his will, would Abe’s entire estate go to his
mother?
No. Article 889 of the Civil Code provides that the
legitime of legitimate parents or ascendants consists of
one-half of the hereditary estates of their children and
descendants. Pursuant to Article 893, if the testator
leaves no legitimate descendants, but leaves legitimate
ascendants, the surviving spouse shall have a right to
one-fourth of the hereditary estate which shall be taken
from the free portion. Applying these provisions, Abe’s
mother is entitled to a legitime of P500,000, while Bea is
entitled to a legitime of P250,000 which is to be taken
from the free portion. The remainder of the hereditary
estate (Php250,000) constitutes the disposable portion
which goes to Anne as Abe’s instituted heir.
QUESTION NO. 5
Abe, Ben, and Carl are co-owners of a parcel of land.
Abe sells his share to Dave. A few months later, Ben
sells his share to Eric.
a. Is Dave entitled to redeem Ben’s share?
Yes, because the right of legal redemption is not limited
to the original co-owners. What matters is that Dave
was already a co-owner when another co-owner (Ben)
sold his undivided share.
b. Suppose Ben donates his share to Eric, may Carl
and Dave redeem Ben’s share?
No. The right of legal redemption may be exercised only
if the share of a co-owner is alienated to a third person
by onerous title. (Art. 1620, Civil Code) Since Ben’s
conveyance to Eric was not by onerous title but by
gratuitous title, Carl and Dave are not entitled to
redeem.
c. Suppose Ben sells his share to Dave, may Carl
redeem?
No. The right of legal redemption may be exercised only
if the share of a co-owner is alienated to a third person
by onerous title. Such right of legal redemption is not
available here because the vendee is himself a co-
owner. The rationale behind the right of legal
redemption among co-owners is to reduce the number
of co-owners and avoid the entry of strangers into the
co-ownership. If the alienation is in favor of a co-owner,
the number of co-owners is already reduced and no
stranger has entered the co-ownership.
QUESTION NO. 6
In the following situations, two parties lay claim to
the same goods sold. Discuss which of the parties
would prevail in each situation.
a. Abe steals Rey’s television set and sells it to
Larry, an innocent purchaser for value. Rey
learns Larry has the set and demands its return.
Rey is entitled to the return of the set even without
reimbursement because he had been unlawfully
deprived of it. Possession of a movable, even if acquired
in good faith, is not equivalent to title when the true
owner had lost it or had been unlawfully deprived of it,
unless the possessor had acquired it in good faith at a
public sale. (Art. 559, Civil Code) Here, Larry’s
acquisition of the set was not at a public sale. His
possession of the set, even if acquired in good faith, is
never equivalent to title
b. Rey takes his television set for repair to Abe who
sells new and used television sets. By accident,
one of Abe’s employees sells the set to Larry, an
innocent purchaser for value, who takes
possession. Rey wants his set back from Larry.
Rey can no longer recover the set, even if he offers
reimbursement. An owner of a movable who had lost it
or had been unlawfully deprived of it can no longer
recover the movable even with reimbursement if the
possessor had acquired the property in good faith by
purchase from a merchant’s stores, or in fairs, or
markets in accordance with the Code of Commerce.
Since Larry acquired the set from a merchant’s store, his
possession of the set amounts to a valid title.
QUESTION NO. 7
Amy married Ben in 2007. Amy is an actress and
Ben a businessman. In 2014, Amy figured that, even
before their marriage Ben and his family were
notoriously involved in a networking scam. This fact
was not disclosed to her at the time of the marriage.
Amy feels cheated and thinks that this can affect her
public image. Does she have a remedy?
Amy has no remedy because Ben’s concealment of his
involvement in a networking scam does not constitute
fraud that would annul the marriage. To annul a
marriage on the ground of fraud, only the circumstances
enumerated under Article 46 of the Family Code
constitute fraud. No other misrepresentation or deceit
as to character, rank, fortune or chastity shall constitute
such fraud as will give grounds for the annulment of
marriage. Ben’s involvement in a shady scam, although
concealed, constitutes misrepresentation as to his
character, but which would not annul the marriage.
QUESTION NO. 8
SM Prime Holdings engaged a contractor for the
repainting of all SM malls nationwide. The contract
expressly provided that the contractor use only
“paint manufactured and supplied by Yco Paints.”
The contractor used another manufacturer’s paint.
May Yco Paints sue the contractor for damages?
No. Yco Paints was named in the contract merely as an
incidental beneficiary. If a contract should contain some
stipulation in favor of a third person, he may demand its
fulfilment provided he communicated his acceptance to
the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The
contracting parties must have clearly and deliberately
conferred a favor upon a third person. (par. 2, Art. 1311,
Civil Code)
QUESTION NO. 9
Abe gave Bea an engagement ring. Shortly before
the wedding date, Abe was killed in a car accident.
Abe’s estate brought an action to recover the ring.
How would a court rule?
It depends. If Abe gave the ring to Bea in consideration
of their marriage, the gift partakes of a donation propter
nuptias which may be revoked on grounds of non-
celebration of the marriage pursuant to Article 86(1) of
the Family Code. The action to recover the ring prevails.
If Abe gave the ring to Bea because of his love for her,
the ring may be recovered if its value exceeds Php5,000.
This is pursuant to the rule that if the value of the
movable donated exceeds Php5,000, the donation as
well as the acceptance shall be in writing to be valid.
(Art. 748, Civil Code) Here, there is no showing that Abe
gave the ring to Bea in writing. The action to recover the
ring also prevails.
But if the value of the ring does not exceed Php5,000,
the donation and the acceptance need not be in writing
to be valid. Pursuant to Article 748 of the Civil Code, an
oral donation of this kind is valid provided there is
simultaneous delivery. The action to recover the ring
fails.
QUESTION NO. 10
Buyer and Seller enter into a contract under which
Seller is to sell all of the palay to be grown on his
land to Buyer. After the contract is entered into but
before the palay is harvested, the price of palay
rises dramatically. Both Buyer and Seller claim the
crop. Judgment for whom?
Judgment for Buyer. Things having a potential existence
may be the object of a sale, but the efficacy of the sale is
deemed subject to the condition that the thing will come
into existence. (Art. 1461, Civil Code) While future
things or goods may not be donated, future things or
goods may be sold, as in this case.
QUESTION NO. 11
Abe and Rey are co-owners of a parcel of land.
Unknown to Abe, Larry built a house on the
property with the consent of Rey. May Abe sue to
eject Larry from the property?
Yes. Under Article 491 of the Civil Code, none of the co-
owners shall, without the consent of the others, make
alterations in the thing owned in common.
Consequently, none of the co-owners can, without the
consent of the other co-owners, validly consent to the
making of an alteration by another person in the thing
owned in common.
The consent given by Rey but without Abe’s consent
did not vest upon Larry any right to enter into the co-
owned property. Larry’s entry into the property falls
under the classification “through strategy or stealth.”
The holding that there is no forcible entry because
Larry’s entry into the property was not through strategy
or stealth due to the consent given to him by one of the
co-owners is utterly wrong. Larry’s entry into the
property without the permission of Rey could appear to
be a secret and clandestine act done in connivance with
co-owner, Rey. Entry into the land effected
clandestinely without the knowledge of the other co-
owners could be categorized as possession by stealth.
(Cruz v. Catapang, G.R. No. 164110, Feb. 12, 2008)
QUESTION NO. 12
Abe leased to Rey a building subject to a monthly
rental of Php20,000. The contract stipulates that
non-payment of the rent would automatically cancel
the contract, but otherwise Rey could stay on
indefinitely. After five years, Abe tried to eject Rey
because he planned to tear down the building and
put up another. Rey refused. Can Abe eject Rey?
Yes, because the condition in the contract is purely
potestative rendering it void. The continuance of the
contract depends solely upon Rey’s choice: between
continuing paying the rentals or not, completely
depriving the owner of all say on the matter. So long as
Rey elected to continue the lease by continuing the
payment of the rentals, the owner would never be able
to discontinue it; conversely, although the owner should
desire the lease to continue, the lessee could effectively
thwart his purpose by simply stopping payment of
rentals. (Encarnacion v. Baldemar, 77 Phil. 470)
QUESTION NO. 13
Tom made a will in 1998 giving to his friend, Fidel,
all his cars. In 1998, Tom had three cars, but in
2005, when Tom died, he already had eight cars.
How many cars will Fidel get upon Tom’s death?
Fidel is entitled to three cars only, the number of cars
Tom had when Tom made his will. Property acquired
between the execution of the will and the death of the
testator are not included among the properties
disposed of, unless it appears in the will that such was
the intention of the testator. (Art. 793, Civil Code)
(NOTE: The rule under Article 793 of the Civil Code is
applicable only to legacies and devises. As to institution
of heirs, Article 781 of the Civil Code applies. Thus, an
instituted heir is entitled to inherit from the testator on
the basis of the testator’s net hereditary estate at the
time of his death, not at the time of execution of the
testator of his will)
QUESTION NO. 14
Ana was an unmarried woman when a friend
entrusted to her the care of an abandoned infant.
Eager to have a child of her own, she registered the
child to make it appear that she is the child’s
mother. Ana reared and cared for the child as if she
were her own. She sent the child to exclusive
schools, doted on her, and used her surname in all
of the child’s scholastic records.
When the child was ten years old, Ana married
Brad, an American. Ana later decided to adopt the
child by availing of the amnesty given under the law
to those individuals who simulated the birth of a
child. With the consent of Brad, Ana filed the
petition for adoption.
a. Can Ana alone adopt the child?
No. The Domestic Adoption Act specifically provides
that the husband and wife shall jointly adopt, except if
one spouse seeks to adopt the legitimate child of the
other; or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally separated
from each other. Ana does not fall under any of these
exceptions for the following reasons: Firstly, the child to
be adopted is not the legitimate child of Ana or of her
husband; secondly, the child is not the illegitimate child
of Ana; and thirdly, Ana and Brad are not legally
separated.
b. Can Ana and Brad file the petition jointly?
No. Under the Domestic Adoption Act, aliens are
qualified to adopt Filipino children only if a) they are
former Filipino citizens who seek to adopt their
relatives within the fourth civil degree of consanguinity;
b) they seek to adopt the legitimate or illegitimate
children of their Filipino spouses; and c) they are
married to Filipino citizens and seek to adopt jointly
with their spouses a relative within the fourth civil
degree of consanguinity or affinity of their Filipino
spouses.
Here, the child to be adopted is not a relative of Ana
within the fourth degree of consanguinity. Neither is the
child the legitimate or illegitimate child of Ana.
Therefore, Brad, being an alien, is not qualified to adopt
the child. While Ana is qualified to adopt, Brad is not.
Even if Ana is qualified, she still cannot file the petition
without being joined by her husband.
QUESTION NO. 15
Abe, owner of an antique shop, asked his friend,
Rey, to mind the store while he went to a local mall
to mail a package. While Abe was gone, Tessie came
into the store and purchased a rare painting for a
very low price. When Abe returned, Rey told him
about the sale. Abe immediately brings action
against Tessie for the return of the painting on
claiming that Rey did not have authority to make
the sale. Can Abe recover the painting?
No. Abe cannot recover the painting because he is
estopped from denying Rey’s authority. Agency by
estoppel arises when the principal (Abe) intentionally
or by want of ordinary care causes a third person
(Tessie) to believe another (Rey) to be his agent who is
not really employed by him.
When Abe placed Rey in charge of the store, Tessie had
the right to assume that Rey was the agent of Abe. Rey
had apparent authority, because he appeared to be the
agent and Abe, the principal, is estopped from denying
the agency, even if none existed. (Art. 1883, Civil Code)
QUESTION NO. 16
Abe married Bea in 2005. Abe subsequently meets
with an accident, and, as part of the treatment,
receives a blood transfusion. The blood was infected
with a communicable venereal disease, which Abe
contracts, and later transmits to Bea. Can Bea sue
for annulment?
No. Affliction of a contracting party with a serious and
incurable sexually-transmissible is a ground to annul a
marriage only if such illness was existing at the time of
the marriage. Moreover, affliction of a contracting party
of a sexually-transmissible disease, regardless of its
nature, existing at the time of the marriage and
concealed by such party, constitutes fraud that would
annul a marriage. Here, Abe contracted the venereal
disease only during the marriage. Therefore, Maria
cannot use it as a ground for annulment.
QUESTION NO. 17
Tito devised one-half of a parcel of land to Ana, and
the other half to Ben, on condition that “upon Ben’s
death, whether before or after that of Tito, the half
portion devised to Ben shall be delivered to Ana or
her heirs should Ben die before Tito.” Upon Tito’s
death, Ben immediately demanded partition of the
property. Ana refused because according to her,
Ben is only a second heir. Is Ana correct?
Ana is wrong for refusing partition. A fideicommissary
substitution has no effect unless it is made expressly.
The clause under consideration (“upon Ben’s death,
whether before or after that of Tito, the half portion
devised to Ben shall be delivered to Ana or her heirs
should Ben die before Tito”) is not a valid
fideicommissary substitution. The clause establishes
only a simple or common substitution, the necessary
result of which is that Ben, upon the death of Tito,
became the owner of an undivided half of the property.
Being a co-owner of the property, Ben can rightfully
demand its partition.
QUESTION NO. 18
Mr. and Mrs. Cruz, a wealthy couple, offered a
reward of Php2 million in a newspaper to the
person or persons furnishing information resulting
in the arrest and conviction of the person or
persons guilty of the murder of their son. Shortly
after the advertisement, the police arrested a
suspect. The police learned that the suspect was the
boyfriend of a daughter of Ana who suggested the
location at which the suspect was later found and
arrested. The suspect was charged and convicted.
Ana tried to claim the reward money, arguing that
the information she gave to the police led to the
arrest and conviction of the murderer. When Ana
gave the information to the police, however, she had
not known about the reward. Is Ana entitled to the
reward?
Ana is not entitled to the reward because she did not
know that it had been offered. To be effective, an offer
of reward, as well as any other contractual offers, must
be communicated to the offeree resulting in the
offeree’s knowledge of the offer. An offer without
acceptance does not result into a contract. (Art. 1319,
Civil Code) One cannot agree to a bargain without
knowing that it exists.
QUESTION NO. 19
In a cockfight involving the cocks of Abe and Rey,
the sentenciador declares Abe’s cock the winner.
Not satisfied with the sentenciador’s decision, Rey
commences an action against Abe, praying that the
judgment of the sentenciador be voided and his cock
be declared the rightful winner. The judge
immediately dismisses the case because he knew of
no law governing cockfights. He also orders the
return of Rey’s bet. Abe appeals. Who prevails?
Abe prevails. In Chu Jan v. Bernas, 34 Phil. 631, the
Supreme Court reversed the lower court’s order of
dismissal and remanded the case to the lower court. A
judge should not refrain from rendering a judgment just
because there is no law that governs a particular case.
In the absence of a law or principle of law, the rules of
fair play must be applied. (Sec. of Justice v. Lantion, 322
SCRA 160 [2000] When a provision of law is silent or
ambiguous, judges ought to invoke a solution
responsive to the vehement urge of conscience.
(Amatan v. Aujero, 248 SCRA 511)
QUESTION NO. 20
Tom died in 2005 leaving a holographic will which
is entirely written, dated, and signed by his hand.
The will contains insertions and cancellations which
are not authenticated by his signature. For this
reason, the probate of the will is opposed by Tom’s
relatives who stood to inherit intestate from him.
May Tom’s will be probated?
Yes, the will as originally written may be probated. The
insertions and alterations are void because they were
not authenticated by the full signature of Tom pursuant
to Article 814 of the Civil Code. The original will
remains valid because a holographic will is not
invalidated by the unauthenticated insertions or
alterations. (Ajero v. Court of Appeals, 236 SCRA 468)
QUESTION NO. 21
Abe has a van for sale. He offers to sell the van to
Rey for Php300,000. Discuss the legal effect of the
following events on the offer.
a. Abe dies prior to Rey’s acceptance, and at the
time Rey accepts, he is unaware of Abe’s death.
Abe’s death terminates the offer. An offeree’s power of
acceptance is terminated when the offeror or offeree
dies or is deprived of legal capacity to enter into the
proposed contract. An offer is personal to both parties
and cannot pass to the decedent’s heirs, assigns or
successors-in-interest. This rule applies whether or not
the other party had notice of the death or incapacity of
the other party.
b. The night before Rey accepts, fire destroys the
van.
Abe’s offer is terminated. Abe need not even tell Rey
about the loss of the van for the offer to terminate. An
offer is automatically terminated if the subject matter of
the offer is destroyed before the offer is accepted.
c. Rey pays Php10,000 for a thirty-day option to
purchase the van. During this period Abe dies,
and later Rey accepts the offer, knowing of Abe’s
death.
Rey’s acceptance results in a perfected contract
notwithstanding Abe’s death. When an offeror promises
to hold an offer open for a specified period, and the
offeree pays for the promise, an option contract is
created. An option contract is a separate contract that
takes away the offeror’s power to revoke the offer for
the period of time specified in the option. The death or
incompetence of the offeror does not terminate an
option contract -- unless the offeror’s personal
performance is essential to the fulfillment of the
contract. Consequently, Rey can still exercise the option
against Abe’s estate, since Abe is not required to
perform the act of conveying the van to Rey.
QUESTION NO. 22
Abe, a Filipino naturalized American, now a
resident of New York, comes back to the Philippines
as a balikbayan. He is arrested at the NAIA in
possession of a caliber .38 Smith and Wesson.
Charged with illegal possession of firearms, he
moves to quash the criminal complaint based on his
constitutional right as a New Yorker to bear arms.
Decide.
Motion denied. The crime was committed within our
territorial jurisdiction and is therefore punishable here.
Under the principle of generality, no one is exempt from
our penal laws, except those who enjoy diplomatic
immunity under international law. (Art. 14, Civil Code;
Art. 2 Revised Penal Code; see also 3 rd par., Art. 17, Civil
Code)
QUESTION NO. 23
Abe and Amy are married in Baguio City. Abe goes
to Hongkong and marries Bea, a Filipina domestic
helper. After a month of connubial bliss in the
Crown Colony, Abe goes to Singapore and marries
Connie, a Filipina “house manager.” After two
months with Connie, Abe goes to Brunei where he
marries Annie, a Filipina GRO. After three months of
connubial bliss in Brunei, Abe heads for home sweet
home. May Abe be prosecuted for bigamy in the
Philippines at the instance of his first wife, Amy?
No, because Abe did not commit any crime in Philippine
territory. (Art. 14, Civil Code) Bigamy is committed by
entering into a second or subsequent marriage. The first
marriage, which was entered into in the Philippines, is
not bigamous. The subsequent marriages, which are
bigamous marriages, were all entered into abroad, or
outside Philippine territory, and therefore beyond our
criminal jurisdiction.
QUESTION NO. 24
Ana and Amy, Filipinos, both women, enter into a
same-sex marriage in the United States, where such
a marriage is valid. Is the marriage also valid here?
The general rule enunciated in the first paragraph of
Article 26 of the Family Code should apply, under which
marriages valid where celebrated are also valid here.
The case does not fit into any of the exceptions
enunciated in the foregoing provision of Article 26 of
the Family Code. Therefore, same sex marriage is valid
here if valid where celebrated.
However, it would seem that the case falls under one of
the exceptions to the application of the proper foreign
law, i.e., it runs counter to an important public policy of
the forum -- that a marriage should be between a man
and a woman. Because of this important public policy,
same-sex marriage is void here.
QUESTION NO. 25
A ten-year old boy shot a girl with an air gun
resulting in her death. The court acquitted the boy
in the criminal case for having acted without
discernment. Undaunted, the girl’s parents filed for
damages against the boy’s parents. How would a
court rule?
The court would hold the boy’s parents liable. Their
liability is made natural as a logical consequence of the
duties and responsibilities of parents exercising
parental authority which includes controlling,
disciplining and instructing their children.
In this jurisdiction, the liability of parents is vested by
law which assumes that when minor children living
with their parent commit a tortuous act, the parents are
presumed negligent in the performance of their duty to
supervise the children under their custody. (Tamargo
vs. CA, 209 SCRA 519)
QUESTION NO. 26
Ana and Bea, grade 6 pupils, were assigned by their
teacher to weed the grass in the school premises.
Ana found a plastic headband with an earthworm
and tossed it to Bea hitting Bea in her right eye
resulting in the loss of the eye. Are Ana’s parents
liable?
No. It was not shown that the parents could have
prevented the damage as their child was in school and
they have the right to expect their child to be under the
care and supervision of their teacher. Besides, the act
was an innocent prank and usual among children at
play and which no parent could have any special reason
to anticipate much less guard against. (Cuadra
vs .Monfort, 35 SCRA 160)
QUESTION NO. 27
Abe and Rey entered into a contract for the
purchase of a cow. Abe, owner of the cow, told Rey
that the cow was barren (incapable of breeding and
producing calves). Based on this belief, Abe and Rey
negotiated a price several hundred pesos less than
it would have been had the cow been capable of
breeding. Just before delivery, Abe discovered the
cow had conceived a calf, and he refused to deliver
the much more valuable cow to Rey. Does Abe have
legal grounds to annul the contract?
Yes, Abe may annul the sale on the ground that he
committed a substantial mistake as to the substance of
the subject matter of the contract. The mistake is
substantial enough because a barren cow is a
substantially different cow than a breeding one. The law
is clear: Even though there may have been no damage to
the party seeking the annulment, a contract may be
annulled where the consent is vitiated by mistake. (Art.
1390, Civil Code)
QUESTION NO. 28
ABC Co. insured Pedro’s house for Php1 million. As
stated in the policy, ABC Co. undertakes, upon total
loss, to either pay the insured value of the house, or
rebuild it, upon proof of total loss. If during the life
of the policy the insured property is completely
destroyed, may Pedro insist that ABC Co. rebuild his
house rather than being paid its insured value?
No, because in alternative obligations, the right of
choice is given to the debtor, unless it has been
expressly granted to the creditor. (par. 1, Art 1200, Civil
Code) In the absence of an agreement in the insurance
policy giving the right of choice to the insured, the
general rule applies, and therefore, the insurer may
choose which of the two prestations to perform, the
performance of one being sufficient.
QUESTION NO. 29
For damage or injuries arising out of negligence in
the operation of a motor vehicle, what is the nature
of the liability of the registered owner?
The registered owner may be held civilly liable with the
negligent driver either subsidiarily or solidarily.
The owner may be held subsidiarily liable if the
aggrieved party seeks relief based on a delict or crime
under Articles 100 and 103 of the Revised Penal Code.
On the other hand, the owner may held solidarily if the
complainant seeks relief based on a quasi-delict under
Articles 2176 and 2180 of the Civil Code.
(NOTE: It is the option of the plaintiff whether to waive
completely the filing of the civil action, or institute it
with the criminal action, or file it separately or
independently of a criminal action. His only limitation is
that he cannot recover damages twice for the same act
or omission of the defendant)
QUESTION NO. 30
Abe works as a janitor in a building at night. On his
way to work, he finds a piece of gold necklace that
contains several precious stones. The following day,
Abe decides to take the necklace to a jewelry store
to have it appraised. While pretending to weigh the
jewelry, an employee of the jeweler removes
several of the stones. Abe brings an action to
recover the stones from the jeweler. Will he
succeed?
Yes. As the party in physical possession of the jewelry,
Abe is entitled to be respected in its possession which
he can enforce against anyone, except the true owner.
(Art. 559, Civil Code)
QUESTION NO. 31
If a Filipino is convicted by final judgment abroad,
may he be required to serve time here?
No, because there is no legislation allowing such
practice. It would in effect require the Philippine
government not only to recognize, but also to enforce, a
foreign judgment which is penal in nature. (Opinion of
the Sec. of Justice No. 142, s. 1992)
QUESTION NO. 32
When may a divorce decree validly obtained in a
foreign country be recognized in the Philippines?
A divorce obtained abroad by an alien may be
recognized in our jurisdiction provided the decree of
divorce is valid according to the national law of the
foreigner. However, the divorce decree and the
governing national law of the alien spouse who
obtained the divorce must be proved. Our courts do not
take judicial notice of foreign laws and judgments. Like
any other facts, both the divorce decree and the national
law of the alien spouse must be alleged and proved
according to our law on evidence. (Garcia v. Recio, G.R.
No. 138322, October 2, 2001)
QUESTION NO. 33
Tom died in 1990 with a will. In his will, he devised
a house and lot to Abe, as his first heir and to Abe’s
son, Ben, as his second heir. Ben died in 1995
survived by two children (Eric and Fidel). Abe died
in 2000 also survived by two children (Chito and
Dante).
In the settlement of Abe’s estate, Eric and Fidel
(Ben’s heirs) sought to exclude the house and lot
originating from Tom on grounds that they are the
exclusive owners of the property. Chito and Dante
opposed the motion on grounds that Ben, the
second heir, predeceased Abe, and that therefore,
the fideicommissary substitution did not produce
any effect as far as Ben, the second heir, is
concerned. Who prevails?
Eric and Fidel, Ben’s heirs, prevail. Ben, the second heir,
acquires a right to the succession from the time of the
testator’s death, even though he, Ben, should die before
the first heir. Ben inherited from Tom as second heir
when the latter died in 1990. When Ben died in 1995, he
transmitted his right as second heir to his own heirs,
Eric and Fidel, such that when Abe (first heir) died in
2000, the right of Eric and Fidel over the property
became absolute.
QUESTION NO. 34
A passenger bus owned by Abe and a cargo truck
owned by Ben collided. Carlito, a bus passenger,
suffered injuries, while Dante, another bus
passenger, died. The drivers of the two vehicles
were at fault. Carlito, the injured passenger, and the
heirs of Dante sued the owners of both vehicles for
damages.
a. May Abe successfully invoke the defense of due
diligence in the selection and supervision of his
employees to avoid liability?
No, he cannot. This is because his liability as a common
carrier is based on a breach of contract of carriage. Such
a defense will only serve to mitigate Abe’s liability
because by then he will be considered as a debtor in
good faith.
b. May Ben invoke the same defense?
Yes, Ben can properly and successfully invoke the same
defense of due diligence in the selection and
supervision of his employees because his liability is
based on a quasi-delict.
c. May Carlito claim moral damages from both
vehicle owners?
Yes, Carlito can claim moral damages against Ben, the
owner of the cargo truck, because of the injuries he
suffered, but as against Abe, Carlito can claim moral
damages only if he proves reckless negligence on the
part of the common carrier amounting to fraud.
d. May Dante’s heirs claim moral damages from
both vehicle owners?
The heirs of Dante can claim moral damages against
both vehicle owners because the rules on damages
arising from death due to a quasi-delict are also
applicable to death of a passenger caused by breach of
contract by a common carrier. (Arts. 1755, 1764, 2206
and 2219, Civil Code)
QUESTION NO. 35
John, Paul, George, and Ringo are co-owners of an
unregistered land. Unknown to his co-owners, John
registered the land in his name. What is the effect of
the registration of the land in John’s name?
John never acquired ownership of the land. Registration
of a parcel of land subject of co-ownership in the name
of one co-owner is not a repudiation of the co-
ownership for purposes of prescription. (Ceniza v. Court
of Appeals, 181 SCRA 552 [1990]) Under Article 494 (5)
of the Civil Code, no prescription shall run in favor of a
co-owner or co-heir so long as he expressly or impliedly
recognizes the co-ownership. The registration by John
of the community property in his name merely created
a trust in favor of his co-owners.
QUESTION NO. 36
If a marriage is annulled or declared void by final
judgment, how soon may the former spouses
remarry?
A decree of annulment or decree of absolute nullity
terminates a marriage. There being no more subsisting
marriage to speak of, the former spouses may marry
again, but only after they comply with Article 52 of the
Family Code. This provision requires the former
spouses to register the with the appropriate local civil
registry or registry of property the following: a)
judgment of annulment or of absolute nullity of
marriage; b) partition and distribution of the properties
of the spouses; and c) delivery of the children’s
presumptive legitimes. Failure to comply with these
(recording) requirements will render void the
remarriage of the former spouses.
QUESTION NO. 37
Abe is convicted by final judgment of a crime. Abe’s
wife later files an action for legal separation. Which
of the following facts would most likely have an
impact on the case?
A. Abe is sentenced to suffer imprisonment for
more than six years.
B. Abe is convicted of a crime involving moral
turpitude.
C. Abe is convicted of a crime which carries the
accessory penalty of civil interdiction.
