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CIVIL LAW 2 PRE-WEEK PRE-WEEK CIVIL LAW PERSONS AND FAMILY RELATIONS Q: What are the two

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CIVIL LAW

PERSONS AND FAMILY RELATIONS

Q: What are the two kinds of capacity?

A:

Juridical capacity, or legal capacity, is the

fitness of man to be the subject of legal relations. It refers to the aptitude for the holding

and enjoyment of rights. It is inherent in every natural person and is lost only through death.

This attaches being a man.

to man

by the

mere

fact

of

his

Capacity to act refers to the power to do acts with legal effect. It is conditional and variable. It is acquired and may be lost. It requires both intelligence and will.

Juridical capacity can

exist even without

capacity to act; the existence of the latter implies that of the former. The capacity or incapacity of persons depends upon the law. Both juridical capacity and capacity to act are not rights but qualities of persons; hence, they cannot be renounced.

Q: How is personality determined?

A:

Birth

determines

personality.

But

a

conceived child shall be considered born for all purposes that are favorable to it, provided it be born later (Art 40, CC).

The fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery (Art 41 CC).

Q: What happens when there is doubt as to the order of death between persons?

A: Article 43 of the Civil Code provides a statutory presumption when there is doubt on the order of death between persons who are called to succeed each other (only). If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Q: What are the requisites for marriage?

A: The essential requisites of marriage are: 1) legal capacity of the contracting parties, who must be a male and a female; and 2) consent (of the parties) freely given in the presence of a solemnizing officer (Art 2 FC).

The formal requisites

are:

1)

authority

of

solemnizing officer; 2) valid marriage license; and 3) marriage ceremony (Art 3 FC).

The absence of

any of the essential or formal

requisites shall

render

the marriage void

ab

initio, except

where

the

marriage was

solemnized by a person not legally authorized

and

one party believed in

good faith that

the

officer had authority to do so (Arts 3 and 35(2) FC). A defect in any of the essential requisites shall not affect the validity of the marriage but

the

party

or

parties

responsible

for

the

irregularity

shall

be

civilly,

criminally

and

administratively liable.

 

Q: What are void marriages?

 

A:

The following are void marriages:

Article 35 (Void from the Beginning)

1)

Contracted by any party below eighteen

years of age even with the consent of parents or guardians 2) Solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. 3) Solemnized without license, except in marriages under exceptional circumstances 4) Bigamous or polygamous marriages not

5)

falling under Article 41 (Art. 41: subsequent marriage by present spouse who obtained a declaration of presumptive death for absent spouse prior to the subsequent marriage) There is a mistake as to the identity of the

other contracting party 6) Subsequent marriages that are void under Article 53 (Art 53: a subsequent marriage is null and void if prior to its celebration, it has not recorded in the civil registry and registries of property the items in Art. 52)

Article 36 (Psychological Incapacity)

1) Contracted by any party who, at the time of

the

celebration,

was psychologically

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CIVIL LAW 3 PRE-WEEK incapacitated to comply with the essential marital obligations of marriage, even if

incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization

Article 37 (Incestuous)

3) the spouse present had a well-founded belief that the missing person is dead; and 4) judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse).

1) Between ascendants and descendants of

Q: What are the requisites for psychological incapacity?

2)

any degree, legitimate or illegitimate Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate

A: Republic v. Molina (1997) set forth the following rules in declaring a marriage void due to psychological incapacity:

Article 38 (Against Public Policy)

1)

The burden of proof to show the nullity of the

1)

Between collateral blood relatives, legitimate

marriage belongs to the plaintiff.

2)

or illegitimate, up to the fourth civil degree. Between step-parents and step-children.

2) The root cause of the psychological incapacity must be: (a) medically or clinically

3)

Note: Stepbrothers and stepsisters can marry because marriages between them are not among those enumerated in article 38. Between parents-in-law and children-in-law.

identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision. Note: The new Supreme Court Rule on

4)

Between adopting parent and adopted child.

Declaration of absolute nullity of Void

5) Between the surviving spouse of the adopting parent and the adopted child.

 

Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective

6) Between the surviving spouse of the adopted child and the adopter.

March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a

7)

Between an adopted child and a legitimate

condition sine qua non for proof of

child of the adopter. 8) Between adopted children of the same adopter. 9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

3)

psychological incapacity. The root cause may be proven by the totality of evidence in actual trial. The incapacity must be proven to be existing at “the time of the celebration” of the marriage.

4)

Such incapacity must also be shown to be

Article 41 (Bigamous Marriages, Absentee Spouse and Presumptive Death)

medically or clinically permanent or incurable.

1) In general, marriage contracted by any person during the subsistence of a previous marriage is void.

5)

Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

6)

The essential marital obligations must be

Article 44 (Present spouse who contracts marriage in bad faith)

those embraced by Articles 68 up to 71 of the Family Code as regards the husband

1) Both spouses of a subsequent marriage acted in bad faith in case where a previous spouse was an absentee

and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children.

Q: When is the subsequent marriage of a present spouse valid?

A: When one spouse is absent, the remarriage of a present spouse is valid when: 1) the prior spouse had been absent for 4 consecutive years; 2) the spouse present had a well-founded belief that absent spouse is dead; and 3) judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse).

In extraordinary absence, the following must be established: 1) the prior spouse had been missing for 2 consecutive years; 2) there is danger of death attendant to the disappearance;

7) Interpretations given by the National

8)

Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification. Note: The new Supreme Court Rule on

Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance

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of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory. 8) 9) Sexual
of the prosecuting attorney or fiscal and the
Solicitor-General is no longer mandatory.
8)
9)
Sexual infidelity or perversion;
Attempt by the respondent against the life of
the petitioner;

Q: What are the grounds for annulment?

 

10) Abandonment of petitioner by respondent

A:

Marriage may be annulled on the following

without justifiable cause for more than one

grounds existing at time of marriage:

 

year.

1)

One of the parties is 18 or above but below

 

21, and there is no parental consent.

 

Q: Is divorce allowed in the Philippines?

2)

Either party was of unsound mind (insanity).

A: In general, divorce is not allowed in the

3)

The consent of either party was obtained through fraud (different from mistake in identity):

Philippines and even for Filipinos abroad. However, the law recognizes foreign and Muslim divorces.

a)

through non-disclosure of a previous conviction of a crime involving moral turpitude;

For a foreign divorce to be valid, there must be a valid marriage between a Filipino citizen and a

b)

through concealment by the wife of the

foreigner, and divorce is validly obtained by the

 

fact at the time of the marriage that she was pregnant by another man;

alien spouse, capacitating him or her to remarry. In such case, the Filipino spouse shall likewise

 

c)

through concealment of a sexually- transmitted disease, regardless of its nature, existing at the time of marriage;

have the capacity to remarry under Philippine law.

d)

through concealment of drug addiction,

Q: May a Filipino obtain divorce?

 

habitual alcoholism

 

or

A: No. Only a Filipino who has renounced his

4)

homosexuality/lesbianism. The consent of either party was obtained through force, intimidation, or undue influence.

citizenship is allowed to obtain divorce. The time of obtaining foreign citizenship is necessary to determine the validity of divorce obtained by the spouse who applied for foreign citizenship. It

5) Either

party

is

physically incapable of

must be ascertained that when that spouse

6)

consummating the marriage (impotence; this is different from sterility). Either party has a serious and incurable

obtained the divorce, he/she was no longer bound by Philippine domestic law.

sexually-transmissible disease, even if not concealed.*

Q: How is the property relations of married spouses determined?

A: Property relations is determined primarily by

Q:

What

are

the

grounds for legal

the marriage settlement agreed upon by the

separation?

 

spouses before their marriage (Art 75 FC).

