NOSLEN ANGINEB E.

MENDOZA
Subject Chairperson

KING LAURENZ S. MASILUNGAN

Assistant Subject Chairperson

ALHEX ADREA M. PERALTA

Subject Electronic Data Processing

SUBJECT HEADS
QUENNIE IRIS V. BULATAO CHRISTIENNE NATHALIE A. BERONA
Conflicts of Law Persons and Family°Relations

PATRICIA MAE R. FEDERIS KRISTOFFER MONICO S. NG

Succession Property

SKY BLUE C. SAMSON JOAN V. LAGRADILLA

Obligations and Contracts Agency & Trusts

MARISOL 0. SISON JESSU R. TRINIDAD

Sales and Lease Loan and Deposit

JULEEN EVETTE D. MALLARI GEM EDWARD E. AQUINO

Land Titles and Deeds Torts and Damages
,.

'
.~/f
SUBJECT MEMBERS
SAMANTHA YVES 0. PLACIDO SUSANNA MARTHA B. IBE
QUENNIE IRIS V. BULATAO KARLA MARIE C. SANTOS
JESSU R. TRINIDAD YUMIKO ANGELIUS M. YOSHIY
PATRICIA MARIE G. CARLON MARY JOY B. DELA CRUZ
CHARISMA LORRAINE T. CHAN JESSA FELICE A. YALAO
ROCKYLLE DOMINIQUE L. BALISONG KIEZLLE CAYNE D. MANALILI
ROSELLE JUNE G. CERENO ANNA ROCHELLE D. PAYONGAYONG
MARIANNE HELENE P. REYEG MA. NICOLAI M. TORRES
VERONICA V. VELASQUEZ MIKHAILA KLAUDINE A. ROSALES
ALYSSA AIMEE S. BATLE ZYMON ANGELO G. GRANADO
MICHELLE ANNE L. DELOS SANTOS

SUBJECT ADVISERS
Dean MARCIANO G. DELSON Dean ULPIANO P. SARMIENTO Ill
Dean EDUARDO J.F. ABELLA Vice Dean FRANCESCA LOURDES M. SENGA
Atty. TIMOTEO B. AQUINO Atty. LUIS MANUEL BUGAYONG
Atty. MANUELL. CASINO Atty. MARIA ZARAH R. VILLANUEVA-CASTRO
Atty. JOSEPH FERDINAND DECHAVEZ Atty. JUN MARR M. DENILA
Atty. LYAN DAVID M. JUANICO Atty. THERESA GENEVIEVE NUEVE-CO
Atty. JESUS ERICK F. STA. BARBARA.
 The MEMORY AID (MemAid) is a compendium - a synthesis of different law
materials available to the public, emphasizing pertinent details that its readers need to
be familiar with. Being thorough and extensive, the MemAid aims to help barristers in
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This year, the San Beda University-RGCT Bar Operations Center (BarOps)
continues to uphold its legacy of service and excellence in helping the barristers hurdle
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UT IN OMNIBUS GLORIFICETUR DEUS!

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SAN BEDA UNIVERSITY COLLEGE OF LAW

2020-2021

THIS IS THE INTELLECTUAL PROPERTY OF THE

SAN BEDA UNIVERSITY COLLEGE OF LAW~ RGCT
BAR OPERATIONS CENTER.

THE UNAUTHORIZED COPYING, REPRODUCTION,

MODIFICATION OR DISTRIBUTION
OF ANY OF THE CONTENTS OF THIS BOOK IS
STRICTLY PROHIBITED.
 MEM:-0:RY AIDGl!IIIID
TABLE OF CONTENTS

Jurisdiction ............................................................................................................................................... 3
Choice of Law ............................................................................................................................................ 8
Nature, Composition & Characterization of Conflicts Rules ..................................................................... . 10
Personal Law .........................................................: ...............................·................................. : ................. . 12
Citizenship Retention and Re-acquisition Act of 2003 (R.A. No. 9225) .................................................... . 15
Domicile ..................................................................... :.............................................................................. . 17
Renvoi ........................................................................................................................................................ 19
Personal Status and Capacity ................................................................................................................... 20
Family Relations .............................................................:.. : ....................................................................... . 21
Property ...................................................................................................................................................... 30
Contracts ...............................................................................................................................................,... . 34
Wills and Administration of Estate ........................ ,........................................................ ,.......................... . 39
Torts ........................................................................................................................................................... 42
Crimes ..................................................................................................................................:.................... . 44
Business Associations ................................. :............................................................................................. 46

· · .. -, .PERSONS AND FAMILY RELATIONS . · ·· · . · -- · .

CIVIL CODE ............................................................................................................................................... 51
Effect and Application of Laws .................................................................................................................. 51
Effectiyity of Laws ..................................................................................................................................... 51
Ignorance of the Law excuses No One ......................................................... :.......................................... . 52
Non-Retroactivity of Laws ........................................................................................................................ 53
Acts Contrary to Law ......................................................,, ........................................................................ . 53
Waiver of Rights ........................................................................................................................................ 53
Repeal of Laws ..............................................................................................................................,.......... . 54
Judicial Decisions Form Part of Legal System or Doctrine of Stare Decisis ........................................... . 55
Duty of Judges ,......................................................................................................................................... 56
Doubt in the Interpretation and Application of Laws ............................................................................... .. 57
Customs ........................................................................ '. ....................................................................-...... . 57
Rule on Period.s ......................................................................................................................................... 57
Provisions on Conflict of Laws .................................................................................................................. 58
Human Relations ....................................................................................................................................... 59
Principle of Unjust Enrichment .................................................................................................................. 61
Prejudicial Question .................................................................................................................................. 61
Civil Personality .......................................................................................................................................... 62
Natural Persons ................................... '. .............................................................................................. 64
Juridical Persons .................................................................................................................................. 65
Citizenship 2nd Domicile ............................................................................................................................ 65
Rights and Obligations of Couples in Intimate Relationships (R.A. No. 9262) ........................................ . 67

FAMILY CODE ..................................................................................................................,........................ . 72

Marriage .................................................................................................................................................... 72
Marriage Celebrated Outside the Philippines ........................................................................................... 81
Void Marriages .......................................................................................................................................... ,83
Voidable Marriages ...................................................... ,........................................................................... . 91
Additional Requirements for Annulment or Declaration of Nullity .............................................................
84
(S.C. En Banc Resolution A.M. 02-11-10-SC)
Legal Separation ....................................................................................................................................... 95
Effects of the Petition for Declaration of Presumptive Death, Nullity of Marriage, Annulment, and Legal
101
Separation .................................................................................................................................................
Rights and Obligations between the Husband and the Wife .................................................................... . 105
Property Relations between the Husband and the Wife ............................................................................ 106
Systems of Property Regime ..................................................................................................................... 109
The Family ................................................... ,............................................................................................. 122
 MEM-0-RY A I D -
TABLE OF CONTENTS
Paternity and Filiation .............................................................................................................................. 124
Adoption . .. .. .. .... ... .... .. ... .. .. .. ..... .. .................................................................................................... 131
Support ........................................................................................................................................... 138
Parental Authority ..................................................................................................................................... 141
Emancipation ............................................................................................................................................. 149
Summary Judicial Proceedings in Family Law ........................................................................................ .. 149
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
(A.M. No. 02°11-10-SC) ............................................................................................................................
150
Rule on Legal Separation (A.M. No. 02-11-11-SC) ......................................................................... . 153
Use of Surnames ...................................................................................................................................... . 1SS
Absence ..................................................................................................................................................... 157
Civil Registrar ............................................................................................................................................. 159

PROPERTY .............................................................................................................................................. 163

Classification of Property .......................................................................................................................... 164
Immovable Properties ......................................................................................................................... 166
Movable Properties ............................................................................................................................. 170
Property in Relation to Whom it Belongs .................................................................................................. 171
Ownership .................................................................................................................................................. 175
Legal Remedies to Recover Possession of Property ......................................... ,.................................... .. 178
Hidden Treasure ....................................................................................................... .-............................... . 186
Accession ................................................................................................................................................... 187
Right of Accession with Respect to Real. Property ............................................................................ . 189
Right of Accession with Respect to Personal Property ...................................................................... . 199
Quieting of Title .......................................................................................................................................... 202
Ruinous Buildings and Trees in Danger of Falling ..................................................................................... 204
Co-ownership ............................................................................................................................................. 205
Some Special Properties ........................................................................................................................... 213
Possession .. __ ...............................................................·..... :....................................................................... . 214
Acquisition of Possession ................................................................................................................... 217
Effects of Possession .......................................................................................................................... 219
Loss of Possession ............................................................................................................................. 221
Usufruct ...................................................................................................................................................... 223
Rights of Usufructuary ........................................................................................................................ 227
Obligations of Usufructuary ................................................................................................................. 233
Right and Obligations of the Naked Owner ............................ ~......................................................... .. 237
Extinguishment of Usufruct ................................................................................................................. 238
Easement or Servitude .............................................................................................................................. 240
Modes of Acquiring Easement ........................................................................................................... 243
Rights and Obligations of the Parties to Easements ........................................................................ .. 244
Extinguishment of Easements ............................................................................................................ 245
Legal Easements ................................................................................................................................ 246
Voluntary Easements .......................................................................................................................... 258
Nuisance .................................................................................................................................................... 259
Registry of Property .....................................................................................................'"" ........................ . 262
Different Modes of Acquiring Ownership .................................................................................................. . 262
Occupation ........................................................................................................................................... 264
Donation ............................................................................................................................................... 265
Prescription .......................................................................................................................................... 277
The Condominium Act (R.A. No. 4726) .................................................................................................... 286

General Provisions .................................................................................................................................... 290

Testamentary Succession .......................................................................................................................... 296
Interpretation of Wills ................................................................................................................................. 297
Testamentary Capacity .............................................................................................................................. 299
 MEM",Q.:RY AIDflllBllll'lt
TABLE OF CONTENTS
Formality of Wills and Witnesses to Wills ................................................................................................ .. 301
Codicil and Incorporation by Reference .................................................................................................... . 311
Revocation of Wills and Testamentary Disposition .................................................................................... 313
Republication and Revival of Wills ............................................................................................................ . 317
Allowance and Disallowance of Wills ........................................................................................................ . 318
Institution of Heirs .............................................................................,....................................................... . 322
Substitution of Heirs ................................................................................................................................... 328
Conditional, Modal Testamentary Dispositions and Testamentary Disposition with a Term .................... . 333
Legitime ...................................................................................................................................................... 337
Disinheritance ............................................................................................................................................ 351
Legacies and Devises ................................................................................................................................ 357
Legal or Intestate Succession ......................................................................... -- ........................................ . 363
Mixed Succession and Partial Intestacy .................................................................................................... 373
Provisions Common to Intestate and Testate Succession ....................................................................... . 374

'.. .· , " OBLIGATIONS AND CONTRACTS . ; · · \·• .

OBLIGATIONS ............................................................................................................................;............ . 389
General Provisions .................................................................................................................................... 389
Nature and Effect of Obligations ............................................................................................................... 395
Obligation to Give ......................................................................................................................-........ . 395
Obligation to Do or Not to Do .............................................................................................................. 399
Breach of Obligations ........................................................................................................................... 401
Fortuitous Events ......................................_. .......................................................................................... 407
Remedies Against Breach of Contract.. ............................................................................................... 409
Other Principles of Obligations ........................................................................ :......................................... . 412
Different Kinds of Obligations ..................................................................................................................... 412
Pure and Conditional Obligations .............................................................................................. :........ . 413
Obligations with a Period or a Term ..................................................................................................... 421
Alternative or Facultative Obligations ................................................................................................. . 424
Joint and Solidary Obligations ............................................................................................................. 428
Divisible Obligations ...................................................................................................-......................... . 436
Obligations with Penal Clause ............................................................................................................. 438
Extinguishment of Obligations ....... :............................................................................................................ 441
Payment or Performance .................................................................................................................... 441
Loss of the Thing Due .......................................................................................................................... 452
Condonation or Remission ................................................................................................................... 455
Confusion or Merger .............................. ,............................................................................................. . 457
Compensation ............................................................ ."......................................................................... 457
Novation •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• ' ••• ■ ■ •••••••••• ~ ••••••••• ' ••••••••••••••••••••••••••••••••••••••••••• 460
CONTRACTS ............................................................................................................................................. 466
General Provisions .................................................................................................................................... 466
Consent ................................................................................................................................................ 471
Object of Contracts ..................... :...................................................................................................... .. 482
Cause of Contracts .............................................................................................................................. 484
Form of Contracts ....................................................................................................................................... 485
Reformation of Instruments ........................................................................................................................ 487
Interpretation of Contracts ......................................................................................................................... 488
Rescissible Contracts ...............................·.................................................................................................. 489
Voidable Contracts ...................................................................................................................................... 494
Unenforceable Contracts ............................................................................................................................ 496
Void or Inexistent Contracts ....................................................................................................................... 498
Comparative Table of Defective Contracts ................................................................................................ 501
Natural Obligations .......~ ............................................................................................................................. 504
Estoppel ...........................................................·........................................................................................... 505
Laches ........................................................................................................................................................ 507
 MEKQ~Y AID f'lil!lilllB
TABLE OF CONTENTS

General Provisions ........................ ,........................................................................................................... . 509

Express Trusts ........................................................................................................................................... 513
Implied Trusts ............................................................................................................................................ 516
Actions based on Trusts ............................................................................................................................ 519

SALE .......................................................................................................................................................... 522

Objects of Sale ........................................................................................................................................... 533
Price ........................................................................................................................................................... 535
Formalities of Contract of Sale ................................................................................................................... 539
Capacity to Buy or Sell .............. : ................................................................................................................ 540
Sale by Non-Owner .................................................................................................................................... 543
Effects on the Contract when the Thing Sold Has Been Lost. .................................................................. . 545
Negotiable Documents of Title .................................................................................................................. 545
Obligations of the Vendor ......................................................................................................................... 548
Obligations of the Vendee .....................................................................................:................................... . 569
Remedies for Breach of Contract .............................................................................................................. 572
Unpaid Seller .............................................................................................................................................. 578
Risk of Loss and Deterioration and its Effects .......................................................................................... 582
Extinguishment of Sale .............................................................................................................................. 584
Assignment of Credits., .............................................................................................................................. 595
Barter ......................................................................................................................................................... 597
Recto Law .................................................................................................................................................. 598
Maceda Law (R.A. No. 6552) ..................................................................................................................... 601

LEASE ....................................................................................................................................................... 603