D. Abe is a rescidivist.
(A) would most likely have an impact on the case. Under
Article 55 of the Family Code, a final judgment
sentencing the respondent spouse to imprisonment of
more than six years, even if pardoned, is a ground for
legal separation.
That Abe is convicted of a crime involving moral
turpitude as stated in (B) is of no consequence if the
penalty is less than six years.
That Abe is sentenced to suffer the accessory penalty of
civil interdiction as stated in (C) would have an impact
only if the crime to which Pedro is convicted carries a
sentence of more than six years.
Abe’s rescidivism in (D) has no impact because it is not
one of the grounds for legal separation.
QUESTION NO. 38
Amy donated to Betty a parcel of land on condition
that Betty builds on the property a one-storey
kiddie library for a day care center within two
years. Betty has not yet built a library on the
property after two years. Amy, with notice to Betty,
sold the land to Connie. Is the sale a revocation of
the donation?
No. The act of selling the property donated cannot be
considered as a valid revocation because a formal action
in court to revoke the donation must be filed by the
donor pursuant to Article 764 of the Civil Code which
speaks of an action that has a prescriptive period of four
years from non-compliance with the condition stated in
the donation.
The rule that there can be automatic revocation without
the benefit of a court action does not apply in this case
because the donation is devoid of any provision
providing for automatic revocation in the event of non-
compliance with the stipulated condition. Thus, a court
action is necessary to be filed within four years from the
non-compliance with the condition violated.
QUESTION NO. 39
Abe met Bea at a garments factory where both were
working. After a brief courtship period, the two got
married, and lived for a time as husband and wife.
When the factory closed down, Bea went to Taiwan
to seek employment. That was the last time Abe saw
her. Abe recently obtained a court decree declaring
Bea presumptively dead. The Solicitor General
disagrees with the ruling arguing that Abe had
failed to exert earnest efforts to locate Bea and that
Abe failed to prove his well-founded belief that Bea
was already dead. The Solicitor General assails the
ruling through a Notice of Appeal. Should the appeal
be given due course?
No. The decision of the court granting Abe’s petition for
declaration of his wife’s presumptive death under
Article 41 of the Family Code is immediately final and
executory upon notice to the parties. (Art. 247, Family
Code) The decision is therefore not subject to ordinary
appeal, and the attempt to question it through a Notice
of Appeal is unavailing.
In sum, the losing party in a summary proceeding for
declaration of presumptive death under Article 41 of
the Family Code may file a petition for certiorari with
the Court of Appeals on the ground that, in rendering
judgment thereon, the trial court committed grave
abuse of discretion amounting to lack of jurisdiction.
From the decision of the Court of Appeals, the aggrieved
party may elevate the matter to the Supreme Court via a
petition for review on certiorari under Rule 45 of the
Rules of Court. (Republic v. Granada, G.R. No. 187512,
June 13, 2012)
QUESTION NO. 40
Abe leased to Rey a building for a ten years. Abe has
repeatedly assured Rey that if he should decide to
sell the building, he will give Rey the right of first
refusal.
On the sixth year of the lease, Abe informed Rey that
he was willing to sell to Rey the building for Php5
million. Rey offered to buy the building for Php4.5
million. Abe did not reply. One week later, Rey
received a letter from Larry informing him that the
building had been sold to him by Abe for Php5
million, and that Larry will not renew Rey’s lease
when it expires.
a. Did Abe violate Rey’s right of first refusal?
No. The lessee’s right of first refusal does not go so far
as to give him the power to dictate on the lessor the
price at which the lessor should sell his property. Upon
the facts given, Abe had sufficiently complied with his
commitment to give Rey a right of first refusal when he
offered to sell the property to Rey for Php5 million,
which was the same price he got in selling it to Larry.
Abe certainly had the right to treat Rey’s counter-offer
of a lesser amount as a rejection of his offer to sell at
Php5 million. Thus, he was free to find another buyer
upon receipt of such counter-offer.
b. Suppose Abe gave Rey an option to purchase
instead of a right of first refusal, will that make
any difference in your answer?
No, the answer will still be the same. An option must be
supported by a consideration separate and distinct from
the purchase price. In this case, there was no separate
consideration. Therefore, the option may be withdrawn
by Abe at anytime.
c. Is a right of first refusal governed by the Statute
of Frauds?
No. A right of first refusal is not among the contracts
which are required to be in writing under the Statute of
Frauds. The application of Article 1403, paragraph 2(e),
of the Civil Code presupposes the existence of a
perfected contract of sale of real property. A right of
first refusal need not be written to be enforceable and
may be proved by oral evidence. (Rosencor Development
Corporation v. Inquing, 354 SCRA 119 [2001])
QUESTION NO. 41
Abe agrees to lease to Rey an office space for five
years at a fixed rent. Before Rey takes possession of
the premises, Rey learns of a much more
advantageous opportunity and established his office
elsewhere. To force Rey to perform, Abe brings an
action to enforce the agreement. What is Rey’s
strongest argument?
The Statute of Frauds is Rey’s strongest argument. To be
enforceable, the Statute of Frauds requires certain
agreements to be reduced into writing and signed by
the party to be charged, including agreements creating
an interest in land. Leases for more than one year are
therefore generally covered by the Statute of Frauds.
Since the agreement between Abe and Rey is for a five-
year lease, the Statute of Frauds is Rey’s strongest
defense to the enforcement of the agreement. (Art. 1403,
par. 2(e), Civil Code)
QUESTION NO. 42
Abe is a police officer. During his lifetime, he
contracted two marriages: the first with Bea, and
the second, with Carol. Upon Abe’s death, Bea and
Carol separately filed claims for benefits pertaining
to Abe from various government agencies. Because
she received a smaller amount, Carol brought an
action for the return of at least one-half of the
amount which Bea received.
Two important facts came to light during the trial.
First, Carol had no knowledge of Abe’s previous
marriage and that she became aware of it only at
the funeral. Second, the prior marriage of Abe to
Bea was solemnized without a marriage license. Is
Carol entitled to half of Abe’s death benefits?
The marriage of Abe and Bea is void for lack of a valid
marriage license. The same is true with respect to the
marriage of Abe and Carol for lack of a judicial decree
declaring the first marriage a nullity. Given that the
marriages are void, the applicable property regimes
would be governed by Articles 147 and 148 of the
Family Code.
Considering that the marriage of Abe and Carol is a
bigamous marriage, having been solemnized during the
subsistence of a previous marriage then presumed to be
valid, the application of Article 148 is in order.
The disputed death benefits clearly consists of benefits
from governmental agencies earned by Abe as a police
officer. Unless Carol presents proof to the contrary, it
could not be said that she contributed money, property
or industry in the acquisition of these monetary
benefits. Hence, they are not owned in common by Carol
and Abe, but owned by the deceased (Abe) alone and
Carol has no right whatever to claim the same.
By intestate succession, the “death benefits” of Abe shall
pass to his legal heirs. Carol, not being the legal wife of
Abe, is not one of them.
QUESTION NO. 43
On May 1, Abe goes into Rey’s Clothing Store to
purchase a suit. Abe finds a suit he likes for
Php7,000 and buys it. The suit needs alteration so
Abe leaves the suit at the store. Abe is to pick up the
repaired suit at the store on May 10. Consider the
following separate sets of circumstances:
a. One of Rey’s major creditors obtains a judgment
on the debt which Rey owes and has the court
issue a writ of execution to collect on that
judgment all clothing and other apparel in Rey’s
possession. Discuss Abe’s right to the repaired
suit on which the judgment creditor has levied.
Abe is entitled to demand the return of the suit. Upon
payment of the price and its delivery to him, Abe
became the owner of the suit. (Art. 1477, Civil Code)
While Rey was in possession of the repaired suit at the
time of the levy, Rey was in possession not as an owner
but in another capacity. The repaired suit therefore is
already beyond the reach of Rey’s judgment creditor at
the time of the levy.
b. On May 9, through no fault of Rey, his clothing
store is completely burned, and all contents are
a total loss. Between Abe and Rey, who suffers
the loss of the suit destroyed by fire? Explain.
Abe bears the loss of the suit pursuant to the res perit
domino rule, he being its owner. The obligation of Rey to
return the suit after May 10 is deemed extinguished by
a fortuitous event. (Art. 1174, Civil Code)
QUESTION NO. 44
Abe has a severe heart attack and is taken to the
hospital. He is not expected to live, and he knows it.
Because he is a bachelor without close relatives
nearby, Abe gives his car keys to his close friend,
Rey, telling Rey that he is expected to die and that
the car is Rey’s. Abe survives the heart attack, but
two months later he dies from pneumonia. The
administrator of Abe’s estate wants Rey to return
the car. Rey refuses, claiming the car was given to
him by Abe as a gift. Discuss whether Rey will be
required to return the car to Abe’s estate.
Rey is required to return the car to Abe’s estate. The
donation is mortis causa, not inter vivos. It is a mortis
causa donation because Abe intended it to take effect
upon his death because of his heart attack. That Abe
died from a cause unrelated to the heart attack does not
detract from the fact that Abe’s death is the operative
cause that would have conveyed ownership of the car to
Rey. Since the donation was not expressed in
accordance with the formalities of wills, the donation is
void and Rey never acquired ownership of the car.
QUESTION NO. 45
Tom’s driveway runs the entire length of his
property and connects to Jerry’s property. Jerry has
a right of way over Tom’s driveway, which is
obviously Jerry’s only access to the nearest public
road. The right of way is duly recorded in the
Registry of Property. Jerry sells his property to
Larry. Is Larry entitled to use the driveway?
Yes, he being the new owner of the dominant estate.
The owner of the dominant estate cannot use the
easement except for the benefit of the immovable
originally contemplated. Since the law makes no
distinction whether the owner of the dominant estate
be the original owner at the time of the establishment of
the easement, as in the case of Jerry, or a mere
transferee of the dominant estate, as in the case of
Larry, then there is no need to distinguish, and this is so
because the easement is constituted for the benefit of
the dominant estate, regardless of its owner. (Art. 626,
Civil Code)
QUESTION NO. 46
Romeo and Juliet are married. Shortly before their
wedding, Romeo donated to Juliet in a notarized
instrument a parcel of land on condition that should
Juliet die before Romeo and there be no children,
one-half of the property shall be given to Juliet’s
parents. Nine months after the wedding, Juliet died
without issue. Juliet’s parents now claim the one-
half share given to them in the deed of donation.
Will they succeed?
No. Insofar as the one-half share is concerned, it cannot
be a valid donation propter nuptias nor a donation inter
vivos nor a donation mortis causa.
The donation is not a donation propter nuptias because
the share was not given to one of the spouses. The
donation is not a donation inter vivos, for there was no
acceptance on the part of the parents. The donation is
not a donation mortis causa because the deed of
donation did not have the formalities of a will, aside
from the fact that the donor, Romeo, is still alive.
QUESTION NO. 47
A friend called Abe by cellular phone from Tarlac
City to say that his car had suffered a tire blow out
and that he must have a new tire for his car to get
back home to Baguio City. Over the telephone, Abe
said to the owner of the car repair shop, “Give him
the tire and I will pay for it.” Is Abe’s oral promise
enforceable?
Yes. Abe’s promise was not one of guaranty, but one in
which he made himself directly and primarily
responsible for the amount of credit extended. Thus,
Abe made his own contract with the repair shop owner,
as he was not guaranteeing his friend’s obligation. Abe’s
oral promise is binding on him. This is not a case of a
special promise to answer for the debt, default or
miscarriage of another which the law requisites to be in
writing to be enforceable.
QUESTION NO. 48
Abe, a door-to-door salesman of vacuum cleaners,
demonstrated one of the latest model cleaners at
Mrs. Peralta’s house. Mrs. Peralta said that she was
interested in buying the cleaner but would have to
consult her husband before deciding. Abe offered to
leave the machine with Mrs. Peralta, saying, “I’ll
leave it here so that you can show it to your
husband. Here is my number. If I don’t hear from
you by the end of the month, I’ll send you a bill for
the machine.” She agreed. A month passed and Abe’s
bill arrived. Is Mrs. Peralta liable to pay the vacuum
cleaner?
Yes. By her silence, Mrs. Peralta accepted Abe’s offer
and would therefore be liable under the agreement
discussed with Abe. Both parties had agreed that
continued silence would be the manner of acceptance. A
contract may be perfected in any manner sufficient to
show a meeting of the offer and the acceptance upon the
thing and the cause which are to constitute the contract,
including conduct by both parties manifesting such
meeting of their minds. (Art. 1319, Civil Code)
QUESTION NO. 49
Husband obtains a decree of legal separation
because of Wife’s sexual infidelity. Is Wife entitled
to inherit from Husband?
It depends.
By intestate succession, she cannot. According to Article
63(4) of the Family Code, the offending spouse shall be
disqualified from inheriting from the innocent spouse
by intestate succession.
By testate succession, if the husband executed the will
prior to the decree of legal separation, the wife cannot
inherit from her husband. According to Article 63(4) of
the Family Code, provisions in favor of the offending
spouse made in a will shall be revoked by operation of
law. However, if the will was executed subsequent to the
decree of legal separation, the wife will then be able to
inherit from her husband. In such a case, there is a tacit
or implied pardon. (Art. 1033, Civil Code by analogy)
QUESTION NO. 50
Abe and Bea were married in 1992. Shortly after
their wedding, Bea left to work abroad. While on
vacation in the Philippines in 2003, she discovered
that Abe had married their neighbour, Mila, in 2001.
She also discovered that Abe filed in 2002 with the
Manila RTC a complaint for declaration of nullity of
marriage under Article 36 of the Family Code.
Aggrieved by Abe’s acts, Bea retaliated by filing with
the Makati RTC a complaint for bigamy against Abe.
In 2007, during the pendency of the bigamy case,
the Manila RTC rendered a decision invalidating the
marriage of Abe and Bea on grounds that Bea was
psychologically incapacitated to comply with her
essential marital obligations. This decision has
since become final. Should the Makati RTC still
convict Abe of bigamy?
Yes. When Abe contracted a second marriage in 2001,
his marriage with Bea was still subsisting. The finality of
the decision declaring the nullity of his first marriage
with Abe came about only in 2007 or about six years
after his second marriage. It is evident therefore that
Abe committed the crime charged. The contention that
Abe cannot be charged with bigamy in view of the
declaration of nullity of his first marriage is without
merit. The Family Code settled once and for all the
conflicting jurisprudence on the matter. A declaration of
absolute nullity of a marriage is now explicitly required
either as a cause of action or a ground for defense.
Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for
said projected marriage to be free from legal infirmity is
a final judgment declaring the previous marriage void.
(Teves v. People, G.R. No. 188775, August 24, 2011)
QUESTION NO. 51
Abe granted Rey a road right of way. Rey was at that
time using a cart and a carabao to transport his
products from his farm to the market. Ten years
later, Rey asked for a widening of the easement as
he had resorted to the use of a jeepney to transport
his products. Can Rey successfully demand a wider
easement?
Yes, because the width of an easement of right of way
shall be that which is sufficient for the needs of the
dominant estate and may, accordingly, be changed from
time to time. (Art. 651, Civil Code) The needs of the
dominant estate determine the width of the passage.
(Sta. Maria v. Court of Appeals, 285 SCRA 351 [1998])
QUESTION NO. 52
Abe, a widower, has two children (Basilio and
Crispin). Basilio has two children (Dante and Eric),
and Crispin has one child (Fidel). Abe died without a
will with an estate valued at Php600,000.
a. At the time of Abe’s death, Basilio and Crispin
have long died. How shall Abe’s estate be
distributed?
The grandchildren inherit by representation and the
following distribution would then take place: Dante and
Eric; Php150,000 each, taking Basilio’s share. Fidel;
Php300,000, taking Crispin’s share.
The above distribution is per stirpes in accordance with
the rule that grandchildren always inherit by right of
representation, whether they concur with children of
the decedent or not. (Arts. 981 and 982, Civil Code)
b. Suppose Basilio and Crispin have renounced
their inheritance, how shall Abe’s estate be
distributed?
The grandchildren would inherit in their own right.
Hence, Dante, Eric, and Fidel will each receive a one-
third share, or Php200,000.
The above distribution is per capita in accordance with
the rule that heirs who repudiate their share may not be
represented (Art. 977, Civil Code) Since Basilio and
Crispin have repudiated their shares, the grandchildren
will then inherit in their own right being the relatives
(in the descending line) next in degree of the decedent.
QUESTION NO. 53
Abe and Rey are business partners in buying,
developing, and selling real estate. Abe learns
through the partnership staff that five hectares of
land will soon come on the market and that the staff
will recommend that the partnership purchase the
land. Abe purchases the property secretly in his
own name. If the partnership discovers these facts
and immediately brings suit, what will the court
say?
A court will create a constructive trust and declare that
Abe, as legal owner of the property, holds the title to the
property in trust for the partnership who, in equity, is
actually entitled to the property. A constructive trust
may be imposed when a party holding legal title to
property stands in a fiduciary relation to another
resulting in an equitable duty to convey the property on
the ground that he would be unjustly enriched if he
were permitted to retain it. In the problem presented,
Abe stood in a fiduciary relation to the partnership and
would be unjustly enriched if allowed to retain the
property. Because Abe secretly purchased the property
in his own name and for his own benefit, Abe was under
an equitable duty to convey the property to the
partnership.
(NOTE: A constructive trust arises by operation of law
as an equitable remedy that enables plaintiffs to recover
property (and sometimes damages) from defendants
who would otherwise be unjustly enriched. In other
words, when a transaction takes place in which the
person who takes the legal estate in prop `erty cannot
also enjoy the beneficial interest without violating some
established principle of equity, the court will create a
constructive trust. The legal owner is declared to be a
trustee for the parties who, in equity, are actually
entitled to the ownership of the property.)
QUESTION NO. 54
Tom names his friend, Fidel, as one of his heirs on
condition that Fidel should not enter any gambling
casino here or abroad for one year after Tom’s
death. Is Fidel entitled to receive the inheritance
upon Tom‘s death?
Yes, but Fidel must give a security to guarantee that he
would not enter any gambling casino for one whole year
upon Tom’s death. The security is called “caucion
muciana.” If Fidel enters any casino during the
prohibited period, he should return whatever he may
have received, together with its fruits and interest. (Art.
879, Civil Code)
QUESTION NO. 55
Debtor owes Creditor Php400,000. The debt is the
subject of a lawsuit, and the court awards Creditor a
judgment of Php400,000. To satisfy the judgment,
the sheriff levies on Debtor’s family home in Baguio
City valued at Php500,000. Debtor opposes the levy
on grounds that his family home is exempt from
execution. Judgment for whom?
Judgment for Creditor. Under Article 160 of the Family
Code, if judgment is rendered against the owner of a
family home, and the creditor has reasonable ground to
believe that the value of the family home is in excess of
Php300,00 (urban land) or Php200,000 (rural land),
the creditor may apply for an order directing the sale of
the family home. In the case presented, the value of
Debtor’s family home is in excess of Php300,000 so the
same may be sold at public auction to satisfy the
judgment against him. The foregoing rule applies even if
the increase in value of Debtor’s family home resulted
from improvements introduced by Debtor.
QUESTION NO. 56
Amy needs Php100,000, so Ben agrees to lend her
the money. To secure the loan, Amy delivers some
of her jewelry to Ben and signs a power of attorney
giving Ben the power, in case she fails to repay the
loan, to sell the jewelry as her agent for the best
price that can be obtained and to pay out of the
proceeds the unpaid amount of the loan, giving any
surplus to her. Having obtained the money, Amy
tells Ben that she revokes the power to sell. Is Amy’s
power to sell revoked?
No, because Amy’s agency is coupled with interest and
therefore irrevocable. Even if Amy dies, the power is
still not affected. An agency coupled with an interest is a
relationship created for the benefit of the agent. The
agent actually acquires a beneficial interest in the
subject matter of the agency. Under these
circumstances, it is not equitable to permit a principal
to terminate the agency at will. Hence, this type of
agency is irrevocable.
QUESTION NO. 57
Seller, in reply to an inquiry from Buyer, sent a
letter dated December 8 stating terms upon which
he would sell 100 to 300 computer units of a certain
brand at a certain price. On December 16, Buyer
sent a letter to Seller ordering 90 computer units on
those terms. On December 18, Seller sent a telegram
to Buyer rejecting the order. The next day Buyer
sent Seller a telegram stating, “Please enter an
order for 150 computer units per your letter of
December 8.” Seller refused the order, and Buyer
sued for breach of contract. Judgment for whom?
Judgment for Seller. Buyer’s telegram of December 16,
referring to the terms stated in Seller’s letter of
December 8, varied the number of computer units, and
was therefore a counter-offer. A counter-offer is a
rejection of the original offer. On December 8, the Seller
declined to fulfill the Buyer’s order, thus the
negotiations between the two parties was closed. As a
result, the Buyer’s attempt to fall back on the Seller’s
original offer by the telegram of December 19,
therefore, created no rights against the Seller.
QUESTION NO. 58
Husband sues Wife for declaration of nullity of
marriage under Article 36 of the Family Code. In
due course, the court rendered judgment nullifying
the marriage. The court then directed the former
spouses to liquidate their common properties
pursuant to Article 147 of the Family Code, and to
partition the “family dwelling” and all their other
properties in equal shares.
In addressing the issue on the disposition of the
family dwelling, the lower court declared that the
property regime of the former spouses shall be
governed by the rules on co-ownership, and that the
provisions on liquidation of the absolute
community and conjugal partnership under Articles
102 and 129 of the Family Code find no application.
Not satisfied with the ruling, Husband seeks a
partial reconsideration on grounds that Articles 50,
51, and 52 in relation to Articles 102 and 129 of the
Family Code are applicable. Husband’s move is
expected because the couple’s children have chosen
to live with him, and applying Articles 102 and 129
of the Family Code, the family dwelling will be
adjudicated to him. Is Husband correct?
No. In a void marriage, regardless of the cause, the
property relations of the parties during the period of
cohabitation is governed by the provisions of Article
147 of the Family Code. Under this provision, a peculiar
form of co-ownership arises 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.
Article 147 of the Family Code presumes that property,
including the family dwelling, in the absence of proof to
the contrary, were acquired by the parties through their
joint efforts and will be owned by them in equal shares.
A party who did not participate in the acquisition of
property shall still be considered as having contributed
thereto jointly if said party’s efforts considered mainly
in the maintenance of the family household.
The rules set up to govern the liquidation of either the
absolute community or the conjugal partnership, the
property regimes recognized for valid and voidable
marriages, in the latter case until the marriage is
annulled, are irrelevant to the liquidation of the co-
ownership that existed between Husband and Wife.
The first paragraph of Article 50 of the Family Code,
applying paragraphs (2), (3), (4) and (5) of Article 43
thereof, relates only, by its explicit terms, to valid and
voidable marriages, and exceptionally, to a void
marriage under Article 40 of the Family Code, i.e., the
declaration of nullity of a subsequent marriage
contracted by a spouse of a prior void marriage before
the latter is judiciary declared void. (Valdez v. RTC of
Quezon City, 260 SCRA 221 [1996])
QUESTION NO. 59
Distinguish between ordinary legitime and
presumptive legitime.
Ordinary legitime arises only when a person dies. (Art.
777, Civil Code) The decedent may either be a child,
parent or spouse, ascendant or descendant. In a
presumptive legitime, the spouses whose marriage is
annulled or declared void are still alive. It is the
marriage itself which “died” or is terminated.
While in both kinds of legitimes the marriage is
terminated, the causes of termination are not the same.
In presumptive legitime, the cause is either the
annulment of the marriage or its nullification. In
ordinary legitime, the cause of termination is the death
of the decedent who is not necessarily a spouse.
The term legitime in the law on succession presupposes
the existence of a valid and effective will; in presumptive
legitime, no will is presupposed. It applies without any
relation to the existence or non-existence of a valid and
effective will of the “spouses.”
QUESTION NO. 60
Employer hired Driver to operate a delivery van.
Before allowing Driver to operate the van, Employer
checked Driver’s prior job references, required
Driver to undergo a physical examination by a
doctor, and provided Driver with extensive training
in motor vehicle safety. Medic, the doctor who
examined Driver, discovered that Driver had a sleep
disorder that caused Driver to spontaneously fall
asleep and that Driver had on several occasions
fallen asleep while driving. Driver pleaded with
Medic not to inform Employer of the sleep disorder.
Medic agreed, and omitted this information from
the physical examination form that he sent to
Employer. Medic also sent a letter to Employer
assuring Employer that Driver was “fit for
employment as a delivery van operator.” Employer
then provided Driver with a daily delivery route
and paid him a monthly salary.
While Driver was making deliveries for Employer,
the van left the road and struck Pedestrian, who
suffered severe injuries as a result. Pedestrian filed
a lawsuit for damages against Driver and Employer.
a. Is Driver guilty of negligence?
Yes. By operating the delivery van, Driver owes a duty
to exercise reasonable care to others on the road. Driver
failed to conform to the required standard of care when
his van left the road and struck Pedestrian. He knew
that he was susceptible to falling asleep and yet he took
the risk that he would not cause harm to others by
operating the van.
b. Can Pedestrian prevail under the res ipsa
loquitor rule concerning Driver’s alleged
negligence?
Driver is guilty of negligence but not on the basis of res
ipsa loquitor. He was negligent because he operated the
van knowing that he was susceptible to falling asleep
while operating a vehicle.
The fact that Driver left the road and struck Pedestrian
is not a type of accident that happens only if the Driver
was negligent. There are many other situations that
could have caused the Driver to veer off the road,
including mechanical failure, defective steering wheels,
or emergency reaction. Thus, Driver’s negligence is one
of the many possible causes. This factor makes it highly
unlikely that res ipsa loquitur could be used in such a
situation.
c. What arguments will Pedestrian make in
support of his claim of negligence, what defenses
can reasonably be asserted, and who is likely to
prevail in a lawsuit filed by Pedestrian against
Employer?
Pedestrian will argue that an employer is vicariously
liable for the negligence of his employees committed
within the scope of the employment relationship. Here,
Driver was negligent as discussed. Employer hired
Driver to operate the van and is thus an employer
within the meaning of vicarious liability. Driver’s
negligence occurred within the scope of the
employment relationship because Driver was making
deliveries for Employer when the van left the road and
struck the Pedestrian.
Employer will argue that he is liable for negligence only
if it can be determined that he failed to exercise the
diligence required in the selection and supervision of
his employees. Here, Employer made reasonable efforts
to investigate Driver’s prior job references and physical
conditions. By exerting such efforts, Employer would
not be liable for negligent hiring or supervision of
Driver.
QUESTION NO. 61
Abe, a widower, has two married children (Ben and
Carla). Carla has two children (Drew and Eric),
while Ben has no children. Abe dies, leaving a will
that gives all his property equally to his children,
Ben and Carla, and provides that should a child
predecease him, leaving grandchildren, the
grandchildren are to inherit equally with the
surviving child. Carla has predeceased Abe. Abe dies
with an estate valued at Php180,000.
a. Discuss the distribution of Abe’s estate if the will
is invalid.
Should Abe’s will be denied probate, his estate shall be
distributed as in intestacy. Under Article 981 of the Civil
Code, should children of the deceased and descendants
of other children who are dead, survive, the former shall
inherit in their own right, and the latter by right of
representation. Consequently, Ben shall inherit in his
own right Php90,000, while the grandchildren (Drew
and Eric) shall each inherit Php45,000 by right of
representation.
b. Discuss the distribution of Abe’s estate if the will
is valid.
Ben and Carla were the heirs originally instituted by
Abe in his will. Such institution concerns only the free
disposal. Because Carla predeceased Abe, the proviso
that the free disposal shall be received equally by Ben
and the children of Carla (Drew and Eric) is valid.
Consequently, Ben and the children of Carla are first
given their legitimes as follows: Ben, Php45,000 which
he shall receive in his own right; Drew and Eric shall
each inherit Php22,500 by representation. The free
disposal of Php90,000 is then divided equally among
the three instituted heirs, Ben, Drew and Eric. In sum,
the heirs shall inherit as follows:
Ben : 45,000 (in his own right)
30,000 (as voluntary heir)
Drew : 22,500 (by representation)
30,000 (as voluntary heir)
Eric : 22,500 (by representation)
30,000 (as voluntary heir)
QUESTION NO. 62
Abe owes Rey Php100,000 due on June 1. Abe has
been in a freak car accident, has already missed a
great deal of work, and consequently will not have
the money on June 1. Larry, Abe’s father, offers to
pay Rey Php25,000 in four equal installments if Rey
will excuse Abe from any further liability on the
debt. Rey accepts.
a. Is the transaction a novation?