A:

Spouses can agree to whatever regime they

1)

Repeated

physical

violence

or

grossly

 

want (ACP, CPG, complete separation or any

abusive conduct directed against the

other property). In the absence of a marriage

2)

petitioner, a common child, or a child of the petitioner; Physical violence or moral pressure to

settlement or if the regime agreed upon is void, the property regime of absolute community of property will be followed as provided in the

3)

compel the petitioner to change religious or political affiliation; Attempt of respondent to corrupt or induce

Family Code. Local customs shall be considered as suppletory.

the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or

Q: What constitute community and conjugal properties?

4)

connivance in such corruption or inducement; Final judgment sentencing the respondent to

A: Community properties are comprised of all the property owned by the spouses at the time of the celebration of the marriage or acquired

5)

imprisonment of more than six years, even if pardoned; Drug addiction or habitual alcoholism of the respondent;

thereafter. Excluded therefrom are properties acquired by a gratuitous title and its fruits, properties for personal use, and properties acquired before the marriage, for those with

6)

Lesbianism

or

homosexuality of the

legitimate descendants with a former marriage.

respondent;

 

Conjugal properties are comprised of

7)

Contracting

by

the

respondent

of

a

(1) those acquired by onerous title during the

subsequent bigamous marriage, whether in the Philippines or abroad;

marriage at the expense of the common fund,

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CIVIL LAW 5 PRE-WEEK (2) those acquired through the labor, industry, work, profession of either or

(2) those acquired through the labor, industry, work, profession of either or both spouses, (3) fruits from common property and net fruits of exclusive property of each spouse,

(4) share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found, (5) those acquired through occupation such as fishing or hunting,

(6) livestock

existing

at

dissolution

of

partnership in excess of what is brought by either spouse to the marriage, and (7) those acquired by chance, such as winnings from gambling or betting.

Q: With whom vests the authority to administer community/conjugal properties?

A: The authority to administer community/conjugal properties vests with both spouses jointly. If they disagree the husband’s decision prevails. However, the wife has five (5) years from the date of the decision to go to court for recourse. Otherwise, it is presumed that she agreed with the husband’s decision.

Q: Is money received Security Act conjugal?

under the Social

A: No. Although the employee-spouse contributes to the SSS with his salaries, the proceeds thereof belongs to the designated beneficiary under the Social Security Law.

Q: What is the property regime for persons cohabiting without a valid marriage?

A: When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In

cases

of

cohabitation

of

individuals

not

capacitated to marry each other, only the properties acquired by both of the parties through their actual joint contribution of money,

property, or industry shall be owned by them in common in proportion to their respective

contributions. In the absence of proof

to

the

contrary, their contributions and corresponding shares are presumed to be equal.

Q: Who are legitimate children?

A: Children conceived, through natural means or artificial insemination, or born during the marriage of parents.

Q: Who are illegitimate children?

A: Those conceived and born outside of a valid marriage, except children of marriages void under Article 36 (psychological capacity) and Article 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children).

Q: What are the grounds for impugning the legitimacy of a child?

A: The grounds for impugning the legitimacy of a child are:

(1) Physical impossibility for sexual intercourse within the first 120 days of the 300 days which immediately preceded the child's birth due to physical incapacity of the husband, physical separation and serious illness; and (2) Other biological or scientific reasons, except artificial insemination. In case of artificial insemination, legitimacy may be impugned if the consent of either parent was vitiated through fraud, violence, mistake, intimidation, or undue influence.

Q: How is legitimacy of a child impugned?

A: The action for impugning the legitimacy of a

child may be brought within one (1), two (2), or three (3) years from the knowledge of the birth, or the knowledge of registration of birth.

  • a. The action should be brought within one (1) year if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded;

  • b. Within two (2) years if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded; and

  • c. Within three (3) years, if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines.

If

the birth of

the child has been concealed or

was unknown to the husband, the above periods shall be counted from the discovery or knowledge of the birth of the child, or from the discovery or knowledge of its registration, whichever is earlier.

Q: How may filiation be proven?

A: Legitimate or illegitimate children may prove their filiation in the same way and on the same evidence. They may prove their status using only the following means: by their record of birth appearing in the civil registry, by an admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by

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CIVIL LAW 6 PRE-WEEK said parent or parents, by proof of open and continuous possession of

said parent or parents, by proof of open and continuous possession of status as legitimate or illegitimate child, and any other means stated by the rules of court or special laws.

Q: Who may adopt?

A: Filipino Citizens may adopt provided he/she is of legal age; is in possession of full civil capacity and legal rights; of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptee’s parent; and is in a position to support and care for his/her children in keeping with the means of the family.

Aliens may also adopt Filipino children provided that he/she possesses the same qualifications for Filipinos but is at least twenty seven (27) years old, and that, his/her country has diplomatic relations with the Philippines; he/she has been living continuously for 3 years in the Philippines prior to the filing of application and maintains such residence until the decree is entered; he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country; his/her government allows the adoptee to enter his/her country as his/her adoptee; and he/she has submitted all the necessary clearances and such certifications as may be required.

Q: What are the effects of adoption?

A: In the event of adoption, all legal ties between biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter. The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Further, the adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern.

Q: May the adopter/s rescind an adoption?

A: NO. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter/s (Sec 19, RA 8552).

Q: Who may rescind and adoption and for what grounds?

A: The adopted may request for rescission, with the assistance of DSWD, if a minor, or over 18 but incapacitated, on any of the following grounds:

(1) repeated physical and verbal maltreatment despite having undergone counseling, (2) attempt on life of adoptee, (3) sexual assault or violence, and (4) abandonment or failure to comply with parental obligations (Sec 19, RA 8552).

Q: Where is application for inter-country legal adoption filed?

A: Application shall be filed with the Philippine

Regional Trial Court having jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.

Q: What consists of support?

A: Support consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The right and duty to support, especially the right to education, subsists even beyond the age of majority.

Q: How is support given?

A: Support is given by payment of the amount or by accepting the recipient in the home of the provider, unless there is a legal or moral obstacle from doing so.

Q: What is the tender years presumption?

A: Under the tender years presumption, no child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Examples of compelling reasons include the following instances: when the mother is insane, or with a communicable disease that might endanger the life or health of the child, or is maltreating the child; or has another child by another man who lives with her (Art 363, CC)

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CIVIL LAW 7 PRE-WEEK SUCCESSION Q: When do heirs acquire a definite right to the inheritance

SUCCESSION

Q: When do heirs acquire a definite right to the inheritance?

A: Heirs

acquire

a

definite

right

to

the

inheritance

,

whether

such

right

be

pure,

conditional or

with

a

term

at

the moment of

death of the decedent (Art 777)

Q: What is the definition of an “heir?” What are the kinds of heirs?

A: An heir means one who succeeds to all the transmissible property, rights and obligations of the deceased person or to a certain indeterminable or aliquot part thereof, either by the provision of a will or by operation of law.

Heirs may be classified into:

  • 1. Compulsory Heirs – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by

law known

as

the legitime, of

which they

cannot be deprived by the testator, except

by

a

valid

disinheritance.

They succeed

regardless of a will.

  • 2. Voluntary or Testamentary Heirs – those who are instituted by the testator in his will, to succeed to the portion of the inheritance of

which the testator can freely dispose.

They succeed by reason of a will.

  • 3. Legal or Intestate Heirs – those who succeed to the estate of the decedent who dies without a valid will, or to the portion of

such estate not

disposed of

by will.

They

succeed in the absence of a valid will,

although this

is

not

the

only ground

for

intestacy.