Sublease ................................................................................................................................,.................. . 609
Obligations of Lessor ................................................................................................................................. 611
613
~~~:~\~~s.~~--L~-s~~~.::::::::::;::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 614
Subdivision and Condominium Buyers Protective Decree (P.D. No. 957) .............................................. .. 619
The Condominium Act (RA No. 4726) ..................................................................................................... 621
Rent Control Act (RA No. 9653) ............................................................................................................... 621

Nature, Form and Kinds of Agency ................... ,....................................................................................... 624

Obligations of the Agent. ............................................................................................................................ 637
Obligations of the Principal ......... , .............................................................................................................. 646
Modes of Extinguishment of Agency .......................................................................................................... 653

Credit Transactions .................................................................................................................................... 661

LOAN ......................................................................................................................................................... 662
Commodatum ....................................................................................................................................... 664
Mutuum ................................................................................................................................................ 668
Interest ................. ,..................................................................................................................................... 671
DEPOSIT ................................................................................................................................................... 676
Antichresis .................................................................................................................................................. 686

QUASI-CONTRACTS ....................................................................................................................:.......... . 689

COMPROMISE ......................................................................................................................................... 695

 . MEM-<Ji:rt Al{)_..
TABLE OF CONTENTS

TORTS....................................................................................................................................................... 699
Classification of Tarts ......... .. .. .. ... ... .... ... ... ..... .... .... .... .. .. .. .. .. .. ... .. .. .. ... .. .. .... .. .. ... .. .... ... ... ... .... .. ... ... .. .... .. .... .. 699
Legal Injury................................................................................................................................................. 700
Negligence 701
Defenses.................................................................................................................................................... 714
The Tortfeasor ........................................................................................................................................... 717
Proximate Cause .. ..... ..... .. .... ... ... .. .... .. ..... .. .. ... ... ... .. .... .. ... .. ... ..... ... .. .... .. .. .. .. .. ... .. .... ... .. .. .. ... .... ... .. .. .. .... .. ..... 726
Torts Covered by the Civil Code Provisions on Human Relations ........................................................... 729
Civil Liability Arising From Delict ............................................................................................................... 742
Strict Liability .. .. ... .. . ... ... .. .... .. .. ... ...... .. .. ... .. ... ..... .. .. .. ... ... .... .. ..... .. .. .. .. .. .. ... .. .... .. .. .. .. .... ..... ..... .. ... .. .. .. .... .... .. . 745

DAMAGES................................................................................................................................................. 750

,_ ·. . . ',. , -~ ·, LAND TITLE AND· DEEDS - -' ':, · .

Regalian Doctrine....................................................................................................................................... 762
Title ..... ... .... ... ........ ....... .......... ... ........ ......... ... .. ............. .......... .. .. .... ...... ... ..... ......... .. ..... ..... ....... .. ..... ... .. .. .. .. 763
Past and Present Legislation on Land Registration ................. .............. ............ ..... ... .. ...... ..... ... .. .. .... .. .. .. . 765
Land Registration ..... .... ... .. ... .... ..... ... ... ....... ... ..... .. .. .. .. .... ... .. ... .. .. ... ..... ... ..... .. ... .. ... ... ......... ... .. .. ... ... .. .. .. .. .. .. 766
Torrens System.......................................................................................................................................... 768
Jurisdiction, Hearing, Judgment in Ordinary Land Registration ............................................................... 770
Land Registration Commission ................................................................................................................. 771
Modes of Registration ............................................................................. :................................................. 773
Citizenship Requirement............................................................................................................................ 773
Classification of Land .... ... ..... ...... ......... ......... ..... .. .... .. .......... ... .......... .... ... ...... .. .............. ......... ......... .... .... . 776
Registration .. .. .... .. ... .. .. .. .. ... . ... ... .. ... ....... .. .. .. .. .. .. .. .. ..... ..... ... .... .. .. .. ... .. .. .. ... .. .. ... ... .. .. .. .. .... .. ... ....... .. ... ... ..... .. 778
Original Registration ........................................................................................................................... 779
Property Registration Decree (P.O. No. 1529) .................................................................................... 780
Judicial Confirmation of Imperfect or Incomplete Title {C.A. 141)..... .... .......... ...... .................. ............ 789
Cad astral Proceedings......................................................................................................................... 795
The Indigenous Peoples· Rights Act of 1997 {R.A. No. 8371)... ... .... ....... .... ... ....... .... ........ ......... ......... 798
Subsequent Registration ... .. .. ... .... ... .. .. .. ...... .. ........................... .... .. .. ... ...... ... .. ... ... ..... .. .. .. .. .. .. .. ... ... .. .... .. .... 800
Voluntary Dealings .................................................................................................................................... 802
Involuntary Dealings ................................................................................................................................. 806
Dealings with Unregistered Lands ...............................,............................................................................. 809
Decree of Registration .. ,........................................................................................................................... 812
Partial Judgment and Post Judgment Incidents in Ordinary Land Registration ....................................... 813
Remedies ........................................................................ ,......................................................................... 813
Certificate of Title....................................................................................................................................... 818
Reconstitution of Certificate of Title ... ...... .... ...... .. .... ... .... ... .. ... .... .. .. ... .. .. .. ... ... .... ..... ... .. ... ..... .... .. ... .. .. ..... .. .. 820
Other Petitions/ Transactions after Registration ..................... ..... .......... ..... ...... .. .. ........ ............... ... .. ........ 822
Land Patents ....................................................................... :................................................... ,.................. 823

BIBLIOGRAPHY....................................................................................................................................... 828
 #£##§8 \ I

MEM✓Q~Y
Sar: Bsda University College of Law
AID
RGCT Bar Operations Center

WHAT DOES "STATE" MEAN IN

CONFLICT OF LAWS CONFLICT OF LAWS?
(PRIVATE It includes not only foreign sovereign countries or
states but also political subdivisions of states or
INTERNATIONAL countries which have their own legal systems (Id. at
LAW) 3).

BASIC CAUSE FOR CONFLICT OF

CONFLICT OF LAWS OR
INTERNATIONAL LAW
Conflict of Laws is that part of the municipal law of a
state which directs its courts and administrative
agencies, when confronted with a legal problem
involving a foreign element, whether or not they
should apply a foreign law(s) (PARAS, Philippine
Conflict of Laws (1996), p. 2 [hereinafter, PARAS,
Conflict]).
The law concerning the rights of persons within the.
territory and dominion of one nation, by reason of
acts, private or public, done within the dominion 9t
another nation (Hilton v. Guyot, 159 U.S. 113, June
3, 1895).
It is fundamentally a problem of choice of law
between foreign law and local or municipal law, by
the forum court, with local or municipal law as its
starting point (AGPALO, Conflict of Laws_ (2004),
p.11 [hereinafter, AGPALO, Conflict]).
CONFLICT OF LAWS CASE
Any case involving facts occurring in more ttian one
state or nation that must choose between the laws
of different states or countries in deciding the case
(SEMPIO-DIY, Handbook on Conflict of Laws
(2004), p. 1 [hereinafter, SEMPIO-DIY, G_onflict});
LAWS CASE
PRIVATE They come into being through variance in the
municipal laws of the countries involved. Even
assuming that laws in various countries are
uniformly the same, different municipal tribunals may
still give identical laws varying interpretations
(PARAS, Conflict, supra at 6).
THREE-FOLD FUNCTIONS OF PRIVATE
INTERNATIONAL LAW:
1. Question of Jurisdiction
- prescribes the conditions under which a court
or agency is competent to entertain
proceedings with foreign elements.
2i"i QuestioJl of Applicability of a Foreign
.... ••l'.+Juclgment
- specifies the circumstances in which foreign
judgmeht ·will be recognized as valid and
binding in the forum.
3. QuestiQn of Choice of Law
. ., .ci~~ir;rlines,, ttie
particular system of law for
eadf.i:icltil:i~\9f cases to ascertain the rights of
parties (PARAS, Conflict, supra at 8).
"-1:···'"L:Eigat problem or case involving a
foreign element; and

NOTE: Foreign element - factual situation

cutting across territorial lines, affected by
diverse laws of two or more States. The

DOHN ALFRF.D E. AQlJILIZAN. Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad Hoc Director for Bar ivlatters I MARIELLE CIELO B. BELGIRA, Vice Chairperson fur Finance I JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, Vice Clwirpersun for Audit I CORINA TAMPUS, Vice Chairperson
for Secretariat I ARVY KEITH CHUNG, Vice Chairperson for i,ogistics I ANTONIO JUN-JUN C. MANALIGOD IV, Vice Chairperson for
Membership I JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair I KING LAURENZ S. MASILUNGAN, Assistant Subject Chair I ALHEX ADREA M.
PERALTA, Subject E/ert1a11ic Data I'rocessinp; I SUBJECT HEADS: JOAN V. LAGRJ\DILU\, Agency & Trusts I QUENNIE IRIS V.
BULATAO, Conflicts of Law \ JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Relntinns I KRISTOFFER MONICO S. NG, Property I JlJLEEN EVETTE
D. MALLARI, Land Titles and Deeds I MARISOL 0. SISON, Sales I GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YlJMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGA YONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. LYAN DAVID M.JUANICO and Dean ULPIANO P. SAMUNETO III

 ~ ' . ~ " - ~

r;~
,--.

·,2 .
"\'i•~.~
. .. CONFLICTS OF LAW
Civil Law
. ' .
presence of foreign element in a case
determines the existence of a Conflict of Laws
situation. Where there is no foreign element, no
Conflict of Laws exists (AGPALO, Conflict,
supra at 12).
A foreign element is anything which is not
domestic and has a foreign component to it. It Sovereign states and Private individuals or
can be a foreigner, a foreign corporation, an entities possessed of corporations
incident happening in a foreign country, or a international personality,
foreign law chosen by the parties. Without a exceptionally, individuals,
foreign element, the case is only a domestic too
problem (PE BENITO, Conflict bf Laws (2016),
p. 11 [hereinafter, PE BENITO, Conflict]).

2. Determination of whether the law or Transactions entered into Strictly private in

judgments of other State/s will govern · which generally affect nature
public interest;
and if so, the extent of its
transactions in which
recognition/application in the· forum sovereign States are
(COQUIA & AGU/LING-PANGALANGAN, interested
Conflict' of Laws: Cases Materials and
Comments (2000) p. 57 [hereinafter,_ COQUIA,
Conflict]). -
In case of "violation of Resort to municipal
REMEDIES OF CONFLICT Of LAWS International · Liiw, resort tribunals
1. The enforcement of rights accrued in a foreign may be. - peaceful or
country in the form of an action fill:~d in Philippine forcible:
courts by a citizen or aggrieved persor); and
2. Recognition and enforcement of foreign Pe;icefµI rem~clies: .
judgment (AGPALO, C0nflk;t, supra at6). Diplomatic hegotiation,
tender . and exercise\ of
good offices, .'medlation,
PUBLIC INTERNATIONAL LAW inquiry-• and oonciliation,
AND PRIVATE INTERNATIONAL[AW, arbitration, "Tutjicial
DISTINGUISHED . s1:1Wen;ient by , the
International Court of
Justice

· Forcible remedies:
Severance , of diplomatic
relations-, retorsions,
International conventions, reprisals, embargo,
international custom, the municipal laws, which boycott, non-intercourse,
general principles of law includes the pacific blockades,
recognized by civilized constitution and collective measures under
nations, and judicial statutes adopted by the U.N. Charter, and
decisions and the individual countries finally, war.
teachings of the most (PE BENITO,
highly qualified publicists Conflict, supra at 2). (PARAS, Conflict, supra at 10-11).
of the various nations
(Statute of the
International Court of
SOURCES:
Justice, Art. 38(1 )) . 1. Direct Sources:
a. Treaties and international conventions;
b. Constitutions;
c. Codifications and statutes;
International in character National, municipal, d. Judicial decisions; and
or local in ·character e. International customs
(PE BENITO, 2. Indirect Sources:
Conflict, supra at 2). a. Natural moral law; and
 MEM✓Q~Y AID
San Beda University CoHege of Law · RGCT Bar Operations Center
b. Writings and treatises of thinkers, famous
writers, and jurists on the subject, among
others (SEMP/O-DIY, Conflict, supra at 7).
A formal treaty is not the lone primary source of
customary international law. Among other things,
courts consider international custom as evidence of
a general practice accepted as law. Where there is
no treaty, and no controlling executive or legislative
act or judicial decision, resort must be had to the
customs and usages of civilized nations (Abdu/lahi
v. Pfizer, Inc., 562 F.3d 163, January 30, 2009).
HISTORY AND -DEVELOPMENT
1. 14th century (Theory of Statutes)
- Bartolus, "Father of Conflict of Laws,"
formulated the Theory of Statutes in which
Conflicts were resolved by classifying the issues
based on real, personal, and mixed statutes.
The classifications were overlapping.
2. 16th century
- Customs were used for resolving Conflicts.
th
3. 17 century (Doctrine of
Gentium)
- relied on the theory of State sovereignty;
denied that States were under any legal
obligation to apply foreign law, unless made out
of considerations of courtesy and expediency.
4. Beginning of coditications
- Conflict of Laws provisions were included in
the civil codes of the states (SALONGA, Private
International Law (1995), pp. 15-17) [hereinafter,
SALONGA, Conflict/.
PHASES IN CONFLICTS RESOLUTION
1. Jurisdiction
- concerns the authority of a court of law to take
cognizance of a case (Where can or should
litigation be initiated?).
2. Choice of Law
- refers to the applicable law to the problem
(Which law will the court apply?).
3. Recognition and Enforcement
- concerns the enfbrcernent of foreign laws and
judgments in another jurisdiction (Where can the
resulting judgment be enforced?).
These three phases are separate from each other
and a defense in one phase is not a defense in other
phases (PE BENITO, Conflict, supra at 12).
In the judicial resolution of conflicts problems, three
consecutive phases are involved: jurisdiction, choice
of law. and recognition and enforcement of
judgments. Corresponding to these phases are the
following questions:
1. Where can or should litigation be initiated;
2. Which law will the court apply; and
3. Where can the resulting judgment be enforced
(Hasegawa v. Kitamura, G.R. No. 149177,
November 23, 2007).
I JURISDICTION
I
GENERAL RULE: It is the right of a State to exercise
authority over persons and things within its
boundaries, subject to certain exceptions
(Hongkong and Shanghai Banking Corporation v.
Sherman, G.R. No. 72494, August 11, 1989).
KINDS OF JURISDICTION IN CONFLICT
OF LAWS:
Judicial Jurisdiction
.-:-: power 9.r authority of a court to try a case,
Comitas
/-er')der }µijgment and execute it in accordance
with law.'
2. Legis!ativ~ Jurisdiction
..,.. abil~y bf ti;le State to promulgate laws and
enforce them b.n all persons and property within
its te~~itqry (G,QQljlA, Conflict, supra at 20).
f ::,'s\f,'.,;. ','s" ,i .; .
Jurisdictiol'"~~tr ~hoice of law are two distinct
concepts. Jurisdiction considers whether it is fair to
·ca\.;l$e a defendant to travel to this state. Choice of
-~~;}Qh,;th,Q other hand, asks the further question
whether the application of a substantive law which
will determine the merits of the case is fair to both
parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to
apply forum law. While jurisdiction and the choice of
the lex fori will often coincide, the "minimum
contacts" for one do not always provide the
necessary "significant contacts" for the other. The
question of whether the law of a state can be applied
to a transaction is different from the question of
whether the courts of that state have jurisdiction to
enter a judgment(Saudi Arabian Airlines v.
Rebesencio, G.R. No. 198587, January 14, 2015).
STEPS IN DEALING WITH A PROBLEM
IN CONFLICT OF LAWS:
1. Determine whether the court has jurisdiction
over the case. If it has no jurisdiction, the case
should be dismissed on that ground.
2. If it has jurisdiction, it may:
a. Refuse to assume jurisdiction on the ground
of forum non conveniens; or
 " ,. ~ "',,;; ~:'< ~ '-,,. '
' -4 ' •,: ' CONFLICTS OF LAW
,
'
' s, ~ o .,_ I
' Civil Law
(,'
b. Assun1e jutisdicliun, irr wlridr ccJ::;e il 111c:1y
either:
i. Apply the internal law of the forum (lex
tori);
ii. Apply the proper foreign law (lex
causae) (PARAS, Conflict, supra at 25).
LONG-ARM STATUTES
Legislative act which provides for personal
jurisdiction, via substituted service or process, over
persons or corporations which are non- residents of
the state and which voluntarily go into· the state,
directly or by agent or communicate with persons in
the state for limited purposes, inactions which
concern claims relating to performance or execution
of those purposes. These are statutes allowing the
courts to exercise jurisdiction when there are
minimum contacts between the non-resident
defendant and the forum. (Black's Law Dictionary,
5th Ed. 1979).
TYPES OF JUDICIAL JURISDICTION ,
.2. Jurisdiction over the Res
1. Jurisdiction over the person
The competence or power ofa court to render a
judgment that will bind the. parties to a case
(SEMPIO-DIY, Conflict, supra a(5).
How Acquired:
a. Jurisdiction over the pers9n of the plaintiff is
acquired from the mom(:int he invokes the
aid or power of the court' by instituting an
action through proper pleqding. ._
b. Jurisdiction over the persoh Of the defendant
is acquired through: · 1 .. ·- ·_ .
i. Voluntary appearance where action is in
personam (RULES OF COl:JRT, RULE ·
14, Sec. 23); .· · •·.
ii. Coercive process through personal or.
substituted service of summons where
action is in personam (RULE§ OF
COURT, RULE 14, Secs. 5 and 6);
iii. Constructive Service by Publication
where the identity/whereabouts of
defendant is unknown (RULES OF
COURT, RULE 14, Sec. 16);
iv. Extra-territorial Service (RULES OF
COURT, Rule 14, Secs. 17 and 18); and
v. Service upon a foreign private juridical
entity which has transacted business in
the Philippines through its resident
agent designated in accordance with
law for that purpose, or if none, the
government official designated by law to
that effect, or any of its officers, agents,
directors or trustees within the
Philippines. If the foreign private
juridical entity is not registered in the
Philippines, or has no resident agent but
has transacted or is doing business in it,
as defined by law, such service may,
with leave of court, be effected
outside of the Philippines through
any of the following means:
1.) By personal service coursed
through the appropriate court in the
foreign country with the assistance
of the department of foreign affairs;
2.) By publication once in a newspaper
of general circulation in the country
where the defendant may be found
and by serving a copy of the
summons and the court order by
registered mail at the last known
address of the defendant;
3.) By facsimile;
4.) By electronic means with the
prescribed proof of service; or
5.) By such other means as the court,
in its discretion, may direct (RULES
OF COURT, Rule 14, Sec. 14).
Jurisdiction over the particular subject matter in
controversy, regardless of the persons who may
be interested therein (PARAS, Conflict, supra at
29, SEMPIO-DIY; Conflict, supra at 7).
Referred t~'.as in rem jurisdiction in contrast to in
pers.onam Jurisdiction, which binds only the
partles anq ·-· thelr successors-in-interest. A
personal action, however, may be converted to
/n,rem by attaehnieht of property, among others
(SENf PIO-OIY, Conflict, supra at 7).
How Ac-quired:;'
a. Seizure of property under a legal process; or
b. Institution of legal proceedings wherein,
_ , 1,mder.Special provisions of law, the power of
·. the court over the property is recognized
· and made effective (Heirs of Morales v.
Agustin, G.R. No. 224849, June 6, 2018).
Quasi in rem jurisdiction affects only the
interests of particular persons in the thing. In
such case, the court may render valid judgment
when it has jurisdiction over the particular
persons whose interests are affected (SEMPIO-
DIY, Conflict, supra at 7).
Long-arm Statute·
A law that allows a plaintiff to make a claim
against a non-resident defendant, pro\lided
there are minimum contacts with the forum to
justify its exercise of jurisdiction over him
(COQUIA, Conflict, supra at 36).
 MEM:Q~Y AID
San Beda University College of Law - RGCT Bar Operations Center
3. Jurisdiction over the Subject Matter
It is conferred by law and is the power of the
court to hear and determine cases of the general
class to which the proceedings in question
belong (SEMPIO-DIY, Conflict, supra at 5).
In Conflict of Laws, the court must consider in
determining the matter of jurisdiction the
possible enforceability of its decision in foreign
states, subject to the rights of said states (Id. at
5)
NOTE: In the Philippines, jurisdiction over the
subject matter is conferred by law, e.g., the
Constitution and the Judiciary Reorganization
Act, as amended (B.P. 129, Judiciary Act of
1948, as amended by R.A. 9252).
Test of Jurisdiction: Whether the law vests upon
the tribunal the power to enter upon the inquiry
(Salvador v. Patricia, Inc., G.R. No. 195834,
November 9, 2016).
BASIC PRINCIPLE UNDERLYING ALL
RULES OF JURISDICTION
A State does not have jurisdiction in the absence of
some reasonable basis for exercising it, whether the
proceedings are in rem, quasi in rem, or in
personam. To be reasonable, the jurisdiction must
be based on some minimum contacts that will not
offend traditional notions of fair play and substantial
justice (SALONGA, Conflict, supn:l at 55).
Thus, an essential element of conflict n:iles is the.
indication of a "test" or "connecting factor" or "point
of contact". Choice-of-law rules invariably com;ist of
a factual relationship (such as property right,
contract claim) and a connecting facf point. of
contact, such as the situs of the res, the place of
celebration, the place of performance, or the place
of wrongdoing ( Continental Micronesia, Inc. v.
Basso, G.R. Nos. 178382-83, September 23, 2015).
MINIMUM CONTACTS TEST
FUNDAMENTAL FAIRNESS TEST
To bind a defendant absent from the territory of the
forum to a judgment in personam, due process
requires that he should have certain minimum
contacts with it and that the maintenance of the suit
does not offend traditional notions of fair play and
substantial justice ( Shaffer v. Heitner, 433 U.S. 186,
June 24, 1977).
NOTE: For in rem and quasi-in rem. due process is
satisfied when defendant is given adequate notice
and opportunity to be heard by service of summons
through publication (COQUIA, Conflict, supra at 24).
POINTS TO REMEMBER ON
JURISDICTION
1. In choosing a particular forum, the plaintiff
accepts the forum's entire judicial machinery, so
that he must accept not only its benefits but its
burdens as well (SEMPIO-DIY, Conflict, supra at
10);
2. The jurisdiction of the court continues even if the
defendant leaves the state of the forum prior to
the final determination of the action against him
(Id. at 10);
3. The parties to a contract may stipulate on the
foreign law to govern disputes arising from the
contract (AGPALO, .Conflict, supra at 30);
4. The parties may stipulate on a Jurisdiction
Clause, a contract clause which provides that
any dispute arising from the contract shall be
tried before the competent/specific court of a
particular State;
5. A court, in assuming jurisdiction over the case,
may apply the internal law of the forum (/ex tori),
or the law of some other State(s) (AGPALO,
Conflict, supra at 25); and
· 6. The case may be dismissed for lack of
Jurisdiction of the court or its refusal to assume
jt:1ri1:1dJqij(;)n over the case pursuant to forum non
convefiie(ls (SEMP/O-DIY, Conflict, supra at
10). .
PRINCIPLE OF FORUM NON
CONVl;N/ENS.
A cour;Wr9,isff~!lQ!:'.\~TY power to decline the exercise
of its juiisdl¢iorj;where another court may more
conveniently hear a case (SALONGA, Conflict,
s4era at 56). Accordingly, under the doctrine of
fori//11 oon conveniens, a court, in Conflict of Laws
or ~~ie'SF,may refuse impositions· on its jurisdiction
where it is not the most 'convenient' or available
forum and the parties are not precluded from
seeking remedies elsewhere.
The use of the word "may" (i.e., "may refuse
impositions c,n its jurisdiction") shows that the matter
AND of jurisdiction rests on the sound discretion of a
court. Neither the -mere invocation of forum non
conveniens nor the averment of foreign elements
operates to automatically divest a court of
jurisdiction. Rather, a court should renounce
jurisdiction only "after 'vital facts are established, to
determine whether special circumstances' require
the court's desistance." As the propriety of applying
forum non conveniens is contingent on a factual
determination, it is, therefore, a matter of defense
(Saudi Arabian Airlines (Saudia) v. Rebesencio,
G.R. No. 198587, January 14, 2015).
NOTE: It relates to forum, not to the choice of
governing law (PE BENITO, Conflict. supra at 29).

Forum non conveniens is a device akin to the rule
against forum shopping. It is designed to frustrate
illicit means for securing advantages and vexing
litigants that would otherwise be possible if the
venue of litigation (or dispute resolution} were left
entirely to the whim of either party (Saudi Arabian
Airlines v. Rebesencio, G.R. No. 198587, January
14, 2015). .
The doctrine should generally apply only if the
defendant is a corporation. If the defendant is an
individual, the proper forum may not be able to
acquire jurisdiction over him (i.e., he may not be
residing there), leaving the plaintiff without any
remedy ( SEMPIO-DIY, Conflict, supra at 11 and 12).
INSTANCES WHERE FORUM NON
CONVENIENS MAY BE INVOKED:
A court, though it has jurisdiction over a case, may
decline to exercise it, in view of any of the following
practical reasons: ·
1. Evidence and witness may not· he readily
available in the forum; · su_cceed (CIVIL CODE, Art. 16, par. 2);
2. Court dockets of the forur11 may af~eady be
clogged and permitting additional cases ·would
hamper the speedy administratiori-of justice;
3. Belief that the matter can be better tried and
decided in another jurisdiction/either because
, the main aspects of the, casetr~nspired therein
or the material witnesses have their residence
thereat; ' ~
4. To curb the evils of forum shqpping;
5. Forum has no particular interest in the case;
6. Other courts are open and the case 'may .,be
better tried therein; · _ ._ · judgments and its authenticity must be proven
7. Inadequacy of the local judicial machinery; and
8. Difficulty of ascertaining·, the foieign law
applicable (SEMPIO-DIY, Conflict, supr9 at1Q-
11). ,,
NOTE: The court will not dismiss the case under the
doctrine unless the plaintiff has another forum open
to him (AGPALO, Conflict, supra at 498).
On the other hand, courts may choose to assume
jurisdiction subject to the following requisites: "(1)
that the Philippine Court is one to which the parties
may conveniently resort to; (2) that the Philippine
Court is in a position to make an intelligent decision
. as to the law and the facts; and (3) that the Philippine
Court has or is likely to have power to enforce its
decision" (Philippine National Construction Corp. v.
Asiavest Merchant Bankers (M) Berhad, G.R. No.
172301, August 19, 2015).
NOTE: Jurisdiction and choice of law are two distinct
concepts. Jurisdiction considers whether it is fair to
cause a defendant to travel to this state; choice of
law asks the further question whether the application
of a substantive law which will determine the merits
of the case is fair to both parties. The power to
CONFLICTS OF LAW
· Civil Law
exercise jurisdiction does not automatically give a
state constitutional authority to apply forum law
(Hasegawa v. Kitamura, G.R. No. 149177,
November 23, 2007).
JUSTIFICATIONS FOR THE
APPLICATION OF INTERNAL LAW OF
THE FORUM (LEX FOR/) TO CONFLICT
OF LAWS CASES:
1. When the local law expressly so
provides (COQUIA, Conflict, supra at 145);
a. Law governing.property transactions (CIVIL
CODE, At1. 16, par. 1);
REASON: At1. 16 of the Civil Code
mandates the application of lex situs or lex
rei sitae to all properties, whether real or
personal, found and located here.
b. Law governing the order and amount of
> successional rights, intrinsic validity of
t~stamentary provisions, and capacity to
· · t. Laws •· governing property relations of
mc,:1rriage (fiAMIL Y CODE, Art. 80); and
d. .Laws governing revocation of wills (CJVIL
CODE,'Art. 829).
' ,, ' <
2. When ther f9reign law or judgment has
not, been properly pleaded and proved
(COQJ.JIA, Cpnllid, 'supra at 145);
R~A:S0,N: Our courts do not take judicial notice
of foreig,n judgments and laws. Foreign
as a fact under_ bur rules on evidence, together
with the alien's' applicable national law to show
. the. effect of the judgment on the alien himself
(Med,i(la v: Koike, G.R. No. 215723, July 27,
,_ 2oH;;J,.
3. When the case involves any of the
exceptions to the application of the
proper foreign law (C 2P2-FUL)
a. The application of foreign law runs founter
to a sound and established public policy of
the forum (i.e., incestuous marriage or joint
will) (SEMP/O-DIY, Conflict, supra at 14);
Kinds of public policy as to extent of
operations:
i. Operates no matter where the event or
transaction takes place; and
ii. One which operates only where the
event or transaction takes place in the
forum and is not offended if the
transaction is completed abroad.
NOTE: Courts may use public policy to: (a)
refuse to entertain the case and dismiss it
h&iWM3 \ I
MEM:Q-RY Al D
San Boda University College of Law - RGCT Bar Operations Center
without prejudice because its enforcement is
against public policy; (b) entertain the case
and apply domestic law; or (c) entertain the
case but invoke its own public policy to apply
the forum's domestic law.
b. The foreign law is _g_ontrary to the almost
universally conceded principles of morality
(Contra Banos Mores) (e.g. foreign laws
recognizing prostitution) (Id. at 14);
c. Tl1e foreign law is f_enal in character
(AGPALO, Conflict, supra at 67);
Exception:
When the local law adopts the penal law of
other countries as part thereof (Id.).
A "penal clause" in a contract entered into
abroad may be enforced here because such
is not criminal but civil in nature, providing
only for liquidated damages (SEMP/O-DIY,
Conflict, supra at 15).
NOTE: Enforcement of foreign penal laws
must be distinguished from their recognition;
a state may recognize foreign penal laws for
various purposes, though it will not directly
enforce such laws in its jurisdiction (/d. at
15).
d. The foreign law involves _Erocedural matters
(AGPALO, Conflict, supra at 66);
REASON: If foreign procedural !aws were to
be applied, it would involve a making over of
the machinery for the administration of
justice in the forum. Procedural issues are
governed by forum law so as not to unduly
burden or complicate the task of the. court
with the study of uncommon peculiarities
and refinements of another legal system
(COQUIA, Conflict, supra at 88).
e. Foreign law is purely fiscal or administrative
in natu~e (i.e., collection of taxes by foreign
countries or relating to governmental
functions) (SEMPIO-DIY, Conflict, supra at
15);
NOTE: A sovereign has no legal duty to
assist foreign governments in the financing
of their activities. · resolution of whether a foreign law allows only
f. The application of foreign law involves
Undeniable injustice to the citizens or
residents of the forllm or endangers the
foreign relations or vital interests of the state
(Id. at 15 and 16); and
g. The case involves real or personal property
bocated in our country (CIVIL CODE, Art.
16, par. 1).
INSTANCES EXEMPTING THE
APPLICATION OF INTERNAL LAW TO
CONFLICT OF LAWS CASES
1. A foreign sovereign, diplomatic official,. or public
vessel or property of another state is involved
(SALONGA, Conflict, supra at 63);
2. The State accepted a limitation upon its
jurisdiction over certain persons or things of
another State ttirough a treaty {Id.); or
3. Foreign law has been pleaded and proved
(RULES OF COURT, RULE 132, Sec. 25).
MANNER OF PROVING FOREIGN LAWS
GENERAL RULE: In this jurisdiction, courts are not
authorized to "take judicial notice of foreign laws."
The laws of a foreign country must "be properly
pleaded and proved" as facts, in accordance with the
Rules on Evidence. Othervvise, under the doctrine of
processual presumption, foreign law shall be
presumed to be the same as domestic law (Chiquita
~ianqs, /nc;i;V. Omelia, G.R. No. 189102, June 7,
2017):" ..
1. Written Law
a. By .official publication (SEMPIO-DIY,
Conflict, supra at 13);
b. Copy attested by officer having legal
:c~s~o9y;ttJe:reof. If the record is not kept in
th~iPliiiip'fjines, a certificate with seal from a
secretary of the embassy, legation, consul
general, consul, vice consul, consular
. , agent, or any officer in the foreign service of
"tn'e' Philippines stationed in the foreign
country to the effect that said officer has
custody is required (RULES OF COURT,
RULE 132, Sec. 24); and
c. A published treatise on the subject law
provided that the court takes judicial notice
of the competence of the writer, or evidence
is introduced to .establish the author's
competence (RULES OF COURT, RULE
130, Sec. 48).
There can be no summary judgment where
questions of fact are in issue or where material
allegations of the pleadings are in dispute. The
the recovery of actual damages is a question of
fact as far as the trial court is concerned since
foreign laws do not prove themselves in our
courts. Foreign laws are not a matter of judicial
notice. Like any other fact, they must be alleged
and proven (Manufacturers Hanover Trust Co. v.
Guerrero, G.R. No. 136804, February 19, 2003).
t '~ 0' , .., t~ ' ; ,.
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.
2. Unwritten Law
a. By oral !estimony of expert witnesses
(SEMP/O-O/Y, Conflict, supra at 13); or
NOTE: The existence of a foreign law may
be established through a testimony under
oath of an expert witness such as an
attorney-at-law in the country where the
foreign law operates wherein he quotes
verbatim a section.of the law and states that
the same was in force at the time material to
the facts at hand (Sobejana-Condon v.
Commission on Elections, G.R. No. 198742,
August 10, 2012).
Sec. 25, Rule 132 of the Rules of Court does
not exclude the presentation of other
competent evidence to prove the existence
of a foreign law (Asiavest Limited v. CA,
G.R. No. 128803, September 25, 1998):"
b. By printed and published book\>ofrepbr:ts of
decisions of the country involved, if proved
to be commonly admitted in\ its <:6urts
(RULES OF COURT, RtlLE 130, Sec.Al);
EXCEPTIONS TO THE PROCEDURAL
REQUIREMENTS FOR PROVING
FOREIGN LAW:
1. Presentation of a foreign-licensed attorney who
will testify in open court :,concerning her
knowledge of the law in qµ~stiori , (fvfffrcantile
Insurance Gp., Inc. v. ,Yi, G.R. No. 234501,
March 18, 2019); , , •. . APPLICAB.LE-LAW
2. Administrative agencies recogni?ing fore\gn
laws without proof thereof; ., , . . .,
3. Lack of objection to the impr9per presentation ·
by one party of proof of foreign law;.a11d;.
4. Laws appearing in official we!Jsites. · of
government agencies which have custo,dy of
laws (PE BENITO, Conflict, supra at 80).
In International Law, jurisdiction is often defined as
the'-right of a State to exercise authority over persons
and things within its boundaries subject to certain
exceptions. Thus, a State does not assume
jurisdiction over traveling sovereigns, ambassadors
and diplomatic representatives of other States, and
foreign military units stationed in or marching
through State territory with the permission of the
latter's authorities. This authority, which finds its
source in the concept of sovereignty, is exclusive
within and throughout the domain of the State. A
State is competent to take hold of any judicial matter
it sees fit by making its courts and agencies assume
jurisdiction over all kinds of cases brought before
them (Hongkong and Shanghai Banking Corp. v.
Sherman, G.R. No. 72494, August 11, 1989).
f/41 ]
~
CONFLICTS OF LAW
Civil Law
EFFECT OF FAILURE TO PLEAD OR
PROVE FOREIGN LAW:
1. Defendant. may move for Demurr!3r to Evidence
if plaintiffs cause of action rests on unproven
foreign law, resulting in no cause of action to the
plaintiff's case. If the defense rests on unproven
foreign law, the defense fails (AQUINO,
Elements of Private International Law (2006) p.
101 [hereinafter, AQUINO, Elements of Private
International Law]).
2. The case will. not be dismissed; the doctrine of
processual presumption will become operative
(Chiquita Brands, Inc. v. Omelia, G.R. No.
189102, June 7, 2017).
DOCTRINE OF PROCESSUAL
PRESUMPTION OR PRESUMED-
IDENTITY APPROACH
. lnJhe absence of pleading and proof, the laws of the
foreigh cquntry or state will be presumed to be the
same as our local or domestic law. This is known as
.. processuaL , presumption (Nedlloyd Lijnen B. V.
Rotterdam v, Glow Laks Enterprise, Ltd., G.R. No.
'156330, Noveinbe\19, 2014).
'', , ,
·I...__c_H_o_·. ._.ic_i_ _ _l
EO_F_L_A_w
QUESTION~/ . THAT CHOICE-OF-
SEEKS TO
ANSWE~:·
, 1. Wh~v· legal $y'stem should control a given
· · situation where some of the significant facts
· ·· occurred in two or more states; and
2. ·To w.iiai' extent should the chosen system
'. regulate the situation (COQUIA, Conflict, supra
at 57).
NOTE: Foreign law has no extraterritorial effect and
any exception to this right must be traced to the
consent of the nation (AGPALO, Conflict, supra at
16).
It is appropriate to assume that Congress had
domestic concerns in mind. This assumption is
similar to the legal presumption that Congress
ordinarily intends its statutes to have dor;nestic, not
extraterritorial application. The Court assumes a
congressional intent that the phrase "convicted in
any court" applies domestically, not extraterritorially,
unless the statutory language, context, history, or
purpose shows the contrary (Small v. United States,
544 U.S. 385, April 26, 2005).
 ' I

MME-M✓Q~Y Al D' . ~.
Sm1 Seda University College of Law - RGCT Bar Operations Center

THEORIES IN JUSTIFYING THE
APPLICATION OF FOREIGN LAW IN
CONFLICTS CASES: (CVL-JH)
1. Theory of fomity
The application of foreign legal systems in cases
involving foreign element is proper, otherwise,
the non-application would constitute a disregard
of foreign sovereignty or lack of comity towards
other States (PARAS, Conflict, supra at 65).
Comity
It is the recognition which one nation allows
within its territory, to the legislative, executive, or
judicial acts of another nation, having due regard
to both international duty and convenience and
to the rights of its own citizens, of other persons
who are under the protection of its laws (Sison
v. the Board of Accountancy, G.R. No. L-
2529, December 31, 1949, citing Hilton v.
Guyot).
Two Principles upon which Theory of Comity
Rests:
a. Comity based on reciprocity; and
NOTE: H the laws and judgments of the
forum are recognized in a foreign state, the
forum in turn will recognize the laws and
judgments emanating from said foreign
state (Hilton v. Guyot, 159 U.S. 113, June 3,
1895).
b. Comity based on the persuasiveness of a
foreign judgment.
NOTE: If the forum is persuaded that a
foreign judgment is meritoriou? and has
·· · 5. ftamiony of Laws Theory
been rendered by a court of competent
jurisdiction, it will not hesitate to enforce that
foreign judgment in the forum even if the
foreign forum does not reciprocate
(Johnston v. Compagnie Generale
Transatlantique, 243 N. Y. 541, July 11,
1924).
A foreign final judgment or final order "is
presumptive evidence of a right as between
the parties and their successors in interest
by subsequent title" and "may be repelled by
evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact" (RULES OF COURT,
Rule 39, Sec. 48).
protected in other countries. The forum will not
apply the foreign law but will simply recognize
the right vested by said law (SALONGA,
Conflict, supra at 72).
3. Local Law Theory
This involves the appropriation of a foreign rule
by the State of the forum and transforming it into
a domestic rule. A foreign law is applied because
our own law, by applying a similar rule, requires
us lo do so, as iftl1e foreign law has become part
of our own internal or domestic law (SEMPIO-
DIY, Conflict, supra at 20}.
Illustration: Art. 16, par. 2 of the Civil Code
requires the application of the national law of the
deceased in the matter of his testate or intestate
succession (Id. at 20).
4. Theory of Justice (Caver's Principles of
Preference)
The thesis of Prof. David F. Cavers' article
entitled "A Critique of the Conflict of Laws
Problem" was that choice of law should be
determined by "considerations of justice and
''.soci9 1 expediency" and should not be the result
ofrtietfi~hical application of the rule or principle
of selection (COQUIA, Conflict, supra at 66).
Foreign law·.should not be applied when its
appliGation would work undeniable injustice to
the citizeQs or residents of the forum. A law or
judgrn~n(pf·RQntract that is obviously ·unjust
negatggtnefun'aamental principles of Conflict of
Laws (Continental Micronesia, Inc. v. Basso,
G.R. Nos. 178382-83, September 23, 2015).
identical or similar problems should be given
identical or similar solutions, thus resulting in
harmony of laws. The application of the same or
similar solution prevents the bad practice of
forum shopping (SEMPIO-O/Y, Conflict, supra at
20).
NOTE: The foregoing theories do not mutually
exclude another; perhaps, the truth may be
found in their combination (PARAS, Conflict,
supra at 73).

2. Vested Rights Theory

Courts enforce not the foreign law or foreign
judgment but the righUs vested under such law_
or judgment. Thus, rights acquired in one
country must be recognized and legally
 CONFL&OlS OF LAW
Civil Lnw

countries following the domici!iary theory ( SEMP/0-

NATURE, DIY, Conflict, supra at 38).

COMPOSITION &: PARTS OF CONFLICT RULES

CHARACTERIZATION 1. Object or the Factual Situation
- the set of facts or situation presenting a
OF CONFLICTS RULES Conflicts problem because there is a foreign
element involved (Id. at 24).

CONFLICT RULES 2. Legal Consequences or the Point of

Contact or Connecting Factor
A provision found in our own law which governs a - the law of the country with which the factual
factual situation possessed of a foreign element. It is
situation is most intimately connected (Id. at 24).
usually expressed in the form of an abstract
proposition that a given legal question is governed
CHARACTERIZATION OR DOCTRINE OF ·
by the law of a particular country (which may be an
internal law or the proper foreign law), to be QUALIFICATION OR CLASSIFICATION
ascertained in the manner indicated in the provision Before a choice of applicable law can be made, it is
(SEMP/0-DIY, Conflict, supra at 22). necessary to determine under what category a
certain set of facts or rules fall. This determination
ORDINARY INTERNAL RULES AND proces9 is known as "characterization", or the
"dpctrine of. qualification". It is the "process of
CONFLICT RULES, DISTIN~UISHEO deciding whether or not the facts relate to the kind of
question specified in a conflicts rule." The purpose
of "charac.terization" is to enable the forum to select
the proper law (Saudi Arabian Airlines v. Court of
Authorize, command, or D~ddes o~ wbich law Appeals, GR.No. 122191, October 8, 1998).
prohibit certain mode of or jurisdiction will give
conduct (e.g., Art. 796 of .the fin~! solution to the ' The law choseri should be applied only insofar as it
the Civil Code). Its legal questi<:m (e.g.; Art. 16, brings about the good it intended to bring. The
effects are immediately . paL 1 and Art. 17, par. selecte<;J proper law is applied to the factual situation
indicated (e.g., Express . 2 cit t.he Civil Code). to decide: (1) legal con$equences resulting from the
prohibition). situation; br (2) interests created in the thing in
{Id. at 22) questioiL ·

TWO KINDS OF CONFLICT RUlfS STEPS INCHARAGTERIZATION: ·

1. · One-sided rule
- indicates when Philippine la'w y.,ill apply'.: e,g.,
Art. 15 and Art. 818 of the Civil Code orily apply
to Filipinos (SEMP/0-DIY, Conflict, supra,at23).
2. All-sided or multilateral rule . 4. The characterization of the Point of contact
- indicates whether to apply the local law or the
proper foreign law, e.g., First paragraphs of Art.
16 and Art. 17, Art. 1763 and Art. 1039 of the
Civil Code (Id. at 23).
NOTE: Justice Sempio-Diy observes that while Art.
15 of the Civil Code applies only to Filipinos and is
actually a one-sided rule, the Supreme Court has
given it a multi-lateral application when it held that
foreigners, in their status and legal capacities, are
governed by their national laws ( Gibbs v. The
Government of the Philippine Islands., G.R. No. L-
35694, December 23, 1933).
The nationality theory has been applied by the
Supreme Court even to persons who are citizens of
. (FSR-PProPleA)
1-·, The determination of the Facts involved·
. 2 . . The'characterization of the factual Situa'tion·
3. The.determination of the conflicts Rule whi~h is
to be applied; -
where the connecting factor; -
5. The characterization of the Problem as
procedural or substantive; -
6. The Pleading and proving of the proper foreign
law; and
7. The Application of the proper foreign law to the
problem (PARAS, Conflict, supra at 88).
NOTE: Only steps 2-5 concern themselves with
characterization proper (PARAS, Conflict, supra at
88),
· NOTE: As to the first step, the starting point of
analysis is not a legal relation, but a factual situation,
event, or operative fact. An essential element of
. conflict rules is the indication of a "test" or
"connecting: factor" or "point of contact." One or more
circumstances may be present to serve as the
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possible test for the determination of the applicable 2. Substance-Procedure Characterization

law. Directs .the court to the extent it will apply foreign
law. If the issue is substantive,. the court may
These "test factors" or "points of contact" or apply foreign .law but if it is procedural, it is
"connecting factors" could be any of the following: supposed to follow the law of the forum (Id. at
1. The nationality of a person, his domicile, his 88).
residence, his place of sojourn, or his origin;
2. The seat of a legal or juridical person, such as a RULES ON CHARACTERIZATION OF
corporation; PROCEDURAL AND SUBSTANTIVE
3. The situs of a thing, that is, the place where a
thing is, or is deemed to be situated. In RULES
particular, the lex situs is decisive when real GENERAL RULE: If an issue is substantive, apply
rights are involved; foreign law. If it is procedural, apply the forum law or
4. The place where an act has been done, the lex tori.
locus actus, such as the place where a contract
has been made, a marriage celebrated, a will DETERMINANTS OF AN ISSUE AS
signed or a tort committed. The lex loci actus is PROCEDURAL OR SUBSTANT'IVE
particularly important in contracts and torts; 1. Questions of Evidence
5. The place where an act is intended to come into - procedural
effect, e.g., the place of performance of
contractual duties, or the place where a power 2. Statute of Frauds
of attorney is to be exercised; a. Substantive if the law forbids the obligation.
6. The intention of the contracting parties as to the
i.e., void contracts.
law that should govern their agreement, the lex b. Procedural if the law forbids the
loci intentionis; enforcement of the obligation_ i.e.,
7. The place where judicial or administrative unenforceable contracts, Art 1403 of Civil
proceedings are instituted or done. The lex tori c6df/(ld. supra at 92).
- the law of the forum - is particularly
important because matters of 'procedure' not 3. Borrowlrig . Statutes and Statute of
going to the substance of the claim. involved are Limitations·.
governed by it; and because the. /ex tori applies 1 ~

whenever the content pf the otherwise

applicable foreign law is · excluded from
application in a given case for the reason that it
falls- under one of the excl;lptions Jo the
applications of foreign law; and
8. The flag of a ship, which in many cases is
decisive of practically all legal relationships of
the ship and of its master or owner as such, It
also covers contractual relationships particularly
contracts of affreightment ( Saudi ·. Arabian
Airlines v. Court of Appeals, supra).
SINGLE-ASPECT METHOD
In order to connect the case to a particular legal
community, choice-of-law theories have
concentrated on one element of a situation to foster
simplicity, convenience, and uniformity of results
(COQUIA, Conflict, supra at 82).
TWO TYPES OF CHARACTERIZATION
UNDER THE SINGLE-ASPECT METHOD
1. Subject-matter Characterization
Calls for classification by a court of a factual
situation into a legal category. It is relevant in a
single-aspect method because the legal
category to which an issue is assigned
determines the governing law (Id. at 84).
Borrowing Statutes
Direc,lsJ»~~t_c1\~ of the forum to apply the foreign
statutlfof limitations to the pending claims based
on a foreign law (L WV Construction Corp. v_
Dupo, GR. No. 172342, July 13, 2009).
'Sfaiute of Limitations
Specificity Test - Limitation is substantive
when it fs directed at the newly created liability,
warranting a qualification of the right (Bournias
v. Atlantic Maritime Co., Ltd., 220 F. 2d 152,
February 10, 1955).
Limitation is procedural if it operates to bar only
the legal remedy, without impairing the
substantive right involved.
The characterization of a statute of limitation into
procedural or substantive becomes irrelevant
when the country of the forum has a borrowing
statute, which has _the practical effect of treating
the foreign statute of limitation as one of
substantive law (GOODRICH, Conflict of Laws
(1938), P- 152-153).
NOTE: A law on prescription is sui generis in
Conflict of Laws as it may be viewed as
procedural or substantive, depending on the
characterization given (Cada/in v_ Administrator,
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Civil Law
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PJ1iliµµi111;1 Ovt:11St:1a6 Employinent Matters of Substance - governed by the law of

;?,dministration, G.R. No. 104776, December 5, the country where the action arose (AGPALO,
1994). Conflict, supra at 37).

The modern trend is to consider the prescriptive As a general rule, a foreign procedural law will
periods or the Statute of Frauds that the parties not be applied in the forum. Procedural matters,
had in mind at the time the transaction took such as service of process, joinder of actions,
place (SEMP/O-DJY, Conflict, supra at 27). period and requisites for appeal, and so forth,
are governed by the laws of the forum. This is
DEPECAGE true even if the action is based upon a foreign
From the French "deceper" meaning "to dissect". substantive law (Cada/in v. Administrator,
The different aspects of the case involving a foreign Philippine Overseas Employment
element may be governed by different systems of Administration, G.R. No. 104116, December 5,
law (LIPSTEIN, General Principles of Private 1994).
International Law, (1972), p. 214, 135 Recui/e des
Cours). The characterization of a statute into a
procedural or substantive law becomes
Process whereby different issues in a single case irrelevant when the country of the forum has a
arising out of a single.set of facts may be decided "borrowing statute." Said statute has the
according to the laws of different states, . the practical -effect of treating the foreign statute of
procedural matters being governed byforymlaw and limi_tption as one of substance (Cada/in v . .
substantive matters by some other law(Buchanan v. Administrator, Philippine Overseas Employment
Doe, 246 Va. 67, June 11, 1993). ··· Administration, G.R. No. 104776, December 5,
1994).
PROPOSED SOLUTION~ TO · THE
6.. Cehterbf Gravity Doctrine (Grouping of
PROBLEM OF CHARA9TER)ZATION: ContractsiPrinciple or State of the Most
1. The Lex Fori Solution Significant Relafionship Theory)
GENERAL RULE: The facts and issues are Application .oftho iaw of tho jurisdiction which
characterized based or\ forum's own law. has the most significant relationship to or
Thereafter, · the foreign or domestic law is contact with the svf'iJ1t, parties, a·nd issues (Id. at
applied to the lex fori-Msed ch:'lrac;:teriz;;i.tion. :p/ . ..
REASON: Lex tori determities characterization 7. Th~_Autqnomous Theory
because of practical necessity. · ·· Forum c,onsiders' the characterization of the
country referred to in lex causae (PARAS,
EXCEPTION; When /ex for/ characterization wirt ,
result in clear injustice, lex fori, characferi~ation . ·
Cooflict, supra at
99).

will not apply (SEMP/O-DIY, Corflict, ~upra at 8. . Totality.Theory·

2~. .
Determines the intended law of the parties and
applies the characterization given by the
2. The Lex Causae Solution intended law (Id.).
The characterization will depend on the
governing law.

. 3. The Analytic Jurisprudence

Comparative Law Solution
The court determines the common patrimony of
and
I PERSONAL LAW
I
juridical concepts and employs universal or The law which attaches to a person wherever he
quasi-universal t:haraclerization. may go and generally governs his status, capacity,
condition, family relations, and the consequences of
4. The Double Characterization Solution his_actuations (SEMP/O-O/Y, Conflict, supra at 36).
It couples the lex tori and lex causae solution.
It allows courts to exercise jurisdiction or determine
5. Substance v. Procedure Principle the governing choice-of-law rule on a specific
Matters of Procedure - governed by the law of situation or transaction involving a person wherever
the forum where the case is filed. he may be (COQUIA, Conflict, supra at 88). ·
 e+JUiW \ I
M EM✓vllY Al D
San Beoa UniVersity College of Law • RGCT Bar Operations Center.
DIFFERENT THEORIES OF PERSONAL
LAW
1. The Nationality Theory or Personal
Theory
- the status and capacity of a person is
determined by the law of his nationality or
national law ( SEMP/O-DIY, Conflict, supra at
30),
NOTE: The Philippines follows the Nationality
Theory (Id. at 30-31).
2. The Domiciliary Theory or Territorial
Theory
- the status and capacity of a person is
determined by the law of his domicile (Id,),
NOTE: The United States, like other common
law countries, follows the domiciliary theory (Id.
at 30-31 ).
3. The Situs or Eclectic Theory
- the particular place or situs of an event or
transaction is generally the controlling law (Id. at
30).
JUSTIFICATION OF PERSONAL LAW
Prof. R.H Graveson, a Professor Emeritus in the
University of London, writes that: "The idea. of the
personal law is based on the conception of rrran as
a social being, so that those transactions-of his daily
life, which affect him, most closely in a personal
sense, such as marriage, divorce, legitimacy, many
kinds of capacity, and succession maybe governed
universally by that system of law most suitable in
adequate for the purpose.'; (1974)
NATIONALITY OR PERSONAL ·THEORY
OR LEX NATIONAL/I
It is the theory by virtue of which the status and
capacity of an individual are generally governed by
the laws of his nationality (PARAS, Conflict, supra at
104),
The personal law of an individual is his national law.
This theory is adopted mostly by civil law countries
like the Philippines where -the identity and legal
position of their citizens are guaranteed by a
consistent application by their national laws on
status and family relations wherever they may go
(SEMPIO-DIY, Conflict, supra at 31).
Laws relating to family rights and duties, or to the
status, condition, and legal capacity of persons are
binding upon citizens of the Philippines even though
living abroad (CIVIL CODE, Art. 15).
NATIONALITY
It refers to the membership in a political community,
one that is personal and more or less permanent. In
Conflict of Laws, nationality and citizenship are used
interchangeably (SEMPIO-DIY, Conflict, supra at
31),
STATUS
Refers to the place of an individual in society and
consists of more or less permanent personal
qualities and relationships with which the state and
community are concerned (Id. at 29).
CAPACITY
It is a part of one's status and is the sum total of
one's rights and obligations (Id. at 30).
ACQUISITION OF NATIONALITY
1. · Birth
- Natural-born citizens are citizens of the
Philippines from birth without having to perform
any act to acquire or perfect citizenship (Id. at
34),
; a:·Ju~'$oli - citizenship is acquired by being
bbi'n .within the territorial boundaries of a
stat~'f~E BENITO, Conflict, supra at 138).
b. Ju~ $iinguinis - citizenship is acquired
through blood relationship with the parent
(Id,), C
FouMlirig~:\pr~thbse abandoned children with
no know'rf"'hatural parents, are natural-born
citizens because they are not an excluded class
•:.under the Constitution. So long as there is a high
·. ,prc;,p9pJUty that the foundling's parents are
.. Filipinos, that person will be considered natural-
born (Poe-Llamanzares v. COMELEC, G.R.
Nos. 221697-221700, March 8, 201ff).
REASON: To deny full Filipino citizenship to all
foundlings and render them stateless just
because there may be a theoretical chance that
one among the thousands of these foundlings
might be the child of not just one, but two,
foreigners is downright discriminatory, irrational,
and unjust {Id). ·
2. Naturalization
It is the process of confirming on an alien the
citizenship of another country, by any of the
means provided by law ( SEMPIO-DIY, Conflict,
supra at 44).
Naturalization is a mode for both acquisition and
reacquisition of Philippine citizenship. As a
mode of initially acquiring Philippine citizenship,
naturalization is governed by Commonwealth
' ' ~- - , K,. '" ~• ~ ~ / ~
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Act No. 473, as amended. Naturalization as a
mode for reacquiring Philippine citizenship is
governed by Commonwealth Act No. 63
(Bengson Ill v. House of Representatives
Electoral Tribunal, G.R. No. 142840, May 7,
2001).
Modes of Naturalization
a. Direct Naturalization
i. Judicial Process - Commonwealth Act
No. 475 as amended by RA 530 (Id. at
45).
ii. Legislative Process Philippine
Citizenship conferred by Congress (Id.
at 45).
iii. Administrative Process "The
Administrative Naturalization Law of
2000" or RA 9139. A special committee
is preated to approve, deny, or reject
applications for naturalization filed vyith
said committee (Id. at 45).
b. Derivative Naturalization
i. Wife of a naturalized husband; . tfie Philippjnes who marry aliens shall retain
ii. Minor children of naturalized father; or
iii. Alien wife of a natural-born. or
naturalized citizen (Id. at 45).
If a woman is repatriated, her repatriation
does not carry with it·the repatriation of the
child as the minor was hever ~ Filipino
previously. Commonwealth Act No'. 63 does
not provide that upon . repatriat(on of a
Filipina, her children acquire Phi!ippinEl
citizenship. It would be illogical to consider
his son repatriated like his mother, be.cause
he never was a Filipino citizen and could not
have reacquired · such ·citizensh,ip
(Villahermosa v. Commissioner. of
Immigration, GR No. L-1663, · March 31;
1948).
If instead of repatriation, the widow had·
automatically regained Philippine
citizenship, the nationality of her minor child
would follow hers (Talaroc v. Uy, G.R. No.
L-5397, September 26, 1952).
Effect of Naturalization on Wife and
Children
a. Minor born before naturalization
i. Born in the Philippines - Filipino
ii. Born outside the Philippines
1.) Residing in the Philippines at the
time of parent's naturalization -
Filipino
2.) Residing outside the Philippines at
the time of parent's naturalization -
Filipino only during his minority
unless he resides permanently in
the Philippines when still a minor, in
CONFLICTS OF LAW
Civil Law
which case he will continue to be a
Filipino dti7en even after becoming
of age (Commonwealth Act No.
473, Section 15). ·
b. Minor born after naturalization
i. Born in the Philippines - Filipino
ii. Born outside the Philippines - shall be
considered a Filipino citizen, unless
within one year after reaching the age of
majority, he fails to register himself as a
Filipino citizen in the Philippine
consulate of the country where he
resides and to take the necessary oath
of allegiance (Commonwealth Act No.
473, Section 15).
In case of children already of age at the time of
parent's naturalization - not a Filipino unless
they themselves - be naturalized (PARAS,
Conflict, supra at 128-129).
The 1987 Constitution provides that citizens of
their citizenship unless by their act or omission
. they .are" deemed, under the law, to have
rer'iounced it
If she became::a widow before the effectivity of
Commonwealth Act 63, which is on October 21,
-1963, she. 'immediately reacquires Philippine
citizenship (falar9¢ v. Uy, G.R. No. L-5397,
September 26, 1952).
1{ she became a widow on or after October 21,
1963: sh_E:f has tel repatriate herself, otherwise
she rElmains a
foreigner (Villahermosa v.
Commissioner.of Immigration, G.R. No. L-1663,
March31, 1948).
PROBLEMS IN APPLYING THE
NATIONALITY PRINCIPLE IN DUAL bR
MULTIPLE CITIZENSHIP
It arises from the concurrent application of jus· soli
and jus sanguinis at birth or from a refusal of certain
States to accept a full application of the doctrine of
expatriation, from marriage, or from a formal and
voluntary act.
1. In matters of status, a person is usually
considered by _the forum as exclusively its own
national. His additional forei~n nationality is
disregarded.
2. In case litigation arises in a third country, the law
most consistently applied is. that of the country
of which the person is not only a national but
where he also has his domicile or habitual
residence, or in the absence thereof, his
residence (Hague Convention on Conflict of
Nationality Laws, Art. 5).
 f❖&#i4MD \ 1
MEM✓Q~Y AID
San Seda University College of law ·· RGCT Bar Operations Center
DUAL CITIZENSHIP DISTINGUISHED
FROM DUAL ALLEGIANCE
Dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent
application of the different laws of two or more
states, a person is simultaneously considered a
national by the said states. Dual allegiance refers to
the situation in which a person simultaneously owes,
by some positive act, loyalty to two or more states.
While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999).
GENERAL PRINCIPLES IN DEALING
WITH CONFLICT OF NATIONALITY
LAWS
1. It is for each State to determine who are its
nationals under its own law, which shall be
recognized by other States;
2. Any question as to the possession of nationality
shall be determined in accordance with the law
of that State;
3. A person having two or more nationalities may
be regarded as a national by each of the States
whose nationality he possesses;
4. A State may not afford diplomatic protection to
one of its nationals against a State whose
nationality such person also possesses;
5. Theory of Effective Nationality - A third state
shall recognize exclusively in its territory either
the nationality of the country of which one is
habitually and principally a·· resident; or the
nationality of the country with which in the
circumstances one appears to be in fad most
closely connected; and
6. A person possessing two nationalities acquired
without any voluntary act on his · part may
renounce one of them without the authorization
of the State whose nationality he desires to
surrender (Hague Convention on Certain
Questions Relating to the Conflict of Nationality
Laws).
CAUSES OF MULTIPLE CITIZENSHIP
(FALV)
1. A naturalized citizen's' !:_ailure to effectively
renounce his former nationality;
2. ~pplicat\on of Jus Safi and Jus Sanguinis
principles;
3. The !:egislative act of States; or
4. The Y.oluntary act of the individual concerned
(COQU/A, Conflict, supra at 195-196).
f- • .
TWO SENSES OF STATELESSNESS
1. De Jure Statelessness
- A person has been stripped of his nationality
by his former government without having an
opportunity to acquire another;
2. De Facto Statelessness
- A person possessed of a nationality but whose
country does not give him protection outside its
own territory (refugees) (Id. at 200-201 ).
CAUSES OF STATELESSNESS (DRVB)
1 Qeprivation of citizenship for any cause, e.g.,
commission of a crime;
2. ~enunciation of nationality by express or implied
acts;
3. Yoluntary release from original state; and
4. If !!om in a country recognizing only the principle
of jus sanguinis of parents whose law
recognizes only the principle of jus soli (PARAS,
Conflict, supra at 110).
NOTE: The Convention on the Reduction of
Statelessness, adopted in 1961, mandates that
the jus sr;1nguinis country grant its natiohality to
a p~r,~on born within its territory if he would
otherwise ·l;)e stateless, and the Jus so/i country
to extend.: its nationality to a person who would
otherwise be considered stateless when one of
his parents is a citizen of the contracting state.
State.less p~rsP,ris are generally subject to the
law1oftheir;domicile or habitual residence, and
in default thereof, to the law of their temporary
residence (Hague Conference of 1928 on
· • <'/Qtwnational Private Law).
CITIZENSHIP
RETENTION
AND RE-ACQUISITION
ACT OF 2003
(R.A. NO. 9225)
R.A. 9225 was enacted to allow the re-acquisition
and retention of Philippine citizenship by:
1. Natural-born citizens who were deemed to have
lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country;
and
2. Natural-born citizens of the Philippines who,
after the effectivity of the law, became citizens of
a foreign country.
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The I3w provides that they are deemed to have re-
acquired or retained their Philippine citizenship upon
taking the oath of allegiance (Maquiling v,
Commission on Elections, GR No. 195649, April
16, 2013),
SEC. 2 DECLARATION OF POLICY
· All Philippine citizens of another country shall be
deemed not to have lost their Philippine citizenship
under the conditions of this Act.
SEC. 3 RETENTION OF PHILIPPINE
CITIZENSHIP
Any provision of law to the contrary notwithstanding,
natural-born citizenship by reason of their
naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine
citizenship upon taking the oath of allegiance to the
Republic.
Natural-born citizens of the Philippines who'.after the
effectivity of this Act, become citizens ,Of a foreign .
country shall retain their Philippine 'citizenship-upon
taking the aforesaid oath.
Re-acquisition Distinguish~d fromRetention
Although the heading of Section 3 is "Re,ention of
Philippine Citizenship," th~ authors of the law
intentionally employed the. terms ''re-acquire" and
"retain" to describe the legal effect of takingJhe oath
of allegiance to the Republic of the Philippin~s. This
is also evident from the title of the law using both re-
acquisition and retention. The re~cqmisition will apply
to those who lost their Philippine citizenship by virtue
of Commonwealth Act 63. The second~spect is the.
retention of Philippine citizenship applying to future
instances (David v. Agbay, GR No. 199113, March
18, 2015).
SEC. 4 DERIVATIVE CITIZENSHIP
The unmarried child, whether legitimate, illegitimate,
or adopted, below eighteen (18) years of age, of
those who reacquire Philippine citizenship upon
effectivity of this Act shall be deemed citizens of the
Philippines.
SEC. 5 CIVIL AND POLITICAL RIGHTS
AND LIABILITIES
Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political rights
and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines
and the following conditions:
1. Those intending to exercise their right of
suffrage must meet the requirements under Sec.
1, Article V of the Constitution, Republic Act