Yes, the transaction is a novation because it involves the
substitution of Larry as new debtor in place of Abe, the
original debtor. This is true even if the substitution is
with the knowledge of Abe or without his knowledge or
against his will. (Art. 1290, Civil Code)
b. Does the agreement between Rey and Larry have
to be in writing to be enforceable?
No. Larry’s promise was not one of guarantee, but one
in which he made himself directly and primarily
responsible for the amount of credit extended. Thus,
Larry made his own contract with Rey, as he was not
guaranteeing his son’s obligation. Put otherwise, Larry’s
oral promise is binding on him because this is not a case
of a special promise to answer for the debt, default or
miscarriage of another which the law requisites to be in
writing to be enforceable. (Art. 1403, par. 2(a))
QUESTION NO. 63
Mrs. Cruz leaves a painting worth Php50,000 in her
will to her grandson, Sam. Shortly before her death,
the painting is destroyed in a fire. Mrs. Cruz does
not change her will. What will Sam receive?
Sam is not entitled to receive anything from his
grandmother’s estate. This is pursuant to Article 957 of
the Civil Code which provides that the legacy or devise
shall be without effect if the thing bequeathed is totally
lost during the lifetime of the testator, or after the
testator’s death without the heir’s fault.
QUESTION NO. 64
What are the rules for the liquidation of the
absolute community of property or conjugal
partnership of gains in case of death of a spouse?
The rules regarding the liquidation of the absolute
community or conjugal partnership are the same. These
are:
1. If a special proceeding for the settlement of estate of
deceased persons under the Rules of Court has been
instituted after the death of one spouse, the absolute
community or conjugal partnership shall be
liquidated in the said proceeding.
2. If no special proceeding for the settlement of estate
of the deceased spouse is instituted, the surviving
spouse shall liquidate the absolute community or
conjugal partnership either judiciary or extra-
judiciary within one year from the death of the
spouse.
3. If no liquidation is made within one year from the
death of the deceased spouse, any disposition or
encumbrance involving any community or conjugal
property of the terminated marriage shall be void.
4. Should the surviving spouse contract a subsequent
marriage without liquidating the community
property or conjugal partnership, a mandatory
regime of complete separation of property shall
govern the property relations of the subsequent
marriage. This is to protect the heirs of the deceased
spouse. (Arts. 103 and 130, Family Code)
QUESTION NO. 65
Abe has a wife and two sons, both legitimate. His
estate, including a house, a car, shares of stocks, and
savings in a bank account, is worth Php2.1 million.
If Abe dies without a will, how shall his estate be
distributed?
Abe’s wife and two sons will each inherit Php700,000. If
a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
succession the same share as that of each of the
children. (Art. 996, Civil Code)
QUESTION NO. 66
Abe is married to Bea, while Chito is married to
Donna. Abe and Chito are brothers. Due to a
property dispute, Abe and Bea filed a possessory
action against Chito and Donna. Citing Article 151 of
the Family Code, Chito and Donna moved to dismiss
the complaint for failure to state a cause of action.
Chito and Donna claim that the absence of an
allegation in the complaint that earnest efforts
toward a compromise between members of the
same family had been made and that it was
unsuccessful, renders the complaint fatally
defective. Should the court dismiss the complaint?
No. Article 151 of the Family Code does not apply
because it is not exclusively between or among family
members. The inclusion of Donna as defendant and Bea
as plaintiff takes the case out of the ambit of Article 151
of the Family Code. The phrase “members of the same
family” refers to the husband and wife, parents and
children, ascendants and descendants, and brothers and
sisters, whether of the full or half-blood. Here, Carol
(Abe’s wife) and Donna (Chito’s wife) are considered
strangers to the family of Abe and Chito for purposes of
Article 151 of the Family Code. (Hontiveros v. RTC Iloilo
City, Br. 25, 309 SCRA 340)
QUESTION NO 67
Seller and Buyer were dealers in cattle. During an
extremely hot spell, Seller was worried over the fact
that he had too many cattle on the market.
Discovering this fact Buyer jokingly offered to buy
the cattle. After some dickering as to price, the
parties apparently came to an agreement. Buyer
later insisted that the whole transaction was a joke.
Seller believed that Buyer’s offer to buy the cattle
was made seriously. Seller sues for damages. Who
wins?
Seller wins. A contract results from an offer and the
acceptance thereof. In other words, every contract must
have mutual consent of the parties which is manifested
by a meeting of the offer and the acceptance upon the
thing and the cause which are to constitute the contract.
The offer must be certain and the acceptance absolute.
(Art. 1319, Civil Code) The elements of offer and
acceptance are present in the instant problem.
Undisclosed intentions of one party are not part of the
contract. If the law were otherwise, a party might
successfully escape his obligations on a contract by
stating that he was only joking.
QUESTION NO. 68
Brenda orally offers to sell a number of household
items to Daria. No item is worth more than
Php30.00, but the total price for the items is
Php550.00. Daria orally accepts the offer. Brenda
later receives an offer from another buyer to buy all
the items for Php750.00, which Brenda accepts. Can
Brenda argue that the contract with Daria is not
enforceable because it was made orally and not in
writing?
Yes, because the total price in the contract is Php550.00.
In sale of goods, the Statute of Frauds, under Article
1403 No. 2(d) of the Civil Code, requires that the
contract be in writing to be enforceable if the price
isPhp500.00 or more. The claim that the Statute of
Frauds does not apply because the unit price of each
item sold is less than Php500.00 is not tenable because
what controls is not the unit price but the total price of
the goods sold.
QUESTION NO. 69
Husband and Wife own a property. Wife donated
her interest in the property to Husband five years
before her death; Husband devised his half of the
property to his brother, Abe. Husband and Wife
died simultaneously in a car accident. Husband is
survived by his brother, Abe, while Wife is survived
by her brother, Rey. What interests do Abe and Rey
hold on the property?
Abe inherits half of the property, while Rey inherits the
other half, both as intestate heirs of the deceased
couple. The couple died simultaneously, and therefore,
there shall be no transmission of successional rights
from one to the other. (Art. 43, Civil Code). Because the
couple died simultaneously, they retained their
respective half interests in the property, which in turn
devolve to their heirs. Wife’s earlier donation of her half
share to Husband is void because it was made during
the marriage and is not a moderate gift under the
circumstances. (Art. 87, Family Code)
QUESTION NO. 70
Debtor owes Creditor Php100,000. Upon maturity of
the loan, Debtor fails to pay and so Creditor sues
him for collection sum of money. Debtor answers
the complaint and before actual hearing, Creditor
assigns Debtor’s promissory note to Stranger for
Php80,000. Stranger now demands payment from
Debtor. How much is Debtor obliged to pay
Stranger?
Debtor is liable for Php80,000 only, plus cost and
interest. Under Article 1634 of the Civil Code, when a
credit in litigation is sold, the debtor shall have a right
to extinguish it by reimbursing the assignee for the
price the latter paid therefor, the judicial costs incurred
by him, and the interest on the price from the day on
which the same was paid. In paying only such amount,
Debtor exercises his right of legal redemption.
(NOTE: The right of redemption granted in Article 1634
of the Civil Code is proper only in case of sale of the
credit in litigation, and not to cases of barter, donation,
or other modes of acquisition.)
QUESTION NO. 71
Aragon is indebted to Benitez and Chua in the
amount of Php200,000. Upon maturity of the debt,
Aragon fails to pay so Benitez and Chua sue him in a
complaint for sum of money. Aragon answers the
complaint and before actual hearing, Benitez
assigns his right to the credit to Chua (presumably
½ or Php100,000) for only Php75,000. How much is
Aragon obliged to pay Chua?
Aragon is liable to pay Php200,000 to Chua because the
assignment was made to a co-owner. In other words,
Aragon cannot redeem the credit in litigation sold by
Benitez to Chua. Article 1635 of the Civil Code
enumerates the three instances when the debtor cannot
redeem a credit in litigation which is sold by his
creditor, one of them being an assignment or sale to a
co-owner.
QUESTION NO. 72
In 1976, pursuant to a homestead patent, Abe
obtained an original certificate of title over a big
tract of land. Upon Abe’s death in 1978, the land
was transferred by succession to his son Ben who
obtained a certificate of title in his name. In 1989,
Ben mortgaged the land to PNB as security for a
loan. Because Ben failed to pay, the bank extra-
judicially foreclosed the mortgage, purchased the
property at public auction, and secured a title in its
name in 1997.
Invoking Section 119 of the Public Land Act, Ben
tried to repurchase the property in 2002, but the
bank refused. The bank defends that there can no
longer be any right of repurchase because the
property was no longer covered by a free patent but
by a TCT, and that the right to repurchase had
already prescribed.
a. Is Ben still allowed to repurchase the property?
Yes. The plain intent of Section 119 of the Public Land
Act is to give the homesteader every chance to preserve
and keep in the family the land that the State has
gratuitously given him as a reward for his labor in
cleaning, developing, and cultivating it.
The fact that the land had been inherited by Ben and a
new title in his name is issued does not bring it outside
the purview of Section 119. In fact, the policy behind the
law is fulfilled because the land remains in the family of
the patentee.
b. Is Ben’s right to repurchase already time-
barred?
No. If the land is mortgaged to parties other than rural
banks, the mortgagor may redeem the property within
one (1) year from the registration of the certificate of
sale pursuant to Act No. 3135. If the mortgagor fails to
do so, he or his heirs may repurchase the property
within five (5) years from the expiration of the
redemption period also pursuant to Section 119 of the
Public Land Act. (Rural Bank of Davao City, Inc. v. CA,
217 SCRA 554 [1993])
In extrajudicial foreclosures under Act 3135, the debtor
or his successors-in-interest may redeem the property
within one year. This redemption period should be
reckoned from the date of registration of the certificate
of sale. (Belisario v. Intermediate Appellate Court, 165
SCRA 191 [1988]. The five-year period fixed in Section
119 begins to run from the expiration of the one-year
redemption period.

Here, the certificate of sale in the name of the bank was
registered in 1997 and the one-year redemption period
expired in 1998. Reckoned from that day, Ben had a
five-year period, or until 2003, to exercise his right to
repurchase under Section 119 of the Public Land Act.
Consequently, the complaint filed in 2002 was not time-
barred. .
QUESTION NO. 73
Tessie heard her neighbors talking about her son,
Abe, a minor and a polio victim. The neighbours
said that Tessie’s son is a cripple who has no future
in life. Does Tessie have a remedy against her
neighbors?
Tessie is well within her right to institute a civil action
for damages against her neighbours because of their
vexing or humiliating comments about her son’s
physical condition. Article 26 of the Civil Code clearly
provides that every person shall respect the dignity,
personality, privacy, and peace of mind of his
neighbours. Talking about Tessie’s crippled son is a
clear sign of disrespect warranting a cause of action for
damages.
QUESTION NO. 74
Due to a sudden burst of lightning, Abe’s carabao
which was tied to a tree in his farm scampered to a
nearby field. The crops on the field which were to be
harvested in a few days were totally destroyed.
Should Abe be held liable for the damages to the
crops?
No. Article 1174 of the Civil Code expressly provides
that no person shall be responsible for those events
which could not be foreseen, or which though foreseen,
were inevitable. Here, the incident under which Abe’s
carabao scampered to the nearby field because of a
sudden burst of lightning. is an occurrence which could
not have been foreseen by Abe.
QUESTION NO. 75
Debtor owes Creditor the sum of Php20,000 on a
personal debt. Trudy, a third person, promises
Debtor that he would pay Creditor the full debt if
Debtor will give Trudy's children dance lessons.
Debtor faithfully provides dance lessons regularly
over an extended period. Can Creditor sue Trudy for
the payment of the debt?
Yes, because Creditor is an intended beneficiary of the
agreement between Debtor and Trudy. Under Article
1311 of the Civil Code, if a contract should contain some
stipulation in favour of a third person, he may demand
its fulfilment provided he communicated his acceptance
top the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The
contracting parties must have clearly and deliberately
conferred a favour upon a third person. Such a
stipulation obtains in this case.
QUESTION NO. 76
A seller shipped goods to a buyer by common
carrier, using a shipment contract. When the carrier
arrived at the buyer's location, the buyer refused to
accept the goods unless the driver unloaded them
inside the buyer's warehouse. The driver refused
and the goods were subsequently damaged. Who
bears the risk of loss?
The buyer bears the risk of loss, since this was a
shipment contract and the seller had completed the
performance obligations. Where actual delivery has
been delayed through the fault of either the buyer or
seller the goods are at the risk of the party in fault. Since
the buyer himself delayed the actual delivery of the
goods, he necessarily bears the loss of the goods. (Art.
1504(2), Civil Code)
QUESTION NO. 77
Abe works for Yellow Cab delivering pizzas in a
motorcycle to customers across the city. One day, in
his haste to meet the “30 minutes or free pizza”
delivery standard, he causes an accident in which
Rey’s car is damaged. Against whom can Rey file a
civil action for damages?
Rey can file a civil action either against Abe for
breaching his duty and causing Rey harm, or against
Yellow Cab for being vicariously liable for Abe’s actions,
or against both. (Arts. 2176 & 2180, Civil Code)
QUESTION NO. 78
Abe and Ana are engaged to be married. A month
before their wedding, Ana was forced to marry Rey.
Despite the marriage, however, Abe and Ana
continued their amorous relationship thru text
messaging and social networking expressing their
love for each other. Rey consults you on whether
these acts of Abe and Ana would constitute an
actionable wrong. Advise Rey.
I would advise Rey that he can commence an action
against Abe for damages for meddling with or
disturbing Rey’s married relations with Ana. This is an
actionable wrong recognized under Article 27 (2) of the
Civil Code.
QUESTION NO. 79
Tito dies with a will leaving his entire estate of Php6
million to his live-in partner, Marie. Tito is survived
by his brother, Sonny, and his legitimate half-sister,
Ana.
a. Is the testamentary disposition in Tito’s will
valid?
Yes. Tito’s testamentary disposition of his entire estate
to his common-law wife is in accordance with the law
on succession. Tito has no compulsory heirs, who can
inherit from him. (Art. 887, Civil Code) Under the law,
brothers and sisters are not compulsory heirs.
Accordingly, Tito can bequeath his entire estate to
anyone who is not otherwise incapacitated to inherit
from him. A common-law wife is not incapacitated
under the law, as Tito is not married to anyone.
b. Suppose Tito dies intestate, how shall his estate
be distributed?
Assuming that Tito’s entire estate of Php6 million is his
net hereditary estate, Sonny is entitled to receive Php4
million which is twice the intestate share of Ana, a half-
sister, who is entitled to inherit Php2 million. Marie is
not entitled to inherit anything because she is not a
legal heir of Tito. (Art. 1006, Civil Code)
QUESTION NO. 80
Abe owns an agricultural land with no access to a
public road. He had been passing through Rey’s land
with Rey’s acquiescence for over 20 years. Abe
recently subdivided his property into ten
residential lots and sold them to different persons.
Rey immediately blocked the pathway and refused
to let Abe’s buyers pass through his land. Did Abe
acquire an easement of right of way over Rey’s land?
No, he did not. An easement of right of way is
discontinuous in nature - it is exercised only if man
actually passes over somebody’s land. Under Article 622
of the Civil Code, discontinuous easements, whether
apparent or non-apparent, may only be acquired by
title.
QUESTION NO. 81
To secure a loan from a bank, Abe assigned his
leasehold rights over a stall at the public market in
favour of the bank. The deed of assignment provides
that in case of default in the payment of the loan, the
bank shall have the right to sell Abe’s rights over the
market stall as his attorney-in-fact, and to apply the
proceeds to the payment of the loan.
a. Is the deed of assignment a cession or a
mortgage?
The deed of assignment is a mortgage, not a cession of
leasehold rights. A cession would have transferred
ownership to the bank. The grant of authority to the
bank to sell the leasehold rights in case of default is
proof that no such ownership was transferred and that
a mere encumbrance was constituted. There would
have been no need for such authority had the deed of
assignment been a true cession.
b. If the assignment is a mortgage, is the stipulation
authorizing the bank to sell the leasehold rights
in case of default a pactum commissorium?
No, it is not. The stipulation is pactum commissorium
only when default in the payment of the loan
automatically vests ownership of the encumbered
property in the bank. Here, the bank does not
automatically become the owner of the property upon
default of the mortgagor. (Art. 2088, Civil Code) The
bank has to sell the property and apply the proceeds to
the loan.
QUESTION NO. 82
X, Y and Z are co-owners in equal shares of a
residential house and lot. During the co-ownership,
the co-owners performed the following acts on the
co-owned property: a) X caused the repair of the
foundation of the house, then titling to one side, to
prevent the house from collapsing; b) Y and Z
mortgaged the house and lot to secure a loan; c) Y
built a concrete perimeter fence on the lot; d) Z built
a beautiful grotto in the garden; and e) X and Z sold
the property to B for a good price.
a. Is the decision of X in repairing the foundation of
the house binding on Y and Z? May X require Y
and Z to contribute their 2/3 share of the
expense?
Yes. Under the law, each co-owner has the right to
compel the other co-owners to contribute to the
expense of preservation of the thing (house) owned in
common in proportion to their respective interests in
the co-ownership. (Arts. 485 and 488, Civil Code) The
expense incurred by X in repairing the foundation of the
house is decidedly an expense to preserve the house by
preventing its collapse.
b. What is the legal effect of the mortgage executed
by Y and Z?
The mortgage does not bind X and shall be deemed to
cover only the respective rights and interests of Y and Z
in the house and lot. The mortgage shall be limited to
the portion which may later be allotted to Y and Z in the
partition of the property owned in common. (Art. 493,
Civil Code)
c. Is the decision of Y in building a perimeter
concrete fence binding on X and Z? May Y
require X and Z to contribute their 2/3 share of
the expense?
Y’s decision in building the perimeter fence is not
binding upon X and Z. Expenses to improve the thing
owned in common must be decided upon by a majority
of the co-owners who represent the controlling interest.
(Arts. 489 and 492, Civil Code) Since Y does not
constitute a majority with a controlling interest in the
co-ownership, his decision does not bind the other co-
owners.
d. Is the decision of Z in building a grotto binding
on X and Y? May Z require X and Y to contribute
their 2/3 share of the expense?
Z’s decision in building a grotto is not binding upon X
and Y. Expenses to embellish the thing owned in
common must be decided upon by a majority of the co-
owners who represent the controlling interest. (Arts.
489 and 492, Civil Code) Since Z does not constitute a
majority with a controlling interest in the co-ownership,
his decision does not bind the other co-owners.
e. What is the legal effect of the sale executed by X
and Z?
The sale to B does not bind the 1/3 share of Y and
covers only the 2/3 share of X and Z in the land. (Art.
493, Civil Code) Moreover, Y has the right to redeem the
2/3 share sold to B by X and Z considering that B is a
third person to whom the ideal shares of the co-owners
were onerously alienated. (Art. 1620, Civil Code)
QUESTION NO. 83
Seller sells to Buyer his house and lot for Php1
million payable in five equal annual instalments.
The sale is registered and title is issued to Buyer.
Buyer later failed to pay the last three instalments
and Seller files an action for collection of sum of
money, damages and attorney’s fees. Seller
immediately proceeds to the Registry of Deeds for
annotation of a notice lis pendens on Buyer's
certificate of title. Is the notice lis pendens proper?
The notice lis pendens is not proper because Seller’s
action against Buyer is only for collection of sum of
money, damages, and attorney's fees. Annotation of a
notice lis pendens is proper only in cases involving the
recovery of possession of real property, quieting of title
or removal of a cloud thereon, or partition or any other
proceeding affecting title to the land or for the use or
occupation thereof. The action filed by Seller does not
fall on anyone of these.
QUESTION NO. 84
Abe lost Php100,000 in a card game, but he had no
more cash to pay Rey, the winner. When the card
game ended, Abe still owed Rey Php30,000 which
Abe promised to pay in two weeks. When Abe still
failed to pay after three months, Rey filed a suit to
collect.
a. Will the collection suit prosper?
The collection suit will not prosper. Under Article 2014
of the Civil Code, no action can be maintained by the
winner for the collection of what he has won in a game
of chance.
b. Could Tessie institute an action to recover the
amount which her husband lost?
If the money paid by Abe to Rey were conjugal or
community property, the wife could sue to recover it
pursuant to Article 117(7) of the Family Code which
expressly provides that losses in gambling are borne
exclusively by the loser-spouse. Conjugal or community
funds may not be used to pay for such losses. And if the
money were the exclusive property of Abe, the wife may
also sue to recover it under Article 2016 of the Civil
Code if she and the family needed the money for
support.
QUESTION NO. 85
Abe sold his car to Ben who issued a post-dated
check. Before the due date of the check, Ben sold the
car to Dave, an innocent purchaser for value. The
check issued by Ben was later dishonored because
Ben had already closed his checking account when
he issued the check. Abe sued to recover the car
from Dave on grounds that he had been unlawfully
deprived of the car by Ben’s deception. Will the suit
prosper?
The suit will not prosper because Abe was not
unlawfully deprived of the car although he was
unlawfully deprived of the price. The perfection of the
sale and the delivery of the car was sufficient to allow
Ben to acquire ownership of the car, which he can
lawfully transfer to Dave. Article 559 of the Civil Code
applies only to a person who is in possession in good
faith of the property, and not to the owner thereof.
Here, Ben was the owner, and, hence, Dave acquired the
title to the car. Non-payment of the price in a contract of
sale does not render ineffective the obligation to
deliver. The obligation to deliver a thing is different
from the obligation to pay its price.
QUESTION NO. 86
In 1980, Abe leased to Rey a piece of land for a
period of three years with an option to purchase the
property during the period of the lease for the price
of Php500,000. After the expiration of the three-
year lease period, Abe allowed Rey to remain in the
leased premises on a monthly basis at the same
rental rate. In 1984, Rey tendered the amount of
Php500,000.00 to Abe and demanded that Abe
execute a deed of absolute sale of the land in his
favor. Abe refused on the ground that Rey no longer
had an option to buy the property. If Rey files an
action for specific performance against Abe, who
will prevail?
Abe will prevail. The implied renewal of the lease on a
month-to-month basis did not have the effect of
extending the life of the option to purchase which
expired at the end of the original lease period. Abe is
therefore correct in refusing to sell on the ground that
the option had expired.
QUESTION NO. 87
Because of their friendship, Abe loaned his
passenger jeepney to Rey to allow Rey to bring his
wife from Baguio City to NAIA for his wife’s travel to
Hongkong. On the way back to Baguio, people
stopped the passenger jeepney. Rey stopped for
them and allowed them to ride on board, accepting
payments as if they were ordinary passengers of
jeepneys plying their route.
When Rey was cruising at moderate speed along
the national highway in Binalonan, Pangasinan, a
wayward vehicle coming from the opposite
direction hit the jeepney. The jeepney was wrecked.
a. What kind of agreement did Abe and Rey enter
into with respect to the use of the passenger
jeepney?
The contract is a commodatum.(Art. 1933. Civil Code)
Commodatum is a contract by which one of the parties
(bailor) delivers to another (bailee) something not
consumable so that the latter may use it for a certain
time and return it.
b. Is Rey obliged to pay Abe for the use of the
passenger jeepney?
No, Rey is not obliged to pay Abe for the use of the
passenger ieepney because commodatum is essentially
gratuitous. (Art. 1933. Civil Code)
c. Is Rey liable to Abe for the loss of the jeepney?
Yes, because Rey devoted the thing to a purpose
different from that for which it has been loaned (Art.
1942, par. 2, Civil Code)
QUESTION NO. 88
Abe owns a mango plantation which he can no
longer properly manage due to a lingering illness.
Since Abe is indebted to Rey in the amount of
P500,000, he asks Rey to manage the plantation and
apply the harvest to the payment of his obligation,
until his debt has been fully paid. Rey agrees.
a. What kind of agreement did Abe and Rey enter
into?
Abe and Rey had entered into an accessory contract of
antichresis. Under Article 2132 of the Civil Code, by a
contract of antichresis the creditor acquires the right to
receive the fruits of an immovable of his debtor, with
the obligation to apply them to the payment of the
interest, and thereafter to the principal of his credit.
b. What obligations are imposed by law on Rey as a
consequence of his agreement with Abe?
Rey is obliged to pay taxes and charges upon the land
and bear the necessary expenses for preservation and
repair which he may deduct from the fruits. (Art. 2135,
Civil Code)
c. Does the law require any specific form for the
validity of the contract?
As to perfection, antichresis is a formal or solemn
contract. The amount of the principal and interest must
be specified in writing, otherwise the antichresis is void.
(Art. 2134, Civil Code)
d. May Abe reacquire the plantation before
payment of his indebtedness?
No. Article 2136 of the Civil Code specifically provides
that the debtor cannot reacquire the enjoyment of the
immovable without first having totally paid what he
owes the creditor. However, it is potestative on the part
of the creditor to do so in order to exempt him from his
obligation under Article 2135 of the Civil Code. The
debtor cannot reacquire the enjoyment, unless Rey
compels Abe to enter again the enjoyment of the
property.
QUESTION NO. 89
On January 5, D obtains a loan of Php1 million from
C. The promissory note does not stipulate any
payment of interest. The note is due on December
31. Before the due date of the loan, D and C become
political enemies. Out of spite, D deliberately
defaulted in paying the note, forcing C to bring suit.
a. How much can C recover from D?
C can recover from D the amount of Php1 million,
together with interest at the legal rate of 12% from the
date of judicial or extrajudicial demand. Inasmuch as D
is in bad faith, he is also liable to pay all damages which
may be reasonably attributed to the non-performance
of the obligation. (Art. 2201(2). Civil Code)
b. Can C ask for moral damages?
Yes. Under Article 2220 of the Civil Code, moral
damages are recoverable in case of breach of contract
where the defendant acted fraudulently or in bad faith.
Here, D acted in bad faith because he refused to pay the
value of the note to spite C.
c. Can C ask for nominal damages?
No, he cannot. Nominal damages are not recoverable in
this case because C is already indemnified of his losses
with the award of actual and compensatory damages.
Nominal damages are adjudicated only in order that a
right of the plaintiff, which has been violated or invaded
by the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any
loss suffered by him. (Art. 2231. Civil Code)
d. Can C ask for temperate damages?
C may ask for, but would most likely not be awarded,
temperate damages considering that his actual damages
may already be compensated upon proof thereof with
the promissory note. Temperate damages may be
awarded only when the court finds that some pecuniary
loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty. (Art. 2224,
Civil Code)
e. Can C ask for attorney’s fees?
Yes, considering that D's act or omission has compelled
C to litigate to protect his interests. Furthermore.
attorneys' fees may be awarded by the court when it is
just and equitable. (Art. 2208, Civil Code)
QUESTION NO. 90
Abe, a widower, has three legitimate children
(Allan, Ben, and Charlie). He executed a will
instituting as his heirs to his estate of Php120,000
his two children, Allan and Ben, and his friend,
Fidel. Upon his death, how should Abe's estate be
divided?
The institution of Allan, Ben and Fidel to the entire
estate results in the preterition of Charlie, a compulsory
heir of Abe in the direct line. This preterition of Charlie
annuls the institution of Allan, Ben and Fidel as Abe’s
heirs. Intestacy results. Allan, Ben and Charlie will each
get Php40,000. Fidel gets nothing.
QUESTION NO. 91
In the preceding question, suppose Abe instituted
his two children, Allan and Ben, as his heirsl, but he
gave a legacy of Php30,000 to his friend, Fidel. How
should Abe’s estate be divided upon his death?
Assuming that Charlie was preterited, the institution of
Allan and Ben is annulled, but the legacy of Php30,000
to Fidel shall be respected for not being inofficious.
Therefore, the remainder of Php90.000 will be divided
equally among Allan, Ben, and Charlie.
QUESTION NO. 92
Rey and Abe are co-owners of a parcel of land. Rey
recently discovered that Abe had sold his (Abe’s)
share to Larry on January 1, 2015. The following
year, Rey offered to redeem Abe’s share from Larry,
but Larry replied that Rey's right to redeem had
already prescribed. Is Larry correct?
Larry is not correct. Rey can still enforce his right of
legal redemption as a co-owner. Article 1623 of the Civil
Code gives a co-owner 30 days from written notice of
the sale by the vendor to exercise his right of legal
redemption. Here, the 30-day period for the exercise by
Rey of his right of redemption had not even begun to
run because no notice in writing of the sale appears to
have been given to him by Abe.