Q: What are requirements for testamentary capacity? A: In order to conclude that the decedent had testamentary capacity it must be shown that the testator is of sound mind at the time of the execution of the will (Art 798, CC), that he is not under 18 years of age (Art. 797, CC), and that he is not expressly prohibited by law to make a will (Art 796, CC).

Q:

How can we say that the testator is of

sound mind?

A:

The testator is of sound mind if he knew the

nature of the estate to be disposed of; he knew the proper objects of his bounty; and if he knew the character of the testamentary act (Art. 799,

CC)

It is must be noted that to be of sound mind, it is

not necessary that

the

testator

be

in

full

possession of all his reasoning faculties, or that

his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. (Art. 799, CC). Moreover, soundness of mind is presumed (Art. 800, CC.)

Q: What is the effect supervening capacity or supervening incapacity on a will?

A: Supervening capacity will not validate a will. Supervening incapacity will not invalidate a will.

Q: What are the common requirements for both notarial and holographic wills?

A: As provided under Art 804, both kinds of wills must be in writing and must be executed in a language known to the testator.

Q: What are the specific requirements for notarial wills?

A: The notarial will must be:

 

1.

In writing (Art. 804, CC)

 

2.

In the language known to the testator (Art. 804, CC)

3.

Subscribed to, at the end (Art. 805, CC) By the testator himself; or By the testator’s name written by a representative in his presence and under his express direction.

4.

Attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another (Art. 805, CC).

5.

Signed by the testator or his representative under the instruction of the testator and the witnesses on each and every page except the last page (Marginal signatures)

6.

Numbered correlatively (Art. 805, CC), i.e., Page One of Five pages (Arabic numerals)

7.

Acknowledged before a notary public by the testator and the witnesses (Art. 806, CC)

Q: What

must

the

attestation

clause

contain?

 

A:

The attestation clause shall state the ff:

 

1.

Number of pages;

 

2.

The fact that the

testator

or

his

 

representative

 

under

his

express

direction signed the will and every page

in the presence of instrumental witnesses

 

3.

That the witnesses signed the will and

 

all

its pages

in

the

presence of

the

testator and of one another.

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CIVIL LAW 8 PRE-WEEK Q: How is presence, in relation to the Q: What is a

Q: How

is

presence,

in

relation

to

the

Q: What is a codicil?

 

requirement of attestation, determined?

A: A codicil is supplement or addition to a will,

A: As provided in the case of Jaboneta vs.

made after the execution of a will and annexed

Gustilo, (1906), the test

of

presence

is

not

whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their

to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered (Art 825).

mental and physical condition and position with

Q:

What

is the effect

of the insertion of

a

relation to each other at the moment of

codicil

written

 

by

another

person

in

a

inscription of each signature.

holographic will?

 
 

When made

   

Effect

Q: Must

there

always

be marginal

After

the

execution,

Insertion considered

signatures on all pages of notarial wills?

 

without

consent

of

not written. Validity

A: The general rule is that each and every page of the will must be signed by the testator or his representative and his witnesses. However,

testator

 

cannot be defeated by the malice or caprice of a third person

in the case of Abangan v Abangan (1919), the

After

execution,

with

Will

is

valid, insertion

Court ruled that when the will consists of only

consent

 

is void.

two pages, the first of which contains all

After

execution,

Insertion becomes part

dispositions and is signed at the bottom by the

validated by testator’s

of the will. Entire will

testator and the witnesses, and the second page contains only the attestation clause duly signed at the bottom by the witnesses, it is valid.

signature

 

becomes void because it is not wholly written by the testator.

Contemporaneous

to

Will is void because it

Q: What are the requisites for a holographic

the

execution

of

the

is not written entirely

will?

will

by the testator

A: The requisites for a holographic will are:

 
  • 1. In a language known to the testator (Art. 804, CC)

  • 2. Entirely written, dated and signed in the hand of the testator himself (Art. 810, CC)

Q:

Who

are qualified

to

be witnesses to

notarial wills? A: Under Art. 820, CC, those who may be

witnesses must be

  • 1. Of sound mind

  • 2. Aged 18 years or over

  • 3. Not blind, deaf or dumb

  • 4. Able to read and write

Q: Who are disqualified as witnesses? A: Under Art. 821, CC, those who may not be witnesses are

  • 1. Person not domiciled in the Philippines

  • 2. Those who have been convicted of falsification, perjury, or false testimony.

Q: What is the exception to the general rule that devises or legacies in favor of a spouse, parent or child who also attests to the will as a witness shall be void?

A: Devises or legacies in favor of a spouse, parent or child shall not be void if there are three witnesses other than the spouse, parent or child, in which case, the interested witness shall be considered as a mere surplusage.

Q: What does the principle of equality of heirs mean?

A:

Heirs

instituted

without

designation

of

shares shall inherit in equal parts (Art 846)

Q: What does the principle of individuality of institution mean?

A: When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the

children of C," those collectively designated shall

be considered as individually instituted, unless it

clearly appears that the intention of the testator

was otherwise (Art 847).

Q: What does the principle of simultaneity of institution mean?

A: When the testator calls to the succession a

person and his children they are all deemed to

have been instituted simultaneously and not successively (Art 849).

Q: May an institution made on the basis of false cause take effect?

A: The general rule is that the false cause is deemed not written and the institution shall take effect. However, if the testator would not have made the institution had he known the false cause, the institution shall not take effect.

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CIVIL LAW 9 PRE-WEEK Q: What is the doctrine of dependent 4. If it was procured

Q: What

is

the

doctrine

of dependent

4.

If it was procured by Undue and improper

If the Signature of the testator was procured

relative revocation?

 

pressure and influence, on the part of the

A: The rule that where the act of destruction is connected with the making of another will so as

5.

beneficiary or some other person;

to

fairly raise

the

inference that

the testator

by fraud; or

meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will

6.

If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time affixing his signature thereto.

intended to be made as a substitute is

Q: What

is

the

difference

between

inoperative, the revocation fails and the original

revocation and disallowance?

 

will remain in full force. (Molo v Molo 1951)

A:

 

Revocation

   

Disallowance

 

Q: What is probate?

 

Voluntary

Act

of

the

Given

 

by

Judicial

A: It is a special proceeding required to

Testator

 

Decree

 

establish the validity of

a

will and

in order

to

With or Without Cause

Must always be

for

a

pass real or personal property.

 

legal cause

 
 

May be partial or total

Always

 

total,

except

Q:

Can the probate

court inquire into the

when

the

ground of

intrinsic validity of testamentary provisions?

 

fraud

of

influence for

A: The general rule

is

that

in probate

example affects

only

proceedings, the probate court cannot inquire

certain portions of the

into

the

intrinsic

validity

of

testamentary

will

provisions. Only the extrinsic validity of such

 

rule

however

Q: What are the classes of substitution?

 

wills may be examined. This admits of certain exceptions:

 

A:

1.

Nuguid v.

Nuguid

(1966):

The

Supreme

1.

Simple or Common or Vulgar

 

Court, passing on the intrinsic validity of the

The testator may designate one or more

will in the probate proceedings, ruled that there being no devise or legacy, the

persons to substitute the heir/s instituted in case the heirs should:

institution of heir is totally annulled.

1.

die before him (predecease),

 
  • 2. Acain vs Diongson (1987): When the will is

2.

should not wish to accept the

 

intrinsically void, on its face such that to rule

 

inheritance (repudiation), or

on

its

formal

validity

would

be

a

futile

 

3.

should be incapacitated to accept the

exercise

  • 3. Valera vs. Inserto, (1987): Claimants are all heirs, and they consent, either, expressly or

 

inheritance (incapacitated). (Art. 859, CC)

impliedly, to the submission of the question

2.

Brief or Compendious (Art. 860, CC)

 

of intrinsic validity to the court.

1.