9189, otherwise known as "The Overseas
)
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CONPLICTS OF LAW
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Absenlt!~ Vuling Act of 2003" and other existing
laws;
2. Those seeking elective public office in the
Philippines shall meet the qualifications for
holding such public office as required by the
Constitution and existing laws and, at the time of
the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all
foreign citizenship before any public officer
authorized to administer an oath;
In Sobejana-Condon v. COMELEC, et al. (G.R.
No. 198742, August 10, 2012), the Supreme
Court ruled that Section 5(2) of Republic Act No.
9225 compels natural-born Filipinos, who have
been naturalized as citizens of a foreign country,
but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance
under Section 3 of Republic Act 9225, and (2)
for those seeking elective public offices in the
Philippines, to additionally execute a personal
ancl, sworn renunciation of any and all foreign
ciJizeJ1ship before an authorized public officer
prior or simultaneous to the filing of their
cer,tificates of candidacy, to qualify as
c::andicJates · in. Philippine elections. The rule
applie·s io all those who. have re-acquired their
Filipino citizenship, without regard as to whether
they, are st1U «;iua'i citizens or not. It is a pre-
requlsite imposed for the exercise of the right to
run for publi¢ office:
Note bowev!9r, in Maquiling v, .COMELEC (G.R,
No,. 19564fJ,- April 16, 2013), petitioner was
repatriated under FR.A 9225 and made his oath
·' of~llegiapce and renunciation of US citizenship.
Thereaft~r. he repeatedly used his US Passport.
The Supreme Court ruled that the repeated use
o.fthe Ll9 passport is a positive declaration that
he 'is ci l)S citizen, reverting him back to the
,_ s:tatus as if no oath of renunciation was made,
Jhus rendering him disqualified to run for public
office.
3. Those appointed to any public office shall
subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly
constituted authorities prior to their assumption
of office, provided, that they renounce their oath
of allegiance to the country where they took that
oath; .
4, Those intending to practice their profession in
the Philippines shall apply with the proper
authority for a license or permit to engage in
such practice; and
5. That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
a. Are candidates for or are occupying any
public office in the country ofwhich they are
naturalized citizens; and/or
 AEM:Q~Y Al D
San Beda Unive,sity Co!lega ,:;t Ulw ~ RGCT Bar Opemtioos Center

b. Are in active service as commissioned or conduct indicative of such intention (Romualdez-

non~commissioned officers in the armed
forces of the country which they are
nc:Jturalized citizens.
R.A. No. 9225 provides for a deeper effect by
declaring it a State policy that under its terms "all
Philippine citizens of another country shall be
deemP.d not to have lost their Philippine citizenship"
under the conditions provided therein (Amado v.
Commission on Elections, GR. No. 210164, /\ugust
18, 2015).
DOMICILIARY OR TERRITORIAL
THEORY/LEX DOMICILII
The person's status, condition, rights, obligations
and capacity are determined by the law of his
domicile (SEMP/O-DIY, Conflict, supra at 51).
It assumes that the attributes which make up one's
status and personal relations are intimately
connected with the country where they have made
their home (Id. at 31 and 32).
Marcos v. Commission on Elections, G.R. No.
119976, September 18, 1995).
LEGAL CLASSIFICATION OF DOMICI.LE
1. Domicile of Origin or Birth
- the domicile assigned by law to a person at
the moment of his birth (SEMP/O-DIY, Conflict,
supra al 53);
a. Minors
i. Legitimate - that of his parents at the
same time of child's birth; if the parents
are separated, the domicile of the
custodial parent.
ii. Illegitimate - that of the mother at the
time of child's birth.
iii. Legitimated - domicile of the father at
the time of his birth controls, as the
effects of legitimation retroacts to the
time of the child's birth (FAMILY CODE,
Art. 180).
iv. Adopted Child - domicile of real parents
at the time of his birth, not the domicile
of the adopters ( SEMP/O-DIY, Conflict,
supra at 54).

I DOMICILE
I b.
v. Foundling - domicile is the country
when:: foundling was found.

Married Women
The husband and wife shall fix the family
DOMICILE
domicile. In case of disagreement, the court
It is the place wherein a person has a settled shall decide (FAMILY CODE, Art. 69)
connection for certain legal purposes, either
because his home is there or it is the place assigned 2. Constructive Domi.ci!e or Domicile by
to him by law (Id. at 51).
Operation of Law
- the domicile assigned by law to persons after
DOMICILE V. RESIDENCE V. birth on account of legal disability (i.e., minors,
CITIZENSHIP mentally disabled) ( SEMP/O-DIY, Conflict,
supra at 53);

Fixed, Place of Indicates ties a. Minors

permanent abode, of allegiance i. Legitimate -- the domicile of both
residence to whether and loyalty parents. In case of disagreement, that of
which, when permanent or the father, unless there is a judicial order
absent, one has temporary to the contrary (FAMILY CODE, Art.
the intention of 211).
returning ii. Illegitimate - domicile of the mother
(FAMILY CODE, Art. 176).
(Jd. at 51-52).
In case of absence or death of either
NOTE: For political purposes the concepts of
parent, the domicile of the present
residence and domicile are dictated by the peculiar parent shall fix the domicile. Even in
criteria of political laws. As these concepts have
case of the remarriage of the surviving
evolved in our election law, what has clearly and parent, still his domicile determines the
unequivocally emerged is the fact that residence for constructive domicile of the minor child
election purposes is used synonymously with (SEMPIO-DIY, Conflict, supra at 55).
domicile, meaning that a person must not only intend
to reside in a particular place but must also have
personal presence in such place coupled with
~ ~ 'a, ~
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iii. Adopted - domicile of choice of the DOMICILE OF ORIGIN V.

adopter is the child's constructive CONSTRUCTIVE DOMICILE
domicile.

b. Insane, Idiots, Imbecile

They cannot select their own domicile. If the
insane, idiot or imbecile is:
i. Below age of majority - rules on minors
apply.
ii.· Of age and has guardians - follow the
domicile of choice of guardians.
iii. Does not have guardians - constructive
domicile is his domicile of choice before
he became insane (Id. at 55).

c. Married Women
If the marriage is valid, constructive
domicile of the wife is domicile of both
spouses, unless the la":' allows the wife to (Id. at 53-54).
have a separate domicile for valid arid.
compelling reasons (FAMILY CODE, · Art. 3. Domicile of Choice or Voluntary
69). . Domicile
i. If there is legal. .separaUqn .. pr
..:: Place freely chosen by a person sui juris as his
separation de {qcto, · !h_e wife c~n have
her own domicile of.choice (De La Vina· ···
to
t,c,me apd_ which, whenever he is absent, he
· '1".\l$1di:: to retu(~(ld. at 53).
v. Villareal, G.R.. N,o. 13982, .July 31,
1920). . ' ..
Require men.ts,;
ii. If the marriage _is voidable, apply the
, a. ~esicteIJ,ce' 6r',bodily presence in a new
same rules as. When the marriage i~
locality;, · ·.
valid. After annuline[Jt, the wife can
b. An intention. to remain there (animus
freely select her ov,(11 domicile of choice
manendo: arid '.
(SEMP/O-DIY, ;Conflict, supra.at 56).
iii. If the marriage is vqid,J1s trier~ isrnally
c.,An intention to abandon the old domicile
{animu§ 'nooi:revertendi) (Romualdez v.
no marriage, the ; wif~ can . hav_e a
; F?.TC, Branch'?, Tacloban City, G.R. No.
domicile separate, from thti husband (1.(1.
· 104f160, Sep/ember 14, 1993).
at 50. • ·
d. Other.Persons . . . _
i. Convict or prisoner - he is notfree to ..
have a domicile of choice; his ·domfcile
is that which he had possessed prior to
his incarceration. A-sifg~ed Assigned by law. Result of the
ii. Soldiers - since they are compelled to by law. voluntary will
follow the dictates of the military, and action of
domicile is that before their enlistment. the person
iii. Public officials or employees abroad like concerned.
diplomats, consular officials, etc. - since (SEMP/O-D/Y, Conflict, supra at 54).
their stay abroad is in their official and
not in their personal capacity, their NOTE: Domicile of origin is not easily lost. To
domicile is the one before they were successfully effect a change of domicile, one must
assigned elsewhere, unless they demonstrate:
voluntarily adopt their place of 1. An actual removal or an actual change of
employment as their permanent domicile;
residence (SEMP/O-O/Y, Conflict, 2: A bona .fide intention of abandoning the former
supra at 56). · place of residence and establishing a new one;
and
 MEM✓Q~Y AID
San Seda University CoHege of Law - RGCT Bar Operations Center
3. Definite acts which correspond with the purpose
(Romualdez-Marcos v. · Commission on
Elections, G.R. No. 119976, September 18,
1995; Neo v. Yapha, Jr., G.R. No. 209285
(Notice), June 28, 2016).
In other words, there must basically be animus
manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change
of residence must be voluntary; and the residence at
the place chosen for the new domicile must be actual
(Poe-L/amanzares v. Commission on Elections,
G.R. Nos. 221697-221700, March 8, 2016).
VENUE IN ESTATE PROCEEDINGS
The actual residence or place of abode of a person,
instead of his domicile, is significant in determining
the venue of estate proceedings and ordinary civil
actions (Jao v. CA, G.R. No. 128314, May 29, 2002).
For purposes of fixing venue under the Rules qf
Court, the "residence" of a person is his personal;
actual or physical habitation, or actual residence or
place of abode, which may not necessarily be his
legal residence or domicile provided -he resides
therein with continuity and consistency (San Luis v.
San Luis, G.R. No. 133743, February 6, 2007).
SITUS OR ECLECTIC THEORY
The capacity, condition, or stall.JS of a person is
governed by the law of the pla<::e (situs) where an
important element of the problem occurs or is
situated (SEMP/O-DIY, Conflict, suprc1 ai5l).
TWO KINDS OF PARTICIPATION OF THE
INDIVIDUAL CONCERNED
1. Active
- If the person acts voluntarily, the governing law
is the law of the actual situs of the transaction or
event; and
2. Passive
- When the effects of the act are set forth or
determined by lc1w, the governing law is the law
of the legal situs, i.e., the domicile of the
individual concerned (Id. at 57).
GENERAL RULES ON DOMICILE:
1. No person shall be without domicile.
2. A person cannot have two simultaneous
domiciles.
3. Every natural person, as long as he is free and
sui juris, may change his domicile at his
pleasure. •
4. Domicile, once acquired, is retained unless a
new one is gained.
5. The presumption is in favor of the continuance
of domicile. The burden of proof is on the one
who alleges that a change of domicile has taken
place.
6. To acquire a fresh domicile, residence and
intention must concur; to retain an existing
domicile, either residence there or intention to
remain must be present; to abandon a domicile,
residence in a new place and intention to
abandon the old place must concur (Gallego v.
Verra, G.R. No. 48641, November 24, 1941).
I I
RENVOI
RENVOI
A procedure whereby a jural matter presented is
referred by the Conflict of Laws rules of the forum to
a foreign state, the Conflict of Laws rule of which in
turn refers the matter back to the law of the forum
(remission) or a third state (transmission) (COQUIA,
c;onffict, sup,:a at 102).
:·_\):~_;:;',:t\: .:;)'>': __:}!} ,1
It is somt=?tni1E[l;, called "table tennis theory, as the
law is being/eferred back and forth from the forum
o{
law to the I.aw domicile of the foreign party which
involves a Conflict of Laws rule, pointing back to the
forum layv as applicable law (AGPALO, Conflict,
supra at38).
, ...... ·';•,.,.
It is a iith~h;z.;or~ which means "refer back" or
"return". In Anglo-American countries, the term used
, .is. "rnmission", meaning to refer a matter for
r! c'tin~idi;iration or judgment (SEMP/O-DIY, Conflict,
·- supra ar'otJ).
In jurisdictions which have recognized the use of
renvoi in choice-of-law analysis, it has been
employed in cases where the domiciliary and
nationality laws are applied to the individual in issues
involving succession, domestic relations, and real
properties (COQUIA, Conflict, supra at 102).
The recognition of the renvoi theory implies that the
rules of the Conflict of Laws are to be understood as
incorporating not only the ordinary or internal law of
the foreign state or country, but its rules of the
Conflict of Laws as well. According to this theory 'the
law of a country' means the whole of its law (Aznar
v. Garcia, G.R. No. L-16749, January 31, 1963).
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20 , . . ' :' ·, CONFLICTS OF LAW

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Civil Law
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FOUR WAVS OF TREATING THE thru Philippine Law, ultimately applies Italian law
RENVOI PROBLEM (Id.).

1. Rejection (Internal Law Solution)

- If the Conflict rules of the forum refer the case
to the law of another state, it is deemed to mean
only the internal law of that state. Thus, the court
will apply the foreign law (PARAS, Conflict, Reference is Reference is That which
supra at 216).
made back to made to a third occurs when
the law of state; involves the local
forum; three laws. court, in
2. Acceptance (Single Renvoi or Single
involves two adopting the
Transmission) laws. foreign court
- If the Conflict rules of the forum refer the case
theory.
to the law of another state, it is deemed to discovers
include the totality of the foreign law (internal law
that the
and Conflict of Laws rules). Thus, the court will
foreign court
recognize the referral back and apply local law
accepts the
(Id.).
renvoi.

3. Desistment Theory (Mutual Disclaimer of (SEMPl(!-DIY, Conflict of Laws, supra at 62).

Jurisdiction Theory) . ·
- The forum court upon reference another
state's law sees that such law. is limited in
application to its own nationals domiciled in its
territory and has no provisic;>h foe application to
natbnals domiciled outside of the territory.
Hence, the local court will apply local law.
This has the same result ap the acceptance of
the renvoi doctrine but thEtprotess used by the
forum court is to desist applying the foreign law
(Id.). ..
4. Foreign Court Theory
- Forum court assumes the same position 'that
the foreign court would take if the case is
litigated in the foreign state ·(Id.).
to HOW TQ RESOLVE RENVOJ PROBLEM
JN THE-ABSENCE OF DEFINITIVE LAWS
ON THE MATTER
Th,f"theory to be adopted should be that which,
considering'the circufllstances of a given situation,
Will best result ih fairness, equity, and justice (Id. at
217). . .
WAIVER OF Ri;{tVOI
To prevE!nt complicatiors, parties may even waive
the application qf repvoiin case the same is provided
. for by aforeignfaw. Rules of private international law
will firiono ap,plicatiorJ' once a foreign law is chosen
qy the parties (PE BENITO, Conflict, supra at 96). ·

DOUBLE RENVOJ
- that which occurs when the local court, In adopting PERSONAL STATUS
the foreign court theory, discovers that the foreign . AND CAPA CITY
court accepts the renvoi (SEMPIO-DIY, Conflict,
supra at 62).

TRANSMISSION To restate, Status refers to the place of an individual

- the process of applying the law of a foreign state in society and consists of more or less permanent
through the law of a second foreign state (Id. at 62). personal qualities and relationships with which the
state and community are concerned (PARAS,
It is not the same as renvoi. Renvoi involves two (2) Conflict, supra at 222).
laws while transmission involves three (3) laws
(PARAS, Conflict, supra at 215). · RULES ON STATUS

Illustration: An Italian domiciled in the Philippines

dies in England. If the case is tried in England, the Beginning of personality
English court (following the domiciliary theory) refers of natural persons
to the law of the Philippines, but discovers that the Age of Majority National law of the Child
Philippines, in turn, refers the matter to Italy 1 - - - - - - - - - - - I (CIVIL CODE, Art. 15)
(following our nationality theory). ~ence, England, Use of Names and
Surnames
 f##S..49 \ I
MEM:Q~Y AID
San Bada University College of Law - RGCT Bar Operations Center
Use of Titles of Nobility
Absence
Presumptions of Death Lex Fori
and Survivorship
(Id. at 222)
As stated above, Capacity is a part of one's status
and is the sum total of one's rights and obligations
(Id.).
KINDS OF CAPACITY:
1. Capacity to Act
- power to do acts with legal effect; and
2. Juridical Capacity ·
- the fitness to be the subject of legal relations.
In the determination of status and capacity of
persons, our Civil Code follows the nationality
principle when dealing with Filipinos (SEMP/0-DIY,
Conflict, supra at 70).
·· .1,, JVIAR~~GE AS A CONTRACT
When dealing with aliens, it depends on which
principle their country follows, but if the alien is in the
Philippines, the nationality theory is applied by
implication (Id. at 70).
A person's capacity to contract is governed by his
personal law, whether it is the leinationalil or the lex
domicilii. The exception in ·the Philippines are
contracts involving real or personal pr9perty iii which
cases the lex situs or lex rei sitae applies (Id. at 70).
Illustration: A citizen of state X wants to apply for
Philippine naturalization. In state X, he is already
considered of major age, being 15 .years old.
Philippine naturalization laws explicitly stati3 that he
must be 18 years old in order to be naturalized. At
the age of 15, may he already file his petition to be a
Filipino citizen?
Answer: Yes, provided that at the time of the
hearing of the petition he is already 18 years old. If
at the said time he is not yet 18 years of age, the
hearing of the petition will have to be postponed,
notwithstanding the fact that in his own country, he
has already reached the age of majority (PARAS,
Conflict, supra at 226).
I FAMILY RELATIONS I'
Under the Civil Code, questions of family rights,
duties, status, conditions, and capacity are governed
by /ex nationalii (CIVIL CODE, Art: 15).
MARRIAGE
Marriage is a union of one man with one woman or
the reciprocal blessings of a domestic home life, and
for the birth, rearing, and education of children
(PARAS, Conflict, supra at 232).
Of all domestic relations, marriage is the most
important. The validity of a marriage contracted in
one State may be at issue in another State in cases
of annulment, actions for support and custody of
children, proceedings involving legitimacy of
children, tax cases, divorce suits, inheritance
problems, or criminal prosecution for bigamy
(SALONGA, Conflict, supra at 255).
a. ~.rlt)sic Validity - governed by lex loci
ceie9tationis.
REASON: The predictability and the
interstate. order arising from society's
i,nterest in marriage (PE BENITO, Conflict,
.§1,J{)/B',Eltf,6p),,
. ;~rrll~l~~~uisites of Marriage under
Phiiippine Law:
i. Authority of the solemnizing officer;
(j, :Valid marriage license except in the
. cases provided for in Chapter 2 of Title
I; and
iii. A marriage ceremony which takes place
with the appearance of the contracting
parties before the solemnizing officer
and their personal declaration that they
take each other as husband and wife in
the presence of not less than two
witnesses of legal age (FAMILY CODE,
Art. 3).
GENERAL RULES:
i. All states recognize as valid those
marriages celebrated in foreign
countries if they comply with the
formalities prescribed therein (Hague
Convention).
ii. The forms and solemnities of contracts,
wills, and other public instruments shall
be governed by the laws of the country
in which they were executed (CIVIL
CODE, Art. 17).
" ""' "' . ' - ~ -,, ,, .,.
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iii. All marriages solemnized outside the
Philippines, in accordance with the laws
in force in the country where they were
solemnized, and valid there as such,
shall also be valid in this country
(FAMILY CODE, Art, 26),
EXCEPTIONS:
The following are void marriages in the
Philippines even if valid in the foreign
country where celebrated:
i. Same-sex marriages, as contracting
parties must be male and female
(FAMILY CODE, Art, 2);
ii. When either or both parties are below
· 18 years of age even with parental
consent (FAMILY CODE, Art, 35, par,
1);
iii. Bigamous and polygamous marriages
(FAMILY CODE, Art. 35, par. 4);- _ ,, ...
iv. Mistake as to identity of a contracUng
party (FAMILY CODE, _Art._ 35, par; 5);
v. A subsequent marriage _·performe_q
without recording in the Civil Registry
the judgment of apnulment •Or
declaration of nullity, _pa"rtition anq
distribution of prcip'erties, and the
delivery of the childreri!s presumptive
legitimes (FAMJL Y CODE, Art: 53),"
vi. Marriages whi,:we · either spouse is
psychologically: incapacitated '(FAMILY
CODE, Art. 36); · - . __ -
vii. Incestuous martiag~s. (FAMfl,e'f CODE,
Art.37); and · ·
viii. Void marriages ',by reason of pubfjc
policy (FAMILY C6:JDE, Art. 38).
NOTE: These exception~ put intofssue tlie .
capacity of the parties to enter into the
marriage and relate to the' subita'ntive
requirement for marriage. Srhce _ the
personal law of the parties, e.g., the natio'rial
law of Filipinos, governs the questions of
intrinsic validity of marriages between
Filipinos abroad, the above enumerations
are exceptions to lex foci cefebrationis
precisely because they are controlled by lex
nationalii (SEMPIO-DIY, Conflict, supra at
77).
b. Intrinsic Validity- controlled by the parties'
personal laws, /e., either domiciliary or
nationality.
Intrinsic Requirements of Marriage under
Philippine Law (FAMfL Y CODE, Art. 2):
i. Legal capacity of the contracting parties
who must be male and female; and
ii. Consent freely given in the presence of
the solemnizing officer.
CONFllCTS OF LAW
Civil Law
Marriage Contracted Outside the Philippines
The Philippines follows the imperative or
compulsory rule which means that a marriage
formally valid where celebrated is valid
elsewhere (CIVIL CODE, Art. 17(1); FAMILY
CODE, Art. 26).
Marriage performed by a consular or diplomatic
agent empowered by the sending state to
officiate marriage is valid in the receiving state,
only if the latter has agreed to his acting in that
capacity (SALONGA, Conflict, supra at 263).
REASON: When the parties choose a place as
the loci celebrationis of their marriage, they are
considered to have subjected all questions of
form to the law of that place, and if valid there it
should be considered valid everywhere (Id.).
IHustration:
a: Filipino first cousins got married in
California, where the marriage is considered
valid. W\U their marriage be recognized in
the Philippines?
Answer: No\ because such marriage is
incestuous.as <:letermined by Philippine Law
· (PARA$, Conflict, supra at 236).
b. A Filipino step-brother wanted to marry his
'FHiptno !step-sister in the Philippine~. but
b~cause • in,••our country, a step-brother
· cannot'validly .marry his step-sister, the two
·. deciq~d to get married in California, where
the •marriage is valid. Will our country
tecognize the · validity of their marriage
abroad?
Answer: Yes, because it is valid in the place
'Of celebration and the marriage is neither
bigamous, polygamous, or incestuous as
determined by Philippinl law (Id. at 236;
FAMILY CODE, Art. 26).
Note: If this marriage has been performed
inside the Philippine consulate in San
Francisco by our consul or vice-consul, the
marriage will be deemed to have taken
place in the Philippines, and will therefore be
considered void (PARAS, Conflict, supra at
237).
RULES ON EXTRINSIC VALIDITY OF
CERTAIN SITUATIONS:
a. Proxy Marriages
GENERAL RULE: Where permitted by the
law of the place where the proxy participates
in the marriage ceremony, they are entitled
to recognition in countries adhering to lex
 ' ,

MEM:Q~Y AID
San Seda University College of L,;w - ROCT Bar Opemtions Center

loci celebrationis rule, at least insofar as b. Marriage between a Filipino and a

formnl vriliciity is mnc:erned (SEMPIO-D/Y, Foreigner in the Philippines
Conflict, supra at 77). - Philippine law should be followed;
otherwise, public policy would be violated
NOTE: Philippine law does not sanction (Id. at 78).
proxy marriages; but if celebrated in a
foreign state in accordance with the RULES ON MARRIAGE IF
formalities prescribed by its laws, ii" m;:iy hf'!
recognized in the Philippines under the /ex
CELEBRATED ABROAD
/nr.i r.A!Ahrntinnis rule (Id. At 77) OR IN THE PHILIPPINES

b. Common Law Marriages

If valid in the State where the parties
cohabited while holding themselves out as
man and wife, it is given recognition in sister Between Lex loci celebrationis without
States which do not permit this informal Filipinos prejudice to the exceptions
method of entering into the marital status. under Arts. 26, 35 (1 ), (4), (5),
and (6), 36, 37, and 38 of the
NOTE: Common law marriages are not FAMILY CODE (bigamous,
recognized under Philippine law (PARAS, polygamous, and incestuous
Conflict, supra at 235). marriages), and consular
marriages.
c. Marriage on Board a Vessel on High
Seas Lex loci celebrationis except if
Since the nation whose flag the ship is flying the marriage is:
_has jurisdiction over the ship, compliance 1. Highly immoral (like
with this law is required for a marriage to be bigamous and polygamous
validly contracted (Id. at 77). · marriages); or
2. Universally considered
incestuous.
d. Consular Marriages _
Marriages between Filipino citizens abroad (number 2) - to
may be solemnized by,·? consul-general, validity of the
consul, or vice-consul of the PhHippines
(FAMILY CODE, Art. 10). .

-e. Plural Marriages

If the parties or at least the husband is a National law (Art. 21, FAMILY
Muslim (whose religion allows ph.Jral CODE), provided the marriage
marriages), it is believed that we would is not highly immoral or
recognize up to four marriages of tije s,:ame universally considered
husband (as recognized by the Philippine incestuous.
Muslim Code on Personal Laws) to protect
the rights of the wives and children Mixed National law of the Filipino
(SEMPIO-D/Y, Conflict, supra at 77). (otherwise, public policy may be
militated against).
MIXED MARRIAGES:
Marriage by Lex loci celebrationis (with
a. Marriage Between a Filipino and a proxy prejudice to the foregoing
Foreigner abroad rules).
- If the marriage is valid under the law of one NOTE: A
of the spouses while void under the la"'{ of marriage by
the other, we should uphold the validity of proxy is
the marriage, unless the marriage is considered as
universally incestuous or highly immoral (Id. celebrated where
at 77). the proxy
appears.
NOTE: Same rule as to foreigners who
marry abroad, (PARAS, Conflict, supra at 233-234).

2. MARRIAGE AS A STATUS
Marriage is not a mere contract but an inviolable
social institution. Its nature, consequences, and
incidents are governed by law and not subject to
stipulation (FAMJL Y CODE, Art.1).
RULES ON NATURE, CONSEQUENCES,
AND INCIDENT OF MARRIAGE
Personal rights and National law of the
obligations between husband.
husband and wife (mutual
fidelity, cohabitation, Effect of subsequent
respect, assistance and change of nationality:
support; right of wife to 1. If both will have a
use husband's name; new common
· duty to follow husband's nationality - the new
residence) one.
2. If only one will
change -- the. last
common nationality.
3. If the·spouses re.tain
their _ •different
nationfilitit:is . 'after
. the rri 9rrlag~, it has
been suggested that
the notional low of
hoth :spow~es
s~pbld govern.
Another. . writer
s&gg~sts that the
; law of the ·husband
at the"'time· . ofthe·
marriage should be
applied.
Reason: It will not
necessarily be
unfair to the Wife,
because the
national law of the
husband may be
even more favorable
to her.
Some exceptions to the
above rule are:
1. If the national law of
the husband
violates the public
policy of the forum;
or
2. The national law of
the .wife happens to
be the law of the
forum, as it is
intended to protect
CONFLICTS OF LAW
Civil Law
the wife's rights
(SEMP/0-DJY,
Conflict, p. 80).
Property relations The Hague Convention
between husband and declares that the
wife. governing law on
matrimonial property
regime is:
1. The internal law
designated by the
spouses before the
marriage;
2. In the absence
thereof, the internal
law of the state in
which the spouses
fix their 1st habitual
residence.
NOTE: Effect of
change of nationality -
no effect. This is the
doctrine of
immutability in· the
matrimonial property
. regime.
(PARAS, Conflii;;t,· siJpr~ at 243-244_) _ _ _ _____,
REASON: Wh;:m the woman marries a foreigner,
the usu~lly loset!]ern~tionality and instead follows
that. ·9( the husband/ Moreover, the husband is
usually the h.ead of the family, so the husband's
persbnal law governs the personal relations of the
spouses (SEMP/O,DIY, Conflict, supra at 79).
In fli; Philip'pi1,1e-s, personal relations of the spouses
0
ar~ goyerned by Philippine law since we follow the
natiotjality theory. In countries that follow the
dd'rniciliary theory, the law of their domicile governs.
It is the national law of the wife or Philippine law that
would govern the spouses' personal relations by
parity of reasoning with Art. 80 of the Family Code
(Id. at 79).
The marriage of an alien woman to a Filipino
husband does not ipso facto make her a Filipino
citizen and does not excuse her from her failure to
depart from the country upcin the expiration of her
extended stay here as an alien (Djumanlan v.
Domingo, G.R. No. 99358, January 30, 1995).
PHILIPPINE RULE ON PROPERTY
RELATIONS
In the absence of a contrary stipulation in the
marriage settlements, the property relations of the
spouses shall be governed by Philippine laws,
 •-. • ,)_:p ••: ~/le; \~ ,~\_,,~ I\,, ,\, Y ':

f¾f#D ' '

MEM✓Q~Y AID
San Bede University College of Law - RGCT Bar Oparabons Center
,.. ,. .l~,'

-·~t{• _; ·:·' ;, ... , :·./:.·

• ,_ J·25-. Ji

regardless of the place of the celebration of the

marriage and their residence (SEMPIO-OIY,
Conflict, supra at 81). If obtained abroad National Law (if valid in
between foreigners the state granting it and
This rule shall NOT apply: valid according to the
1. Where both spouses are aliens, in which cases national . law of the
the general rule in Conflict of Laws will apply (Id. parties, it will be valid
at 82); here)
2. With respect to the extrinsic validity of contracts
affecting property not situc1tet.l i1, ll ,e Philippines If ul.Jlc1i11et.l abroad If valid in the state
and executed in the country where the property between a Filipino and granting it and valid
is located; and a foreigner acc9rding to the
3. With respect to the extrinsic validity of contracts national · law of the
entered into in the Philippines but affecting foreigner, it will be valid
property. situated in a foreign country whose here (See Republic v.
laws require different formalities tor their Manalo, G.R. No.
extrinsic validity (FAMIL. Y CODE, Art. 80). 221029, April 24, 2018).
(PARAS, Conflict, supra at 263).
DOCTRINE OF IMMUTABILITY OF
MATRIMONIAL PROPERTY REGIME THE HAGUE CONVENTION ON THE
Regardless of the change of nationality by either or RECOGNITION OF DIVORCE AND
both of the spouses, the original property regime
existing at the start of their marriage prevails LEGAL SEPARATION
(SEMP/0-D/Y, Conflict, supra at 82). A foreign divorce will be recognized in contracting
.·. st9 tes if, at tbe date of the filing of the proceedings:
REASONS: · ,t_:;,Th~,.petitioner or the respondent had habitual
1. Marital peace in the spouses' property relations residehce in the state where the divorce was
is more or less guaranteed; · obtained;.
2. The spouses will not be able to prejudice 2. Both spbuses were nationals of said state; or
creditors, who in turn can jeopardize the 3. Although theipetitioner was a national of another
interests of the spouses; and country, he of, she had his or her residence in
The spouses may protect themselves from each the plac$ where the divorce was obtained
other (Id. at 82). (GOJVV:l;NT!([},f'1;•0F 1 JUNE 1970 ON THE
RECOGfi./i;tfON OF DIVORCES AND LEGAL
ABSOLUTE DIVORCE (A VINCULO SEPARATIONS, Art. 2).
MA TR/MON/I)
DIVORCE IN THE
The Hague Convention provides that the granting of
divorce or separation must comply with Hie national
law of the spouses and the law of the plaoo where GENERAL RULE: We only observe relative divorce
the application for divorce is made. or legal separation (a mensa et thoro) in the
Philippines.
DIVORCE
EXCEPTIONS:
The legal dissolution of marriage bond rendered by
1. Where a marriage between a Filipino citizen and
a competent court for causes defined by law which
a foreigner is validly celebrated and a divorce is
arose· after a valid marriage (AGPALO, Conflict, p.
thereafter validly obtained abroad capacitating
324).
the alien spouse to remarry, the Filipino spouse
shall have capacity to remarry under Philippine
RULES ON DIVORCE law (FAMILY CODE, Art. 26);

Severing marital ties between parties in a ·mixed

If sought in the Lex Fori (will not be marriage and capacitating the Filipino spouse to
Philippines (whether by granted) remarry as a necessary consequence of
Filipinos or for~igners) Exception: Muslim upholding the ·validity of a divorce obtained
Divorce abroad by the alien spouse. If the foreigner
obtains a valid foreign divorce, the Filipino
If obtained abroad National Law (thus, not spouse. shall have capacity to remarry under
between Filipinos valid here even if valid Phil_ippine law. (San Luis v. San Luis, G.R. Nos.
abroad) 133743, February 6, 2007).

2. Valid divorce obtained abroad between
foreigners whose national laws allow divorce.
NOTE: The reckoning point is not the citizenship of
the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse
capacitating the latter to remarry (Republic v.
Orbecido Ill, G.R. No. 154380, October 5, 2005).
Even if the marriage is not a mixed marriage, i.e.,
both are Filipino citizens at the time of celebration of
marriage, if one of the spouses later becomes a
foreign citizen and obtains a valid foreign divorce
decree, the spouse who did not change his/her
citizenship, i.e., Filipino, will be considered
capacitated to remarry (Republic v. Orbecido Ill,
G.R. No. 154380, October 5, 2005).
LIMITED RECOGNITION OF DIVORCE
OBTAINED ABROAD
If the non-recognition of divorce wHI work injustice
and unfairness to Philippine nationa1$~the§~me m?y
be given limited recognition in bur jurisdiction (PE
BENITO, Conflict, supra at 283). ,
A divorce abroad is considered valid in the
Philippines, even if it is the Filipino spouse-who files
for divorce abroad. Based on a. clear a_nd plain
reading of the provision, Art. 26',' Par. 2 of the Family
Code only requires that there be a diyor6~ validly
obtained abroad. The letter ot' the law 'does not
demand that the alien spouse"shoLMl:le the ohe.who
initiated the proceeding wherein the divorce' decree.
was granted. It does not distii;iguish whether the
Filipino spouse is the petitioner or the respondent in
the foreign divorce proceeding. The Court i:(bound
by the words of the statute; neither can,we put vyords
in the mouths of the lawmakers (Republitv,./ylanalo,
G.R. No. 221029, April 24, 2018). . (Van Dorr, v. Romillo, G.R. No. L-68470,
Owing to the nationality principle embodied in Article
15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the
same being considered contrary to our concept of
public policy and morality. However, aliens may
obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to
'their national law (Van Dorn v. Romillo, Jr., G.R. No.
L-68470, October 8, 1985).
RECOGNITION OF FOREIGN DIVORCE
While the law requires the entry of the divorce
decree in the civil registry, the law and the
submission of the decree by themselves do not ipso
facto authorize the decree's registration. The law
should be read in relation with the requirement of a
judicial recognition of the foreign j_udgment before it
CONFLICTS OF LAW
Civlt Law
can be given res judicata effect (Corpuz v. Sto.
Tomas, G.R. No. 18G[j71, Augu:;/ 11·, 2010).
NATURE OF RECOGNITION OF
DIVORCE PROCEEDINGS
A petition for recognition of foreign judgment is a
special proceeding, which "seeks to establish a
status, a right or a particular fact," and not a civil
action which is "for the enforcement or protection of
a right, or the prevention or redress of a wrong"
(Fujiki v. Marinay, G.R. No. 196049, June 26, 2013).
The recognition of the foreign divorce decree may be
made in a Rule 108 proceeding itself, as the object
of special proceedings (such as that in Rule 108 of
the Rules of Court) is precisely to establish · the
status or fight of a party or a particular fact (Fujiki v.
Marinay, G.R. No. 196049, June 26, 2013).
COR1'ECTION OF ENTRY
,Article 412 of the Civil Code declares that "no entry
[n a _civil register shall be changed or corrected,
withoLJt . , judicipl order." The Rules of
Court supplemehfo Article 412 by specifically
providing for a special remedial proceeding by which
entries ill the ci"'.il registry may be judicially cancelled
or corrected. rhis rulin1;1 should not be construed as
requiring two'. sep_,;u\:1te proceedings for the
registration of a foreig~ divorce decree in the civil
registry ;_ one for recpgnition of the foreign decree
and anothE?r.sp~cifically for cancellation of the entry
under Rule ·108 ofttJeRules of Court (Corpuz v. Sto.
Tomas, G}?. No. 186511, August 11, 2010).
EFFECTS OF DIVORCE OBTAINED
ABROAD BY THE FOREIGNER SPOUSE
1_ •. T~e foreig1,1 national may not go against the
FiliJiino . spouse for accounting of conjugal
· 'properfy after the issuance of a divorce decree
October 8, 1985);
2. The foreign spouse can no longer claim to be the
spouse of his or her Filipino partner (PE
BENITO, Conflict, supra at 283);
3. The foreign spouse cannot maintain a criminal
case of adultery and concubinage against the
former spouse (Pilapil v. /bay-Somera, G.R. No.
80116, June 30, 1989);
4. The Filipino spouse is endowed with capacity to
remarry, and his/her subsequent spouse can file
a petition for letters of administration (San Luis
v. San Luis, G.R. No. 133743, February 6,
2007); ani:J
5. The legal effects of the divorce on custody, care
and support of the children must still be,
determined by our courts (Roehr v. Rodriguez,
G.R. No. 142820, June 20, 2003).
 MEM✓Q~Y AID
San Beoa Urwersity Co~eg,, of Law • RGCT Bar Operations Center

RIGHT TO RE-MARRY AFTER DIVORCE
Filipinos are allowed to remarry once their foreign
spouses are capacitated to remarry by a divorce
decree (FAMILY CODE, Art. 26, par. 2). However,
the divorce mu$t be judicially recognized first by
Philippine courts and annotated in the local civil
registry before the Philippine national can remarry
(PE BENITO, Conflict, supra at 292).
NOTE: Whether the ,ilipino spouse ir1ilialeu the
foreign divorce proceeding or not, a favorable
decree dissolving the marriage bond and
capacitating his or her alien spouse to remarry will
have the same result: the Filipino spouse will
effectively be without a husband or wife. A Filipino
who initiated a foreign divorce proceeding is in the
same place and in like circumstance as a Filipino
who is at the receiving end of an alien-initiated
proceeding. Therefore, the subject provision (Article
26, par. 2 of the Family Code) should not make a
distinction (Republic v. Manalo, G.R. No. 221029,
April 24, 2018).
LEGAL SEPARATION OR RELATIVE
DIVORCE (A MENSA ET THORO) .
CONFLICT RULES ON LEGAL SEPARATION:
>;} ~~01..J~JiA,TION OF NULLITY
• - remecty•"ff'tne marriage is void ab initio; grounds
1. Parties of the Same Nationality; • -· ·•
- grounds for legal separation are tt,o~e given
by their personal law (SEMPJO-O/Y; Col)flict, .
supra at 90). · ·
2. Parties are of Different tirationalitles
- grounds available under the person~! law of
both spouses are all available. grounds for
granting legal separation (Hague Convention on
Legal Separation, Art. 8).
SOME GROUNDS FOR LEGAL SEPARATION
2. In the Philippines, foreigners may ask for legal
separation here, even if they did not get married
in this country. What is important is that the court
has jurisdiction over both parties;
3. Most countries assume jurisdiction over cases
for legal separation on the basis of the domicile
of one of the parties or the matrimonial domicile
(SEMPIO-DIY, Conflict, supra at 91).
NOTE: It is not necessary that the cause for legal
separation takes place in this country for our courts
to have jurisdiction over the case .. What is important
is that the court has jurisdiction over the parties and
that the procedural requirements of the Rules of
Court are complied with (Id. at 91).
ANNULMENT AND DECLARATION OF
NULLITY
ANNULMENT
- remedy if the marriage is voidable; grounds are
those provided for by the law alleged to have been
... violated (Id. at 83).
are the exc~p~ions to the Lex Loci Celebrationis in
Family Coqej\rt. 26.
NOTE: T,he ~boJf;) rules do not apply to consular
marri~91ts to which\either the national law or the law
of the0 a~:' 1
·parties, as the case may be,
applies (r,
~.Y.~ISDICTION TO ANNUL
;\ff,is:%$t~dn the court of the nationality or domicile
of the parties, not the place of celebration of
marriage or the ·1ocus celebrationis (AGPALO
Conflict, supra at 333). '

REASON: It is the State of the domicile that has the

Grounds for legal National law of the parties
greatest interest in the domestic relations of the
separation: 1. If of the same or common
parties (SALONGA, Conflict, supra at 278).
1. Adultery nationality - national law
2. Concubinage governs
NOTE: Under Rule 14, Section 17 of the Rules of
3. Attempt by one 2. If of different nationalities
Court, when the defendant is not a resident of the
spouse against - the grounds given by
Philippines and the action affects the personal status
the life of the both national laws should
of t_he _pla_intiff, summons may be served by
other all be considered proper
publication m a newspaper of general circulation.
grounds (Hague
Convention on Legal
Separation, Art. 8). GOVERNING LAW
Lex loci celebrationis determines the consequences
of any defect to form (SEMPIO-O/Y, Cunflic;t, ::.;uµra
WHERE LEG.AL SEPARATION SHOULD at 85).
BE FILED:
1. In the case of aliens, jurisdiction is not assumed Generally, the same applies with reference to
by the forum unless the national law of the substantive or intrinsic validity. But with regard to
parties is willing to recognize its jurisdiction;

capacity uf lire µcir lies lo marry, their national law is
determinative.
PHILIPPINE RULE
Since we follow the nationality theory, our courts
have jurisdiction over annulment and nullity suits in
marriage in cases of Filipino litigants. Philippine
domiciliaries can also file such suits in the
Philippines (Id. at 86).
STATUS OF CHILDREN
1. LEGITIMACY AND ILLEGITIMACY
Determination of Legitimacy of a Child
Governed by the common personal law of the
parents, either domiciliary or nationality. In most
countries, the personal law of the father is
applied to determine the legitimate relationship
- (COQUIA, Conflict, supra at 289).
Philippine Rule for Status and P('!rsonal Law
Governing Rights and Duties between Child
and Parents ··
a. Legitimacy governed by parents' national
law (SEMPIO-DIY, Conflict,.sUpta at 94). .
b. Legitimacy governed,by the pational law of
the father, if parents have different
nationalities (Id. at 94). ,
c. Personal law of the illegitimate child is the
mother's personal Jaw, ur;iless the child is
recognized by the father, mwhich case the
personal law of the fat_he,r applies (Id. _at 96).
NOTE: However, in thti case' of Tecson v.
COMELEC, Ronald Allan Kelly Poe. and Forni(zr,
G.R. No. 161434, March 3; 2004, tne Supreme
Court held that providing neither condition·s nor
distinctions the 1935 Cbnstitutibn (the
fundament~I law prevailing on the .day, month
and year of birth of respondent FPJ), states that
among the citizens of the Philippines are those
whose fathers are citizens of the Philippines,
regardless of whether the children are legitimate
or illegitimate.
Doctrine of Immutability of Status
The status of the legitimate or illegitimate child
is not affected by a subsequent change of
nationality of the parents. If the child is later
legitimated, the personal law of the child follows
that of the father (SEMPIOcDIY, Conflict, supra
at 96).
However, the rights and duties of parent and
child would be governed by the new national law
of the parents, and thus, may be mutable (Id. at
96).
CONFLICTS OF LAW
Civil Law
Parental Authority over the Child
Derived from the Roman law concept of patria
potestas, a principle wherein the personal law of
the father controls the rights and duties of
parents and children (COQUIA, Conflict, supra
at291}. ·
NOTE: Reference to the personal law of the
father may result in joint exercise of parental
authority over the property of the child by the
father and the mother (i.e., Art. 221, Family
Code). Father's personal law could also grant
parental authority to the mother of the
illegitimate children (i.e., Art. 176, Family Code}.
2. LEGITIMATION
It is a process whereby children who in fact were
not born in a lawful wedlock, and should be
ordinarily considered illegitimate children, are by
fiction of law and upon compliance with certain
legal requirements regarded- by law as
"legitimate", it being supposed that they were
bbrn.aftertheir parents had already been validly
married (SEMP/O-DIY, Conflict, supra at 97).
' .. ;,
The req4isites _. of legitimation are those
prm{cribed by the\ national law of the parents. If
the parents have different national laws, the
national law of the father is determinative (Id. at
97). . ..
If the personal law of the parents or of the father
changes, the legitimation of the child is not
affected as' legitifr1ation creates a permanent,
immutable status: of the child (SALONGA,
Conflict, $1.lpra ar326).
NOTE: Once legitimacy is created under the law
of the parent, either by birth of the child or
· Jegitimi:iti9n; it is already a permanent status. But
the natu're and extent of the rights and duties
.flowfng as incidents from the status of legitimacy
may be modified by a change of the personal law
deemed to be decisive for the child's status. In
short, the child's legitimacy is immutable; but the
incidents of his status are mutable (Id. at 326).
3. ADOPTION
A juridical act, a proceeding in rem, which
creates between two persons a relationship
similar to that . which results from legitimate
paternity and filiation (AGPALO, Conflict, supra
at 277).
The creation of a parent-child relationship by
judicial order between two parties who usually
are unrelated (BLACK'S LAW DICTIONARY, 8th
ed., 2004).
 MEM:Q~Y AID
Son Seda University College of Law - RGCT Bar Operations Center
The determinative law as to whether the
relationship of adoption has been created or not
is ;:is fnllnws·
a. The child's personal law, to protect his wRll-
being;
b. If the child does not reside in the country of
his citizenship, the personal law of the
adopter will govern, or the personal law of
the adopter and that of the child will be
applied concurrently (SEMP/O-DIY,
Conflict, supra at 100).
GENERAL RULE: The legal effect of the
adoption is determined by the same law that
created the relationship of adoption (Id. at 100).
EXCEPTION: Where public policy or the
interests of its inhabitants forbid its enforcement
and demand the substitution of the lex tori
(AGPALO, Conflict, supra at 279).
Legal Effects that Flow from Adoption:
a. 'The successional rights of the adopted child;
b. The parental authority of the adopter over
the adopted child; and
c. The entitlement of the adopted child to all
the rights and obligations provided byJaw to
· legitimate children (R.A. No. 8552, Sections
16-18).
Under the Domestic Adoption Act of 1998 (R.A.
No. 8552), an Alien (Who is Not a Former Filipino
Citizen) May Adopt, Provided that he is:
a. Of legal age;
b. !n possession of full civil capacity and legal
rights;
c. Of good moral character;
d. Not convicted of any crime involving moral
turpitude;
e. Emotionally and psychologically capab,le of
caring for children;
f. At least sixteBn (16) years older than the
adoptee;
g. In a position to support and care for his children;
h. His country has diplomatic relations with the
Philippines;
i. A resident in the Philippines for at least three
continuous years prior to the tiling of the
application for adoption and he maintains such
residence until the adoption decree is entered;
J. Issued a certificate of legal capacity to adopt in
his, country by his diplomatic or consular office;
and · Adoption does not confer on the adopted child the
k. His qovernment allows the r1rloptee to enter his
country ns
his adopted son/daughter (H.A. 8552,
Sec. 7).
The Requirement on Residency and Certificate
of Qualification to Adppt may be Waived for the
following:
;:i A fnrmer Filirino citizen who seeks to adopt a
relative within the fourth (4 th ) degree of
consanguinity/affinity;
b. One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
c. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the fourth (41h) degree of
consanguinity or affinity of the Filipino spouse
(R.A. 8552, Sec. 7).
..NOTE: R.A. 8552 still requires that the husband and
wife must jointly adopt. Where the spouses are
legally separated, the husband or the wife can adopt
alone and the consent of the other spouse is no
longer necessary (SEMPIO-O/Y. Conflict, supra at
102).
The requirement of sixteen (16) years difference
between the adopter and the adoptee may be
waived if the adopter is:
The t;Jiological parent of the adoptee; or
· ffhe spouse of the adoptee·s parent (R.A. 8552,
'sec:1;sT
NOTE: Justice\Sempio-Diy is of the opinion that
under Sec. 48, 'Rule 39 of the Rules of Court, the
Philippines can · recognize a foreign decree of
adoption,<provided:
The'fQr~i!Jf;ltC,94\1,had jurisdiction to render said
decte~1:~J1'.Q;'; ·..
There was no want of notice, collusion, extrinsic
fraud, or clear mistake of law or fact leading to
. '. the foreign decree of adoption (SEMPIO-DIY,
,/Oooflict; supra at 104).
Inter-Country Adoption
A socio-legal process of adopting a Filipino child by
a foreigner or a Filipino citizen permanently residing
abroad where tt1e petition is filed, the supervised trial
custody is undertaken, and the decree of adoption is
issued outside the Philippine&. This is an alternative
means of child-care if the child cannot be cared 'for
in any suitable manner in the Philippines (R.A. No.
8043, Sec. 3).
NOTE: Adoption is not one of the ways prescribed
by law for the ncquisition of Filipino citizenship.
citizenship of the adopter. Adoption is political, and
not civil, in nature, and the ways in which it should
be conferred lay outside the ambit ot the C1v1I Code
(In re Malkinson v. Agrava, G.R. No. L-36309,
November 26, 1973).
 CONFLICTS OF LAW
Civil Law

Law Governing the Adoption Proceeding

An alien qualified to adopt under the Child and Youth
Welfare Code, which was in force at the time of the
filing of the petition, acquired a vested right which
Funerals -
could not be affected by the subsequent enactment thereof
of a new law disqualifying him. Consequently, the
enactment of the Family Code, effective August 3, (SEMP/O-O/Y, Conflict, supra at 303)
1988, will not impair the right of respondents who are
aliens to adopt a Filipino child because the right has

I I
become vested at the time of filing of the petition for
adoption and shall be governed by the law then in
force (Republic v. Miller, G.R. No. 125932, April 21,
PROPERTY
1999).

Recording of Foreign Adoptions Not Inimical to

Private International Law
Private International Law offers no obstacle to
recognition of foreign adoption, the principle being
that the status of adoption, created by the law of a
State having jurisdiction to create it, will be givent~~
same effect in another state as is given by tbe fatter ,
state to the status of adoption when crealed;l:)y its ·
own law. The status of adoption, onc,ea;eated.under
the proper foreign law, will be re90griizedJn this
country except where public policy or Jhe inter.ests of
its inhabitants forbid its enfor;Cemen( and demand
the substitution of the lex tori. Implicit in Art 15 of the
Civil Code is that the exercisi of incidents to foreign
adoption remains subject to thE;:local law (Marcaida
v. Aglubat, G.R. No. L-24006, NOV'fmber 2p, 1967).
(Please see Remedial Law·. Memory Ai9 ·Jor the
Procedure for Adoption arid ,Per~pns /.1od family
Relations under this Book oritM Dbmestican.dlnter-
Country Adoption Laws.)
ELEMENTS OF CONFLICT OF LAWS ON
PROPERTY OWNERSHIP:
1. There is a dispute over the title or ownership of
a property, such that the capacity to take and
transfer the formalities of conveyance, the
•. essepti~I validity and effect of the transfer, or the
interpretation and effect of conveyance, are to
be determined; and
2. kforeign law .on ownership and conveyance is
asserted 'to Conflict with a domestic law on the
same "rn~tter~. (PE BENITO, Conflict, supra at
250). . .
Lex situs or lex rei .sitae - real property as well as
persona/ property is subject to the law of the country
where. it'is
. situated fCl\l{L CODE, Art. 16).
; ,
'RUlES'ON PROPERTY

RULES ON GUA~OJANSHlP
Rea1 Propfrty Lex Rei Sitae (CIVIL CODE,
Art. 16, par. 1).
:·,·,. -; ,,, _( ; EXCEPTION'S:
1 . Over the person 1. Court of th"edomicile 1.• Contracts not
a. Appointing court of the ward · ,, · dealing with title
b. Powers of 2. Coextensive with over real
gu.ardianship those of the property - Lex
appointing court Loci Voluntatis
(law of the or Lex Loci
appointing state) lntentionis.
2. Real property is
2. Over the property 1. Court where the
given as
a. Appointing court property is found
security
b. Powers of (Jex rei sitae)
mortgage
guardianship 2. Co-extensive with
governed by lex
those of the
rei sitae,
appointing court
principal
(law of the
contract
appointing state)
governed by
C. Over the person and Same as above proper law of
over the property the contract.
(general guardian)
 fii4MG \ I

MEt4Q~Y AID
San BEKta University College ot Law~ RGCT Bar Operatt0ns Center

Tangible Lex Rei Sitae Intangible 1. Voluntary transfer or

Personal Personal assignment of choses in
Property (Choses EXCEPTION: Artificial or Property (Choses actio•n - Personal law of
in Possession) Constructive Situs is given in Action) the parties, law of the
Same Exceptions to those which do not have a place of execution of
under Real fixed situs (usually in . assignment, law of place
Property but motion). where debt is
security is pledge, recoverable.
not mortgage. 2. Involuntary transfer of
choses in action, e.g.,
Means of Sea Going Vessels - Law of garnishment - law of the
transportation the flag. state where debtor may
be served summons.
In states consisting of 3. Debt for Taxation
several countries, e.g., Purposes - domicile of
United Kingdom, Law of the creditor, where the
place of registry, or Law of collectible credit may be
the depot. taxed.
4. Administration of debts -
Thing in Transitu Loss, destruction, where the assets of the
Loss, destruction, deterioration - Law of the debtor are usually
deterioration, destination ( CIVIL CODE, situated.
validity/effect of Art. 1753). / ;, ,..,, -.,, . . ,..
seizure, Capacity to 1. Lex situs
disposition/ Seizure and arrest -:- Where transfer or EXCEPTION: Voluntary
alienation. the owner's creditor seizes acquire property transfer of interests in
the goods in transit, the chattels (other than
result is that the transport is assignment for the benefit
discontinued and a of creditors) - validity and
temporary resting. plc:1ce is , , . effect of conveyance
thereby created. Th~ law of : between the parties
this place will depend on determined by the focal
whether the seizure was law of the State which has
lawful or whether h.e has the most significant
acquired a lien, pledge, relationship to the parties
privilege, or a similar right or with respect to the
what pertains to that right. particular issue;
2. Goodwill
Disposition of goods - Governed by the law of
questions arising from the principal place of
transactions involving business
movables in transit may be
resolved by law of any place Negotiability or The law governing the rights
having substantial non-negotiability embodied in the instrument
connection with the of an instrument
transaction which will uphold
its validity. The owner is thus Validity of In general, situs of the
permitted to choose between transfer, delivery instrument at the time of
several legal systems: or negotiation of transfer, delivery or
1. Law of the temporary the instrument negotiation
resting place (e.g., interim
port); Effect on a Law of the place of
2. Lex loci actus; corporation of incorporation
3. Law of the place of the sale of
destination; or corporate shares
4. Law of the last real situs of
goods.
 CONFLICTS OF LAW
Civil Law

?& 8 "'£!""".f~;t-f.l,"{:!:y - ... ,,_< z,,,»:.' i1:~W,.t~s·rr-t;•-: 1:ff'i..,tf"tt~,/ :~? ✓-' ;;,~~:J - the court may look into the law of another
irf½',J:ble:ttljti/!,7£;') ~,. l '16~ejiiric,Mf::'
~--

~'1 ,,., ,,, ·1f'i ,ftii,J"'~·,,' ......; , .OIN

fr ,
- , "" ,J;'; _,, state which has a real intP.rnst in applying its
A . ~\ ~I I_,,
'>_-,•~,. ~►.x·~~~-1 ,,J ~ -J:"~.$'',#,-C .. -~:-
. ~~-'-',,;'~-'f"'?-~'t-.::,
.;,,;;,<
~.,.z.-,..·.:-,.,,.,J',,J:J!nM-:f:,-,;,,~":'!'1',%"ff.'f',:,;.-...... t:...
."'t.-t,.... ~w~ ,~.--,..,..:..,,, ~,,...°' .:t--v--~~,,,-~,t--:.~"-.;.:v.
~',,§,~i'!;;'.n:.£;!,l:.1_:::,, 'f:y-,.;~'i:,-w-"J..~,,,s:'[.;;
~*,~~...;:- •--.,,,.~,, law;
Effect between .Lex loci voluntatis or lex loci
the parties of the intentionis (proper law of the f. The validity of the contract to transfer an
sale of corporate contract) - for this is really a immovable;
shares contract; usually this is the
place where the certificate is g. Negotiable Instruments
delivered. i. Negotiability - law governing the rights
in the instrument
Taxation on the Law of the place of ii. Validity of the transfer, delivery, or
dividends of incorporation negotiation - law of the situs of the"
corporate shares instrument at the time of transfer,
delivery, or negotiation;
Taxation on the Law of the place where the
income from the sale was consummated h. Corporate shares;
sale of corporate i. As against the corporation and third
shares persons - law of the place of
incorporation.
Franchises Law of the place that granted ii. As· between the assignor and
them assignees law most closely
- . connected to the transaction.
Goodwill of the Law of the place where.· the iii. Taxation on dividends received by
business & business is carried on corporate shares is governed by the
taxation thereto : law . of the place of incorporation
($EMP/,0°0/Y, Conflict, supra at 119).
Patents, In the absence of a treaty,
iv. ~a.I~ of corporate shares between
copyrights, they are protected only by
parties·_ proper law of the contract, i.e.,
trademarks, trade the State that granted them
the · lex loci voluntatis or lex loci
names .•
intentionis,:,which in many cases, is the
(PARAS, Conf/1ct, supra at318~322).
' place where the certificate is delivered
to the buyer.
RULES ON ,• i _,•:

PROPERTY L . Franchfses ~ subject to the law of the state

that granted them; and
1. Interpretation and Effect of Conveyance
- Lex situs. j. Intellectual Properties
GENER~L RULE: Patents, copyrights,
2. Extrinsic and Intrinsic , Validiiy of . trade'marks, trade names, and service
Conveyances . , marks are protected only by the state that
GENERAL RULE: Lex Situs · granted/recognized them.

EXCEPTIONS: EXCEPTION: When a treaty provides

a. Art. 16, par. 2 of the Civil Code; otherwise.

b. Subject matter of contract is land, but issue Trade name, meaning, a corporate name, shall be
pertains to contractual rights and liabilities of protected in all the countries of the Union without the
the parties; obligation of filing of registration whether or not it
forms part of the trade name (Union Convention for
c. Security is immovable property but issue is the Protection of Industrial Property, Art. 8),
the validity and effect of the obligation which
the property secures; The ownership of a trademark is acquired by its
registration and its actual use by the manufacturer or
d. Under a policy-centered approach, when the distrioutor of the goods made available to the
situs of the movable at the time of the purchasing public (UFC Philippines v. Barrio Fiesta
transfer was insignificant or accidental; Manufacturing Corp., GR. No. 198889, January 20,
2016).
e. When the issue involves consideration other
than the validity and effect of the transfer Under Sec. 160 of RA 8293 (Intellectual Property
Code, hereinafter I.PC), a foreign corporation, even
 ·-
M'EM:Q~Y Al D
San Seda University College of law • RGCT Bar Operations Center
if it is not engaged in business in the Philtppines,
may bring a civil or administrative action for
opposition, cancellation, infringement or unfair
competition. Sec. 156 of the same Act also provides
that only owners of registered marks may recover
damages from any person who infringes their rights
(SEMP/0-DIY, Conflict, supra at 121).
PARIS CONVENTION FOR THE
PROTECTION OF INDUSTRIAL
PROPERTY (PHILIPPINES IS A MEMBER
COUNTRY)
Nationals of member countries shall be entitled to:
1. Rights provided by the Paris Convention in the
Philippines which are consistent with Philippine
Laws; and
2. Enjoy the privileges that Philippine laws grant or
may grant to its nationals (AGPALO, Conflict,
supra at 366).
SOURCE OF RIGHTS OF
NATIONALS
1. Reciprocity
- The law of the alien's country extends
reciprocal rights to Filipino citizens; and
2. Convention, treaty, or agreement where
the Philippines is also a party .. ··
NOTE: Trademark protection has its source in, and
is subject to the limitations of Pl"lilippine law, not the
law of the foreign national's own country (Id. at 398).
SOURCES OF RIGHT AND LEGAL
REMEDIES FOR TRADEMARKS.
1. Prior use in commerce of the mark or trade
name in the Philippines from whjch grows
property rights thereto (INTELLECTUAL
PROPERTY CODE, Sec. 123.2); and
2. The trademark's registration with the Intellectual
Property Office (INTELLECTUAL PROPERTY
CODE, Sec. 122).
RIGHTS OF FOREIGN NATIONALS
PERTAINING TO TRADEMARKS
1. Sue in trademark or service mark
enforcement action (INTELLECTUAL
PROPERTY CODE, Sec. 160);
2. Register their marks or trade names
under the same terms and conditions as
those applicable to local applicants or to
base their applications on their home
registrations, or to claim priority rights in
connection with pending foreign
applications;
Grounds for Refusal of Registration
a. Mark constitutes a reproduction of a well-
known mark.
b. Mark is an armorial bearing, flag, etc.
c. Mark infringes rights of others, is devoid of
distinctiveness, or is contrary to public
morals.
Territoriality or Independence of
Registration
The Paris Convention provides that a "mark duly
registered in a country of the Union shall be
regarded as independent of mqrks registered in
the other countries of the Union, including the
country of origin" (Paris Convention for the
Protection of Industrial Property, Art. 6).
3. File an action for infringement or unfair
competition;
4. Oppose or cancel the registration of an
FOREIGN identical mark or·substantially similar to
their own marks or trade names;
. NOTE: For the enjoyment of these rights, it is
· n~ces~;;tfy that foreign nationals submit proof
that their. country grants substantially similar
rights and privileges to citizens of the Philippines
and their marks should have been previously
registered in}he Intellectual Property Office or
are well-khown marks or trade names. ·
5. Pri>,tectf<>ll'fp:: the Philippines against
unfair c6fupetition;
6. RJght of Priority, subject to certain
.. . 'cQ)J(iitions;
Right of Priority
Right accorded to an applicant who has
previously filed an application in any of the
member countries. His application filed in the
Philippines is considered as if it were filed on the
date the first application was filed in the country
of origin (AGPALO, Conflict, supra at 391).
7. Assign trademark and protect trade
names;
NOTE: The Paris Convention requires the
protection of trade names even without
registration. Sec. 165 of IPC incorporated this
requirement by protecting trade names even
prior to registration. ·

8. Right to protect collective marks; and
Collective Marks
Any visible sign designated as such in the
application for registration and capable of
distinguishing the origin or any other common
characteristics, including the quality of goods or
services of different enterprises which use the
sign under the control of the registered owner of
the collective mark (INTELLECTUAL
PROPERTY CODE, Sec. 121.2).
9. Right to protect service marks
Service marks
Any visible sign capable of distinguishing the
services of an enterprise (INTELLECTUAL
PROPERTY CODE, Sec. 121.1).
LEGAL REMEDIES OF FOREIGN
NATIONALS
1. Action for damages and injunction based on
infringement, unfair competition or false
designation, and false description;
2. Petition to oppose and cancel registration; and
3. Petition for seizure of prohibited goods
(INTELLECTUAL PROPERTY CODE, Sec.
160).
RIGHTS PERTAINING TO PATENTS
1. Nationals of member countries enjoy in other
member countries the advantages that their
respective laws grant on .nationals;
2. The inventor shall have the right to be mentioned
as such in the patent;
3. The grant of a patent shall not be refused and a
patent shall not be invalidated on the ground that
the sale of the patent product or of the prqquct
obtained by the patented process is subject to
restrictions or limitations resulting from domestic
law;
4. The importation by the patentee into the country
where the patent has been granted of articles
manufactured in any of the countries of the union
shall not entail forfeiture of the patent;
5. Industrial designs shall be protected in all
countries of the Union (AGPALO, Conflict, supra
at 444); and
6. Entitled to file a suit for infringement of a patent.
REQUIREMENTS FOR FOREIGN
PATENTEE'S RIGHT TO FILE AN
INFRINGEMENT SUIT
1. He is a national or is domiciled or has a real and
effective industrial establishment in any of the
member countries of the Paris Convention; and
2. If he is engaged in business in the Philippines,
he must first secure a license to do business as
CONFLICTS OF LAW
Civil Law
a prerequisite to filing and maintaining the
infringement suit (/d. at 446).
RIGHTS GUARANTEED BY THE BERNE
CONVENTION FOR COPYRIGHT
HOLDERS
1. Authors shall enjoy in countries of the Union,
other than the country of origin, the rights which
their respective laws do now or hereafter grant
to their nationals, as well as rights specifically
granted by the Berne Convention;
2. The enjoyment and exercise of these rights shall
not be subject to any formality and such
enjoyment and such exercise shall be
independent of the existence. of protection in the
country of origin of the work; and
3. Where the author is not a national of the country
of origin of the work for which he is protected
under the Convention, he shall enjoy in that
country the same right as national authors
(BERNE CONVENTION, Art. 5).
I I
CONTRACTS
CONTRACT
From the viewpoint of Conflict of Laws, a discussion
of contracts only includes those which are purely civil
or commercial in nature. It excludes those which
create a status (e.g., marriage) or those transferring
real /ights (PARAS, Conflict, supra at 374 and
SEMP/O-OJY, Conflict, supra at 122).
INSTANCES OF FOREIGN ELEMENT IN
CONTRACTS:
1. An alien· individual becoming a party to the
contract;
2. Parties choosing a foreign law as their choice of
law; and
3. The places of execution and performance are
different from each other (PE BENITO, Conflict,
supra at 87).
PRIMACY OF CONTRACTUAL
STIPULATIONS
The contracting parties may establish such
stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not
contrary to law, morals, good customs, public order,
or public policy (CIVIL CODE, Art. 1306).
Counter-balancing the principle of autonomy of
contractir:ig parties is the equally general rule that
provisions of applicable law, especially provisions
relating to matters affected with public policy, are
deemed written into the contract. The governing
 1
MEM:Q~Y Al D
San Beda University CoHege of Law · RGCT Bar Operations Center
principle is that parties may not contract away
applicable provisions of law especially peremptory
provisions dealing with matters heavily impressed
with public interest. The law relating to labor and
employment is clearly such an area and parties are
not at liberty to insulate themselves and their
relationships from the impact of labor laws and
regulations by simply contracting with each other
(Pakistan International Airlines Corp. v. Opie, G.R.
No. 61594, September 28, 1990).
NOTE: Even if there is a choice of law stipulated in
the contract, the law of the place of performance will
always find applicability to ensure that local laws
thereof are not violated or public policy infringed by
the execution of the contract (PE BENITO, Conflict,
supra at 87).
Generally, in a conflict-of-laws situation, a court must
determine at· the outset the nature of the problem
presented to it for solution, specifically, if it relates to
torts, contracts, property, or some other field, or to a
matter of substance or procedure (Erie Insurance
Exchange v. Heffernan II, Misc. No. 2, June 13,
2007).
EFFECT OF INDETERMINATE
APPLICABILITY OF CHOICE OF LAW
If the parties do not specify the extent of the
applicability of their chosen law, the chosen law will
normally apply to the following concerns: · 1. Lex loc(contractus
1. Interpretation; . - Law of .the place where the contract is made
2. Rights and obligations arisir\g from the contract;
3. Performance and the consequences of non-
performance including the assessment of
damages;
4. Various ways of extinguishing obligations, and
prescription and limitation periods; ·
5. Validity and the consequences of invalidity of the
contract;
6. Burden of proof and legal presumption; and
7. Pre-contractual obligations (The Hague
Principles on Choice of Law in International
Commercial Contracts, Art. 9).
ELEMENTS TO CONSIDER: (ECI)
1. Formal or gxtrinsic Validity;
2. ~apacity to enter into contracts; and
3. !ntrinsic validity (PARAS, Conflict, supra at 374).
EXTRINSIC VALIDITY
- governed by lex loci celebrationis or lex loci
contractus (CIVIL CODE, Art. 17).
Variations:
1. A contract entered into by the parties in two
different countries by cablegram, telex or fax is
presumed to have been entered in the place
where the offer was made (CIVIL CODE, Art.
1319, par. 2); or
2. If the place of execution was merely casual or
accidental, the law which has the most
significant relationship to the transaction should
be appliP.ci.
Rule on Validation
Parties entering into a contract upon equal terms
intend their agreement to be binding under any law
whose application the parties can reasonably be
assumed to have taken into account. Philippine
courts may adopt this in interpreting Article 17 of the