QUESTION NO. 93
While sojourning in New York, A and B, both
Filipinos, exchanged marital vows through the
internet. Assuming such a marriage is valid in New
York, is the marriage valid here?
Yes, the marriage is also valid here. The case does not
appear to fall under any of the exceptions mentioned in
paragraph 1 of Article 26 of the Family Code. Such being
the case, the general rule on lex loci celebrationis
applies, that is, valid there, valid here.
QUESTION NO. 94
A and B are Filipino overseas workers in Libya.
They fell in love and decided to get married in
accordance with Libyan law. On the day of the
wedding, A fell ill and could not make it to the
ceremony. Upon advice of his Libyan lawyer, he
requested his best man to stand as proxy during the
wedding. The marriage was celebrated in
accordance with Libyan law and valid there as such.
Is the marriage valid in the Philippines?
Yes. Under Article 26 of the Family Code, a marriage
valid where celebrated is valid in the Philippines. To
this general rule, the law enumerates exceptions, but a
marriage by proxy is not one of those enumerated.
Hence, the marriage is valid. Expressio unius est exclusio
alterius.
QUESTION NO. 95
H, a Filipino, marries W, an American, in New York.
At the time of the marriage, H was psychologically
incapacitated to enter into marriage, although the
incapacity manifested itself five years after the
wedding. Assuming that the marriage is valid in
New York, is it also valid here?
No. The rule is: “valid there, valid here,” except those
prohibited under Arts. 35 (1), (4), (5) and (6), 36, 37
and 38 of the Family Code. The marriage is void under
Article 26 of the Family Code. The exception applies.
QUESTION NO. 96
Two Filipino second cousins got married in Japan
where such a marriage is void. Is the marriage valid
here?
No. The settled rule is: “valid there, valid here.” Hence,
“void there, void here” also. This notwithstanding the
fact that had the marriage been solemnized here, it
would have been perfectly valid.
QUESTION NO. 97
H, a Filipino, marries W, his French girlfriend, in
Paris. At the time of the marriage, H is
psychologically incapacitated to enter into marriage
under Philippine law. Under French law, the
marriage is voidable. Is the marriage also voidable
in the Philippines?
No. The marriage is void. The rule is: “valid there, valid
here”; “void there, void here”; “voidable there, voidable
here.” However, the case falls under one of the
exceptions, Article 36 of the Family Code.
QUESTION NO. 98
Abe constructed in good faith a house on the land of
Ben. As owner of the land, Ben opted to
appropriate the house and bound himself to pay the
proper indemnities.
a. Before the indemnities are given, may the
builder (Abe) retain the house?
Yes, Abe, the builder, is entitled to retain the house till
he is paid the full indemnities since he is a builder in
good faith. (Art. 448, Civil Code)
b. Is Abe entitled to the rents that accrue in the
meantime in case the building is leased to
another?
No, since his possession is no longer that of a possessor
in good faith. If Abe receives the rents, he must deduct
them from whatever indemnity is due him.
c. Is Abe legally entitled to the fruits that will
accrue during the time he retains the premises?
No, for again we may say that he is no longer a
possessor in good faith.
d. Is Ben entitled to collect rent from Abe while the
latter retains the house?
No, otherwise the right of retention till indemnity is
given would be rendered nugatory.
e. If Ben elects to compel Abe to pay the value of
the land (assuming that its value is not
considerably greater), is Abe, the builder,
entitled to the right of retention?
No, because he is the one required to pay. The right of
retention applies only when landowner appropriates
the building.
QUESTION NO. 99
Abe purchased a property adjacent to that of Ben.
Abe later discovered after a relocation survey that a
30-square meter portion of his lot is occupied by
Ben’s house. Despite repeated demands, Ben
refused to vacate the encroached portion. He claims
that under Article 448 of the Civil Code, he has the
pre-emptive right to purchase the portion
encroached upon. Is Ben correct?
No. Article 448 of the Civil Code is unequivocal that the
option to sell the land on which another builds, plants
or sows in good faith, belongs to the landowner. This
advantage in Article 448 of the Civil Code is accorded
the landowner because “his right is older, and by the
principle of accession, he is entitled to the ownership of
the accessory thing.” (Benitez v. C, 266 SCRA 242)
QUESTION NO. 100
A contract to sell stipulates that “title will be
transferred by Seller to Buyer only upon complete
payment of the purchase price.” When Buyer failed
to pay, Seller filed for rescission. Is the action
proper?
No. In a contract to sell, the seller retains title to the
thing sold until the buyer fully pays the purchase price.
The full payment is a positive suspensive condition, the
non-fulfillment of which is not a breach of contract but
merely an event that prevents the seller from conveying
title to the purchaser. The non-payment of the purchase
price renders the contract to sell ineffective and without
force and effect. (Ayala Life v. Burton Dev. Corp., 479
SCRA 462).  Since the obligation of seller did not arise
because of the failure of buyer to fully pay the purchase
price, Article 1191 of the Civil Code (which provides for
rescission) would have no application.
QUESTION NO. 101
Seller agreed to sell to Buyer a parcel of land for
Php100,000. Buyer was given up to 30 days to raise
the necessary funds. Buyer paid nothing for the
privilege of making up his mind. Before the lapse of
the 30-day period, Seller backed out of the
agreement. Buyer now sues to compel Seller to sell.
Is Seller required to sell the property to Buyer?
No, for this was merely a unilateral promise on the part
of Seller to sell, without a corresponding promise on the
part of Buyer to buy. Seller’s promise is not binding on
him since there was no consideration distinct from the
price. Hence, even if Seller’s promise had already been
accepted by the would-be buyer, Seller could still legally
withdraw from the agreement.
QUESTION NO. 102
X, the owner of a certain jewelry, entrusts them to Y
for sale or return of the jewelry upon a specified
period. Y sells the jewelry to Z, but retains the price.
Can X obtain possession of the jewelry from Z?
It depends. If the phrase “on sale or return” refers to a
true case of sale from X to Y, it is clear that delivery to Y
transferred ownership to him, and the subsequent sale
and delivery of the jewelry by Y to Z also transferred
ownership to Z. Hence, X cannot obtain possession of
the jewelry from Z. X’s right would be merely to proceed
against Y as a buyer who has not paid.
If, on the other hand, the phrase “for sale or return”
merely meant that X was constituting Y as his agent
with authority to sell the jewelry, X would still have no
right to recover the jewelry from Z (for after all, Z had
already paid for it and therefore, there can possibly be
no rescission for non-payment of the price). But this
time, X’s remedy would be to proceed against Y not as a
buyer but as an agent who has failed to render an
account of his transaction and who has failed to deliver
to the principal whatever he may have received by
virtue of the agency. (Art. 1891, Civil Code)
QUESTION NO. 103
Seller sells to Buyer a house and lot for Php500,000
payable within 60 days after the execution of the
deed of sale. It is expressly agreed in the deed that
the sale would ipso facto be of no effect upon
Buyer’s failure to pay as agreed. Buyer fails to pay
on maturity, so Seller sues to declare the contract of
no force and effect. If Buyer tenders payment before
the filing of the action (but after the stipulated date
of payment), would the action still prosper?
The action would not prosper. According to the law, “in
the sale of immovable property, even though it may
have been stipulated that upon failure to pay the price
at the time agreed upon the rescission of the contract
shall of right take place, the vendee may pay, even after
the expiration of the period, so long as no demand for
the rescission of the contract has been made upon him
either judicially or by notarial act. After the demand, the
court may not grant him a new term. “(Art. 1592, Civil
Code)
QUESTION NO. 104
Anton borrowed Ben’s truck. During a fire which
broke out in Anton’s garage, he had time to save
only one vehicle, and he saved his car instead of the
truck. Is Anton liable for the loss of Ben’s truck?
Yes. The bailee in commodatum is liable for the loss of
the thing loaned, even if it should be through a
fortuitous event if, being able to save either the thing
borrowed or his own thing, he chose to save the latter.
(Art. 1492, Civil Code)
QUESTION NO. 105
A, B, and C are co-owners of a parcel of land.
Unknown to his co-owners, A sold a specific portion
of the co-owned property to D, who immediately
takes possession and builds a house thereon. Per
deed of sale executed by A, the portion sold to D is
to be taken from the undivided share of A in the co-
owned property. Several years later, D sold his
portion to E.
Meanwhile, A, B and C sold the entire co-owned
property to F who caused the reconstitution of the
certificate of title of his sellers, by which title the
entire property was transferred to him. Is the sale
by a co-owner of a specific portion of a community
property valid?
Yes. The mere fact that A transferred a definite portion
of the co-owned property by metes and bounds to D
does not per se render the sale a nullity. There can be
no doubt that the transaction entered into by A and D
could be legally recognized in its entirely since the
object of the sale did not even exceed the ideal share
held by A in the co-ownership. A’s right to sell a part of
his undivided interest in the co-owned property is
absolute in accordance with the well-settled doctrine
that a co-owner has full ownership of his pro indiviso
share and has the right to alienate, assign and mortgage
it, and substitute another person in its enjoyment. (Del
Campo v. CA, 351 SCRA 1 (2001)
QUESTION NO. 106
A engaged B to build a residential condominium
building on his titled property. To finance the
construction, A obtained a loan from C, secured by a
mortgage on the condominium project. When the
loan was not paid. A entered into an agreement with
C in whose favor he conveyed all his rights and
interests in the realty project. In the same
agreement, both A and C recognized B’s contractor’s
lien by virtue of which C agreed to assign to him
three bedroom units to come from the
condominium project. C later entered into a lease
agreement with AMA Computer School which
converted the condominium building into a
computer school.
Because the conversion included the bedroom units
assigned to him, B brought an action against C for
delivery of his condominium certificate of title. C
defends on the ground that B is not a “condominium
buyer” within the purview of PD 957, the
Condominium Law. Decide.
Yes. The term “buyer” under the Condominium Law is
not limited to those who enter into contract of sale. Its
concept is broad enough to include those who “acquire
for valuable consideration a condominium unit.” In the
instant case, B is a buyer within the contemplation of PD
957. He acquired the three condominium units as they
were assigned to him by A in payment of his
indebtedness as contractor’s fees. Clearly, this
acquisition of the units was for a valuable consideration.
QUESTION NO. 107
A and B are neighbors. On his building’s wall, A
opened a window beneath the ceiling joists to admit
light in 1995. Even after 10 years, B may still
obstruct the light by constructing on his own lot a
building higher than A’s unless A makes a notarial
prohibition prohibiting B from making the
construction. If in 2003 A makes the prohibition,
may B still make the obstruction in 2007?
Yes, because it is only in 2013 (ten years after the
notarial prohibition) when A may be said to have
acquired the negative easement of light and view. After
2013, B may no longer obstruct.
QUESTION NO. 108
About 15 years ago, A constructed a house on her lot
adjoining the lot owned by B. He provided it with
windows overlooking B’s lot half a meter away from
the boundary line. A month ago, B brought an
action against A for the closure of the windows on
the allegation that they violate the law on distances.
Has A acquired an easement of light of view by
prescription of ten years?
No. In the first place, there was no formal prohibition
under which A prohibited B from obstructing his light
and view. In the second place, A did not observe the
legal requirement that there should be a distance of at
least two meters between the windows and B’s lot, since
the view is direct. According to law, non-observance of
this distance does not give rise to prescription.
QUESTION NO. 109
H and W are husband and wife. Believing that his
wife was sterile, H donated to C in 1990 a parcel of
land valued at Php40,000. In 1998, W gave birth to a
son, B. Assuming that the land is the exclusive
property of H and that the net value of H’s estate at
the time of B’s birth is Php40,000, what will be the
extent of the reduction of the donation?
The donation shall be reduced by Php20,000, because
H’s free disposal is only to the extent of Php20,000.
Thus:
40,000 value of donation
40,000 value of estate at B’s birth
80,000 Net Hereditary Estate
Legitime of B: 40,000
Legitime of W: 20,000
60,000
Free Disposal 20,000
Reduction 20,000 
Judicial action is necessary for reduction or revocation
of donation. (Art. 763, Civil Code) Period of prescription
is four years.
QUESTION NO. 110
X has no child. At the time he gave a donation of
P100,000, he had P1 million. Therefore, after the
donation, he had P900,000 left. Later he adopted a
minor child. At the time he made the adoption, he
had only P50,000 left. Should the donation be
reduced? How much and within what period?
The donation of Php100,000 should be reduced by
Php25,000 because the legitime is impaired to that
extent (the free disposal being only Php75,000). Thus:
50,000 (value at the time of adoption)
100,000 (value of donation)
150,000
The action for reduction must be brought within 4 years
from adoption.
QUESTION NO. 111
Homer died intestate survived by his wife (Winda)
and their two sons (Abe and Ben). During their
marriage, the couple acquired a parcel of land
whereon they built their family home. Upon the
death of Homer, his wife, Winda, and their eldest
son, Abe, formally advised Ben of their intention to
partition the property and terminate the co-
ownership. Ben refused on the ground that the
property which was a duly constituted family home
cannot be partitioned while a minor beneficiary is
still living therein; namely, his minor son, Conrad,
who is the grandson of the deceased. Is Conrad a
beneficiary of the family home constituted by his
paternal grandparents?
To qualify as a beneficiary of a family home, three
requisites must concur: first, the beneficiary must be
among the relationships enumerated in Article 154 of
the Family Code; second, the beneficiary must live in the
family home; and, third, the beneficiary is dependent for
legal support upon the head of the family.
Moreover, Article 159 of the Family Code provides that
the family home shall continue despite the death of one
or both spouses or of the unmarried head of the family
for a period of ten years or for as long as there is a
minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever
owns the property or who constituted the family home.
As to the first requisite, the beneficiaries of a family
home under Article 154 of the Family Code are: (1) the
husband and wife, or an unmarried person who is the
head of a family; and (2) their parents, ascendants,
descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate.
The term “descendants” includes all descendants of the
person or persons who constituted the family home
without distinction; hence, it must necessarily include
the grandchild and great grandchildren of the spouses
who constituted a family home. Thus, Conrad, who is
the grandchild of Homer, satisfies the first requisite.
As to the second requisite, minor beneficiaries must be
actually living in the family home to avail of the benefits
derived from Article 159 of the Family Code. There is no
dispute that Conrad, the son of Ben, lives in the family
home; hence, he satisfies the second requisite.
However, as to the third requisite, Conrad cannot
demand support from his paternal grandmother, Winda,
if he has parents who are capable of supporting him.
The liability for legal support falls primarily on Conrad’s
parents, especially his father, Ben, who is the head of his
immediate family. The law first imposes the obligation
of legal support upon the shoulder of parents, especially
the father, and only in their default is the obligation
imposed on the grandparents.
Conrad is dependent on legal support not from his
grandmother, Winda, but from his father, Ben. Thus,
despite residing in the family home and his being a
descendant of Homer, Conrad cannot be considered as
beneficiary of the family home under Article 154 of the
Family Code because he did not fulfill the third requisite
of being dependent on his grandmother for legal
support. (Patricio v. Dario III, G.R. No. 170829,
November 20, 2006)
QUESTION NO. 112
Two farmers entered into a contract for the
purchase of a cow. The owner told the purchaser
that the cow was barren (incapable of breeding and
producing calves). Based on this belief, the parties
negotiated a price less than it would have been had
the cow been capable of breeding. Just before
delivery, the owner discovered the cow had
conceived a calf, and he refused to deliver the much
more valuable cow to the purchaser. May the owner
annul the contract?
Yes, the owner may annul the contract on the ground
that he committed a substantial mistake as to the
substance of the subject matter of the contract. The
mistake is substantial enough because a barren cow is a
substantially different cow than a breeding one. The law
is clear: Even though there may have been no damage to
the party seeking the annulment, a contract may be
annulled where the consent is vitiated by mistake. (Art.
1390, Civil Code)
QUESTION NO. 113
X died intestate. He is survived by: (1) A, B, D and E,
his legitimate children; (2) F and G, legitimate
children of C (predeceased), a legitimate son of X;
(3) H and I, legitimate children of D; and (4) J and K,
legitimate children of E. D is incapacitated; while E
repudiated the inheritance. If the net value of the
estate is P/120,000, how shall the distribution be
made?
There are three vacant shares. The share which C would
have inherited if he had not predeceased X. The share
which D would have inherited if he had the capacity to
inherit from X. The share which E would have inherited
if he had not repudiated it.
The share of C in the estate goes to his legitimate
children, F and G, by right of representation. The share
of D in the estate goes to his legitimate children, H and I,
by right of representation. The share of E who
repudiated the inheritance goes to his co-heirs, A and B,
by accretion. This is so because an heir who repudiates
cannot be represented. Therefore, the final distribution
of X’s estate shall be as follows:
A 24,000 own right
12,000 accretion
B 24,000 own right
12,000 accretion
F 12,000 own right
G 12,000 own right
H 12,000 own right
I 12,000 own right
________
120,000
QUESTION NO. 114
Abe and Bea, Filipinos, got married and begot two
children. Abe later worked in Rome where he
acquired Italian citizenship. He got a divorce from
Bea in Rome but, on returning to the Philippines, he
realized his mistake, asked forgiveness of his wife,
and resumed living with her. They had two more
children. What is the status of the four children?
The first two children who were born before the
divorce are legitimate children, but the last two children
who were born after the divorce are illegitimate
children since Abe got the divorce when he had ceased
to be a Filipino. (Art. 15, Civil Code)
QUESTION NO. 115
Homeowner employed Broker to sell his house.
Broker sold the house to his wife for Php1 million.
Some months later, Broker sold the house to a third
person for Php2 million. Homeowner sues Broker
for the Php1 million profit. Judgment for whom?
Judgment for Homeowner. It is a breach of an agent’s
fiduciary duty to retain secretly benefits or profits that,
by right, belong to the principal. Under the law, every
agent is bound to render an account of his transactions
and to deliver to the principal whatever he may have
received by virtue of the agency, even though it may not
be owing to the principal. (par. 1, Art. 1891, Civil Code)

QUESTION NO. 116
Agnetha wishes to purchase a parcel of land owned
by Tropical Gardens. She learns that Tropical
Gardens is a partnership owned by Abe, Ben, and
Chito. She also learns that the partnership needs
capital and that the need for capital is the major
reason the partners are selling their property.
Because Tropical Gardens is a partnership, Agnetha
has the following concerns. You are now called upon
to advise Agnetha of her concerns.
a. Can the partnership convey the land in the name
of the partnership?
Yes, because a partnership has a juridical personality
separate and distinct from that of each of the partners.
This is true even if the formalities under Article 772 of
the Civil Code which requires that the articles of
partnership which must be in a public instrument is not
recorded in the Office of the Securities and Exchange
Commission. (Art. 1768, Civil Code) Besides, any
immovable property or interest in immovable property
belonging to the partnership shall be conveyed only in
the partnership name. (Art. 1774, Civil Code)
b. If there is a breach of contract, against whom
must Agnetha file a lawsuit?
If there is a breach of contract arising from the sale of
the property, Agnetha must maintain the lawsuit
against the partnership, not against the individual
partners. This is because a partnership has a juridical
personality of its own separate and distinct from that of
each of the partners. (Art. 1768, Civil Code)
c. If Agnetha obtains judgment against Tropical
Gardens, against whom can she execute it?
Partnership liability is first paid out of partnership
assets when a judgment is rendered against the firm
name. In a general partnership, the personal assets of
the individual members are subject to liability if the
partnership’s assets are inadequate. Even in limited
partnerships, at least one of the partners – the general
partner – subjects his personal assets to liability for the
partnership’s obligations.
QUESTION NO. 117
S contracts to sell his house and lot to B for Php3
million. The terms of the contract call for B to pay
10 percent of the purchase price as deposit or down
payment. B pays the deposit, but because his
expected financing of the balance falls through, he
breaches the contract. Two weeks later S sells the
house and lot to another buyer for Php3.2 million. B
demands his deposit back, but S refuses, claiming
that B’s breach entitles him to keep the deposit.
Decide who is correct.
B is correct because the deposit is in the nature of
earnest money. Under Article 1482 of the Civil Code,
whenever earnest money is given in a contract of sale, it
shall be considered as part of the purchase price and as
proof of the perfection of the contract. By its very
nature, an earnest money is an advance payment which
must be deducted from the purchase price. Hence, the
parties could not have intended that the earnest money
or advance payment would be forfeited when the buyer
should fail to pay the balance of the price, especially in
the absence of a clear and express agreement thereon.
Moreover, to allow the forfeiture of the earnest money
or advance payment in favor of the seller would amount
to unjust enrichment of the seller at the expense of the
buyer. (Goldenrod, Inc. v. CA, 299 SCRA 141 [1998])
QUESTION NO. 118
Under which of the following breach of contract
situations would specific performance be an
appropriate remedy?
a. Abe offers to sell his house and lot to Rey. Then,
upon finding another buyer willing to pay a
higher purchase price, he revokes his offer .
b. Amy contracts to sing in Abe’s videoke bar for
one month, beginning May 1. She then refuses to
perform.
c. Abe contracts to purchase a rare coin owned by
Rey, as Rey is breaking up his coin collection.
Abe gives Rey Php1,000 for the privilege of
deciding whether to buy the rare coin. At the last
minute Rey decides to keep his coin collection
intact and refuses to deliver the coin to Abe.
d. Abe contracts to sell to Rey 100 cavans of
dinorado rice that Abe intends to harvest from
his farm. Because the price of rice rises
dramatically, Abe refuses to go on with his
promise.
The remedy of specific performance would most likely
be appropriate in (c). If the offerer has allowed the
offeree a certain period to accept, the offer may be
withdrawn at any time before acceptance by
communicating such withdrawal, except when the
option is founded upon a consideration as something
paid or promised. (Art. 1324, Civil Code) In this case, Abe
gave Rey Php1,000 for the option of buying or not the
rare coin. Being so, the option is valid and cannot be
withdrawn by Rey.
An action for specific performance in (a) would most
likely be dismissed by the court. This is so because Abe
can withdraw his offer to Rey at anytime before Rey’s
acceptance; the option given to Rey is not founded upon
a consideration as something paid or promised. (Art.
1324, Civil Code)
The remedy of specific performance is inappropriate in
(b) which involves a personal obligation. To compel
Amy to comply with her contractual obligation would
amount to involuntary servitude.
The obligation in (d) involves the delivery of a generic
thing. When what is to be delivered is indeterminate or
generic, the creditor may ask that the obligation be
complied with by another person at the expense of the
debtor. (Art. 1165, Civil Code)
QUESTION NO. 119
Abe, who is eight months short of his eighteenth
birthday, buys a car from Delta Motors. Five months
later, Abe drives the car to Delta Motors to make the
fifth monthly payment and tells Delta Motors, “I love
this car.” Sixty days and two payments later, Abe
drives the car to Delta Motors and says, “I’m tired of
this junk. Take it and give me my money back.” Is
Abe too late to get his money back?
No. Contracts entered into by a minor are voidable at
the option of that minor, and the minor has four years
from the time the guardianship ceases to annul the
contract. (Art. 1391, Civil Code) Abe’s declaration that
he loves the car after five months of the sale does not
constitute ratification that would have cured the defect
in the contract. Besides, he was still a minor at the time
when he made such declaration.
QUESTION NO. 120
Abe purchased a female pedigreed miniature
poodle dog from a pet shop. Unknown to either
party, the dog was pregnant. When the litter was
born, both Abe and the pet shop claimed the right of
ownership. Who is correct?
Abe is correct. Under the law, a creditor has a right to
the fruits of the thing from the time the obligation to
deliver it arises. However, he shall acquire no real right
over it until the same has been delivered to him. (Art.
1164, Civil Code) Here, the litter was born after the
poodle dog was actually delivered to Abe. Upon delivery
of the dog, Abe necessarily became its owner thereby
giving him the ownership of the litter by accession. (Art.
441, Civil Code)
QUESTION NO. 121
Isabella is the daughter of Carlos, a widower. Over
the objections of Carlos, Isabella adopted a 5-year
old girl named Barbara who grew up into a fine
woman and trained to be a nurse. When Carlos fell
ill, he was admitted to the hospital where Barbara
took care of him. They fell in love and got married.
What is the status of their marriage?
Their marriage is valid because Barbara and Carlos are
not at all related to each other, either by blood or by
affinity or by fiction of law. The fact that Barbara is the
adopted child of Isabella does not make Barbara a direct
descendant of Carlos, adoption being personal between
Isabella, the adopting parent, and Barbara, the adopted
child.
QUESTION NO. 122
Which of the following contract situations need not
comply with the Statute of Frauds?
a. Debtor is indebted to Creditor. Friend orally
agrees to pay Creditor if Debtor defaults in his
loan obligation.
b. Grandfather orally promises to give Grandson, a
first year law student, a particular car upon
Grandson’s graduation from law school.
c. Lessee orally assigns his leasehold rights to
Assignee for the remaining six years of a 10-year
lease term.
d. An oral sale of a car whereby Buyer takes
delivery of the car with a promise to pay the car
after 15 months from delivery.
The contract situation in (d) need not comply with the
Statute of Frauds because the statute applies only to
executory contracts, not to partially executed contracts.
The delivery of the car to the buyer takes the contract
out of the ambit of the Statute of Frauds.
The Statute of Frauds governs the contract situation in
(a) because the promise of Friend to pay “if Debtor
defaults in his loan obligation” constitutes a special
promise to pay Debtor’s loan, a promise which is
subsidiary or collateral, like guaranty.
Grandfather’s promise to Grandson, as in the contract
situation in (b), is a promise that by its terms is not to
be performed within a year from the making thereof. In
other words, Grandfather’s performance (giving of car)
is to be made after one year from the making of the
contract. This is so because Grandfather’s promise was
made when Grandson was still a first year law student
who is expected to graduate from law school after more
than one year.
The Statute of Frauds requires that lease of real
property for a period longer than one year be in writing
to be enforceable. Therefore, the contract situation in
(c) is governed by the Statute of Frauds.
QUESTION NO. 123
Arnel sold his land to Bert who began to possess it.
Conrad, a stranger, sold the same land,
unauthorized by anyone, and in his own name, to
Dondon, who registered the sale in good faith. Who
owns the land, Bert or Dondon?
Bert should be considered as the owner even if he did
not register the land. This is so because Dondon, who
registered the sale, did not buy the land from its lawful
owner, but from a complete stranger totally
unconnected with the land. Article 1544 of the Civil
Code cannot therefore apply, because it cannot be said
that the land had been sold twice by the same person.
(Art. 1544, Civil Code)
QUESTION NO. 124
Seller sells to Buyer a parcel of land under a
notarized deed of sale. On the same day and along
with the execution of the deed of sale, the parties
execute a separate instrument, denominated as
“Right of Repurchase” granting Seller the right to
repurchase the lot within four years. Within four
years, Seller offers to redeem but Buyer refuses.
Who is correct?
Buyer is correct. The right of repurchase is not a right
granted the vendor by the vendee in a subsequent
instrument, but a right reserved by the vendor in the
same instrument of sale as one of the stipulations of the
contract. Once the instrument of absolute sale is
executed, the vendor can no longer reserve the right to
repurchase, but some other right like an option to buy.
(Vasquez v. Court of Appeals, 198 SCRA 102 [1991])
QUESTION NO. 125
Abe and Ben are childhood friends. Because of their
friendship, Abe gave to Ben in usufruct a parcel of
land to last up to the time their high school teacher,
Mrs. Aguada, reaches the age of 70. Mrs. Aguada
died at the age of 65. Is the usufruct extinguished?
No. Under Article 606 of the Civil Code, a usufruct
granted for a time that may elapse before a third person
attains a certain age shall subsist for the number of
years specified even if the third person should die
before the period expires, unless such usufruct has been
granted only in consideration of the existence of such
person. If the document constituting Bernard as a
usufructuary does not state that it will end the moment
Mrs. Aguada is dead, then it will continue.
QUESTION NO. 126
Buyer buys on instalment a residential subdivision
lot. After the 5th year, he is unable to make further
payments. Can Developer unilaterally cancel the
sale? Is Buyer entitled to any refund?
Yes. The Developer need not even go to court to obtain
cancellation of the sale, provided that the actual
cancellation takes place after 30 days from receipt by
Buyer of the notice of cancellation or demand for
rescission of the sale by a notarial act and upon full
payment of the cash surrender value to Buyer. (Sec. 3,
R.A. No 6552) Buyer is entitled to a cash surrender
value which is 50% of the total payments made by him.
QUESTION NO. 127
Seller contracts to sell to Buyer a parcel of land.