Brief – Two or more persons

were

  • 4. Pastor vs. CA, (1983): Probate court may

 

designated by the testator to substitute

pass upon the title thereto, but such determination is provisional and not

for only one heir

 

conclusive, and is subject to the final

 

2.

Compendious

One

person

is

decision in a separate action to resolve title.

 

designated to take the place of more heirs

two or

Q: What are the grounds for disallowance of a will?

3.

Reciprocal

 

A: Art 839 CC in relation to Rule 76, Section 9

If

the

heirs

instituted

in

unequal shares

should

be

reciprocally

substituted,

the

provides the exclusive list of grounds for disallowance of a will (FIFUSM):

  • 1. If the Formalities required by law have not been complied with;

  • 2. If the testator was Insane or otherwise mentally incapable of making a will at the time of its execution;

  • 3. If it was executed through Force or under duress, or the influence of fear, or threats;

substitute shall acquire the share of the heir who dies, renounces, or is incapacitated,

unless it clearly appears that the intention of the testator was otherwise. If there is more

than one substitute, they shall have the same share in the substitution as the institution.

CIVIL LAW

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CIVIL LAW 10 PRE-WEEK 4. Fideicommissary If the testator institutes an heir with an obligation to
  • 4. Fideicommissary If the testator institutes an heir with an obligation to preserve and to deliver to another the property so inherited. The heir instituted to such condition is called the First Heir or the Fiduciary Heir; the one to receive the property is the fideicommissary of the second heir. (Art. 863, CC)

Q: What

are

the

requisites

for

fideicommisary substitution?

A:

  • 1. A Fiduciary or First Heir instituted is entrusted with the obligation to preserve and to transmit to a Fideicommissary Substitute or Second Heir the whole or part of the inheritance.

  • 2. The substitution must not go beyond one degree from the heir originally instituted.

  • 3. The Fiduciary Heir and the Fideicommissary are living at the time of the death of the testator.

  • 4. The fideicommissary substitution must be expressly made.

  • 5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime

Q: Is it necessary that there be an obligation imposed on the first heir to take care of the property for a fideicommisary substitution to exist? A: Yes. As held in the case of PCIB vs. Escolin (1974), in the absence of an obligation on the part of the first heir to preserve the property for the second heir, there is no fideicommissary substitution.

Q:

What is the rule of preference between

lines?

A: Those in the direct descending line shall exclude those in the direct ascending and collateral lines. Those in the direct ascending line shall, in turn, exclude those in the collateral line (Arts 978 and 985)

Q: What is the rule of proximity?

A: The relative nearest in degree excludes the farther one (Art 926)

Q: What

is

the

rule

on

the

right

of

representation?

 

A:

The right of representation takes place in the

direct

descending

line,

but

never

in

the

ascending.

In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (Art 972)

Q: What is the rule of division between lines in the direct ascending line?

A: The father and the mother shall inherit equally if both living. One succeeds to the entire

estate of the child if the other is dead. (Art. 986, CC)

In default of the mother and the father, the ascendants nearest in degree will inherit. (Art.

987)

If there are more than one relative of the same degree but of different lines, one half will go to the paternal ascendants and the other half to the maternal ascendants. (Art. 987)

Q: What is the rule of equal division in the direct ascending line?

A: The relatives who are in the same degree shall inherit in equal shares. (Art 987)

Q: What remedy may be availed of if there is preterition?

A: Annulment of institution but devises and legacies shall be valid insofar as they are not inofficious (Art. 854, CC)

Q: What remedy may be availed of if there is an impairment or diminution of legitime due to testamentary dispositions?

A: Reduction of the disposition insofar as they may be inofficious or excessive (Art. 907, CC)

Q: What remedy may be availed of if there is impairment or diminution of legitime due to inofficious donations? A: Collation – reduction of donations (Arts. 771 and 911, CC)

Q: What is preterition?

A: There is preterition when the following elements obtain:

  • 1. There must be a total omission of one, some or all of the heir/s in the will.

  • 2. The omission must be that of a compulsory heir.

  • 3. The compulsory heir omitted must be of the direct line.

  • 4. The omitted compulsory heir must be living at the time of the testator’s death or must at least have been conceived before the testator’s death.

Q: What are the effects of preterition?

A:

The following are the effects of preterition:

  • 1. The institution of the heir is annulled.

CIVIL LAW

11

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CIVIL LAW 11 PRE-WEEK 2. Devises and legacies shall remain valid as long as they are
 

2.

Devises and legacies shall remain valid as long as they are not inofficious.

3.

If the omitted compulsory heir should die before the testator, the institution shall be effective, without prejudice to the right of representation. Neri vs. Akutin (1941): When there are no devises and legacies,

 

preterition

will

result

in

the

annulment of the will and give rise to

intestate succession.

 

Q: What

are the requisites for Reserva

Troncal?

A:

The requisites for reserva troncal are:

 

1.

That the property was acquired by a descendant (Prepositus) from an ascendant or from a brother or sister (Source) by gratuitous title,

2.

That the Prepositus died without an issue,

3.

That the property is inherited by another ascendant (Reservista) by operation of law, and

4.

That there are relatives within the 3 rd degree (Reservatarios) belonging to the

 

line from which said property came.

 

Q: How may the reserva be extinguished?

A: The reserva may be extinguished

by:

(DaDaLaRP)

 
 

1.

Death of the reservista

 

2.

Death of all the relatives within the third

 

degree belonging to the line from which the property came

 

3.

Loss of the reservable property

 

4.

Renunciation by the reservatarios

5.

Prescription, when the reservista holds the property adversely against the reservatarios, as free from reservation

Q: What are the causes for legal or intestate succession?

A:

  • 1. If a person dies without a will (Art 960[1])

  • 2. If a person dies with a void will (Art 960[1])

  • 3. If a person dies with a will which has subsequently lost its validity (Art 960[1])

  • 4. When the will does not institute an heir (Art 960[2])

  • 5. When the will does not dispose of all the property belonging to the testator. legal succession shall take place only with respect to the property which the testator has not disposed (Art 960[2])

  • 6. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled (Art 960[3])

  • 7. If the heir dies before the testator (Art 960[3])

  • 8. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place (Art 960[3])

  • 9. When the heir instituted is incapable of succeeding, except in cases provided in the Civil Code (ex. substitution or right of representation) (Art 960[4])

    • 10. Preterition – Intestacy may be total or partial depending on whether or not there are legacies or devises (Balane, p.426)

    • 11. Upon the expiration of a resolutory term attached to the institution of heir (Balane, p.426)

    • 12. Upon fulfillment of a resolutory condition attached to the institution of heir, rendering the will ineffective (Balane, p.426)

Q: What is the right of representation?

A: It is a right created by fiction of law by virtue

of which the representative is raised to the place

and degree of the person represented and acquires the rights which the latter would have if he were living or if he would have inherited.

Q:

What is the iron-curtain rule?

A: An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

Q: What

are

the

requisites

for

a

valid

disinheritance?

 

Q: May

an

adopted

child

represent his

A:

parent in

case the latter predeceases his

  • 1. Heir disinherited must be designated by

parents?

name or in such a manner as to leave no

A:

If the adopting parent should die before the

room for doubt as to who is intended to be

adopted child, the later cannot represent the

disinherited.

former

in

the

inheritance

of

the

parents or

  • 2. It must be for a cause designated by law.

 

ascendants of the adopter. The adopted child is

  • 3. It must be made in a valid will.

 

not

related

to

the

deceased

in

that

case,

  • 4. It must be made expressly, stating the cause

  • 5. The cause must be certain and true, and

because

filiation created

by fiction

of

law

is

in the will itself.

must be proved by the interested heir if the person should deny it.

exclusively between the adopter and the adopted. (De la Puerta v CA (1990); Sayson v CA (1992))

  • 6. It must be unconditional.