Civil Code, in cases where execution cannot be
localized due to multi-state contracts (SALONGA,
Conflict, supra at 344).
INTRINSIC VALIDITY
- the policy of our law is to give effect to the intention
of the parties (CIVIL CODE, Art. 1306).
Thus, we should apply the proper law of the contract,
i.e., the lex loci voluntatis (the law expressly agreed
upon by the parties) or the lex loci intentionis (the
lawJmpliedly agreed upon by the parties) (SEMPIO-
DIY, supr~ ~t'126).
THREE POSSIBLE LAWS THAT MAY
GOVERf:,I INTRINSIC VALIDITY:
>: ,
or ~xettited:
Reasoti:. ,the. parties' mindsets are usually
focused on the law of the place of execution
., when they enter into contracts (PE BENITO,
' Don(ljct, supra at 98).
The rule that lex loci contractus, the law of the
place where the contract is made, governs in this
jurisdiction. Courts of the forum will not enforce
any foreign claim obnoxious to the forum's public
policy. Here in the Philippines, employment
agreements are more than contractual in nature.
The Constitution itself, in Article XIII, Section 3,
guarantees the special protection of workers
(Princess Talent Center Production, Inc;. v.
Masagca, G.R. No. 191310, April 11, 2018).
2. Lex loci celebrationis
-- Law of the place of performance or
celebration
REASON: Since a contract is to be performed in
a particular place ur slate, it Is proper that the
law of that state govern the relationship of the
parties (PE BENITO, Conflict, supra at 102).
 CONFLICTS OF LAW
Civil Law

3. State of the Most Signific::.=int Debtor may agree to be subject to the

Relationship Rule or the Center of
Gravity Doctrine or the Grouping-of-
Contacts Theory
- Law of the place with the most connection to
the dispute (Id.).
REASON: Convenience and practicality.
Factual contacts to consider: (CNPSB)
a. Place of fontracting;
b. Place of Negotiating;
c. Place of _Eerformance;
d. 2,itus of the subject matter of the contract;
and
e. Parties' gomicile, residence, nationality,
place of incorporation, place of business.
These contacts are evaluated depending on
their relative importance to the issue· at hand
(Restatement (Second) of Conflict of Laws,
Section 188).
CAPACITY TO ENTER INTO
CONTRACTS
· GENERAL RULE: Capacity to enter into contracts is
determined by the personal laws of the contracting
parties, either nationality or dcimicil!ary.
EXCEPTIONS: Contracts · involving alienation or
encumbrance of real or personal properties wherein
lex situs governs the capacity of the contracting
parties. ·
In the Philippines, capacity is governed by, the
nationality theory pursuant to Art. 15 of the Civil
Code (SEMPIO-DIY, Conflict, supra at 124).
jurisdiction of a specific court(s) in case ot
contractual breach (COQUIA, supra at 379).
2. Arbitration Clause
A multistate or multinational contract that
contains an arbitration clause gives rise to the
issue of whether one of the parties can compel
the other to submit to arbitration.
In the Philippines, the Civil Code and the
Arbilrotion Law (R.A 876) embody ::i clear
legislative policy in favor of settling
controversies by a method considered more
expeditious, less expensive, and with greater
chance in some cases for substantial justice.
3. Adhesion Contracts
GENERAL RULE: Adhesion contracts are not
entirely prohibited. It is valid in the absence of
proof of arbitrariness, abuse of power, or gross
negligence and if it is fairly and freely agreed
upon, reasonable, and just under the
circumstances. One who agrees to it is free to
reject it E:ntirely; if he adheres, he gives his
consent.
EXCEPTION: When there is an oppressive use
of superior bargaining power, a Philippine court
may, be justified in refusing to apply the contract
or a stipulation onth.e ground that there is no real
arm's-length transaction between the
contracting_ parties.
4; SpeciatContracts
RULES ON SPECIFIC CONTRACTS

CHOICE OF LAW ISSUES IN CONFLICTS

CONTRACT CASES
Questions on the validity of choice of law regarding
venue in litigation, arbitration and contracts with
adhesion clauses. 1. Extrinsic validity 1. Lex situs
2. Capacity of parties 2. Lex situs
1. Choice of Forum Clause 3. Intrinsic validity 3. Lex situs
GENERAL RULE: Stipulation on the venue of
suit for litigation concerning the contract will be
given effect. Litigation in forum stipulated tal<es
place only if parties specified the choice of forum
as the only venue. 1. Extrinsic validity 1. Lex loci celebrationis
2. Capacity of parties 2. National law
EXCEPTION: Choice of Forum clause will not 3. Intrinsic validity 3. Lex loci vo/untatis or
be given effect when there is fraud or the Jex loci
overreaching, and said clause would be intentionis situs
unreasonable and unjust.

Cognovit Clause or Confession-of-Judgment

 ME~Q,RY Al D
San 81::!da Unive'sity Co»age of Law - ·RGCT Bar Operations Center

3. Several laws may be selected, each of which will

2. Capacity of parties to 2. National law of the
be a principal or an parties
agent 3. Lex loci voluntatis or
3. Intrinsic validity lex loci intentionis
1. Extrinsic validity
2. Capacity of parties
3. Intrinsic validity
1. Extrinsic validity
2. Capacity of parties
3. Intrinsic validity
govern differentelements of the transaction.
4. If under the selected law, the contract is legal,
but in the place of performance, it is illegal, the
selected law should prevail and the contract .
should be considered legal.
5. If the law of the performance can be ascertained,
the substantial and essential validity should still
EXC~PTION TO 1-3: be governed by the proper low of the contract.
Lex situs if agency 6. Choice of law ::;t1oulu not be inlerµreleu Lo ou::;L
deals with conveyance the jurisdiction, which the court has already
or encumbrance of acquired over the parties and the subject matter.
property and the 7. The parties cannot contract away provisions of
property applies law especially peremptory provisions heavily
impressed with public interest.
8. Cognovit clause (confession of judgment) is
valid only if the parties were of equal bargaining
power and the debtor agreed to it voluntarily
1. Lex situs (SEMPIO-DIY, Conflict, supra at 126-127).
2. Lex situs
3. Lex situs TRANSPORTATION BY SEA
1. Philippine ports to Foreign ports
NOTE: Invalidity of the
- law of the country of destination (CIVIL CODE,
principal contract
Art. 1753).
results in invalidity of
this accessory.
2. Foreign ports to Philippine ports
a. Civildode (primary law);
b. Code of Commerce; and
1. Lex loci ce/ebrationis c. Carriage of Goods by Sea Act (AQUINO &
2. National law HERNANDO, Essentials of Transportation
3. Lex loci voluntatis or EJnd Public Utilities Law, (2016), p.39
the lex loci {hereinafter, AQUINO & HERNANDO,
intention is · .Trah$pdrt,~(/on Law]).
',' ",':.,>;.; ,,

Same Note as above. INTERNATIONAL AIR

.l"~NSPORTATION
Warsaw Convention applies to all international
1. Extrinsic validity 1. Fixed situs of the carriage of persons, baggage, or goods performed
2. Capacity of parties carrier (depot or by aircraft for hire on the liability of airline in case of
3. Intrinsic validity resting place) death, injury to passengers, or loss or damage to
4. Liability for loss, 2. Fixed situs of the cargo, but not to carriage of mail and postal
destruction, or carrier packages (WARSAW CONVENTION, Art. 1, 2, 17 &
deterioration of 3. Fixed situs of the 18).
goods in transitu carrier
4. Law of the Recognition of the application of the Warsaw
destination (Art. Convention does not preclude the operation of the
1753, Civil Code). Civil Code and other pertinent laws in the
determination of the extent of the liability of the
(PARAS, Conflict, supra at 370 - 371 ). common carrier (Philippine Airlines v. CA, G.R. No.
119706, March 14, 1996).
LIMITATION ON CHOICE OF LAW
1. Generally, the parties cannot select a law, which GENERAL RULE: The limit of liability for baggage
has no connection at all with the transaction or lost is $1,000 and for death of passenger is
the parties. $100,000. However, the parties may stipulate a
2. If the law selected should change, it is the new higher limit of liability (Alitalia v. /AC and Pablo, G.R.
law that should be applied except if the change No. 71929, December 1990). 1,
is so revolutionary that it could never have been
contemplated by the parties. EXCEPTION: The carrier is liable for damages
beyond those limited by the Warsaw convention if

there is . malice, gross negligence, bad faith, or
improper discrimination by carrier or its agents
(Lopez v. Pan Am, G.R. No. L-22415, March 30,
1966, KLM Royal Dutch Airlines v. CA, G.R. L-
31150, July 22, 1975).
Limits of liability shall not apply if it is proved that
damage resulted from an act or omission of the
carrier or its servants/agents, with intent to cause
damage or done recklessly, with knowledge that
damage would probably result, provided it is proved
that the servant/ agent was acting within the scope
of the employment (WARSAW CONVENTION, Art.
25).
It does not operate as an exclusive enumeration of
instances when a carrier shall be liable for breach of
contract or as an absolute limit of the extent of
liability nor does it regulate or exclude liability for
other breaches of contract by the carrier, misconduct
of its employees, or for some particular . or
exceptional type of damage (Lufthansa German
Airlines v. Intermediate Appellate Court;· GR. No.
71238, March 19, 1992).
PERIOD OF RESPONS.IBILHY
Includes the time the baggage or goods are in the
charge of the carrier, wherevecit may be (WARSAW
CONVENTION, Art. 18).
VENUE OF SUITS AT · OPTION OF
PLAINTIFF-PASSENGER
1. Domicile of the carrier;
2. Principal place of business of the CcJrrier;
3. Where the carrier has a place of busine:,s ·
through which the contract was made; or •
4. Place of destination (WARSAW CONVENTION,
Art. 28).
ACTION WILL PRESCRIBE IF NOT
BROUGHT WITHIN TWO (2) YEARS
FROM THE:
1. Date of arrival at the destination;
2. Date on which the aircraft ought to have arrived;
or
3. Date on which the transportation stopped
(WARSAW CONVENTION, Art. 29).
NOTE: Method of counting the period of limitation is
determined by the law of the forum or lex fori.
TRANSPORTATION BY SUCCESSIVE
CARRIERS
- a carriage to be performed by several successive
carriers is deemed to be one undivided carriage, if it
has been regarded by the parties as a single
operation, whether it had been agreed upon under
CONFLICTS OF LAW
Civil Law
the form of a single contract or of a series of
contracts, and it does not lose its international
character merely because one contract or a series
of contracts is to be performed entirely within a
territory subject to the sovereignty of the same High
Contracting Party (WARSAW CONVENTION, Art.
1).
Each of the carrier who accepts the passengers or
baggage shall be subject to the rules set out in the
convention and shall be deemed as one of the
contracting parties insofar as the contract deals with
that part of the transportation which is performed
under his supervision (WARSAW CONVENTION,
Art. 30).
The passenger or representative can take action
only against the carrier who performed the
transportation during which the accident or delay
occurred, unless by express agreement the first
:carrier has assumed the responsibility for the entire
Journey (WARSAW CONVENTION, Art. 30).
With regard t,o baggage or goods, the passenger or
consignor shall have a right of action against the first
carrier, and the passenger or consignee shall have
the right of actiqn agalnst the last carrier. Each may
take an action again$lthe carrier who performed the
transportation during. which the loss, damage or
delay took place. 'ihese carriers shall be jointly and
severally liable to the passenger, or to the consignor
or consigriee (WARSAW CONVENTION, Art. 30).
In case.s wher~ the convention does not apply, the
Second Restatement holds that the validity of the
· contract of. carriage,'as well as the rights created
thereby are determined, in the absence· of an
effectjve choice oflaw by the parties, by the local law
offhe.statefrom which the passenger departs or the
goods are,dispatched, unless with respect to the
particular issue, some other State has a more
significant relationship to the contract and to the
parties.
ENFORCEMENT OF A FOREIGN
CONTRACT CLAIM
Philippine courts may assume jurisdiction as long as
there is jurisdiction over the person of the defendant
as a personal action is involved (SALONGA,
Conflict, supra at 385).
 <~~

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WILLS AND
ADMINISTRATION ·OF or Jex loci celebrationis
ESTATE (CIVIL CODE, Art. 819)

Made by a Filipino Void because of lex

abroad nationalii (CIVIL CODE,
TWO THEORIES IN DETERMINING THE At/. 819)
PROPER LAW FOR THE Made by an alien in the Lex loci celebrationis,
TRANSMISSION OF SUCCESSIONAL Philippines therefore void even if
RIGHTS: apparently allowed by
1. Unitary or Single System Art. 817 because the
Only one law determines transmission of real prohibition on joint wills
and personal properties, e.g., in countries is a clear expression of
following lex nationalii like the Philippines, our public policy
deceased's national law governs (CIVIL CODE,
Made by an alien and a Valid as to the alien if
Art. 16); in common law countries or those that
Filipino abroad his national law or law of
follow lex domicilii, the law of deceased's
his domicile, or the lex
domicile governs.
loci celebrationis allows
it, but void as to the
2. Split or Scission System Filipino, the same being
a. Succession to real property - lex situs against our public policy
b. Succession to personal property - law of the on joint wills (SEMP/O-
domicile of deceased at the time of death DIY, Conflict, supra at
(Adopted by Great Britain and United 143)
States).

RULES ON WILLS, SUCCESSION,

AND ADMINISTRATION Including order of Lex nationalii of the
succession, amount of deceased for countries
successjQnal\ights','and that follow the
intrinsic vafidit)'' of the nationality theory
provisions of the will regardless u1 the
location and nature of
the property (CIVIL
Made by an alien Lex nationalii or lex
CODE, Art. 16 par. 2)
abroad domicilii or Philippine
law (CIVIL CODE, Art.
Lex domici!ii at the time
816), or lex loci
of death, in countries
celebration is (CIVIL
that follow the
CODE, Art. 17, par. 1)
domiciliary theory
Made by a Filipino Lex nationalii or lex loci Note: In case · of
abroad celebration is (CIVIL Conflict between lex
CODE, Art. 815) nationalii and /ex
domicilii, case can be
Made by an alien in the Lex nationalii or lex loci treated as renvoi to
Philippines ce/ebrationis (CIVIL apply Philippine law
CODE, Art. 817) even if deceased was
citizen of another
Note: Extrinsic validity is .dependent on the country (SEMP/O-DIY,
observance of law in force at the time it is made. Conflict, supra at 107)

Capacity to Succeed Lex nationalii of the

Made by an alien Valid in the Philippines deceased - not that of
abroad if valid according to lex the heir (CIVIL CODE,
nationalii, lex domici/ii Art. 1039)
 CONFLICTS OF LAW
Civil Law

Philippines or in some
other country.

If revocation takes Philippine laws.

place outside the
If not yet probated Lex tori of the Philippines, by a
abroad Philippines applies as to testator domiciled in the
procedural aspects - Philippines.
that is - the will must be
fully probated here and Revocation done 1. Law of the place
due execution must be outside the Philippines, where the will was
shown by a testator who does made; or
not have his domicile in 2. Law of the place in
If already probated Lex tori of the this country. which the testator
abroad Philippines again had his domicile at
applies as to the the time of
procedural aspects - revocation.
the will must also b'e
probated here because,
as a general rule, a
foreign judgment Where appointed Place of domicile of the
cannot ·· have deceased at time of
extraterritorial effect. death or in case of non-
But instead of proving domiciliary, where
due execution, assets are found.
generally it is enough to
Powers Co-extensive with the
ask for the enforcement
qualifying or the
here of the foreign
appointing court - that
judgment of the. probate
is - powers may be
abroad
exercised only within
Note: Wills proved and allowed in a foreign the territorial jurisdiction
country, according to the laws of each country, of the court concerned.
may be allowed, filed, and recorded by the proper
court in the Philippines (RULES OF COURT, Note: These rules also
RULE 77, Sec. 1). apply to principal
domiciliary, or ancillary
The foreigner may dispose after his death of his administrators and
property in the Philippines by testament and is not receivers even in non-
obliged to grant it in the Philippines; You can do it succession cases.
in your own country or in another, but in (PARAS, Conflict, supra at 344 - 345).
accordance with the laws of the country in which it
is granted. Article 635 of the Code of Civil OTHER RULES IN PHILIPPINE
Procedure, respecting the freedom of the testator
CONFLICTS LAW
to grant his will in any place, provides that the
testament that can be legalized in a foreign
country in accordance with the laws of that country INTERPRETATION OF WILLS
can also be legalized in the Philippines (Dalton v. 1. In accordance with the testator's intention;
Giberson, G.R. No. L-4113, June 30, 1952). 2. Verba /egis if terms are clear and unambiguous;
3. Interpretation of ambiguous words made in
accordance with the law which was most
probably in the mind of testator when he used
If revocation takes Philippine laws. those words and with which he is presumed to
place in the Philippines, be most familiar (SEMP/O-DIY, Conflict, supra
whether the testator is at 109);
domiciled in the 4. If the will admits of different interpretations, that
which will make the dispositions operative shall

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MEM:v~Y AID
San Beda University College o1 Law - AGCT Bar Operations Center
be preferred;
5. The interpretation that will give the will the most
favorable construction to accomplish its purpose
shall be made;
6. Every effort should be made to prevent intestacy
in keeping with the policy of respecting the will
of the testator, provided that this can be
ascertained; or
7. The national law of the deceased should apply
since we may reasonably presume that this was
the testator's intent (PARAS, Conflict, supra at
356).
REVOCATION OF WILLS
1. If revocation takes place in the Philippines,
whether the testator is domiciled in the
Philippines or in some other country, it is valid if
in accorc!ance with Philippine laws (PARAS,
Conflict, supra at 356).
2. If revocation takes place outside the Philippines,
by a testator domiciled in the Philippines, it is
valid when it is in accordance with the laws of
the Philippines {Id.).
3. Revocation done outside the Philippines, by" a
testator who does not have his domicile in this
country, is valid when it is done according to _the:
a. Law of the place where the will was made;
or
b. Law of the place in which the testator had
his domicile at the time of revocatiqn (Id. at
357). . (CIVIL CODE, Art.. 16 par. 2).
ADMINISTRATION OF ESTATES
Like probate, administration is procedural in nature.
Philippine law and prncedu;e follow the. main
principle of territorialism. The law of the doi:nicile
governs distribution but the law of the ·State
appointing the administrator or executor governs
administration. Administration is governed_ by the
law where administration takes place, and that fs the
law of the country from which the administrator
derives his authority (SEMP/O-DIY, Conflict, supra
at110).
. NOTE: The Administration extends only to the
assets of. the decedent found within the state or
country where it was granted. To administer the
property situated in a foreign state, the administrator
must be re-appointed, or a new one named in that
state (Id. at 110).
PRiNCIPAL DOMICILIARY
ADMINISTRATION
Administration granted in the country
deceased's last domicile.
ANCILLARY ADMINISTRATION
Administration ·in other countries where
deceased also left properties.
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Ancillary administration is proper, whenever a
person dies, leaving in a country other than that of
his last domicile, property to be administered in the
nature of assets of the deceased liable for his
individual debts or to be distributed among his
heirs (Tayag v. Benguet Consolidated, Inc., G.R.
No. L-23145, November29, 1968).
REASON: Grant of administration does not ex
proprio vigore have any effect beyond the limits of
the country in which it is granted. Hence, an
administrator appointed in a foreign state has no
authority in the Philippines (Tayag v. Benguet
Consolidated, Inc., G.R. No. L-23145, November
29, 1968).
NOTE: It is a general rule universally recognized
that administration, whether principal or ancillary,
certainly extends to the assets of a decedent found
within the state or country where it was granted,
the corollary being "that an administrator
appointed in one state or country has no power
.. over property in another state or country" (Tayag
_v. Benguet Consolidated, Inc., G.R. No. L-23145,
N<Svfgnber 29, 1968).
' - • • • ,,;; .;. ~>' • ·" ,,
DISTRIBUl;lON OF ESTATES
- regulateq according to the national law of the
person whose $uccession ·is under consideration
Domicil,l~t)': _:~~V)!l')iStration of the estate of a
deceasedA!rlertcan citizen in the U.S. has no power
over and is not entitled to the possession of the stock
~er:tificates of shares of stock owned by the
•:Oe~fl;sec;I in a Philippine corporation, which
. certrficates must be delivered to the ancillary
administration of the deceased's estate in the
Philippines, to be administered by the latter in the
nature of assets of the deceased liable for his debt
or to be distributed among his heirs (SEMP/O-DIY,
Conflict, supra at 111, Tayag v. Benguet
Consolidated, Inc., G.R. No. L-23145, November 29,
1968) .
HOLOGRAPHIC WILLS
Must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other
form, and may be made in/out of the Philippines, and
rieed not be witnessed (CIVIL CODE, Art 810,
SEMP/O-O/Y, Conflict, supra at 106).
of the CONFLICT RULES ·IF A PERSON DIES
INTESTATE
Civil Law Countries (Philippines)
- lex nationalii ·
the

Common Law Countries
- split or scission system, i.e., lex domicilii of the
deceased at the time of death as to personality, and
lex situs as to real property (SEMP/O-DIY, Conflict,
p. 105).
CADUCIARY RIGHTS
Two Theories Adopted by States to Claim
Properties Left by Deceased with No Heirs and
No Will
1. England and Most American States
Said properties become bona vacantia or
ownerless and should revert to .the state where
they are situated by escheat (Id. at 111).
2. Some Civil Law Countries (Philippines)
The State is the last heir of i3 deceased person.
Hence, the State succeeds to the properties left
by the said deceased as an heir (Id. at 111 ).
I TORTS
I .;. _place where the wrongful act became
GENERAL RULE:
Lex loci delicti comissi or law oftheplace where the
tort was committed will gov~rn {Wf:BSTEF,.?'S NEW
WORLD LAW DICTIONARY, 1:1 eel., 2006).
Under this presumption, the. cptJrt app[ies the
substantive laws of the state where the last· event
necessary to make an actot. liable for the aileGed
wrong takes place (Shaw v. LDC Enterprise~, 8q3
N.E. 2d 424, March 30, 2007) . .
In one case involving torts, the "connecting factcir or
"point of contact" could be the place orpl~ces where
the tortious conduct or lex loci actus occurred.
Philippines could be said as a situs of the tort, the
places where the alleged tortious conduct took
place. That certain acts or parts of the injury
allegedly occurred in another country is of no
moment. For, wh'at is important here is the place
where the over-all harm or the totality of the alleged
injury to the person, reputation, social standing and
human rights of complainant, had lodged (Saudi
Arabian Airlines v. Court of Appeals, G.R. No.
122191, October 8, 1998).
BASIS: Vested rights theory, since the rights of the
parties vested are in the place of injury and nowhere
else {PE BENITO, Conflict, supra at 116).
REASONS:
1 . The state where the social disturbance occurred
has the primary duty to redress the wrong and
determine the effects of the injury; and
CONFLICTS OF LAW
Civil Law
2. To compensate the victim for the damage or
injury suffered (SEMP/O-DIY, Conflict, supra at
131).
EXCEPTION:
When the place of the tort is an insignificant contact,
the factors that n:iust be evaluated are:
1. The place where the conduct causing the injury
occurred;
2. The residence or place of business of the
parties; and
3. The place where the relationship is centered
(Melton v. Stephens, 13 N.E. 3d 533, July 22,
2014).
CONCEPTS OF PLACE OF
WRONG/LOCUS DEL/CTIS
Illustration: A was hunting in State X, near the
boundary of State Y. A accidentally shot B, who was
· standing in State Y.
1. · Qommon Law Concept
effective, e.g.;Jast event necessary to make an
actor liable foran alleged tort occurs. Locus
Delicti is State Y.
.REASONS:
a. Without an injury, there is nothing to protect
,and there is, no necessity for judicial relief
'(SEMPl()-DJY, Conflict, supra at 132);
b. -·· Vested right,s theory, i.e., if the harn'l does
riot take place jhen the tort is not completed
{COQUIA, Conflict, supra at 409) . .
2. Civil .L:aw Rule
- place where the tortuous act began. Locus
., 'Delicti ls·State X.
: R~ason: The legality or illegality of one's act
should be determined by the law of the state
where he is at the time he does the act (Id.).
3. Theory of Dr. Rabel (jurist recognized in
comparative Jaw)
'.... place where the important and substantial acts
leading to the tortuous act were committed/
place having the most substantial connection
with the wrongful act, e.g., situs of radio station
where libelous broadcast was made is the locus
delicti, even if broadcast is heard in many
places (Id.).
OBLIGATION THEORY
The tortuous act gives rise to an obligation, which is
transitory and follows the person committing the
tortuous act and may be enforced wherever he may
be found (Id.}. .
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MODERN THEORIES IN DETERMINING law of the jurisdictions involved, whether there is a

LIABILITY FOR TORTS
1. Theory of Most Significant Relationship
(MSR)
An action for tort may be filed in the country that
has the most significant relationship to the
occurrence and the parties and thus, has the
greatest concern with the specific issue of the
case.
Two-step analysis for the significant
relationship inquiry:
a. Courts will continue to evaluate the contacts
with each interested jurisdiction; and
b. Courts will continue to evaluate the interests
and public policies of potentially concerned
jurisdictions (Restatement (Second} of
Conflict of Laws, Section 145).
2. The Interest-Analysis Approach
Considers the relevant concerns that two or
more states may have in the case and their•·.
respective interests in applying their laws to ,it.
The State which has the more relevant and
weighty interests in the case should be
considered the locus delicti.
3. Caver's Principle of Preference
A higher standard of conduct arid •financial
protection given to the injured party by otie State
is applied by the State where the injury
happened, if the latter State 'acjopts)a lower
standard of conduct and financial protection t6
the injured (SEMP/O-DIY, Conflict, $UPr~·:at 132-•
134). . .
4. German Rule or Elective Concurrence
The injured person may choose sue €lither to
under the law of: ....
a. The place where the actor engages in his
tortuous conducts; or
b. The place where the effects of his conduct
occur.
true Conflict of Law, and if a true Conflict exists, the
court will apply the law of the state whose interests
is more impaired (PE BENITO, Conflict, supra at
119).
STEPS IN COMPARATIVE IMPAIRMENT
TEST:
1. The court determines whether the relevant law
of the affected jurisdictions with regard to the
issue in question is the same or different.
2. If there is a difference, the court examines each
jurisdiction's interest in the application of its own
law to determine whether a true Conflict exists.
3. If the court finds that there is a true Conflict, it
carefully evaluates and compares the nature
and strength of the interest of each jurisdiction
to determine which state's interest would be
more impaired if its policy were subordinated to
~he policy of the other state (Id. at 68).
CHOICE-INFLUENCING
CONSIDERATIONS APPROACH
;,;::; To determine the applicable law, the following
·: · · .factors are C6,flsidered:
1; · { P~~tab\!ity of result;
2. Mainten§in~e of the interstate and international
order; .- '
3. Simpliflcalion of the judicial task;
4. Advati'cernent of the forum's governmental
interest; cind
{h>
_-,._, 5. Apfiij tn,e_,better rule of law (Dowis et al.
v.Mu'#t · •i;•·279 Ga. 808, October 24, 2005)
1L.J:<ll,,BERG DOCTRINE
,'S
lfl..~r,ongful death occurred in A state and the
a 'fof'damages is brought in B state, B is not
bound by A's laws on any limitation of liability arising
from the death where the set limitations on damages
are procedural. The law of the forum (B) should be
applied (Kilberg v. Northeast Airlines, Inc., 9 N. Y.2d
34,211 N.Y.S.2d, 133, 172 N.E.2d 526).

NOTE: He cannot cumulate the benefits flowing LEX LOCI DELICTI COMM/SS/1 ON
from more than one law. MARITIME TORTS
1. Law of the flag
COMPARATIVE IMPAIRMENTTEST · - torts committed aboard a public vessel,
Also known as the governmental interest test, it whether on the high seas cir in foreign territorial
determines the impairment of policy resulting from waters;
the non-application of the laws of a State and then
compares the impairment to determine who stands 2. Law of the registry
to lose more. The jurisdiction that loses more is the - torts committed aboard a private or merchant
jurisdiction that can be said to have the greatest vessel on the high seas; and when two vessels
interest (AQUINO, Elements of Conflict, supra at from the same state collide;
295).
3. Identical Law
It is a three-tiered approach that involves an - applied if the vessels come from different
examination of whether there is a difference in the states with identical laws; and

4. General maritime law as understood and
applied by the forum where the case is
filed
- vessels come from different states with
different laws (SEMPIO-DIY, Conflict, supra at
134-135).
ENFORCEMENT OF CLAIM FOR
FOREIGN TORT
An action for a foreign tort may be brought in any
place where the tortfeasor may be found so that he
can be subjected to the jurisdiction of the Court
(SALONGA, Conflict, supra at 424).
The officials may be held liable for damages in a tort
suit filed against them in the United States for acts
of torture committed against political detainees or
prisoners in the Philippines in violation of
international and municipal law (In re {;staf'e of
Ferdinand Marcos, Human Rights,·• Utigc1(ion,
Maximo Hilao, et:al., Class Plaintiff No. 92-{554-6,
U.S. Court of Appeals for the 9th 'Ciri:;uit; Jµne 16,
1994).
. .
CONDITIONS FOR THE ENFORCEMENT
OF TORT CLAIMS
1. The foreign tort is based on _c:1 civil action and not
on a crime;
2. The enforcement of the ton would not,infririge
the public policy of the forum; a.nd . . . .
3. of
The judicial machinery t_he fo'i:um lsad~quate
for its proper enforcement "( SEMPlO;DIY,
Conflict, supra at 135).
NOTE: While all procedural matter$ are govemed'by,
.the lex tori, all. substantive matters are govern$d,by
lex loci delicti commissii (Id. at 135) . . , •.. · · .·•
ALIEN TORT CLAIMS ACT OF THE .
UNITED STATES
Grants US district courts original jurisdiction over
any civil action filed by an alien for a tort committed
in violation of law of nations/treaty of the United
States. Applying said act, the US Court of Appeals
upheld a Hawaiian district court's jurisdiction over a
class action for damages brought by thousands of
Filipino victims of human rights and torture allegedly
committed by the late President Marcos and his
officials (Trajano v. Marcos-Manotoc, 125 L. Ed. 2d
661, 113 S. Ct. 2959).
CONFLICTS OF LAW
Civil Law
I CRIMES
I
RULE OF GENERALITY IN CRIMINAL
LAW
Penal laws and those of public security shall be
obligatory upon all who live or sojourn in the
Philippine territory subject to the principles of Public
International Law and to treaty stipulations (CIVIL
CODE, Art. 14).
GENERAL RULE: Lex loci delicti or the law of the
place where the crime was committed will govern.
EXCEPTIONS:
1. Theory of State Immunity
- Crimes committed by heads of state/ state
officials, diplomatic representatives, and
admin~trative officers attached to the diplomat
or attc1che and officials of recognized
-lnternational organizations (CONST. Art. XVI,
. SE!c. 3).
2, French Ru1e ..
- Crimes committed on board a foreign vessel
eve11 if within the territorial waters of the coastal
,state, as lor19 as the effect of such crime does
not :affect the pe<alc;e and order of the coastal
st~te'. This i$ baseq on the Nationality Theory
(SEMP/O-DIY, Codf/ict, supra at 141).
' NOTE: Ttie Philippines adopts the English Rule,
pursuanno the Territorial Theory. The territory
where·· the crime was committed will have
jurisdiction except on matters: (1) in relation to
·the·,inte,rnal'order and discipline of the vessel;
arid· (2) solely affecting the ship and its
· o.ccupants such as minor or petty criminal
offenses committed by members of the crew (Id.
at 141).
3. Extraterritoriality
- Crimes punishable under the local law,
although committed by Philippine nationals
abroad, pursuant to the protective principle of
criminal jurisdiction (REVISED PENAL CODE,
Art. 2).
THEORIES ON JURISDICTION TO TRY
.CRIMINAL CASES/THEORIES ON
EXTRATERRITORIAL COMPETENCE
1. Territorial theory
- The State where the crime was committed has
jurisdiction to try the case (PARAS, Conflict,
supra at 403).
 MtMEK-Q~Y Al D
San Beda University College of Lnw - RGCT Bar OperatiOO$ Center

Two kinds:
a. Subjective Territorial Principle - the state
where the crime began may prosecute the
same even though the crime was completed
in another state (Id. at 404).
b. Objective Territorial Principle - The state
can prosecute crimes that began abroad but
were completed within its territory (Id.).

2. Nationatity or Personal Theory/Active

Nationality Theory Frustrated Where the victim was
- The country of which the criminal is a citizen consummated homicide, injured (not where the
murder, infanticide, and aggressor wielded the
or a subject has jurisdiction to try him for the
offense he is supposed to have committed, parricide weapon)
whether the effectuation of the act be inside or
Att~mpted homicide, Where the intended
outside its territory, provided that the act is a
murder, infanticide, and vlctim was (not where
crime under his country's penal law (Id.).
parricide the aggressor was
situated) - so long as
3. Protective Theory the weapon or the
- Any State whose national interests may be bullet either touched
jeopardized has jurisdiction over . criminal him or fell inside the
offenses, even if committed outside its territory, territory where he was
and even if committed by an alien in order that it
may protect itself (Id. at 405). Where the illegal
marriage was
4. Real Theory/Eclectic Theory performed
- Any State whose penal code has been ·
transgressed upon has jurisdictiqn to bring Where the property
justice to the perpetrators of fhe .offense, was unlawfully taken
whether the crime was committed ihside or from the victim (not the
outside its own territory {Id.). place to which the
criminal went after the
5. Cosmopolitan or University Theory commission of the
- Any State where the criminal is found ·()r which crime)
has custody over him is vested with jurisdiction
to try him for the crime he is alleged to have Estafa or swindling Where the object of the
committed - unless extradition is possible (Id.). , . ,, thrC>µgh false crime was received
};f;l 'fep;i~~'ef'itations (not where the false
representations were
6. Passive Personality Theorj/Passive
made)
Nationality Theory
- The state of which the victim is a citizen or Conspiracy to commit Where the conspiracy
subject has jurisdiction (PARAS, Conflict, supra treason, rebellion, or was formed (not where
at 403-406). sedition (Note: other the overt act of treason,
conspiracies are not rebellion, or sedition
RULE,S ON CRIMES penalized by our laws) was committed

Libel Where published or

Essential elements of a Generally, where
crime and its penalties committed
NOTE: In the
Philippines, we follow
the Territorial Theory
in general; by way of
exception, Art. 2 of the
Revised Penal Code
on Extraterritoriality
circulated
Ariy place where the
Continuing crimes
offense begins, exists,
or continues
Complex crimes Any place where any of
the essential elements
of the crime took place
(PARAS, Conflict, supra at 399 - 401 ).
 CONFLICTS OF LAW
Civil Law

BUSINESS Kind of stocks; transfer of

ASSOCIATIONS stocks to bind the
corporation; issuance,
amount, and legality of
dividends; powers and
RULES ON JURIDICAL PERSONS duties of members,
stockholders, and officers
Validity of corporate acts Law of the place of
and contracts (including incorporation and law of
Existence, legal General Rule: the law ultra-vires acts) the place of performance
character, capacity, of the place of (the act or contract must
powers and liabilities incorporation. be authorized by BOTH
LAWS).
Exceptions:
1. Constitutional and Right to sue and
Statutory amenability to court
Lex fori
Restrictions processes and suits
(CONST. Art. XI). , 9gainst it
M11mne'r ...and effect of Law of the place of
For ,constit!.ltional 1
· dissolution" incorporation provided
purposes - even. if it that the public policy of
in
is rncorporated the the forum is not
Philippines, it 1s not mitigated against
deemed a Filipino
corporation,' and ·oomicilf If not fixed by the law
cannot acquire land, creating or recognizing
exploit our natural the corporation or by any
resources, and other provision - the
.. operate public domicile is where its
utilities unless 60% legal representation is
qf , \the· . capital is established or where it
Filipino · ow.ned exercises its principal
. (CONST. Art. XII, functions (CIVIL CODE,
·sec. 2, ·1q, and 11). ' Art. 51) .
. R~ceivers (app6intment Principal receiver is
2. Cdntrol Test' 9urihg ..·,and,poy.,ers)· . appointed by the courts
Wartime - the veil of · of the state of
corporate ident[ty is
incorporation; ancillary
pierced and, tbe
receivers, by the courts
nationality of the
of any state where the
controlling
corporation has assets
stockholders is used
(authority of receivers is
to determine if a
CO-EXTENSIVE with
corporation is an
the authority if the
enemy corporation or
appointing court).
not (the Control
Test) (Davis Winship
v. Phil. Trust Co., L-
The existence or non- The personal law of the
3869, January 31,
existence of legal partnership - that is -
1952).
personality of the firm; the law of the place
Alteration of Charter' Law of the place of capacity to contract; where it was created.
1 - - - - - - - - - - - - - - 1 incorporation. liability of the firm and the (CODE OF
Internal Organization
partners to third persons COMMERCE, Art. 15).
Merger and Consolidation Subject, however; to the
exceptions given above
Formation of the as in the case of
corporation (requisites); corporations.
 \ I

M:Q~Y AID
$an Beoa University College of Law - RGCT Bar Operations Center

power of restriction and supervision is the fact of

transacting or doing business in the Philippines (Id).
Creation of branches in Philippine Law (law of
the Philippines; validity the place where the CORPORATION/PARTNERSHIP
and effect of branches' branches were created)
THEORIES ON THE PERSONAL OR
commercial transaction; (CODE OF
and the jurisdiction of COMMERCE, Art. 15). GOVERNING LAW OF A CORPORATION
courts 1. Law of the place of incorporation
- Law adopted by the Philippines;
Dissolution, winding ur, Philippine law (CODF
and termination of OF COMMERCE, Art. 2. Law of the place or center of management or
branches in the 15). Central Office Principle/Centre of administration
Philippines or siege social; and
Domicile The place where their
legal representation is 3. Place of Exploitation/exploitation centre or siege
established or where d'exploitation (PARAS, Conflict, supra at 420
they exercise their and 421).
principal functions.
DOMICILE OR RESIDENCE OF FOREIGN
Receivers Philippine law insofar as
the assets in the
CORPORATIONS
Philippines are When not fixed by the law creating them, it shall be
concerned (authority of . understood to be the place where their legal
such receivers can be representation is or where they exercise their
exercised as such only principal functions (SEMPIO-DIY, Conflict, supra at
in the Philippines. 143).

The same prlnciple is recognized in American law:

Foundations (combination Personal law of the that the resi<:lence of a corporation, if it can be said
of capital independent of foundation (place of the to have a residence, is necessarily where it
individuals, usually not for principal center of. exercises .corporate functions; that it is considered
profit) administration). as dwelling in the place where its business is done;
as beinr;i,,locafed where its franchises are exercised;
(PARAS, Conflict, supra at 416;.,..419). and as,,l,)~11~",Pms,~nt where it is engaged in the
prosecutfon' iof:'the corporate enterprises; that a
EFFECT OF RECOGNITION . OF foreign corporation licensed to do business in
FOREIGN BUSINESS ASSOCIATION .· a,st;3te is a resident of any country where it
Merely admits or affirms its legal existence created ·' 'lU?itl1<,1in~ an office or agent for transaction of its
under the law of one State but does not involve the · ·i:ist:ialand 'customary business for venue purposes
rights of the corporation "to do" or. "transact (State Investment House, Inc. v. Citibank, N.A., GR.
business". Nos. 79926-27, October 17, 1991);

NOTE: A foreign corporation granted license to

THEORIES OF RECOGNITION
operate in the Philippines acquires domicile therein
1. Territorial Theory (COQUIA, Conflict, supra at 456).
- a company·has no legal existence beyond its
sovereignty by which it was created; VALIDITY OF CORPORATE ACTS AND
CONTRACTS
2. International Theory
- a foreign corporation is immediately To be vali<;l and binding, corporate acts or contracts
recognized without further formality; and must be authorized both by:
1. The law of the place of incorporation; .and
3. Restricted Admission Theory 2. The law of the place of performance.
- a State imposes comprehensive examination,
supervision, and control of foreign corporations Otherwise, their validity is doubtful and they may not
(SALONGA, Conflict, supra at 158). be given effect, without prejurlice to the principle of
estoppel (SEMPIO-D/Y, Conflict, supra at 146).
The principle recognized in the Philippines is that
every State may impose conditions on the exercise
by foreign corporations of activities within its
territory. The minimum contract required for the

MULTINATIONAL OR TRANSNATIONAL
CORPORATIONS
Branches of a big mother corporation that have been
incorporated under the local law of each_ country or
state where it has extended its business are
separate entities governed by the said local laws (Id.
at 148).
JURISDICTION OVER FOREIGN
CORPORATIONS
CONSENT DOCTRINE
A foreign corporation will be recognized and will be
allowed to transact business in any state which gives
its consent. This doctrine is established in Secs.
140-153, Title XV of the Revised Corporation Code·
of the Philippines.
NOTE: A foreign corporation lawfully doing business
in the Philippines shall be bound by all laws, rules
and regulations applicable to domestic•corporations
of the same class, except those which provide for the·
creation, formation, organization or dissolution of
corporations or those which fix the .· relations,
liabilities, responsibilities, or duties of stoc~holders;
members, or officers of corporations to each other or
to the corporation ( CORPORA TJONCODE OF THE
PHILIPPINES, Sec. 146). .
A foreign corporation may be. sti~d after it withdrew
from business in the Philippin~s bo · cqntracts
previously entered into by it The sii!me rule i3PPlies
to
to contracts entered into prior the"revobplion_ of a
foreign corporation's license (SEMPIOsDIY, Conflict,
supra at 148). · (CORPORA TJQN CODE, Sec. 150); and
PARENT AND SUBSIDlARY
CORPORATIONS
Jurisdiction over the parent corporation can be
acquired when the separate existence of the
subsidiary has not been fully maintained or if the
parent has acted within the state as the subsidiary's
agent (COQUIA, Conflict, supra at 524).
However, if the local counterpart is a subsidiary with
an entirely distinct personality, jurisdiction over the
local counterpart is not jurisdiction over the parent
company (Id.).·
RIGHT OF A FOREIGN CORPORATION
TO BRING SUIT
GENERAL RULE:
No foreign corporation transacting business in the
Philippines without a license. or its successors or
assigns, shall be permitted to maintain or intervene
in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such
corporation may be sued or proceeded against
CONFLICTS ·OF LAW
Civil Law
before PhilippinA r.rn1rts or Administrative tribunals
on any valid cause of action recognized under
Philippine laws (REVISED CORPORA TJON CODE
OF THE PHILIPPINES, Sec. 150) . .
EXCEPTIONS:
1. Isolated transactions (Lorenzo Shipping Corp. v.
Chubb and Sons, Inc., G.R. No. 147724, June 8,
2004);
2. Action to protect trademark, trade name,
goodwill, patent or for unfair competition;
3. To enforce a right not arising out of a business
transaction, e.g., tort that occurred · in the
Philippines;
4. When the parties have contractually stipulated
· that the Philippines is the venue of actions;
5. When the party sued is barred by the principle of
estoppel and/or principle of unjust enrichment
from questioning the capacity of the foreign
corporation;
·ir Recovery of misdelivered property (DE LEON &
Of= LEON Jr., CORPORATION CODE (2013)
supr(I at 798-801);
7. ·. Agreements" _or transactions fully transacted
outside the 'Philippines (B. Van Zuiden v. GTVL
Maqufac_tt.J[ingJn[lustries Inc., G.R. No. 147905,
May 28, ·2001); ahd
8. Petition fired. is merely a corollary defense in a
suit agains(it.,
EFFECT OF" FAILURE TO SECURE A
LICEN~ET0° TRA"IS.ACT BUSINESS
1. The foreign corporation which does business in
. lhe Philippines without a license has no right to
· slle in tJle Philippines, but it can still be sued
2 .. rh,e·contracts,entered into are valid as between.
•th~ parties, but they may not be enforced in the
. Philippi!'le' courts (COQUIA, Conflict; supra at
517).
FOREIGN CORPORATIONS AND
COMPULSORY COUNTERCLAIMS
1. When a foreign corporation is sued, it may
interpose a counterclaim which would defeat the
complaint.
2. If the foreign corporation is suing on an isolated
contract or is exempt from the license
requirement, a local defendant can file a
counterclaim.
NOTE: In either case, the foreign corporation is not
maintaining a suit. Further. such counterclaim may
embrace only compulsory counterclaim, not a
permissive one, for the former is deemed waived if
not raised (AGPALO, Conflict, supra at 475).
 &Wb&,·:1$ \ I

MEM✓Q~Y AID
S,m Ueda University College of Law • RGCT Bar Operations Center

TRUSTS REQUISITES FOR RECOGNITION OR

When the trust contains an express choice-of-law ENFORCEMENT: (NOPD-BAFC-FCM-C)
provision, that law shall apply. In the absence of an 1. The defendant has been given reasonable
express provision, the courts will deem as controlling Notice and Qpportunity to be heard;
the law that will sustain the validity of the trust. 2. There is adequate ~roof of foreign judgment;
3. The foreign judgment must have Qisposed of the
RECOGNITION AND ENFORCEMENT controversy on the merits and must be res
OF FOREIGN JUDGMENTS, judicata, i.e., judgment on the merits is final,
DISTINGUISHED issued by a foreign court having jurisdiction over
the subject matter and parties, and there was
identity of parties, subject matter, and cause of
action
4. It must not be .§.arred by prescription both in the
The defendant or The plaintiff or petitioner State where it was promulgated and where it is
respondent is wants the court to sought to be enforced;
presenting the foreign positively carry out and 5. State where the foreign judgment was obtained
judgment merely as a make effective the ~!lows recognition or enforcement of Philippine
defense, on the basis of foreign judgment. judgments;
res judicata. 6. If judgment is for a sum of money, it must be
Fixed;
Invokes merely a sense Implies an act of
7. Foreign judgment must not be fontrary to the
of justice (Perkins v. sovereignty.
public policy or good morals of the country
Benguet Consolidated
where it is to be enforced;
Mining, G.R. No. L-
8. Judgment must not have been obtained by
1981, May 28, 1954).
Fraud Gollusion, Mistake of fact or law; and
Needs no proceeding or Requires a separate 9'.; ':UI:mµit'.f~ a judgment on fivil or commercial
action but implies that action brought precisely matti:lrs, 'including questions of status, not on a
the same has already to make the foreign criminal!' revenue, or administrative matter.
been filed against the judgment effective.
defendant who is PHILIPPINE; RULE ON THE EFFECT OF
invoking the foreign FOREIGN JUDGMENT
judgment. The effect, 'Wcwmt,,nt or final order of a tribunal of
a fore.1gti'{ . ';'having jurisdiction to render the
Recognition is a Enforcement is an , judgment or na order, is as follows:
passive effect of foreign active recognition and 1. In a judgment or final order upon a specific
judgment. implementation of the .::/f '.tfp,ipg, the judgment or final order is conclusive
foreign judgment from ·. );,tf.'.iX(U~,r,the title to the thing; and
the local court, 2. In a judgment or final order against a person,
rendering the foreign the judgment or final order is presumptive
judgment as a domestic evidence of a right as between the parties and
judgment and seeking their successors in interest by a subsequent title.
its enforcement by the
sheriff in accordance In either case, the judgment or final order may be
with the Rules of Court. repelled by evidence of a want of jurisdiction, want
(SEMP/O-O/Y, Conflict, supra at 151-152). of notice to the party, collusion, fraud, or clear
mistake of law or fact (RULES OF COURT, Rule 39,
NOTE: Enforcement necessarily implies recognition; Sec. 48). ·
recognition does not necessarily imply enforcement.
NOTE: The judgment in the foreign court does not
constitute res judicata as basis for its enforcement
EXAMPLES OF FOREIGN JUDGMENTS
without giving the losing party the opportunity to
WHICH CAN ONLY BE RECOGNIZED: dispute it (AGPALO, Conflict, supra at 586).
1. Declaratory judgments;
2. Judgments which give no affirmative relief; and THREE MODES OF ENFORCEMENT OF
3. Judgments which determine the parties'
interests in a thing or status.
JUDGMENT: ,
1. By filing a petition in the court where tlie
judgment is sought to be recognized for the
recognition of the judgment;
 CONFLICTS OF LAW
· Civil Law

2. By a summary procedure known as exequatur

proceedings (a summary procedure outlined in
the statutes of some civil law countries such as
France, Italy, Switzerland, and Austria for the
enforcement of foreign judgments that have no
automatic effect or authority in themselves); and
3. By registration of the foreign judgment in a
registry of judgments in the forum where it is with
or without judicial supervision (COQUIA,
Conflict, supra at 561-563).

REASONS FOR REFUSAL BY A LOCAL

COURTTORECOGN~EORENFORCEA
FOREIGN JUDGMENT:
1. The requisite proof of the foreign judgment may
not have been presented (Note: The manner of
proving a foreign judgment is the same as
proving a foreign law (RULES OF COURT, Rule
132, Sec. 25).
2. The foreign judgment may contravene a
recognized and established pol/cy in .. our .
country, e.g., foreign decree of div6rce obtalned
by a Filipino from his/her Filipino'spou~e·~broad;
or
3. The administration of justice frr tile country
where the foreign judgment car;nitfrom may be
shockingly corrupt or not1beyondreproach.

PROCEDURE OF ENFORCEMENT OF
JUDGMENT IN THE PHIL,,JPPINE§_!_ ..
1. Filing of petition in the proper cpurtatta.ctiing.an
authenticated copy of th~ toreidn judgmeht; and
2. Authentication calls for Jhe Pnilippine>cor.:isul
assigned to the countrX where, the foreign
judgment was decreed to certify,, that ,such
judgment was rendered by acourt of competent
jurisdiction (COQUIA, Conflict, ~upra.at'!561), _

FOREIGN JUDGMENT MUST CONFORM

WITH THE CONSTITUTIONAL
REQUIREMENTS
The requirement that a judgment must state the facts
arid the law upon which it is based is embodied in
Section 14 of Article VIII of the Constitution. Any
foreign law, whether substantive or procedural,
cannot overrule or prevail over this constitutional
provision (AGPALO, Conflict, supra at 644).
 WM¥i# \ I

MEM:Q~Y AID
San Beda Un,wrs;ty College of law - RGCT Bar Operations Center

2. Takes effect immediately

EFFECT AND - It shall take effect immediately after publication
with the 15-day period being dispensed with
APPLICATION OF LAWS (Tafiada v. Tuvera,supra).

3. No provision as to its effectivity

- It takes effect after 15 days following its
The Civil Code took effect on August 30, 1950.
publication (CIVIL CODE, Art. 2; 1 PARAS, Civil
Code of the Philippines Annotated (2016), p. 14
[hereinafter 1 PARAS]).

EFFECTIVITY OF LAWS NOTE: If the law declares that it shall be effective

(ART. 2) "15 days after its publication", it means that its
effectivity is on the 15th day after such publication.

If the law declares that it shall be effective "after 15

GENERAL RULE: laws shall take effect after 15
days following the completion of their publication in
the Official Gazette, or in a newspaper of general
circulation in the Philippines (CIVIL CODE, Art. 2 as
amended by E.O. No. 200 (1987)).
No one shall be charged with notice of the statute's
provision until publication is completed and the 15-
day period has expired (Nagkakaisang Maralita ng<
Sitio Masigasig Inc. v. Military Shrine Service, G.R.
No. 187587, June 5, 2013). · violate dUe' process as it would deny the public
EXCEPTION: Unless otherwise provided by the
law (CIVIL CODE, Art. 2).
NOTE: The date of effectjyity of •Municipal
Ordinances is NOT covered by:this rule ocit by the
Local Government Code (Tafiada v. Tuver~, G.R.
No. L-63915 April 24, 1985).
RULES ON PERIOD PROVIDED
STATUTE:
1. Shorter/longer period than the 1?~day
period
- the period provided in the statute shall prevail
(STA. MARIA, Persons and Family Relations
Law (2015), p. 4) [hereinafter STA. MARIA]].
days following its publication," its effectivity is on the
16th day thereafter (RABUYA, The Law on Persons
and Family Relations (2017), p. 4-5 [hereinafter
RABUYA}).
INDISPENSA81UTY OF PUBLICATION
The clause "unless it is otherwise provided" in Art. 2
solely refers to the 15-day period and not to the
. rElgL,Jirement>.of publication. Publication is an
· il¾tli®n~tji~( requisite; the absence of which will
knowledge <;if:tf:le laws that are supposed to govern
it (Nagkakq1sii!n9. Maralita ng Sitio Masigasig Inc v.
Military Shrine Services, G.R. No. 187587, June 5,
2013). " . ,
eresiden a ecrees;
2. _baws which refer to all statutes, including local
BY -\f:!~:j:;l~t~:~~r:ti~:s;rules and regulations, the
purpose of which is to enforce/implement
existing laws pursuant to a valid delegation;
4. ~harter of a city;
5. £irculars issued by the Monetary Board, the
purpose of which is not merely to interpret but
to fill in the details of the Central Bank Act;

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACVLA, Ad Hoc Director for Bar Matters j MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance I JUAN INIGO S. MIGUEL
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit I CORINA TAMPUS, Vice Chairperson
for Secretariat I ARVY KEITH CHUNG, Vice Chairperson for Logistics I ANTONIO JUN-JUN C. MANAUGOD IV, Vice Chairperson for
iviembership I JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB R MENDOZA, Subject Chair I KING LAURENZ S. MASILUNGAN, Assistant Subject Chair i ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing I SUBJECT HEADS: JOAN V. LAGRADILI.A, Agency & Trusts I QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Relations I KRISTOFFER MONICO S. NG, Property I JUI.EEN F.VF.lTF.
D. MAI.LARI, Land Titles and Deeds I MARISOL O. SISON, Sales I GEM EDWARD E. AQUINO, Tqrts I PATRICIA i'YlAE R. FEDER.IS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BUI.ATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CJ-IARISMA T. CHAN, ROCl\."YLLE DOMINIQUE L. BALJSONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MAIUE C. SANTOS, YUMIKO ANGEUUS M. YOSHI\', MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZI.LE CAYNF D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAIi.A KLAUDINE A. ROSALES

Dean MARCIANO G. DELSON, Dean Ul,PIANO P. SARi'11ENIO III, and Atty. FRANCESCA LOURDES M. SENGA
 , ,
PERSONS AND FAMILY RELATIONS
6, £irculars and regulations which prescribe a
penalty for their violation (People v, Que Po Lay,
GR No, L-6791, March 29, 1954), and
7, gxecutive Orders (Taflada v, Tuvera, supra),
PUBLICATION NOT REQUIRED: (SILi)
1_ §,upreme Court decisions (De Roy v. CA, GR
No, 80718, January 29, 1988);
2. !nterpretative regulations
(Securities
and Exchange Commission v, GMA Network,
lnc,,G.R, No. 164026, December 23, 2008);
3, _!,,etters of Instructions issued by administrative
superiors on rules/guidelines to be followed by
subordinates in the performance of their duties
(National Power Corp. v. Pinatubo Commercial,
G.R. No, 176006, March 26, 2010); and
4. Those !nternal in nature, regulating only the
personnel of the administrative agency (Tafiada
v, Tuvera, supra).
NOTE: ~dministrative rules and regulations must
also be published if their purpose is tc;'enforce or
implement existing law pursuant .also to a v,;::ilid
delegation (Manila Public School Teachers'
Association v. Garcia, G.R. No. 1927-08, October 2,
2017).
NEWSPAPER OF GENERAL
CIRCULATION
To be a newspaper of general :circulatlon, it is
enough that it is published tor the dissemination of
local news and general in~o~mat{on; thal it ,has a
bona fide subscription list of paying ~ubscnoe(s: that
it is published at regular intervals (Fortune· Motors
Phils. Inc. v. Metropolitan Bankand Trust Company,
G.R. No. 115068, November 28,1996).
The term "newspaper of general circulation'.' does
not mean that it is a newspaper with.the'largest
circulation. The fact that there are other ne'wspapers
having larger circulation is unimportant (Basa 'v:
Mercado, G.R. No. L-42226, July 26, 1935).
IGNORANCE OF THE
LAW EXCUSES NO ONE
(ART. 3)
IGNORANTIA LEGIS NON EXCUSAT
"Ignorance of the law excuses no one." A mistake of
law cannot be utilized as a lawful justification,
because everyone is presumed to know the law and
its consequences (In Re: Petition to Sign in the Roll
of Attorneys, B.M. No. 2540, September 24, 2013).
Civil Law
It is founded not only on expediency and policy but
also on necessity (Zulueta v. Zulueta, G.R. No. 428,
April 30, 1902),
CONCLUSIVE PRESUMPTION
Every person is presumed to know the law even if he
has no actual knowledge of the law (Tafiada v.
Tuvera, supra),
-
NOTE: It applies only to mandatory and prohibitory
laws. This may be deduced from the language of the
provision, which, notwithstanding a person's
ignorance, does · not excuse his or her
compliance with the laws (D.M. Consunji, Inc. v. CA,
G.R. No. 137873, April 20, 2001 ).
This applies to all kinds of domestic laws, whether
civil or penal (Luna v. Linatoc, G.R. No. L-22378,
June 29, 1968), and whether substantive or remedial
(:Z:ulueta v. Zulueta, supra).
FOREIGN l,..AW NOT INCLUDED
The presumptio11 does not apply to foreign laws
because ,there ls no judicial notice of such foreign
laws; such l~ws must be proved like any other matter
of fact. (Chtng/-/uatv, Co Heang, G.R. No. L-1211,
January 30, 1947).
JUDICIAL NOT1c'e
Refers tb the act of the court in taking cognizance of
matters 13s tr;ue or as existing without the need of the
introduction of evidence, or the authority of the court
to accept certain matters as facts even if no
evidence of their existence has been presented.
DOCTRINE <' OF PROCESSUAL
PRESUMPTION
. Wher.e, 'a foreign law is not pleaded or, even if
pleaded; is not proved, the presumption is that the
. forefgn law is the same as ours (EDI-Staffbuilders
Int'/. Inc. v. NLRC, G.R. No. 145587, October 26,
2007; Industrial Personnel & Management Services,
Inc. v. De Vera, G.R. No. 205703, March 7, 2016).
MISTAKE IN THE APPLICATION OR·
INTERPRETAilON OF DIFFICULT OR
DOUBTFUL PROVISIONS OF LAW
A mistake in the application or interpretation of
difficult or doubtful provisions of law may be the
basis of good faith and has been given the same
effect as a mistake o(fact, which may excuse one
from the legal consequences of his conduct (CIVIL
CODE, Art. 526, par. 3 and Art. 2155).
 MEM:Q~Y AID
San Beda University College of Law • RGCT Bar Operations Center
NON-RETROACTIVITY
OF LAWS (ART. 4)
RETROACTIVE LAW
It is one intP.nrlP.rl to ;:iffP.ct transactions which
occurred, or rights which accrued, betore it becomes
operative, and which ascribes to them effects not
inherent in their nature, in view of the law in force at
the time of their occurrence (RABUYA, supra at 12).
GENERAL RULE: Laws shall have no retroactive
effect (CIVIL CODE, Art. 4).
RATIONALE: Statutes, including administrative
rules and regulations, operate prospectively unless
the legislative intent to the contrary is manifest by
express terms or by necessary implication because
the retroactive application of a law usually divests
rights that have already become vested. This is
based on the Latin maxim: Lex prospicit non respiCJY
(the law looks forward, not backward) (Lintag v.
NAPOCOR, G.R. No. 158609, Julay 27, 2007).
EXCEPTIONS: (P 2 UT-NICE)
1. frocedural or remedial laws· (Araneta v.
Doronila, G:R. No. L-34882, August 24/1976);
2. _eenal laws favorable to the a9cused; provided
that the accused is not a habitual. delinquent
(REVISED PENAL CODE,. _Ari. 22; Pepple v.
Quiachon, G.R. No. 170236, August 3.1, 2006);
3. .!J.nless the law otherwise provides; · ·
4. Iax laws when expressly declared or is clearly
the legislative intent (Cebu Portland Cement v.
CIR, G.R. No. L-18649, Febrt:1ary 27, 1965);
5. Laws creating t:!ew rights (Bustclmante v.
Cayas, G.R. Nos. L-8562, December 17, 1955);
6. !nterpretative statutes (BPI Leasing Corp. v. CA,
G.R. No. 127629, November 18, 2003);
7. furative or remedial statutes (People v. Zeta,
G.R. No. L-7140, December 22, 1955); and
8. gmergency laws (Santos v. Alvarez, G.R. No. L-
332, June 18, 194 7).
EXCEPTIONS TO THE EXCEPTIONS: (EL)
1. £X Post Facto Laws; and
2. ha\'VS that impair obligation of contracts (Asiatic
Petroleum Co. (P.I.), Ltd. v. Llanes, G.R. No.
25386, October 20, 1926).
ACTS CONTRARY TO
LAW(ART. 5)
GENERAL RULE:
Acts contrary to mandatory or prohibitory lc1ws 8re
void (CIVIL CODE, Art. 5).
MANDATORY ,OR POSITIVE LAWS
Laws the violation of which, tenders the act or
proceeding illegal and void (1 TOLENTINO,
Commentaries and Jurisprudence on the Civil Code
of the Philippines (1990), p. 26 [hereinafter 1
TOLENTINO]). If the law demands something to be
done, it is mandatory (RABUYA, supra at 19).
PROHIBITORY OR NEGATIVE LAWS
Laws which, if omitted, renders the proceeding or
acts relating to it generally illegal or void. The law
commands that something should not be done (In re
··Brehm v. Republic, GR. No. L-18566, September
•·. 30,11963.).
,'/.,·- ·;· .,
EXCEPTIONS: (PAVE)
1. The lmr.i makes the act valid but Punishes the
violator (e.g. ,Marriage solemnized-by a person
without legal authority);
2. The !av., ifself Authorizes its validity (e.g., Lotto,
swe~f!jttife$.); · '
3. The· !aw:iliakes the act only Voidable (e.g.,
¥.oidable contracts where consent is vitiated);
, c.<c,'and
·· ,·;·,;t:';" ;"fb1, )aw declares the nullity of an act but
.::: •·· ;tico'gnizes its :j;ffects as legally existing (e.g.,
Child born after annulment of marriage is
considered legitimate) (1 PARAS, supra at 36).
I I
WAIVER OF RIGHTS
(ART. 6)
WAIVER
It is the intentional relinquishment of a known right
or such conduct as warrants an inference of
relinquishment of such right (Christensen v.
Carleton, 69 Vt. 91; Castro v. Del Rosario, G.R. No.
L-17915, January 31, 1967).
NOTE: A waiver to be valid and effective must, in the
first place, be couched in clear and unequivocal
terms which leave no doubt as to the intention of a
J;::,1: '.~ ;;. PERSONS AND FAMILY RELATIONS
Civil Law
\:< ~,/ "' ~ 't'

party to give up a right or benefit whir.h IP.Q;:illy c. Patrimonial rights - may be waived (Id. at
pcrtc1ins to him. (Thomson v. Court of Appeals, G. R. 18-19).
No. 116631, October 28, 1998).
TYPES OF PATRIMONIAL RIGHTS
REQUISITES OF A VALID WAIVER: 1. Real Right ljus in rel jus in rem)
(CUE-CPF) The power over a specific thing without a passive
1. Full fapacity to make the waiver; subject individually determined against whom such
2. Waiver must be !J_nequivocal; right may be personally exercised; it is enforceable
3. Right must gxist at the time of the waiver; against the whole world.
4. It must not be fontrary to law, public policy,
morals or good customs; 2. Personal Right (jus in personam/ jus ad
5. It must not be ~rejudicial to a third person with a rem)
right recognized by law; and The power belonging to one person to demand of
6. When .!:_ormalities are required, the same must another, as a definite passive subject, the fulfillment
be complied with (1 PARAS, supra at 39). of a prestation to give, to do or not to do (Id.).

GENERAL RULE: Rights may be waived (ALBANO,

Family Code of the Philippines (2017), p. 21)
[hereinafter ALBANO].

EXCEPTIONS: (WARN)
Rights that cannot be waived under '.any pf. the
following circumstances: _ . ...
1. When the Waiver is prejudicial t9 a tlilrd persori ..
with a right recognized by law (CIVIL CODE, Art.
lREPE~l'()f
REPEAL OF LAWS
(ART.7)·

A l,,AW
I
6); . ·. It is the legislative act of abrogating through a
2. ~lleged rights, which reajly do riot exist yet; subsequent law _the effects of a previous statute or
3. Those the ,Benunciation of which woul~:Linfringe portions lhereol (STA. MARIA, supra at 11 ).
r -<
upon public policy (CIVIL OODE, Art. 6); and .
4. Natural rights, such as the right to life (:Id. at 40-
41 ). ·-
1. Exp,ress 0 .
RIGHT -/OM ,whict:i 'is ,literally
declared by· a new law,
either in specific letms, as where particular laws
The power or privilege givento one perscin'a.nd>as . and provisions are named, identified, and
a rule, is demandable of another. It den6tes an declared to be ,repealed, or in general terms
interest_ or title in an object or property (Black'.s Law (Id.).:.·
Dictionary, p. 1558). ' ·
· 2. ~plied - · c
ELEMENTS OF RIGHTS: "- takes place when a new law contains
1. Active subject provisions contrary to or inconsistent with those
- one who is entitled to demand enforcement of of a former law without expressly repealing them
the right; and (STA. MARIA, supra at 11).

2. Passive subject REQUISITES OF AN IMPLIED REPEAL

- one who is duty-bound to suffer its enforcement
(RABUYA. supra at 18). · 2.
KINDS OF RIGHTS:
1. Political Rights
- those rights referring to the participation of
persons in the government of the State; and
2. Civil Rights
- include all others; they are further classified
into:
a. Rights of personality - cannot be waived;
b. Family: rights - cannot be waived; and
1. The laws cover the same subject matter; and
The latter is repugnant to the other (Agujetas v.
CA, GR. No. 106560, August 23, 1996).
NOTE: Implied repeals are not looked upon with
favor (US v. Palacio, G.R. No. 11002, January 17,
1916). If both statutes can stand together, there is
no repeal (Lichauco v. Apostol, G.R. No. 19628,
December 4, 1922). When statutes are in pari
materia, they should be construed together. A law
cannot be deemed repealed unless it is clearly
, manifested that the legislature so intended it (Lledo
v. L/edo, A.M. No. P-95-1167 (Resolution),
February 9, 2010).
 MEM:O~v At o
San Seda University Colege ot uiw • RGCT Bar Operations Center
A repealing clause in an Act which provides that "all
laws and parts thereof inconsistent with the
provisions of this Act are hereby repealed or
modified accordingly" is certainly not an express
repealing clause because it fails to identify or
designate the Act or Acts that are intended to be
repealed. Rather, it is a clause which predicates the
intended repeal upon the condition that substantial
conflict must be foundin existing and prior acts (Jloilo
PAIAy anrl r:nm P/Anters Assnr.iation,
Feliciano, G.R No. L-24022, March 3, 1965).
RULE IN CASE OF CONFLICT BETWEEN
A GENERAL LAW AND A SPECIAL LAW
1. If the general law was enacted ·PRIOR to the
special law, the latter is considered the
exception to the general law ( 1 PARAS, supra at
47).
2. If the general law was enacted AFTER the
special law, the special law remains, unless:
a. There is an express declaration to the
·contrary; or
b. There is a clear, necessary, and
irreconcilable conflict; or
c. The subsequent general law covers the
whole subject and is clearly intended to
replace the special law on the m_atter (Ibid).
EFFECT · IF THE REPEAL~_NG
ITSELF REPEALED
1. When a law which expressly repeals a prior law
is itself repealed, the law first repeale<:l shall not
be thereby revived, unless expressly so
provided.
Example: Law A is expressly repeated by Law
B. If Law B is itself repealed by Law C, _Law Ais
not revived, unless Law C expressly so
provides. ·
2. When a law which impliedly repeals a prior law
is itself repealed, the prior law shall thereby be
revived unless the language of the repealing
statute provides otherwise.
Example: Law A is impliedly repealed by Law
B. Law B is later repealed by Law C. Law A is
revived unless Law C provides otherwise (Id. at
49).
UNCONSTITUTIONAL STATUTES
The Constitution is the supreme, organic, and
fundamental law of the land. It is axiomatic that no
ordinary statute can override a constitutional
provision (Floresca v. Phi/ex Mining Corp., G.R. No.
L-30642, April 30, 1985).
The constitutionality of a law or administrative order
may not be collaterally attacked, and they shall be
deemed valid unless declared null and void by a
competent court (NAWASA v. Reyes, G.R. No. L-
28597, February 29, 1968).
OPERATIVE FACT DOCTRINE
Before an act is declared unconstitutional, it is an
"operative fact" which can be the source of rights and
Inc. v. duties (R/\BUY/\, supra at 26). The actual existence
of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may
have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial
declaration (De Agbayani v. PNB, G.R. No. L-
23127, April 29, 1971). In short, it nullifies the void
law or executive act but sustains its effects.
Thus, a legislative or executive act, prior to its being
declared as unconstitutional by the courts, is valid
and must be complied with (Chavez v. NHA, G.R.
No. 164527, August 15, 2007).
·RULES AND REGULATIONS,
EXECUTLVE AND ADMINISTRATIVE
Atfrs:r,-;-;7:.--
Rules and ·regulations when promulgated in
pursuance pUh.e procedure or authority conferred
upon the aurriinistrative agency by law, partake of
LAW IS the nature of a sanction provided in the law. These
regulatiobs mµst be, in harmony with the provisions