They agree that Buyer shall pay the purchase price
on October 25, and that in case of Buyer’s failure to
pay, the contract shall be automatically rescinded. If
Buyer does not pay on October 25, can he still pay
on October 29?
Yes, provided no judicial or notarial demand for
rescission of the contract as of October 29 has been
made by Seller to Buyer. Under Article 1592 of the Civil
Code, in the sale of an immovable property, even though
it may have been stipulated that upon failure to pay the
price at the time agreed upon the rescission of the
contract shall of right take place, the vendee may still
pay even after expiration of the period, as long as no
demand for rescission of the contract has been made
upon him either judicially or by a notarial act.
QUESTION NO. 128
In a letter, Seller offers to Buyer the sale of a parcel
of land. Buyer sends a reply. Which of the following
statements in Buyer’s reply will NOT result in a
contract?
a. “I accept your offer to sell the land. I wish I could
have gotten a better price.”
 
b. “I accept your offer to sell the land, but can you
shave the price?”
c. “I accept your offer to sell the land, but only if I
can pay on 90 days credit.”
d. “I accept your offer to sell the land, provided that
you are the owner.”
The reply in (c) will not result in a contract. Acceptance
is a voluntary act by the offeree that shows agreement
to the offer. The acceptance must be unequivocal and
communicated to the offeror. The acceptance in (c) is
not an unequivocal acceptance because of the condition
to pay on credit; such a condition operates as a counter-
offer.
An acceptance may be unequivocal even though the
offeree expresses dissatisfaction with the offer, as in the
case of the replies in (a) and (b).
The condition imposed by Buyer in his reply in (d) that
the offeror owns the property is implied in every sale of
land, so the condition does not add any new or different
terms to the offer.
QUESTION NO. 129
Batman, Superman and Iron Man are co-owners of a
parcel of land. They later sold the land to Flash
Gordon with a right to repurchase. Only Batman
exercised the right of repurchase for which he
obtained a title to the property. Is the co-ownership
terminated by Batman’s repurchase of the
property?
No. The repurchase of the land by Batman did not
terminate the co-ownership nor did it give him the title
to the entire land. Superman and Iron Man remain as
co-owners with obligation to reimburse Batman their
respective shares in the repurchase price of the land.
QUESTION NO. 130
Pedro owns a car. To raise money for his business
venture, he instructs Abe to sell the car. Abe, in his
own name, sells the car to Menardo. Can Menardo
sue Pedro in case the car has hidden defects?
Yes. Although Abe acted in his own name, still the sale
involved a car belonging to Pedro, the principal. Here,
we apply the exception stated in the second paragraph
of Article 1883 of the Civil Code which provides, “In
such case the agent is the one directly bound in favor of
the person with whom he has contracted, as if the
transaction were his own, except when the contract
involves things belonging to the principal.” As a matter
of fact, the sale is completely valid.
QUESTION NO. 131
Principal appoints Agent, a minor, to sell a
particular car. Agent sells the car to Buyer.
Principal afterwards seeks to annul the sale, and
brings an action to recover the car on the ground
that Agent’s act was voidable, as a minor cannot be
an agent. Judgment for whom?
Judgment for Buyer. Agent is deemed to be an extension
of the personality of Principal who is himself
capacitated. Hence, Principal cannot annul the contract
on the ground of Agent’s incapacity.
QUESTION NO. 132
Martha died, leaving her son, Sam, as her sole heir.
Among the items inherited by Sam were some old
oil paintings that had been stored in Martha’s attic
for a number of years. Sam knew nothing about art
and had no place to put them in his house. He placed
an ad in the paper offering to sell the paintings “at a
price to be mutually agreed upon.” Riza, a buyer for
an art gallery, responded to the ad and examined
the paintings. From the signature and the style, Riza
recognized that the artist was Ben Cab, a renowned
Filipino portrait artist. Sam and Riza agreed upon a
price and executed a contract.
Which of the following facts, if true, would give Sam
the best basis for annulling the contract with Riza?
a. Sam told Riza that his mother, Martha, had
dabbled in painting when she was younger and
had undoubtedly painted them herself.
b. Sam did not know that Riza was a buyer for an
art gallery and was very familiar with the works
of renowned artists.
c. Sam told Riza that he wanted to get rid of the
paintings as soon as possible because he was
angry at his mother for giving away most of her
possessions to her friend just before she died.
d. Riza falsely told Sam that the paintings were to
be used to furnish Riza’s newly-constructed
vacation house in Baguio.
The statement in (a) would enable Sam to annul the
contract on the ground of mistake if Riza was aware
that Sam was mistaken about the identity of the artist.
Under the facts in this choice, Riza knows that Sam is
mistaken about the identity of the artist, which mistake
refers to the substance of the thing which is the object
of the contract. (Art. 1311, Civil Code)
The statement in (b) is wrong because the fact that one
of the parties to the contract has superior knowledge
about the subject matter of the contract does not by
itself justify annulment, even if the other party is
unaware of that fact. Riza’s knowledge or lack of it was
not the principal cause on which the contract was made
and was not relied on by Sam in making the sale.
The statement in (c) is wrong because the fact that Sam
was angry when he agreed to the contract is not a
ground for annulment of a contract under the law.
Regardless of Sam’s state of mind, there was a meeting
of the minds between the parties.
The statement in (d) is incorrect because Riza’s
misrepresentations to Sam as to how she will use the
paintings does not appear to go to the substance of the
thing which is the subject matter of the contract or to
have been relied on by Sam. Hence, the
misrepresentation is not significant enough to serve as
a ground for annulling the contract.
QUESTION NO. 133

Is the sudden emergency rule an absolutory cause in
negligence cases?
Yes. A person who is confronted with a sudden and
unforeseeable occurrence, because of the shortness of
time in which to react, should not be held to the same
standard of care as someone confronted with a
foreseeable occurrence.
One who suddenly finds himself in a place danger, and
is required to act without time to consider the best
means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails not to adopt
what subsequently and upon reflection may appear to
be the better method, unless the emergency in which he
finds himself is brought about by his own negligence.
(Gan vs CA, 165 SCRA 378) The rule applies, for
instance, in the following cases: 1) a child suddenly
darts into the road between parked cars; 2) a load from
a truck suddenly bounces across the highway; or 3) a
driver of a car is suddenly stricken by a period of
unconsciousness which he has no reason to anticipate
and which renders it impossible for him to control the
car he is driving.
QUESTION NO. 134
Husband and Wife were married in 1974. Their
marital union bore two children (Abe and Ben). The
birth certificates of the children identified Husband
as their father and their status as legitimate.
Husband died in 1990.
In a notarized document in 1991, Gigolo admitted
his illicit relations with Wife and acknowledged Abe
and Ben as his illegitimate children. After Gigolo’s
death in 1993 and on the strength of Gigolo’s
notarized acknowledgment, Abe and Ben brought
an action for the partition of Gigolo’s substantial
estate. Will the action prosper?
No. The attempt to establish the status of Abe and Ben,
as the illegitimate children of Gigolo would in effect
impugn their legitimate status as children of Husband
and Wife. This cannot be done because the law itself
establishes the legitimacy of children conceived or born
during the marriage of the parents. There is perhaps no
presumption of law more firmly established and
founded on sounder morality than children born in
wedlock are legitimate. (Tison v. Court of Appeals, 276
SCRA 582 [1997])
The presumption indeed becomes conclusive in the
absence of proof that there is physical impossibility of
access between the spouses during the first 120 days of
the 300 days which immediately preceded the birth of
the child due to: a) the physical incapacity of the
husband to have sexual intercourse with his wife; b) the
fact that the husband and wife are living separately in
such a way that sexual intercourse is not possible; or c)
serious illness of the husband which absolutely
prevents sexual intercourse. (Art. 166, Family Code)
Considering that Abe and Ben were born during the
marriage of their parents, they are therefore considered
the legitimate children of Husband and Wife.
QUESTION NO. 135
Ann is a working student at a local university. In
need of funds to pay for tuition and books, she
attempts to secure a short-term loan from East
Bank. The bank agrees to make a loan if Ann will
have someone financially responsible guarantee the
loan payments. Betty, a businesswoman and a
friend of Ann’s family, agrees in writing to pay the
loan if Ann cannot. Because of Betty’s reputation,
the loan is made. Ann is making the payments, but
because of illness she is not able to work for one
month. She requests that East Bank extend the loan
for three months. East Bank agrees, raising the
interest rate for the extended period. Betty is not
notified of the extension. One month later Ann
drops out of school. All attempts to collect from Ann
fail. Can East Bank collect from Betty?
No. Unlike a surety who is primarily liable, a guarantor
is merely subsidiarily liable. The guarantor can be
required to answer for the obligation only after the
principal has defaulted. (Art. 2047, Civil Code) The
creditor must also have attempted to collect from the
principal, and the latter still has not paid. (Art. 2058,
Civil Code) Under Article 2079 of the Civil Code, an
extension granted to the debtor by the creditor without
the consent of the guarantor, as in this case,
extinguishes the guaranty.
QUESTION NO. 136
Ben, Calvin, and Don form a limited partnership.
Ben is a general partner, and Calvin and Don are
limited partners. Consider each of the separate
events below, and discuss fully which will constitute
a dissolution of the partnership.
A. Calvin assigns his partnership interest to Don.
B. Don goes into bankruptcy.
C. Ben dies.
The event in (C) dissolves the limited partnership of
Ben, Calvin, and Don. This is by express provision of
Article 1860 of the Civil Code which provides that the
death, insolvency, insanity or civil interdiction of a
general partner dissolves the limited partnership,
unless the business is continued by the remaining
general partners. The partnership here consists of only
one general partner (Ben), and there being no other
remaining general partner to continue the business, the
partnership is dissolved.
The event in (A) does not dissolve a partnership
because a limited partner’s interest is assignable (Art.
1859, Civil Code)
The insolvency of the other limited partner, an event
stated in (B,) does not likewise dissolve the limited
partnership because the partnership business can still
continue despite such insolvency.
QUESTION NO. 137
Abe took his car to a carwash station and asked to
have it washed. While it is being washed, Abe went
to a nearby mall for two hours. In the meantime,
one of the workers at the car wash had mistakenly
hand-waxed the car. When Abe came back, he was
presented with a bill for a wash job and a hand wax.
Is Abe liable to pay for the hand wax job?
No. The doctrine of quasi-contract does not apply when
there is a contract between the parties. Although there
was a benefit bestowed to Abe, Abe did not receive an
unjust benefit because the hand wax job was not
contemplated by his agreement with the owner of the
car wash station.
QUESTION NO. 138
Mao Tse Tung, a Chinese national donated in
Germany in favor of Fidel, a Filipino, a parcel of land
situated in the Philippines.
a. The law of which country governs the formalities
of the donation?

Philippine law governs the formalities of the donation.
The lex loci celebrationis does not apply because the
transaction relates to land and must therefore be
governed by the law of the place where the land is
situated.
b. The law of which country governs the capacity of
the Chinese to make the donation?
Philippine law, the situs of the property, governs the
capacity of the Chinese to alienate. Here, the doctrine of
national law under Article 15 of the Civil Code yields
because the subject matter is land.
QUESTION NO. 139
Dingdong was coerced into marrying Marian.
Dingdong sued for annulment. During the pendency
of the case, Dingdong married Karylle. When
Karylle learned of the first marriage, Karylle sued
Dingdong for bigamy. Dingdong now alleges that the
pendency of the annulment case is a prejudicial
question. Is Dingdong correct?
Dingdong is wrong because the decision in the
annulment case is not important. The first marriage
will either be annulled or not. If not annulled, bigamy
can prosper. And if annulled, still bigamy can prosper,
for when Dingdong married the second time, he was
still married to his first wife, Marian, a voidable
marriage being considered valid until annulled.
QUESTION NO. 140
Dingdong, a married man, was forced by Marian to
contract marriage with her. Dingdong then sued for
annulment of the second marriage. Marian
retaliated with a charge of bigamy. In the bigamy
case, Dingdong moved to suspend the criminal
proceedings until after the termination of the
annulment case on the ground that the annulment
case is a prejudicial question. Should the motion be
granted?
Yes, because the annulment case poses a prejudicial
question. If Dingdong was really forced into marrying
Marian, then his consent was defective; hence, the
second marriage is to be annulled on that ground. He
cannot therefore be guilty of bigamy.
QUESTION NO. 141
If a marriage is dissolved because of the death of the
husband, what surname may the widow use?
Although the death of the husband dissolves the
marriage ties, still the widow may desire to cherish her
deceased husband’s memory by the continued use of his
surname. However, if she does not want to, she is
allowed to use her maiden surname again. Notice the
use of the word “may” in Article 373 of the Civil Code.
QUESTION NO. 142
If a marriage is annulled, is the wife required to
resume her maiden name and surname?
It depends. If WIFE IS THE GUILTY SPOUSE, she SHALL
resume her maiden name and surname. But if WIFE IS
THE INNOCENT SPOUSE, she MAY resume her maiden
name and surname, but she may choose to continue
employing her former husband’s surname, unless (1)
the court decrees otherwise; or (2) she or the former
husband is married again to another person. (Art. 371,
Civil Code)
QUESTION NO. 143
What if legal separation occurs, is the wife entitled
to continue using the husband’s surname even if she
is the guilty spouse?
Article 372 of the Civil Code does not distinguish
whether the wife is the guilty spouse or not, unlike in
the case of annulment of marriage under Article 371,
because in legal separation the marriage ties still
subsist.
QUESTION NO. 144
Brian, an American, and Juana, a Filipina, cohabited
as husband and wife ten years ago without
marriage. During their cohabitation, the couple
bought a parcel of land in Baguio City. Although the
deed of sale was placed in the names of the couple
as buyers, the sale was registered in the name of
Juana alone because of Brian’s American
citizenship. It is sufficiently established, however,
that the funds used to buy the property came solely
from Brian, as Juana has no sufficient source of
income.
 
After their relationship turned sour and they went
separate ways, Brian sold all his rights and
interests in the property to Caloy, a Filipino. When
Caloy tried to register the property in his name, he
discovered that the certificate of title of the
property is registered in the name of Juana, and that
it had already been mortgaged.
a. If Brian is the true buyer of the property, what is
the effect of the registration of the property in
the name of Juana?
The registration of the property in the name of Juana
does not make her the owner of the property in
question. It is settled that registration is not a mode of
acquiring ownership. Certificates of title are not a
source of right. The mere possession of a certificate of
title does not make the holder the true owner of the
property. The mere fact that Juana has the title of the
disputed property in her name does not necessarily,
conclusively, and absolutely make her the owner.
b. Given that Brian is disqualified to own real
properties in the Philippines, what is the legal
status of the sale of the property by Brian to
Caloy?
Because aliens are disqualified to own real properties in
the Philippines, the sale of the property to Brian, who is
an American, would have been declared invalid if
challenged, had not Brian conveyed the property to
Caloy who is a Filipino citizen. According to
jurisprudence, if the land is invalidly transferred to an
alien who subsequently becomes a Filipino citizen (or
transfers it to a Filipino), the flaw in the original
transaction is considered cured and the title of the
transferee is rendered valid. (Borromeo v. Descallar, G.R.
No. 159310, February 24, 2009)
QUESTION NO. 145
Buyer, a minor, purchased a used car for
Php250,000 from a used car dealer. The minor used
the car for three months and then damaged it in an
accident. The car is now worth Php100,000. Buyer
takes the car back to the dealer and demands the
return of the purchase price. Dealer refused.
Judgment for whom?
Judgment for the minor. A contract may be invalidated
when one of the parties to the contract does not have
the legal capacity to give consent to the contract. A
minor is certainly one who lacks legal capacity. (Art.
1390, Civil Code)
QUESTION NO. 146
Baguio Country Club made public an offer to pay
Php500,000 to any person who, having paid
Php2,000 for the opportunity of attempting to do so,
shot a hole in one on its golf course pursuant to
certain conditions. Abe complied with the
conditions, including the payment of the money, and
shot a hole in one. Baguio Country Cluf refuses to
pay contending the contract was a wagering
contract. Abe claims the shooting of the hole in one
was a feat of skill and not a feat of chance. Who
prevails?
Abe prevails. Gambling is essentially a “chance for a
prize for a price.” Gambling is illegal regardless of the
name attached to it. But if the result of a game does not
depend entirely on chance and may also depend upon
the skill of a person, such game is not a game of chance
as to make it a gambling game.
QUESTION NO. 147
Pedro wished to delay action by a government Bids
and Awards Committee for the execution of a public
works project in which he was interested. He made
a contract with Abe to pay the latter Php100,000 if
Abe could get the members of the bid committee to
postpone to a later date the committee’s scheduled
bidding. Abe gave a majority of the members of the
bid committee and their wives a round trip ticket to
Hongkong, at which time Abe gave each of the wives
shopping money and convinced the wives to talk to
their husbands regarding a postponement of the
scheduled bidding. Subsequently, the bid committee
postponed the bidding. Pedro refuses to pay.
Decision?
Decision for Pedro. Pedro’s commitment to pay Abe
Php100,000 for the latter to influence the
postponement of the scheduled bidding of a
government agency to execute a public works project
tends to be against public interest. Such agreement is
unquestionably void and cannot be enforced, especially
so because both parties are in pari delicto.
QUESTION NO. 148
F and M are the parents of S. Upon the death of M, S
immediately brings an action against his father for
the partition of his mother’s estate. F counterclaims
for reconveyance of a parcel of land which is
registered in the name of S. F claims that the lot is
owned by the conjugal regime but was registered in
the name of S as a trustee because at that time, S
was at the time the only Filipino citizen in the
family. F caused the annotation of a notice lis
pendens on his son’s certificate of title. S objects on
the ground that the notice lis pendens amounts to a
collateral attack on his title obtained more than 20
years ago. He argues that his sole ownership of the
property would be improperly assailed in the
partition case and that it should be done through a
separate action. Should the notice lis pendens be
cancelled?
No. The annotation of a notice lis pendens does not in
any way amount to a collateral attack on the certificate
of title of a parcel of land. What cannot be collaterally
attacked is the certificate of title and not the title. The
certificate referred to is that document issued by the
Register of Deeds known as the Transfer Certificate of
Title. By title, the law refers to ownership which is
represented by the document.
S apparently confuses certificate of title with title.
Placing a parcel of land under the mantle of the Torrens
system does not mean that ownership thereof can no
longer be disputed. Ownership is one thing, registration
is another. (Lee Tek Sheng v. CA, 292, SCRA 554 [1998])
QUESTION NO. 149
Manuel (judicially) adopts Minerva in Baguio. They
go to Paris and there get married. Assuming the
marriage to be valid under French law, is it also
valid here?
No. Even if the marriage is valid in Paris, where it is
celebrated, it is void here because it is “void from the
beginning for reasons of public policy” it being a
marriage between the adopting parent and the adopted
child. (Art. 35 (4), Family Code)
QUESTION NO. 150
Abe was engaged and intended to get married as
soon as he completed his college education. Abe’s
parents did not approve of the marriage and offered
him a one-half interest in the family business if he
would give up his plans for marriage. Abe agreed,
but after he finished college his parents refused to
give him the share of the business that they had
promised. May Abe enforce the promise made by his
parents?
No. Promises not to marry in return for some benefit is
void because it is contrary to public policy. The law has
always regarded marriage as a sacred institution (Art. 1,
Family Code) and a the right and privilege of all persons,
not to be denied by private contract with other persons.
QUESTION NO. 151
After searching for months, a young married couple
found a house which fitted their needs perfectly.
The location, size, price, sale terms, proximity to
church, school, and malls were all they had been
looking for. After thorough discussion with the
owner, they agreed to buy the house and sealed
their agreement with the owner with a handshake.
Is there a contract?
Yes, because all the essential elements of a contract of
sale are present; namely, consent of the parties, a
determinate object, and a price certain in money or its
equivalent. However, if the owner of the house later
refuses to perform, the sale could not be enforced by
court action because it was made orally. This is because
of the statutory requirement that all contracts for the
transfer of any interest in real property must be in
writing to be enforceable. (Art. 1403, par. 2(e), Civil
Code)
QUESTION NO. 152
An applicant in a land registration case failed to
mark in evidence the original tracing cloth plan of
the land applied for. Instead, he presented a blue
print copy of the plan as evidence. Is this sufficient?
Yes. It is true that the best evidence to identify a parcel
of land for registration is the original cloth plan, yet the
blue print copy of the plan suffices for the purpose
where the original tracing cloth plan was attached to
the application for registration. (Republic v. IAC, 144
SCRA 705) Moreover, even the true certified copy of the
white paper plan would suffice if it bears the approval
of the Land Registration Authority and verified by the
Bureau of Lands. The fact therefore that the original
survey plan was recorded on white paper instead of a
tracing cloth plan should not detract from the probative
value thereof. (Dir. of Lands v. CA, 158 SCRA 586 [1988])
QUESTION NO. 153

A fire broke out on the fifth floor of the Venus
Parkview Hotel. Although the fire was confined to
that floor, several guests on the other floors
reported losses to their property due to fire and
water. The hotel was able to prove that the fire had
started from a cigarette dropped on a bed by one of
the guests. Such careless smoking violated a Baguio
City ordinance and a rule of the hotel. Is the
hotelkeeper liable?
No. The loss of property due to accidental fire, in which
no negligence may be attributed to the hotelkeeper is an
exception to the hotelkeeper’s liability as a depositary
of valuables of hotel guests. This is in keeping with the
rule that no person may be held liable for those events
which could not be foreseen, or, even though foreseen,
were inevitable. (Art. 1174, Civil Code) Here, the
hotelkeeper would not be responsible for the losses
caused by the fire because it has not breached its duty
of care.
QUESTION NO. 154
Abe was anxious to sell his house located on
Rainbow Hills Subdivision. He made a luncheon
appointment with a real estate broker and at that
time requested the broker to sell the house,
agreeing on specific details of price and
commission. Since they were friends of long
standing, the two men did not discuss the necessity
of a written agreement and sealed their agreement
with a handshake. If the broker secured a buyer,
would Abe be obligated to sell the house and pay the
broker his commission?
No. An agency may be oral, unless the law requires a
specific form. However, when a piece of land or any
interest therein is through an agent, the authority of the
latter shall be in writing. (Art. 1874, Civil Code) Here,
any attempt of the broker to hold Abe to his agreement
will not succeed since the broker’s authority was not in
writing and therefore void.
QUESTION NO. 155
In each of the following cases, name the party on
whom the loss due to damage to, or destruction of,
the goods falls, and give the reasons for your
answer.
a. Abe purchased a used car. The seller was to put a
mechanic on it and make several mechanical
adjustments. After the adjustments had been
made, and while the seller was testing the car
before delivery, the car was badly damaged in a
collision.
The seller bears the loss of the car pursuant to the res
perit domino rule -- the thing perishes with the owner.
Under the law, the goods remain at the seller’s risk until
the ownership therein is transferred to the buyer (Art.
1504, Civil Code), either by actual or constructive
delivery thereof. (Art. 1477, Civil Code)
The extinguishment of the obligation to deliver affects
both vendor and vendee since their obligations are
reciprocal. If the obligation of the vendor to deliver is
extinguished, the correlative obligation of the vendee to
pay, which depends upon it, is also extinguished.
Besides, a contract of sale is onerous in character; the
cause, as far as the vendee is concerned, is the
acquisition of the thing which is the object thereof.
b. Abe bought a very expensive laptop, with the
understanding that he might return it within
thirty days if he found it to be unsatisfactory for
his needs. Abe found that the laptop did not suit
his needs and was preparing to return it within
the stipulated period when it was stolen.
Abe bears the loss of the laptop. When goods are sold
with right of return, the buyer becomes the owner upon
delivery, but he may revest the ownership of the thing
in the seller by returning it within the time fixed in the
contract, or if no time is fixed, within a reasonable time.
(par. 1, Art. 1502, Civil Code) Buyer may return the thing
sold to the seller event if he finds nothing wrong with
the quality of the thing. Until he returns the thing, buyer
owns the thing. And if it is lost, regardless of the cause,
buyer bears such loss.
c. Abe purchased a treadmill on ten days’ approval.
Before expiration of the ten-day period, the
treadmill was destroyed by fire of accidental
origin.
Seller bears the risk of loss of the treadmill. When goods
are sold on approval, they remain the property of the
seller until the buyer has expressed his approval or
does any other act adopting the transaction. (par. 2, Art.
1502, Civil Code) The sale thus becomes absolute if the
buyer does not signify his approval or acceptance to the
seller, but retains the goods.
d. Abe purchased at Php5.00 per kilo all the
potatoes that farmer Rey had piled in a storage
bin on his vegetable farm. Rey was able to put
the potatotes in sacks to determine the price.
Lighting struck the bin, and the resulting heat
and fire ruined the potatoes.
Seller bears the loss of the potatoes. Article 1504 of the
Civil Code is explicit: goods remain at the seller’s risk
until the ownership therein is transferred to the buyer
(Art. 1504, Civil Code), either by actual or constructive
delivery thereof. (Art. 1477, Civil Code). Parenthetically,
the seller’s obligation to deliver to Abe the same
quantity of potatotes stored at his storage bin is not
extinguished by the loss of the potatoes presently piled
at his storage bin. Genus nunquam peruit.
QUESTION NO. 156
Rey, a mechanic, performed Php5,000 worth of
repair work on Abe’s car, on a thirty-day credit
terms. Abe failed to pay the bill at the expiration of
the credit period, but returned the car to Rey two
months later for Php1,000 worth of additional
repairs. When the repairs were made, Rey refused
to deliver the car to Abe until Php6,000, the bill for
the full amount due him, was paid. Does Rey have
the right to retain possession of the car until the full
amount of the bill is paid?
Abe may demand delivery of his car upon payment of
the charges for the current repairs only. Rey’s obligation
to return the car arises from a contract of deposit (Art.
1968, Civil Code) under which Rey as depositary may
retain the car in pledge until the full payment of what
may be due him by reason of the deposit. (Art. 1994,
Civil Code) Until Rey is reimbursed of his expenses by
reason of the deposit, he may retain the car in pledge.
Accordingly, Rey’s lien does not extend to amounts
owed for previous service.
QUESTION NO. 157
Abe spent a night at a hotel, taking with him an
overnight bag. Since no rack was provided in the
room for a guest’s luggage, Abe placed his bag on
the floor. Later that night, when he came into the
room he tripped over the bag and injured himself.
Both Abe and the hotel are shown to have been
negligent in the creation of the situation that led to
Abe’s injuries. Is the hotel liable to Abe?
Abe’s contributory negligence relieves the hotel of any
liability to compensate Abe for Abe’s injury. The
hotelkeeper is not liable for compensation if the loss is
due to the acts of the guest himself, as in the case of Abe
in the problem. (Art. 2002, Civil Code)
QUESTION NO. 158
Donald, a Californian, and Ann, a poor barrio girl
from the hinterlands of La Union, are married. Two
years into their marriage, the couple purchased
from Juan a house in Baguio City. Although the sale
was solely financed by Donald, the sale document
was issued in Ann’s name as vendee as a result of
which title to the property was issued solely in
Ann’s name as owner. When the couple had a falling
out, Ann immediately sold the house to Ben without
her husband’s consent.
a. If Donald maintains an action to annul the sale,
what would be his strongest cause?
Donald has no other recourse but to anchor his suit on
the argument that the sale is void because it was made
without his consent; that in bringing the action, he is
merely exercising the prerogative of a husband in
respect to absolute community property.
b. If the case goes to trial, what would be the most
likely result?
Being an alien, Donald is prohibited from acquiring
private and public lands in the Philippines. Considering
that Ann appeared to be the designated vendee of the
property, she acquired sole ownership thereto. This is
true even if Donald’s claim that he provided the funds
for such acquisition is to be sustained. By entering into
such contract knowing that it was illegal, no implied
trust was created in Donald’s favor; no reimbursement
for his expenses can be allowed; and no declaration can
be made that the subject property was part of the
conjugal or community property.
In any event, Donald had, and has, no capacity to
question the sale of the property by his wife on the
ground that in so doing, he was merely exercising the
prerogative of a husband in respect to conjugal
property. To sustain such an argument would
countenance indirect violation of the constitutional
prohibition. If the property were to be declared
conjugal, this would accord the alien husband a
substantial interest and right over the land, as he would
then have a decisive vote as to its transfer or
disposition. This is a right that the Constitution does not
permit him to have. (Matthews v. Taylor, June 22, 2009)
QUESTION NO. 159
Abe intends to buy a new battery for his car. At an
auto parts supply store, a salesman tells Abe: “This
is the finest battery you can buy and we guarantee
that you will find it superior to any you have owned.