CIVIL LAW

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CIVIL LAW 12 PRE-WEEK Outline of Intestate Shares: 1. Legitimate children only - Divide entire estate

Outline of Intestate Shares:

  • 1. Legitimate children only

    • - Divide entire estate equally among all legitimate children (Art. 979, CC)

    • - Legitimate children include an adopted child.

      • 2. Legitimate children and Illegitimate children

        • - Divide entire estate such that each illegitimate child gets ½ of what a legitimate child gets (Art. 983, CC and Art. 176, FC)

          • 3. Legitimate children and surviving spouse

            • - Divide entire estate equally between the legitimate children and the surviving spouse, the latter deemed as one child. The same rule holds where there is only one child. “Children” as used in Art. 996 is interpreted to include a situation where there is only one child. (Santillon v Miranda (1965))

              • 4. Legitimate children. Surviving spouse, and Illegitimate children

                • - Divide the entire estate such that the surviving spouse is deemed one legitimate child and each illegitimate child getting ½ of what the legitimate child gets (Art. 996, CC and Art. 176, FC)

                  • 5. Legitimate parents only

                    • - Divide the entire estate equally. (Art. 985, CC)

6.

Legitimate

ascendants

only

(excluding

parents)

 

-

Divide

the

entire estate equally but

with

the

observance

of

the

rule

of division

by line

(Art.

987, CC)

  • 7. Legitimate parents and illegitimate children

    • - Legitimate parents

get

½

of

the

estate,

illegitimate children get the other ½ (Art. 991,CC)

  • 8. Legitimate parents and surviving spouse

    • - Legitimate parents get ½ of

the

estate; The

surviving spouse gets the other ½ (Art. 997,CC)

  • 9. Legitimate parents, surviving spouse and illegitimate children

    • - Legitimate parents get ½ of the estate; surviving spouse and the illegitimate child each get ¼ each, the latter to share among themselves if more than one. (Art. 1000, CC)

      • 10. Illegitimate children only

        • - Divide the entire estate equally. (Art. 988, CC)

          • 11. Illegitimate children and surviving spouse

            • - Illegitimate children get ½ of the estate; the surviving spouse gets the other ½. (Art. 998, CC)

              • 12. Surviving spouse only

                • - Entire estate goes to the surviving spouse. (Art. 994/995, CC)

                  • 13. Surviving spouse and illegitimate parents

                    • - Illegitimate parents get ½ and the spouse gets the other ½ (by analogy with Art. 997, CC)

                      • 14. Surviving spouse and legitimate brothers and sisters, nephews and nieces

                        • - Surviving spouse gets ½ of the estate, while the rest gets the other ½ with the nephews and nieces inheriting by representation if proper. (Art. 1001, CC)

                          • 15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces

                            • - Surviving spouse gets ½ of the estate while the rest gets the other ½ with the nephews and

nieces

inheriting

by

representation,

if

proper;

Note

that

all

the other relatives should be

“illegitimate” because of the iron-curtain rule. (Art.

994,CC)

 
  • 16. Illegitimate parents only

    • - Entire estate goes to the illegitimate parents. (Art 993, CC)

      • 17. Illegitimate parents and children of any kind (whether legitimate or illegitimate child)

        • - Illegitimate parents

are

excluded

and

do

not

inherit; For the rule on the respective shares of the children, see numbers 1, 2 or 10, whichever is applicable.

  • 18. Legitimate brothers and sisters only

-

Divide

the

entire

estate such that full-blood

brothers/sisters gets a share double the amount of a half-blood brother or sister. (Art. 1004 and 1006, CC)

  • 19. Legitimate brothers and sisters, nephews and nieces

    • - Divide the entire estate observing the 2 is

to 1

ratio for full and half blood relationships with respect to the brothers and sisters, with the

nephews and nieces inheriting by representation, if proper. (Art. 1005 & 1008, CC)

  • 20. Nephews and nieces only

    • - Divide the entire estate per capita, observing the 2 is to 1 ratio in case of full blood and half blood. (Arts. 975 and 1008, CC)

      • 21. Other collaterals (Arts. 1009 and 1010)

        • - Divide entire estate per capita.

        • - Collateral relatives must be with the 5 th degree of consanguinity.

        • - Note: the nearer relative excludes the more remote relatives.

          • 22. State

-

If there

are

no other intestate heirs, the State

inherits the entire estate through escheat proceedings. (Art. 1011, CC)

CIVIL LAW

13

PRE-WEEK

CIVIL LAW 13 PRE-WEEK Q: What is accretion? heir, he will be considered to have also

Q: What is accretion?

heir, he

will

be

considered

to

have

also

A: It is a right by virtue of which, when two or more persons are called to the same

repudiated the inheritance as a legal heir.

inheritance, devise or legacy, the part assigned

If he repudiates

it

as

a

legal heir,

without

his

to one who renounces or cannot receive his share or who died before the testator is added or

being a testamentary heir, he may still accept it in the latter capacity (Art 1055)

incorporated to that of his co-heirs, co-devisees, or co-legatees (Art 1015).

Q: What is collation?

 

Q: Differentiate acceptance and repudiation of inheritance:

A:

  • 1. Acceptance involves the confirmation of transmission of successional rights, while repudiation renders such transmission ineffective.

  • 2. Repudiation is equivalent to an act of disposition and alienation.

  • 3. The publicity required for repudiation is necessary for the protection of other heirs and also of creditors.

Q: What are the forms of tacit acceptance?

A: Under Article 1050, the following are forms of tacit acceptance.

  • 1. when the heir sells, donates or assigns his right

  • 2. when the heir demands partition of the inheritance

  • 3. when the heir alienates some objects of the inheritance, etc.

Q: How is implied acceptance made?

A: Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance; if they do not do so within that time, they are deemed to have accepted the inheritance. (Art 1057, CC)

Q: How is inheritance repudiated?

A:

Repudiation may be made:

  • 1. in a public instrument acknowledged before a notary public; or

  • 2. in an authentic document – equivalent of an indubitable writing or a writing whose authenticity is admitted or proved; or

  • 3. by petition presented to the court having jurisdiction over the testamentary or intestate proceeding

Q: What is the effect of repudiation by heirs who are heirs in two capacities?

A: If a person is called to the same inheritance as an heir by will and by law and he repudiates the inheritance in his capacity as a testamentary

A: It is the act by virtue of which, the compulsory heir who concurs with other compulsory heirs in the inheritance bring back to the common hereditary mass the property which they may have received from the testator so that a division may be effected according to law and the will of the testator.

Except, if the donor have so expressly provided or if the donee should repudiate the inheritance UNLESS the donation should be reduced as inofficious.

Q: What

collation?

A:

properties

are not subject to

  • 1. Expenses for support, education (only elementary and secondary), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts. (Art. 1067, CC)

  • 2. Expenses incurred by parents in giving their children professional, vocational or other career unless the parents so provide, or unless they impair the legitime. (Art. 1067, CC)

  • 3. Wedding gifts by parents and ascendants, consisting jewelry, clothing and outfit, except when they exceed 1/10 of the sum disposable by will. (Art. 1070, CC)

  • 4. Donations to the spouse of the child; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (Art. 1066, CC)

  • 5. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (Art. 1065, CC)

Q: What are the instances when partition could not be demanded?

A:

  • 1. When expressly prohibited by the testator

for

a

period not

exceeding 20 years (Art

1083, CC)

  • 2. When the co-heirs agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years (art. 494, CC)

CIVIL LAW

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CIVIL LAW 14 PRE-WEEK 3. When prohibited by law 4. When to partition the estate would
  • 3. When prohibited by law

  • 4. When to partition the estate would render it unserviceable for the use for which it is intended

Q: What is the effect of a partition legally made?