oftheJl:l)o/ct$li9-¥ARIA, supra at 13°14).
t1i.i· ~-•.-:''-'.;"~ 1
:y; ;/t{~,!JpICIAL DECISIONS
·poRM PART OF LEGAL
SYSTEM OR DOCTRINE
OF STARE DECISIS
(ART. 8)
Judicial decisions applying or interpreting the laws or
the Constitution shall form part of the legal system of
the Philippines {CIVIL CODE, Art. 8). ·
STARE DEC/SIS ET NON QUJETA
MOVERE
"To adhere to precedents, and not to unsettle things
which are established" (Ta/a Realty ServicesCorp.,
Inc. v. Banco Filipino Savings & Mortgage Bank,
G.R. No. 181369, June 22, 2016).
 ( <~ /:· ~. ~ : '
56 . ,: · ·.
.~ ,, ,
.1 1\ ~ ' ~'
DOCTRINE OF STARE DEC/SIS
When the Supreme Court has once laid down a
principle of law as applicable to a certain state of
facts, it will adhere to that principle, and apply it to all
future cases, where facts are substantially the
same; regardless of whether the parties and
property are the same (Light Rail Transit Authority
v. Pili, G.R. No. 202047, June 8, 2016).
The Doctrine of Stare Decisis is one of policies
grounded on the necessity for securing certainty
and stability of judicial decisions (Ta/a Realty
Services Corp., Inc. v. Banco Filipino Savings &
. Mortgage Bank, supra).
NOTE: The law of the case doctrine has been
defined as the opinion delivered on a former appeal.
It means that whatever is once irrevocably
established as the controlling legal rule or decision
between the same parties in the same_ ,,yase
continues to be the law of the case, whether correct
on general principles or not, so long as the fact~ on ·
which such decision was predicated continue to be
the facts of the case before the court. (De)..a Salle
University v. De La Salle University EmploytJes.
Association - NAFTEU, GR. Nb. 169254, Allgust 23,
2012). . April 18) 2012).'
LEGAL EFFECTS . OF:
DECISIONS
1.- No publication require~ (De Roy v. '0A, G.R.
No. 80718, January 29,~1988); .•. · '
2. Conclusive and binding ·betweefi'] parties ~fter
the lapse of appeal perlbd (City, of Cebu v.
Apolonia M. Dedamo, G.R. Np. 172852, January.•
30, 2013); and · by re_ason otthe .silence, obscurity or insufficiency of
3. Bind all future cases with identical, fac~s., µntil
reversed by SC (De Mesa v. Pepsi ColaProduct
Phils. Inc., G.R. Nos. 153063-70, Augus{19;
2005 citing Kilosbayan, Inc. et al. v. Morato, G. R.
No. 118910, July 17, 1995).
Judicial decisions, although in themselves are not
laws, constitute- evidence of what the laws mean
(People v. Licera, G.R. No. L-39990, July 22, 1975).
The application or interpretation placed by the Court
upon a law is part of the law as of the date of
enactment of said law because the Supreme Court's
interpretation merely establishes the
contemporaneous legislative intent that the
construed law purports to carry into effect (People
v. Licera, supra).
NOTE: Only the decisions of the Supreme Court
establish jurisprudence or doctrines in this
jurisdiction (Vda. de Miranda v. Imperial, G.R. No. L-
PERSONS AN't> FAMILY RELATIONS
· · Civil Law
49090, February 28, 1947).
NO RETROACTIVE EFFECT
When a doctrine of the Supreme Court is overruled
and a different view is adopted, the new doctrine
should be applied prospectively and should not
prejudice parties who relied on the old doctrine
(People v. Jabinal, G.R. No. L-30061, February 27,
1974).
HOW JUDICIAL DECISIONS MAY BE
ABROGATED
1. By contrary ruling of the Supreme Court itself;
and
2. By corrective legislative acts of Congress,
although said laws cannot adversely affect those
favored prior to Supreme Court decisions (1
PARAS, supra at 69).
ADMlNISTRATIVE DECISIONS
Althou'gh,· it js recognized that judicial decisions
. ap'ply\ng or in.ti:irpreting statutes_ are part of the legal
sysfemofthe;country, such level of recognition is not
· ·· afforded to' administrative decisions (International
Management Services v. Logarta, G.R. No. 163657,
JLIDICIAL
I I
-~DlJ'lY·OF JUDGES
(Af,lT. 9)
l\lo judge or court shall decline to render judgment
the.laws (C1VJ!- CODE, Art. 9).
;'-' _..,.-S,
'f'
6lJTY 6F JUDGES
Judges must · not evade performance of this
responsibility just because of an apparent non-
existence of any law governing a particular legal
dispute or because the law involved is vague or
inadequate (STA.MARIA, supra at 16).
NOTE: Whenever a court has knowledge of any act
which it may deem proper to repress and which is
not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive,
through the Department of Justice, the reasons
which induce the court to believe that said_ act should
be made the subject of penal legislation(REVISED
PENAL CODE, Art. 5, par. 1).
In the same way, the court shall submit to the Chief
Executive, through the Department of Justice, such
statement as may be deemed proper, withol!t
suspending the execution of the sentence, when a
 \ I

MEM✓Q~Y AID
Sen Beda Unhlefslly College of Law - RGCT Sar Operations Coote,

strict enforcement of the provisions of the Revised The law requires that "a custom must be proved as
Penal Code would result in the imposition of a clearly a fact, according to the rules of evidence· (Article 12,
excessive penalty, taking into consideration the Civil Code} On this score the Court had occa::;iuri lu
degree of malice and the injury caused by the state that "a local custom as a sourceofnght cannot
offense (REVISED PENAL CODE, Art. 5, par. 2). be considered l;>y a court of justice unless such
custom is properly established by competent
IF THE LAW IS SILENT, OBSCURE, OR evidence like any other fact. The same evidence, if
INSUFFICIENT, A JUDGE MAY BASE HIS not one of a higher degree, should be required of a
foreign custom (Yao Kee v. Sy- Gonzales, G.R. No.
JUDGMENT ON ANY OF THE 55960, November 24, 1988).
FOLLOWING: (CD~0SP)
1. ~ustoms which are not contrary to law, public GENERAL RULE: Customs must be proved as a
order, or public policy (CIVIL CODE, Art. 11); fact according to the rules of evidence (In the Matter
2. .Qecisions of foreign and local courts on similar of the Petition for Authority to Conunue use of the
cases; Firm name uozaeta, Romu/o, etc.ff, G.R. No. X92-1,
3. Qpinions of highly qualified writers July 30, 1979).
and professors;
4. Rules of .§.tatutory construction; and EXCEPTION: If there is already a decision
5. ~rinciples laid down in analogous instances (1 rendered by the same court recognizing the
PARAS, supra at 83). custom, it becomes an official act of the
judicial department which courts may take judicial
JUDICIAL LEGISLATION notice (RULES OF COURT, RULE 129, Sec. 2).
The judrciary is tasked with resolving le~:( ·.··.·.
controversies and interpreting statutes. Tlj REQUISITES TO MAKE A CUSTOM AN
judiciary cannot legislate. However, even f~ , GA"J; -,RY RULE (POPTUN)
legislator himself, through Article 9 of the Civil q_gde,Vj;f
repetition of acts;
recognizes that in certain instances, the C9Hrtl'inust \Y
unity accepts it as a proper way of
legislate" to fill in the gaps in the law, ~use the,;:L,;
;, that it is considered .as Qbligatory
mind of the legislator is finite and theref9r~ cannot;?!· . 'i.
envisage all possible causes to whichifie l~wfnay 3. /lpe great mass of the social group;
apply. {STA. MARIA, supra at 17)1 ,,/''' •tih, 4. pr' tice for a long period of !ime
t 38-39);
5. tity of acts or various solutions
to the J question; and
DOUBT IN THl~;i 1
' The practice must ~ot be contrary to law,
.INTERPRETATIO~ ~ als, or public order {RABUYA, supra at 37).

APPLICATION OF UAWS'tt
(ART. 10) ,;,~\t:>,v~' ,,
RULE ON PERIODS
(ART.13)
In case of doubt in the interpretation or application of
laws, it is presumed that the lawmaking body
intended right and justice to prevail (Article 10, Civil
RULE ON PERIODS
Code).
1. Year
-12 calendar months (E.0. 292 (1987),Book
I, Sec.31).
CUSTOMS NOTE: Art.13 has been superseded by E.O. No.
(ARTS. 11 AND 12) 292 or the Revised Administrative Code of 1987.
Calendar momth is "a month designatedin the
calendar without regard to the number of days it
may contain" (CIR v. Primetown Property
CUSTOMS Group, Inc., G.R. No. 162155, August 28, 2007).
Rules of conduct formed by repetition of acts
uniformly observed as a social rule. They are legally
binding and obligatory (STA. MARIA, supra at 18)
 "'·
,
.
" ,?i,::, ~-:: ,
.
- ' ... .
PERSONS AND FAMILY RELATIONS
}

,58 ..
Civil Law
l ' )C

2. Month 2. LAWS RELATING TO FAMILY RIGHTS AND

- 30 days, unless month is identified; DUTIES, OR TO THE STATUS, CONDITION
If months are designated by their name, they AND LEGAL CAPACITY OF PERSONS:
shall be 'computed by the number of days which Nationality rule applies to citizens of the
they respectively have (CIVIL CODE, Art. 13). Philippines even though living abroad (CIVIL
CODE, Art. 15).
3. Day
- 24 hours; RULES ON PERSONAL LAW:
a. Domiciliary Rule
4. Night - The basis for determining personal law of an
- Sunset to sunrise; individual is his domicile.
5. Calendar week
b. Nationality Rule
- Sunday to Saturday; - The basis for determining personal law is his
citizenship (RABUYA, supra at 42).
6. Week
- Count 7 days as indicated, notnecessarily
Thus, a Filipino spouse cannot obtain a valid divorce
Sunday to Saturday.
abroad because his or her capacity and status are
governed by Philippines Laws.
NOTE: To count the period, _Eirst day is .!;_xcluded,
!:,ast day is_lncluded (FELi) (CIVIL CODE, Art. 13).
EXCEPTION: Divorce validly obtained abroad by
alien spouse capacitating him or her to remarry;the
EXCEPTION: Rule does NOT apply to the
· Filipino spouse shall have capacity to remarry under
computation of age; each year is counted based on Philippine law (FAMILY CODE, Art. 26, par. 2, as
birth anniversary (Garvida v Sales, GR. No. 124893, amended by E.O; 227
April 18, 1997). .
(1987)).·

POLICY IF THE LAST PAY IS A SUNDAY
OR A LEGAL HOLIDAY
1. The last day will automatically be considered the
next working day, if the .act to be performed
within the period is prescribed or ailowed by:
a. the Rules of Court;
b. an order of the court; or
c. any other applicable statute; .. and
2. If the act to be performed within the periodarises
from a contractual relationship, the act will
become due despite the fact that the last clay
falls on a Sunday or Holiday (1 PARAS, supra at
96).
PROVISIONS ON
CONFLICT OF LAW
(ARTS. 14-18)
1. PENAL LAWS AND LAWS OF PUBLIC
SECURITY:
Territoriality rule governs regardless of the
nationality but subject to principles of
international law and to treaty stipulahbns (CIVIL
CODE, Art. 14).
Likewise, a Filipino citizen who initiated a divorce
proceeding abroad; has the capacity to remarry
under Philippine law, after obtaining a favorable
judgment against n'is or her alien spouse who is
capacitated to remarry (Republicv. Manalo, G.R. No.
221029, April 24, '2018).
3. LAWS ON PROPERTY (REAL AND
PERSONAL)
.LEX REI S/TAE: The law of the country where the
property is situated shall govern the property (CIVIL
CODE, Art. 16, par. 1).
EXCEPTION: Intestate and testamentary
succession particularly (CIAO)
a. fapacity to succeed;
b. !ntrinsic validity of testamentary provisions;
c. ~mount of successional rights; and
d. Qrder of succession (CIVIL CODE, Art. 16,
par. 2).
Renvoi Doctrine
Literally means referring back (RABUYA, supra at
52); Occurs when a citizen of another country dies
as a domiciliary of another country. Where the
conflict rules of the forum refer to a foreign law, and
the latter refers it back to the internal law, the law of
the forum shall apply (In Re: Testate Estate of
Edward E. Christensen, G.R. No. L-16749, January
31, 1963).
 I
&eaiW \ /

MEM:\~\RY Al D
San Bada University College of Law - RGCT Bar Operations Center

Transmission Theory
If the foreign law refers it to a third country, the said
country's law shali govern (SEMPIO-DIY, Conflicts
Family rights Real and Forms and
of Law (2004), p. 62) [hereinafter SEMP/O-DIYJ).
and duties, personal solemnities
status, property (extrinsic validity)
Doctrine of Processual Presumption
condition, and
If the foreign law is not properly alleged and proved,
legal capacity
the presumption is that it is the same as our law f DI-
ofpersons
Staff Builders Int'/, Inc. v. NLRC, G.R. No. 145587,
Oct. 26, 2007).
RULE ON PROHIBITIVE LAWS
4. LAWS ON FORMS AND SOLEMNITIES GENERAL RULE: Prohibitive laws concerning
persons, their acts or property, and those which
Lex Loci Ce/ebrationis have for their object public order, public policy or
Forms and solemnities of contracts, wills, and other good customs are not rendered ineffective by laws
public instruments (extrinsic validity) shall be or judgments promulgated or by determinations or
governed by the laws of the country in which they conventions agreed upon in a foreign country (CIVIL
are executed (CIVIL CODE, Art. 17). CODE, Art. '17, par. 3).

EXCEPTION: EXCEPTION: Art. 26, par. 2 of the Family Code

a. Acts executed before diplomatic or consular (Divorce obtained abroad between an alien and a
officials. Filipino)

Intrinsic Validity of Contracts

Validity is determined by the following rules:
i. The law stipulated by the parties shall be
applied;
ii. In default thereof, and the parties are ofthe same
nationality, their national lawshall tie.applied;
iii. If the parties are not of the same nationalities,
the law of.the place of the perfection of the
obligation shall govern its fulfillment; or
iv. If the above places are not -specified and they
cannot be deduced from the nature and
circumstances of the obligation, then thelaw of
the passivesubject shall apply (1 TOLENTINO,
_supra at 57).
LEX NA TIONAL/1 V. LEX REI SITAE V.
LEX LOCI CELEBRA T/ON/S '
SUPPLETORY APPUCA TION
In matters .which are gpverned by the Code of
C}:imltierce::~ttd
special laws, their deficiency shall
be supplied ,by the provisions of this Code (CIVIL
CODE, Art.. 1~).
'
,HUMAN RELATIONS
. . •,<:;;}(i'.RTS. 19-21)
Aab's't:oF RIGHT (CIVIL CODE, ART 19)
The principle of abuse of rights departs from the
classical theory that "he who uses a right injures no
one." The modern tendency is to depart from the
classical and traditional theory, and to grant
indemnity for damages in cases where there is an
abuse of rights, even when the act is not illicit
(RABUYA, supra at 66 & 67).

NOTE: Abuse of rights is actionable. This is based

Citizenship Where Where the contract on the famous maxim suum jus summa injuria (the
the wasexecuted abuse of a right is the greatest possible wrong).
property (JURADO, Civil Law Reviewer (2019), p. 34)
is situated [hereinafter JURADO, Civil Law Reviewer]).

THE FOLLOWING ELEMENTS MUST

CONCUR: (LEP)
1. Existence of a !:,egal right or duty;
2. Which is Exercised in bad faith;
3. For the sole intent of _Erejudicing or inJunng
another (Padillo v. Rural Bank of Nabunturan,
Inc., GR. No. 199338, January21, 2013).c
 " ~ ,1~ ').~, ~ / ~ ~~ - ' ,
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". PERSONS AND FAMILY RELATIONS

' Civil.Law
: ~t ~/ 't, ~ ' < : '

EXERCISE OF RIGHTS 011e cannot seek specific performance to compel

The exercise of a right must be in accordance with marriage.
the purpose for which it was established and must
not be excessive or unduly harsh; there must be no BREACH OF PROMISE TO MARRY,
intention to harm another (Ardiente v. Sps. WHEN ACTIONABLE
Pastorfide, G.R. No. 161921, July 17, 2013). There must be another act independent of the
breach of promise to marry which gives rise to
DOCTRINE OF VOLENTI NON FIT liability as where there was fraud or deceit, financial
INJURIA (TO WHICH A PERSON damage, social humiliation, and moral seduction
ASSENTS IS NOT ESTEEMED IN LAW (RABUYA, supra at 74 and 75).
AS INJURY) Examples of Actionable Breach of Promise to
It refers to self-inflicted injuries or to the consent to Marry:
injury which precludes the recovery of damages by 1. Mere breach of promise to marry is not an
one who has knowingly and voluntarily exposed actionable wrong. However, to formally set a
himself to, danger, even if he is not negligent in doing wedding and go through all the preparations
so (Pantaleon v. American Express International, and publicity, only to walk out of it when the
Inc., G.R No. 174269 (Resolution), August 25, matrimony is about to be solemnized, is
2010).
palpably and unjustifiably contrary to good
.,,,,,,_customs for which defendant must be held
DAMNUlil ABSQUE INJURIA ( :a~v('e(~ble in damages pursuant to Art. 21
WITHOUT INJURY) ~;,,,,_,.,,,""'''''·""''••••,,,. ' ttje"G1vi! Code (Wassmer v. Velez, G.R.
A person who exercises his legal r "[: ?(JOf½t, December 26, 1964).
However, it cannot be said that "'""' w •. -1- •,, · ,,_
a right when he unnecessarily . ~s . •g,
;H~r;\:; ,ct·tiah\,
promise to marry was the
offends morals or good cu j' : e,s prmqmate;, dau~e '[,of giving herself unto him in
result from a person's exerci~ ';J~8_,;17';;;!};_ _ . --~~)_(~al co~tt3~slah,d there is that proof he had
· absque injuria (ABS-CBN vi· v,1 "-'8v:2v, .. ,,po i1tent!o1o,L~nying her, the promise being
January 21, 1999). l- _\.,. •:•'a dEfeept1vetdev1ce,f damages may be awarded
I _. purtppnt to f,.tt:''21 it
the Civil Code because of
ACTS CONTRARY T Jbef fraµt:l a~d d~ciit behind it and the willful
Every person who, contr • \aw,'-~ _&J.ly or f!) . ·. i,Plyiy-J6 hfrh<?flgt- and reputation (Baksh v.
negligenlllly causes damag¢•/, to -~notnet;: "1>,halr L ->,;()oµi/"of Appeals; $.R. No. 97336, February19,
indemnify the 1atter for the smre (C/tl; L -~rt,, j coi;JE,, ,,.,.>:<:;,~i}j3). l' /
20). \. \! ···•t. '•·•,.,,1.,,:"' .11/"·\,,., ,l l
\ ---:~.>,;Wh~ the m'1tf forcibly abducted a woman and
ACTS CONTRA BO,ii § cafJli;d -~t'\owledge with her against her will,
(AGAINST GOOD MORALS) , , •t.~~i;-~er promised to marry her in order to
&l;pE!'"criminal liability, only to thereafterrenege
Any p'erson who willfully causes loss O ifuch promise after cohabiting with her for 21
another in a_manner that is contrary to morals g15mt,,,,,.,,,w""'"'w"'"'W" days, such acts irremissibly constitute acts
customs or public policy shall compensate th e latter contrary to morals and good customs (Burlag v.
for the damage (CIVIL CODE, Art. 21). CA, G.R. No. 101749, July 10, 1992).

ELEMENTS: {LCD)
1. Act which is !.egal;
MALICIOUS PROSECUTION
2. The act is ~trary to morals, good customs, An action for damages brought by one against whom
public order or public policy; and a criminal prosecution, civil suit or other legal
3. The act is !!one with intent to injure (Mendoza proceeding has been instituted maliciously and
v. Spouses Gonez, G.R. No. 160110, June 18, without probable cause, after the termination of such
20141). pro$ecution, suit, or other proceeding in favor of the
NOTE: Damages are recoverable even if no defendant therein (Diaz v. Davao Light and Power
positiive law was violated (DE LEON, Torts and Co., Inc., G.R. No. 160959, April 4, 2007).
Damages,, supra at 361).
BASIS OF ACTION
BREACH OF PROMISE TO MARRY, An action for damages arising from malicious
prosecution is anchored on the provisions of Arts.
GENERALLY NOT ACTIONABLE
21, 2217, and 2219(8) of the New Civil Code. One
It is not by ilself an actionable wrong (Hermosisima cannot be held liable in damages for maliciously
v. CA, G.R. No. L-14628, September 30, 1960). instituting a prosecution where he acted with
 \ I

MEM:Q~YAID
San Seda University College of Law - RGCT Bar Operations Center

probable cause. Malice and want of probable cause ACCION IN REM VERSO V. SOLUT/O
must both exist in order to justify a suit for malicious
INDEB/Tl
prosecution (RABUYA, supra at 79).

REQUISITES:
1. The fact of prosecution and the further fact
that the defendant (respondent) was himself It is not necessary that Payment made by
the prosecutor, and that the action finally the payment was made mistake is an essential
terminated with an acquittal; by mistake; payment element to maintain the
2. That in bringing the action, the prosecutor could have been made action for recovery.
acted without probable cause; and knowingly and
3. That the prosecutor was actuated or voluntarily.
impelledby legal malice, that is, by improper Nevertheless, there
or sinister motive (Diaz v. Davao Light and would be recovery of
Power Co., Inc., G.R. No.160959, April 4, what has been paid.
2007). (1 TOLENTINO, supra at 83-84).
NOTE: Arts. 19, 20 and 21 are related to one REQUISITES: (JELACI)
another and under these articles, an act which 1. Enrichment is without Just or legal ground;
causes injury to another may be made the basis for 2. Defendant has been _snriched;
an award of damages. Arts. 19 and 21 refer to 3. Plaintiff has suffered boss;
intentional acts while Art. 20 pertains either to 4. He has no other ~ction based on contract,
willful or negligent acts, which must be contrary to quasi-contract, crime or quasi-delict (Id. at 76).
,:,.,
law (Sesbreflo v. Court of Appeals, G. R. No. ,;,, 5. There must be a fausal relation between the
160689, March 26, 2014). · ·">'h/
...· .. two· and
i:~;:.\6\~'jJf,b~.)ni~nity cannot exceed the loss or
\t eritidt!m~ht, whichever is less ( 1 PARAS, supra
· at 148). /''
PRINCIPLE Of UN..f;(JST
ENRICHMENT', Even when an {!Ct or event causing damage to
another's' prqperty was not due to the fault or
(ART. 2z"tf. neglige(:lCe oqhe cfEtfendant, the latter shall be liable
ri!~'lr· for ilia.·. · ·)~l};l.f91Jgh the act or event he was
beneftte b;tCODE, Art. 23).

MEMO CUM ALTER/US DETER J,<tqra more comprehensive discussion of Arts. 19-
DETREMENTO PROTEST .· ::\\\~;i~~~.s~ see discussion thereof under Torts and
,,
1
tiifiniigd-§:·
No person should unjustly enrich himself at the
expense of another (Frenzel v. Catito;'c .6.R.,, No.
143958, July 11, 2003).

ACCION IN REM VERSO PREJUDICIAL

If a person acquires or comes into possession of
something at the expense of another without just or
legal ground through an act or performance by
another or any other means has the obligation to
return the same. It is ari action for recovery of what
has been paid without just cause (RABUYA, supra
at 80).
Application:
1. When a thing is acquired by or comes into
possession of another {delivery or acquisition of
things); and
2. The acquisition be undue and at the expense of
another, (without just or legal ground).
QUESTION
(ART. 36)
PREJUDICIAL QUESTION
Arises where the resolution of a case is dependent
on the resolution of an issue involved in another
case and assumed by a different tribunal. The rssue
involved in the latter case is the logical antecedent
of the issue involved in the former case. (Sps.
Gaditano v. San Miguel Corp., G.R. No. 188767,
July 24, 2013).
 .'
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GENERAL RULE: If both criminal and civil cases
arising from the same facts ore filed in court, the
criminal case takes precedence.
EXCEPTIONS:
1. PREJUDICIAL QUESTIONS
The prejudicial question must be determinative
of the case before the court, but the jurisdiction
to try and resolve the question must be lodged
in another court or tribunal (Ching v. Court of
Appeals, GR. No. 110844, April 27, 2000).
Elements:
a. The previously instihitP.rl civil action
involves an issue similar or intimatelyrelated
to the issue raised in the subsequent
criminal action; and
b. The resolution of such issue determines
whether or not the criminal action may
proceed. (RULES OF COURT, RULE 111 1
Sec. 7).
It generally comes into play in a sihJation where
a civil action and a crimina.1 action are both
pending and there exists in the former an issue
which must be preemptively resolv~ befoi-ethe
latter may proceed, bedause howso,ever the
issue raised in the civil action is resolved would
be determinative juris et de Jure of the guilt or
innocence of the accused in the criminal case
(Sps. Gaditano v. San Migueb Corp., G.R. No.
188767, July 24, 2013). . . at 166}.
NOTE: The rule authorizes only)he suiipension
of the criminal action arid not its dismissal by
reason of a prejudicial qwestion (RULfS OF
COURT, RULE 111, Sec. 6).
Where to File Petition to Suspend ·
A petition for suspension of the chmirral action
based upon the pendency of a · prejudicial
question in a civil action may be filed in the office
of the prosecutor of the court conducting the
preliminary investigation. When the criminal
action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal
action at any time before the prosecution rests
(RULES OF COURT, RULE 111, Sec. 6).
NOTE: There is no prejudicial question where
one case is administrative and the other is civil
(Te v. Court of Appeals, G.R. No. ·f 267 46,
Novem/Je1 29, 2000).
2. INDEPENDENT CIVIL ACTIONS
GRANTED BY LAW: ~0-RQ)
a. Breach of ~onstitutional and other rights
(CIVIL CODE, Art. 32);
b. Qefamation, fraud, physical injuries (CIVIL
CODE, Art. 33);
Civil law
c. Refusal or failure of city or municipal police
to give protection (CIVIL CODE, Art. 34);
and
d. Quasi-delict or culpa-aqui/iana (CIVIL
CODE, Art. 2177).
Criminal Prosecution Does Not Constitute
Prejudicial Question to Administrative
Proceeding for Disbarment or Suspension of a
Lawyer
A criminal prosecution will not constitute a prejudicial
question even if .the same facts and circumstances
are attendant in the administrative proceedings for
the disbarment or suspension of a member of the bar
because administrative cases against lawyers
belong to a class of their own. Theyare distinct from
and they may proceed independently of civil and
criminal cases (Wilson Po Cham v. Pizarro, A.G. No.
.
5499, August 16, 2005).
.,
CIVIL PERSONALITY
(ART. 37)
CIVIL PERS()N,AUTY
It is the aptituqe of being the subject, active or
passive, of rights and, obligations (ALBANO, supra
PERSON
Any being, natural or,artificial, capable of possessing
legalrights and obligations (1 PARAS, supra at 221 ).
A .per~on 'is a,ny being susceptible of rights and
oblig~Uons or more specifically, it is every physical
or moral, real or juridical and legal being susceptible
of rights and obligations or being the subject of legal
relations (RABUYA, supra at 128).
NOTE: Estate of a decedent is considered by law as
a person. Hence, a forgery committed after the
death of a man whose name purports to be signed
to the instrument may be prosecuted as with intent
to defraud the estate (Limjoco v. Estate of Pedro
Fragente, G.R. No. L,770, /\pril 27, 1948).
TWO KINDS OF PERSONS
1. Natural persons
- human 1Jei11ys c1e8l8d byGod through the
intervention of parents; and
2. Juridical persons
- those created by law (1 PARAS, supra at
221).
 ME M✓O~Y Al D
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San Bed~ University Ccllege of Low - RGCT Bar Operations Center

JURIDICAL CAPACITY V. circumstances where those that are expressly

CAPACITY TO ACT the capacity to act is conferred upon them or
restrained. those which can be
implied therefrom · or
inr.iciP.nt;:il thP.rnto

RESTRICTIONS ON CAPACITY TO ACT:

(MFD-PC)
1. Minority;
Minority does not exempt the minor from certain
obligations. If he does an act without theconsent
of his parents or guardian, the contractis not
void but is merely voidable, that is valid until
annulled. In other words, it is not that a minor
has no capacity but that his capacity is restricted
(1 PARAS, supra at 223).

2. Insanity;

3. Imbecility;

4. State of being Qeaf mute;

Deaf mute may either be sane or insane.

5. .grodig.,llity;
'ttis'the st.3te of squandering money or property
with a morbid desire to prejudice the heirs of a
Lost only through Lost through death and person C(fyl~rtinez v. Martinez, G.R. No. 445,
death. restricted by other March 31, 19D2).
causes.
6. ~ivil' interdiction (CIVIL CODE, Art. 38; 1
PARA,S-.,_sppra at 237). ·
Can exist without Always \:,lXists with A perscin,jy~ostiffers civil interdiction is deprived
capacity to act. juridical capacity. of: (PGDM)
a. Having farental or marital authority.
(1 PARAS, supra at 222). ": b. ,Being the _Q_uardian of the person and
·.··:•· i 'property of a ward.
c. Qisposing of his property by an act inter
FULL/COMP,LETE CIVIL CAPACITY
vivas (he cannot donate, for this is an act
The union of the two kinds of capacity (Id. af'222). inter vivas; but he can make a will, for this
is a disposition mortis cause).
NOTE: A person is presumed to have capacity to act d. _Managing his own property (REVISED
(Standard Oil Co. v. Are.nas, G.R. No. 5921, July25, PENAL CODE, Art. 34; 1 PARAS, supra at
1911). 223)

THEORIE~ ON CAPACITY TO ACT NOTE: The penalty of civil interdiction is

given to a criminal pu11islleu uy
imprisonment for 12 years and 1 day or
more (REVIS£D PENAL CODE, Art. 41).

The same do not exempt the incapacitated

person from certain obligations as when the
latter arise from his acts or from property
relations such as eusornonts (CIVIL CODE,
Art. 3D).

This limits the power o

juridical persons only to
 / /';/ "/~,~~ '.~,.!'; "'~ c ' , ~ , '

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MODIFICATIONS/LIMITATIONS ON EXCEPTION: If the fetus had an intra-uterine life of

CAPACITY TO ACT: (IF-1-PAID-TAPA) less than 7 months, it is not deemed born if it dies
within 24 hours after its complete delivery from the
1. !nsanity; maternal womb (CIVIL CODE, Art. 41).
2. f.amily relations;
3. !mbecility; Illustration:
4. fenalty;
5. bge;
6. !nsolvency;
7. State of being Qeaf-mute; 7 months or more Alive upon complete
8. Irusteeship; (Ordinary) delivery - even if the child
9. blienage; dies within 24 hours
10. frodigality; and
Less than 7 months Alive upon complete
11. bbsence (CIVIL CODE, Art. 39).
(Extraordinary) delivery and at least 24
hours thereafter (1
PARAS, supra at 231 ).

NATURAL PERSONS
(ARTS. 40-43)
BEGINNING OF PERSONALITY
GENERAL RULE: Birth deter,mines personality
(actual personality) (CIVIL CODE, Art.AO)'. .
EXCEPTION: The civil personality qf
the child shall
commence from the time of its. conception, for all
purposes favorable to him,, $ubject to the
requirements of Art. 41 of the Civil Code (P.O. No.
603, Art. 5). This personality at;conceptiori is called
presumptive personality. · ··
The law considers the conceived child a·s bdrn Jor
all purposes favorable to it i(l;)orn aliv.e. Th~refore,
the child has a presumptive p~rsonality;.,which has
two characteristics: ' ·
1. Limited; and . · they diict·~@ the same time. There shall be no
2. Provisional or conditional (Quimiguing•v. /cao,
G.R. No. L-26795, July 31, 1970). ..
NOTE: The concept of provisional personality
CANNOT be invoked to obtain damages for and in
behalf of an aborted child (Geluz v. CA, G.R. No. L-
16439, July 20, 1961).
A conceived child is already entitled to support from
its progenitors (Quimiguing v. lcao, G.R. No. L-
26795, July 31, 1970) and can be acknowledged
even before it is born (De Jesus v. Syquia, G.R. No.
39110, November 28, 1933).
WHEN IS A CHILD CONSIDERED BORN
GENERAL RULE: For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mother's womb (CIVIL
CODE, Art. 41).
HOW CIVIL PERSONALITY IS
.. EXTINGUISHED
pvirpersonality is extinguished by death. The effect
/ot death, up.9n the rights and obligations of the
"cl~<::eased is~-·teenrmined by law, by contract and by
wiII ·rc1VI[ C(Jf)~Art. 42).
y "
~OTE: Civif ~ iction merely restricts, not
extinguishes;\~ ... ~ to act ( 1 PARAS, supra at
232). : \ ( f l \
•. . . ' ' 1 \ ~~~,,,4
NO PRESU~PTIQtJ OF SURVIVORSHIP
IN supc:t;S§IO'lrj I ..
· ,lfther;e i~q~ubt~tg.,wfiom, between.or amongtwo
or more'.p:ersor.,s ca~ef to succeed each other, d_ied
first: theXonotng rulei! shall apply:
t Whoeve,r' allegefthe death of one prior to the
· .•. other .shall prov, the same; and
· 2. lnJh'e a.bsenGl'ot proof, it shall be presumed that
.Jtat)sni(s~fon of rights from one another (CIVIL
· C.QDE, Art. 43).
NOTE: Art. 43 applies when the case involves two
ormore persons who are called to succeed each
other. But if the parties are not called to succeed
each other, Rule 131, Sec. 3 Ui) of the Rules of Court
applies. Both are to be applied only in the absence
of facts (1 PARAS, supra at 235).
PRESUMPTION OF SURVIVORSHIP IN
CASE TWO PERSONS WHO ARE NOT
CALLED TO SUCCEED DIED IN THE
SAME ACCIDENT:
That except for purposes of succession, when two
persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown
who di~d first. and there are no particular
circumstances from which it can be inferred, the
survivorship is determined from the probabilities
 Ei8i'Fi ' 1
MEM:v~Y AID
San Seda University College of Law • RGCT Bar Operations Cen1er
resulting from the strength and the age of thesexes,
according to the following rules:
1. <15 y.o. vs. <15 y.o. - the older;
2. >60 y.o. vs. >60 y.o. - the younger;
3. <15 y.o. vs. >60 y.o. - the younger;
4. Both > 15 y.o. and <60 y.o. - male if different
sexes; if the same, the older;
5. <15 y.o. or >60 y.o. vs. 15 y.o. to 60 y.o.- the
latter (RULES OF COURT, RULE 131, Sec. 3
(jj)). • By a contract of partnership, two or more persons
NOTE: 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, they
shall be considered to have died at the same
time (RULES OF COURT, RULE 131, Sec. 3
(kk)).
JURIDICAL PERSONS
(ARTS. 44-47)
JURIDICAL PERSON
A being of legal existence susceptible of rights and ·
obligations, or of being the subject· bf· juridical
relations (Roldan v. Philippine Veterans Board, G.R.
No. L-11973, June 30, 1959). · Partnerships ~nd associations for private interest or
THE FOLLOWING ARE_
PERSONS':
1. State and its political subdivisions (Public
Corporations);
NOTE: For a local government· unit, the
corporate existence shall commence upon the
election and qualification of its chief executive
and a majority of the members of its sanggunian,
unless some othe_r time is fixed therefor by the
law or ordinance creating it (LOCAL
GOVERNMENT CODE, Sec. 14).
2. Corporations for public interest (Quasi - Public
Corporations) - governed either by the
Corporation Code or their special charters
passed by the legislature;
For quasi-public corporations, their personality
begins as soon as they have been constituted
according to law.
3. Corporations, partnerships and associations for
private interest.
CORPORATIONS -
A corporation . is an artificial being created by
operation of law, having the right of succession and
the powers, attributes, and properties expressly
authorized by law or incid_ental to its existence
(REVISED CORPORATION CODE, Sec. 2).
PART(':,IBRSHIPS
bind themselves to contribute money, property or
industry to a common fund, with the intention of
dividing the profits among themselves; or for the
exercise of a profession (CIVIL CODE, Art. 1767).
Partnerships are governed by the contract between
partners and the provisions of the Civil Code on
Partnership.
NOTE: A sole proprietorship does not possess a
juridical personality separate and distinct from the
personality of the owner of the enterprise (Mendez
v. People, G.R. No. 179962, June 11, 2014).
RULES.GOVERNING JURIDICAL
PERSONS
,Jt:[fiqi.Ga! p~ijbnsmentioned in Nos. 1 and 2 are
go-vJrn&ct6\;':\6e laws creating or recognizing them.
;,
"
Private corpotatjons are regulated by laws of
general appliciltion on the subject.
purpo:ii~;~r : r;i;i~d:by the provisions of this Code
JURJOICAL, concernfng 'iships (CIVIL CODE, Art. 46).
RIGHTS OF JURIDICAL PERSONS
'. JiiWsf!<t9Pire and possess property of all kinds;
2. · · To inci.ir obligations; and
3. To bring civil or criminal actions (1 PARAS,supra
at241).
CITIZENSHIP AND
DOMICILE
(ARTS. 48)
CITIZENSHIP
It is the status of being a citizen, or of owing
allegiance to a state for the privilege of being under
its protection {Id. at 264).
NOTE: Article IV of the 1987 Philippine Constitution
enumerates the following citizens of the Philippines:
1. Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
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2. ThoE;o whoee fathers or mothers are citizens of RESIDENCE IN CIVIL LAW VS.
the Philippines; RESIDENCE IN POLITICAL LAW
3_ Those born before January 17, 1973, of Filipino
The term residence may mean one thing in civil law
mothers, who elect Philippine citizenship upon
and quite another thing in political law_
reaching the age of majority; and
4. Those who are naturalized in accordan-ce with
What stands clear is that insofar as the Civil Code
law.
is concerned - affecting the rights and obligations
of husband and wife - the term residence should
COMMON MODES OF ACQUIRING only be interpreted to mean "actual residence."
CITIZENSHIP (Romualdez-Marcos v. COMELEC, G.R. No_
1. By Birth 119976, September 18, 1995).
a. Jus sanguinis - citizenship by blood,
wherever he may be born; In election cases, the Court treats domicile and
b_ Jus soli - citizenship is determined by place residence as synonymous terms. Thus, the term
of birth; and 'residence' as used in the election law is
synonymous with 'domicile,' which imports not only
2. By Naturalization an intention to reside in a fixed place but also
- artificial means Uudicial or administrative) by personal presence in that place, coupled with
which a state adopts an alien and gives him conduct indicative of such intention.' 'Domicile'
imprint and endowment of a citizen of. thal ·denotes a fixed permanent residence to which when
country (ALBANO, supra at 183). · abserltor_business or pleasure, or for like reasons,
one intends to return (Romualdez v. Regional Trial
Court, G(R Ncl:-104960, September 14, 1993).
DOMICILE
For the exercise of civil rights and the,fulfillment of
civil obligations, the domicile ofnaturaf persons is
'ELEM,E:Nfs oiooMICILE: (Pl)
the place of their habitual re~idente ,(CIVIL CODE, 1. Phy~icar fresence in a fixed place;
Art. 50). . ' - 2. !nte~tion to rer,9 ir,i permanently Ln said place
(animus rt,anendi) (ROmualdez-Marcos v.
CONIELEC,'cG.f{ No. 119976, September 18,
RESIDENCE V. DOMICILE, 1995). ;, ,

KIND~ OF D,OMJGILE
t. DO:micile5bf origin
Indicates a place of Denotes a fixed -:- That apquired by every person at birth. It is
abode, whether perlT)anent residen~, usuallx_the plac~where thechild's parents reside
permanent or whictrwhen absen(one and continues,,tmtil the same is abandoned by
temporary. has the intenticJn ()f . "!lcquisltion __ of new ·domicile (Coquilla v.
returning_ Cqmm}s~ion on Elections, G.R. No. 151914,
, -Ji;ly31,'2002);

2. Domicile of choice
- That which is chosen by a person as his more
There can be several There can only be one
or less permanent home; that to which,
places of residence. place of domicile.
whenever he is absent, he intends to return (In
re: Uytengsu v. Republic, G.R. No. L-6379,
September 29, 1954); and

No length of residence It is residence coupled NOTE: Three basic rules on domicile of choice:
without intention of with intention to remain a. A man must have a domicile somewhere;
remaining will constitute for an unlimited time. b. Domicile, once established, remains until a
domicile. new one is validly acquired; and
(Romualdez-Marcos v. COMELEC, G.R. No. c. A man can have but one domicile at any
119976, September 18, 1995). given time ( Ugdoracion v. COMELEC, G.R.
No. 179851, April 18, 2008).

3. Domici?e by operation of law

(Constructive Domicile)
- That which the law attributes to a person
independently of his own intention or actual
 fMNlftl ' / ' ~ ' ;,, ) ,. ' '! : •./ ,~ :..c ' f

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San Booa University College of Law RC\CT Bar Operations Centsr ~' , i
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residence, ordinarily resulting from legal clauses. Here, the Supreme Court upheld the
domestic relations, as that of the wife arising constitutionality of the law, stating that R.A. 9262
from marriage, or the relationof a parent and a does not violate the guaranty of equal protection of
child (Ugdoracion v. COMELEC, G.R. No. the laws. It rests on substantial distinctions. The
179851, April 18, 2008). unequal power relationship between women and
men; the fact that women are more likely than men
REQUIREMENTS FOR THE to be victims of violence; and the widespread gender
ACQUISITION OF NEW DOMICILE bias and prejudice against women all make for real
···- differences justifying the classification under the law
1. Bodily presence in a new locality (Garcia v. Ori/on, G.R No. 179276).
- actual removal or actunl chnngc of domicile;

2. Intention to remain therein (animus manend1);

VIOLENCE AGAINST WOMEN AND
and THEIR CHILDREN (VAWC)
It refers to any act or a series of acts committed by
3. Intention to abandon the old domicile (animus any person against the following, within or without
non revertendt) (Romualdez v. RTC, Br. 7, the family abode, which result in or is likely to result
Tacloban City, GR. No. 104960, September14, in physical, sexual, psychological harm or suffering,
1993; Poe v. COMELEC, G.R. No. 221697, April or economic abuse including threats of such acts,
5, 2016). battery, assault, coercion, harassment or arbitrary
deprivation of liberty (R.A. No. 9262, Sec. 3(aJ):(W-
RULES IN DETERMINING THE WFRCorn~C)
DOMICILE OF JURIDICAL PERSONS:
1. A Woman -
1. Place of Incorporation (Fixed by the law creating a. Who is his Wife;
or recognizing them); .. b. Who is his Former wife;
2. Place where their legal representation . is'· ··/;.c./,.W,i~!j;~hom-the person has or hada sexual
established· · or where they exercis~ :their'
. ofdatlng Relationship;
principal functions (CIVIL CODE, Art. 51). d. With1 Whom he has a .Q.ommonchild; or
/ ; t.
If the corporation has a head office branch and Her ; Chi1°d whether legitimate or
offices, the domicile is the location of the headoffice illegitimate:t
(1 PARAS, supra at 366).

·'·•
~H~~p@E
RIGHTSAND ·,r,: 12'*:zFormer Husband·
OBLIGATIONS OF ;)fi~;tf{~{~/}\}'.~}?:·./ '
COUPLES IN INTIM¥\.TE ·. 3. Any person with whom the woman has
or hada sexual or dating relationship;
REIATIONSHIPS"· a. Dating Relationship
-- a situation wherein the parties live as
(REP. ACT NO. 9262) husband and wife without the benefit of
marriage or are romantically involved over
time and on a continuing basis during the
course of the relationship (R.A. No. 9262,
THE ANTI-VIOLENCE AGAINST WOMEN Sec. 3(e)).
AND THEIRCHILDREN ACT (MARCH 27,
2004) NOTE: A casual acquaintance or ordinary
socialization between two individuals ina
Not Violative of Equal Protection Clause business or social context is not a dating
Rosalie Jaype-Garcia, determined to separate from relationship.
her husband but fearing he would take her children
from her and deprive her of financial support, filed b. Sexual Relations
for herself and her children a Temporary Protection - a single sexual act which may or may
Order against her husband Jesus C. Garcia not result in the bearing of a common child
pursuant to the Anti-Violence Against Women and (R.A. No. 9262, Sec. 3(f)). ,
Children Act (R.A. No. 9262). Petitioner Jesus C.
Garcia raised the constitutionality of R.A. No. 9262 NOTE: There is no qualification as to the
for being violative of the equal protection and due sex of the partner in the use of "any person".
,, '-~ ~ ~~~~ \· t \.. < ::; : ~ ' " , , ,, .. ,,
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Hence, it is possible for a woman in a
relationship with another woman to be
charged of violating VAWC Law.
4. Any person with whom the woman has a
common child; or
5. Any person committing the acts or
series of acts of violence against her
child, whether legitimate or illegitimate_
Children - those below eighteen (18) years of
age or older but are incapable of taking care of
themselves as defined under Republic Act No.
7610, including the biological children · of the
victim or other children in her care.
KINDS OF VIOLENCE UNDER VAWC
1. Physical violence
- acts that include bodily orphysical harm;
2. ·Sexual Violence
- act which is sexual in nature,. co.nimi(ted·
against a woman or her child; 'including bofnot
limited to: · ''''AGTSOF,V1b,LENCE AGAINST WOMEN
a. Rape, sexual harassrn~nt, acts of
lasciviousness. treatipg a Vvoman or her
child as a sex object, making demeaning
..:md sexually suggcttlVb rbfnmks, H)hyt.lually
attacking the sex4al _parts of the, victim's.
body, forcing her/hirn to: watch obscene
publications and ind~cent '{;hows or. forcing
the woman or her chftd to' do indecent-acts
and/or make films thereof, f◊rcing "thi Wife
and mistress/lover to !ive in 'tj:Je conj[Jg;;i1 ·
home or sle·ep together in the same' ro'om
with the abuser; . ·" ...·. . ,, ·
b. Acts causing or attempting Jo:caclse
victim to engage in any sexual· activity by
force, threat of force, physical or otHer hqrm
or threat of physical or other harm
coercion;
c. Prostituting the woman or her child.
3. Psychological Violence
- acts or omissions causing or likely to cause
mental or emotional suffering of the victim (i.e.
intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity}, including:
a. Causing or allowing the victim to witness the
physical, sexual or psychologicalabuse of a
member of the family to which the victim
belongs,
b. Causing or allowing the victim to witness
pornography in · any form or to witness
abusive injury to pets or to unlawful or
unwanted deprivation of the right tocustody
PERSONS AND FAMILY RELATIONS
Civil Law
and/or visitation of common children.
4. Economic Abuse
- acts that make or attempt to make a woman
financially dependent which includes, but is not
limited to:
a. Withdrawal of financial support or
preventing the victim from engaging in any
legitimate profession, occupation, business
or activity, except In cases wherein the other
spouse/partner objectson valid, serious and
moral grounds as defined in Article 73 of the
Family Code;
b. Deprivation or threat of deprivation of
financial resources and the right to the use
and enjoyment of the conjugal, community
or property owned in common;
c. Destroying household property;
d. Controlling the victim's own money or
. properties or solely controlling the conjugal
money or properties (R.A. No. 9262, Sec.
Wa)J.'
AND THl:51R"CHIL,.DREN (R.A. NO. 9262,
SEC. 5) , . ·-
1. Causing phys1c_~I barm to the woman or her
'Chilq;
2. Thrijateningto ~;Jse the woman or her child
P}:iysiC$f harm;•.,
3/"Atterilpting to caQse the woman or her child
' · ·physica}'harm;
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-4. · Placi~g.Jhe,-iioman or her child in fear of
fh~· -· ·-· - ·"·'''irnmin~fi(pliysical harm;
;" ·,,_;\
')\ttethpting to compel or compelling the woman
or her child · to engage in conduct which the
woman or her child has the right to desist from
or desist from conduct which the woman or her
child has the right to engage in, or attempting to
restrict or restricting the woman's or her child's
freedom of movement or conduct by force or
threat of force, physical or other harm or threat
of physical or other harm, or intimidation
directed against the woman or child. This shall
include, but shall not be limited to, the following
acts committed with the purpose or effect of
t:u11lrulli11y ur re:;lricli11g the womcm':; or Iler
child's movement or conduct:
a. Threatening to deprive or actually depriving
the woman or her child of custody to her/his
family;
b. Depriving or threatening to deprive the
woman or her children of financial support
legally due her or her family, or deliberately
 Mi% \ I . -
MEM✓Q~Y AID
San Beda University College of Law - RGCT Bar Operations Center
providing the woman's children insufficient
financial support;
NOTE: In one case where a foreign national who
refused to support his minor child and claimed
he was not obliged to support said son
altogether under Art. 195 of the Civil Code as he
was not a Filipino citizen, the Supreme Court
held that the respondent foreign national was
criminally liable under Sec. 5(e)(2) of R.A. No.
9262 for his unjustified failure to support his
minor child when the respondent foreign
national failedto allege and prove the foreign law
applicable to him, thus allowing the doctrine of
processual presumption to govern. The Court
reiterated its earlier ruling where it stated that
when the foreign law, judgment or contract is
contrary to a sound and established public policy
of the forum, the said foreign law, judgment or
order shall not be applied (See Del Socorro v.
Van Wilsem, G.R. no. 193707, December 10,
2014).
c. Depriving or threatening to deprive th!'3
woman or her child of a legal right; and
d. Preventing the woman in engaging in any
legitimate profession, occupation, business • ·
or activity or controlling the victim's own
money or properties, or solely controlling the •
conjugal or common rrioney, or;prbpeftjes;
6. Inflicting or threatening to infli~t physi~ai ·harm
on oneself for the purpose ;of controlling h!:')r
actions or decisions; ·· .:
7. Causing or attempting to cause ,:th~ .:Vornan or
her child to engage in any sexual activity which
does not constitute rape, by force or threat of ,
force, physical harm, or through lntimidatio'n
directed against the woman or her child.or her
immediate family; ·
8. Engaging in purposeful, knowing, or reckless
conduct, personally or through another that
alarms or causes substantial emotional or
psychological distress to the woman or her child.
This shall include, but shall not be limited to the
following acts: '
a. Stalking or following the woman or her child
in public or private places;
b. Peering in the window or lingering outside
the residence of the woman or her child;
c. Entering or remaining in the dwelling or on
the property of the woman or her child
against her/his will;
d. Destroying the property and personal
belongings or inflicting harm to animals or
pets of the woman or her child; and
e. Engaging in any form of harassment or
violence;
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9. Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support
or custody of minor children of access to the
woman's child/children.
ELEMENTS OF PSYCHOLOGICAL
VIOl,..ENCE UNDER SECTION 5(1)
1. The offended party is a woman and/or herchild
or children;
2. The woman is either the wife or former wife of
the offender, or is a woman with whom the
offender has or had a sexual or dating
relationship, or is a woman with whom such
a
offender has common child.As for the woman's
child or children, they may be legitimate or
illegitimate, or living within or without the family
abode;
3. The offender causes on the womanand/or child
mental or emotional anguish; and
4. The anguish is caused through acts of public
ridicule or humiliation, repeated verbal and
, ,,emotion~ abuse, denial of financial support or
'Hicu_s.:tootiof minor children or access to the
childfo'r\ or:. similar such acts or omissions.
~~ f \,
To establist:i' psychological violence as an element of
the crim<3,:, it is, necessary to show proof of
commission of an9of the actsenumerated in Section
5 (i) or sfmilar suchacts. And to establish mental or
; _. emotib'rliji · '?'it' is necessary to present the
testimony · victim as such experiences are
personal to this party.
'~9]~::~*iJper the physical injuries suffered by the
v1clIm nor fhe actual physical violence done by the
perpetrator are necessary to prove the essential
elements of the crime as defined in Section 5 (i) of
RA 9262. The only exception is, as in the case at
bar, when the physical violence done by the accused
is alleged to have caused the mental and emotional
suffering; in which case, such acts of physical
violence must be proven. (Dinamling v. People, G.R.
No. 199522, June 22, 2015).
NOT MARITAL INFIDELITY PER SE
What R.A. No. 9262 criminalizes is not the marital
infidelity per se but the psychological violence
causing mental or emotional sufferingon the wife.
Otherwise stated, it is the violenceinflicted under the
said circumstances that the law seeks to outlaw.
Marital infidelity as cited in the law is only one of the
various acts by which psychological violence may be
committed (AAA v. BBB, G.R. No. 212448,January
11, 2018).
 '' ,; ":: ,: 'J <·,. _,; :_ J~'
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PRESCRIPTIVE PERIOD
1. Acts falling under Sections 5(a) to 5(f) -
within ~O years.
2. Acts falling under Sections 5(g) to 5(i) -
within10 years (R.A. No. 9262, Sec. 24).
PUBLIC CRIME
Violence against women and their children shall be
considered a public offense which may be
prosecuted upon the filing of a complaint by any
citizen having personal knowledge of the
circumstances involving the commission of the crime
(R.A. No. 9262, Sec. 24).
COOLING-OFF PERIOD DOES
APPLY
In cases of legal separation, where violence as
specified in R.A. 9262 is alleged, Art. 58 of the
Family Code on the 6 months cooling-off period _~,nail ·
not apply. The court shall proceed on the _maitfcase
and other incidents of the case as soqp ~s,poi,'sl_ble.
The hearing on any application for a,protection order . ... Revis"ed Penal Code. The courts shall be assisted by
filed by the petitioner must be cq{ld~c;ted Yfithin the
mandatory period specified (Rf,IJ. Nq.·~,92q_2, Sec.
19). ••'•
,·
BATTERED WOMAN ~YN,DROM~ AS. A
DEFENSE IN CRIM~NA:~ ( ANrn CIVIL
CASES AGAINST VIC;J"IIV,IS.i/SURVIVORS .
Battered Woman Syndrohle l isl a scWi:itifically
defined pattern of psychdl_o~ifa{ \and, l:i.et11?i,,'ioral
symptoms found in wom\n "liviri~ iri battering
relationships as a result of cumulati~ abuse (R>~-
No. 9262, Sec. 3(c)). · · · ·
':\ ,,
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BWS CHARACTERIZED BY,[' C'(.ChEJJF .
VIOLENCE: . ·•,,,,, ' ,
1. Tension-building Phase
- where minor battering occurs, by veliJaL.or,
slight physical abuse or another form of hostile
behavior; The woman usually tries to pacify the
batterer through a show of kind, nurturing
behavior; or by simply staying out of his way.
What actuallyhappens is that she allows herself
to · be abused in ways that. to her, are
comparatively minor. All she wants is to prevent
the escalation of the violence exhibited by the
batterer.
2. Acute Battering Incident
- characterized by brutality, destructiveness
and, sometimes, death. It is unpredictable, and
such incidents are often very savage and out of
control, such that innocent bystanders or
intervenors are likely to get hurt.
PERSONS AND FAMILY RELATIONS
Civil Law
3. Tranquil, Loving or Non-Violent Phase
- this begins when the acute battering incident
ends. The couple experience profound relief.
The batterer may show a tender and nurturing
behavior towards his partner. He knows that he
has been viciously cruel and tries to make up for
it, begging for her forgiveness and promising
never to beat her again. On the other hand, the
battered woman also tries to convince herself
that the battery will never happen again; that her
partner will change for the better; and that this
"good, gentle and caring man" is the real person
whom she loves(Peop/e v. Genosa, G.R. No.
135981, January 15, 2004).
NOT NOTE: People v. Genosa was decided prior
to the enactment of R.A. No. 9262.
Victim-survivors who are found by courts to be
, suffering from BWS do not incur any criminal and
~ivll 11abHity notwithstanding absence of any of the
'elements for justifying circumstances under the
expert psychiat"ksts/psychologists (R.A. No. 9262,
· ·sec. 26}'. ,' ,
PROT'=CTl()N ~~DER
A. prnt~cJion or~l:irjs arliorder issued for the purpose
of prev~nting further ~cts of violence against a
woman 6r her c~ild specified in Section 5 of this Act
. and gr~nting otn,ef'necessary relief. ·
•' . ' ( i
PURf>'QSE( Sqleguar4ing the victim from further
harm; rnlnimizjfig any Sfisruption in the victim's daily
life, ar'l<::rtaciljfating th,e opportunity and ability of the
victim to ind"epende~lly regain control over her Hfe.
\~ ., ' , , The •provisions of' the protection order shall be
·enfordict qy.Jaw/enforcement agencies (R.A. No.
.·..·· 9262,""Sec. '8)> 1•
, ',Kl~is :O; PROTECTION ORDERS
1. Barangay Protection Order (BPO)
- issued by the Punong Barangay and effective
for 15 days (Sec. 14);
2. Temporary Protection Order (TPO)
- issued by the court and effective for 30 days,
but may be extended or renewed for a period of
30 days at each particular time until final
judgment (Sec. 15 and 16).
3. Permanent Protection Order (PPO)
- issued by the court and eff(;lctive until revqked
by the court upon application of the person in
whose favor it was issued (Sec. 16).
NOTE: Issuance of a BPO or pendency of an
application for BPO shall not preclude application
or granting of a TPO or PPO (R.A. No. 9262, Sec.
8).
 # \ I
MEM:Q~Y AID
San Beda Univeraity College o! Law - RGCT Bar Clp,,rations Center
WHO MAY FILE PETITION
PROTECTION ORDERS
1. Offended party;
2. Parents or guardians of offended party;
3. Ascendants, descendants, or collateral relatives
within the fourth civil degree of consanguinity or
affinity;
4. Officers or social workers of tho DSWD or social
workers of .LGUs:
5. Police officers, preferably those in charge of
women and children's desks;
6. Punong Barangay or Barangay Kagawad;
7. Lawyer, counselor, therapist, or healthcare
provider of petitioner; or
8. At least two (2) concerned responsible citizens·
of the city or municipality where the violence
against women and their children occurr-ed and
who has personal knowledge of the offense
committed (R.A No. 9262, Sec. 9).
VENUE
Original and exclusive jurisdiction lies with the RTC
designated as a Family Court. In its absence, the
case shall be filed in the Regional Trial Court where .
the crime or any of its elements was committed at
the option of the complainant (R.A. No. 9262, Sec.
n.
RELIEFS OFFERED BY RROTECTJON
ORDERS
(a) Prohibition of the respondent from threa~ening to
commit or committing, personally· 0¥:U,rough
another, any of the acts mentioned iri Section5
of this Act; · ·
(b) Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
communicating with the petitioner, :di[ectly or
indirectly; '' ··
(c) Removal and exclusion of the respondent from
the residence of the petitioner, regardless of
ownership of the residence, either temporarily
for the purpose of protecting the petitioner, or
permanently where no property rights are
violated, and, if .respondent must remove
personal effects from the residence, the court
shall direct a law enforcement agent to
accompany the respondent to the residence,
, remain there until respondent has gathered his
things and escort respondent from the residence
(d) Directing the respondent to stay away from
petitioner and any designated family or
household member at a distance specified by
the court, and to sJay away from the residence,
school, place of employment, or any specified
place frequented by the petitioner and any
designated family or household member;
(e) Directing lawful possession and use by
petitioner of an automobile and other essential
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personal effects, regardless of ownership, and
FOR directing the appropriate law enforcementofficer
to accompany the petitioner to the residence of
the parties to ensure that the petitioner is safely
restored to the possession of the automobile
and other essential personal effects, or to
supervise .the petitioner's or respondent's
removal of personal belongings
(f) Granting a temporary or permanent custody of a
child/children to the petitioner;
(g) Directing the respondent to provide support to
the woman and/or her child if entitled to legal
support, Notwithstanding other laws to the
contrary, the court shall order an appropriate
percentage of the income or salary of the
respondent to be withheld regularly by the
respondent's employer for the same to be
automatically remitted directly to the woman.
Failure to remit and/or withhold or any delay· in
the remittance of support to the woman and/or
her child without justifiable cause shall render
the respondent or his employer liable for indirect
contempt of court;
(h) Prohibition of the respondent from any use or
possession of any firearm or deadly weapon and
, ;; , order him;;to surrender the same to the court for
", ', ·~ipi'<:;rpttite disposition by the court, including
revocatioi;L of license and disqualification to
. apply fqrarlx license to use or possess a firearm.
If the offender is a law enforcement agent, the
courLshail order the offender to s.urrender his
firearm and sHell direct the appropriate authority
to.,. ' .'"inves, · .,,,~,,_;..:
;::on the offender and take
·.~· ...,.\'t,"
apprQpt!ij non on the matter;
(i) Restitutlon for actual damages caused by the
violence inflicted, including, but not limited to,
. :,:; . .{property damage, medical expenses, childcare
: ,, 'f; ·; eixpeiises and loss of income;
U) Directing the DSWD or any appropriate agency
to provide petitioner temporary shelter and other
social services that the petitionermay need; and
(k) Provision of such other forms of relief as the
court deems necessary to protect and provide
for the safety of the, petitioner and any
designated family or household member,
provided petitioner and any designated family or
household member consents to such relief (R.A.
No, 9262, Sec. 8).
RIGHTS OF VICTIMS UNDER VAWC
(CIL-PADME)
1. To have Custody of children;
Children below 7 years old or older but with
mental or physical disabilities pre automatically
given to the mother, with right to support,
unless the court finds compelling reasons to
order otherwise (R.A No. 9262, Sec. 28),
A victim of Battered W.oman Syndrome shall not
be disqualified from having custody of her
 PERSONS AND FAMILY RELATIONS
children. In no case shall custody of minor
children be given to perpetrator of a woman
suffering from BWS (R.A. No. 9262, Sec. 28).
2. To be Informed of their rights, remedies
· available and procedures, and privileges
for indigent litigants;
Prosecutors and court personnel should
communicate with the victim in a language
understood by the woman or her child. (R.A. No.
9262, Sec. 29).
3. Entitlement to Leave;
Victims are entitled to take a paid Leave of
Absence up to 10 days, in addition to their paid
leaves under the Labor Code and Civil Service
Rules and Regulations extendible when the
necessity arises as specified in the protection
order. (R.A. No. 9262, Sec. 43).
4. To frivacy and Confidentiality; .
All records pertaining to case$, of vi6le.nce
against women and their chiltJren ihcluding
those in the barangay shall be confidentii:il and
all public officers and employ~es ,Ptid' public or
private clinics and hospitals,shalF respect the
right to privacy of the victim. Whoever publishes
or causes to be published, in_ any format, the
name, address, telephone• ~umber; school,
business address, employer, bf other id,entifying
information of a victim'or c,1n' immediate family
member; without the latter's·cpnsegt;; s,halL be
liable to the contempt pow~r of the·courr{R.A.
No. 9262, Sec. 44). · · ·' · \ · . ·
5. ~dditional rights (R.A. No.
9262,·-Sec. 35)
Additional Rights of Victim's. (RD-LSFlt .
a. To be treated with ,Bespect'~ndQi'g11ity;
b. To avail of !:egal assistanc,ff~om f>AO or
any public legal assistance office:· ·.
c. To be entitled to §.upport services" from
DSWD and LGUs;
d. To be entitled to all legal remedies and
support provided for under the Eamily
Code; and
e. To be !nformed of their rights and services
available to them including their right to
apply for a protection order (R.A. No. 9262,
Sec. 35).
6. Entitled to Qamages (actual,
compensatory, moral and exemplary)
(R.A. No. 9262, Sec. 36);
7. Mandatory programs and services for
victims; and
The DSWD, and LGUs shall provide the victims
temporary shelters, provide counseling, psycho-
social services and/or, recovery, rehabilitation
Civil Law
programs and livelihood assistance. The DOH
shall provide medical assistance to victims (R.A.
No. 9262, Sec. 40).
8. ~xemption from payment of docket fees
and other expenses;
a. If the victim is indigent; or
b. If there is an immediate necessity due to
imminent danger or threat of danger to act
on an application for a protection order,
The court shall accept the application without
payment of the filing fee and other fees and of
transcript of stenographic notes (R.A. No. 9262, Sec.
39).
I I
FAMILY CODE
_E~ecutive Order No. 209 otherwise known as Family
Co<:le of the Pt)ilippines took effect on August 3,
1988> . ,
l I
"
MARRIAGE
(AR']]S. 1-25)
A sp~dal contract of permanent union between a
.mail. and a woman .entered into in accordance with
law, tor Ihe establi,shment of conjugal and family life
(FA,MIL Y GODE,Att. 1).
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In R'eiplll:}lic'~: Nolasco, G.R. No. 94053, March 17,
_1Q93; the Supreme Court stressed the strong need
to protect" ... the basic social institutions of marriage
and the family in the preservation of whichthe State
has the strongest interest"; the public policy here
involved is of the most fundamental kind.
In Article II, Section 12 of the Constitution, there is
set forth the following basic state policy: "The State
recognizes the sanctity of family life and shall protect
a
and strengthen the family as basic autonomous
social institution". The _same sentiment has been
expressed in the Family Code of the Philippines in
Art. 149: The family, being the foundation of the
nation, is a basic social institution which public policy
cherishes and protects. Consequently, family
relations are governed by law and no custom,
practice or agreement destructiveof the family shall
. be recognized or given effect (Republic v. Nolasco,
G.R. No. 94053, March 17, 1993).
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Marriage shall not be a reason to disqualify a MARRIAGEV.

female employee from work ORDINARY CONTRACT
Where a company's policy disqualified from work
any woman worker who contracts marriage, the
Supreme Court invalidated such policy as it notonly
runs afoul of the constitutional provision on equal
protection but also on the fundamental policy of the
State toward marriage· (Philippine Telegraph and
Contracting parties must Two or more
Telephone Company V. NI RC, G R No. 118978,
only be two persons - parties regardless of
_May 23, 1997).
one man and one gender.
woman.
Absence of Real Intention to Establish a Life
Together is Insufficient to Nullify the Marriage
In Republic v. Albios, G.R. No. 198780,October
16, 2013, the Supreme Court said that, "the Permanent contract. Parties can fix a period
possibility that the parties in a marriage mighthave for its efficacy to be
no real intention to establish a life together is, ineffective after a few
however, insufficient to nullify a marriage freely years.
entered into in accordance with law. There is no
law that declares a marriage void if it is entered into
for purposes other than what the Constitution or law
declares, such as the acquisition of foreign Breach of obligations of Breach of ordinary
citizenship". husband and wife does contracts gives rise to
not give rise to an action' anaction for damages.
NOTE: Contracting parties must be of different sex. for damages. The law
The first article of the Family Code explicitly provides ,provides pe,nal and civil
that marriage should be between a man and a sahdionsr) such as
woman (STA.MARIA, supra at 113). prosecuifonJor adultery
or concubinage and
Effect of Sex Change proceedings for legal
A person who had a biological sex change from male separation, 'action for
to female through gender re-assignment surgery support, etc.
and sought the amendment of his birth certificate to
reflect the change in sex as a preliminary step to get
married to his partner remains to be a male. The
Can be dissolved only Can be dissolved by
Supreme Court ruledthat sex determined visually by
looking at the genitals -of a baby at the time of birth
9y death or annulment, mutual agreement and
is immutable and that there is no law legally
. rtpt ,,:.,
by mutual by other legal causes.
recognizing gender sex re-assignment (Silverio v.
,1tj f~Jn\~ht'.
Republic, G.R. No. 174689, October 19, 2007).

However. if a person was found out to have

Congenital Adrenal Hyperplasia which is a
condition where the person afflicted has both male
and female characteristics and organs and where
through expert evidence, it was shown that the
person, though genetically female, secreted male
hormones and not female hormones, the Supreme
Court considered the person as an "intersex
individual" and granted the preference of the
person to be considered as a male person, allowing
the correction of the entry in his birth certificate from
female to male and the change of his name from
Jennifer to Jeff (Republic v. Cagandahan, G.R. No.
166676,September 12, 2008).
Not subject to Generally subject to
stipulations except in stipulations
property relations
 PERSONS AND FAMILY RELATIONS
Civil Law

Personal legal capacity Minors may contract
is required. through their parents or
guardians or in some
cases by themselves.
(1 PARAS, supra at 334).
RIGHT TO PRIVACY PRESERVED
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the
constitutional protection is ever available to him or to.
her (Zulueta v. CA, G.R. No. 107383, February 20,
1996). ·.
Marriage is an inviolable social institution. In
marriage, the parties assume new relations to each
other and the State touching nearly everyaspect of
life and death. In a real sense, there are· three parties
to every civil marriage: two willing spouses and an
approving State (Manuel . v. People, G.R. No:
165842, November 29, 2005).
The State is a party at interest to the marriage
together with the husband and wjfe; Ther~lafipnship
is one in which the State is ;~foeply ~oncetned, and
over which the State exerpises ajeal6µs aod
exclusive dominion (RABUYA, supra at167) . .
ESSENTIAL REQUISITES OF
MARRIAGE: (LC)
1. !,egal capacity of the contracting parties, who
must be a male and a female; Eighteen (18) years
old or above; and not under any impediment
mentioned in Arts. 37 and 38 (FAMILY CODE,
Art. 5); and
2. fonsent freely given in the presence of a
solemnizing officer (FAMILY CODE, Art. 2).
NOTE: Consent is different from motive. A freely
given consent requires that the contracting parties
willingly and deliberately enter into the marriage.
Motives, such as acquirlni:i foreign citiLtm~liip
(Republic v. Albios, G.R. No.· 198780, October 16,
2013) or out of reverence for the other spouse's
parents (Republic v. Romero II, G.R. Nos. 209180
& 209253, February 24, 2016), are immaterial for
the determination of the validity of marriage.
fORMAL REQUISITES OF MARRIAGE:
· (Alr,v'I) .
f · ~uthority of the solemnizing officer;
2. SalidMarriage!,icense; and
3. _Ma'rria'ge .ceremony where the contracting
parties appear before the solemnizing officer
and persohally'dec,Jare that they take each other
as husband and v;if~ in the presence of not less
than' 2 witnesses of legal age (FAMILY CODE,
Art. 3).
. EFFECTS OF ·NONCOMPLIANCE WITH
,THE REQUISITES
FA.MIL'CCODE, ART. 4

MARRIAGE IS GOVERNED.BY LAWJ,)..NO. .V~id ab initio

CANNOT BE SUBJECT .• · JO (e.g., Essential: Marriage of a minor;
STIPULATIONS ",,_ <"·· Formal: Marriage with expired license)
GENERAL RULE: The law declares that the nature,.
Voidable
consequences, and incidents of marriage are to be
(e.g., consent
governed by law and cannot be subject to
obtained through
stipulations (FAMILY CODE, Art. 1).
force and
EXCEPTION: Marriage settlements may fix the intimidation;
property relations of the spouses during the (FAMILY CODE,
Arts. 45 and 46)
marriage (Id.).
Valid, but the
. But even this freedom "to fix the property relations person
during the marriage" is not absolute as the same responsible for
must be exercised "within the limits provided by this the irregularity
Code" (RABUYA, supra at 167). shall be civilly,
administratively,
and criminally
liable. If the
irregularity was
caused by the civil
re istrar, he shall
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fraudulent for the purposes of immigration, is not

void ab initib and continues to be valid and
subsisting (Republic v. A/bias, G.R. No. 198780,