This battery will no doubt outlast the life of the car
itself.” Is the store liable for breach of express
warranty if the battery does not meet the
salesman’s statements?
No express warranty is created simply by the seller
expressing his personal opinion to the buyer, nor do his
statements to the buyer constitute a warranty if he is
just “talking up” the merchandise (called “puffing”),
even though the buyer may rely on such statements.
Even the use of the word “guarantee” adds little,
considering how it was used. A statement of fact must
be of the essence of the subject matter.
QUESTION NO. 160
An airline pilot bought a watch from a reputable
watch dealer. He stressed the importance of great
accuracy in any watch bought by him, and the seller
said, “In my opinion you will find this watch the
most accurate of any watch sold today. You will be
able to keep exact schedules by it.” Suppose the
watch does not meet such specifications, does the
pilot have a cause of action?
Yes. Expressions of opinion by professionals or experts
may be accepted by others as statements of fact under
certain conditions. This is especially true when the
purchaser has no knowledge of the product that he is
buying. Although the seller prefaced his remarks with
the word “opinion,” under the circumstances, his words
would represent statements of fact because of his
position.
QUESTION NO. 161
What is meant by the requirement under Section 23
of P.D. No. 1529 that publication of the notice of
initial hearing in the Official Gazette “shall be
sufficient to confer jurisdiction upon the court?”
As explained by the Supreme Court in Republic v.
Marasigan, 198 SCRA 219, the provision under Section
23 of P.D. No. 1529 was never meant to dispense with
the requirement of notice by mailing and posting. What
it simply means is that insofar as publication is
concerned, there is sufficient compliance if the notice is
published in the Official Gazette. Although the law
mandates that it be published once in the Official
Gazette and once in a newspaper of general circulation
in the Philippines, publication in the latter alone would
not suffice. This is to accord primacy to the official
publication in the Official Gazette. According to the
Supreme Court, such provision was never meant to
dispense with the other modes of giving notice, which
remains mandatory and jurisdictional.
If the intention of the law were otherwise, Section 23
would not have stressed in detail the requirements of
mailing of notice to all persons named in the petition
who per Section 15 of the Decree, include owners of
adjoining properties and occupants of the land.
(NOTE: In Director of Lands v. Court of Appeals, 276
SCRA 276 [1997], the Supreme Court categorically
declared that publication of the notice of initial hearing
in a newspaper of general circulation is mandatory and
imperative. Absent such publication, the land
registration court cannot validly confirm the title of the
applicant for registration.)
QUESTION NO. 162
Henry and Wilma are the conjugal owners of a ten-
hectare farm. Upon the death of Henry, Wilma
immediately sold to Ben a 2,000-square meter
portion of the farm. The children of Henry and
Wilma later brought an action to annul the sale on
the ground that it was made without prior
liquidation of the conjugal partnership of their
parents. Will the action prosper?
No. Article 130 of the Family Code expressly provides
that if no liquidation of the conjugal partnership is made
within six months from the death of a spouse, any
disposition or encumbrance involving conjugal
partnership property of the terminated marriage shall
be void. This provision must be read with Article 493 of
the Civil Code which allows a co-owner to alienate,
assign, or mortgage his undivided share in the co-
owned property. However, the effect of such alienation
or mortgage is limited only to the portion which may be
allotted to the co-owner upon the termination of the co-
ownership. The recourse of co-owners in cases where
their consent were not secured in a sale of the entire
property, as well as in the sale merely of the undivided
shares of some of the co-owners, is an action for
partition under Rule 69 of the Rules of court. (Heirs of
Go v. Go, G.R. No. 157537, Sept. 7, 2011)
QUESTION NO. 163
Anna, a Filipina nurse, married Brent, an American
engineer, in Baguio City. A few days after the
wedding, they immediately left for California to
reside there permanently. Anna then became a
naturalized American citizen. Five years later, Anna
and Brent came to the Philippines for a short
vacation. When the couple visited Anna’s
hometown, they decided to adopt Anna’s younger
brother to give him a better future. Are Anna and
Brent qualified to adopt Anna’s younger brother?
No. Under the Domestic Adoption Act, an alien is
qualified to adopt a Filipino child only if a) he is a
former Filipino citizen who seeks to adopt a relative
within the fourth civil degree of consanguinity; b) he
seeks to adopt the legitimate or illegitimate child of his
Filipino spouse; and c) he is married to a Filipino citizen
and seeks to adopt jointly with his spouse a relative
within the fourth civil degree of consanguinity or
affinity of the Filipino spouse.
Here, Anna and Brent are aliens seeking to adopt a
Filipino child. Being a former Filipino citizen, Anna is
qualified to adopt because the child to be adopted is her
relative within the fourth degree of consanguinity.
While Anna is qualified, Brent is not because he does
not fall under one of the exceptions. Firstly, he is not a
former Filipino citizen who seeks to adopt a relative
within the fourth civil degree of consanguinity.
secondly, he is not seeking to adopt the legitimate or
illegitimate child of Anna; and thirdly, he is not married
to a Filipino citizen who seeks to adopt jointly with his
spouse a relative of the latter within the fourth civil
degree of consanguinity or affinity.
And even if Anna is qualified to adopt her brother, she
cannot file the petition for adoption by herself. The
Domestic Adoption Act specifically provides that the
husband and wife shall jointly adopt, except if one
spouse seeks to adopt the legitimate child of the other;
or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally separated
from each other.
Here, Anna cannot file the petition for adoption by
herself because the child to be adopted is not the
legitimate child of Brent, nor is the child the illegitimate
child of Anna. Moreover, Anna and Brent are not legally
separated.
QUESTION NO. 164
Abe is a sales representative of a drug company who
looks exactly like Vic Sotto. In one of his provincial
sorties, Abe met Tessie, a winsome lass from an
affluent family. To win Tessie’s affection, Abe acted
and pretended to be Vic Sotto. After a brief
courtship, Tessie fell in love with Abe. In less than a
year, Tessie realized her mistake when she
discovered that Abe is not Vic Sotto. Does Tessie
have a remedy?
Tessie does not have any remedy. She cannot seek to
declare the marriage void on the ground of mistaken
identity of the other party, Here, she married Abe who
was the very person she fell in love with. Neither can
she sue for annulment of marriage on the ground of
fraud. To annul a marriage, only the circumstances
enumerated under Article 46 of the Family Code
constitute fraud. No other misrepresentation or deceit
as to character, rank, fortune or chastity shall
constitute such fraud as will give grounds for the
annulment of marriage.
QUESTION NO. 165
Determine which of the following statements is
correct. Explain your answer.
a. When a right to sue upon a civil obligation has
lapsed by extinctive prescription, the obligor
who voluntarily performs the obligation can
recover what he has delivered or the value of the
services he has rendered.
b. Natural obligations grant a right of action to
enforce their performance, and after voluntary
fulfillment by the obligor, they authorize the
retention of what has been delivered or
rendered by reason thereof.
c. When a testate or intestate heir voluntarily pays
a debt of the decedent exceeding the value of the
property, which he received by will or by the
law of intestacy from the estate of the decedent,
the payment is valid and cannot be rescinded by
the payor-heir.
The statement in (c) is correct because an heir who pays
the debt of a decedent in excess of his inheritance is
estopped from rescinding the payment. His only
recourse is to recover the excess from the decedent’s
estate.
The statement in (a) is wrong because a debtor’s
voluntary payment of the debt despite his knowledge
that the debt had already prescribed does not entitle
him to recover. His payment constitutes a natural
obligation under Article 1423 of the Civil Code.
The statement in (b) is wrong because a natural
obligation - unlike a civil obligation which is based on
positive law - derives its binding force from equity and
justice, and does not grant a right of action to enforce its
performance; but after voluntary fulfillment by the
obligor, it authorizes the retention of what has been
delivered or rendered by reason thereof.
QUESTION NO. 166
With prior court approval, Greg, the guardian of
Willy, a minor, sells the 2010 Mitsubishi Montero
which was inherited by Willy from his deceased
parents for Php500,00 although the vehicle was
worth PhpPhp1 million at the time of the sale. What
is the legal standing of the sale?
The sale is valid despite the fact that Willy suffered
lesion by more than one fourth of the value of the
vehicle This is because the sale was made with prior
court approval. Had the sale been made without court
approval, the sale would have been a complete nullity
and even unenforceable against Willy.
.
QUESTION NO. 167
Abe, a law graduate, never intended to marry his
pregnant girlfriend, Ana. Fearing that Ana would file
an administrative complaint against him with the
Bar Confidant if he does not marry her, Abe
reluctantly married Ana. To allow him a way out of
the marriage, Ahe submitted to the solemnizing
officer a fake marriage license. Abe left Ana after
passing the bar.
Knowing that his marriage to Ana was void, he
married Bea. When Bea learned of Abe’s prior
marriage, she promptly filed an action to declare
her marriage void for non-compliance with Article
40 of the Family Code requiring a prior court
declaration of nullity.
What regime of property relations will govern the
cohabitation of Abe and Ana and of Abe and Bea?
The marriage of Abe and Ana is void for lack of a valid
marriage license. The same is true with respect to the
marriage of Ana and Bea for lack of a judicial decree
declaring the first marriage a nullity.
Given that the two marriages are void, the applicable
property regimes would be governed by Articles 147
and 148 of the Family Code.
As to the property regime of Abe and Ana, Article 147
governs. Article 147 creates a co-ownership between a
man and a woman who are capacitated to marry each
other but live exclusively as husband and wife without
the benefit of marriage and between a man and a
woman who live together under a void marriage where
the parties do not have an existing marriage with other
persons.
Considering that the marriage of Abe and Bea is a
bigamous marriage, having been solemnized during the
subsistence of a previous marriage then presumed to be
valid, Article 148 governs. This provision creates a
limited co-ownership (depending on the wages and
salaries earned by the parties and their actual
contributions in the acquisition of properties) between
a man and a woman who cohabit under a bigamous
marriage; between a man and a woman who are
engaged in an adulterous relationship; between a man
and a woman who cohabit in a state of concubinage,
between a man and a woman who are married to other
persons, and in case of multiple dalliances of the same
man with different women.
QUESTION NO. 168
Abe and Bea, a childless couple, brought Christian,
the infant son of their driver who died in an
accident, into their home. The couple took care of
Christian, doted on him, reared him, and treated
him as their own son. When Christian went to
Manila to study, Abe and Bea became so lonely that
they judicially adopted Digna, a 10-year old orphan.
After several years, Christian and Digna fell in love,
and, when both were over 25, they got married
without informing Abe and Bea. Believing that it
was unfair not to have legally adopted Christian,
Abe and Bea decided to legally adopt him. The court
granted the adoption.
a. Is Christian’s adoption valid?
Yes. Even assuming that Christian was already of legal
age when Abe and Bea adopted him, the decree of
adoption is still valid because a person of age can be
adopted if he had been consistently considered and
treated by the adopter as his or her own child during
minority.
b. What is the legal standing of Christian’s
marriage to Digna?
Christian’s marriage to Digna is valid. Article 38 (8) of
the Family Code expressly declares by reason of public
policy that a marriage between adopted children of the
same adopter is void. This prohibition does not apply
here because at the time of their marriage, Christian
was not yet the legally adopted child of Abe and Bea.
QUESTION NO. 169
Abe and Ana travelled to Boracay with their friends
and co-employees on a company outing. While
swimming, Abe shouted for help. Because Abe
appeared to be frantic and drowning, the life guard
on duty swam to where Abe was and rescued Abe. At
the beach, Abe begged Ana to marry him, declaring
his undying love for her. Believing that Abe was at
the point of death, Bea consented, and they were
married instantly by a priest who was nearby.
After the ceremony, Abe bounced back to life as if
nothing happened. He then confided to his friend
that he pretended to be drowning when he shouted
for help. Abe died of drowning the following day.
What is the legal standing of Abe’s marriage to Ana?
The marriage is void for lack of a valid marriage license.
A marriage in articulo mortis is exempt from a marriage
license. It is a marriage where either or both parties are
at the point of death. Abe was not at the point of death
when the marriage was performed. Consequently, the
marriage is not a marriage in articulo mortis which
would have excused Abe and Ana from securing a
marriage license. That Abe died of drowning the
following day does not detract from the fact that at the
time of the marriage, Abe was not at the point of death.
QUESTION NO. 170
Tom, a widower, who was 89 years of age and
suffering from minor ailments, including decreased
hearing and impairment of vision, made a will a
month before his death leaving an estate valued at
Php900,000. In his will, Tom disinherited his eldest
son, Abe, without stating the reason therefor. Tom
emphatically stated in his will that his two other
children, Bea and Carl, are the only heirs who are to
inherit from his estate to the exclusion of Abe. Tom
appointed his friend, Rey, as executor of his will.
How shall Rey distribute Tom’s estate?
The institution of Bea and Carl as Tom’s heirs remains
valid, but their shares are to be reduced to allow Abe to
receive his legitime. Abe is legally entitled to receive his
legitime because he was disinherited for no cause by his
father. Had there been preterition here, as when Abe
was omitted from the inheritance, Tom’s three children
would be entitled to receive Php300,000 each from the
estate. But because this is not a case of preterition but
one for ineffective disinheritance, the estate would be
distributed as follows:
Abe: 150,000 (legitime)
Bea: 150,000 (legitime)
225,000 (free portion)
Carl: 150,000 (legitime)
225,000 (free portion)
________
900,000
QUESTION NO. 171
Pedro died without a will. He is survived by his
legitimate children, Abe and Bea; by his widow,
Wendy; and by Carl, his illegitimate child. The net
value of Pedro’s estate is Php1.4 million. How shall
Pedro’s estate distributed?
Satisfy the legitimes of the heirs first. The balance must
be divided among the heirs in the proportion of 2:2:2:1.
LEGITIMES:
Abe 350,000
Bea 350,000
Wendy 350,000
Carl 175,000
________
BALANCE 175,000
The balance of 175,000 is to be divided equally among
the heirs in the proportion of 2:2:2:1. Thus, Abe, Bea,
and Wendy are entitled to 2/7 each of 175,000, or
50,000 each. Carl is entitled to 1/7 of 175,000, or
25,000. The final distribution would be as follows:
Abe 350,000 plus 50,000
Bea 350,000 plus 50,000
Wendy 350,000 plus 50,000
Carl 175,000 plus 25,000
TOTAL 1.4 million
QUESTION NO. 172
Determine the appropriate remedy of the aggrieved
party in the following cases. Explain your answer.
a. Abe, pretending to be a horticulturist, sells to
Tessie a bonsai plant which he claims will bear
cherry tomatoes. Tessie buys the bonsai plant
only to learn later that it won’t bear fruit.
b. Abe, a florist, agrees to decorate the tables at the
wedding reception of Tessie’s daughter. In the
purchase order form, Abe agreed to supply 12
table centerpieces made of a bunch of yellow
roses in elaborate floral arrangement. Instead,
Abe delivers 12 centerpieces made of a single
yellow rose surrounded by Malaysian mums.
c. Rey hires Abe to transport Rey’s friends to Mt.
Pinatubo for a trek to the summit on a 4x4
vehicle due to the difficulty of the terrain. Abe
borrows a vehicle from Larry, but Larry lends
Abe a vehicle which is not 4x4.
d. Ana sells to Bea her diamond ring. Bea,
accompanied by Ana, brings the ring to an
appraiser who certifies the ring to be genuine.
Unknown to Bea, Ana had the appraiser examine
a different ring such that the ring that was
brought by Bea was not real.
Tessie has no remedy in (a). No express warranty is
created simply by the seller expressing his personal
opinion to the buyer, nor do his statements to the buyer
constitute a warranty if he is just “talking up” the
merchandise (called “puffing”), even though the buyer
may rely on such statements. Even the use of the word
“guarantee” adds little, considering how it was used. A
statement of fact must be of the essence of the subject
matter.
Abe is liable for damages in (b) for breach of the
obligation. Article 1170 of the Civil Code refers to
incidental fraud (dolo incidente) committed in the
performance of an obligation already existing because
of a contract. Here, Abe is liable because he deviated
from his agreement with Tessie to decorate the
centerpieces with a bunch of yellow roses.
Abe is liable for damages in (c) because he deviated
from his undertaking to transport Rey and his friends
on board a 4x4 vehicle which is an essential element of
the undertaking given the difficult terrain of in reaching
the summit of Mt. Pinatubo.
Bea can sue for annulment of the sale with damages in (d) on
the ground that Ana committed fraud in inducing Bea to agree
to the sale. It is clear here that had Bea known that she was not
buying a genuine diamond ring, she would not have consented
to the sale.
QUESTION NO. 173
Abe, 70, lends Rey the sum of Php1 million with
interest thereon at 15% per annum. When the loan
fell due, Rey attempted to deliver a personal check
to Abe, inclusive of the stipulated interest, but Abe
refuses to see him. Apparently, Abe suffers from
dementia; and there is a pending proceeding to
place him under guardianship. The court has
temporarily placed Abe in the care of his nephew,
Larry, as guardian ad litem pending the issuance of
letters of guardianship that will officially appoint
Larry as Abe’s guardian. What is Rey’s remedy?
Rey is obliged to tender the payment to Larry pursuant
to Article 1240 of the Civil Code which provides that
payment shall be made to the person in whose favour
the obligation has been constituted, or his successor in
interest, or any person authorized to receive it. Since
Abe, the creditor, was placed in the care of a temporary
guardian ad litem who is authorized to administer Abe’s
estate pending the appointment of a permanent
guardian, the temporary guardian is decidedly a person
authorized to receive the payment.
QUESTION NO. 174
Paterno, 87, died of a heart attack without having
executed a will in his lifetime. Surviving Paterno at
the time of his death were his widowed mother,
Marie; his wife, Wendy; his legitimate children, Abe
and Bea; his grandson, Eric, who is the son of Bea;
his grandson, Fidel, who is a legitimate son of Carl, a
legitimate son of Paterno who died five years ago;
and another grandson, Greg, the latter being the
legitimate son of Dante, a legitimate son of Paterno
who repudiated his inheritance from his father.
How shall Paterno’s estate of Php1.2 million be
distributed?
The legal heirs of Paterno are Abe, Bea, Fidel, and
Wendy. Eric is excluded by his mother Bea who is still
alive. Fidel represents Carl who predeceased Paterno.
Greg is excluded because of the repudiation of Dante.
Marie is likewise excluded in view of the survival of
Paterno’s legitimate children.
In addition to their respective legitimes, Abe, Bea, Fidel
and Wendy are entitled to equal shares in the free
portion of Php400,000. Consequently, the final
distribution of Paterno’s estate is as follows:
Abe 200,000 plus 100,000
Bea 200,000 plus 100,000
Fidel 200,000 plus 100,000
Wendy 200,000 plus 100,000
QUESTION NO. 175
With her deceased first husband, Bea begot two
children, Don and Eric. With her deceased second
husband, Bea begot Fidel, Greg, Henry, and Inigo.
Bea died last year followed by Don who died this
year without a will. Don is survived by all his
siblings. The net value of Don’s estate is Php1.2
million.
a. How shall Don’s estate be distributed?
The rule of double share for full-blood relative applies.
Here, Eric is entitled to a share double that of his half-
siblings Fidel, Greg, Henry, and Inigo. Therefore:
Eric 400,000
Fidel 200,000
Greg 200,000
Henry 200,000
Inigo 200,000
________
1.2 million
b. Suppose all of Don’s siblings predeceased him,
and the only survivors are his nephew, John, the
legitimate son of Eric, and his nephews, Kurt and
Lyle, the legitimate children of Henry, how shall
the estate be divided?
The rule of double share for full-blood collateral still
applies. If there are nephews and nieces surviving the
decedent, relationship by the whole or half-blood
becomes material in the distribution of the estate. Here,
all the nephews inherit in their own right because they
do not concur with an uncle or aunt.
John 600,000
Kurt 300,000
Lyle 300,000
________
1.2 million
QUESTION NO. 176
After securing a marriage license, Abe and Bea, both
residents of Manila, went to the Office of the Mayor
of Baguio City, to get married. The mayor was not at
his office but a secretary at the office asked Abe and
Bea and their witnesses to fill up and sign the
marriage contract forms. Thereafter, the secretary
went out of the office to look for the mayor who she
found in another office holding a meeting. The
mayor signed all copies of the marriage contract
and gave them back to the secretary who returned
to the office. The secretary then gave a copy of the
marriage contract to Abe and Bea and told them
they are already married. What is the legal standing
of the marriage?
The marriage is void because the mayor did not
perform a ceremony. A marriage ceremony is one 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. (Article 3[3], Family Code)
QUESTION NO. 177
Ana is the wife of Abe. Abe was among the
passengers on board a passenger plane that
mysteriously crashed in 2002. Five years after the
crash, and believing that her husband had died in
the crash, Ana married Rey. The marriage was
performed without Ana obtaining a prior judicial
declaration of her missing husband’s presumptive
death. Ten years later, the authorities found the
remnants of the plane. After a diligent search, Abe’s
body was recovered. Per official report submitted
by government officials on the cause of the accident,
no passenger survived in the plane crash. What is
the status of Ana’s marriage to Rey?
The marriage is valid because there was no impediment
to the valid celebration of Ana’s second marriage, Ana’s
husband being dead at that time. That there was no
prior judicial declaration of presumptive death of Ana’s
husband before Ana’s remarriage is of no moment
because it turned out that the husband died in the plane
crash thereby removing any impediment to Ana’s
remarriage.
QUESTION NO. 178
Maria, an illiterate widow, verbally sold to Pedro in
1978 the farm which she and her deceased husband
had acquired by way of free patent from the
government in 1974. After receiving the agreed
purchase price, Maria vacated the property and
turned over possession to Pedro. Shortly after
Maria’s death in 1994, Pedro attempted to resell the
farm, but failed to do so because the title remained
in Maria’s name. Informed of the attempted sale,
Maria’s only child, Juan, demanded that Pedro
vacate the property and return it to Juan. Juan is
aware of the previous sale but he was a still minor
at the time of the sale.
a. Does Juan still have a remedy?
Yes. Juan’s remedy is to file an action for the recovery of
the property or for declaration of nullity of the sale on
the ground that the contract of sale is void for being
contrary to public policy.
b. Has the action prescribed?  
The action has not yet prescribed. The sale of the land
by Maria to Pedro four years after the issuance of the
free patent, being in violation of Section 118 of the
Public Land Act, is void from its inception. Juan’s action
to declare the nullity of the contract and to recover the
land should therefore be given due course. The defense
of prescription is even untenable because an action
which seeks to declare nullity of a contract does not
prescribe. (Art. 1410, Civil Code)
c. Can Pedro successfully invoke the pari delicto
doctrine rule in his defense?
No. While as a rule, parties who are in pari delicto have
no recourse against each other on the principle that a
transgressor cannot profit from his own wrongdoing
(Art. 1412[1], Civil Code), such rule does not apply to
violations of Section 118 of the Public Land Act. This is
so because of the underlying public policy in said law to
conserve the land which a homesteader has acquired by
gratuitous grant from the government for himself and
his family.
QUESTION NO. 179
Abe and Bertha, both of marriageable age and not
suffering from any impediment, are living together
as husband and wife without the benefit of
marriage. Not able to beget a child after five years of
cohabitation, they sought medical advice from a
doctor. After some tests, the doctor found Abe to be
sterile. Longing to have a child, Bertha underwent
artificial insemination using the sperm of Abe’s
brother, Rey. The consent of the three to the
procedure was reduced in writing. Lea later gave
birth to Larry. Which of the following statements
accurately describes Larry’s status?
a. Larry is the legitimate child of Abe and Bertha
because their consent to the medical procedure
was in writing pursuant to law.
b. Larry is the illegitimate child of Abe and Bertha
because the couple are not married.
c. Larry is the illegitimate child of Rey and Bertha
because they are the biological parents.
d. Larry is the illegitimate child of Bertha because
she is not married and there is no presumption
as to who the father is.
e. There is no presumption as to Larry’s status.
The statement in (e) is correct because there is no law
which provides for the status of a child born of artificial
insemination procured by persons who are not lawfully
married, as in the case of Abe and Bertha.
The statement in (a) is wrong. Larry is not the
legitimate child of Abe and Bertha because they are not
lawfully married. This is clear from the provision under
the second paragraph of Article 164 of the Family Code
which declares that children conceived as a result of
artificial insemination of the wife with the sperm of the
husband or that of a donor or both are legitimate
children of the husband and his wife provided that both
of them authorized or ratified such insemination in
writing before the birth of the child and recorded in the
civil registry together with the birth certificate of the
child.
The statement in (b) is wrong because Larry is not the
illegitimate child of Abe and Bertha. The provision
under Article 165 of the Family Code that “children
conceived and born outside a valid marriage are
illegitimate” is applicable only when the child was
naturally conceived, and not through artificial
insemination.
The statement in (c) is wrong for the same reason
stated in the preceding paragraph.
The statement in (d) is wrong for the same reason
stated in the preceding paragraph.
QUESTION NO. 180
Determine the validity of the following marriages:
a. Abe is married to Bea, while Carol is married to
David. Abe and Carol are legitimate brother and
sister, respectively. Upon the death of Abe and
Carol who died in the same plane crash, Bea
marries David.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Article 38 of the Family
Code enumerates the marriages which are void by
reason of public policy. Bea’s marriage to David is not
one of those prohibited.
b. Abe, the only son of Pedro, is lawfully married to
Bea, the only daughter of Maria. Pedro a
widower, later marries Maria who is herself a
widow.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Article 38 of the Family
Code enumerates the marriages which are void by
reason of public policy. Pedro’s marriage to Maria is not
one of those prohibited.
c. Pedro is a widower, while Maria is a widow.
Being sweethearts in high school, they rekindled
their long lost love and got married. After
several years, Abe, Pedro’s son by his former
marriage, marries Bea, Maria’s daughter by her
deceased husband.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Abe and Bea are
stepbrother and stepsister, respectively. Article 38 of
the Family Code enumerates the marriages which are
void by reason of public policy. Abe’s marriage to Bea is
not one of those prohibited.
d. Abner, a narcotics agent, kills Benjie, a notorious
drug pusher. Abner is later acquitted of Benjie’s
killing, and marries Cynthia, Benjie’s widow.
Abner’s marriage to Cynthia is valid because Benjie’s
killing by Abner was not for the purpose of marrying
Cynthia, but in line with his duty as a narcotics agent.
e. Arnold, single, adopted Brad. Carol, also single,
adopted Dina. Arnold and Carol get married.
Fifteen years later, Brad marries Dina.
The marriage is valid because it is not contrary to public
policy. While Article 38 (8) of the Family Code prohibits
the marriage between adopted children of the same
adopter, Brad and Dina are not the adopted children of
the same adopter – Brad being the adopted child of
Arnold, and Dina being the adopted child of Carol.
f. Abe is the husband of Bea. Upon Abe’s death, Bea
marries Pedro, the widowed father of Abe.
The marriage is void because it is a marriage between a
father-in-law and a daughter-in-law which is prohibited
under Article 38 (3) of the Family Code for being
contrary to public policy.
g. Maria, single, adopted Carol, the infant daughter
of her driver. A few years later, Maria gives birth
to David out of her relationship with her
boyfriend, Abe, a good for nothing gigolo. Maria
doted on Carol and treated her as if she were her
son. Maria also took care of David and, together
with Carol, sent both children to exclusive
schools. In college, David falls in love with, and
marries Carol.
The marriage is valid because it is not contrary to public
policy. While Article 38 (7) of the Family Code prohibits
the marriage between an adopted child and a legitimate
child of the adopting parent, there is no similar
prohibition regarding the marriage between an adopted
child and an illegitimate child of the adopting parent.
QUESTION NO. 181
Petronilo, an illegitimate person, dies without a
will. He is survived by his father, Fidel; his widow,
Wanda; his brother, Arnel; and his brothers, Ben
and Cosme, children of Fidel from his lawful
marriage. The net value of Petronilo’s estate is
Php1.2 million. How shall the distribution be made?
Only Fidel and Wanda are entitled to inherit from
Petronilo’s estate, at Php600,000 each. Illegitimate
parents, such as Fidel, do not exclude the surviving
spouse. Arnel, Ben, and Cosme, brothers of Petronilo,
are not entitled to inherit because they are excluded by
Fidel pursuant to the principle of preference of line in
succession.
QUESTION NO. 182
Tristan designated his legitimate children, Arnel
and Ben, and his friend, Fidel, as his heirs to an
estate valued at Php6 million. Tristan dies. Divide
the estate.