A: A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him.

Important periods in succession:

1

month

or

Testator, if publicly known to

less

before

be insane, burden of proof is

making a will

on the one claiming validity of the will

20

years

Maximum period testator can

 

prohibit

alienation

 

of

dispositions

 

5

years

from

To claim property escheated

delivery to

the

to the State

State

1

month

 

To report knowledge of violent death of decedent lest he be considered unworthy

5

years

from

Action

for

declaration

of

the

time

incapacity &

for recovery of

disqualified

the

inheritance,

devise

or

person

took

legacy

possession

30

days

from

Must

signify

issuance

of

acceptance/repudiation

order

of

otherwise, deemed accepted

distribution

1

month from

Right to repurchase hereditary

written notice of sale

rights sold to a stranger by a co-heir

10

years

To

enforce

warranty

of

 

title/quality

 

of

property

adjudicated

to

co-heir

from

the

time

right

of

action

accrues

 

5

years

from

To

enforce

warranty

of

partition

solvency

of

debtor

of

the

 

estate at

the time partition is

made

4

years

from

Action for

 

rescission

of

partition

partition on account of lesion

CIVIL LAW

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PRE-WEEK

CIVIL LAW 15 PRE-WEEK OBLIGATIONS AND CONTRACTS Q: What are the sources of obligations? A: ART.

OBLIGATIONS AND CONTRACTS

Q: What are the sources of obligations?

A: ART. 1157. Law, Contract, Quasi-Contract, Delict (Crime), Quasi-Delict

Q: What are the different types of breach of obligation?

A: ART. 1170. Fraud (Dolo), Negligence (Culpa), Delay or Default (Mora), Contravention of the Tenor

Q: When does a fortuitous event exempt the debtor from liability?

A:

(1) event must be independent of debtor’s will; (2) event is unforseeable or inevitable; (3) event renders normal performance impossible; (4) debtor did not participate in aggravating injury to the creditor; (5) event must be the sole cause of the loss

Q: What are the primary remedies of the creditor in case of breach of obligation by the debtor? A: PRESS. Specific performance; Substituted performance; Equivalent performance; Rescission; Pursue property of debtor

Q: What is the doctrine of constructive fulfillment of condition?

A: ART. 1186. The suspensive condition shall be deemed fulfilled when the debtor voluntarily and willfully prevented its fulfillment.

Q: What is a potestative condition and which case does it render an obligation void?

A: It is a condition which depends on the will of one of the contracting parties for its fulfillment. ART. 1182. A Suspensive Potestative Condition dependent upon the sole will of the debtor renders the obligation void.

Q: When does the debtor loses the right to make use of period? A: I GIV A LA. ART. 1198 (1) debtor becomes Insolvent after obligation contracted; (2) debtor fails to furnish Guaranties or securities promised; (3) debtor Impairs guaranties or securities; (4) debtor Violates undertaking which constitutes consideration for the period; (5) debtor attempts to Abscond. Additional (6) By Law or stipulation; (7) Acceleration clause

Q: What are the modes of extinguishment of obligations in Article 1231?

A: Payment or Performance; Loss; Condonation or Remission; Confusion or Merger;

Compensation; Novation. However, this list is

not exclusive. There are other modes of

extinguished provided in other laws.

the

Civil Code

and

Q: What are the special forms of payment?

A: Application of Payments (ARTS. 1252-1254); Payment by Cession (ART. 1255); Dation in payment or Dacion en pago (ART. 1245); Tender and Consignation (ARTS. 1256-1261)

Q: When does consignation alone, without tender by the debtor and refusal by the creditor, produces the effect of payment?

A: ART. 1256, par. 2. (1) creditor is absent or unknown, or does not appear at the place of payment; (2) creditor incapacitated to receive thing due at the time of payment; (3) creditor refuses to give receipt without just cause; (4) two or more persons claim the same right to collect; (5) title of the obligation has been lost

Q: What is the doctrine of unforeseen events which produces the effect of loss of the thing due?

A: ART. 1267. The debtor may be released from the obligation (total or partial) if the service has become so difficult as to be manifestly beyond the contemplation of the parties.

Q: When is compensation prohibited?

A: an obligation arising from depositum or commodatum (ART. 1287, par. 1); a creditor has a claim for future support by gratuitous title (ART. 1287, par. 2); an obligation arising from delict (ART. 1288); obligations due to the government; a partner causing damage to a partnership

Q:

What

are

the

kinds

of

passive

substitution?

 

A:

The

two

kinds

of passive substitution

(substitution of the debtor) are: expromission (where the debtor does not initiate the change)

and

delegacion

(where

debtor offers the

change).

 

Q:

What

are

the

classes

of

innominate

contracts?

 

A: Do ut des (I give so that you may give); Do ut

facias

(I

give

so that

you

may do);

Facio ut

facias (I do so that you may do); Facio ut des (I

do so that you may give)

Q: What is a stipulation pour autrui?

A:

It is a stipulation in a contract in favor of a

third person. (ART.

1311,

par.

2)

The

third

person can demand the fulfillment of

a

contractual stipulation in his favor if he accepted

CIVIL LAW

16

PRE-WEEK

CIVIL LAW 16 PRE-WEEK the same to the debtor before its revocation. Unenforceable Contracts (Art 1403):

the same to the debtor before its revocation.

Unenforceable Contracts (Art 1403):

 

However, contracting parties must have clearly

(1)

Those entered into in the name of another person

and deliberately stipulated the same and mere

by one who has been given no authority or legal

incidental benefit or interest of the third person is not sufficient.

representation, or who powers;

has acted beyond his

(2)

Those that do

not comply with

the

Statute of

 

Frauds as set forth in this number. In the

Q: What are the essential requisites of a

 

following cases an agreement hereafter made

contract?

shall be unenforceable by action, unless

the

A: ART. 1318. Consent, Object, Cause

same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged,

Q: What is an option contract?

 

or by his agent; evidence, therefore, of the

writing, or a secondary evidence of its contents:

A: ART. 1324. A preparatory contract whereby the offeror, for a consideration, grants the

 

agreement cannot be received without the

offeree a certain period to accept the principal contract.

  • (a) An agreement that by its terms is not to be performed within a year from the making thereof;

  • (b) A special promise to answer for the debt, default, or miscarriage of another;

Q: Who are incapable of giving consent to a contract?

A: ART. 1327. Minors, Insane or demented persons and deaf-mutes who do not know how to write

Q: What are the vices of consent? A: ART. 1330. MIVUF. Mistake, Intimidation, Violence, Undue Influence, Fraud

  • (c) An agreement made in consideration of marriage, other than a mutual promise to marry;

  • (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part

  • (e) An agreement of the leasing for a longer period than one year, or for the sale of real

Q: What are the different causa of contracts?

of the purchase money; but when a sale is made by auction and entry is made by the

A: Onerous Contracts – respective prestation of each contracting party; Remuneratory Contracts – service or benefit remunerated; Gratuitous Contracts – mere liberality

Q: What

are

contracts?

the

different defective

auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;

property or of an interest therein;

A: Rescissible Contracts, Voidable Contracts, Unenforceable Contracts, Void Contracts

  • (f) A representation as

to

the credit of

a third

 

person

Rescissible Contracts (Art 1381):

 

(3)

(1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than one-fourth of the value of the

(4)

Those where both parties are incapable of giving consent to a contract.