October 16, 2013).

COMMON LAW MARRIAGE

(Example of
A non-ceremonial or informal marriage by
irregularity:
agreement, entered into by a man- and a woman
1. No witnesses having capacity to marry, ordinarily without
of legal age; compliance with such statutory formalities as those
2. Only one pertaining to marriage licenses. Common law
witness of marriages are not recognized in the Philippines
legal age: (STA.MARIA, supra at 127).
3. Witnesses but
not of legal FORMAL REQUISITES OF MARRIAGE:
age during the
marriage A. AUTHORITY OF SOLEMNIZING
ceremony OFFICER
(STA.MARIA,
It is not the presence of the solemnizing officer
supra at 128);
or which constitutes the formal requirement but the
presence of the solemnizing officer's authority at the
4. Issuance of
time of the solemnization of the marriage.
marriage
license despite
.····• PERSONS WHO MAY SOLEMNIZE MARRIAGE:
absence of
publication . (Pl.CC-CM) •
prior to the •· ·a.: flri~t,;rkib,bi, imam or minister of any church or
completion of reiigi2ios' ~ect;
the 10-day i. Duly a\ithorized by his church or religious
sect;' •·
period for
publication ii. REigistered with the office of the civil
(Alcantara v. r,egis&ar general;
Alcantara, iii .. ,4cti~g . wifbir1 the limits of the written
;·._·•:a·•··.··· 't·h··o- ..it.:,:ri~.<:rited· and
G.R. No. ..J.t,-,,/\'li'",' 11 '
167746, iv. At least 1 of the parties belongs to the
August 28, solemnizing officer's church or religioussect
2007); (FAMILY CODE, Art. 7).

(STA.MARIA, supra at 126).

NOTE: When either or both of the spouses is/are
over 18 but below 21 years old, failure to obtain
parental consent, will render the marriage voidable
(FAMILY CODE, Art. 14).
MARRIAGE IN JEST IS VOID FOR LACK
OF CONSENT
A pretended marriage, legal in form but entered into
as a joke, with no real intention of entering into the
actual marriage status, and with a clear
understanding that the parties would not be bound.
The ceremony is not followed by any conduct
indicating a purpose to enter into such a relation.
Marriages in jest are void ab initio, not for vitiated,
defective, or uninfulligent consent, but for a
complete absence of consent (1 TOLENTINO, supra
at 231).
But a marriage entered into solely for the ptirpose of
acquiring American Citizenship, therefor sham or
priest who is commissioned and allowed by
his local ordinary to marry the faithful, is
authorized to do so only within the area of the
diocese or place allowed by his Bishop (Navarro
v. Domagtoy, A.M. No. MTJ-96-1088, July 19,
1996).
b. !ncurnbent member of the judiciary within the
court's jurisdiction (FAMILY CODE, Art. 7);
An appellate court Justice or a Justice of
Supreme Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of
the venue, as long as the requisites of the law are
complied with. However, judges who are appointed
to specific jurisdictions, may officiate in weddings
only within said areas and not beyond. Where a
judge solemnizes a marriage outside his court's
jurisdiction, there is a resultant irregularity in the
formal requisite laid down in Article 3, which while it
may not affect· the validity of the marriage, may
subject the officiating official to administrative liability
(Navarro v. Domagtoy, A.M. No. MTJ-96-1088, July
 PERSONS AND FAMILY RELATIONS
19, 1996). It is however believed that this is a non-
binding obiter dictum as the Supreme Court declared
that "in as much as respondent judge's jurisdiction
covers the municipalities of Sta Monica and Burgos,
he was not clothed with authority to solemnized a
marriage in the Municipality of Dapa, Surigao Del
Norte." (See similar ruling in Keuppers v. Judge
Murica, AM No. MTJ-15-1860, April 3, 2018).
NOTE: The jurisdiction of the members of the
Supreme Court, the Court of Appeals, the
Sandiganbayan, and the Court of Tax Appeals to
solemnize marriages is the entire country (SEMPIO
- DIY, Handbook on the Family Code of the
Philippines (1995), p. 12) [hereinafter SEMP/O -
DIY].
c. Ship faptains or airplane chiefs;
i. The marriage must be in articulo mortis
(one of the parties is at the point of death); -
ii. The marriage must . be between
passengers or crew members;'
iii. The ship must be at sea or the plane m'ust
be in flight; including stopovers at ports of
call (FAMILY CODE, Arts. 7 and 31).
NOTE: Such marriages cari be solemnized
during stopovers at porfo of call, wherein the
voyage is not yet terminated and·. includes
instances when there are tr~nsit passengers
which the others affirm~d (Minutes oft/;/e 147th
joint Civil Code and Family Law.commiiieesheld
on July 19, 1986, page 10). ·· ·· · ·
d. _g_ommander of a military unit, in theabsence of
chaplain; · a. Chambers of the judge or in open court;
i. He or she must be a militarycomrnander of
a unit;
NOTE: Unit refers to a battalion under the
present table of organization and notamJ:}re
company (MINUTES OFTHE CIVIL COD£
REVISION, p. 4).
ii. He or she must be a commissionedofficer;
NOTE: Rank should start from 2nd
Lieutenant, ensign, or above (STA. MARIA,
supra at 142).
iii. A chaplain must be assigned to suchunit;
iv. Such chaplain is absent at the time ofthe
marriage;
v. Marriage must be in articulo mortis;and
vi. The contracting parties, whether members
of t_he armed forces or civilians, must be
within the zone of military operation
(FAMILY CODE, Arts. 7 and 32).
e. fonsul generals, consuls or vice-consuls of the
Civil Law
Republic of the Philippines abroad;
i. The marriage must be between Filipino
Citizens;
ii. Only said officials have the authority to
solemnize marriages abroad;
iii. These officials must also perform the duties
of an LCR (i.e., issuance of marriage
license) (FAMILY CODE, Arts. 7 and 10).
The solemnities established by Philippine laws
shall be observed in their execution (CIVIL
CODE, Art. 17).
f. Municipal and city Mayors (R.A. No. 7160
otherwise known as Local Government Code of
1991, Secs. 444(b)(1)(xviii) - 445).
NOTE: An "Acting Mayor" or a "Vice Mayor Acting as
Mayor" may also solemnize marriages (People v.
Bustamante, citing Laxamana v. Baltazar, GR. No.
11598, January 27, 1959)(See a/so Sec 445(a)(4) of
_the L0<:;af Government Code).
GENERAL RULE: Marriages solemnized by any
person not legally euthorized to perform marriages
are void (FAMILY CODE, Art. 35, par. 2).
EXCEPTION: Marriages that were contracted with
either or both parties b~lieving in goodfaith that the
solemnizing officer had the legal authority to do so
(FAMJL Y CODE; Art. 35, par. 2).
AUTHORt~ED VENUE.S OF MARRIAGE
GENERAL R~LE: Mui:;t be solemnized publicly,and
not elsewhere, in the:.
Article' 8 of the Family Code requires that
_mcjhiagEJ by a judge should only be in his office
or ·~ourtroom (Keuppers v. Judge Murica, AM
No.'iMTJ~15-1860, April 3, 2018).
·i
Article 8 of the Family Code clearly states that a
ma~riage can be held outside the judge's
~har,bers or courtroom only in the following
msfances:
1) 1 At the point of death;
2) . In remote places in accordance with Article·
• 29; or
3) i Upon the request of both parties in writing in
a sworn statement to this effect (Keuppers
v. Judge Murcia, AM No. MTJ-15-1860,
April 3,2018).
b. f Church, chapel or temple; or
c:'° Office of consul-general, consul or vice-
consul (FAMILY CODE, Art. 8).
EXCEPTIONS: (HAR)
a. Ma·rriage at a ,tlouse or place designated by the
parties in a sworn statement to that effect, with
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the written request of both parties to the
solemnizing officer;
b. Marriage in !3.rticu/0 mortis; and
c. Marriage in ,Bemote places (FAMILY CODE,
Art. 8; STA.MARIA, supra at 146).
NOTE: This provision is directory and non-
compliance with the requirement that the marriage
be solemnized publicly inspecific places will only be
an irregularity that will not affect the validity of the
marriage.
B. VALID MARRIAGE LICENSE
Issued by the Local Civil Registrar (LCR) of the city
or municipality where either of the contracting party
habitually resides (FAMILY CODE, Art. 9).
enable suc_h party to appear personally
before the LCR; and
ii. That he took the necessary steps to
ascertain the ages and relationship of
the contracting parties and Jhe absence
of legal impediment to the marriage
(FAMILY CODE, Art. 29).
b. In cases of marriage between a man and a
woman living together as husband and wifefor at
least 5 years without legal impediment to marry
each other, the solemnizing officer must state
under oath that he ascertained the qualifications
of the contracting parties and found no legal
impediment to the marriage (FAMILY CODE,
Art. 34).

GENERAL RULE: The LCR, even if he finds an PARENTAL CONSENT V. PARENTAL

impediment in the impending marriage, must ADVICE
nevertheless issue the marriage license (FAMILY
CODE, Art. 18).

EXCEPTIONS:
a. Where he is judicially restrained fromissuing th~ The consent given by The advice given by
marriage license as ordered otherwise by a~ the father, mother, the parents or
competent court at his own instance or that of sur.vlying. ... parent, guardian of any
any interested party (FAMILY CODE, Art. 18). guardian, · or persons contracting party
b. Where the law clearly provides that, as to the having legal charge of between ages of 21
foreigner, the certificate of legal capacity is a them, in the order to 25 upon the
necessary requisite before a marriage· license mentioned, to his or her intended marriage
can be obtained by him or her (STA.MARIA, child or ward, who is at (FAMILY CODE, Art.
supra at 157). least 1'8 years old . and 15).
below _;t1;~ Y~l:lf!,,; Qf age,
A marriage license is required in order .to notify before · obfaihing a While it is not an
the public that two persons are about to be marriage license essential. nor a formal
united in matrimony and that anyone Who is (~TA.MARIA, supra at requisite, it is a vehicle
aware or has the knowledg·e of any impediment 1$.(J); to induce further and
to the union of the two shall make it'known to t .~a.;.' ···
more mature
the local civil registrar (Nina/ v. Bayadog, G.R. deliberation over the
No. 133778, March 14, 2000). decision to get
married (Minutes of
DUTY OF THE SOLEMNIZING OFFICER the 1s5m Meeting of
The solemnizing officer is not duty bound to the Civil Code and
investigate whether the marriage license was Family Law
regularly issued. He must only determine if it was committees, June 27,
issued by a competent official (Alcantara v. 1987, supra at 6).
Alcantara, G.R. No. 167746, August 28, 2007).

DUTIES OF THE SOl.:EMNIZING OFFICER WHEN

MARRIAGE LICENSE NOT REQUIRED Absence of parental Absence of parental
a. In cases of marriage in articulo mortis and consent renders the advice does not affect
marriage in remote places, the solemnizing marriage voidable the validity of the
officer must: (FAMJL Y CODE, Art 45). marriage
i. State in an affidavit executed beforethe (STA.MARIA,supra at
LCR or any person authorized to 153).
administer oaths that the marriage was
performed in articulo mortis or that the However, the
residence of either party, specifying the marriage license shall
barrio or barangay, is so located that not be issued until
there is no means of transportation to after three months
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Marriage Counseling
This is a new requirement for the issuance of a
marriage license under the Family Code in cases
where the parties need parental consent or parental
advice. This is to enable the parties to find out if they
are compatible before they get married. The lack of
the certificate of marriage counseling has the same
effect as the lack of parental advice ( SEMP/O-DIY,
supra at 21; FAMILY CODE, Art. 16).
RULES ON THE VALIDITY OF LICENSE .
a. The license shall be valid in any .part Pf the
Philippines; .· • ·.· ·. . · • . ..
b. Valid for a period of one hundfed • ( 120) days
from the date of issue; ·· · Art. 21, par. 2).
c. It shall be deemed automatically cal)Celled up.on
the expiration of said period if the contracting
parties have not made use of it;ahd
d. Said expiry date shall be __ stamped in bold
characters on the face ;of eyery liceni3e issued
(FAMILY CODE, Art. 20).
NOTE: Even if the license is obt~ined else'Nhere,
not in the local civil registrar city or mUnicipality
where either contracting party habitually resides, the
validity of the marriage is not affected since this is ~
mere irregularity in the issuance of the 'S~id license
(RABUYA, supra at 218). . there is J)O means of transportation to enable
To be considered void on the ground of absf)nCe of
a marriage license, the law requires that the ab,:>_ence
of such marriage license must be apparent on the
marriage contract, or at the very least, supported by
a certification from the local civil registrar that no
such marriage license was issued to the parties
(Alcantara v. Alcantara, G.R. No. 167746, August
28, 2007; Kho v. Republic, G.R. No. 187462, June
1, 2016).
Solemnization of a Marriage Involving a Foreign
Contracting Party in the Philippines
When either or both parties are foreign citizens, they
must first submit a certificate of legal capacity to
marry issued by their diplomatic/consular officials
before marriage license can be obtained (FAMILY
CODE, Art. 21 ).
A certificate of legal capacity is necessary because
the Philippines, insofar as marriage is concerned,
adheres to the national law of the contracting parties
·
PERSONS AND FAMILY RELATIONS
• Civil Law
'
with respect to their· legal rnpc1city to contmct
marriage. Without this certification of legal capacity,
following the the LCR will not · issue the marriage· license
completion of the (STA.MARIA, supra at 157).
publication of the NOTE: If without the certificate of legal capacity, the
application therefor marriage license was nevertheless issued, the
(FAMILY CODE, Art. marriage celebrated on the basis of such marriage
15). license will still be considered valid as this is merely
an irregularity in complying with a formal
requirement of the law in procuring a marriage
license (Garcia v. Recio, G.R. No. 138322, October
2, 2001; FAMILY CODE, Art. 4).
The capacity of a foreigner to get marriedin the
Philippines is governed by hisnational law, a foreign
law, thus, government offices and courts cannot take
judicial notice of said law (SEMP/O - DIY, supra at
26).
Stateless Persons or Refugees
Stateless persons or refugees from othercountries
shall submit an affidavit stating circumstances to
show c<'!pacity to contract marriage before a
marriage license can be obtained (FAMILY CODE,
EXCEPTIONS Tb THE LICENSE REQUIREMENT:
(ARMZ-5)
1. Marriage inArticu/o mortis between passengers
or crew members may be solemnized by a ship
captain or by an airplane pilot not only while the
ship is at s~a or th.e plane is in flight, but also
during stopovers afports of call (FAMILY CODE,
ofthe .Art. 31); . .
2.. In Remote place.
.. -:c residence ofeiither party is so located that
then, to p9rsonally appear before the LCR
·(F.AM[L Y CODE Art. 28);
· 3. Among Muslims or members of ethnic cultural
communities solemnized in accordance with
their customs, rites, or practices (FAMILY
CODE, Art. 33);
4. Marriage in articulo mortis between persons
within the ~one of military operation, whether
members of the armed forces or civilians may be
solemnized by a military commander of a unit,
who is a commissioned officer (FAMILY CODE,
Art. 32);
5. Marriage between a man and a woman who
have lived together as husband and wife for at
least five 1fil years and without legal impediment
to marry each other(FAMIL Y CODE, Art. 34).
 f#t#d#ffi \ 1
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San Beda Untversity CoHege of Law - RGCT Bar Operations Center
Requisites: (5-NPAS)
a. The man and woman must have been living
as husband and wife for at least §years
before the marriage;
b. The parties must have No legal impediment
to marry each other;
c The fact of absence of legal impediment
between the parties must be fresent at the
tit11t' ur 111c111 ial:Je;
d. The parties must execute an Affidavit before
any person authorized by la,; to administer
oaths stating that they have lived together
for at least 5 years (and are without legal
impediment to marry each other); and
e. The solemnizing officer must execute a
§.worn statement that he had
ascertained the qualifications of the
parties and that he had found no legal
impediment to their marriage (Borja-
Manzano v. Sanchez, A.M. No. MTJ-
00-1329, March 8, 2001).
NOTE: The solemnizing officer is duty bound to
ascertain the qualifications of the contra,cting parties
(STA. MARIA, supra at 121).
COMPUTATION OF 5-YEAR COHABITATION
PERIOD
The 5-year period should be computed on thebasis
of cohabitation as husband and wifewhere the only
missing factor is the marriagecontract to validate
the union (e.g. if both cohabite<J at the age of 17,
counting startswhen parties reach 18 years old as
suggested in the case of OCA vs Judge Necessario,
A.M. MTJ07-1691, April 2, 2013).
• 0
This 5-year period should be the years immediately
before the day of the marriage and it sh.ould be a
period of cohabitation characterized by:
1. Exclusivity
- no legal impediment was present at any. time
within the 5 years; and
2. Continuity
- that is unbroken (Republic v. Dayot, G.R. No.
175581, March 28, 2008; Nina/ v. Bayadog, G.R.
No. 133778, March 14, 2000).
NOTE: The ·five-year common-law cohabitation
period under Article 76 means a five-year period
computed back from the date of celebration of
marriage, and refers to a periodof legal union had
it not been for the absenceof a marriage. It covers
the years immediately preceding the day of the
marriage, characterized by exclusivity -- meaning
no third party was involved at any time within the five
years - and continuity that is unbroken (Republic v.
Dayot, G.R. No. 175581, March28, 2008).
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The falsity of an affidavit of marital cohabitation,
where the parties have in truth fallen short ofthe
minimum five-year requirement, effectively renders
the marriage void ab initio for lack of a marriage
license (Republic v. Dayot. G.R. No. 175581, March
28, 2008).
Marriage Certificate
Rast rlocument::iry ovidcnco of the cx1Gtoncc ot a
marriage (Tenebro v. CA, GR. No. 150758,
Februa1y 18, 2004, FAMILY CODE, Ari. 22).
NOTE: The mere fact that no record of the marriage
exists in the registry of marriage does not invalidate
said marriage, as long as in the celebration thereof,
all requisites for its validity are present (People v.
Borromeo, G.R. No. 61873, October 31, 1984).
Photostat Copy of Marriage Certificate
A mere photostat copy of a marriage certificate is a
worthless piece of paper (Vda. De Chua v. CA, G.R.
No. 116835, March 5, 1998) but if such photos tat
copy emanated from the Office of the Local Civil
Registrar and duly certified by the LCR as an
authentic copy of the records in his office, such
cert,Jfi~.d. {:?~.otostat copy is admissible as
evidence' (STA.MARIA, supra at 160).
NOTE: If the photostat copies, though not certified
by the Qffice of the Local Civil Registrar, are
presented in court without objection from the
opposing parties a\1d consequently admitted by the
court;'W,f- S€!i,<:J;;P,n6tostat copies are deemed
sufficienfprdofof the facts contained therein and
therefore canbe proof of marriage (Sy v. Court of
• Appeals, G.R. No. 127263, April 12, 2000).
·' Te;tim6nl~l Evidence
Testimony of one of the parties to the marriage,
witnesses or solemnizing officer is admissibleto
prove the fact of marriage (People v. Velasco, G.R.
Nos. 135231-33, February 28,
2001).
Cohabitation as Insufficient Proof
Mere cohabitation is not a direct proof of marriage,
and it must be proved by proper documents or by
oral testimony in case they have been lost (STA.
MARIA, supra at 164, citing US v. Evangelista, GR.
No. 9841,January 9, 1915).
PRESUMPTION OF MARRIAGE
A man and a woman deporting themselves as
husband and wife are presumed to have entered into
a lawful contract of marriage (RULES OF COURT,
RULE 131, Sec. 3 (aa)).
Semper praesumitur pro matrimonio - Always
presume marriage. However, this presumption may
be contradicted by a party and overcome by other
 PERSONS AND FAMILY RELATIONS
Civil Law

evidence (Uy v. Sps. L1:1cs1:1m1:1111:1, G.R."Nu. 200220, MARRIAGE LICENSE V.

August 19, 2015). . MARRIAGE CONTRACT
REASON: Marriage in this jurisdiction is not only a
civil contracf, but it is a new relation, an institution in
the maintenance of which the public is deeply
interested. Every intendment of the law leans
towards legalizing matrimony.

Persons dwelling together in apparent matrimony

are presumed, in the absence _of counter-
presumption or evidence special to the case, to be
in fact married. The reason is that such is the Absence renders Best evidence to prove
common order of society, and if the parties were not marriage void ab initio existence (not validity)
what they thus holdthemselves out as being, they except in the cases ofmarriage.
would be living inthe constant violation of decency provided under Arts.
and of law. Once a man and a woman have lived as 27 to 34.
husband and wife and such relationship is not
denied nor contradicted, the presumption of their
being married must be admitted as a fact (Adong v.
Cheong Seng Gee, G.R. No. L- 18081, March 3, lssuec;l by the Issued by the person
1922; Alavado v. City Government of Tacloban, G.R. LCR (FAMILY CODE, solemnizing the
No. L-49084,October 10, 1985; Vda. de
Avenido v._ Art. 19f marriage (FAMILY
Avenido, G.R. No. 173540, Januaiy22, 2014). CODE, Art. 23).

Effect of Presumption of Marriage · .

Once the presumption of marriage arises, oth~r
evidence may be presented in support thereof. The
evidence need not necessarily or <:lirectly establish
the marriage but must at !east be enough to
strengthen the presumption of marriage. Every
intendment of law leans towardl~gitimizing .marriage
No prescribed form or religious rite for solemnization
(Delgado vda. de De la Rosa v, Heirs of Marciana
of m~miage is required.{FAMIL Y CODE, Art. 6).
vda. de Damian, G.R. No'. 155733, January_ 27,
2006). . . ·.
It 'is not suffi~ient that the parties enter into an
agreement "that they take each other as husband
Competent Evidence to Prove Marriage
arid wifE;)" or that consent be given. Article 2(2) of the
The Supreme Court ruled in Tr-lnidad v. CA, GR. i
F9mily. ,Code, Tt:}(juires that such consent must be
No. 118904, April 20, 1998, that wben the given ' "in the presence of the solemnizing officer"
0

question of whether a marriage bas been (RABUYA; supra at 186-187).

contracted arises inlitigation, said marriage rn,ay
be proven byrelevant evidence. To prove the
fact of marriage, the following would constitute
competent evidence:
1. The testimony of a witness to the matrimony;
2. The couple's public and open cohabitation as
husband and wife after the alleged wedlock;
3. The birth and the baptismal certificates of
children born during such union; and
4. The mention of such nuptial in subsequent
documents (Trinidad v. CA, supra}.'
5. A solemn statement in the will of a deceased as
to the fact of his marriage is also admissible
proof of such marriage (Son Cui v. Guepangco
y Lim, G.R. No. 6163, March 14, 1912).
Absence of Two Witnesses
The absence of 2 witnesses of legal age is merely
an irregularity but the party responsible for the
irregularity shall be civilly, criminally, and
administratively liable (FAMILY CODE, Art. 4).
Marriages by Proxy
a. If it was solemnized in the Philippines, the
marriage is VOID because physical appearance
is required under Art. 6;
b. If performed abroad, whether betweenFilipinos
or foreigners or mixed, the controlling article is
. Art. 26 of the Family Code.(1 PARAS, supra at
347).
 • • -\ -,, ~ ' "» ;~ '
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MEM:0-RY Al D
8.sn Bedo University College of Law - RGCT Bar Operations Center
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NOTE: The mere private act of signing a marriage
contract bears no semblance to a valid marriage and
thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed toconstitute
an ostensibly valid marriage for which petitioner
might be held liable for bigamy unless he first
secures a judicial declaration of nullity before he
contracts a subsequent marriage (Morigo y Cacho v.
People, G.R. No. 145226, February 6, 2004).
before the requirement of recording under
Article 52 (FAMILY CODE, Art.35 (6));
6. When any party is fsychologically incapacitated
when the marriage was celebrated (FAMtL Y
CODE, Art. 36); and
7. Marriage is void by reason of fublic policy
(FAMILY CODE, Art. 38).
NOTE: Common-law marriages obtained abroad by
Filipinos are not valid in the Philippines
(STA.MARIA, supra at 172).

MARRIAGE COURT CANNOT TAKE JUDICIAL

NOTICE OF FOREIGN LAW
CELEBRATED OUTSIDE It is necessary to prove the foreign law as a question
THE PHILIPPINES of fact and then to prove the celebration ofmarriage
pursuant thereto by convincing evidence
(ART. 26) (STA.MARIA, supra at 177).

Philippine courts cannot take judicial notice of

VALIDITY OF MARRIAGE
GENERAL RULE: Marriages contracted outside the
Philippines in accordance with the laws in force in
the country where they were solemnized are valid
in this country (FAMILY CODE, Art. 26, Par. 1).
In case a Filipino contracts a foreign marriage whicr,
is null and void in the place where it was solemnized,
the same shall also be null and void in the
Philippines even if such was valid if celebrated under
Philippine laws.
NOTE: The rule on the validity of foreign mc1rriages
under Art. 26 applies only to Filipinos (SEMPIO-
DIY, supra at 29).
FOREIGN MARRIAGES, EVEN IF VAUD
WHERE SOLEMNIZED, SHALL NOT BE
VALID IN THE PHILIPPINES IF:
(BIMBAP 2 )
1. Contracted by a national who is ~elow 18 years
of age (no legal capacity to contract marriage)
(FAMILY CODE, Art. 35 (1));
REASON: The Philippines adheres to the rule
that the marrying capacity of the contracting
parties is governed by the national law of that
party, which is the Philippine Law (STA.MARIA,
supra at 169).
2. Incestuous marriages (FAMILY CODE, Art. 37);
3. Contracted through Mistake of one party as to
the identity of the other (FAMILY CODE, Art. 35
(5));
4. ~igamous or polygamous except as provided in
Art. 41 (FAMILY CODE, Art. 35 (4));
5. Contracted following the ~nnulment or
declaration of nullity of a previous marriage but
foreign laws. Like any other facts, they must be
alleged and proved. Australian marital laws are not
among those matters that judges are supposed to
know by reason of their judicial function. The power
of judicial notice must be exercised with caution, and
8\/~J;Y,reas911~ble doubt upon the subject should be
resolved frfthe negative (Garcia v. Recio, G.R. No.
138322, Octobw 2, 2001).
SAME SEX MARRIAGE OF FILIPINOS
ABROAD
It is invalid,TheEarnily Code mandates that only a
male and;~l!~Qlgle can marry each other. This is,
a
therefore, 'pOolic policy matter which cannot be
rendered ineffective by any foreign law(STA.MARIA,
sµpra at 176-177; FAMILY CODE,Art. 2(1); CIVIL
GOtifi;>A-rt& 15 and 17).
DIVORCE
GENERAL RULE: Divorce is not allowed in the
Philippines (Gang v. Court of Appeals, G.R. No.
105308, September 25, 1998).
EXCEPTIONS:
1. Between 2 aliens - if valid in their national laws
even if marriage was celebrated in the
Philippines; and
2. Between a Filipino and an alien - if:
a. There is a valid marriage celebrated
between a Filipino citizen aml a foreigner;
and
b. A valid divorce according to the national law
of the foreigner is obtained abroad by the
alien spouse capacitating him or her to
remarry (FAMILY CODE, Art. 26, Par. 2 as
amended by E.O. No. 227 (1987)); and
c. At the time of the divorce, one is a Filipino
and the other is a Foreigner.
 PERSOHS AND FAMILY RELATIONS
A FOREIGN DIVORCE SECURED BY A
FILIPINO AGAINST A FOREIGN SPOUSE
IS RECOGNIZED IN THE PHILIPPINES
A Filipino citizen has the capacity to remarry under
Philippine law after initiating a divorce proceeding
abroad and obtaining a favorable judgment against
his or her alien spouse who is capacitated to remarry
(Republic v. Manalo, G.R. No. 221029, April 24,
2018).
NOTE: The purpose of Paragraph 2 of Article
26 is to avoid the absurd situation where the
Filipino spouse remains married to the alien
spouse who, after a foreign divorce decree that
is effective in the country where it was
rendered, is no longer married to the Filipino
spouse. The provision is a corrective measure
to address an anomaly where the Filipino
spouse is tied to the marriage while the fqreign
spouse is free to marry under the laws'Of his or
her country (Republic v. Manalo, G.R. ·No.
221029, April 24, 2018). . 2007).
Whether th~ Filipino spouse initiated the foreign
divorce proceeding or not; a favorable decree
dissolving the marriage bond and capacitating his
or her alien spouse to remarry will,,'have the same
result: the Filipino spouse will effectively be without
a husband or wife. A Filipino who initiated a foreign
divorce proceeding is in the, same place and in "like
circumstance as a Filipino who is at fhe rec:eiVing
end of an alien-initiated proceeding. Therefore, the
a
subject provision should not make distinction: In
both instances, it is extended as a means to
recognize the residual effect of the foreign divorce
decree on Filipinos whose marital ties to their alien
spouses are severed by operation. of. the• latter's
national law (Republic v. Manalo, G.R: No. 221029,
April 24, 2018).
A foreign divorce may be recognized in this
jurisdiction as long as it is validly obtained,
regardless of who among the spouses initiated the
divorce proceedings (Racho v. Tanaka, G.R. No.
199515, June 25, 2018).
Foreign divorce decrees obtained to nullify
marriages between a Filipino and an alien citizen
may already be recognized in this jurisdiction,
regardless of who between the spouses initiatedthe
divorce; provided, of course, that the party
petitioning for the recognition of such foreign divorce
decree - presumably the Filipino citizen -must
prove the divorce as a fact and demonstrateits
conformity to the foreign law allowing it
(Morisono v. Morisono, G.R. No. 226013, July 2,
2018).
Civil Law
NON-APPLICABILITY OF A.M. NO. 02-11-
10-SC
The provisions of A.M. No. 02-11-10-SC (Proposed
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages) do not apply in . a case involving
recognition of a foreign decree of divorce. A decree
of absolute divorce prqcured abroad is different from
annulment as defined by our family laws. A.M. No.
02-11-10-SC only covers void and voidable
marriages that are specifically cited and enumerated
in the Family Code of the Philippines (Republic v.
Cote, G.R. No. 212860, March 14, 2018).
PROOF OF DIVORCE
Party pleading it must prove divorce as a fact and
demonstrate its conformity to the foreign law
allowing it, which must be proved as courts cannot
take judicial notice of foreign laws. If a valid divorce
cfecree has been obtained abroad, there is no more
n~ed to file an action to nullify the marriage (Felicitas
Athot--Catalanv. CA, G.R. No. 167109, February 6,
RULES OF COURT WILL GOVERN
RECOGNITION OF FOREIGN
JUDGMENT. DECLARING A MARRIAGE
VOID .
Philippine courts will only determine:
1 . Whether the foreign judgment is inconsistent
with an overriding public policy in the Philippines
and·'
2. Wh~ther any allegjng party is able to prove an
.extrinsic ground to repel the foreign judgment,
i.e., want of jurisdiction, want of notice to the
party,co/lusion, fraud, or clear mistake of law or
fact (Fujiki v,. Marinay, G.R. No. 196049, June
- 26, 2_013) . .
CAPACITY OF THE FOREIGNER
SPOUSE TO REMARRY MUST BE
STATED IN THE DECREE OF DIVORCE
There must be a showing that the divorce decree
gave the foreigner spouse legal capacity to remarry
because in some jurisdictions, remarriage may be
limited or prohibited (Garcia v. Recio, G.R. No.
138322, October 2, 2001).
ARTICLE 26 (2) PROVIDES A REMEDY
ONLY TO FILIPINOS BUT NOT TO
FOREIGNERS -
The legislative intent is for the benefit of the .Filipino
spouse, by clarifying his or her marital status,
settling the doubts created by the divorce decree.
Essentially, Art. 26 (2) of the Family Code provided
the Filipino spouse a substantive right to have his or
her marriage to the alien spouse considered as
dissolved, capacitating him or her to remarry
 &&Qijijffi \ I
MEM:Q,RY Al D
San Beda University College of Law - RGCT Bar Operations Center
(Corpuz v. Sta. Tomas, G.R. No. 186571, August 11,
2010).
I
VOID MARRIAGES
I
(ART. 35)
VOID MARRIAGE
A void marriage is that which is not valid from its
inception (STA.MARIA, supra at 206).
A marriage that is void ab initio is considered as
having never to have taken place and cannot be
the source of rights. It can never be ratified (Nina/ v.
Bayadog, G.R. No. 133778, March 14, 2000).
RTC HAS EXCLUSIVE JURISDICTION IN
ALL ACTIONS INVOLVING THE
CONTRACT OF MARRIAGE
RTC has jurisdiction to rule on the validity of
marriage solemnized and celebrated by the Church
pursuant to the provision of the Family Code.
Although, marriage is considered a sacrament inthe
Catholic Church, it has civil and legal consequences
which are governed by the Family Code. As
petitioner correctly pointed out, the instant petition
only seeks to nullify the marriage contract between
the parties as postulated in the family Code of t_he
Philippines; and the declaration of nullity of the
parties' marriage in the religious andec¢Iesiastical
aspect is another matter. Notably, theproceedings
for church annulment which is in accordance with the
norms of Canon Law is not binding upon th~ State
as the couple is still considered married to each
other in the eyes of the civil law. Thus, tlie principle
of separation of the church and state finds no
application in this case (Tilar v. Tilar, G.R. No.
214529, July 12, 2017).
KINDS OF VOID MARRIAGES (APICS):
1. ~bsence of essential or formal requisites;
2. Either of the parties is
fsychologicalty incapacitated;
3. Incestuous marriages; and
4. Contrary to public policy;
5. Void §.ubsequent marriages
GENERAL RULE: Good faith and bad faith are
immaterial in determining whether or not a marriage
is null and void. The party who knew that he or she
was· entering a void marriage before its
solemnization may be held liable for damages by the
other contracting party under Arts. 19, 20 and 21
of the Civil Code.
NOTE: This means that the nullity of a marriage can
be asserted even if it is not the main or principal
issue of a case. No previous judicial declaration of
nullity is required by law with respect to any other
matter where the issue of the voidness of a marriage
is pertinent or material, either directly or indirectly
(STA.MARIA, supra at 211).
EXCEPTIONS:
1. Art. 35 (2): Either of the contractinR partiP.s is in
good faith in believing that the solemnizing
officer has authority although he has none in
fact; and
2. Art. 41: A person whose spouse disappears for
4 consecutive years, or two years where there
was danger of death, the present spouse may
validly marry again if he or she:
a. Has a well-founded belief that his or her
spouse is dead;
b. Procures a judicial declaration of
presumptive death; and
c. At the time of the subsequent marriage
ceremony, is in good faith.
In these two cases, the good faith even of only one
of tbe contrapting parties shall make the marriage
valid.'To,~~b)d, both of the contracting parties must
be in bad ti:ilth (FAMILY CODE, Art. 44; STA.
at
MARIA, supra 210).
IMPRESCRIPTIBILITY OF ACTION FOR
DECLARATION OF NULLITY
The adtl~Qi?f9ef¢~for the declaration of absolute
nullity ofa rnatii-age shall not prescribe (FAMILY
CODE, Art. 39, as amended by R.A. No. 8533).
'~ 1c;jt,i~:::( , THE SPOUSES CAN FILE
PETITION FOR DECLARATION OF
NULLITY
Pursuant to A.M. No. 02-11-10-SC (SC Resolution
which took effect on March 15, 2003), a petition for
declaration of absolute nullity of void marriage may
be filed solely by the husband or the wife. Thus,
compulsory or intestate heirs can question the
validity of the marriage of the spouses, not in a
proceeding for declaration ·of nullity, but upon the
death of a spouse in a proceeding for the settlement
of tl'le estate of the deceased spouse filed in the
regular courts (Enrico v. Heirs of Medinaceli, G.R.
No. 173614, September 28,
2007).
EXCEPTION: Cases for nullity of marriage
solemnized PRIOR to the Family Code and actions
commenced PRIOR to March 15, 2003 by persons
other than the husband and wife (Carlos v.
Sandoval, G.R. No. 179922, December 16, 2008).
 PERSONS AND FAMILY RELATIONS
DECLARATION OF NULLITY NOT A
PREJUDICIAL QUESTION
The pendency of the civil action for nullity of the first
marriage does not pose a prejudicial question in a
criminal case for concubinage (Beltran v. People,
GR No. 137567, June 20, 2000). By analogy, this
ruling applies in a case for bigamy since both crimes
presuppose the subsistence of a marriage (Bobis v.
Hob1s, G.k. No.1:Jt1!:JU!J, July 31, 2000).
Respondent cannot be permitted to use his own
malfeasance to defeat the criminal action against
him when it was respondent's clear intent to obtain
a judicial declaration of nullity of his first marriage
and thereafter to invoke that very same judgment to
prevent hrs prosecution for bigamy. He cannot have
his cake and eat it too. Otherwise, all that an
adventurous bigamist has to do is to disregard Art.
40 of the Family Code, contract a subsequent
marriage and escape a bigamy charge by simply
claiming that the first marriage is void and that the .
subsequent marriage is equally void for Jack of a
prior declaration of nullity of the first (Bobis v. Bobis,
G.R. No.138509, July 31, 2000).
ATTACKING A VOID MARRIAGE
GENERAL RULE: A VOid marriage can be attacked
r.nllr11f-milly ( s / A MAH/A, supra at 192), ,
NOTE: In a case for concubinage, the accused need
not present a final judgment declaring his marriage
void, for he can adduce evidence·tn'the crimin.alcase
of the nullity of his marriage other than proofof a
final judgment declaring his .marriage void (Beltran
v. People, GR No. 137567, June 20, 2000).
EXCEPTIONS:
Direct attack, not a collateral attack, on ttie nullity of
a marriage must first be undertaken when:'- ·
1. A person in a void marriage wants to rer:narry;in
such circumstance, he must first file a civil·case
to obtain a judicial declaration of nullity of the
first marriage (FAMILY CODE, Art. 40);
2. If a donor desires to revoke a donation propter
nuptias (in consideration of the marriage) given
to one or both the spouses on the ground that
the marriage is void (FAMILY CODE, Art. 50 in
relation to Arts. 43, par. 3 and 86, par. 1).
JUDICIAL DECLARATION OF NULLITY
The absolute nullity of a previous marriage mciy hP.
invoked for purposes of , ernarriage on the basis
solely of a final judgment declaring such previous
marriage void (FAMILY CODE, Art. 40).
NOTE: Other than for purposes of remarriage, no
judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not
limited to determination of heirship, legitimacy or
Civil Law
illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case
for that matter, the court may pass upon the validity
of marriage even in a suit not directly instituted to
question the same so long as it is essential to the
determination of the case. (Nina/ v. Bayadog, G.R.
No. 133778, March 14, 2000).
REASON: Parties to a marriarie should not be
permitted to judge for themselves its nullity, only
competent courts having such authority. Prior tosuch
declaration of nullity, the validity of the first marriage
is beyond question (Montanez v. Cipriano, GR. No.
181089. October 22, 2012).
GUilTY OF BIGAMY
Elements of Bigamy: (LDCE)
1. The offender has been begally married.
2. The marriage has not been legally Qissolved or
.. in case his or her spouse is absent, the absent
spouse could not yet be presumed dead
according to the Civil Code.
3. The offender fontracts a second or subsequent
marriage; and
4. The second or subsequent marriage has all the
~ssential requisites for validity (2 REYES, The
Revised Penal Code (2012), p. 972).
Gl:.Nl:.RAL Rl,IL,E: One who enters i11lu a
subsequent n1arriage without first obtaining such
judicial declaration is guilty of bigamy. This principle
applies even if the earlier union is characterized by
statute as "void" (Manuel v. People, GR No.
1€55642, November 29, ·2005).
The requirement for a declaration of absolute nullity
. of a marriage is also for the protection of the spouse
who, believing that his or her marriage is illegal and
void, mimies again. With the judicial declaration of
the nullity of his or her marriage, the person who
.marries again cannot be charged with bigamy. A
judicial declaration of nullity is required before a valid
subsequent marriage can be contracted; or else,
what transpires is a bigamous marriage,
reprehensible and immoral (Teves v. People, G.R.
No.188775, August 24, 2011; lwasawa v. Gangan,
GR. No. 204169, September 11, 2013).
EXCEPTION: A judicial declaration of nullity is
not needed where no marriage ceremony at all
was performed by a duly authorized solemnizing
officer, as where the parties merely siyneLI a
marriage contract on their own without the presence
of the solemnizing officer (Morigo v. People, GR.
No. 145226, February 6, 2004).
(N.B. In Pulido v. People, GR. No. 220149, July 27,
2021, the Supreme Court En Banc ruled that the
accused in a bigamy case can collaterally attack the
validity of a prior void marriage in the same criminal
 1
EMPW '
MEM✓Q~Y AID
San Beda University College of Law - RGCT Bar Operabons Center
proceedings for bigamy. No need to obtain a judicial
declaration of absolute nullity in order to raise it as a
defense in a bigamy case.)
Note: According to Bar Bulletin No. 15, S. 2020, this
ruling is not covered by the 2020/2021 Bar because
the scope and cutoff of canonical Jurisprudential
doctrines shall be until September 30, 2020 only.
1. VOID MARRIAGES DUE TO
ABSENCE OF ANY OF THE
ESSENTIAL OR FORMAL
REQUISITES (FAMILY CODE, ART.
35): (18-ALBl-53)
a. Those contracted by any party beloweighteen
(18) years of age even with the consent of
parents or guardians;
b. Those solemnized by any person not legally
8uthorized 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;
c. Those solemnized without hicense, except
those covered by the preceding Chapter;
d. Those !!_igamous or polygamous marriages
not failing under Article 41;
e. Those contracted through mistake of one
contracting party as to the Identity of the other;
and
f. Those subsequent marriages that are void
under Article 53 (FAMILY CODE, Art. 35).
GENERAL RULE: A marriage contracted by any
person during the subsistence of a previous valid
marriage shall be null and void (FAMILY CODE, Art.
41; Gomez v. Lipana, GR. No. L- 23214, June 30,
1970; Republic v. Narceda,
G.R. No. 182760, April 10, 2013).
EXCEPTION: Before the celebration
subsequent marriage, a declaration of presumptive
death may be obtained after complying with the
following requirements:(SAB)
a. Present spouse must file a ~ummaryproceeding
for the declaration of the presumptive death of ,
the absentee without prejudice to the latter's
reappearance;
b. bbsence of the other spouse must have been
for 4 consecutive years, or 2 years where there
was danger of death undercircumstances laid
down in Art. 391 of the NCC; and
c. Well-founded .!!_elief of the present spouse who
wishes to remarry that absent spouse is already
dead (FAMILY CODE, Art. 41).
NOTE: The well-founded belief in the absentee's
death requires the present spouse to prove that
his/her belief was the result of diligent and
reasonable efforts to locate the absent spouse and
that based on these efforts and inquiries, he/she
believes that under the circumstances, the absent
spouse is already dead. It necessitates exertion of
active effort, not a passive one (Republic v. Cantor,
G.R. No. 184621, December 10, 2013; Republic v.
Tampus, G.R. No. 214243, March 16, 2016).
REASON: This is intended to protect the present
spouse from criminal prosecution for bigamy under
Art. 349 of the Revised Penal Code. However, if the
bigamous marriage was committed abroad, the
guilty party cannot be criminally prosecuted for
bigamy in the Philippines as our penal statutes are
territorial in nature (STA.MARIA, supra at 375).
If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all
donations made by one in favor of the other are
revoked by operation of law (FAM/LY CODE, Art.
44).
Effect of Reappearance of Absent Spouse
The subsequent bigamousmarriage under Art. 41 of
the Family Code remains valid despite
n~appearance of theabsentee spouse.
Subsequent marriage isautomatically terminated if
the reappeataoce was recorded in a sworn
statement in the civil registry of the residence of the
parties to the subsequent marriage at the instance
of any interested person with due notice to said
spouses: witb9t.J( prejudice to the fact of
reappear'anc?)-6eir1g judicially determined in case
such fact is disputed (FAMILY CODE, Art.42).
. TfitLsubsequent marriage still subsists in the
· •· -to11owlhg:.
a. If the first marriage has already been annulled
or has been declared a nullity (FAMILY CODE,
Art.42, par. 2);
of the b. If the sworn statement of the reappearance is not
recorded in the civil registry of the subsequent
spouses' residence;
c. If there is no notice to the subsequent spouses;
or
d. If the fact of reappearance is disputed in the
proper courts of law, and no judgmentis yet
rendered confirming such fact of reappearance
(Santos v. Santos, G.R. No. 187061, October 8,
2014).
NOTE: If the absentee reappears, but no step is
taken to terminate the subsequent marriage either
by affidavit or by court action, the absentee's mere
reappearance even if made known to the spouses
in the subsequent marriage will not terminate such
marriage (SSS v. Bailon, G.R. No. 165545, March
24, 2006).
 PERSONS AND FAMILY RELATIONS
Declaration of presumptive death immediately
cxccutory
By express provision, the judgment of the court in a
summary proceeding declaring presumptive death
shall be immediately final and executory (FAMILY
CODE, Art. 247). Therefore, since the judgment is
immediately final and executory, appeal is not an
available remedy. An aggrieved party may file -a
petition for certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such petition
should be filed in the Court of Appeals in accordance
with the Doctrine of Hierarchy of Courts (Republic v.
Tango, G.R. No. 161062, July 31, 2009).
2. PSYCHOLOGICAL INCAPACITY
A malady that is so grave and permanent as to
deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about
to assume (Del Rosario v. Del Rosario, G.R. No.
222541, February 15, 2017).
Psychological incapacity must refer. to the most
serious cases of personality disorders· clearly ·
demonstrative of an utter insensitivity or i0abilhy to
give meaning and significance to Jhe marriage ·
(Republic v. De Gracia, G.R. No'.171557, J=ebruary
12, 2014).
'Psychological incapacity,' as a' ground to nulljfya
marriage under Article 36 oftfie Family Code, should
refer to no less than a mental ~ not merely .physical
- incapacity that causes a' p.3rty to be truly
incognitive of the basic marital ';covenants that
concomitantly must be assumedand, discharg$q by
the parties to the marriage which, as 'so expressed
in Article 68 ofthe Family Code, among othEirs,
include their mutual obligations to live~ together,
observe love, respect and fidelity and render help
and support. (Espina-Dan v. Dan, G.R f\lo:.209031; ·
April 16, 2018) . .
Psychological incapacity is not a medical but a legal
concept. It refers to a personal condition that
prevents a spouse to comply with fundamental
marital obligations only in relation to a specific
partner that may exist at the timeof the marriage
but may have revealed through behavior
subsequent to the ceremonies. It need not be a
mental or personality disorder. It need not be a
permanent and incurable condition. Therefore, the
testimony of psychologist or psychiatrist is not
mandatory in all cases. The totality of the evidence
must show clear and convincing evidence to cause
the declaration ofnullity of marriage (Tan-Anda/ v.
Anda/, G.R.No. 196359, May 11, 2021).
Article 36 of the Family Code must not be confused
with a divorce law that cuts tr.€ marital bond at the
time the grounds for divorcemanifest themselves;
rather, it must be limited to cases where there is a
Civil Law
downright incapacity or inability to assume and fulfill
the basic marital obligations, not a mere refusal,
neglect or difficulty, much less, ill will, on the part of
the errant spouse (Republic v. Romero II, GR. Nos.
209180 & 209253, February 24, 2016).
Requisites of Psychological Incapacity: (GAi)
a. Qravity
- Must be grave/serious such that the party
would be incapable of carrying out the ordinary
duties required in a marriage;
b. Juridical ~ntecedence
- Must be rooted in the history of the party
antedating the marriage, although the overt
manifestations may emerge only after the
marriage; and
c. !ncurability
- Must be incurable or, even if itwere otherwise,
the cure would be beyond the means of the party
· involved (Espina- Dan v. Dan, G.R. No. 209031,
· . Apri/16,2018) . .
The Court rufed that THERE IS psychological
incapacity in the following instances:
a. A senseless\ protracted, and constant refusal to
comply with the ~ssential marital obligations by
one or both. of the :spouses although he, she, or
they;are physic:c:Jlly;capable of performing such
.· obligations :(Chi Ming Tsai v. CA, G.R. No.
119.190, Jariuary16, 1997);
b. A p~rson who is unable to distinguish between
fantasy and .reality would be unable to
comprehend the legal nature of the marital bond
much less its .· 'psychic meaning and the
obligat(ons attached to the marriage, including
parenting. 0f)e unable to adhere to reality
cannot:be f;}>ipected to adhere as well to any
legaJ pr .emotional commitments (Antonio v.
Reyes, G.R. No. 155800, March 10, 2006);
c. A person who brings her children to her mahjong
sessions exposed them to gambling that erode
their moral fiber; hence, she is suffering from
psychological incapacity (Ka/aw v. Fernandez,
G.R. No. 166357, January 14, 2015j;
d. A person with paranoid personality disorder,
more severe than borderline and narcissistic
personality disorders, madehim distrustful and
prone to jealousy and paranoia so extreme and
severe that these caused him to poke a gun at
petitioner's head, and acts of depravity,
incapacitating him to fully comprehend and
assume the essential obligations of marriage
(Tani-De La Fuente v. De La' Fuente, Jr., G.R.
No. 188400, March 8, 2017); and
e. Respondent Martin was diagnosed with
Narcissistic Personality Disorder, with
tendencies toward sadism. This adversely
affected Martin in such a manner that he formed ·
unrealistic ·values and standards on his own
 ~rr~o,Rv At o
San Seda University Col!age of Law - RGCT Bar Operations Canter
marriage and proposed unconventional sexual
practices. (Republic v. Javier, GR. No. 210518,
April 18, 2018).
The Court ruled that THERE IS NO psychol.ogical
incapacity in the following instances:
a. The spouses' disagreement on moneymatters
are common and even normal occurrences
between husbands and wives (Tonga! v. Tonga!,
GR No. 1C7G10, October 19, 2007);
u. The spouses' frequer1l squ8bbles and
respondent's refusal to sleep with petitionerand
be supportive to him; and their bickering and
arguments even before their marriage and
respondent's scandalous outbursts in public, at
most, show their immaturity, and immaturity
does not constitute psychological incapacity
(Navarro v. Cecilio-Navarro, GR. No. 162049,
April 13, 2007),
c. The interpersonai problem with her co- workers
does not suffice to support the conclusion that
she was psychologically incapacitated to enter
into a marital union as they are poles apart from
their marital relationship. While both spring from
human relationship, their relatedness and
relevance to one another should be fully
established for them to be compared or to serve
as measures of comparison with one another
(Republic v. Ence/an, GR No. 170022, January
9, 2013),
d. Sexual infidelity or perversion and abandonment
do not, by themselves, constitute grounds for
declaring a marriage void based on
psychologicai incapacity (Ma/Jilin v.
Jameso!amin, GR No. 192718, February 18,
2015; see also Republic v. Tecag, G.R. No.
229272, November 19, 2018);
e. Emotional immaturity, irresponsibility, sexual
promiscuity, or other behavioral disorders, by
themselves, are nottantamount to psychologicai
incapacity (De/Rosario v. Del Rosario, GR. No.
222541, February 15, 2017);
f. Failings as husband and father are not
tantamount to psychological incapacity to
declare the marriage null and void. The intent of
the law has been to confine the meaning of
psychological incapacity tothe most serious
cases of personality disorders (Gar/et v. Gar/et,
GR. No. 193544; August 2, 2017);
g. Mere showing of 'irreconcilable differences' and
'conflicting personalities' in no wise constitutes
psychological incapacity (Lontoc-Cruz v. Cruz,
GR. No. 201988,October 11, 2017); and
h. Petitioner's bare claim that respondent is a
pathological gambler, is irresponsible, and is
unable to keep a job, does not necessarily
translate into unassailable proof that
respondent is psychologically incapacitated to
perform the essential marital obligations
( Singson v. Singson, G.R. No. 210766, January
8, 2018).
i. Abandonment of the family does not
automatically justify a conclusion of
psychological incapacity under Article 36 ofthe
Family Code (Matudan v. Republic, G.R. No.
203284, November 14, 2016).
Award of Moral Di:lmages
Petitioner is not entitied to moral damages based on
declaration of psychological incapacity because the
8W8t'd of mornl dam~ges should be predicated, not
on the mere act of entering into the marriage, but on
specific evidence that it was done deliberateiy and
with malice by a party who had knowledge of his or
her disability and yet willfully concealed the same
(Buenaventura v. CA, GR.No. 127358, March 31,
2005).
MOLINA DOCTRINE
Jurisprudential Guidelines: (PROBE-PIG)
a. Incapacity must be E,ermanent or incurable;
b. !3.oot cause of the psychologicai incapacitymust
be:
i. Medically or clinically identified;
ii. Alleged in the complaint;
1.) Sufficiently proven by expert; and
2.) Clearly explained in the decision
c. Marital Qbligations refer to Arts. 68-71, 220,
221 and 225 of the Family Code;
d. Plaintiff has !;!urden of proof;
e. Incapacity proven to be £Xisting at the timeof the
ceiebration of marriage;
f. Trial court must order the ,Erosecuting
attorney or fiscal and the Solicitor General
to appear for the state;
g. !ntelJ)retations of the National Appellate
Matrimonial Tribunal of the Catholic Churchof
the Philippines while not controlling should be
given great respect; and
h. Illness is .§rave enough to bring about disability
to assume essential marital obligations
(Republic v. CA and Molina, GR. No. 108763,
February 13, 1997).
In ruling that the doctrine in Republic v. CA and
Molina (1997) was inapplicable, the Court declared
that cases of psychological incapacity should be
decided not on the basis of a priori assumptions,
predictions or generalizations but according to its
own facts. Courts should interpret the provision on a
case-to-case basis; guided by experience, the
findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals.
 ' '' . ,:,, :· . .'_ ',;' "}
88 j ~" f~/-,
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• ', , ' ' ~~
While it was not suggesting the abandonment of the
Molina doctrine, it ruled that said doctrine has
become a strait-jacket, forcing all sizes to fitinto and
be bound by it, and in conveniently applying said
doctrine, has allowed diagnosed sociopaths,
schizophrenics, nymphomaniacs, narcissists and
the like, to continuously debase and pervert the
sanctity of marriage (Edward Kenneth Ngo Te v.
RoweAa Ong Gutierrez Yu- Te, G.R. No. 161793,
February 13, 2009).
NOTE: There was no abandonment of the Molina
Guidelines, rather Ngo Te simply suggested the
relaxation of its stringent requirements (RABUYA,
Civil Law Reviewer (2017), p. 88 '[hereinafter
RABUYA, Civil Law Reviewer]).
Weight of Expert Opinion
By the very nature of cases involving the application
of Article 36, it is logical and understandable to give
weight to the expert opinions furnished·
psychologists regarding the psychological
temperament of parties in order to determine the root.
cause, juridical antecedence, gravity and incurability
of the psychological incapacity. However, such
opinions, while highly advisable, are npt conditions
sine qua non in granting petitions for declaration of
nullity of marriage. At best, courts must treat such .
opinions as decisive but not indispensable evidence
in determining the merits of a given case. In fact, if
the totality of evidence presented is enough to
sustain a finding of psychological incapacity, then
actual medical or psychological examination of the
person concerned need not be resorted to. The trial
court, as in any other given case presented before it,
must always base its decision not solely on the
expert opinions furnished by the parties but also on
the totality of evidence adduced in the course of the
proceedings (Mendoza v. Repubjjc, G.R. No.
· 157649, November 12, 2012).
Alcoholism, Abuse, and Jealousy
Similarly, the husband's alleged alcoholism,
drunkenness, his habitual verbal and physical abuse
of the wife, failure to support the latter and her
children, and unbearable jealousy, do not constitute
psychological incapacity (Republic v. Melgar, G.R.
No. 139676, March 31, 2006).
Totality of Evidence
Psychological incapacity may be established bythe
totality of the evidence presented. The factsalleged
in the petition and the evidence presented,
considered in totality, should be sufficient to
convince the court of the psychological incapacity of
the party concerned (Republic v. Javier, G.R. No.
210518, April 18, 2018).
"What is important is the presence of evidence that
can adequately establish the party's psychological
,",'" .. PERSONS AND FAMILY RELATIONS
> Civil Law
'le*
condition." "The complete facts should allege the
physical manifestations, if any, as are indicative of
psychological incapacity at the time of the
celebration of the marriage" such that "If the totality
of evidence presented is enough to sustain a finding
of psychological incapacity, then actual medical
examination of the person concerned need not be
resorted to." (Espina-Dan v. Dan, G.R. No. 209031,
April 16, 2018).
While the Court has declared that there is no
requirement that the person to be declared
psychologically incapacitated should be personally
examined by a physician, much less be subjected to
psychological tests, this rule finds application only if
the totality of evidence presented is enough to
sustain a finding of psychological incapacity
(Bakunawa Ill v. Bakunawa, G.R. No. 217993
(Resolution),August 9, 2017).
Personal Examination by Physician NotRequired
bJ. for a Declaration of Psychological Incapacity
There is no requirement that the person sought to be
declared psychologically incapacitated should be
personally ex13mined by a physician or psychologist
as a condition sine qua non to arrive at such
dectaration.Jt can be proven by independent means
that one is psychologically incapacitated; there is no
rec1son why the same should not be credited
(Republic v. Tanyag-SanJose and San Jose, G.R.
No. 168;328, February28, 2007).
However, "psychological incapacity" does not mean
to grasp "all &uch possible cases of psychoses."
The ponencia, citing Santos v. Court of Appeals,
reiterated that "psychological incapacity"
deliberately pertains to "the .mostserious cases of
personaHty disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and
sigriificance t9 themarriage." (Castillo v. Republic,
GR. No. 214064, February 6. 2017).
The evidence need not necessarily come from the
allegedly incapacitated spouse, but can come from
persons intimately related to the spouses, i.e.
relatives and close friends, who could clearly testify
on the allegedly incapacitated spouse's condition at
or about the time of the marriage (Bakunawa v.
Reyes Bakunawa, G.R. No. 217993, August 9,
2017).
While the Court has consistently followed the
parameters in Republic v. Molina, these guidelines
are not meant to straightjacket all petitions for
declaration of nullity of marriage. The merits of each
case are-determined on a case-to-case basis, as no
case is on all. fours with another (Republic v. Javier,
G.R. No. 210518, April 18, 2018). .
 :,,'7'!·:, ':; ~ ~: / ,::,-, ,"
MEM✓Q~Y AID
San Seda University CotleQe of Law - RGCT Bar Operations Center
',_: _ '," ,,, .
. ·•fi/\r:'. ~.. : · ,., .·... ,
' · 89'"" ·

Applicability of Res Judicata The following can now marry each other:
Final judgment denying a petition for nullity on the (LSG-CAC)
ground of psychological incapacity bars a a. Brother-in-,baw and sister-in-law;
subsequent petition for declaration of nullity on the b. §tepbrother and stepsister;
ground of lack of marriage license (Ma/lion c. 2 uardian and ward;
v. Alcantara, GR. No. 141528, October 31, 2006). d. Pa11ies who have been fonvicted of adultery or
concubinage; and
Burden of Proof e. ~dopted and illegitimate child, parents and
In petitions for the declaration of nullity of marriage, relatives by consanguinity or affinity of the
the burden of proof to show the nullity of marriage adopter (SEMP/O-DIY, supra at 45).
lies with the plaintiff. Unless the evidence presented
clearly reveals a situation where the parties, or one Determination if Two Persons are Relativesup
of them, could not have validly entered into a to the 4th Civil Degree:
marriage by reason of a grave and serious a. Consider the nearest and immediate common
psychological illness existing at the time it was ascendant; and
celebrated, we are compelled to uphold the b. Count the number of degrees from one of them
indissolubility of the marital tie (Republic v. Galang, to the common ascendant and from the common
GR. No. 168335, June 6, 2011 ). ascendant to the other one (STA.MARIA, supra
at 260).
Who may File Petition to Nullify Marriage onthe
Ground of Psychological Incapacity Grandfather/Grandmother
Even the psychologically incapacitated can file re
action to declare the marriage void(SEMP/O - 0/Y, 2/ 3

supra at 47).
Uncle/Aunt
3. INCESTUOUS MARRIAGES,
1 4
WHETHER THE RELATIONSHIP IS
LEGITIMATE OR ILLEGITtMATE, X Brother/Sister Cousin

BETWEEN: 3 5
a. Ascendants & Descendants of any degree; and
b. Brothers & Sisters whether full or half-blood Niece/Nephew Cousin's child
(FAMILY CODE, Art. 37).
Thus, a ~rsoo (X) is 2 degrees removed from his
4. THOSE CONTRARY TO .PUBLIC brother/sister: · 3 from his uncle/aunt, who is the
POLICY CONTRACTED BETWEEN: brother/sister of his father/mother, 4 from his
(COS-P AAS 2A-K) ..: cpii,sin,; and ·so forth (RABUYA, supra at345),
a. Collateral blood relatives whether legitimate or
illegitimate up to the 4 th civil degree;
NOTE: Relationship by consanguinity is in itself
b. §tep-parents & step children; not capable of dissolution. Hence, the mere fact
c. farents-in-law & children-in-law; that a common ascendant, a grandfather for
d. ~dopting parent & adopted child; example, died does not sever the blood
e. Adopted child & a legitimate child of the relationship of first cousins (STA.MARIA, supra
adopter; at 244).
f. §,urviving spouse of the adopting parent &the
adopted child; Views on Termination of Marriage on the"Affinity
g. ,§urviving spouse of the adopted child & Prohibition"
adopter; a. Relationship by affinity is not terminated by the
h. Adopted children of the same adopter; and termination of the marriage whether there are
i. Parties wherein one, with the intention to marry children or not in the marriage.
the other, ~illed the latter's spouse, or his/her
spouse (FAMIL YCODE, Art. 38). b. Relationship by affinity is dissolved if one ofthe
spouses dies and the spouses have no living
NOTE: There is no need for conviction in a criminal issues or children; it does not ce:=i.se ifthere are
case of the guilty party. The fact of killing committed living issues or children of the marriage 'in
by one of the parties to the marriage can be proved whose veins the blood of the parties are
in a civil case (STA.MARIA, supra at 254). commingled, since the relationship of affinity
was continued through the medium of the issue
of marriage (STA.MARIA, supra at 266-268).
 PERSONS AND FAMILY RELATIONS
Civil Law

c. "Continuing affinity vi~w" VOID MARRIAGE V. VOIDABLE

The Philippines follows the continuing affinity
MARRIAGE
view, which means that the death of one spouse
does not terminate the relationship by affinity
regardless of whether or not there are children
produced under the marriage (Intestate Estate
of Vda. Carungcong v. People, G.R. No.
Always void. Valid until annulled
181409, February 11, 2010).
(STA. MARJA, supra at
NOT[: The Continuing affinity view in Intestate 291).
Estate of Vda. Carungcong v. People is
discussed in light of the languageand spirit of
Article 332.( 1) of the Revised Penal Code. Incapable of being Can be convalidated by
convalidated or tree cohabitation or
5. VOID SUBSEQUENT MARRIAGES ratified (VITUG, prescription (VITUG, supra
a. Without judicial declaration of nullity of previous supra at 273). at 283).
void marriage (FAMILY CODE, Art. 40)

b. Without judicial declaration of presumptive

death of absent spouse (FAMILY CODE, A.rt. Can · be attacked Can only be attacked
41) directly or through a direct action filed
collaterally in an in court.
NOTE: No judicial proceeding to annul a action filed or.by way
of defense. ·
subsequent marriage contracted under Art. 41
is necessary. Also, the . termination ofthe
subsequent marriage by .affidavit provided for
in Art. 42 does not precluclethe filing of an Can · still be Can no longer beimpugned
action in court to prove the reappearance of the impugn~d even after .after death of one of the
absentee and obtain adeclaratlon of dissolution death of parties :parties.
or termination of the subStiquent marriage
(SSS v. Vda. De Baj/on, GR No, 165545,
March 24, 2006).
Co-ownership/ of·· 'Generally Conjugal
c. Where the absent spouse was presumed dead, properties through Partnership or Absolute
and both the present spouse and would.:..be joinfadual Community.
spouse were in bad faith iri contracti11g marriage conidbution"s except
(FAMILY CODE, Art. 44); and void marriage under
Art.40
d. Failure to comply with Art. 52 requiring ;the
partition and distribution of prci'perties and
delivery of children's presumptive legitime,~
Properties are Properties are liquidated in
which should be recorded in the appropriate
liquidated in accordance with the rules
civil registry and registry of property after
accordance with the provided under the
obtaining judgment for declaration of nullity or
ordinary rules of co- chapters in the absolute
annulment (FAMIL YCODE, Art. 53).
ownership except community of propertyand
void marriage under the conjugal partnership of
NOTE: Failure to record in the civil registry and
Art. 40 gains.
registry of property the judgment ofannulment or
of absolute nullity of the marriage, partition and
distribution of theproperty of the spouses and
the delivery of the children's presumptive Action for Action prescribes.
legitimes shall not affect third persons (FAMJL Y declaration of nullity
CODE,Arts. 52-53). does not prescribe.

(See Comparative Chan on Effects of Declaration

of Nullity, Annulment and Termination of Marriage
in Art. 41 and Legal Separation). ·
 &MMPI# \ 1
MEM✓Q~Y AID
San Becta University Conege of I.aw - P.GCT Bar Operations Center
VOIDABLE MARRIAGES
(ART. 45)
VOIDABLE MARRIAGES
A marriage is voidable if there is a defect in any of
its essential requisites (legal capacity end conoont).
It is considered valid and produces all its civil effects
until it is set aside by final judgment of a competent
court in an action for annulment (RABUYA, supra at
448).
RATIFICATION/CONFIRMATION
Ratification or confirmation is the act by which a
person, entitled to bring an action for annulment,
with knowledge of the cause of annulment and after
it has ceased to exist, validates the contract either
expressly or impliedly (4 TOLENTINO,
Commentaries and Jurisprudence on the Civil Code
of the Philippines (1992), p. 600 [hereinafter 4
TOLENTINO]).
GROUNDS FOR ANNULMENT
VOIDABLE MARRIAGES
NOTE: Grounds must exist at the time of
marriage
(AUFFIS}:
1. ~bsence of consent to contract marriage
from the parents, guardian or person
exercising substitute parental authority
(in that order) over one or both of the
parties between 18 years old to 21 years
old;
The marriage is ratified if the party whose parent
did not give consent, after reaching the age of
21 freely cohabits with the other and both lives
together as husband and wife(FAMIL Y CODE,
Art. 45, par. 1).
2. !l_nsound mind of either party;
The test is whether the party at the time of the
marriage was capable of understanding the
nature and consequences of the marriage (1
TOLENTINO, supra at 289).
The true test is whether ·the party concerned
could intelligently consent; that is, that he knew
what contract he was entering into (Hoadley v.
Hoadley, 244 N. Y. 424).
Presumption: A person is presumed
sound mind at any particular time
condition is presumed to exist, in the
of proof to the contrary (Almeda v.
Ponciano Almeda, G.R. No. 194189,
September 14,2017).
The marriage may be ratified by the insaneperson,
after gaining sanity, by freely cohabitating with the
other as husband andwife (FAMILY CODE, Art.. 45,
par. 2).
3. Consent of either party obtained by
.E,raudulenl means as enunu,Hahid in Art.
46 of the Family Code; (NPSD)
a. Non-disclosure of a previous conviction
by final judgment of the other party of a
crime involving moral turpitude;
b. Concealment by the wife of the fact that
at the time of the marriage, she was
~regnant by a man other than her
~usband;
The marriage may be ratified by the
injured party by freely cohabitating with
the guilty spouse as husband and wife
after gaining full knowledge of the facts
constituting the fraud (FAMILY CODE,
Art. 45(3)).
:-',\
OF
; NOTE: Concealment must be in bad
faith. If the woman did not expressly
Jhform the man of her pregnancy but
; sLich; physical condition was readily
· apparent to the man, he cannot claim
lack of, knowledge thereof (Buccat v.
.·.;,'?,~rtcaf,,.\.G.R. No. 47101, April 25,
. : fi'g4}); "'.·
c. Concealment of a §.exually
transmissibledisease, regardless of its
· nature, existing at the time of the
marriage;
NOTE: Nature or gravity of disease is
irrelevant; it is enough that there was
concealment at the time of the
ceremony (RABUYA, supra at 458).
d. Concealment of Qrug addiction, habitual
alcoholism, homosexuality or
lesbianism existing at the time of the
marriage.
Fraud
There is fraud when, through insidious
words or machinations of one of the
contracting parties, the other is induced to
enter into a contract which, without them, he
would not have agreed to (CIVIL CODE, Art.
to be of 1338).
and the
absence Enumeration Exclusive
Heirs of The enumeration in Art. 46 is exclusive.
 PERSONS AND FAMILY RELATIONS
Hence, misrepresentation as to character,
health. rank, fort1 mP. or r.hr1stity is not a
ground for annulment (Anaya v. Palaroan,
GR No. L-27930, November 26, 1970).
Mere non-cohabitation is also not a ground
for annulment of marriage (Villanueva v. CA,