The institution of Arnel, Ben and Fidel concerns only the
free disposal of Php3 million. Arnel and Ben are first
given their respective legitimes (Php1.5 million each.
The free disposal is then divided equally among the
three instituted heirs:
Arnel: 1.5 million (compulsory heir)
1 million (voluntary heir)
Ben: 1.5 million (compulsory heir)
1 million (voluntary heir)
Fidel: 1 million (voluntary heir)
QUESTION NO. 183
Is a motion for intervention appropriate in a land
registration case?
No. Unlike in ordinary civil actions where parties may
include a plaintiff, a defendant, a third-party
complainants, cross-claimants, and intervenors, the
only parties in cases of original applications for land
registration are the applicant and the oppositor. (Secs.
14 , 25 PD 1529) If a party desires to be heard in a land
registration case, he should ask for the lifting of the
order of general default, and then if lifted, file an
opposition to the application for registration.  
QUESTION NO. 184
Is a motion to dismiss allowed in a land registration
case?
Yes. Both the Land Registration Act (Act No. 496) and
the Property Registration Decree of 1978 (PD No. 1529)
do not provide a prohibition for the filing of a pleading
similar to a motion to dismiss. Section 34 of PD 1529
specifically provides that, “the Rules of Court shall,
insofar as not inconsistent with the provisions of this
Decree, be applicable to land registration and cadastral
cases by analogy or in a suppletory character and
whenever practicable and convenient.”
QUESTION NO. 185
Husband is the operator of a public utility vehicle
which meets an accident resulting in the death of a
passenger. When judgment is rendered against
him, and execution is levied on a conjugal house and
lot, he claims that the share of his wife in the
property should not be made to answer for the debt.
Is Husband’s contention tenable?
Yes. The absolute community is not liable because of
par. 9, Article 94 of the Family Code, which provides
that “liabilities incurred by either spouse by reason of a
crime or quasi-delict, in case of absence or insufficiency
of the exclusive property of the debtor-spouse…”
presupposes that the husband alone is liable, but the
payment may be advanced by the community property
to be deducted from the husband’s share upon
liquidation of the community.
QUESTION NO. 186
Abe and Betty, husband wife, are the parents of
Arnel and Ben. By a previous marriage, Abe has a
legitimate child, Carl. Also by a previous marriage,
Betty has a legitimate child, Denver. Abe gave each
of the four children for their education a donation,
but did not get Betty’s consent. Who is liable for the
value of the donations?
The donations given to Arnel and Ben are valid because
they were made to the common children of Abe and
Betty in furtherance of the career of both children.
Therefore, the expenses are to be borne by the absolute
community despite the fact that Betty’s consent had not
been obtained.
On the other hand, the donation given to Carl is valid,
but the absolute community is not liable. Only the
husband is liable. It is true that it was given for the
purpose of finishing a career, but here the consent of
the wife was not obtained. Carl is not a common child of
Abe and Betty, but of Abe only. The donation given to
Denver is void. This is so because the donation would
be an indirect donation of Abe to Betty who is a
presumptive heir of Denver.
QUESTION NO. 187
If useful improvements can be removed by the
possessor in good faith without injury, may the
owner decide to retain them? If so, how much
should the owner refund to the possessor in good
faith?
A possessor in good faith has the right to remove his
useful improvements provided no substantial damage
or injury is caused to the principal, reducing its value,
unless the owner refunds to the possessor in good faith
the amount spent in the increase in value which the
thing may have acquired by reason of the
improvements.
QUESTION NO. 188
Abdul is a barter trader in Zamboangan City. He
communicates via text messaging to Kiram, who is
based in Jolo, to transact business. Last month, he
agreed with Kiram to exchange a cargo of batik
clothing, numbering 200 pieces of assorted shirts,
malong, and skirts, with a cargo of 50 boxes of
canned goods imported from Australia. Kiram
received the batik items, but did not send the
canned goods to Abdul because of news reports that
the incursion of Abu Sayyaf had stopped the barter
trade. Is Kiram in breach of his obligation?
Yes, because he failed to do what is incumbent upon
him upon delivery of the batik goods to him. Moreover,
Kiram is not even allowed to invoke the defense of
fortuitous event considering that he was already in
delay in the performance of his obligation.
QUESTION NO. 189
Abe promises to sell to Melany a parcel of land at a
reduced price on condition that Melany should stay
single and not marry anyone. Melany subsequently
enters a convent to become a nun. The following
year, Melany demands fulfilment of Abe’s promise.
Is Abe bound by his promise?
Abe is not obliged to sell the land to Melany because the
condition attached to it is contrary to law and public
policy as an undue restraint on individual freedom.
QUESTION NO. 190
Abe owes Rey Php2 million payable on or before
December 31. To secure the loan, Abe executes a
mortgage in favor of Rey on Abe’s building. On
October 25, the mortgaged building is totally
destroyed in a fire of accidental origin. After the
fire, Rey immediately demands payment from Abe.
Is Rey’s demand valid?
Yes. The debt becomes due and demandable at once
because the security is lost even through a fortuitous
event, unless the debtor can furnish another security for
the loan which is equally satisfactory. (Art. 1198, Civil
Code) This is once instance where the debtor loses the
benefit of the period.
QUESTION NO. 191
Husband catches Wife having illicit relations with
Gigolo. Husband then tells Wife that he will file an
action against her for legal separation to which the
latter agreed provided she will not be charged
criminally. Husband promptly files a complaint for
legal separation. Wife defaults. When questioned
by the Public Prosecutor why she failed to file an
answer, Wife signifies her intention to the petition
for legal separation. Is there a confession of
judgment?
No. On the contrary, the petition for legal separation
should be granted in view of the presence of other
evidence. Here, there was only an extra-judicial
admission and not a confession of judgment (which
usually happens when the defendant appears in court
and confesses the right of plaintiff to judgment or files a
pleading agreeing to plaintiff’s demand). Even if the
statement of Wife really constitutes a confession of
judgment, still, inasmuch as there is evidence of sexual
infidelity on the part of the wife independently of such
statement, the decree of legal separation would be
premised not on her confession, but on the strength of
the evidence of sexual infidelity on the part of the wife.
What the law prohibits is a judgment based exclusively
on the confession of judgment. If a confession can
automatically and itself defeat the suit, any defendant
who opposes the legal separation will immediately
confess judgment, purposely to prevent the giving of the
decree.
QUESTION NO. 192
According to Article 58 of the Family Code, an action
for legal separation shall in no case be tried before
six months shall have elapsed since the filing of
petition, the purpose being to provide the parties a
cooling-off period. Is this requirement absolute?
An action for legal separation requires a “cooling-off”
period of six months. However, when the ground
alleged is one of those falling under R.A. No.9262 (Anti-
Violence Against Women and their Children Act), there
is no such “cooling-off” period because the courts are
mandated to proceed with the hearing of the case as
soon as possible. (Sec. 19, RA No. 9262)
QUESTION NO. 193
Homer is married to Winda. Before their marriage,
Winda confessed to Homer that she was two-month
pregnant with the child of an African-American
engineer who had already left the country. When
the child was born, Homer could not accept it for
being too black in complexion. What is the status of
the child?
The child is the legitimate child of Homer and Winda
because it was born within a valid marriage. This is so
because under the law, a child conceived and born
during lawful wedlock is almost conclusively presumed
legitimate. The presumption is almost conclusive
because the law allows certain grounds to disprove it.
(Art. 164, Family Code)
QUESTION NO. 194
Husband and Wife are living separately from each
other. After their separation, Wife cohabited with
Gigolo from 1985 up to the latter’s death in 2005. In
1994, Wife gave birth to Son. During the three-day
stay of Wife at the hospital, Gigolo visited and
stayed with her and the new-born baby. All the
medical and hospital expenses, food, and clothing of
Wife and the baby were paid under the account of
Gigolo.
A few months later, Gigolo would bring Son to his
office, introduce him as his son, and had their
pictures taken together. On the occasion of Gigolo’s
last birthday, he expressly acknowledged Son to be
his son in the presence of a priest and other friends.
Since his birth, Son had been in continuous
possession and enjoyment of the status of a
recognized child of Gigolo by the latter’s direct and
overt acts. After Gigolo’s death, Wife, as guardian of
Son, brought an action to claim his son’s share in the
estate of Gigolo claiming that her son is the
illegitimate child of the deceased. Is Son the
illegitimate child of Gigolo?
No. A child born and conceived during a valid marriage
is presumed to be legitimate. While physical
impossibility for the husband to have sexual intercourse
with his wife is one of the grounds for impugning the
legitimacy of a child born to the wife, the grounds for
impugning such legitimacy under Article 166 of the
Family Code may only be invoked by the husband, or in
proper cases, his heirs under the conditions set forth
under Article 171 also of the Family Code.
Outside of these cases, no one - even the heirs - can
impugn legitimacy. If the husband who is presumed to
be the father does not impugn the legitimacy of the
child, then the status of the child is fixed and the latter
cannot choose to be the child of his mother’s alleged
paramour. Moreover, it is settled that a child born
within a valid marriage is presumed legitimate even
though the mother may have declared against its
legitimacy or may have been declared as an adulteress.
(Liyao v. Liyao, 378 SCRA 563 [2002])
QUESTION NO. 195
Tom in his will designated his legitimate children,
Abe and Ben, and his childhood friend, Fidel, as his
universal heirs. Abe predeceased his father, Tom,
without any descendant to inherit from him. Tom
died with an estate valued at Php600,000. Divide
the estate.
Abe’s supposed share in the legitime (Php150,000) goes
to his brother, Ben, who will inherit it in his own right
since it is the legitime. Abe’s share in the free portion
(Php50,000) will go equally to Ben and Fidel by
accretion since it is the proportion in which they were
instituted to the free portion. If Fidel predeceases Tom,
his share in the free portion will go to Abe and Ben by
accretion. It is so because they were instituted as
voluntary heirs.
QUESTION NO. 196
Paco has three legitimate brothers (Abe, Ben, and
Chad) Abe predeceases Paco, but he is survived by
his legitimate child, Arnel. Ben is incapacitated, but
he has two legitimate children, Brad and Bien. Chad
repudiates the inheritance. How shall Paco’s
intestate estate of Php1.2 million be distributed?
The Php400,000 share of Abe who predeceased his
brother, Paco, goes to his legitimate child, Arnel, by
representation. The Php400,000 share of Ben who is
incapacitated to inherit goes to his legitimate children,
Brad and Bien, also by representation, or Php200,000
each. The Php400,000 share of Chad who repudiated
the inheritance goes to Arnel, Brad and Bien by
accretion in the same proportion that they inherit, or in
the proportion of 2:1:1.
Arnel 400,000 by representation
200,000 by accretion
Brad 200,000 by representation
100,000 by accretion
Bien 200,000 by representation
100,000 by accretion
QUESTION NO. 197
What are the essential characteristics of a decree of
registration or certificate of title?
FIRST: A decree of registration or the corresponding
certificate of title binds the land, quiets title thereto, and
is conclusive against all persons, including the
government.
SECOND: After one year from its entry or even earlier in
cases where title to the land has been transferred to an
innocent purchaser for value, the decree becomes final
and incontrovertible.
THIRD: A torrens title issued pursuant to a homestead patent,
free patent, or sales patent under the Public Land Act has the
same force and effect as a Torrens title.
FOURTH: The operative act that conveys or affects a
registered land is the act of registration insofar as third
persons are concerned.
FIFTH: No title to registered land in derogation of the
title of the registered owner shall be acquired by
prescription or adverse possession. However, the
registered owner may be barred from invoking the
imprescriptibility of his title by virtue of the equitable
principle of laches. (Heirs of Batiog-Lacamen v. Heirs of
Lauran, 65 SCRA 605)
SIXTH: Torrens titles are not subject to collateral
attack. It cannot be altered, modified, or cancelled,
except in a direct proceeding in accordance with law.

QUESTION NO. 198
Which of two titles is superior: an earlier title
secured administratively or a later title secured
through a judicial proceeding?
The person holding the prior certificate of title is
entitled to the land as against the person who relies on
the second certificate. Pursuant to Section 32 of P.D. No.
1529, upon the expiration of one year from the issuance
or entry of the decree of registration, the decree and
certificate shall become indefeasible and
incontrovertible. This provision also applies to titles
acquired through homestead or other public land
patents. (Lahora v. Dayanghirang, 37 SCRA 346)
QUESTION NO. 199
If the title of a land applicant to a public agricultural
land is incomplete or imperfect, what is his ultimate
remedy under the law?
If the applicant of a parcel of land cannot sustain his
claim of private ownership or does not have enough
evidence to overcome the presumption that the land
belongs to the public domain under the Regalian
Doctrine, his ultimate recourse is to admit that the land
is a public land but invoke his right to confirm his
imperfect or incomplete title to the land under Section
48 of the Public Land Act, C.A. No. 141.
QUESTION NO. 199
Which of the following marriages would a court
most likely declare void?
a. Abe and Bea are married and have a son, Charlie,
who is 19. David and his girlfriend, Elnora, have
a daughter, Fiona, who is 18. Abe and David are
brothers. Charlie and Fiona got marriage last
year with the consent of their parents.
b. Arnulfo and Anabelle are husband and wife.
Anabelle died of pancreatic cancer two years
ago. Distraught by his wife’s death, Arnulfo
married Angela, 26. Anabelle and Angela are
sisters.
The marriage in (a) between Charlie and Fiona would
most likely be declared void, but not the marriage in (b)
between Arnulfo and his sister-in-law, Angela.
The marriage in (a) is void because Charlie and Fiona
are first cousins. Their marriage is void under Article 38
(a) of the Family Code because they are collateral
relatives within the fourth civil degree of consanguinity,
and it doesn’t matter whether their relationship is
illegitimate.
The marriage in (b) is valid because Arnulfo was no
longer suffering from any impediment when he married
his sister-in-law, Angela. A marriage between a brother-
in-law and a sister-in-law is valid because it is not one
of those prohibited by law for reasons of public policy.
(Art. 38, Family Code)
QUESTION NO. 200
Tom executed a will giving a legacy of Php1 million
to his friend, Frank. Tom executed the will in the
presence of three instrumental witnesses. One of
the instrumental witnesses was Frank. Is the will
valid?
The will is valid and binding because of the presence of
three instrumental witnesses, but Frank is incompetent
to receive the legacy. If a person attests the execution of
a will, to whom a devise or legacy is given by such will,
such devise or legacy, so far as such person is
concerned, shall be void, unless there are three other
competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if
such devise or legacy had not been made or given. (Art.
823, Civil Code)
QUESTION NO. 201
Abe, single, died without a will with an estate valued
at Php1.2 million. He is survived by the following
relatives:
a. Ana, the daughter of Rey, the latter being Abe’s
legitimate brother. Rey has never been married.
b. Bea, the daughter of Sam, the latter being Abe’s
legitimate brother. Sam was not yet married to
Bea’s mother when Bea was born. Sam has since
married Bea’s mother.
c. Candy, the adopted daughter of Sam.
d. Dina, the daughter of Tina, the latter being Abe’s
legitimate sister. Shortly after Dina’s birth, Tina
and her husband died in an accident. Dina was
later adopted by an American couple.
Who is entitled to inherit from Abe?
Only Bea and Dina are entitled to inherit from Abe. Bea
is entitled to inherit because she is Abe’s niece, she
being the legitimated daughter of Sam, Abe’s legitimate
brother. A legitimated child shall enjoy the same rights
as legitimate children. (Art. 179, Family Code)
Dina is also entitled to inherit because she is the
legitimate daughter of Tina, Abe’s sister. That Dina was
adopted by an American couple does not disqualify her
to inherit from Abe because an adopted child remains
an intestate heir of his parents and other blood
relatives.
Ana is not qualified to inherit from Abe because of her
status as an illegitimate child of Rey. An illegitimate
child has no right to inherit ab intestato from the
legitimate relatives of his father or mother. (Art. 992,
Civil Code). Since Abe is a legitimate brother of Rey, Ana
is therefore excluded from Abe’s inheritance.
Candy is also not qualified to inherit from Abe because
of her status as an adopted child of Sam, Abe’s brother.
Candy’s relationship with Sam, her adoptive father, is
purely personal between them and does not extend to
Abe.
QUESTION NO. 202
Abe wanted to have his house remodeled. He called
a number of building contractors and received bids
ranging from Php1 million to Php1.5 million. Ben
submitted a bid to do the work for Php900,000. Abe
then entered into a notarized contract with Ben to
have the house remodeled.
Shortly before Ben was scheduled to begin work, he
called Abe and said, “I just found out my secretary
made a mistake in adding figures. I couldn’t possibly
do the work for Php900,000 or I’d lose money.” Abe
sues Ben for breach of contract. Judgment for
whom?
Judgment for Abe if he did not have reason to know
Ben’s erroneous bid. Ben cannot refuse to perform on
grounds of unilateral mistake because mistake cannot
and ought not co-exist with negligence, as in this case.
(Art. 1331, Civil Code)
QUESTION NO. 203
Which of the following agreements need not comply
with the Statute of Frauds?
a. Abe is indebted to Ben which is now due. Clay, a
friend of Abe, promises to pay Ben what Abe
 owes in case the latter defaults in his obligation
to Ben.
b. Abe intends to borrow money from Ben to
finance a business. Clay, a friend of Abe, tells Ben
to extend the loan to Abe and represents that
Abe financially able in paying the loan
obligation.
c. Abe sells to Rey a car for Php150,000.
d. Abe assigns his leasehold rights to Rey for the
remainder of the lease period.
The agreement in (d) need not comply with the Statute
of Frauds. The contracts which are required to be in
writing to be enforceable are those enumerated under
Article 1403 (2) of the Civil Code. The list is exclusive.
An assignment of leasehold rights, even if the lease
involves real property, is not among the contracts
which is required to be in writing to be enforceable.
Inclusio unius, est exclusio alterius.
The agreements in (a), (b), and (c) are required to be in
writing because they all fall under the Statute of Frauds.
The agreement in (a) constitutes a special promise to
answer for the debt, default or miscarriage of another;
the agreement in (b) constitutes a representation as to
the credit of another; while the agreement in (c)
involves the sale of personalty the price of which is in
excess of Php500.00.
QUESTION NO. 204
Ali and Raida, both of age and not suffering from
any impediment, have lived together for several
years as husband and wife without marriage.
Following the birth of a son, the couple got married.
The marriage proved to be a failure when it was
annulled on grounds that, at the time of the
marriage, Ali concealed to Raida his affliction with
a serious and incurable sexually-transmissible
disease. What is the child’s status?
The subsequent annulment of the marriage of Ali and
Raida does not affect the legitimated status of their son.
This is so because a voidable marriage is one which is
valid until annulled.
QUESTION NO. 205
Two years ago, Abe, an engineer, and Bea, a nurse,
were introduced to each other by a mutual friend.
Tessie was a single parent with a two-year old son,
Sam. Abe and Bea were married last year.
Immediately after the marriage, Abe, with Bea’s
consent, filed a petition to adopt Sam. Sam’s birth
certificate identified Rey as the father. When Sam
was a baby, Rey denied paternity and left the
Philippines. The court granted the adoption. Is the
adoption of Sam by Abe valid?
Sam’s adoption by Abe is void. Under the Domestic
Adoption Act, a person who is financially capable of
giving care and support may adopt a child. Although
Abe, being a lawyer, is financially capable of giving care
and support to Sam, his adoption of Sam is void. The
Domestic Adoption Act specifically requires that the
husband and wife shall jointly adopt, except if one
spouse seeks to adopt the legitimate child of the other;
or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally separated
from each other. Abe does not fall under any of these
exceptions. His adoption of Sam, although with Bea’s
consent, is a complete nullity. To be valid, the adoption
should have been filed jointly with Bea.
QUESTION NO. 206
Abe and Bea, a childless couple, were married ten
years ago. Despite several trips to Obando, Bulacan,
Bea still failed to conceive a child. Bea attributes her
failure to conceive a child to the fact that Abe’s
family has a history of fertility problem. Anxious to
have a child, Bea secretly had herself artificially
inseminated with the sperm of an unnamed donor.
When Abe discovered Bea’s pregnancy through this
procedure, he immediately commenced an action
for legal separation. Will Abe prevail?
Abe will not prevail because Bea is neither guilty of
sexual infidelity nor of any other ground for legal
separation under Article 55 of the Family Code. Abe’s
only remedy in law is to impugn the legitimacy of the
child on grounds that his wife procured the artificial
insemination without his consent.
QUESTION NO. 207
Abe and Bea lived together for many years as
husband and wife, but never married. Due to Abe’s
advancing age, Bea became increasingly concerned
about her economic security in the event anything
should happen to Abe. Although Abe repeatedly
promised to take care of Bea in his will, Bea always
insisted that Abe must “do something now, not
later” to provide her with some security. One day,
Abe asked Bea to meet him at his lawyer’s office.
There, he signed a notarized deed donating to her a
parcel of land. Gratified by Abe’s generosity, Bea
accepted the donation in the same document.
Shortly thereafter, Abe died. Abe’s intestate heirs
immediately commenced an action against Bea for
recovery of the property. Who prevails?
Abe’s heirs will prevail because the prohibition against
donation between spouses during the marriage also
applies to persons living together as husband and wife
without a valid marriage. If the rule were otherwise,
persons in common-law relationships would be in a
better position than those in lawful wedlock. This is
certainly not the intendment of the law.
QUESTION NO. 208
Abe gives Rey in usufruct a parcel of land, including
a residential building thereon, for a period of ten
years. During the life of the usufruct, the building is
totally destroyed in a fire of accidental origin. Abe
now demands that Rey vacate the land on grounds
that the usufruct has been extinguished by the total
destruction of the building. Is Abe correct?
Abe is wrong. Rey still has the right to use the land and
the materials left on it until the end of the ten-year
period.
QUESTION NO. 209
Abe promises to buy a new house for Tessie’s
parents if Tessie were to marry him. Tessie agrees.
Abe later refuses to make good his promise. Can
Tessie compel Abe to buy a house for her parents?
No. The promise of marriage was used as consideration
for the promise to buy a new house. Therefore, if Tessie
wants to enforce this promise, the promise must be
proved through something in writing, and Abe needed
to sign the writing. Abe’s promise falls squarely within
the Statute of Frauds.
QUESTION NO. 210
Andy and Ben inherited from their parents a farm.
On January 1, Andy sold his half interest over the
property to Celso for Php500,000. Ben learned of
the sale on May 5 when Andy gave him a copy of the
sale document. Ben went to Celso and offered to
redeem Andy’s share for Php550,000. Ben offered
his check of Php400,000 as partial payment, and
promised to pay the balance in 60 days upon the
approval of his bank loan. Celso refused. On July 20,
Ben launched an action against Celso for legal
redemption.
a. Did Ben make a valid and effective offer to
redeem Andy’s share?
No. The law, in granting unto a co-owner the right of
redemption, intended that the offer to redeem must be
valid and effective, accompanied by an actual tender of
an acceptable redemption price. Here, Ben failed to
make a valid tender of the redemption price. Ben
merely offered a check for P400,000, which was not
even legal tender and which Celso rejected.
Celso was not obligated to accept Ben’s promise to pay
the balance by means of a loan to be obtained from a
bank. Bona fide redemption necessarily imports a
seasonable and valid tender of the entire repurchase
price, and this was not done. There is no cogent reason
for requiring Celso to accept payment by instalments
from a redemptioner, as it would ultimately result in an
indefinite extension of the 30-day redemption period,
when the purpose of the law in fixing a short and
definite term is clearly to avoid prolonged and anti-
economic uncertainty as to ownership of the thing sold.
All told, the offer to redeem was not in pursuance of a
legal and effective exercise of the right of redemption as
contemplated by law; hence, refusal of the offer on the
part of Celso is justified. The conditions precedent for
the valid exercise of the right do not exist
.
b. Suppose Ben offered to pay in cash the
redemption price, and Celso refused, did Ben
seasonably file his complaint for legal
redemption on July 20?
No, the complaint was filed out of time. Article 1623 of
the Civil Code does not prescribe any particular form of
notice, nor any distinctive method for notifying the
redemptioner. So long, therefore, as the redemptioner is
informed in writing of the sale and the particulars
thereof, the 30 days for redemption start running, and
the redemptioner has no real cause to complain.
Here, Andy showed Ben a copy of the sale document in
favor of Celso on May 5. The furnishing of this copy is
equivalent to the giving of written notice required by
law: it came from the vendor and made available in
writing the details and finality of the sale. It served all
the purposes of the written notice, in a more authentic
manner than any other writing could have done. As a
necessary consequence, the 30-day period for the legal
redemption by Ben began to run its course from and
after May 5, ending on June 5.
QUESTION NO. 211
What is Republic Act No. 9048?
Republic Act No. 9048 which took effect on April 22,
2001 is the law which expanded the basic quasi-judicial
duties and functions of Civil Registrars as provided
under paragraph c, Section 479 of the Local
Government Code. It amended Articles 376 and 412 of
the Civil Code by granting the city and municipal
registrars the authority to correct clerical or
typographical errors and to change first names or
nicknames in the civil registrar without need of judicial
order.
QUESTION NO. 212
What kind of clerical or typographical errors may
be corrected administratively under R.A. No. 9048?
The clerical or typographical errors which may be
administratively corrected under R.A. No. 9048 are
limited to those mistakes committed in the performance
of clerical work in writing, copying, transcribing, or
typing an entry in the civil register that are harmless
and innocuous, which are visible to the eyes, obvious to
the understanding, and can be corrected or changed
only by reference to other existing record or records.
QUESTION NO. 212
What kind of errors are not correctible under R.A.
No. 9048?
Those errors that involve the change of nationality, age,
or status of the petitioner are excluded from the
coverage of the law. Consequently, any petition to
correct any error that would subsequently change the
nationality, age, or status of a person shall be filed with
the proper court, and not with any local civil registrar.
QUESTION NO. 213
On what ground may a petition for change of first
name be filed under R.A. No. 9048?
Under R.A. 9048, the following are the grounds for the
change of a person’s first name: a) the petitioner finds
the first name or nickname to be ridiculous, tainted with
dishonor, or extremely difficult to write or pronounce;
b) the new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that first name or nickname in
the community; c) the change will avoid confusion. Any
of these grounds, if supported with convincing proof,
will be sufficient basis of changing a person’s first name.
QUESTION NO. 214
Abe was born on February 12, 1975. What was
recorded as his date of birth in his birth certificate
was February 22, 1975, while all the other entries in
the birth certificate are February 15, 1975, the date
when the attendant signed the document; the date
when the informant gave the information; the date
when the clerk prepared the document; and the
date when the instrument was received at the office
of the civil registrar. May the error be corrected
under R.A. No. 9048?
Yes. There is in this case an impossible event whereby
registration of birth was done ahead of the occurrence
of birth. That the birth was registered prior to its
occurrence indicates a glaring clerical error especially if
the date of birth, as recorded, is compared with the
other significant dates in the same document. This
error is visible to the eyes and is very obvious to the
understanding; hence, it can be considered a clerical
error, which can be corrected under R.A. No. 9048.
In this case, the correction is not an attempt to change
the age of Abe, but to correct the impression that
registration was done prior to the occurrence of birth.
QUESTION NO. 214
Abe was born on January 2, 1962, but the typist
entered the date of his birth as “2-1-62” which could
be interpreted as “February 1, 1962” or “January 2,
1962.” May Abe file for correction of his date of
birth?
Yes, because the date was misleading since a numeric
character or symbol was used for the month. In
accordance with the order of writing the date in the
birth certificate, the “day” should be entered first,
followed by the “month” and the last, the “year.” The
month should be spelled out and not represented by
numerical symbol, like “January” and not “1”. The error
in question is clearly a clerical error within the meaning
of R.A No. 9048.
QUESTION NO. 215
Abe and Bea, both of age and not suffering from any
impediment, lived together as husband and wife
without a valid marriage. Bea gave birth to a son,
Rey, on October 25, 1995. Abe and Bea subsequently
got married on February 20, 1996. The following
month, March 5, 1996, Abe’s birth was belatedly
registered on March 5, 1996. Because Abe was born
illegitimate, he used in his birth certificate the
surname of his mother. In the entry under “Date and
Place of Marriage of Parents,” however, the entries
“20 February 1996, Baguio City” were made when it
should have been “not married.” May Abe seek a
correction under R.A. No. 9048?