Void Contracts (Art 1409):

things which are the object thereof; (2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;

the preceding number;

(2)

Those which are absolutely simulated or fictitious;

(3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them;

(3) Those whose cause or object did not exist at the time of the transaction; (4) Those whose object is outside the commerce of men;

 

Those which refer to things under litigation if they have been entered into by the defendant without

(5)

Those which contemplate an impossible service;

(5)

the knowledge and approval of the litigants or of competent judicial authority; All other contracts specially declared by law to be

(6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained;

subject to rescission

(7) Those expressly prohibited or declared void by law.

Voidable Contracts (Art 1390):

(1)

Those where one of the parties is incapable of

(2)

giving consent to a contract; Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud

CIVIL LAW

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CIVIL LAW 17 PRE-WEEK PROPERTY OWNERSHIP What actions can be filed to recover property?  Movable

PROPERTY

OWNERSHIP

What

actions

 

can

be

filed

to

recover

property?

 
  • Movable Property

 

o

WRIT

OF

REPLEVIN:

for

manual

delivery of property

 

Prescription of Right: 4 years (GF)

 

or

8

years

(BF)

from

time

the

possession is lost (Art 1140)

  • Immovable Property o ACCION REIVINDICATORIA: Recovery

 

of ownership of real property

 

Including but not limited to possession

Prescription of Action: 30 years after

 

cause of action accrues (Art 1141)

o

ACCION PUBLICIANA: Recovery of a

better right to possess (de jure)

 

Judgment as to who has the better right of possession

Also, actions for ejectment not filed within 1 year must be filed as accion publiciana

Prescription: 10 years after cause of action accrues (Art 1134)

o ACCION INTERDICTAL: Recovery of actual/physical possession (de facto)

  • FORCIBLE ENTRY: Lawful possessor deprived through FISTS:

o

Force

o Intimidation Strategy

o

o

o

Threats

Stealth

o Prescription:

1

year

from

dispossession

(force,

intimidation, threats) or

from

knowledge of

dispossession

(strategy, stealth)

  • UNLAWFUL DETAINER: Possessor refused to vacate upon demand by owner

o Legal possession

becomes

(by

permission/tolerance)

unlawful upon failure to vacate

o

Prescription of action: 1 from last notice to vacate

year

In case of leases of residential units, the grounds for judicial ejectment are limited to those enumerated in, RA 9653: Rent Control Law of 2009 (See Section on Special Laws)

ACCESSION

SUMMARY OF BUILDER, PLANTER AND SOWER PROVISIONS (ART. 447-455)

Case 1: Landowner is BPS using material of another

Landowner and BPS

 

Owner of Material

 

Good faith

 

Good faith

 

Right to acquire the improvements after paying the value of materials.

Limited right of removal if there would be no injury to work constructed, or without plantings

 

or constructions being destroyed. (Article 447) Right to receive payment for value of materials

Bad faith

 

Good faith

 

Acquire BPS after paying its value and paying

Right to receive payment for value of materials

indemnity for damages (Article 447) but

Absolute right

of

removal

of

the

work

subject to OM’s right to remove

constructed in any event

 
 

Right to be indemnified for damages

 

Good faith

 

Bad faith

 

Right

to

acquire

the

improvements

without

Lose materials without right to indemnity

 

paying indemnity Right to acquire indemnity for damages if there are hidden defects known to OM

 

Bad faith

 

Bad faith

 

Same as

though

acted

in

good faith

under

Same as

though acted

in

good faith under

Article 453

 

Article 453

Case 2: BPS builds, plants, or sows on another’s ;and using his own materials

CIVIL LAW

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CIVIL LAW 18 PRE-WEEK Landowner BPS and Owner of Material Good faith Good faith  Landowner

Landowner

 

BPS and Owner of Material

Good faith

   

Good faith

Landowner has option to:

 

  • a. Acquire the improvement after paying indemnity which may be the original cost of improvement OR increase in value of the whole brought about by the improvement

BPS has right to retain (right of retention) the land until the payment of indemnity

NOTE: During this period BPS is not required to pay rent.

  • b. Sell the land to the BP or collect rent from sower UNLESS value of land is more than the thing built, planted or sown or BP shall pay rent fixed by parties or by the court in case of disagreement.

NOTE: Landowner can be forced to choose under pain of direct contempt or court can choose for him.

Good faith

   

Bad faith

Pay damages to landowner

 

Landowner has right to collect damages in any case and option to:

BPS lose materials without right to indemnity

  • a. Acquire improvements without paying

  • b. Sell the land to BP or collect rent from the

No right to refuse to buy the land

indemnity if the improvements are still

Recover necessary expenses for preservation

standing on the land

sower unless value of the improvements in which case there will be a forced lease

of land

  • c. Order demolition of improvements or restoration o0f land to its former condition at the expense of the BPS

 

Landowner must pay for necessary expenses for preservation

Bad faith

   

Good faith

Landowner must

indemnify

BPS

for

the

BPS has right to :

improvements and pay damages as if he himself

  • a. Be indemnified for damages

did the BPS

  • b. Remove all improvements in any event

Landowner has no option

to

sell the

land and

 

cannot compel BPS to buy the land unless BPS agrees to

Bad faith

   

Bad faith

Same as though acted in bad faith under Article

Same as though acted in bad faith under Article

453

453

Case 3: BPS builds, plants or sows on another’s land with materials owned by third persons

CIVIL LAW

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CIVIL LAW 19 PRE-WEEK Landowner BPS Owner of Material Good faith Good faith Good faith 

Landowner

 

BPS

 

Owner of Material

 

Good faith

 

Good faith

 

Good faith

 

Right to acquire improvements

Right

of

retention

until

Collect value of material primarily

and

pay

indemnity

to

BPS;

necessary and useful expenses

from BPS and subsidiarily liable for

subsdiarily liable to OM

are paid

landowner if BPS is insolvent

Has option to:

 

Pay value of materials to OM

Limited right of removal

a.

Sell land to BP except if the

   
 

value

of

the

land

is

considerably more

 
 

b.

Rent to sower

 

Good faith

 

Good faith

 

Bad faith

 

Right to acquire

improvements

Right

of

retention

until

Lose the material

without right to

and pay indemnity to BPS

 

necessary and useful expenses

indemnity

 

Has option to:

 

are paid.

Must pay for damages to BPS

a.

Sell land to BP except if the

Keep BPS without indemnity to

 
 

value

of

the

land

is

OM and collect damages from

considerably more

 

him

 

b.

Rent to sower

   

Without subsidiarily liability for cost of materials

Good faith

 

Bad faith

 

Bad faith

 

Landowner has right to collect

Recover necessary expenses

Recover value from BPS (as if both

damages in any case and option

 

for preservation

of

land

from

are in good faith)

to:

landowner unless landowner

If

BPS

acquires

improvement,

a.

Acquire improvements w/o

Demolition or restoration; or

sells land

remove

materials

if

feasible

w/o

b.

paying for indemnity; or

 

injury No action against landowner but

c.

Sell to BP, or to rent to sower

liable to landowner for damages

Pay necessary expenses to BPS

   

Bad faith

 

Bad faith

 

Bad faith

 

Same as when all acted in good

Same as when all acted in good

Same as when

all

acted

in good

faith under Article 453

faith under Article 453

faith under Article 453

 

Bad faith

 

Good faith

 

Good faith

 

Acquire improvement after paying

May remove improvements

Remove materials if possible w/o

indemnity and damages to BPS

Be indemnified for damages in

injury

unless latter decides to remove Subsidiarily liable to OM for value of materials

any event

Collect value of materials from BPS; subsidiarily from landowner

Bad faith

 

Bad faith

 

Good faith

 

Acquire

improvements

after

Right

of

retention

until

Collect value of materials primarily

indemnity; subsidiarily OM for value of materials

liable

to

necessary expenses are paid Pay value of materials to OM

from BPS and subsidiarily from landowner

Has option to:

 

and pay him damages

Collect damages from BPS

a.