GR No. 132955, October 27, 2006).
Entering into a marriage for the sole purpose
ofevading immigration laws does not qualify
as a ground of fraud under any of the listed
circumstances (Republic v. Albios, G.R. No.
198780, Octoper 16, 2013).
4. Vitiated consent of either party through
Eorce, intimidation or undue influence;
NOTE: Criminal liability attaches to anyone who
uses violence, intimidation and fraud- ih
contracting · a marriage (REVISED PENAL
CODE, Art. 350).
Violence
When in order to wrest consent',. serious or
irresistible force is employed (CIVIL CODE, Art.
1335, Par. 1).
Intimidation
When one of the .contr$cting parties is
compelled by a reasonable ·and well 0 grounded
fear of an imminent and grave evil upon his
person or property, or ·upon• the· pers<;>n or
property of his spouse, descendants, . or
ascendants, to give his consent (CIVIL CODE,
Art. 1335, Par. 2). · of potency (People v. Benjamin Lim Y Beltran,
Factors to consider in violence and intirnidatior:i:
(ASC)
a. ~ge;
b. §.ex; and
c. fondition of the person.
NOTE: A threat to enforce one's claim through
competent authority, if the claim is just or legal,
does not vitiate consent (CIVIL CODE. Art.
1335, pars. 3 and 4).
Undue influence
It is when a person takes improper advantage
of another, depriving the latter of reasonable
freedom of choice (CIVIL CODE, Art. 1337).
Factors to Consider: the confidential, family,
spiritual and other relations between the parties
or the fact that the person alleged to have been
unduly influenced was suffering from mental
weakness or was ignorant or in financial distress
(CIVIL CODE, Art. 1337).
Civil Law
The marriage may be ratified by the injured party
by freely cohabiting with the guilty spouse as
husband and wife after the disappearance or
cessation of force, intimidation or undue
influence (FAMILY CODE, Art. 45, par. 4).
5. Physical incapability of either party to
consummate the marriage with the·
other, and such incapacity continues
and appears to be incurable;
NOTE: Art. 45, Par. 5 of the Family Code refers
to lack of power to copulate. Incapacity to
consummate the marriage denotes the
permanent inability on the part of the spouses
to perform the complete act of sexual
intercourse. Non-consummation of a marriage
may be on the part of the husband or of the wife
and may be caused by a physical or structural
defect in the anatomy of one-of the parties or it
may ,be due to chronic illness and inhibitions or
fears arising in whole or in part from
psychophysical conditions. It may be caused by
psychogenic causes, where such mental block
or disturbance . has the result of making the
spouse physically incapable of performing the
marriage act (Alcazar v. Alcazar, GR.
No.174451: October 13, 2009).
Impotence·
Impotency refers to lack of power to copulate,
not to mere ,sterility (SEMP/O-DIY, supra at 71 ).
lrnpotency: being an abnormal condition should
,not be presume\:!. The presumption is in favor
G,R. Nos. 131861, August 17, 1999). It refers
to the physical inability to have sexual
intercourse and is not synonymous with sterility.
Subsequently, sterility refers to the inability to
p-focreate (Macadangdang v. CA, G.R. No. L-
49542, September 12, 1980).
Impotency caused by a supervening infirmity
does not invalidate the marriage (RABUYA,
supra at 462).
Requisites for Annulment due to Impotence:
(N<>t-U-PIE)
a. It ,Exists at the time of the celebration of the
marriage;
b. It is fermanent;
c. It is l[lcurable
d. It is !,!nknown to the other spouse; and
e. The other spouse must Not also be impotent
(STA.MARIA, Persons, supra at 322-323).
The marriage is not subject to ratification by the
continued cohabitation as husband and wife
because there has been an entire and complete
 1
ifMl!M '
MEM✓Q,RY AID
San Seda University College of Law - RGCT Bar Operations Center

failure of the consideration of the marriage ACTION FOR ANNULMENT OF

contract. However, the defect may still be barred VOIDABLE MARRIAGES
by prescription (RABUYA, supra at 464).

Doctrine of Triennial Cohabitation

The presumption that the husband is impotent if
the wife remains a virgin for at least 3 years from
the time spouses started cohabiting (Tompkins Parent/
v. Tompkins, 92 NJ 113 as cited in STA.MARIA, legal
supra at 324; 1 PARAS, supra at 472). guardian parties
having reach 21
Refusal on the part of a Filipino girl to submit to charge of Free
a physical examination to determine impotency the parties cohabita-
- - - - - + - - - - - - - - 1 tion after
does not raise the presumption of impotency
because of the natural modesty of our native Within 5 reaching
girls (Jimenez v. Canizares, G.R. No. L-12790, years after age of 21
reaching
August 31, 1960).
21
6. §exually transmissible disease of either Any time Free
party found to be serious and appears to before the cohabita-
be incurable. death of tion after
either insane
Elements: (SEASU) party regains
a. §.exually transmissible disease; sanity
b. .5xisting at the time of marriage;
c. ~ppears incurable;
d. It is §.erious; and Any time
e. !l_nknown to the other party at the time 1;1uardian before the
ofthe marriage (RABUYA, supra 465). at or persons death of
flaving either
The marriage is not subject to ratification by the iegal party
continued cohabitation but the defect may still ¢harg~ of
be barred by prescription (Id.). ·· ,:£h:e,1n-$aF1e
·:;:,'i_':._,"{'x--/-'-: ,

NOTE: Whichever comes first · between During

cohabitation or prescription may convalidate the lucid
marriage. The term "convalidate" in Roman interval or
Catholic canon law is the making of a putative after
marriage valid following the removal of some regaining
impediment. sanity

Within 5 Free
Years from cohabita-
the tion even
discovery with full
of fraud knowledge
of facts
constitu-
ting the
fraud

Within 5 Free
years from cohabita-
the time tion after
the force, disappear-
intimida- ranee of
tion, or force,
undue intimida-
influence tion/ undue
ceased influence,
 PERSONS AND FAMILY RELATIONS
Civil Law

between the contending parties is not fatal to the

validity of the proceedings in the trial court (Tuason
v. CA, G.R. No. 116607, April 10, 1996).

respec- NOTE: If the defendant spouse fails to answer the

tively complaint, the court cannot declare him or her ·in
default; instead, it should order the public prosecutor
Within 5 No to determine if collusion exists between the parties
years after ratification (RULES OF COURT, RULE 18, Secs. 6 and 13 (b);
the since defect Supreme Court En Banc Resolutionsupra).
celebra- is perma-
tion of the nent PEND ENCY OF ACTION FOR
marriage
ANNULMENT
Within 5 No During the pendency of the action and in the
years after ratification absence of adequate provisions in a written
the celebra- since defect agreement between the spouses, the court shall:
tion of the is 1. Provide for the support of the spouses and the
marriage permanent custody and support of common children;
(FAMILY CODE, Arts. 45 and 47). 2. Give paramount consideration to the moral and
.. material welfare of the said children and their
choice of the parent with whom they wish to
remain; and
ADDITIONAL·. 3, Provide for appropriate visitation · rights
(FAMIL YCODf=, Art. 49).
REQUIREMENTS FOR
NOTE: Visitatioh rights flow from the natural right of
ANNULMENTO'R.i both parents to each. other's company. There being
DECLARATION OF. . no such parent~child -relationship between them,
Gerardo, who · is . the, father of Mario, has no
NULLITY (ART. 48, PAR. demand.able right to visit the child of Mario with
1; SUPREME COURT EN Theresa (Concepcior, ,v. CA, G.R. No. 123450,
AugL1st 31, 200S). · ·
BANC RESOLU'f:ION .A)M. "

02-11-10-SC) DECISION ON THE NULLIFICATION OF

TI-H=IVIARRIAGE'
N9judgrnent shaHbe based upon stipulation offacts
or cgnfessiop of judgment (FAMILY CODE, Art. 48,
Pat.. 2): ..
PROSECUTING ATTORNEY OR'FlSCAL
SHOULD: ..
STIPULATION OF FACTS
1. Appear on behalf of the state;
2. Take steps to prevent collusion between the · "An admission by both parties made in court agreeing
parties; and to the existence of the act constituting the ground for
3. Take care that evidence is not fabricated or annulment or for the declaration of nullity
(STA.MARIA, supra at 335).
suppressed (FAMILY CODE, Art 101).

COLLUSION CONFESSION OF JUDGMENT

There would be collusion if the parties had arranged
to make it appear that a matrimonial offense had
been committed although it was not, orif the parties
had connived to bring about a legal separation even
in the absence of grounds therefor (De Ocampo v.
Florenciano, G.R. No. L-13553,February 23, 1960).
However, petitioner's vehement opposition to the
annulment proceedings negates the conclusion that
collusion existed between the parties. Under these
circumstances, the non-intervention of a matters had been adjudicated in · previous
prosecuting attorney tc assure lack of collusion
The admission made in court by the respondent
admitting fault as invoked by the plaintiff to sever the
marriage ties (Id.).
After the court grants the petition, it shall issue the
decree of absolute nullity or annulment only after
compliance with the following: (LiPaDi-Le-Re2)
1. Liquidation, Partition, and Distribution. of the
properties of the spouses including custody and
support of the common children unless such
judicial proceedings;
 MEM✓Q~YAID
San Seda University Cottege of Law - RGCT Bar Operations Center
2. Delivery of the children's presumptive Legitimes
in cash, property or sound securities unless
otherwise mutually agreed upon and judicially
approved;
NOTE: Delivery shall in no way prejudice the
ultimate successional rights of the children
accruing upon the death of either or both
parents. The value of the properties received
shall be considered as advances on their
legitime (FAMILY CODE, Art. 51).
3. Registration of the entry of judgment granting
petition for declaration of absolute nullity or
annulment in the Civil Registry where the
marriage was celebrated and in the Civil
Registry where the marriage was recorded; and
4. Registration of approved partition and
distribution of properties of the spouses in the
proper Registry .of Deeds where the real
properties are located (FAMILY CODE, Arts.50-
52).
EFFECTS OF THE DECREE
ANNULMENT
' 1. Termination of the marital bond but effects
thereof are not totally wiped out (RABUYA,
supra at 313). ·
2. Either ofthe former spouses may re-marry after
complying with the requir~ments of Art. 52
(FAMILY CODE, Art. 53). .
3. On Children (FAMILY CODE, Art. 54)
a. Those conceived or born before the
judgment or annulment or absolute nullity
of the marriage under Art. 36 has become
final and executory, shall be considered
legitimate. ·
b. Those conceived or born of the subsequent
marriage under Art. 53 shall likewise be
legitimate.
4. If the marriage is governed by Absolute
Community of property or Conjugal Partnership
of Gains, the same shall be terminated or
dissolved and the same shall be liquidated in
accordance with the provisions of Art. 102 and
129, respectively, of the Family Code (RABUYA,
supra at 493).
a. Unless the parties agree to a complete
separation of property in a marriage
settlement entered into before the
marriage (Dino v. Dino G.R. No. 178044,
January 19, 2011 ).
b. If either spouse contracted the marriage in
bad faith, the rules in Art. 43, par. 2 in
relation to Art. 50 of the Family Code shall
apply.
5. The custody and support of the common
children together with the delivery of the
common children's presumptive legittmes shall
also be made, unless such matters had been
adjudicated in previous judicial proceedings
(FAMILY CODE, Art. 50, par. 2).
6. Donations by reasons of marriage shall remain
valid except if the donee contracted the
marriage in bad faith, in which case the donor
may revoke the donation (FAMILY CODE, Art.
86, par. 3).
7. The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession (FAMILY CODE, Art. 43,
par. 5 in relation to Art. 50).
If the wife is the guilty spouse, she shall resume her
maiden name and surname. If she is the innocent
spouse, she may resume her maiden name and
surname. She may continue to employ her former
husband's surname unless: (a) the court decrees
Q:F . otherwise; or (b) she or the former husband is
-m~mied again to another person (CIVIL CODE, Art..
. 371):'·· · ,-.·••·
.
NOTE: In both instances under Arts. 40 and 45, the
marriages • a.re · governed either by absolute
community of property or conjugal partnership of
gains upless; the: parties agree to a complete
separa_t/on -gr
:wope;r-ty in a marriage settlement
entereointo'.b~Jorf3ttie marriage. Since the property
relations of. th·e parties is governed by absolute
community of property or conjugal partnership of
ga.rrs,,Jhere is a need to liquidate, partition and
distribute the properties (Dino V. Dino,. G.R. No.
178044, January 19, 2011).
LEGAL SEPARATION
(ART. 55)
A legal separation involves nothing more than bed-
and-board separation of the spouses (Lapuz Sy v.
Eufemio, G.R. No. L-30977, January 31, 1972).
A decree of legal separation or relative divorce does
not affect the marital status, there being no
severance of the vinculum (Laperal v. Republic, G.R.
No. L-18008, October 30, 1962).
;\. ·;· ·: , , , i .l ; . , / ;,
,' 96,, ., , '.,'
, '""' '
,
, ,
'
-
' " " '
EXCLUSIVE AND Hl:~rl RIC I IVE
GROUNDS FOR LEGAL SEPARATION:
(RPC-6-ADL-BS-LA)
The grounds enumerated by law to warrant a judicial
decree of legal separation are only those
enumerated in Art 55. They may or may not exist
at the time of the marriage ceremony. As a general
rule, they usually occur after the celebration of the
marriage. No other grounds can be invoked by any
party other than those stated by law (STAMARIA,
supra at 370)_
NOTE: This is in furtherance of the policy of
the State to foster unity in and to preserve the
marital relations as the same is essential to
public welfare (Id,),
1. Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a ctiild of
the petitioner;
Repeated Physical Violence nieans the unjust or
unwarranted exercise of force by a spouse
against the other spouse or their common child
or the child of the other spouse, repeatedly
(RAMIREZ, Law on Marri1;1ge (2003), p. 171),
NOTE: Violence need not be physical, it is
submitted that psychological and sexualviolence
and repeated verbal abuse . may qualify as
grossly abusive conduct (RABUYA, supra at
352)- . ,
The same is also punishaple under RA No.
9262 (Anti-Violence Against Women and their
Children Act of 2004), (Sec, 3(a)J.
Please see Acts of Violence under VAWC under
Rights and Obligations of Couples in Intimate
Relationships in page 67.
2. Physical violence or moral fressure to
compel petitioner to change religious or
political affiliation.
3. Attempt of the respondent to forrupt or
induce the petitioner, a common child, or
a child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement;
NOTE: Refers to prostitution only, and
irrespective of the age of the child (STA MARIA,
supra at 373)-
The law does not give a cause of action to the
petitioner to file a case for legal separation on
PERSONS AND FAMILY RELATIONS
Civil Law
the ground that the respondent-spouse
committed the ground provided in Art 55, par.
3 upon his or her own child with another person.
However, such act may be a cause to suspend
or terminate, depending on the severity, the
parental authority of the respondent over his
own child pursuant to Art. 231, pars_ 2 and 4
of the Family Code(STA.MARIA, supra at 373-
374),
4. Final judgment sentencing the
respondent to imprisonment of more
than ~ years even if pardoned;
These requisites must concur: (6A)
a. The sentence imposed is imprisonment of
more than§_ years; and
b, The conviction occurs only ~fter the
celebration of the marriage.
NOTE: If the respondent is convicted prior to the
celebrntion of the marriage, it will already be a
ground for annulment if the crime involves moral
turpitude and that fact of conviction is not
disclosed to the other party (RABUYA, supra at
353).
5. Habitual ~lcoholism or Qrug Addiction
of the respondent;
NOTE: If the sarne was present during the
celebration ;of the -- marriage but the same is
concealed from the other party, there is fraud
which constitutes a ground for annulment
(FAMILY CODE, Art, 46(4))
6. .!.,esbianism or homosexuality of the
respondent. (FAMILY CODE, Art_ 55).
7. Contracting by respondent of a
subsequent !;!igamous marriage;
So long as there has been a second bigamous
marriage, wherever celebrated, a legal
separation decree may issue (STA.MARIA,
supra at 375).
NOTE: If the bigamous marriage were
committed abroad, the guilty party cannot be
criminally prosecuted for bigamy in the
Philippines as our penal statutes are territorial
in nature {Id.).
8. §exual infidelity or perversion
NOTE: Sexual perversion includes engaging in
such behavior not only with third persons but
· also with the spouse (Id. at 376).
Where there is evidence of the adultery
 ME.M:O~RY AID
San Beda Urnvemrty College of Law - RGCr Bar Operations Center
independently of the defendant's statement
agreeing to the legal separation, the decree of
separation should be granted, since it would not
be based on the confession but upon the
evi9ence presented by the plaintiff. What the
law prohibits isa judgment based exclusively on
defendant's confession (De Ocampo v.
Florenciano, GR. No. L-13553, February 23,
196())
9. Attempt by the respondent against the
!:ife of the petitioner;
NOTE: The attempt on the life of the spouse
must proceed from an evil design and not from
any justifiable cause like self-defense or from
the fact that the spouse caught the other in
f/agrante delicto having carnal knowledge with
another man or woman (STA.MARIA, supra at
376-377).
10. ~bandonment of the petitioner by the
respondent without justifiable cause for
more than 1 year;
NOTE: There must be absolute cessation of -
marital relations, duties, and rights, with the
intention of perpetual separation (Paltosa-Jo v.
CA, G.R. No. 82606, December 18, 1992).
Abandonment implies total renundatioh of
duties. Physical separation alone is not the full
meaning of the term abando,nment (Dela Cruz
v. Dela Cruz, G.R. No. L-19565, January
1968).
PREPONDERANCE OF EVIDENCE
Mere preponderance of evidence will suffi~ to
prove the existence of these grounds, except the
4 th ground where previous criminal conviction is
essential in view of the necessity of a "final
judgment" (1 PARAS, supra at 503).
A decree of legal separation, on the ground of
concubinage, may issue upon proof of
preponderance of evidence in the action for legal
separation. No criminal proceedings or conviction is
necessary (Gandionco v. Hon. Penaranda, G.R. No.
79284, November 27, 1987).
DEFENSES OR GROUNDS FOR
DENIAL OF PETITION
(FAMILY CODE, ART. 56): (C 3MC-PDR}
1. Condonation of the offense or act
complained of;
Condonation
It is the act of forgiving the offense after its
commission. It implies a condition of future good
behavior by the offending spouse. Subsequent
offense on the offending spouse's part revokes
or nullifies the condonation and revives the
original offense (STA.MARIA, supraat 379).
Failure of the husband to look for his adulterous
wife is not condonation to wife's adultery
(Ocampo v. Florenciano, G.R. No. L-13553,
Februaty 23, 1960).
Sexual intercourse is implied condonation
It has been held that 'condonation is implied
from sexual intercourse after knowledge of the
other's infidelity. Such acts necessarily implied
forgiveness. If is entirely consonant with reason
and justice that if the wife freely consentsto
sexual intercourse after she has fullknowledge
of the husband's guilt, her c·onsent should
operate as a pardon of his wrong.
It has been held in a long line of decisions ofthe
various supreme courts of the different states of
the U.S. that 'a single voluntary actof sexual
intercourse by the innocent spouse after
discovery of the offense is ordinarily sufficient to
.,constitut~condonation, especially as against the
' husband' (Busuego v. Offir,e of the
Ombudstftan, G.R. No. 196842, October 9,
2013). c'.
2. Consent to commission of offense or act
cortlplained <>f;
JO; C~n~,\i(t\tS)r' ,,
There is consent when either of the spouses
.. _. _. agreed to or did not object, despite full
·· \>:)i'.)~Q9wledge, to the act giving rise to a ground for
.. legalseparation, before such act was in fact
committed (STA.MARIA, supra at 380).
Consent is prior lo the act; Condonation comes
after (People v. Schneckenburger, G.R. No.
48183, November 10, 1941). It may be
expressed or implied.
Where the spouses entered into an agreement
that each could live with and have carnal
knowledge with other persons without
interference from each spouse, the agreement
is null and void being contrary to law and good
morals, but it may be considered consent which
bars an action for legal separation (People v.
Schneckenburger, G.R. No. 48183, November
10, 1941).
 PERSONS AND FAMILY RELATIONS
3. _g_onnivance between parties in
commission of an offense or act
constituting a ground for denial of the
petition;
Connivance or procurement
Denotes direction, influence, personal exertion,
or other action with knowledge and belief that
such action would produce certain results and
which results are produced (Cohen, Divorce
and Alimony in North Carolina, 59, IV, p. 98 as
cited in STA.MARIA, supra at 380).
Example: If a husband hires a detective to spy
on his wife, and tells him to have sexual
intercourse with her in order to have evidence
(Keeze, Mwriage and Divorce, pp. 550-551, as
cited in PARAS, supra at p. 492).
4. Mutual guilt or where both parties have
given ground for legal separatipn; · ·
5. _g_ollusion between parties; .·
Collusion
It means that the spouses .;:igree to.· make it
appear in court that one of them has committed
a ground for legal separation, or to '.suppress
evidence of a valid defense to such action, for
the purpose of enablif1g the other to obtain a
decree of legal separ13t\on ($EMPIO - DIY,
supra at 104-105). ·
between Collusi6n • anc;I
Difference
Connivance
Collusion is a corrupt \ agreem~nt, while
connivance is a corrupt cot:isent'ing
(STA.MARIA, supra at p 364)'.
6. ,Erescription;
Five-year prescriptive period
An action for legal separation shall be filed within
5 years from time of occurrence of the cause
(FAMILY CODE, Art. 57)
7. Qeath of either party during the
pendency of the case (Lapuz-Sy v.
Eufemio, G.R. No. L- 30977, January 31,
1972); and
8. ,Beconciliation of the spouses during the
pendency of the case.
PROCEDURES IN LEGAL SEPARATION
1. Who may file the action
A petition for legal separation may be filed only
by the husband or the wife (A.M. No. 02-11- 11-
SC, Sec. 2).
Civil Law
2. When to file the action
A petition for legal separation may be filed only
within five yec~rs from the occurrence of any of
the causes of legal separation (A. M. No. 02- 11-
11-SC, Sec. 2).
3. Venue
The petition shall be filed in the Family Court
of the province or city where the petitioner or
respondent has been residing for at least six
months prior to the date of filing or in the case of
a non-resident respondent, where he may be
found in the Philippines, at the election of the
petitioner (A.M. No. 02-11-11-SC, Sec. 2(c)).
4. Prohibited Compromise (CVL-SJL)
The court shall not allow compromise on
prohibited matters such as:
a. The f_ivil status of persons;
b. The Yalidity of a marriage or of a legal
separation;
c. Any,ground for !:egal separation
cl. F, uture ~upport;
e. The Jurisdiction of courts; and
f. Future _begitime.
NOTE: A compromise comprises only those
objects which 'me definitely stated therein, or
which by n~cessary implication from its terms
should be deemed to have been included inthe
sanje. Where a compromise agreementmakes
no mention of the marital ties between spouses
but is limited only t6 their property relations vis-
a-vis their .children, the Court held it was not
prohibited (Santos v. Santos, G.R. No. 214593,
July 17, 2019). _
Plea$ere~er to S11mmary Judicial Proceedings in
page 149 for further discussions.
COOLING-OFF PERIOD
6-month period from the filing of the petition
designed to give the parties ~nough time to further
contemplate their positions with the end in view of
attaining reconciliation between them. No action for
legal separation shall be tried during such period
(FAM/LY_ CODE, Art. 58). It is a mandatory
requirement and its non-compliance makes the
decision infirm (Pacete v. Carriaga, Jr., G.R. No.
53880, March 17, 1994).
NOTE: The cooling-off period can be dispensed with
if the ground for legal separation involves violence
against the woman or the child under R.A. 9262.
Even during the 6-month period, however, the court
must still provide for the support of the spouses and
the children as well as the custody of the children
(Araneta v. Concepcion and Benitez -Araneta, G.R.
No. L-9667, July 31, 1956).
 ihii@#N ' 1
MEM✓Q~Y AID
San Seda University Co»ege of Law - RGCT Bar Operations Center
A writ of preliminary mandatory injunction for the
return of the wife's paraphernal property can in the
meantime, be heard and granted during the 6-
month period (Somosa-Ramos v. Vamenta, Jr.. G.R.
No. L-34132 July 29, 1972).
EFFECTS OF FILING PETLTION FOR
LEGAL SEPARATION: (LOS)
1. The spouses shall be entitled
hive separately from each olher;
2. In the absence of an agreement between the
parties, the court shall Qesignate the husband,
the wife. or a third person to manage the
absolute community or conjugal partnership of
gains property (FAMILY CODE, Art. 61); and
3. The husband shall have no more right to have
~exual intercourse with his wife (SEMP/O-D/Y,
supra at 110).
EFFECTS OF DECREE OF
SEPARATION (LDC-DR-DDS}:
1. The spouses shall be entitled to !:,ive separately
from each other, but the marriage bonds shall
not be severed;
NOTE: The wife who has been granted legal
separation cannot petition to. be allowed:to revert
to her maiden name (CIVIL CODE, Art. 372).
2. The ACP or CPG shall be Qissolved and
liquidated but the offending spouse shall have
no right to any share of the net profits earned by
the ACP or CPG, which shall be forfeited in
accordance with the provisions of Article 43(2);
3. The fustody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 213 of the Family Code;
4. The offending spouse shall be Qisqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of
the offending spouse in the will of the innocent
spouse shall be Revoked by operation of law
(FAM/LY CODE, Art. 63).
. 5. The innocent spouse may revoke theQonations
made by him or by her in favor ofthe offending
spouse
NOTE: The action for revocation must be
brought within 5 years from the time the decree
of legal separation has become final (FAMILY
CODE, Art. 64)
6. The innocent spouse may revoke the
Qesignation of the latter as a beneficiary in any
insurance policy, even if such designation be
stipulated as irrevocable (FAMILY CODE, Art.
64).
7. The obligation of mutual §upport between the
spouses ceases (FAMILY CODE, Art. 198).
NOTE: In case of legal separation, the court
may ordp,r thr1t the guilty spouse shall give
to support to the innocent one, specifying the terms
of such order (FAMILY CODE, A,t. 198).
RECONCILIATION OF LEGALLY
SEPARATED SPOUSES
If the spouses should reconcile, the corresponding
joint manifestation under oath duly signed by them
shall be filed with the court in the same proceeding
for legal separation (FAMILY CODE, Art. 65).
EFFECTS OF RECONCILIATION OF THE
SPOUSES
LEGAL · 1. The legal separation proceedings, if still
pending, shall thereby be terminated at
whatever stage.
The finaliaecree of legal separation shall be set
·-~~l<le{but the separation of property and any
forfeiture of share of the guilty spouse already
affectecj 's,h~II subsist, unless the spouses agree
to revive }heir former property regime(FAMIL Y
CODE, Art.
;-' . '
66).
Agreemenf of'h~{,i<,;-al and motion for its approval
shall be filed in court in the same proceeding for
.· l.Eiggl separation and shall be executed under oath,
W~~[l'! it Sl)9II specify:
'T .. Properties to be contributed anew to restored
regime;
2. Those to be retained as separated properties of
each spouse; and
3. Names of all known creditors, addresses, and
amounts owing to each (FAMILY CODE, Art.
67).
After due hearing, the court shall take measures to
protect the interest of creditors and such order shall
be recorded in the proper registries of properties but
the same shall not prejudice creditors not listed or
notified, unless the debtor-spouse has sufficient
separate properties to satisfy the creditor's claim
(FAMILY CODE, Art. 67). While the Family Code
mentions only the revival of the former property
regime, A.M. No. 0211-SC allows the spouses to
adopt a different property regime.
 PERSONS AND FAMILY RELATIONS
Civil Law

EFFECT OF DEATH OF ONE OF THE

PARTIES
In case a party dies at any stage of the proceedings
before the entry of judgment, the court shall order
the case closed and terminated, without prejudice
to the settlement of the estate in proper proceedings
in the regular courts (A.M. No. 02-11- 11-SC, Sec.
42).

Death of one party to the action causes the death

of the action itself - actio persona/is moritur cum
persona. When one of the spouses is dead, there is
no need for divorce, because the marriage is
dissolved. (Lapuz-Sy v. Eufemia, GR No. L-
30977, January 31, 1972).
 MEM✓O~YAID
San Seda University College of Law - RGCT Bar Operations Center

EFFECTS OF THE PETITION FOR DECLARATION OF

PRESUMPTIVE DEATH, NULLITY OF MARRIAGE,
ANNULMENT, AND LEGAL SEPARATION

Summary No motion to dismiss shall be allowed except if the ground is lack of jurisdiction.
judgment
rendered on The grounds alleged must be proved. No judgment on the pleadings, summary
affidavits, judgment or confession of judgment shall be allowed.
documentary evidence
or oral testimonies at NOTES:
the sounddiscretion of Stipulation of Facts
the court (FAMILY - an admission by both parties made in court agreeing to the existence of the act
CODE, Art.246). constituting the ground for annulment or for the declaration of nullity.

Confession of Juc;lgment
- the admission made in court by the respondent admitting fault as invoked by the
·plaintiff to sever the marriage fies (STA.MARIA,\supra at 335). ·

In legal separation cases, no d'4ree shall be issued unless the Court has taken steps
toward reconciliation of the spouses and)s fully satisfied, despite such efforts.that
reconciliation is highly improbable (FAMJL/'tfP,(?Rf?,,f!,tj, 59).
,· . .,yh.,;,, <. ·~", ',, ~ , ,:,,

Summary proceeding; 1. Liquidation, partition, delivgry:J:if properties, including custody and support of
judgment may be common children unless such~m~tter~,l:i~d been adjudicated in previous judicial
rendered based on proceedings;
affidavits, 2. Delivery ofchildren's presumptive legitimes;
dqcumentary evidence 3. Registration bf the entry of judgment granting the petition in the Civil Registry
or oral testimonies at where the marriage was celebrated AND in the Civil Registry of the place where
the sounddiscretion of the family court is located; and
the court (FAMILY 4. Registration of approved partition and distribution of properties in the Registry of
CODE, Art. 246). Deeds where the real properties are located.

Subsequent marriage Previous marriage, void ab Valid until annulledor No dissolution of

automatically initio. terminated. marriage, only
terminated by affidavit separation · of bed-
ofreappearance. and-board; entitled to
live separately.

Legitimate Illegitimate except those under Legitimate Legitimate

Arts. 36 and 53
 PERSONS AND FAMILY RELATIONS
Civil Law

Custody in case of During pendency:

dispute shall be 1. Written agreement
decidedby the court in 2. Absence thereof, the court decides based on best interest of child and may
separate proceeding award it in the following order of preference:
for custody but same a. Both parents jointly;
considerations as in b. Either parent, may consider choice of child over 7 years unless parent chosen
Declaration of Nullity. is unfit;
c. Surviving grandparent, if several then choice of child over 7 years unless
grandparent chosen is unfit/disqualified;
d. Eldest brother/sister over 21 unless unfit/disqualified; or
e. Any other person deemed suitable by court.

After decree:
To the innocent spouse, but no child unqer 7 shall be separated from the mother
unless there are compelling reasons. ·

NOTE: The matter of custody is r;iot permanent and unalterable,Jf the par~nt who was given custody suffers a
future character change and becomes.unfit, th,e,matter of custody·can always be re-examined and adjusted.
To be sure, the welfare, the bE?st interest, the ber:iefit, and the good of Jhe child must be determined as of the
time that either parent is chosen to be the custodian (Beckett v. Sarmiento, Jr., AM. No. RTJ-12-2326, January
10, 2013).

Support in case of IJUr!ng ~endency:

dispute shall be 1., Written agreem,ent; _
decided by the court in 2. In the' abserfo~_ tpereof; ftorn properties of the abso!llte community of property
a separate proceeding .(ACP) br conjugal partnership (qp)/ · · _.·
for custody but with
the same Afterpecree:, _ . _______ . _ _ _
considerations as in Either parent or b<:>th m:;iy .be ordered b:t the court Jo give an amount necessary for
Declaration of Nullity. support in prop,drtion to.xesources/(Tleans.of the giver and necessities of the recipient

Spousal Support During pendency:

during the pendency of 1. Written agreement;
action (FAMILY 2. In the absence thereof, from properties of the ACP or CP, considered asadvance
CODE, Art. 49). to be deducted from share during liquidation; and
3. Restitution if after final judgment court finds that person providing support
pendente lite is not liable therefor (RULES OF COURT, RULE 61, Sec. 7).

1. ACP or CP shall be 1. ACP or CP shall be 1. ACP or CP shall be 1. ACP or GP shall

dissolved dissolved andliquidated; dissolved and be dissolved and
2. If either spouse contracted liquidated; liquidated;
andliquidated; marriage in bad faith, he or 2. If either spouse 2. Offending
2. If either spouse she hasno right to any share contracted marriage in spouse has no
contracted of the net profits earned by bad faith, he or she right to any share
marriage in bad ACP or CP; and has no right to any of net profits
faith, he or she 3. Net profits shall be forfeited share of the net profits earned by ACP
has no right to any in favor of comm_on children, earned by ACP or C~; or CP; and
share of the net or if none, children of guilty and 3. Net profits shall
 ¥#Yi¥'§ \ I

MEM:Q~Y
of
AID
San Beda University College Law ·· RGCT Bar Operations Center

profits earned by spouse by previous 3. Net profits shall be be forfeited in

ACP or CP; and marriage, or in default forfeited in favor of favor of common
3. Net profits shall be thereof, the innocent common children, or if children, or if
forfeited in favor of spouse. none, children of guilty none, children of
common children, t:ipou:;u IJy previous guilty spouse by
or if none, children In all other cases of void marriage, or in previous
of guiltyspouse by marriage, Art. 147 and 148 default thereof, the marriage, or in
previous marriage, applies. innocent spouse. default thereof,
or in default the
thereof, the In addition, for marriages under spouse.
innocent spouse. Art. 40 and 45:
1. All creditors of spouses and
of the ACP or CP shall be
notified of the proceedings
forliquidation;
2. Conjugal dwelling and lot qn
which it issituated shall be
adjudicated pursuant to Att
102 and 129.

remain valid, unle9s remain valid, Donor is given option

unless donee contracted marriage unless doneecontracted to revoke; if donor
contracted in bad faith, !n. which case, marriage . in bad faith, decides to revoke,
marriage in bad donation is: revoked by in whichc21se, donation must do so within 5
faith, in which operation of law. ··· is rev,oked by operation years from finality of
case, donation is 2. If · both spouses &1 of clil'f":(AtJ'.4:},,p!1t:c 3). decree
revoked by subsequent marriage acteg 2. No 'corfflict: wltti''f'\rt. 86,
operation of law. in bad faith, donatioh.s par. 2 as such does not
2. If both spouses of propternuptias made by one require that marriage be
subsequent in favor of the other qf'ff 1 1:,~nriulled first before
marriage acted in revoked by operation oflaw .• ·,donor>·· may revoke
bad faith.donations (FAMILY CODE,Art. 44). donation - donor has 5
propter nuptias 3. If both spouses are in good years from time he had
made by one in faith, the donor after finality knowledge of lack of
favor of the other of decree ma·y revoke consent; cannot revoke
are revoked by pursuant to Art. 86(1). if there was knowledge
operation oflaw. before the
marriage.
3. Conflict with Art.86, par.
3 but Art. 43, par. 3
prevails- more in
harmony with general
purpose/intent ofact.

Innocent spouse may revoke the designation of the other spouse who acted in bad Innocent spouse may
faith as beneficiary even if the designation is stipulated as irrevocable (FAMILY CODE, revoke designation of
Art. 43, par. 4). the guilty spouse as
beneficiary even if
stipulated as
irrevocable (FAMILY
CODE, Art. 64).
 \ ··~·. ~ · , ; : . : ' : '' J ,,:•, ' ~ · ·

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Revocation takes
effect upon .written
notice to the insured
(insurer).

Spouse in bad faith disqualified to inherit from innocent spouse by testate or intestate Offending spouse
succession. If both spouses of subsequent marriage acted in bad faith, testamentary disqualified from
dispositions made by one in favor of the other are revoked by operation of law (FAMILY inheriting from
CODE, Art. 43). innocent spouse by
intestate succession.
Provisions in favor of
offending spouse
made in the will of
innocent spouse are
revoked by operation
of law (FAMILY
CODE, Art. 63(4)).
 i¼&iti@@ \ I

MEM✓v~Y AID
San Seda University Ccllege of Law - RGCT Bar Oporations Center

6. Expenses shall be paid from the

RlGHTSAND community property;
a. In the absence thereof, from inco.me or fruits
OBLIGATIONS of their scpamte properties:
BETWEEN THE b. In the absence or insufficiency thereof, from
their separate properties (FAMILY CODE,
HUSBAND AND THE Art. 70).
WIFE (ARTS. 68-73)
7. Joint Management of the household

NOTE: Expenses for such management shall be

RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND ANDWIFE
(LORD-SM)
1. Duty to !,)ve together;
Extent of the Duty
While the law provides that the husband and the
wife are obliged to live together, observe mutual
love, respect and fidelity (Art. 68, FamilyCode),
the sanction therefor is actually the
"spontaneous, mutual affection between
husband andwife and not any legal mandate or
court order (Chi Ming Tsoi v. CA, G. R. No.
119190, January 16, 1997).
NOTE: Cohabitation or the obligation to live
together is the public assumption bf a man and
a woman of the marital relation and dwelling
together as husband and wife, thereby holding
themselves out to the public as such (Bitangcor
v. Tan, A. M. No. 528-SBC, February 25, 1982).
2. Duty to Observe mutual love, respect
andfidelity;
~~rrtpbWEl(ed as a judicial authority to compel a
3. Duty to Bender mutual help & support
(FAMILY CODE, Art. 68);
4. Duty to Fix the family Qomicile;
Rule in Fixing the Family Domicile
a. Both husband and wife shall fix the
family domicile. In case of disagreement,
the court shall decide.
b. The court may exempt one spouse from
living with the other if the latter should
live abroad or there are other valid and
r.nmrP.llino rP.,l!';On!'; for thA P.)(P.mption
However, such exemption shall not
apply if the same is not compatible with
the solidarity of the family (FAMILY
CODE, Art.69).
5. Joint responsibility for the §upport of
the family; and
paid in accordance with Art. 70 (FAMILY CODE,
Art. 71).
EFFECT OF NEGLECT OF DUTY
When one of the spouses neglects his or her duties
to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or to
the family, the aggrieved party may apply to the court
for relief (FAMILY CODE, Art. 72).
The relief may take on many forms:
i. Filing a case for legal separation if there are
grounds for the same;
2.. Filing aµ action for declaration of nullity based
>'.: brhArt. 3:6 if the neglect is such that it does not
a
creafe functional marital life; and
3. Petitioning the court for receivership, for judicial
separation of property, or for authority to be the
sole administrator of community property or
conjugal ;parti:iership (STA.MARIA, supra at
427}. .
, ,,, ?<·:. <t:
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NOTE: M~rital'rt~hls including coverture and living in
conjugal dwelling may not be enforced by the extra-
QfQipary writ of habeas corpus. No court is
li\1s6Jha to live with his wife. Coverture cannot be
enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne
process. That is a matter beyond judicial authority
and is best left to the man and woman's free choice
(/lusono v Hildner, G.H. Nos. 139789 & 139808, May
12, 2000).
EXERCISE OF PROFESSION
GENERAL RULE: Either spouse may exercise any
legitimate profession, occupation, business or
activity without the consent of the other (R.A. No.
10572, Sec;. 1 amending Art. 73 of the f-AMIL Y
CODE).
EXCEPTION: The other spouse may object only on
vahd, serious and moral grounds (R./1. No. 10572,
Soc. 1 emending Art. 73 of the FAMILY COOL).
 '-'' ' ~ "" I•,~ ~",., 'v, -~~< /,\},
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RULE IN CASE OF DISAGREEMENT
In case of disagreement, the court shall decide
whether: ( 1) the objection is proper; and (2) the
benefit accrued to the family prior to the objection
or thereafter (R.A. No. 10572, Sec. 1 amending Art.
73 of the FAMILY CODE). Such is summary in
nature (STA.MARIA, supra at 429).
1. Benefit accrued to family before
objection to an immoral or unlawful
profession
- if the benefit accrued prior to the objection, the
resulting obligation shall be enforced against
the community property (R.A. No. 10572, Sec.
1, Par. 2, amending Art. 73 of the FAMILY
CODE).
2. Benefit accrued after objection
- If the benefit accrued thereafter, such
obligation shallbe enforcBd against the separate
property ofthe spouse who has not bbtained
consent (R.A. No. 10572, Sec. 1, _Par, 2
amending Art. 73 of the FAMILY CODE) ..
3. Creditors who acted
protected
-- if spouse transacted with creditor without the
consent of the other but creditor had no
knowledge thereof, the absolute community of
property (ACP) or conjugal partnership of gains
(CPG) shall be liable (R.A. _N'o. 10572; Sec. 1
amending Art. 73 of theFAMIL, Y CODE).'
EFFECT OF COMPULSION
If a husband compels the wife to· gesist from
pursuing a profession or any other conductwhicti the
wife has the right to engage· in, this can_ be
considered acts of violence against women uri.der
R.A. 9262 (STA.MARIA, supra at 428).
PROPERTY RELATIONS
BE1WEENTHE
HUSBAND AND THE
WIFE (ARTS. 74-87)
GOVERNED BY:
1. Marriage settlements (MS) executed before the
marriage or ante nuptial agreements;
2. Provisions of the Family Code;
3. Local customs when spouses repudiate ACP
(FAMILY CODE, Art. 74); and
NOTE: Applies when parties stipulate in their MS that
;-'
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PERSONS AND FAMILY RELATIONS
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Civil Law
local custom shall apply or that ACP regime shall
not govern but fail to stipulate whatproperty regime
will be applied (STA.MARIA, supra at 439).
4. Rules on co-ownership will apply in theabsence
of local customs.
COMMENCEMENT
It commences at the precise moment of the
celebration of the marriage. Any stipulation to the
contrary shall be void (FAMILY CODE, Art. 88 for
ACP and 107 for CPG).
MARRIAGE SETTLEMENT (MS)
It is a contract entered into by the future spouses
fixing the property regime that will govern their
present and future properties during their marriage
(SEMP/O - DIY, supra at 135).
In the absence of a marriage settlement or when
the regime agreed upon is void, ACP shall govern
(FAMILY c·ooE, Art. 75).
REQUISITl;S: (,B-Not2-FAWS)
iil good" faith· are 1. Made-· ~efore celebration of marriage
· ,- (FAMIL YCODE, Art. 76);
2. In ,Writing (ev~n modifications) (FAMILY
CO[)E, Art. 77);
The :GENE~AL RULE is that, in order that any
m6djficatio11inthe JJ)arriage settlements may be
',"{ ,
valid, it must be made before the celebrationof
the'..marrjage, in.' writing and signed by the
parties. By way .bf exception, modification can
be made after the marriage ceremony, but such
n;iodification ,shall need judicial approval and
·' ~hould;onl/ refer to the instances provided in
Articles 66, 67, 128, 135 and 136 of the Family
Cpde. (STA.MARIA, supra at 422).
An oral marriage settlement is void and cannot
be ratified by any claim of partial execution or
absence of objection (STA.MARIA, supra at
417).
EXCEPTION: If marriage is terminated by death
of one of the spouses and the surviving spouse
marries again without initiating settlement of
properties of previous marriage within one ( 1)
year from death of deceased spouse, mandatory
regime of complete separation ofproperty shall
govern property relations of the subsequent
marriage (FAMILY CODE, Arts. 103 and 130).
3. Signed by the parties (FAMILY CODE, Art.
77);
 +;(M#@ \ I
MEM:Q,RY Al D
San Beda University College of Law - RGCT Bar Operations Cen1er
4. Will Not Qrejudice third persons unless
registered in the civil registry and proper
registries of property (STA.MARIA, supra at
437-438);
5. Shall Fix terms and conditions of their
property relations;
6. Must Not contain provIsIons contrary
to law, good morals, good customs,
public order, and public policy, or
against the dignity of eitherspouse; and
7. Additional signatories/ parties in case of
civil interdiction or other disability where
it is indispensable for the guardian
appointed by court to be made a party to
the marriage settlement (FAMILY CODE,
Art. 79).
EFFICACY OF MARRIAGE
SETTLEMENTS
1. The consideration is the marriage itself.
If the marriage does not take place, the
marriage settlement is generally void.
EXCEPTION: Stipulations in the marriage
settlement that do not depend upon the
celebration of the marria_ge shall be_ valid
(FAMILY CODE, A1t. 81) (e.g., recognition of
child).
·,
2. In the absence of contrary stipulation in
a marriage settlement, the property
relations shallbe governed by Philippine
laws, regardless of the place of the
celebration of the marriage· or the
parties' residence.
EXCEPTIONS:
a. If both spouses are aliens, even if
marriedin the Philippines.
b. As to extrinsic validity of contracts
affecting property:
i. Not situated in the Philippines and
executed in the country where the
property is located; and
ii. Situated in a foreign country whose
laws require different formalities for
extrinsic validity entered intci in the
Philippines (FAMILY CODE, Art.
80).
. MODIFICATION IN
SETTLEMENTS
GENERAL RULE: It must be made before the
marriage, in writing, signed by the parties.
EXCEPTIONS: Modifications made through
Judicial decree during the marriage:
1. In case of revival of former property regime"
between reconciling spouses after decree of
legal separation has been issued (FAMILY
CODE, Arts. 66 and 67);
2. When abandoned spouse files petition tor
judicial separation of property under Art. 128;
3. When a spouse files petition for judicial
separation of property for sufficient cause
under Art. 135 of the Civil Code; and
4. Petition for voluntary dissolution of property
regime under Art. 136 of the Civil Code.
DONATION BY REASON OF MARRIAGE
(DONATIONS PROPTER NUPTIAS)
Donations by reason of marriage are those which
are made before its celebration, in consideration of
the same, and in favor of one or both of the future
spouses (FAMILY CODE, Art. 82).
It is without onerous consideration, the marriage
being merely the occasion or motive for the
, donation, not its causa. Being liberalities, they
•.. ren:ic1in sUbj~ct to reduction for inofficiousness upon
"the·oop~(s1d~ath, should they infringe the legitime
of a forced heir (Mateo v. Lagua, G.R. No. L-26270,
October 30, :1f)f5,9).
NOTE: Dc,mation's propter nuptias can be contained
in a marriage settlement. (STA.MARIA, supra at
., , 444).
Requisit;s: '(c'OB)
1. In ~onsideration of marriage;
· 2. In favor of One or both of the future
0
._ • _.. :l>,p91Jses;and -
3. . rviade !!efore celebration of marriage
(FAMIL YCODE, Art. 82).
NOTE: If one of the requisites is not complied with,
it may still be valid as an ordinary donation (provided
that all other essential requisites are complied with)
(PARAS, supra at p. 522).
REQUISITES OF A VALID DONATION BY
THE WOULD-BE SPOUSES TO EACH
OTHER IN THE MARRIAGE
SETTLEMENTS: (MOAC)
1. There must be a valid Marriage
settlement stipulating a property regime
other than ACP (FAM/LY CODE, Art. 84) .
MARRIAGE
REASON: A donation propter nuptias would
be useless if the property regime is ACP,
where spouses. become co-owners, with
exception to matters under Art. 92
(Properties excluded from the community
_, ·,-<,, '); :-' ~ '. ft, ' ' ~ ".

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µ1uµe1 ly) c111d l11ose stipulated inthe marriage DONATIONS PROPTER NUPTIAS V.
settlement (STA. MARIA, supra atp. 492). ORDINARY DONATIONS
2. GENERAL RULE: Donation in Marriage
settlementnot more than Qne-fifth (1/5)
of present property (FAMIL y CODE, Art.
84).

NOTE: Any excess shall be considered void and

the donation will be reduced to 1/5 (FAMILY
CODE, Art. 84)

3. 8ccepted by would-be spouse; and

NOTE: Donee must accept the donation

personally, or through an authorized person
with special power for the purpose, or with a
general or sufficient power; otherwise, the
donation shall be void (CIVIL CODE, Art. 745;
STA.MARIA, supra at 444). Acceptance must be
made during the lifetime of the donor and the
donee (CIVIL CODE, Art. 746; STA.MARIA,.
supra at 444). If present property is There is no limit to
donated and the donation of present
4. fomplies with requisites in Title II of property regime. js not property provided
Book II ofCivil Code on Donations. ACP, donation)s limited _legitimes are not
to 1/5 of the property. impaired.
For donation of present property to be valid, the
rules governing ordinary donations under Title Ill
of Book Ill of the Civil Code n,ust be observed.
Grounds for revocation Grounds for revocation
Please refer to Property Law on requisites of are found in Art. ~6. of are found in Chapter 4,
valid donations. the Family Code. Title Ill, Book Ill of the
Civil Code.
DONATION PROPTER NUPT/AS OF
(SEMPJO --DIY, supra at 145).
FUTURE PROPERTY
Donation propter nuptias (DPN) cif future property is EXCLUDED BONATIONS:
allowed by way of exception to Art 751 of Civil
1. Th9se made in favor of the spouses after the
Code, which provides that donations cannot
celebration of the marriage;
comprehend future property. It is governed by !he
. 2. Those executed in favor of the future spouses
law on testamentary succession both as to intrinsic
but not in consideration of marriage; and
and extrinsic validity (FAMILY CODE, Arl. 84, Par. 2).
3. Those granted to persons other than the
spouses even though they may be founded on
DONATION PROPTER NUPT/AS OF the marriage (Serrano v. Solomon, G.R. No. L-
ENCUMBERED PROPERTY 12093, June 29, 1959).
The donation is valid because the donor is still the
owner, even if it is encumbered. If mortgage is VOID DONATIONS BETWEEN SPOUSES
foreclosed and sold at a lesser price, donee is not 1. Before marriage
liable for deficiency but if sold for more, donee is - if the future spouses agreeupon a regime other
entitled to excess (FAMILY CODE, Art. 85). than ACP, they cannot donate to each other in
their marriage settlements more than 1/5 of their
property. Any excess shall be void (FAM/LY
CODE, Art. 84).

EXCEPTION: If the donation propter nuptias is

contained in a separate deed, the "not more than
one-fifth" limitation will not apply. The g,eneral
rules on donation under Article 750 of the Civil
 ~, ' " ..-,,
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MEM✓Q-RY AID
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San Seda University College of Law - RGCT Bar Operations Center ,
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Code shall govern (STA.MARIA, supra at. 430).
2. During marriage
~ every donation or grant of gratuitous
advantage, direct or indirect, between the
spouses, shall be void {FAMIL YCODE, Art.
87).
Exceptions:
a. Moderate gifts on occasions of family
celebrations
NOTE: The degree of being moderate
depends upon the financial capacity or
condition of the spouses.
b. Donations mortis causa.
NOTE: This rule also applies to persons
living together as husband and wifewithout
a valid marriage (FAMILY CODE, Art. 87).
REASON:
i. To protect secured creditors;
ii. To prevent the weaker spouse from
beinginfluenced by the stronger spouse;
iii. To prevent an indirect violation of the
rule prohibiting modifications of the
marriage settlement during the
existence of the marriage (1 PARAS,
supra at 545).
. condition was complied with; and
6. Donee commits 6cts of ingratitude as specified
by Art 765 of Civil Code {FAMILY CODE, Art.
86).
SYSTEMS OF PROPERTY
REGIME
(ARTS. 88-148)
1. ABSOLUTE COMMUNITY OF
PROPERTY (ACP}
The property regime of the spouses in the absence
of a marriage settlement or when the marriage
settlement is void (1 PARAS, supra at529).
It commences at the precise moment the marriage
is celebrated; any stipulation for the commencement
thereof at any other time isvoid (FAMILY CODE, Art.
88). The same applies to CPG (FAMILY CODE, Art.
fO?J:
Provisions on .co-ownership apply to ACP in all
matters not· '.provided by the Chapter on ACP
{FAMILY CODE,.Art. 90).
. .

GENERAL RULE: Community property shall consist

Beneficiary of lni;urance Contract
The prohibition does not include a spouse being
thebeneficiary of an insurance contract over the
life of the other spouse (Gercio v. Sunlife
Assurance Co. of Canada, G.R. No. 23703,
September 28, 1925).
GROUNDS FOR REVOCATION OF
DONATION PROPTER NUPTIAS: (~ot-
VP-ARAL)
1. Marriage Not celebrated or declared yoid ab
initio, except those donations made in the
marriage settlements which shall be void if
marriage is not celebrated;
NOTE: If made by a stranger, action for
revocation may be brought under the ordinary
rules on prescription: if in writing, brought within
ten (10) years and if oral, within six (6) years
(ALBANO, supra at 436-437).
2. Marria9e takes place without Parental consent,
as required by law;
3. Marriage is 6nnulled and dcnee is in bad faith;
4. Upon .!:egal separation, the donee being the
guilty spouse;
5. Donation is with a B,esolutory condition and the
of all pr9perty:QY>(Q§lCj. by the spouses at the time of
the mafrfa~aor:9cquired thereafter (FAM/LY CODE,
Art. 91). .
EXCEPTIONS: (BEG-0)
a:'l?foperty, including fruits and income thereof,
acquired §.efore the marriage by either spouse
who has legitimate descendants by a former
marriage;
b. Property for personal and §.xdusive use except
jewelry;
c. Property acquired during the marriage by
§ratuitol'Js title, including fruits and income
thereof, except when the donor, testator or
grantor expressly provides otherwise (FAMILY
CODE, Art. 92); and
d. Property otherwise classified as separate in the
marriage settlements {FAMILY CODE, Art. 91 ).
Presumption: Property acquired during the
marriage is presumed to belong to the community,
unless otherwise proven (FAMILY CODE, Ari. 93). It
is not rebutted by the mere fact that the Certificate of
Title is in the name ofonly one spouse (Sideco v.
Aznar, G.R. No. L- 4831, April 24, 1953).
NOTE: No waiver of rights is allowed during the
marriage except in case of judicial separation of
property. The waiver must be in a public instrument
 -PERSONS AND FAMILY RELATIONS
and recorded in the office of thelocal civil registrar
where the marriage contract was recorded as well
as in the proper registry of property (FAMILY CODE,
Arts. 89 and 77). The same applies to CPG (FAMILY
CODE, Art. 107).
Alien Married to Filipino Spouse cannot have an
interest on land acquired during_ the marriage
An alien married to a Filipino cannot have any
interest in the community or partnership property.
{STA.MARIA, supra at 463, citing Matthews v.
Taylor, GR. No. 164584, June 22, 2009).
Rule on Games of Chance
Loss: Shall be borne by the loser-spouse and shall
not be charged to the community property.
Winnings: Shall form part of the community
property.
EXCEPTION: If said ticket was given to a $pOuse by
a friend, it shall be considered as a ddnationunder
Art. 92, par. 1. The winnings will nofbe part of the
ACP unless expressly so providedby the '.ddnor of
the ticket (FAMILY CODE, Art. 95 and Art. 92, par.
(1)).
NOTE: The same applies to CP(3 (FAMIL'Y CODE,
Art. 123). .
2. CONJUGAL PARTNERSHIP OF
GAINS (CPG)
It is that formed by a husb 9ncf and wife· whereby
they place in a common ._. fund ttie proceed$,
products, fruits and income. of their separate
properties, and those acquired by eith'er or .both ,
spouses through their efforts orby chanoe;1h~ net
gains or profits obtained by either orbqth spouses to
a
be divided between them equally (as geneiaf rule)
upon the dissolution of the marriage or.• the
partnership (FAMILY CODE, Art. 106).
Should the spouses agree upon the CPG, its
application shall commence at the precise moment
when the marriage ceremony is celebrated. What is
considered is the hour and not the date of the
marriage (FAMILY CODE, Art. 107; STA.MARIA,
supra at 517.
The CPG shall be governed by the rules on the
contract of partnership in all that is not in conflict
with what is provided in the chapter on CPG or by
the spouses in their MS (FAMILY CODE, Art. 108).
Presumption in Favor of Conjugal Partnership
Property
All property acquired during the marriage, whether
the acquisition appears to have been made,
contracted or registered in the name of one or both
Civil Law
spouses, is presumed to. be conjugal unless the
contrary is proved (FAMIL YCODE, Art. 116)
Proof of Acquisition during the Marriage
Proof of acquisition during the coverture is a
condition sine qua non for the operation of the
presumption in favor of conjugal partnership. The
party who asserts this presumption must first prove
said time element. The presumption does not
operate when there is no showing as to when the
property alleged to be conjugal was acquired. If
there is no showing as to when the property in
question was acquired, the fact that the title is in the
name of the wife alone is determinative of its nature
as paraphernal, i.e., belonging exclusively to said
spouse. (Jorge v. Marcelo, G.R. No. 232989, March
18, 2019).
Although it is not necessary to prove that the
property was acquired with funds of the partnership,
proof .of acquisition during the marriage is an
,essential. condition for the operation of the
presumption in favor of the conjugal partnership
(Jorge v, Marcelo, supra).
. The pr~sumption .· that property acquired during
marriage is conjugal, poes not apply where there is
no showing as to wheri the property alleged to be
conjugal was acquired. The presumption cannot
prevail when the tffle i~ in the name of only one
spouse .and the,rights of innocent third parties are
involved:(Tan v.Andrade, G.R. No. 171904, August
7, 2013). ..
Properties under Conjugal Partnership: (L 2C2
·FO~TI)
a, Qbtained from !,abor, industry, work or
prores$i<;>n of either or both spouses;
b: "_bivestock existing upon dissolution of
· partnership in excess of number of each kind
.t)rought to the marriage by either spouse;
c: Acquired by ~hance such as winnings from
gambling, but losses therefrom shall be borne
exclusively by loser-spouse;
d. Acquired during the marriage by onerous title
with fonjugal funds;
NOTE: Although the property appears as
registered in the name of the husband, if it was
acquired for a .valuable consideration during the
marriage, it bears the character of conjugal
property, whether the acquisition is made for ttie
partnership, or for one of the spouses only
(Marigsa v. Macabuntoc, G.R. No. 4883,
September 27, 1910).
Rule on Award of Damages
Damages for physical injuries inflicted by a third
person are exclusive property (Lilius v. Manila
Railroad Co. G.R; No. 42551 September 4,
 +i¥.iid.i, \ I
MEM:Q-RY Al D
San Seda University Conege of Lew - RGCT Bar Operations Cente,
1935).
e. E_ruits of the conjugal property during the
marriage;
f. Acquired through Qccupation ·such as
fi!:;hing or hunting;
g. !:!_et fruits of their exclusive property;
h. ' Share of either spouse in .hidden Ireasure
(FAMILY CODE, Att. 117); and
i. lntecest falling due during the marriage on
principal amount of credit belonging to one
spouse which is payable in partial payments/
installments and collected during the marriage
(FAMILY CODE, Att. 119).
Disposition of CPG
A wife's consent to the husband's disposition of
conjugal property does not always have to be explicit
or set forth in any particular document, so long as it
is shown by the acts of the wife that such consent
was indeed given (Pelayo v. Perez, G.R. No.
141323, June 8, 2005).
The absence of the consent of one spouse to a sat~
renders the entire sale null and void, including
the portion of the conjugal property pertaining to t.he
spouse whocontracted the sale (Orpiano v. Spouses
Tomas, G.R. No. 178611, January 14, 2013).
Exclusive Property of each Spouse: (OG8EC)
a. That which is brought to the marriage as his/her
Qwn (even if with legitimate desceridants by a
former marriage);
b. Acquired during the marriage by Qratuitoustitle;
Exclusive Property of each Spouse
Property donated/left by will to spouses.jointly
with designation of determinatesh~res,
pertain to donee-spouse ashis/her e,xclµsive
property; · in the absence of designation,
property shall be dividedbetween them but shall
belong to themexclusively (FAMILY CODE, Att.
113).
Non-acceptance vis-a-vis accretion
If spouse does not accept his/her part of the
donation, accretion sets in favor of the other
spouse who will own all of property donated as
separate property (FAMILY CODE, Att. 113).
NOTE: Accretion will not apply if donor so
provides or if donation is not joined as when the
wife was given a house and the husband was
given a car.
Onerous Donations
If donation is onerous, charges shall be borne by
exclusive property of donee- spouse, whenever
advanced by the CPG (FAMILY CODE,, Art.
114).
Pensions and Annuities
Retirement benefits, pensions, annuities,
gratuities, usufructs, and similar benefits
acquired by gratuitous title are exclusive
properties; if by onerous title durinq marriage
(i.e. contributions to pension funds or deduction
from salaries of common funds) they are CP
(FAMILY CODE, Att. 115).
Unearned Increments
Unearned increment (such as increase in the
value of the paraphernal property) belongs to
the spouse concerned.
c. Acquired by right of Redemption, barter or
exchange with property belonging to either
spouse;
When exclusive property was redeemed
_•· ,, •·througft;~onjugal funds
·' ; 'C)Wfi~rsfiip still belongs to person who has right
of redemption, even if conjugal funds are used
to redeen-;, '~ubject to reimbursement. (Santos v.
Bariolami$J,, G.R. No. L-18032, November 23,
1922)1
d. Puri~~~;:;,wit_t;i,- !;xclusive money of either
spd$S\t{f:/tM(frY CODE, Att. 109); and
",,,,'ii«-·
When new property was acquired through
,,,' \'; :s~J?arate property and conjugal funds
·. '.lf:sep~rate property in addition to conjugal funds
snail were used as part of the purchase price of a new
property, the new property shall be considered
conjugal.
e. ·Principal amount of ~redit belonging to one
spouse payable in partial payments/
installments, which will be fully paid during the
marriage (FAMILY CODE, Art. 119).
Use of Exclusive Properties: (PISI)
a. Payment of _Eersonal debts;
b. Fines and lnde_mnities;
c. ~upport of illegitimate children of theowner-
spouse; and
d. In case of lnsutficiency of the CPG (STA.MARIA,
supra at 522-523)
Dominion over Exclusive Properties
The spouses retain the ownership, possession,
administration and enjoyment of their exclusive
properties (FAMILY CODE, Att. 110).
Either spouse may mortgage, encumber, alienate or
':·'.~:~t~·::··:,f- '/__:~ ·: :· ;: \· :'· PERSONS AND FAMILY RELATIONS
"" ,tt2,..; 11}:,' , - ~ ~'- ,
. ~, " ~ ~ , Civil Law
, ' ,t \ 'i~ -r,'- ,-: ), : ~/ ( ,'

otherwise dispose of his or her exclusive property CHARGES UPON AND OBLIGATIONS
(R.A. No. 10572, Sec. 2). OF ACP AND CPG
Property Bought on Installment
Property bought on installments paid partly from
exclusive funds of either or both the spouses and Support of the spouses, their common children,
partly from conjugal funds: and legitimate children of either spouse by a
a. If full ownership was vested before the marriage previous marriage.
- it shall belong to the buyer- spouse
(Illustration: contract of sale was perfected For illegitimate For illegitimate
before the marriage and full payment was made children, support from children, support from
during marriage using CP}; or separate property of separate property of
person obliged to give person obliged to give
b. If full ownership was vested during the marriage support. In case of support. In case of
- it shall belong to the conjugal partnership insufficiency or insufficiency or
(Illustration: contract to sell entered into before absence of separate absence of separate
the marriage but ownership was transferred property, ACP shall property, CP shall
during marriage} advance advance support,
suppo chargeable to share of
In both cases, there is reimbursement upon rt,chargeable to share parent upon
liquidation. In (1 ), owner-spouse reimburses.the CP. of , parent upon liquidation, but only
In (2), CP shall reimburse the buyer~ spouse liquidation. after obligationsin Art.
(FAMILY CODE, Art. 118). ' 121 have been
covered.
Improvement of Exclusive Property using CPG ·.

Funds /Reverse Accession Debts and C>bligations Contracted During

If the cost of the improvement and_ any resulting
increase in value are more than toe valve of the
principal property at the time of.the improvement,
the entire property shall belongto CPG subject to
reimbursement of the valueof the principal property
at the time of the improvement to the owner-spouse
(e.g.: the CPbuilt a 10-million peso house in a 5-
million peso(exclusive property)land and as a result
the value of the property went up to P.18M) (FAMILY
CODE, Art. 120, Par. 2).
Accession
If the·cost of the improvement and plu 9 value isequal
to or is less than the value of the principalproperty at
the time of the improvement, the entire property
-Marriage
1. By <the administrator spouse designated in
MS/appointed by court/one assuming sol0
administration;
2. By one withoµt th'e consent of the other;
3. By one with the conse..nt of other; and
4. By both spou;:,es,
For(1) and. (2), creditor has burden of proving
benefit to Jamily and ACP/CPG chargeable to
extent of benefit proven, otherwise, chargeable
to separate property of obligor spouse.
For (3)and (4), benefit to family presumed.
.· .,.

remains the exclusive property of the spouse, .·All faxes, liens, charges and expenses upon
subject to reimbursement of the cost of improvement thecommunity or conjugal property.
(e.g.: the CP built a 10-million peso house in a 15-
millionpeso (exclusive property) land and as a result Taxes and Expenses Taxes and Expenses
the value of the property went up to P25M). for mere preservation for mere preservation
during marriage upon during marriage upon
The obligation to reimburse rests on the spouseupon separate property of separate property of
whom ownership of the entire property is vested, but either spouse used by either spouse,
there is no obligation on the part of the purchaser of family. regardless of whether
the property in case the property is sold by the or not used by family
owner-spouse (Ferrer v. Ferrer, G.R. No. 166496, because use and
November 29, 2006). enjoyment of separate
property of the
spouses belong to the
partnership.

Expenses to enable either spouse to

commence/complete a professional, vocational
or other-activity for self-improvement.
 &4f4#1M♦ \ 1

MEK-Q,RY AID
San Seda Untversrty CoUege of Law - RGCT Bar Operations Center

PROVISIONS COMMON TO ACP AND

CPG
Value donated/promised by both spouses in a. Administration of Property (FAMIL y
favor of common legitimate children for CODE, ACP: Art. 96-98/ CPG: Art. 124-125)
exclusive purpose of commencing or completing
professional or vocational course or other activity GENERAL RULE: Administration shall belong
for self- improvement. to both spouses jointly (FAMILY CODE, Art.
f.Jfi).
Expenses of litigation between spouses unless
suitfound to be groundless. EXCEPTIONS:
i. In case of disagreement, husband's
1. Ante-Nuptial Debts For Ante-Nuptial Debts, decision shall prevail, subject torecourse to
Chargeable to ACP same as ACP but in the court by the wife for proper remedy
if redounded to case of insufficiency of within 5 years from date of contract
benefit of family; separate property, implementing such decision;
2. Personal debts not obligations enumerated ii. In case one spouse is incapacitated or
redounding in Art. 121 must first be unable to participate in theadministration of
tobenefit of family satisfied before such the common properties, the other spouse
such as liabilities debts may be may assume sole powers of administration
incurred by reason chargeable to the CP. (FAMILY CODE, Alt. 96 par. 2).
of crime or quasi-
delict, chargeable to These powers do not include:
separate property of 1.) Disposition; and
debtor spouse; 2.) Encumbrance.
3. In case of
insufficiency of . yvr,tt~n consent of other spouse or authority
separate property, of · t~~ court is required; otherwise,
chargeable to ACP dispoi,ition or encumbrance is void
but considered (FAMi(v CODE, Art. 96 par. 2).
advances
deductible from Spouses are,Joint Administrators
share of debtor- The _. h_usband . and wife are the joint
spouse upon ao_m1ri{¢tr;af¢s;;of their properties forming part
liquidation. of tfle:C~'cotijugal partnership and absolute
community of properties. The rightvested upon
NOTE: The spouses shall be solidarily liable with them to one-half (½) of the conjugal assets
r 'do:es.. not vest until the dissolution and
their separate properties for the obligations if the_
community or conjugal properties are insufficient. ' liqt.i'idcition of the conjugal partnership. The sale
by the husband of property belonging to the
Benefits that might accrue to a husband in his conjugal partnership or the absolute
signing a surety or guarantee agreement not infavor communitywithout the consent of the wife or
of the family, but in favor of his employer corporation, authority of the court is void (Abalos v.
are not benefits that can be consideredas giving a Macatangay,G.R. No. 155043, September 30,
direct advantage accruing to the family. Hence, the 2004).
creditors cannot go against the conjugalpartnership
property in satisfying the obligation subject of the Contract is void when made without
surety agreement. A contrary view would put in peril consent and knowledge of one spouse; and
the conjugal partnership property by allowing it to be annullable when made with knowledge but
given gratuitously similar to cases of donation of without consent
conjugal partnership property, which is prohibited If the husband, without knowledge and consent
(Security Bank v. Mar Tierra Corp., G.R. No. of the wife, sells conjugal property.such sale is