Yes. The error here is a clerical error within the
meaning of R.A No. 9048 because a future event cannot
be recorded in the birth certificate. The correction will
not alter the status of the child who, by his recorded
name, is an illegitimate child who is legitimated by
virtue of the subsequent marriage of his parents. The
error here arose because only information obtaining at
the time of birth shall be recorded in the birth
certificate, and not information prevailing at the time of
registration.
QUESTION NO. 216
Maria Lourdes Cruz filed for correction of entry in
her certificate of live birth. She was baptized as
Maria Lourdes Cruz, the name entered in her
certificate of live birth. When she started schooling,
however, she used the name Ma. Lourdes Cruz.
Petitioner’s name was abbreviated to “Ma.” in all
her records, except her birth certificate. She now
wants her name corrected to Ma. Lourdes Cruz,
instead of Maria Lourdes Cruz. Will she prevail?
No. There is no clerical error in this case. Petitioner’s
name as recorded in her birth certificate is perfectly
correct. There is no misspelling, no misplaced letter, no
omitted letter, no unnecessary letter, and no misplaced
word. Petitioner’s remedy is to file for change of first
name and not for correction of clerical error.
QUESTION NO. 216
Abe and Bea were married on January 15, 1996. On
February 7, 1997, Bea gave birth to Carla. Prior to
Carla’s birth, Abe left the conjugal abode and lived
with another woman. Because of Abe’s infidelity,
Bea registered Carla as illegitimate with an
“unknown” father. The item regarding the date and
place of marriage of parents was left blank.
In 1999, Abe and Bea reconciled. It was then that
Abe discovered the following: (a) The last name of
Carla is the maiden surname of his wife; (2) His
name as the father of Carla is not entered, but
marked “unknown,” and (3) There is no information
about the date and place of marriage of the parents.
Are the errors correctible under R.A. No. 9048?
The errors are not clerical within the meaning of R.A.
No. 9048 because the correction involves the change of
status of Carla from “illegitimate” to “legitimate.”
QUESTION NO. 217
Abe Cruz and Bea Santos, both of age and not
suffering from any legal impediment, lived together
as husband and wife without a valid marriage. On
October 25, 1995, Bea gave birth to Caroline. A few
months later, Abe and Bea got married, particularly
on Valentine’s Day on February 14, 1998. The
following month, March 14, 1998, Bea registered
the birth of Caroline under the rules governing the
delayed registration of births. The complete name
of Caroline which was recorded in her birth
certificate was Caroline Santos Cruz, and the date of
marriage of her parents was entered as February
14, 1998 and the place of such marriage as Baguio
City. The Civil Registrar later refuses to correct the
entries. Decide.
The entries are not clerical errors within the meaning of
R.A. No. 9048. The correction of the date of marriage of
the parents will affect the status of the child.
The civil registrar was correct in denying the correction
of the entries in Caroline’s certificate of birth
considering that Caroline’s surname should have
followed that of her mother’s because she was born
illegitimate. Moreover, the date and place of Caroline’s
parents are erroneous because of the principle in civil
registration that only the facts obtaining at the time of
birth shall be recorded in the birth certificate and not
those facts prevailing at the time of registration
QUESTION NO. 218
Abe and Bea, both 14 years old, eloped. A daughter,
Joy, was born to them when they were 16 years old.
When they reached the age of 19, they got marriage
with the consent of their parents. Is Joy legitimated
by the marriage of her parents?
Yes. Pursuant to R.A. No. 9858, children born to parents
below marrying age may now be legitimated. R.A. No.
9858 amended Article 177 of the Family Code to the
effect that if the child born to parents are disqualified to
marry each other because they are below 18 years of
age, the child may be legitimated by the subsequent
marriage of the parents. Article 177 of the Family Code,
as amended by R.A. 9858, now reads: “Children
conceived and born outside of wedlock of parents who, at
the time of the conception of the former, were not
disqualified by any impediment to marry each other, or
were so disqualified only because either or both of them
were below eighteen (18) years of age, may be
legitimated.”
QUESTION NO. 219
The attestation clause of a will reads: “x x x
and he (the testator) signed at the bottom of the
aforesaid will in our presence and we at his request
did the same in his presence and in that of each other
as witnesses to the will, and lastly, the testator, as
well as we, as witnesses, signed in the same manner
on the left margin of each sheet.”
Is the attestation clause sufficient?
The attestation clause is sufficient because the
words “in the same manner” mean nothing but that
the testator and the witnesses signed on the left
margin of each sheet of the will “in the same
manner” in which they signed at the bottom
thereof, that is, the testator in the presence of the
witnesses and the latter in the presence of the
testator and of each other (Fernandez v. Vergel de
Dios 46 Phil. 922 [1936)
QUESTION NO. 219
Abe executes a document in his handwriting
denominated as “Kasulatan sa Pag-aalis ng Mana.”
The document reads:
“Ako, si Abe, may asawa, naninirahan
sa 465-A Flores St., Ermita, Manila, at
nagtataglay ng maliwanag na pag iisip at
disposisyon, ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang
 panganay kong anak na si Rey dahil siya ay
naging lapastangan sa akin at ilang beses
s’yang nagsalita ng masama sa harapan ko
at kapatid niya na si Mimi na labis kong
ikinasama ng loob ko.”
Rey opposes the will on grounds that it does not
contain any disposition of estate and therefore does
not meet the definition of a will under Article 783 of
the Civil Code. Rey claims that the will only shows
an alleged act of disinheritance by Abe of his son,
Rey, and nothing else; that all other compulsory
heirs were not named nor instituted either as heirs,
as legatees or as devisees, hence; there is
preterition which would result in intestacy.
a. Is the document a valid holographic will?
Yes. A holographic will, as provided under Article 810 of
the Civil Code, must be entirely written, dated, and
signed by the hand of the testator. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed. An intent to
dispose mortis causa can be clearly deduced from the
terms of the instrument, and while it does not make an
affirmative disposition of the testator’s property, the
disinheritance results in the disposition of the property
of the testator in favor of those who would succeed in
the absence of Abe.
It is a fundamental principle that the intent or the will of
the testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme
law in succession. Accordingly, the document, even if
captioned as Kasulatan sa Pag-aalis ng Mana, was
intended by Abe to be his last testamentary act and was
executed by him in accordance with law in the form of a
holographic will. Unless the will is probated, the
disinheritance of Rey cannot be given effect.
b. Is there a valid disinheritance of Rey?
Yes. For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be effected
through a will wherein the legal cause therefore shall be
specified. With regard to the reason for disinheritance
that was stated by Juan in his document, the same can
be considered a form of maltreatment of Abe by his son,
Rey, and that the matter presents a sufficient cause for
the disinheritance of a child or descendant under Article
919 of the Civil Code.
c. Is there preterition of compulsory heirs in the
will?
No. Abe’s holographic will was his last expression to
bequeath his entire estate to all his compulsory heirs,
with the sole exception of Rey. Also, Abe did not
institute an heir to the exclusion of his other
compulsory heirs. The mere mention of the name of
Abe’s daughter did not operate to institute her as a
universal heir. Her name was included plainly as a
witness to the alteration between Abe and his son, Rey.
Since the document is Abe’s holographic will, and that
the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Thus, unless the will is
probated, the rights of a person to dispose of his
property may be rendered nugatory. (Seangio v. Reyes,
508 SCRA 177 [2006])
QUESTION NO. 220
The testator’s will contains the following
disposition: “I institute my brother, Juan, as my
universal heir because he had killed my political
rival.” The testator himself had nothing to do with
the crime. Is the institution valid?
The institution is valid. The mere statement of a cause
contrary to law will not invalidate a will nor invalidate
an institution, so long as it does not appear in the will
that such illegal cause is the only motivating factor for
the institution. The principle underlying the rule on the
statement of a false cause under Article 850 of the Civil
Code should also apply in the case of an illegal cause, if
the true cause is the generosity of the testator, and the
disposition is essentially based on the affection of the
testator, the mere statement of an illegal cause should
not impair the institution. But if it clearly appears from
the will itself that the testator’s only reason for making
the disposition is the illegal cause, then the disposition
should be void.
QUESTION NO. 221
Abe donated to his nephew, Rey, a house and lot
valued at P1 million. Due to business reverses, Abe
died poor ten years later. Larry, Abe’s son,
immediately commenced an action to recover the
donated property on grounds that his legitime has
been impaired. The property is now valued at P5
million. Decide.
The action, insofar as it seeks to reduce the donation,
will prosper because Larry’s legitime has been
impaired. Larry’s legitime is half of Abe’s estate.
However, what is to be collated to the estate is the value
of the property at the time of the donation and not the
value at the time of the donor’s death. Accordingly,
Larry is not entitled to half of the present value of the
property (Php5 million), but only to half of its value of
Php500,000 which Rey may pay in cash.
QUESTION NO. 222
Abe died in 1999. Before his death, he left a notarial
will instituting his five sons, Ben, Charlie, Dante,
Enrico and Fidel as his sole heirs. Ben died in 1997
in a vehicular accident. He left two children, Greg
and Homer. Charlie, who has been convicted of an
attempt against the life of Abe, has a son Inigo.
Dante was disinherited for a cause not recognized
by law. He is the father of John, Karl, Lito and
Manuel. Enrico repudiated his inheritance because
his father never accepted his wife. They have two
children, Nomer and Orly. The net value of Abe’s
hereditary estate is P1 million. Distribute the estate.
Since Ben predeceased Abe, the testator, his legitimate
children Greg and Homer shall represent him in the
succession. The same is true in the case of Charlie, since
he is incapacitated to inherit from his father because of
an act of unworthiness. His legitimate child, Inigo, shall
represent him in the succession. Also, John, Karl, Lito
and Manuel shall inherit by right of representation
because their father, Dante, was disinherited. It is
different in the case of Enrico. An heir who repudiates
his inheritance cannot be represented. (Art 977, Civil
Code) The legitime of Enrico shall be distributed in
accordance with the rules on intestate succession, while
his share as a voluntary heir shall accrue to his co-heirs,
Ben, Charlie, Dante and Fidel. But Ben is already dead,
Charlie is incapacitated, and Dante was disinherited.
The only living and capacitated heir is Fidel. Thus:
Fidel 100,000 as compulsory heir
100,000 as voluntary heir
100,000 by right of accretion from B
100,000 by right of accretion from C
100,000 by right of accretion from
D
100,000 by right of accretion from E
25,000 as legal heir
Greg 50,000 by right of representation
 12,500 as legal heir
Homer 50,000 by right of representation
12,000 as legal heir
Inigo 100,000 by right of representation
25,000 as legal heir
John 25,000 by right of representation
6, 250 as legal heir
Karl 25,000 by right of representation
6,250 as legal heir
Lito 25,000 by right of representation
6,250 as legal heir
Manuel 25,000 by right of representation
6,250 as legal heir
QUESTION NO. 223
Judge Abe, a municipal trial court judge of
Naguilian, La Union, performed a marriage in Tuba,
Benguet, upon written request of the parties. Is the
marriage valid?
Yes. The solemnization by a judge of a marriage outside
his court’s jurisdiction is merely a resultant irregularity
in a formal requisite laid down in Article 3 of the Family
Code which, while it may not affect the validity of the
marriage, may subject the officiating official to
administrative liability. (Navarro v. Domagtoy, 259
SCRA 137 [1996])
QUESTION NO. 224
Which voidable marriage is not susceptible of
ratification by cohabitation under the law?
Marriages which are voidable because of the physical
incapacity of a party to consummate the marriage and
those by reason of affliction of a party with a serious
and incurable sexually-transmissible disease are not
susceptible of ratification by cohabitation. (Art. 45, Nos.
5 & 6, Family Code)
QUESTION NO. 225
Abe and Amy were married in 1978, or ten years
before the Family Code. After 15 years of marriage,
Abe obtained a decree of legal separation after
catching his wife having illicit relations with their
neighbor. In the decree, the court forfeited Amy’s
share in the net profits earned by the conjugal
partnership in favor of her children pursuant to
Article 63(2) in relation to Article 129 of the Family
Code.
Amy quickly assailed the ruing claiming that the net
assets of the conjugal partnership shall be
computed in accordance with Article 102 of the
Family Code, instead of Article 129. She claimed that
Article 102 applies because there are no other
provisions under the Family Code which defines net
profits subject of forfeiture as a result of legal
separation. She argued that her vested right over
half of the common properties of the conjugal
partnership is violated when the forfeiture is to be
made pursuant to Article 129 in relation to Article
63(2) of the Family Code.
a. What law governs the property relations of the
spouses given that they were married before the
effectivity of the Family Code? What law governs
the dissolution of their common properties since
the decree of legal separation was issued after
the Family Code is already in effect?
As to property relations, the spouses are governed by
the regime of conjugal partnership of gains. This is so
because they were married when the operative law was
the Civil Code. But as to the liquidation of their conjugal
partnership assets, the Family Code is the law
applicable because it is already the operative law at the
time of the dissolution of their conjugal partnership.
The applicable law in so far as the liquidation of the
conjugal partnership assets and liabilities of Abe and
Amy is concerned is Article 129 of the Family Code
(provision on liquidation of the conjugal partnership) in
relation to Article 63 (effects of a decree of legal
separation). The latter provision is applicable because
according to Article 256 of the Family Code ”[t]his Code
shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in
accordance with the Civil Code or other law.”
Amy’s contention that her vested right over half of the
common properties of the conjugal partnership is
violated when her share in the conjugal partnership is
forfeited in favor of her children pursuant to Article
63(2) and 129 of the Family Code has no basis.
While it is true that the couple were married at the time
when the operative law was the Civil Code, the Family
Code should be given retroactive application for
purposes of determining the “net profits earned” by the
conjugal partnership which is subject to forfeiture. A
spouse’s claim of a vested right is not etched in stone.
To be vested, a right must have become a title – legal or
equitable – to the present or future enjoyment of
property. In one case, the Supreme Court reiterated its
long standing ruling that “prior to the liquidation of the
conjugal partnership, the interest of each spouse in the
conjugal assets is inchoate, a mere expectancy, which
constitutes neither a legal nor an equitable estate, and
does not ripen into title until it appears that there are
assets in the community as a result of the liquidation
and settlement. The interest of each spouse is limited to
the net remainder resulting from the liquidation of the
affairs of the partnership after its dissolution. Thus, the
right of the husband or wife to one-half of the conjugal
assets does not vest until the dissolution and liquidation
of the conjugal partnership, or after the dissolution of
the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets
left which can be divided between the spouses or their
respective heirs.”
b. Is the computation of net profits earned in the
conjugal partnership of gains the same with the
computation of net profits earned in the absolute
community?
The term net profits is defined in Article 102(4) of the
Family Code. Under this provision, the term 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.” Without any doubt, Article
102(4) applies to both the dissolution of the absolute
community regime under Article 102 of the Family
Code, and the dissolution of the conjugal partnership
regime under Article 129 of the Family Code. The
difference lies in the processes used under the
dissolution of the absolute community regime under
Article 102 of the Family Code, and in the processes
used under the dissolution of the conjugal partnership
regime under Article 129 of the Family Code.
ABSOLUTE COMMUNITY REGIME: Applying Article 102
of the Family Code, the “net profits” requires a prior
determination of 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, the
debts and obligations of the absolute community are to
be deducted and this will result to the net assets or net
remainder of the properties of the absolute community,
from which the value of the properties at the time of
marriage is to be deducted, which then results to the net
profits.
CONJUGAL PARTNERSHIP REGIME: Applying Article
129 of the Family Code, the “net profits” requires a prior
determination of the separate properties and debts of
the spouses under the following procedure a) an
inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse; b) amounts advanced by the
conjugal partnership in payments of personal debts and
obligations of either spouse shall be credited to the
conjugal partnership as an asset thereof; c) each spouse
shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of
his or her exclusive property, the ownership of which
has been vested by law in the conjugal partnership; d)
the debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions
of paragraph 2 of Article 121; e) whatever remains of
the exclusive properties of the spouses shall thereafter
be delivered to each of them; f) unless the owner had
been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the
family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any; and g)the net remainder of the
conjugal partnership shall constitute the profits, which
shall be divided equally between husband and wife,
unless a different proportion or division was agreed
upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as
provided in the Family Code.
c. Suppose that Article 102 of the Family Code
(which is a provision under the regime of
absolute community of property) is to apply in
the instant case, is Amy entitled to receive
anything from the absolute community?
If Abe and Amy have no separate properties, the
remaining properties of the couple 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.” When Abe and Amy
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.”
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 or net remainder of the couple’s
remaining properties, the market value at the time of
the marriage will be subtracted and the resulting
totality constitutes the “net profits.” Since Abe and Amy
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, the
trial court forfeited the half-share of Amy in favor of her
children. Thus, if Article 102 is used in the instant case
(which should not be the case), nothing is left to Amy
since both parties entered into their marriage without
bringing with them any property.
d. Given that Article 129 of the Family Code applies
to the liquidation of the conjugal assets of Abe
and Amy, is the latter entitled to receive any
property from the conjugal partnership?
No. What remains in the conjugal properties of Abe and
Amy (after payment of all debts and obligations) should
be divided equally between them. However, since Amy
is the guilty party, her 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.
Nothing will be returned to Amy because in the conjugal
partnership regime, there is no separate property which
may be accounted for in the guilty party’s favor. (Quiao
v. Quiao, G.R. No. 176556, July 4, 2012)
QUESTION NO. 226
Abe is the owner of a farm which he leased to a
married couple. When the couple failed to pay rent,
Abe sued for payment of their rental arrears. The
wife promptly moved to dismiss the complaint on
grounds that her husband is already dead, and that
therefore Abe’s claim must be filed in the
proceedings for the settlement of her husband’s
estate. May Abe sue the wife alone for collection of
a debt which is owed by the conjugal partnership?
No. A creditor cannot sue the surviving spouse of a
deceased person in an ordinary proceeding for the
collection of a sum of money chargeable against the
conjugal partnership. The proper remedy is for the
creditor to file a claim in the settlement of the estate of
the deceased spouse. This is so because upon the death
of one spouse, the powers of administration of the
surviving spouse ceases and are passed to the
administrator appointed by the court having
jurisdiction over the settlement of estate proceedings.
For marriages governed by the rules on conjugal
partnership of gains, an obligation entered into by the
spouses is chargeable against their conjugal partnership
and it is the partnership which is primarily bound for its
repayment. Thus, when the spouses are sued for the
enforcement of an obligation entered into by them, they
are joined in their capacity as representatives of the
conjugal partnership and not as independent debtors
such that the concept of joint or solidary liability, as
between them, does not apply. (Alipio v. Court of
Appeals, 341 SCRA 441 [2000])
QUESTION NO. 227
Can there be an easement over another easement?
An easement over a usufruct? A usufruct over an
easement?
As to the first question: Yes, there can be an easement
over another easement. Article 629 of the Civil Code
provides that the owner of the servient estate must
abstain from anything that will render the use of the
easement more inconvenient to the owner of the
dominant estate. This is a negative easement which
requires the owner of the servient estate not to impair
in any manner whatsoever the use of the easement
(such as a right of way).
As to the second question: No, there cannot be an
easement over a usufruct, but there can be an easement
over a property held in usufruct.
As to the third question: No, there cannot be a usufruct
over an easement, but a usufruct may be established in
a property burdened by an easement.
QUESTION NO. 228
In 1977, Amy donated to her sons (Art, Ben, and Cal)
a parcel of land under the following conditions: a)
the donation shall be irrevocable; b) the land shall
remain in the possession of the donor during her
lifetime; c) the land shall not be sold or mortgaged
during the lifetime of the donor; and d) the
donation shall take effect only upon the donor’s
death. Amy’s sons accepted the donation in the
same public instrument.
Two years later, or in 1979, Amy sold the land to her
eldest son, Art. The sale resulted in the issuance of
a certificate of title in the name of Art.
In 1985, Ben and Cal brought an action to annul the
sale and for reconveyance of the property. Art
defended on the ground of prescription. He argued
that more than four years have passed since the sale
and registration of the property and issuance of his
title. He insisted that an action for reconveyance of
property on the ground of fraud must be filed
within four years from the discovery of the fraud
which is from the date of registration of the sale in
1977; and that the same prescriptive period also
applies to an action predicated on a trust
relationship that is rooted on fraud or breach of
trust.
a. Was the donation to Art, Ben and Cal inter vivos
or mortis causa?
The donation was inter vivos. The express irrevocability
of the donation is the distinctive standard that identifies
the donation as inter vivos. The other provisions which
seemingly make the donation mortis causa do not go
against the irrevocable character of the subject
donation. The provisions which state that the donation
will only take effect upon the death of the donor and the
prohibition to alienate, encumber, dispose or sell the
property donated are provisions which should be
harmonized with its irrevocability. Suffice it to say that
these provisions are only necessary assurances that
during the donor’s lifetime, the latter would still enjoy
the right of possession over the property; but his naked
title has been passed on to the donees; and that upon
the donor’s death, the donees would get all the right to
use and possess the same.
Another indication that the donation is inter vivos is the
acceptance of the donation by the donees. An
acceptance is a mark that the donation is inter vivos. On
the other hand, donations mortis causa, being in the
form of a will, are not required to be accepted by the
donees during the donor’s lifetime.
b. Has the action prescribed?
The action has not yet prescribed. When one’s property
is registered in another person’s name without the
former’s consent, an implied trust is created by law in
favor of the true owner. Article 1144 of the Civil Code
provides for a ten-year prescriptive period from the
time the right of action accrues in case of a) a written
contract; b) an obligation created by law; and c) a
judgment. Thus, an action for reconveyance prescribes
in ten years from the issuance of the title. It is only
when fraud has been committed that the action will be
barred after four years.
However, the four-year prescriptive period is not
applicable to the instant case because there is no fraud.
The records do not show that Amy, the donor, and Art,
the donee, ever intended to defraud Ben and Cal with
respect to the sale and ownership of the subject
property. On the other hand, the sale was grounded
upon their honest but erroneous interpretation of the
deed of donation that it is mortis causa, not inter vivos,
and that the donor still had the right to sell or dispose of
the donated property and to revoke the donation.
There being no fraud, the trust relationship between the
donor and the donees, including the buyer Art, the
action for recoveyance prescribes in ten years.
Considering that the certificate of title in the name of
Art covering the subject property was issued only in
1977, the filing of the action in 1985 was well within the
ten-year prescriptive period.
c. Is the sale by Amy to Art a valid act of revocation
of the donation?
The sale to Art cannot be considered as a valid act of
revocation of the donation because a formal complaint
to revoke the donation must be filed pursuant to Article
764 of the Civil Code which speaks of an action that has
a prescriptive period of four years from the non-
compliance with the condition stated in the deed of
donation. The rule that there can be automatic
revocation without benefit of a court action does not
apply to the case at bar because the subject deed of
donation is devoid of any provision providing for
automatic revocation in the event of non-compliance of
the condition violated. (Austria-Magat v. Court of
Appeals 375 [2002])
QUESTION NO. 229
Abe executes in favor of Amy a document
denominated as “Deed of Donation Inter Vivos”
involving a parcel of land. The deed of donation
contains a provision that it becomes effective only
upon the death of the donor, and that in the event
the donee should die before the donor, the donation
shall be deemed automatically rescinded and of no
further force and effect.
Shortly after Abe’s death, his heirs promptly filed an
action seeking to annul the donation. They contend
that the donation is mortis causa and not inter vivos
and therefore void for failure to comply with the
formalities of wills. Is the donation inter vivos or
mortis causa?
The donation is mortis causa. In a donation mortis
causa, the right of disposition is not transferred to the
donee while the donor is still alive. In determining
whether a donation is one of mortis causa, the following
characteristics must be taken into account: a) it conveys
no title or ownership to the transferee before the death
of the transferor, or what amounts to the same thing; b)
the transferor should retain the full or naked ownership
and control of the property while alive; c) before his
death, the transfer should be revocable by the
transferor at will; and d) the transferor should be void if
the transferor should survive the transferee.
In the present case, the nature of the donation as mortis
causa is confirmed by the fact that the donation does
not contain any clear provision that intends to pass
proprietary rights to Amy prior to Abe’s death. The
phrase “to become effective upon the death of the
donor” admits of no other interpretation but that Abe
did not transfer the ownership of the property to Amy
during his lifetime. Considering that the disputed
donation is a donation mortis causa, the same partakes
of the nature of testamentary provisions and as such,
must be executed in accordance with the requisites on
solemnities of wills and testaments under the Civil
Code. (Maglasang v. Heirs of Cabatingan, G. R. No.
131953, June 5, 2002)
QUESTION NO. 230
What are some of the prescriptive periods under
our laws?
The following are some of the prescriptive periods
under our laws:
40 days
Redhibitory action based on defects of animals. (Art.
1577, CC)
6 months
Action for reduction of price or breach of sale of real
estate. (Arts. 1543 and 1539, CC)
Action for reduction of price against hidden defects of
thing sold. (Art. 1571, CC)
1 year
Action to impugn child’s legitimacy, if husband resides
in the same place. (Art. 170, FC)
Action for revocation of donation for acts of ingratitude.
(Art. 769, CC)
Action for forcible entry or unlawful detainer. (Art.
1147, CC)
Action for defamation. (Art. 1147, CC)
Action for rescission or for damages if immovable sold
is encumbered with non-apparent burden. (Art. 1560,
CC)
Action for warranty of solvency in assignment of
credits. (Art. 1629, CC)
Action for loss or damage to goods under COGSA
2 years
Action to impugn child’s legitimacy, if husband is in the
Philippines but not residing in the same place (Art. 170,
par. 2. FC)
3 years
Action to impugn child’s legitimacy, if husband is
abroad or outside the Philippines (Art.170, FC)
4 years
Action for revocation or reduction of donation based on
supervening birth, reappearance of a child or adoption.
(Art. 763, CC)
Action for revocation of donation due to non-fulfilment
of condition. (Art. 764, CC)
Action for recovery of movable (replevin) if possessor is
in good faith (Art. 1132, CC)
Action upon an injury to rights of plaintiff (Art. 1146,
CC)
Action upon a quasi-delict (Art. 1146, CC)
Action for rescission of rescissible contracts (Art. 1389,
CC)
Action to annul voidable contracts on the ground of
vitiated consent (Art. 1391, CC)
Action for rescission of partition of decedent’s estate on
account of lesion (Art. 1100, CC)
5 years
Action for legal separation (Art. 57, FC)
Action for annulment of marriage, except on the ground
of insanity (Art. 47, FC)
Action to claim legitimacy or illegitimacy if child dies
during minority or in a state of insanity (Art. 173, FC)
Action to impugn legitimacy (Art. 182, FC)
Action for declaration of incapacity of an heir (Art. 1040,
CC)
Action for warranty of solvency of debtor if credit is
assigned to a co-heir during partition (Art. 1095, CC)
All other actions whose periods are not fixed by law
(Art. 1149, Civil Code)
6 years
Action upon an oral contract (Art. 1145, C )
Action upon a quasi-contract (Art. 1146, CC )
8 years
Action for recovery of movable (replevin) if possessor
is in bad faith (Art. 1132, par 2. and Art. 1140, CC)
10 years
Action for recovery of possession of immovables (accion
publiciana) if real right is lost (Arts. 555 and 1134, CC)
Action for recovery of ownership of immovables
(reivindicatoria) if in good faith (Art. 1134, CC)
Action upon a mortgage contract (Art. 1142, CC)
Action upon a written contract (Art. 1144, CC)
Action upon an obligation created by law (Art. 1144, CC)
Action upon a judgment to enforce warranty against
eviction in partition (Art. 1094, CC)
30 years
Action for recovery of ownership of immovables
(reivindicatoria), if in bad faith (Art. 1141, CC)
Lifetime
Action for annulment of marriage based on insanity
(Art. 47, par. 2, FC)
Action for declaration of nullity of marriage (Art. 39, FC)
Action to claim legitimacy (lifetime of child) (Art. 173,
FC)
Action to claim illegitimacy (lifetime of child; If by other
means, only during lifetime of parent) (Art. 175, par. 2,
FC)
Action for legal support
Action for reduction of donation due to failure of donor
to reserve property for his support and support of
others (during lifetime of donor or relatives) (Art. 750,
CC)
No prescription
Action to declare a contract as inexistent or void.
Action to recover movable possessed thru a crime (no
prescription in favor of offender)
Action to demand a right of way under Article 649, Civil
Code
Action to demand partition in co-ownership or to
enforce an express trust
Action to probate a will
Action to enforce a moral right (P.D. No. 49)
Action to recover possession of registered land under
the Land Registration Act by registered owner or
hereditary successors.
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