Sell the land to BP except if

 

If BPS acquires improvements,

 

the value

of

the

land

is

remove materials in any event

considerably more

   
 

b.

Rent to sower

 

Good faith

 

Bad faith

 

Good faith

 

Acquire imrovement after paying

Right

of

retention

until

Collect value of materials primarily

indemnity; subsidiarily liable to OM

necessary expenses are paid Pay value of materials to OM

from BPS and subsidiarily from landowner

Landowner has option to:

Pay damages to OM

 

Collect damages from BPS

a.

Sell land to BP except if value

 

If

BPS

acquires

improvements,

 

of land is considerably more

absolute right of removal

in

any

 

b.

Rent to sower

 

event

 

Bad faith

 

Good faith

 

Bad faith

 

 

Acquire improvements and pay indemnity and damages to BPS unless latter decides to remove materials

Receive indemnity for damages Absolute right of removal of improvements in any event

No right to indemnity Loses right to mnaterial

 

CIVIL LAW

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CIVIL LAW 20 PRE-WEEK CO-OWNERSHIP What is co-ownership? It is a right of common dominion which

CO-OWNERSHIP

What is co-ownership?

It is a right of common dominion which two or more persons have in a spiritual part of a thing, not materially or physically divided (Sanchez Roman). There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons (Art. 484).

What are the rights of each co-owner over the thing or property owned in common?

  • 1. To use the thing according to the purpose intended (Art. 486)

  • 2. To share in the benefits in proportion to his interest provided the charges are borne by each in the same proportion (Art. 485)

  • 3. To bring an action in ejectment (Art. 487)

  • 4. To compel the other co-owners to contribute to the expense for preservation of the property owned in common and to the payment of taxes (Art. 488)

  • 5. To oppose any act of alteration (Art. 491)

  • 6. To protest against acts of majority which are seriously prejudicial to the minority (Art. 493, par. 3)

  • 7. To exercise legal redemption (Art. 1620, 1623)

  • 8. To ask for partition (Art. 494)

POSSESSION

Define possession.

Possession is the holding of enjoyment of a right (Art. 523)

a

thing

or

the

What rules are observed to solve conflicts of possession?

In case of conflicting possession, preference is given to:

  • 1. Present possessor or actual possessor.

  • 2. If there are 2 or more possessors, the one longer in possession.

  • 3. If the dates of possession are the same, the one who presents a title.

  • 4. If all conditions are equal, the thing shall be placed in judicial deposit pending determination of possession or ownership through proper proceedings. (Art. 538)

LEASE

What are the rights and lessor?

obligations of a

Art. 1654 provides for the obligations of a lessor.

(a)

Deliver the thing which is the object of the contract in a condition fit for the use intended.

(b)

Make on the thing all the necessary repairs

in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary.

(c)

Maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract.

The lessor has the right to ask for rescission in case the lessee does not fulfill his obligations as set forth in Art. 1657. (Art. 1659)

What are the rights and lessee?

obligations of a

Art.

1657

provides

for

the

obligations

of

a

lessee.

 

(a)

Pay the price of the lease according to the terms stipulated.

(b)

Use the thing leased as a diligent father of a

family, devoting it to the use stipulated, and in the absence of stipulation according to the nature of the thing leased and custom of the place.

(c)

Pay for the expenses for the deed of lease.

 

The lessee has the right to suspend payment of

rentals in case the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased. (Art. 1658) the lessee also has

the right to ask for rescission of the lease

contract

in

case the lessor

fails

to

fulfill

his

obligations set forth in Art. 1654. (Art. 1659)

NUISANCE

What is a Nuisance?

A nuisance is any act, omission, establishment, business, condition of property, or anything else which:

(1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. (Art.

694)

CIVIL LAW

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CIVIL LAW 21 PRE-WEEK USUFRUCT What is Usufruct? Usufruct gives a right to enjoy the property

USUFRUCT

What is Usufruct?

Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. (Art. 562)

EASEMENT

What is an Easement?

An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. (Art. 613)

What are the Easements provided for in the Civil Code (Legal Easements)?

The following are legal easements:

(1) Aqueduct (Art. 644 & 678) (2) Planting of trees (Art. 679) (3) Light and View (Art. 670) (4) Right of Way (Art. 649 & 652) (5) Passage of water from upper to lower tenements (Art. 637) (6) Drainage of buildings (Art. 676)

(7) Lateral and subjacent support (Art. 684-687)

What are the requisites to establish an easement of Right of Way?

  • 1. Dominant estate is surrounded by other immovables owned by other persons.

  • 2. There must absolutely be no access to a public highway.

  • 3. Even if there is access, it is difficult or dangerous to use, or grossly insufficient.

  • 4. Isolation of the immovable is NOT due to the dominant owner’s own acts e.g. if he constructs building to others obstructing the old way.

  • 5. Payment of indemnity by the dominant owner.

MODES OF ACQUIRING OWNERSHIP

How can ownership be acquired?

Ownership is acquired by:

(1) Occupation (2) Intellectual creation (3) Law (4) Donation (5) Testate and Intestate Succession (6) Tradition, in consequence of certain contracts (7) Prescription (Art. 712)

DONATIONS

   

Limitation:

 

1)

He reserves in full ownership or in usufruct, sufficient means for his support and all relatives who are at the time

of the acceptance of the donation are, by law, entitled to be supported

What

 

be

donated

Effect

of

non-reservation:

may

All present property of

the donor

or

reduction of the donation

 

(Article 750)

 

part thereof

   

2)

He

reserves

sufficient

property at

the

time

of

the

donation for

 

the

full

settlement of his debts

 

Effect

of

non-reservation:

considered

to

be

a

donation in

fraud

of

creditors,

and

donee

may be liable for damages

 

1)

Future property; those which the

 

What may not be donated

2)

donor cannot dispose of at the time of the donation (Article 751) More than what he may give or receive by will (Article 752)

If exceeds: inofficious

 

CIVIL LAW

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CIVIL LAW 22 PRE-WEEK to No accretion – one donee does not get Exception: those given
 

to

No accretion – one donee does not get

Exception:

those

given

to

Donations made

the share of the other donees who did

husband and wife, except when

several persons jointly

 

not accept (Article 753)

   
   

the donor otherwise provides Who are not allowed:

 

1)

Guardians and trustees with

respect to

the property

entrusted

to

them

(Article

Who are allowed: All persons who may contract (of legal age) and dispose of

736)

2)

Made between person who

Donor

their property (Article 735)

are

guilty

of

adultery

concubinage (Article 739)

and

Donor’s capacity is determined at the time of the making of donation (Article

737)

3) Made

between

persons

found guilty of the same criminal offense, in consideration thereof (Article

 

739)

   

Who are not allowed:

 

Who are allowed to accept donations:

1)

Made between person who

concubinage (Article 739)

Those who are not specifically disqualified by law (Article 738)

are guilty of adultery and

2) Made

between

persons

Those

who

qualifications:

 

allowed,

with

 

found guilty of the same

are

 

Donee

1)

Minors

and

incapacitated

others

who are

(see

Article

38),

provided that their acceptance is

3)

criminal offense, in consideration thereof (Article

739)

Made to a public officer or

done through their parents or legal representatives (Article 741)

his wife, descendant and ascendants, by reason of his office (Article 739)

2)

Conceived and

unborn

children,

4)

Those who cannot succeed

provided that

the

donation

is

accepted by those who would legally represent them if they were

5)

by will (Article 740) Those made to incapacitated

already born

 

persons, although simulated under the guise of another contract (Article 743)

 

Who may accept (Article 745):

   
 

of

the

1)

When

to

accept:

during

the