143382, November 29, 2006). void. If the sale was with the knowledge but
without the approval of the wife, thereby
resulting in a disagreement, such sale. is
The conjugal partnership is not liable for an annu!!ab!e at the instance of the wife who is
indemnity agreement entered into by the husband given five (5) years from thedate the contract
to accommodate a third party (Security Bank v. Mar implementing the decision of the husband to
Tierra Corp., G.R. No. 143382, November 29, 2006). institute the case (Ravina v. Villa Abriel/e, G.R.
No. 160708, October 16, 2009).
,~\:, ~\ ~; ;t~v ,{':,,,~:,,::;',:,if ,;~,,
"' . 114 .. ,, , , " · · ,i•,, ',,
l '-/ ' 1 I \ ', ~ I ',
," ~r ' ~ .,_ ~" ' ,'
Continuing offer
The transaction, however, shall be construed
as a continuing offer on the part of the
consenting spouse and the third person, until
acceptance by the other spouse or
authorization by the court before the offer is
withdrawn by either or both offerors• (FAMILY
CODE, ACP: Art. 96, par.2; CPG: Art. 124,
par. 2; Flores v. Sps. Lindo, G.R. No. 183984,
April 13, 2011 ).
Prohibition on Donation
Neither spouse may donate any community
property without the consent of the other but
either may, without the other's consent, make
moderate donations for charity or on occasions
of family rejoicing or family distress (FAMILY
CODE, ACP: Art. 98; CPG: Art. 125).
The prohibition also applies to parties living
together as husband and wife without valid
marriage (SEMP/O- DIY, supra at.174).
EXCEPTION: In ACP, either spouse may
dispose by will of his or her inter~st in the ACP
(FAMILY CODE, Art. 97).
b. Remedies of Present.Spouse in .Case of
Abandonment by The 9ther Spk>Use or
Failure to Comply with Obligations:
(RJA)
i. _Beceivership; ,
ii. Judicial separation of p~bperty; and
iii. ~uthority to be the sole administrator ofthe
community or conjugal property. (FAMiLY
CODE, ACP: Art. 101; CPG: Art, 128).
Presumption of Abandonmen.t
A spouse is deemed to have abandbnedthe
other when he or she has left tile conjugal
dwelling without any intention of returning.'ThrE!e
(3) months disappearance or failure to give
within the same period anyinformation as to a
spouse's whereabouts prima facie raises a
presumption that the absent spouse has no
intention of returning(FAM/L Y CODE, ACP: Art.
101 par. 3; CPG: Art. 128, par. 3).
c. Grounds for Dissolution (FAM/LY CODE,
[ACPJ Art. 99-101; [CPG] Art. 126-128):
(SAD-JR)
i. When there is a decree of legal
§.eparation;
ii. When the marriage is ~nnulled or
declared void;
iii. Upon the _Qeath of either spouse;
iv. In case of Judicial separation of property
during the marriage under Articles 134 to
138 (FAMILY CODE, Art. 99); or
v. Upon the filing of an affidavit of
PERSONS AND FAMILY RELATIONS
Civil Law
"'tr,
Reappearance of the .:ibscnt spouse.
Liquidation after affidavit of
Reappearance
Another instance when an absolute
community of property or a conjugal
partnership of gains is dissolved is when a
reappearing spouse or an interested person
under Art. 41 files an affidavit of
appearances to terminate the subsequent
marriage of the present spouse contracted
with another person. According to Art. 43 the
termination of subsequent marriage shall
result ·in the dissolution of the absolute
community property or conjugalpartnership
of gains of such subsequent marriage
(STA.MARIA, supra at 497)
Separation in Fact (De Facto Separation)
(FAMILY CODE, ACP: Art. 100; CPG: Art. 127).
The separation in fact between husband and
Wife shc;1ll not affect the regime of ACP/CPG
(FAMILY CODE, Art. 100 par.1).
' '
Rules App.licahle when there is De Facto
Separation:
i. The spouse wpo leaves the conjugal home
· or refuS¢s to live therein, without just cause,
shall ndthave the right to be supported;
ii. When tl:le .. coni$ent of one spouse to any
transaction of ttie other is required by law,
judicial iluthori?'ation shall be obtained in a
summary proceeding; and
In
iii. ·- th~ absence of sufficient community
pro~rty, the separate property of both
spouses s.hall be solidarlly liable for the
'support of the family. The spousepresent
,shah; upon proper petition in a summary
, proceeding, be given judicial authority to
a'dminister or encumber any specific
separate property of theother spouse and
use the fruits or proceeds thereof to satisfy
the latter's share (FAMILY CODE, Art. 100).
d. Steps in Liquidation of ACP and CPG
(FAMILY CODE, Art. 102 and 129)
i. Inventory of ACP or CPG propertiesand
exclusive property of each spouse;
.Reason: Separate property is included
because if the community property is not
enough the spouses are liable solidarily with
their separate property (1 PARAS, supra at
551; RABUYA, supra at 448).
Receivable from Each Spouse Should
Also Include Receivables from Each
Spouse For:
1.) Amounts advanced for personal debts
 fi1'l1llili'lff \I

MEM:Q~Y AID
s~n Booa Unr,e,s;ty CoHege of Law • OOCT Bar Operations Center

of each spouse; e. Termination Caused by Death ofEither

2.) Suppori of illegitimate children of either
spouse;and
3.) For CPG, include value of
improvements constructed on separate
property.
ii. Payment of ACP or CPG debts;
Must first pay out of the ACP or CPG
property, if insufficient, spouses are
solidarily liable with separate properties.
iii. For CPG, must first reimburse spouse for
separate property acquired by CP due to
improvements thereon using CPG funds;
iv. For CPG, unless owner is indemnified from
whatever source, payment for the loss or
deterioration of movables belonging to
either spouse that was used for the benefit
of the family shall be made even if due to
fortuitous event;
v. Division of net assets (for ACP) or net profits · ·
(CPG), which are not subject to forfeiture;
vi. Delivery of presumptive legitime, if any,to
the children; and . me:1iri?ge.
vii. Adjudication of conjugal dwelling and lof
Spouse (FAMILY CODE, Art. 103 and
130)
i. ACP and CPG shall be liquidated in a
proceeding for settlement of estate of the
deceased spouse;
ii. If no judicial settlement proceeding is
instituted, the ACP or CPG shall be,
judicially or extra-judicially, liquidatedby the
surviving spouse within 1 year from the
death of the deceased spouse.
If there are debts to be paid, the surviving
spouse must file a proceeding for the
settlement of estate;
iii. If the 1-year period has already
lapsed and no liquidation was made, any
disposition or encumbrance of the A_CP or
CPG shall be void; or
iv. If the surviving spouse contract a
. subsequent marriage withoutliquidating the
ACP or CPG, mandatoryregime of complete
separation of property shall govern the
property relations of the subsequent

COMPARISON Of ACP AND CPG

The absolute community of property'shail ~ommen~e fhe conjugal partnership of gains ~hall commence at
at the precise moment that the marriage is celebrated. th~: pr,e~ise moment that the marriage is celebrated.
Any stipulation, express or implied, for the ~11y;,' ~stip019hqn, express or implied, for the
commencement of the community regime at any other corilmenc~merit of the community regime at any other
time shall be void (FAMILY CODE, Art. 88). time shall be void.

No waiver of rights, interests, shares and effects of the No waiver of rights, interests, shares and effects of the
absolute community property during the marriage can conjugal partnership of gains during the marriage can
be made· except in case of judicial separation of be made except in case of judicial separation of
property (FAMILY CODE, Art. 89 par. 1). property (FAMILY CODE, Art. 107).

Unless otherwise provided in this Chapter or in the
marriage settlements, the community property shall
consist of all the property owned by the spouses at the
time of the celebration of the marriage or acquired
thereafter (FAMILY CODE, Art. 91 ).
All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved
(FAMILY CODE, Art. 116).

Property acquired during the marriage is presumed to The following are conjugal partnership properties:
belong to the cornmunity, unless it is proved that it is 1. Those acquired by onerous titie during the marriage
one of those excluded therefrom (FAMILY CODE, Art. at the expense of the common fund, whether the
93). acquisition be for the partnership, or for only one of
the spouses;
2. Those obtained from the labor, industry, work or
i ~ ,; -: \ <. .) 1 : ,~ .~ ' ' ,: 'l, ~~ ~ .~""- • '

'' '16 :. • ~ ,- \' .: ;• l·; PERSONS AND FAMILY RELATIONS

1, ~ ; ~ ; : ) ' !' ', j Civil Law
' .

profession of either or both of the spouses;

3. The fruits, natural, industrial or civil, due or received
during the marriage from the commori property, as
well as the net fruits from the exclusive property of
each spouse;
4. The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the
property where the treasure is found;
5. Those acquired through occupation such as fishing
or hunting;
6. Livestock existing upon the dissolution of the
partners/lip in excess of the number of each kind
brought to the marriage by either spouse; and
7. Those which are acquired by chance, such as
winnings from gambling or betting. However, losses
therefrom shall be borne exclusively by the loser-
spouse {FAMILY CODE, Art. 117).

Property bought on installment paid. partly from the

exclu~ive funds of either or both spouses and partly
from the conjugal funds conjugal funds belongs to the
buyer or buyers iflull ownership was vested before the
marriage. arid .to the conjugal partnership if such
ownership was vested during the marriage (FAMILY
CODE, Art.. 11 BJ. .

Interests faUing due dt.1ring marriage on the principal

credit belonging to one spouse (FAMILY CODE, Art.
119). .

1. Property acquired during the " marric1ge by 1. That which is brought to the marriage as his or her
gratuitoustitle by either spouse, and the fruits as own;
well as the income thereof; if any,; unl€;SS it is 2. · That which eac_h acquires during the marriage by
expressly provided by the donor, testator or,grantor gratuitous title;
that they shall form part of the community property; 3. That which is acquired by right of redemption, by
2. Property for personal and exclusive use of either barter or by exchange with property belonging to
spouse. However, jewelry shall form part of the only one of the spouses; and
community property; 4. That which is purchased with exclusive money of
3. Property acquired before the marriage by either the wife or of the husband (FAMILY CODE, (lrt.
spouse who has legitimate descendants by a 109).
former marriage, and the fruits as well as the
income, if any, of such property (FAMILY CODE,
Art. 92).

Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of
gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the
community/conjugal partnership but any winnings therefrom shall form part of the community/conjugal
partnership property (FAMILY CODE, APC-Art. 95, GP-Art. 123).

The administration and enjoyment of the community property/conjugal partnership property shall belong to both
 MEM:Q~Y AID
San Beda Unive,sity College of ,aw - RGCT Bar Operations Center

spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to the recourse to the
court by the wife for a proper remedy, which must be availed of within five years from the date of the contract
implementing such decision (FAMILY CODE_. ACP-Art. 96, CP-Ar1. 124).

Neither spouse may donate any community property/conjugal partnership property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate donations from the
community property for charity or on occasion of family rejoicing or family distress (FAMILY CODE, Art. 98, Art.
125).

Either spouse may dispose by will of his or her interest in the community property (FAMILY CODE, Art. 97).

1. Upon the death of either spouse;

2. When there is a decree of legal separation;
3. When the marriage is annulled or declared void; or
4. In case of judicial separation of property during marriage under Arts. 134-138 (FAMILY CODE, ACP- Art.
99, GP - Art. 126).

1. The spouse who leaves the conjugal home or refuse$ to live therein, without just cause shall not have the
right to be supported; . ·
2. When the consent of one spouse to any transactioQ'of t./:le other is required by law, judicial authorization
shall be obtained in a summary proceeding; · " · ...
3. In the absence of sufficient community property, the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding,
be given judicial authority to administer or encumber any specific or separate property of the other spouse
and use the fruits or proceeds thereof to satisfy the'i;;itter's share (FAMILY CODE, ACP- Art. 100, CP- Art.
127). . :.·

If a spouse without just cause abando~s the other or fail~ to comply with hi~ or her obligations to the family, the
aggrieved spouse may petition the court for receivership, Jorj1.Jdicial separation of property or for authority to
be the sole administrator of those absolute commuH'ity/cgnjugal partnership property, subject to such
precautionaryconditions as the court m<ly impos~ (FAMILY CObE', 'ACP- Art. 101 par. 1, CP- Art. 128 par. 1).

1. An inventory shall be prepared, listing separately
allthe properties of the absolute community and
the exclusive properties of each spouse;
2. The debts and obligations of the absolute
community shall be paid out of its assets. In case
ofinsufficiency of said assets, the spouses shall
be solidarity liable for the unpaid balance with
their separate properties in accordance with the
provisions of the second paragraph of Art. 94;
3. Whatever remains of the exclusive properties of
thespouses shall thereafter be delivered to each
of them;
4. The net remainder of the properties of the
absolute community shall constitute its net assets,
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 of such
share as provided in this Code. For purposes of
1. An inventory shall be prepared. listing separately
allthe properties of the conjugal partnership and
the exclusive properties of each spouse;
2. Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either
spouse shall be credited to the conjugal
partnershipas an asset thereof;
3. 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;
4. 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 solidarity liable for the unpaid
balance with their separate properties, in
accordance with the provisions of paragraph (2) of
Art. 121;
 PERSONS AND FAMILY RELATIONS
Civil Law

computing the net profits subject to forfeiture in
accordance with Arts.43, No. (2) and 63, No. (2),
the said profits shall be the increase in value
between the market value of the community
property at the time of the celebration of the
marriage and the market value at the time of its
dissolution;
5. The presumptive legitimes of the common
children shall be delivered upon partition, in
accordance withArt. 51; and
6. Unless otherwise agreed upon by the parties, in
the partition of the properties, the conjugal
dwelling andthe lot on which it is situated shall be
adjudicated to the spouse with whom the majority
of the common children choose to remain.
Children below the age of seven years are
deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no
such majority, the court shall decide_, taRing int,b
consideration the best interests pf saidCh,ildren
(FAM/LY CODE, Art. 102). . dW,Elllingiand the lot on which it is situated shall,
5. Whatever remains of the exclusive properties of
thespouses shall thereafter be delivered to each of
them;
6. 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;
7. The net remainder of the conjugal partnership.
properties shall constitute the profits, which shall
be divided equally between husband and wife,
unless a different proportion or division was
agreed uponin the marriage settlements or unless
there hasbeen a voluntary waiver or forfeiture of
such share as provided in this Code;
8. The presumptive legitimes of the common children
s,hall be delivered upon partition in accordance with
Art. 51; and
9. In th_e partitjon of the properties, the conjugal
unless othei;wise agreed upon by the parties, be
· adjudicated to the spouse with whom the majority
of the common <;hilciryn choose to remain. Children
below the ag·e of seven years are deemed to have
chosen the mother, unless the court has decided
otherwi~e. In das~ there is no such majority, the
couh shall decide, taking into consideration the
best interests of said children (FAMILY CODE, Art.
129) . .

Upon the termination of the marriage by death, the conjugal partijership property shall be liquidated in the same
proceeding for the settlement of the estate', ofJher deceased.
,. !

If no judicial proceeding is instituted,Jhe SJ..J,rvivi~g sp~use Shaff tlquiqate {fie community or conjugal partnership
property either judicially or extra-judicially withfn one ye 9r from the de.ath of the deceased spouse. If upon the
lapse of the one-year period no liquidation is made/ 'ah)' dispositi◊'n or encumbrance involving the conjugal
partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of property shall govern the property relations of
thesubsequent marriage (FAMILY CODE, ACP-Art. 103, GP-Art. 130).

Whenever the liquidation of the community or conjugal partnership properties of two or more marriages
contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective
capital, fruits and income of each community or partnership shall be determined upon such proof as may be
considered according to the rules of evidence. In case of doubt as to which community or partnership the
existing properties belong, the same shall be divided between or among the different communities or
partnerships in proportion to the capital and duration of each (FAMILY CODE, ACP: Art. 104, CPG: Art. 131).
 MEM:Q~Y Al D
San Beda University CottegB of Law - RGCT Bar Op,,ra!Jons Center
3. REGIME OF SEPARATION
PROPERTY
It may refer to present or future property or both,total
or partiaL If partial, ACP shall govern properties not ·
agreed upon as separate (FAMILY CODE, Art. 144).
a. Each spouse shall own, dispose of,
possess, administer and enjoy his or her
own separate estate, without need of the
consent of the other. To each spouse sh3II
belong all earnings from his or her
profession, business or industry and all
fruits, natural, industrial or civil, due or
received during the marriage from his or her
separate property (FAMILY CODE, Art.
145).
b. Both spouses shall bear the family
expenses in proportion to their income, or,
in case of insufficiency or default thereof, to
the current market value of their separate
properties. The liabilities of the spouses to
creditors for family expenses shall,
however, be SOLIDARY. (FAMILY CODE,
Art. 146).
c. Without legal separation, a wife convicted of
adultery is not disqualified from sharing in
the conjugal partnership properties. A
Compromise Agreement which was
judicially approved is exactly such a
separation of property allowed under the
law. However, voluntary separation of
property is subject to the rights of all
creditors of the conjugal partnership of gains
and other persons with pecuniary interest
pursuant to Art. 136 of the Family Code
(Maquilan v. Maquilan, G.R. No. 155409,
June 8, 2007).
d. The requirement under R.A. No. 6713 and
similar laws that the SALN to be filed by
every government official must include
assets, liabilities, and net worth of the
spouse of the filer is construed not to include
the assets, liabilities, and net worth of
spouses whose property regime during the
marriage is by law or by agreementprior to
the marriage one of complete separation of
property. Article 38 of the Code of Muslim
Personal Laws specifically defines their
regime of property relations as Muslims
to be one of complete separation of
property. In view of Section 38 of the Code
of Muslim Personal Laws, the exemption of
Babano from the disclosure requirement
should be clear and undisputed (Abid-
Babano v. Executive Secretary, G.R. No.
201176, August 28, 2019).
NOTE: This should also apply to the Family Code
provisions on Complete Separation of Property.
OF
4. SEPARATION OF PROPERTY AND
ADMINISTRATION OF COMMON
PROPERTY BY ONE SPOUSE
DURINGTHE MARRIAGE
In the absence of an express declaration in the
marriage settlements, separation of property during
the marriage shall not take place except by a judicial
order. Such judicial separation of property may
either be voluntary or for 8Ufficient cause (FAM/LY
CODE, Art. 134).
Causes of J-udicial Separation of Property:
(SCALOP)
a. That at the time of the petition, the spouseshave
been Separated in fact for at leastone ( 1) year
and reconciliation is highly improbable;
b. That the spouse of the petitioner has been_ ~,_..._.,.
sentenced to a penalty which carries with it ~ivil
interdiction;
c. That the spouse of the petitioner has been
judicially declared an ~bsentee;
That Loss of parental authority of the spouse of
petitioner has been decreed by the court;
~' c::fhat the;spouse of the petitioner has abandoned
ifi1:r la~'rtor failed to comply with his or her
Qbligatiqns to the family as provided for in Article
101· and: ,
f. That the' spouse granted the eower of
administration in the marriage settlements has
abused th;:it poyver (FAMILY CODE, Art. 135).
NO't&yj~~f~~,c~~s provided for in b, C, d above,
pres~rit~Hon of final judgment against guilty or
absent spouse shall be enough basis for grant
. ::?:of decree of judicial separation of property
"~)i1(itAM~f+;Y CODE, Art. 135).
Effects of Judicial Separation of Property
a. Dissolution and liquidation of ACP/CPG.
(FAMILY CODE, Art. 137);
b. Liability of the spouses to creditors shall be
solidary with their separate properties;
c. Mutual obligation to support each other
continues except when there is legal separation;
and
d. Rights previously acquired by creditors are not
prejudiced (FAMILY CODE, Art. 140).
REVIVAL OF FORMER PROPERTY REGIME
(CAT-PALS)
It shall be governed by Art. 67 and may be filedin the
same proceedings where separation of property was
decreed in any of the following instances:
a. When the Court, being satisfied that the
spouse granted the power of administration
in the· marriage settlements will not again
abuse that power, authorizes the
resumption of said administration;
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PERSONS AND FAMILY RELATIONS

:: ,_ :,, , '& ), ../ ,,
Civil Law
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l>. WI 1e11 lhe ~b$entee spouse reappears; 5. PROPERTY REGIME OF UNIONS

c. When the civil interdiction Ierminates; WITHOUT MARRIAGE
d. When f_arental authority is judiciallyrestored
to the spouse previously deprived thereof:
e. When after voluntary dissolution of the ART. 147 v. ART. 148
absolute community of property or conjugal
partnership has been judicially decreed
upon the joint petition of the spouses, they
~gree to the revival of the former property
regime. No voluntary separation of property
may thereafter be granted;
f. . When the spouse who has _heft the conjugal
home without a decree of legal separation
resumes common life with the other; or
g. When the spouses who have ~eparated in The following must 1. In cases of
fact for at least one year, reconcile and concur: cohabitation not
resume common life (FAMILY CODE, Art. 1. Parties must be falling under Art.
141). both capacitated to 147.
marry each other;
Administration of Exclusive Property 2. They live Parties are not
(FAM/LY CODE, Art. 142) ··' exclusively with capacitated to
a. The administration of all . classes of · each other as marry each other
exclusive property of either spou·se may be. husband .:ind wife; due to some legal
transferred by the court to the ottv~r spouse 3.· Without the benefit impedim0nts,
(GACH): of marriage or although it may
i. When one spouse· becomes uhder' _.. .a : void also fall-· under a
the Guardian of the other marriag~ (par. 1); void marriage.
ii. When one ,·spousi;! is judicially . a. · Void' marfiages
declared an Absentee; '. under-Art 35;" 2. Incestuous
iii. When one spouse i!, sentellced to a i. Those., marriages under
penalty which carries with it ~ivil sol~mnized Art. 37;
interdiction; :or· by•.• any 3. Void marriages
iv. When one spoL,J~e becomes a pefson--·nbt against public
fugitive from justice or is i~ filding as legally'. policy under Art.
an accused in_ a criminal case (par. ;iuthorized 38;
1). to pe;form 4. Void marriages
marriages; under Art. 35,
b. If the other spouse is not qualified by reason ' 'ii: Those Pars. 1(below 18)
of incompetence, conflict cit.interest, or 'any 9°l~mnized and 4 (bigamous
other just cause, the court shall appoint a "without a or polygamous);
suitable person to be the administrator (par. license; 5. · Void Marriages
2). iii, Mistake in under Article 44
identity.

b. Void marriages
based on
psychological
incapacity
under Art. 36; or

c. Marriages that
are void under
4. Art. 53 when either
of the former
spouses marries
again without
complying with the
requirements of
registration of
judgment of
 f&Hil&B¾■ \ 1

MEM:Q~Y AID
San Seda University Co#ege of l.Dw - RGCT Bar Operations Center

· annulment, the other until after the

partition, ,rnLl termination of their
delivery of cohabitation (par.3)
presumptive
legitimes.
When only one of the 1. If one of the parties
parties to a void is validly married to
Owned in equal shares Separately owned by marriage is in good faith, another, his or her
(par. 1). the parties. If any of the share of party in bad share in the co-
them is married, faith in the co- ownership shall
his/her salary is the ownership shall be accrue to the ACP
property of the ACP or forfeited: or CPG existing in
CPG of the legitimate 1. In favor of their such valid
marriage (par.2). common children; marriage;
2. In case of default or 2. If the party who
waiver by any or all acted in bad faith is
common children or not validly married
their ,descendants to another, his/her
eacp;;i)acant share share shall be
shall beking to the forfeited in the
respective surviving same manner
descendants; or provided for in Art.
3. In their i:ibsence, to 147; and
the' innocent party. 3. The above rules
Governed by rules on Own~d by them in apply even if both
co-ownership (par.1). common in proportion In ~11 1 $ases["t6rteiture parties are in bad
to respective ·actual takes plac~ . upon faith (par.2).
joint contributions termination of
(par.1) cohabi_tation (par.4).

Tender Loving Care Doctrine

Presumed to be
obtained by their joint
efforts, work, or industry
and shall be owned by
them in equal shares.
Efforts in care and
maintenance of family
and household
considered contribution
in acquisitio'n (par.2).
NOTE: Neither party
can encumber or
dispose by acts inter
vivas of his or her share
in the property acquired
during cohabitation and
owned in common
without the consent of
The relationship between a man and a woman
No presumption of joint whose marriage was subsequently declared null and
acquisition. When void on the ground of psychological incapacity is
there is evidence of governed by Art. 147 of the Family Code. Under this
joint acquisition but provision, there exists a presumption that
none as to the extent of contributions made during the marriage are equal.
actual contribution, Even if one of the parties did not contribute
there is a presumption materially to the common fund, but the said party
of equal contributions took care of the household, the other party and their
and shares (par.1). · common children, these acts are considered the said
· party's contribution to the common fund
(Buenaventura v. CA, G.R. Nos. 127358 & 127449
March 31, 2005). '
NOTE: In contrast, Art. 148 provides no presumption
of Joint acquisition. It must be stresseLl that actual
contribution is required by this provision, as opposed
to Art. 147 which states that efforts in the care and
maintenance of the family and household, are
regarded as contributions to the acquisition of
common property by one who has no salary or
 C ,< ,"- t < '
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· . '- . PERSONS AND FAMILY RELATIONS
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income or work or industry. Under Art 148, if the
actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal
shares (Agapay v. Palang, GR. No. 116668, July
28, 1997). Hence, mere cohabitation without proof of
contribution will not result in a co-ownership {Tumlos
v. Sps. Fernandez, G.R. No. 137650, April 12,
2000).
Only properties acquired by them through their
actual joint contribution of money, property, or
industry shall be owned by them in common in
proportion to their respective contributions. The
words "married to" preceding the name of spouse
are merely descriptive of the civil status of the
registered owner. Such words do not prove co-
ownership. Without proof of actual contribution from
either or both spouses, there can be no co-
ownership under Art. 148 of the Family Code (Go-
Bangayan v. Bangayan, Jr., GR. No. 201061, July
3, 2013).
THE FAMILY
(ARTS. 149:.162)
The family, being the foundation of the nation, is a
basic social institution which public policy cherishes
and protects (FAMILY CODE, Art 149); therefore,
no suit between members of the same family .shall
prosper unless earnest efforts for ·a compromise
between the parties have failed (FAMILY CODE, Art
151, par.1). Family relations are governed by law
and no custom, practice or agreement destructive of
the family shall be recognized or given effect
(FAMILY CODE, Art. 149). . Code provide· for exemption from criminal, but not
FAMILY RELATIONS INCLUDE:
(HW-PC-AD-8S)
1. Between !:!usband and Wife;
2. Between fa rents and f hildren;
3. Among other ~scendants and Qescendants;
and
4. Among §_rothers and §isters whether full orhalf-
blood (FAMILY CODE, Art. 150).
MANDATORY PRIOR RECOURSE TO
COMPROMISE
GENERAL RULE: No suit between members of
the same family shall prosper unless it should
appearfrom the verified complaint or petition that
earnest efforts toward a compromise have been
made, butthat the same have failed. If it is shown
that nosuch efforts were in fact made, the same
case mustbe dismissed (FAMILY CODE, Art. 151,
Civil Law
par. 1).
EXCEPTIONS:
1. When a stranger is involved in the suit;
REASON: The interest of such stranger may
differ from the interest of members of the same
family (STA.MARIA, supra at 620).
2. In cases where a compromise is not
allowed: (F2AC-J-VHSG)
a. !:_uture support;
b. !:_uture legitime;
c. !:}__ny ground for legal separation;
d. fivil status of persons;
e. Jurisdiction of courts
f. yalidity of marriage or a legal separation
(CIVIL CODE, Art. 2035);
g. Petition for !:J.abeas corpus (Tribiana v.
Tribiana, GR. 137359, September 13,
2004); and
h. Petition for _§_ettlement of estate
i. Quardianship and custody of children
{Martin'ez v. Martinez, G.R. No. 162084,
Jµne- 28, 2005) (STA. MARIA, supra at
620}.
NOTE: For Article 151 of the Family Code to apply,
the suit. must be exclusively between or among
"membets of th~same family" (Moreno v. Kahn, G.R.
No. 217744, July 30, 2018).
T&rm. "Suit" Limited to Civil Action or Civil
Liability
The term "suit" provided by law clearly implies only
civil action;, (Manalo v. CA, G.R. No. 129242,
January 16, 2001).
Ori the other hand, Art. 332 of the Revised Penal
civil liability, for the crimes of theft, swindling or
malicious mischief committed or caused by the
following:
1. Spouses, ascendants and descendants, or
relative by -affinity in the same line;
2. The widowed spouse with respect to the
property which · belonged to the deceased
spouse before the same shall have passed into
the possession of another; and
3. Brothers and sisters and brothers-in-law and
sisters-in-law, if living together.
NOTE: The exemption established by Article 332 of
the Revised Penal Code shall not be applicable to
strangers participating in the commission of the
crime {STA. MARIA, supra at 620-621).
 ~ \ I /~i~: \;•~i~ ~~,:/~(\
MEM:Q~Y AID
San Beda Uniwrsity College of Law • RGCT Sar Operations Center
RUNNING OF PRESCRIPTIVE PERIODS
Unless otherwise provided by the Family Code and
other laws, Art. 1109 of the Civil Code provides that
prescription does not run between:
1. Husband and wife, even though there be a
separation of property agreed upon in the
marriage settlements or by judicial decree;
2. Parents and children during the latter's minority
or insc:mity; c:md
3. Guardian and ward during the continuance of
the guardianship (STA.MARIA, supra. at 624).
FAMILY HOME
It is constituted jointly by the husband and the wife
or by an unmarried head of the family. It is the
dwelling house where they and their family reside,
and the land on which it is situated. (FAMILY CODE,
Art. 152).
The requirement of a house and land as constitutive
of a family home stresses the element of
permanence. Hence, a boat on a water cannot be
constituted a family home. The occupancy mustbe
actual and not constructive. One cannot claimth;:it
he or she has occupied the premises at the time his
or her overseer, maid, houseboy or driver has lived
in the said place because occupancy by. the one
claiming the house as a family home must be actual
and not constructive (STA.MARIA, supra at.625).
GENERAL RULE: The family home is exempt from
execution, forced sale or attachment (FAMILY
CODE, Art. 155).
COMMENCEMENT OF EXEMPTION:
Exemption is effective from the time of the
constitution of the family home as such and:lasts so
long as any of its beneficiaries actually resides
therein (Spouses Kelley, Jr. v. Planter's Procl_ucts,
Inc., G.R. No. 172263 (Resolution), July 9; ?008).
REASON: When the creditors seize the family
house, they virtually shatter the family itself (1
PARAS, supra at 663). · fami~y and the land on which the house is
EXCEPTIONS: (P-LMT)
1. Debts incurred frior to constitution of the family
home (FAMILY CODE, Art. 155);
As a rule, the family home is exempt from
execution, forced sale or attachment. However,
Art. 155(3) of the Family Code explicitly allows
the forced sale of a family home "for debts
secured by mortgages on the premises before
or after such constitution" (Sps. Fortaleza v.Sps.
Lapitan, G.R. No. 178288, August 15, 2012).
NOTE: Ait. 153 cannot be given retroactive
effect to shield the homes of debtors .from
execution of judgment arising from debts which
'Y,: t\, ~<a •,
•.• ; • :"'-c • f 1 ••
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123. .
became due and demandable prior to the
effectivity of the Family Code. To be able to avail
of the benefits of a family home in relation to
debts which matured prior to August 3, 1988, it
must be shown that the home was constituted
either judicially or extrajudicially pursuant to the
old Civil Code (STA.MARIA, supra at 627).
?. f)P.hts chm to !:,aborers, mechanics, architects,
builders, materialrnen and others who have
rendered service or furnished materials for the
construction of the building;
3. Debts secured by Mortgages on the premises
before or after constitution of the family home;
and
4. Non-payment of I axes (FAMILY CODE, Art.
155).
Exemption must be timely raised as a defense
against execution
While it is. true that the family home is constituted
on a house and lot from the time it is occupied as a
family residence and is exempt from execution or
forced sale under Article 153 of the Family Code,
. such claim for exemption should be set up and
:Pt<?Y~d to_ t~?,t Sheriff before the sale of the property
at pub1ic'a~{ion. Failure to do so would estop the
party from latetdaiming the exemption (Honrado V.
CA, G.R. No. 166333, November 25, 2005; see also
Sps. Araceli & Ernesto de Mesa v. Sps. Acero, G.R.
No. 185064, Janu'-'!ry 16, 2012).
Remepiag 91,;i~t~ecution is a motion to quash
A motion/to• qu~'Slj~ i's available where the w~it of
execution varies the terms of the judgment, or where
it is sought to be enforced against property exempt
,;_dr,om _execution (1 REGALADO, Remedial Law
., ¢i/rt,#'iJrwiif;J,(T1, (2010) p.453 [hereinafter
REGALADO, Remedial Law]).
OUTLINE OF PROVISIONS REGARDING
THE FAMILY HOME:
1. It is constituted on the dwelling house of the
situated (FAMILY CODE, Art. 152);
2. Deemed constituted from time of actual
occupation as a family residence (FAMILY
CODE, Art. 153);
3. Continues to be such as long as any of its
beneficiaries actually resides therein (FAMILY
CODE, Art. 153);
4. Must be part of the properties of the absolute
community or the conjugal partnership or own
by person constituting it (may beeither or both
spouses or the unmarried head of a family)
(FAMILY CODE, Art. 156 par. 1);
5. Property that is the subject of a conditional sale
on installments where ownership is reserved by
the vendor only to guarantee payment of the
purchase price may be constituted as a family
 PERSONS AND FAMILY RELATIONS
home. (FAMILY CODE, Art. 156, par. 2)
6. There must be a fixed and permanent
connection with the persons constituting it
(STA.MARIA, supra at 631).
7. Rule applies to valid and voidable marriages and
even to common-law spouses under Arts. 147
and 148 of the Family Code; and
8. Continues despite death of one or both spouses
or unmarried head of the family for 10 years, or
as long as a minor beneficiary lives therein.
Heirs cannot partition the same unless the court
finds compelling reasons therefor. This rule
shall apply regardless of whoever owns the
property or constituted the family home (FAMILY
CODE, Art. 159).
Note: If after 10 years from death and a minor
beneficiary still lives therein, the family home
shall be preserved only until that · minor
beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect
the interestsof the minor beneficiary until he
reaches the age of majority (Patricio v. Dario II/,
G.R. No. 170829, November 20, 2006}. ,
Family Home Shielded from Partition
The family home is shielded Jr9m immediate
partition under Art. 159 regardless of its
ownership. This signifies that even if the family
home has passed by succession to the _co-
ownership of the heirs, or has been willed to
any one of them, this fact alone cannottransform
the family home into an ordinary property; much
less dispel the protection cast upon it by the law.
The rights of the individual cc:>-:owner of- the
, the child (SEMP/O-DIY, supra at 255).
family home cannot subjugate the rights granted
under Art. 159 to the beneficiaries of the family
home (Arriola v. Arriola, G.R. No. 177703,
January 28, 2008). ··
9. To be a beneficiary (other than thl:l husband
and the wife or an unmarried person who is the
head of the family), the following requisites must
concur:
a. Must be parent, ascendant, descendant,
brother or sister whether legitimate or
illegitimate (FAMILY CODE,Art. 154 par. 2).
b. Must live in the family home (actual
occupancy) (Salazar v. Fe/ias, G.R. No.
213972, February 5, 2018).
c. Must be dependent for legal support upon
the h"ead of the family.
NOTE: A grandson was not considered a
beneficiary of a family home owned by his
grandparent because, wh_ile the said grandchild
was living in the said family home, he was not
dependent for support on the grandparent, who
was the head of the family where the grandchild
lived, but on his father (Patricio v. Dario Ill, GR
Civil Law
No. 170829, November 20, 2006).
The enumeration in Article 154 of the Family
Code may include in-laws provided the home is
jointly constituted by husband and wife. But the
law definitely excludes maids and overseers
(Patricio v. Dario Ill, G.R. No. 170829,
November 20, 2006).
10. A person may constitute or be the beneficiary of
1 family home only (FAMILY CODE, Art. 161).
11. May be alienated, sold, donated, assigned or
encumbered by the owners provided the written
consent of the following are obtained:
a. The person who constituted the same;
b. His or her spouse; and
c. Majority of the beneficiaries of legal age
(FAMILY CODE, Art. 158).
NOTE: In case of conflict, the court shall decide
(FAMILY CODE, Art. 158).
PATERNITY AND
FILIATION
(ARTS. 163-182)
PATERNITY
lt fs the civil status or relationship of the father to
FILIATION
It is the .civH status or relationship of the child to the
father or mother (Id.).
The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate or
illegitimate (FAMILY CODE, Art. 163).
NOTE: Legitimate or illegitimate filiation is fixed by
law and cannot be left to the will of the parties or the
declaration of any phys1cian or midwife (Angeles v.
Maglaya, G.R. No. 153798. September 2, 2005).
LEGITIMATE CHILDREN (MA2VS)
1. Those conceived or born before the judgment
of Annulment or absolute nullity of marriage
under Article 36 ta; become final and executory
(FAMILY CODE, Art. 54);
2. Product of Artificial insemination of the wife with
the sperm of the husband or that of adonor or
both· provided both spouses authorized or
ratified such procedure in a written instrument,
executed and signed before birth of child and
 ~ .;.

MEM:Q~Y AID
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San Beda University College of Law - RGCT Bar Operations Center ._ "' ', .' - ~ ». , r:,c.,,., i' < ""' :

recorded in the civil registry together with the

birth certificate of the child (FAMILY CODE, Art.
164 par. 2); priority set by law in Art. pars. 2 and 3
3. Those conceived or born during a _y'.alid 195 and 199 of Family (STA.MARIA, supra. at
marriage (FAM/LY CODE, Art. 164 par. 1); Code (STA.MARIA, p, 686).
Although the mother may have declared against supra at 686). Entitled to
its legitimacy or was sentenced as an adulteress support from brothers Support from legitimate
(FAMILY CODE, Art. 167); and and sisters sibling subject to the
4. Those born in a ~ubsequent void marriage due
condition in Article 196.
to fFJilure to r.omrly with Arts. !17 ,:incl !1~
f'referential right to No such preference.
(FAMILY CODE, Art. 54).
support over mother if
father has no sufficient Conjugal partnership/
ILLEGITIMATE CHILDREN means to meet both absolute community
Conceived and born outside a valid marriage or claims. property is only
inside a void ab initio marriage such as bigamous secondarily liable for
and incestuous marriages and marriage declared Conjugal partnership of the support of
void for being contrary to law and public policy gains and absolute illegitimate children
(FAMILY CODE, Art. 165). community of property since primary
are primarily liable responsibility falls on
LEGITIMATE CHILDREN V. (FAM/LY CODE, Arts. the parent's
ILLEGITIMATE CHILDREN 94, par. 1 and Art 121, exclusive
par. 1). property (FAMILY
CODE, Arts. 94, par. 9
and 122, par. 3).

Right to bear father's Generally required to

surname. use mother's surname.
Entitled to a legitime of Legitime is 1/2 of the
EXCEPTION: ½ of the · hereditary legitime of a surviving
If child's filiation has estate of the father and legitimate child (CIVIL
been expressly of the Jmother (CIVIL CODE, Art. 991).
recognized by the CODE/Art. 888).
father through the
record of birth
appearing in the. civil
register, or when an
admission in a public
document or private
handwritten instrument
is made by the father
(R.A. No. 9255, Sec.
1). Father is entitled to No such benefit.
paternity leave of 7 days
with full pay.
Joint authority of Sole parental authority
parents (FAMILY of mother (FAMILY
CODE, Art.211). CODE, Art. 176). But
joint if mother and A marriage between an No such prohibition
father are living adopted child and a between a marriage
together (FAMILY legitimate child of the between an adopted
CODE, Art. 211). adopter is void as child and an illegitimate
against public policy child of the adopter.
(FAMILY CODE, Art. 38,
par. 7).
Entitled to receive Entitled to receive
support from any of his support only up to his
or her direct ascendants or her grandparents or
and descendants . in grandchildren as
accordance with the provided for in Art. 195,
? V;' ~::>~ ::~ •:•,1 ~ ~ ',H~•,; ;~'!%
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126, , ,,,' ·· ·, \ , "" ·I
'>' ' PERSONS AND FAMILY RELATIONS
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' ' " ~
ARTIFICIAL INSEMINATION
It is the impregnation of a female with semen from
a male without sexual intercourse. The semen may
be that of a husband, that of a donor, or a
combination of the husband's and a donor's semen
(SEMPIO-O/Y, supra at 259).
RULE ON CHILDREN CONCEIVED AS A
RESULT OF ARTIFICIAL INSEMINATION
The status of the child is legitimate if all the
requirements under Art. 164 are complied with
namely: (BAR)
1. ~oth spouses authorize or ratify such
insemination;
2. The ~uthorization or ratification is in a written
instrument signed by them before the birth of the
child; and
3. The instrument is ,Becorded in the civil registry
together with the birth certificate of the child.
Note: Even if the above requirements are, not
complied with and the husband does not irnpugn
the legitimacy of the child on grounds provided· by·
Art. 166 within the prescriptive ()~riod, the, chilclshall
still be considered legitimate becal,Jse 'the child has
been conceived or born during the v.alid marriage of
the parents pursuant to Art. 164, paf; 1.
RULES ON IMPUGNING LEGITIMACY
Arts. 166 and 167 of the Family <;:ode.necessarily
applies only to a situation where ttie child ha_s _been
delivered by a woman who isi;the child'§ n,aturat
mother (STA.MARIA, supra 645). 'tt does r')ot/3pply
where the child is alleged not to be', the bioiog,bal
child of a certain couple (Geronimo vs.· Santos, G.R:
No. 197099, September 28, 2015).
In the event that any of the grounds Eipumetated ih
Art. 166 is proven,
legitimate nor illegitimate in so far as the ·husband
is concerned. Simply, the husband and the child will
not be related to each other in any manner
considering that the husband did not participate in
any way as to the child's p~ocreation. In so far as the
mother is concerned, the child will be considered
illegitimate (Id.).
GROUNDS FOR
LEGITIMACY: (PBC)
1. fhysical impossibility of the husband
to havesexual intercourse with his wife
within the first 120 days of the 300 days
immediately preceding the child's birth,
due to:
a. Physical incapacity of the husband;
< ,, (
l
Civil Law.
~
Impotency
Impotency refers to physical inability of male
organ to copulate while sterility is failure to have
a child (1 PARAS, supra at 676).
When Art. 166 speaks of physical incapacity of
the husband to have sexual intercourse with the
wife, the law is referring to impotency, which
imports a total want of power of copulation and,
as a necessary incident thereto, the inability to
procreate. As a result of which, sexual
intercourse or access is physically impossible
(RABUYA, supra at 539).
NOTE: Must be proved by convincing and
persuasive evidence hence, the fact that a
husband, who was never separated from his
wife, has been absolutely stiff in the hips at the
time of the conception of the child has been held
as not conclusive enough to overturn the
·presumption of legitimacy (STA.MARIA, supra
at652).
. ··NO'tE Jbe fact that the husband had
lJndergqr,e va~ectomy is not sufficient proof to
rebut the presumption of legitimacy of a child of
his wife·
Vasectomy inllolv~s the removal of about an
inch of the tubes or vas deferens which is the
passage way• of the sperm from the testicle to
the.: Urethra and tying the remaining ends. The
sperm . can .· re.,,.channel itself and effect a
at fertilization'.(STA.A4ARIA, supra at 654).
The fad of vas13ctomy must be co4pled with
concrete proof'that the husband was entirely
sterile, ~md that re-channelization did not occur
, (Id),
the child will · ,neither be
b. Husband and the wife were
livingseparately in such a way that
intercourse was not possible;
Note: Mere remoteness of the wife from
the husband is not sufficient to disavow
paternity. Hence, the bare testimony by the
husband that he and his wife were living
IMPUGNING thirty miles away from each other at thetime
of the conception of the child is not enough
to show the illegitimacy of the child without
any showing that the sexual intercourse with ·
the wife was not possible (STA.MARIA,
supra at 652).
c. Serious illness of the husband which
absolutely prevented sexual intercourse
Note: Must be such as to absolutely prevent
him ·from engaging in sexual intercourse.
 &BM¥& \ I
MEM:Q~Y AID
San Seda University College of Law - RGCT Bar Operations Center
Thus, in Anda/ v. Macaraig, G.R. No. L-
. 2474, May 30, 1951, the Court ruled that the
fact that the husband was seriously sick with
tuberculosis was not sufficient to overcome
the presumption of legitimacy. Impossibility
of access by husband to wife would include
absence during the initial period of
conception; impotence which is patent,
continuing and incurnblc; and
imprisonment, unless it ciln be shown thrit
cohabitation took place through corrupt
violation of prison regulations.
2. ~iological or scientific proof that the
child could not have been that of the
husband; and
NOTE: Racial dissimilarity may be considered
sufficient scientific proof (STA.MARIA, supra at
653).
For sterility to constitute proof of non-paternity,
the husband must be shown to be completely
sterile at the time when the child was conceived
(STA. MARIA, supra at 654).
3. Vitiated ~onsent in
insemination
NOTE: The mistake, fraud, violence,
intimidationor undue influence Can be··exerted
not only by the spouses against eac~ other, but
also by third persons on both. of the spoµses or
on any one of them. In any case,< only the.
husband as provided in Art. 170 can impugn the
legitimacy of the child, or his heirs in special
cases provided in Art. 171 .
PRESCRIPTIVE PE~IODS TO IM.PUGN
LEGITIMACY:
1. One year from knowledge of birth or recording in
the civil register, if husband or heirs live inthe
SAME city/municipality where the birth took
place or was recorded.
2. Two years, if both reside in the Philippines
3. Three years, if the child's birth took place orwas
recorded in the Philippines while the husband
has his residence abroad (FAMILY CODE, Art.
170).
LEGITIMACY NOT SUBJECT
COLLATERAL ATTACK
Well-settled is the rule that the issue of legitimacy .
cannot be attacked collaterally. The rationale for
these rules has been explained in this wise: 'The
presumption of legitimacy in the Family Code
actually fixes a civil status for the child born in
wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that
purpose, by the proper parties, and within the period
limited by law (Geronimo vs. Santos, GR. No.
197099, September 28, 2015 see also Tison vs.
Court of Appeals, GR. No. 121027, July 31, 1997).
PARTIES WHO CAN IMPUGN
LEGITIMACY OF A CHILD
GENERAL RULE: Only the husband may impugn.
Impugning the legitimacy of the Cl')ild is a strictly
personal right of the husband. It is only in
exceptional cases that his heirs are allowed to
contest such legitimacy. Outside of these cases,
none-even his heirs-can impugn legitimacy; that
would amount to an insult to his memory (Liyao Jr.
v. Uyao, G.R. No. 138961, March 7, 2002).
EXCEPTION: The heirs may impugn within the
sameperiod in the following cases:
1. If the husband dies before the expiration of the
period fixed for bringing his action;
. 2. If he should die after the filing of the complaint
without having desisted therefrom; or
7. Jf the child was born after the husband's death
.. ;(FfJl.MJL/tJyODE, Art. 171).
artificial
MOTHERHJ\S NO RIGHT TO DISAVOW
An assertion by the mother against the legitimacy
of her child cannoJ affect the legitimacy of the child
born or c6nceivedwithin a valid marriage. A mother
has no rigl)tJodjsavow a child because maternity is
never . 'uh'dert~fn (Concepcion V. CA, G.R. No.
123450, August 31, 2005).
,:D~ATESTING IN CASE OF DEATH OF
..,; FAkfHER
The death of the putative father does not ipso facto
negate the application of DNA testing for as long as
appropriate biological samples of his DNA exist. In
such a case the petitioner must show the
impossibility of obtaining an appropriate biological
sample that can be utilized for the conduct of DNA
testing (Estate of Rogelio Ong v. Diaz, G.R. No.
171713, December 17, 2007).
STATUS OF CHILDREN BORN WITHIN
THREE HUNDRED (300) DAYS FROM
THE TERMINATION OF A FIRST
MARRIAGE AND THE CELEBRATION
TO OF A SUBSEQUENTMARRIAGE
Requisites: (TS-WBN)
1. First marriage was Ierminated;
2. Mother contracted a §ubsequenl marriage;
3. Subsequent marriage was contracted Within
300 days after termination of previous marriage;
4. Child was f!orn within 300-day period;
5. No evidence as to status of child (FAMILY
 , >~ < (~~ ~ ~: > p K~ \ ; ~ < ,' .:• , . : ~ ,'~'

. 128 ,/ - , ,· ;" - PERSONS AND FAMILY RELATIONS

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CODE, Atts. 168 and 169). by an attending physician as proof of filiation,

the Supreme Court said: Jurisprudence teaches
Illustration: that a birth certificate, to be considered as
- Termination of first marriage: October 1, 2011 validating proofof paternity and as an instrument
- Celebration of second marriage: January 1, 2012 ofrecognition, must be signed by the father and
- 300th day from termination of first marriage: July 26, mother jointly, or by the mother alone if the
2012 father refuses (Angeles v. Maglaya, GR. No.
- 180th day from celebration of second marriage: 153798, September 2, 2005).
June 28, 2012
NOTE: A final judgement however based on a
Hence, a child born on or before June 28, 2012 is compromise agreement where the parties
presumed to be filiated to the first husband. A child stipulated and agreed on the status of a person
born at any time after June 28, 2012 (even if before is void. Contractually agreeing and establishing
July 26, 2012) is presumed to be filiated with the the civil status of a person is against the law and
second husband. public policy (STA. MARIA, supra at 673.)

No Presumption of Legitimacy After 300 days 2. An 8_dmission of legitimate (or

The law does not give a status to a child born after illegitimate) filiation in a public
300 days following the termination of the marriage document or _ a , private handwritten
(SEMPIO - O/Y, supra at 283). The legitimacy or instrument and signed by the parent
illegitimacy of a child born 300 days following the
concerned.
termination of the marriage shall be proved by
whoever alleges such legitimacy or illegitimacy Note: If it is a mere instrument, not in the
(FAMILY CODE, Alt. 169).
handwriting bf the supposed parent or not a
public instrument it will not qualify under the law
NOTE: Art. 169 negates any presumption of filiation
(Id.).
for a child born after 300 days from the termination
of a marriage, in the absence of a subsequent
marriage (STA.MARIA, supra at,662). EXCEPTIONS:
In the absence of any of the foregoing evidence, such
PROOF OF FILIATI0N PROCEEDING legitimate or illegitimate' filiation shall be proved by:
(OA) . -
Is a special statutory proceeding to enforce a civil
obligation or duty specifically •for.the purpose of
1. Open and contipuous possession of the
establishing parentage and' .the putative father's
status of a legitimate or illegitimate
duty to support his child (1 PARAS, supra at 684/
child;
Filiation proceedings do not merely resolve the
matter of relationship with a parent but also· secure "Continuous" does not mean that the
the legal rights associated with that relationship: poss,ession of status shall continue forever, but
_citizenship, support, and inheritance, among others. only 'that it shall not be of an intermittent
An integrated determination of filiation is "entirely character while it is continuous. The
appropriate" to the action for support filed by possession of such status means that the father
petitioner Richelle for her child. An action for support has treated_ the child as his.own, directly and not
may very well resolve that ineluctable issue of through others, spontaneously, and without
paternity ·if it involves the same parties, is brought concealment, though without publicity. There
before a court with the proper jurisdiction, prays to must be a showing of permanent intention of the
impel recognition of paternal relations, and invokes supposed father to consider the child as his own
judicial intervention to do so (Abella v. Cabafiero, by continuous and clear manifestation of
GR. No. 206647, August 9, 2017). paternal affection and care (Mendoza v. CA,
G.R. No. 86302, September 24, 1991 ).
GENERAL RULE:
2. 8_ny other means allowed by the Rules of
According to Art. 172 of the Family Code, filiation of
legitimate (or illegitimate) children is estab!Jshed by Court and special laws (FAMILY CODE,
any of the following: (RJA) Art. 172):
a. An act or declaration concerning pedigree
1. The ,Record of birth appearing in the civil (RULES OF COURT, RULE 130, Sec. 33);
b. Family reputation or tradition concerning
registry or a final Judgment; or pedigree (RULES OF.COURT, RULE 130,
Sec. 40);
NOTE: In disregarding a birth: certificate signed
c. Common reputation respecting pedigree
 Pf M \ /
MEM✓Q~YAID
San Bed a University Cotleg-e of Law - RGC T Bar Operations Center

(RULES OF COURT, RULE 130, Sec. 41);
d. Judicial admission (RULES OF COURT,
RULE 129, Sec. 2);
e. Admission of a party (RULES OF COURT,
RULE 130, Sec. 22); and
f. Admission by silence (RULES OF COURT,
RULE 130, Sec. 32).
OTHER EVIDENCE OF FILIATION
·-----
1:laptlsmal certificate, judicial admission, familybible,
evidence of pedigree, admission by silence,
testimonies of witnesses and other pieces of
evidence under Rule 130 of the Rules of Court may
be proofs of filiation (Salas v. Matusalem, G.R. No.
180284, September 11, 2013).
HANDWRITTEN AUTOBIOGRAPHY
In Dela Cruz v. Gracia (G.R. No. 177728, July 31,
2009), a handwritten autobiography of the father was
recognized as evidence of filiation although not
signed. The Court ruled that "where the private
handwritten instrument is accompanied by other
relevant and competent evidence; it suffices that the
claim of filiation therein be shown to have been
made and handwritten. by the acknowledging parent
as it is merely corroborative of such other evide_nce."
BAPTISMAL CERTIFICATE
However, in the subsequent case of Makati/3hangri-
La & Resort, Inc. v. Harper, (G.R No. 189998,
"admission of legitimate filiation in a public document
or a private handwritten instrument signed by the
parent concerned".
NOTE: In the aforementioned case, petitioner has
shown that he cannot produce his Certificate oflive
Birth since all the records covering the period 1945-
1946 of the LCR of Bacolod City were destroyed,
wt1lct1 nP.cP.ssltrltP.rl the lntroduct'ion ot othor
documentary evidence - particularly his SSS Form
E-1 - to prove filiation (Id.).
DNA TESTING TO PROVE PATERNITY
DNA evidence can be used to prove paternity for the
first time. In upholding the validity of the order
requiring DNA testing to prove paternity, the Court
provided that: it has long believed in the merits of
DNA testing and have repeatedly expressed as
much in the past. This case comes at a perfect time
when DNA testing has finally evolved into a
dependable and authoritative form of evidence
gathering. We therefore take this opportunity to
forcefully reiterate our stand that DNA testing is a
. valid means of determining paternity (Agustin vs.
Cowt of Appeals, G.R. No. 162571, June 15, 2005).
ACTION"TQ CLAIM LEGITIMACYWHO
MAY CLAIM:
1. Child
- exclusive and personal right of childwhich
0

August 29, 2012), the Court held that, as a rule,
baptismal certificate, being hearsay, . is not
conclusive proof of filiation.
While a baptismal certificate may be considered a
public document, it can only serve as evidence of the
administration of the sacrament on the ditespecified
but not the veracity of the entries with re§pect to the
child's paternity; and that baptismal certificates were
"per se inadmissible in evidence as proof of
filiation," and thus "cannot be admitted indirectly as
circumstantial evidence to prove filiation (Heirs of
Arado v. Alcoran, G.R. No. 163362, July 8, 2015).
A baptismal certificate is "no proof of the
declarations in the record with respect to the
parentage of the child baptized, or of prior and
distinct facts which require separate and concrete
evidence" (Heirs of Roldan v. Heirs of Roldan, G.R.
No: 202578, September 27, 2017).
may be b~ought during his lifetime.
NOTi:;aJfthe proofs to be used by the illegitimate
child are those under the first paragraph of Art.
172, he or she has his or her whole lifetime to
•• q~i11g the action to claim his or her illegitimate
·status.
However, if the proofs used are those mentioned
in the second paragraph of Art. 172, the
illegitimate child may only bring the action during
the lifetime of his alleged parent (STA. MARIA,
supra at 692; see also Ara v. Pizarro, G.R. No.
187273, February 15, 2017).

Record of birth Open and continuous

SOCIAL SECURITY SYSTEM (SSS)
appearing in the civil possession of the
FORM register or a final status of a legitimate
In Aguilar v. Siasat, G.R. No. 200169, January 28, judgment; or an child; or
2015, petitioner's SSS Form E-1 satisfies the admission of legitimate
requirement for proof of filiation and relationship to filiation in a public Any other means
the Aguilar spouses under Art. 172 of the Family document or a private allowed by the Rules of
Code; by itself, said document constitutes an handwritten instrument Court and special laws.
 PERSONS AND FAMILY RELATIONS
During the lifetime ofthe During the lifetime of
child. the child and the
putative parent.
2. Guardian
- if the child is a minor, or incapacitated, or
insane (SEMP/O-DIY,. supra at 291).
3. Transmitted to heirs of the child within a
period of 5 years in case:
a. Child dies during minority;
b. Child dies in a state of insanity; and
c. Child dies after action has already1 been
instituted (FAMILY CODE, Art. 1Z3). _
· 2. Whep a:n ~dmission in a public document or
ACTION TO CLAIM ILLEGITIMACY .
Illegitimate children may establish tl"leir illegitimate
filiation in the same way and on the same evidence
as legitimate children (FAMILY CODE:; 'Art. 175).
1. If illegitimate filiation is established by, a record
of birth in the civil register or afinal jt.Jdgment,
or an admission of filiation in a.public document
or a private handwritten instq:iment signed by
the parent concerned, the action for reP9gnition
may be brought by the chilt;I during his liJetime
(Guy v. CA, G.R. No. 1B3707,· September 15,
2006).
2. If the action is based upon open and'{;ontinuous
possession of the status of anillegitimate, ~hild,
or any other means allowed by the rul~s ·or
special laws, it may be only brqught during:the
lifetime of the alleged parent(/d.).
· either or both of them were below 18 years of age
Pure Act of Charity not Sufficient
The paternal affection and care must not be
attributed to pure charity. "Such acts must be of such
a nature that they reveal not only the conviction
of paternity, but also the apparent desire to have and
treat the child as such in all relations insociety and
in life, not accidentally, but continuously" (Perla v.
Baring, G.R. No. 172471, November 12, 2012).
When record of birth is unsigned
Under the Family Code, filiation can be established
by, among ·others, the record of birth appearing in
the civil register, yet the rule is where the birth
certificate pres_ented was not signed by the father
against whom filiation is asserted, such may not be
accepted as evidence of the alleged filiation. (People
vs. Delantar, G.R. No. 169143, February 2;2007).
Civil Law
NOTE: Illegitimate child is under the sole parental
authority of the mother, who is entitled to keep the
child in her company. Recognition of the child by
the father could be a ground for ordering him togive
support to, but not to the custody of the child.
However, he is entitled to visitorial rights over the
child (Briones v. Miguel, G.R. No. 156343, October
18, 2004).
However, if the alleged father admits that the child
is his and lives with the child and the mother under
a void marriage or without the benefit of marriage,
both parents exercise parental authority (Dempsey
v. RTC, G.R. No. 77737, August 15, 1988).
ILLEGITIMATE CHILDREN MAY USE
THE SURNAME OF THEIR FATHER IF:
(EA)
1. Their filiation has been £Xpressly recognized by
the father through the record of birth appearing
in .the civil register; or
private handwritten instrument is made by the
, father; providM, that the father has the right to
institute an.. action before the regular courts to
prove nori-fillaticin during his lifetime (R.A. No.
9255, Sec. 1).
NOTE: An acknowledged illegitimate child is under
no compulsion to use the surname of his illegitimate
father. It is .not: the father or the mother who is
granted by law the,,.right to dictate the surname of
their illegitimate children (Grande v. Antonio, G.R.
No. 206248, February 18, 2014).
,,~. / ·,
LEGITIMATED .CHILDREN
Children conceived and born outside of wedlock of
parents·w~o, af'the time of conception of the former,
were not disqualified by any impediment to marry
each •Other, or were so disqualified only because
and had subsequently married (FAMILY CODE, Art.
177 as amended).
LEGITIMATION
It is a remedy by means of which those who in fact
were conceived and born outside of wedlock and
should therefore be considered illegitimate are by
legal fiction considered legitimate. It shall take place
only by the subsequent valid marriagebetween the
biological parents (SEMPIO-DIY, supra at 284). It is
purely a statutory creation (STA.MARIA, supra at
696).
Requisites: (MIN)
1. There is a valid Marriage subsequent to the
child's birth (FAMILY CODE, Art. 178);
2. The child is tllegitimate; and
3. The parents at the time of the child's conception
 MEM:O~v Alo
San Seda Universrty College of Law • RGCT Bar Operations Center
are Not disqualified by any impediment from
marrying each other or were so disqualified only
because either or both of them were below 18
years of age (FAMILY CODE, Art. 177, as
amended by R.A. 9858);
LEGITIMATION IS AUTOMATIC
Children born out of wedlock to parents who were
not allowed by law to marry for being minors are now
qurilififl<i for legitimation. This has been made
possible by R.A. No. 9858 (Legitimization ofChildren
Born to Minor Parents), approved on December 20,
2009 and has amended Art. 177 of the Family Code
of the Philippines. Before R.A. No. 9858, Art. 177
stated that only children born out of wedlock to
parents who were not disqualified from getting
married at the time of conception could be
legitimized. Under the present law, legitimation
would automatically take place upon marriage ofthe
parents. Moreover, couples who had children when
they were below the marrying age need not go
through the process of having to adopt their own
offspring just so their children could enjoy the rights
of legitimate children.
PERSONS ENTITLED TO QUESTION
LEGITIMATION
Generally, refer to those who would
suffer economic or material injury -by legitim;3tion
such astestamentary or intestate heirs (/d. at 700).
PRESCRIPTIVE PERIOD ,OF IMPUGNING
LEGITIMATION
Legitimation may be impugned within 5 years from
the time their cause of action accrues, that is; from
the death of the putative parent (FAMIL Y(;ODE, Art.
182).
GROUNDS FOR IMPUGNATION
Legitimation may be impugned on grounds like:
1. The subsequent marriage of the child's parents
is void;
2. The child allegedly legitimated is not natural; or
3. The child is not really the child of the alleged
parents (SEMPIO - D/Y, supra at 288).
ADOPTION
(RA 8552 AND RA 8043)
The process of making a child, whether related or
not to the adopter, possess in general, rights
accorded to a legitimate child ( 1 PARAS, supra at
711).
BEST INTEREST OF THE CHILD
Adoption statutes, being humane and salutary, hold
the interest and welfare of the child to be of
paramount consideration and are designed to
provide homes, parental care, and education for
unfortunate, needy, or orphaned children and give
them the protection of society and family in the
person of the adopter as well as to allow childless
couples to experience the joys of parenthood and
give them legally a child in the person of the adopted
for the manifestation of their natural parental
instincts. Every reasonable intendment should be
sustained to promote and fulfill these noble and
compassionate objectives of the law (In Re: Petition
for adoption of Michelle P. Lim, G.R. Nos. 168992,
May 21, 2009).
NATURE OF ADOPTION PROCEEDINGS
The prevailing laws on adoption are the Domestic
Adoption Act (R.A. 8552) and the Inter-Country
Adoption Act (R.A. No. 8043). Relevant also is the
Family Code, which repealed the substantive
provisions of P.O. No. 603 and E.O. No. 91 on
adoption (DE LEON & WILWAYCO, Special
Pr9ffJeding$ (Essential for the Bench and the Bar),
(2(Ft~);:p_.•2.8,6Jhereinafter DE LEON & WILWA YCO,
Special Prdcff,F.fdings]).
1. Adoption is a juridical act. Only an adoption
made through the court, or in pursuance of
Republic Act No. 8552 (RA 8552) is valid in this
juri~~ic,tiQll; . ·
\,0;
Adoptr°brH1'nbt of natural law at all, but is wholly
and entirely artificial. To establish therelation,
. . Jb.e statutory requirements must be strictly
:r'.:batried out otherwise, the adoption is an
absolute nullity (Lazatin v. Campos, G.R. Nos.
L-43955-56, July 30, 1979). It cannot begranted
administratively.
2. Adoption proceedings are proceedings inrem,
and publication serves as constructive notice to
the whole world. Such publication is enough
where the residence of the parents is unknown
(Santos v. Aranzanso, G.R. No. L- 23828,
February 28, 1966).
DOMESTIC ADOPTION ACT OF 1998
{R.A. NO. 8552)
PRE-ADOPTION SERVICES (SEC. 4-6)
The DSWD shall provide for the following services
of licensed social workers to the following:
1. Counseling services for -
a. Biological parents (Sec. 4; par. a),
NOTE: No binding commitment for an adoption
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plEin sh8II be permitted before the birth of his or certification may be waived in the same
her child. instances for waiver of residency
requirement in (c) (R.A. 8552, Sec. 7, par.
A period of 6 months shall be allowed for the b).
biological parent(s) to reconsider any decision to
relinquish his/her child foradoption before the NOTE: Requirements of residency and
decision becomesirrevocable. certificate of legal capacity may be waived if the
alien is: ·
b. Prospective adoptive parents (Sec. 4, par. a. A former Filipino citizen who seeks to adopt
b); and a relative within the 4 th degree of
c. Prospective adoptee (Sec. 4, par. c). consanguinity or affinity;
b. One who seeks to adopt the legitimate
2. Exhaust all efforts to locate the son/daughter of his/her Filipino spouse; and
unknownbiological parents. c. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
NOTE: If efforts fail, child shall be listed as a relative within the 4th degree of
foundling and subsequently be the subject of consanguinity or affinity of the Filipino
legal proceedings where he/she will be declared spouse.
abandoned (Sec. 5).
Foreign Adoptee does not Automatically
WHO MAY ADOPT: Acquire Citizenship
1. Filipino citizen: (LPG-CONEt · · If a ~Hipino adopts an alien, the adopted alien
cloes nofa9quire Philippine citizenship because
a. Of kegal age; .. ••
• 'Such acquisition of citizenship acquires the
b. In a _eosition to support and care for his/her .
,character of naturalization which is regulated,
children in keeping with the ·m:eans of the
family; notby the .Civil Code or the Family Code, but by
c. Qood moral character; special law ·(Ching Leng v. Galang, G.R. No.L-
d. In possession of full fivil capacity or legal 11931, Octobei 27, 1958).
rights; . .. . .
e. At least 16 years QlsJer than the adoptee; 3. Guardian: (TC)
EXCEPTIONS: (BS). a. After Ierminati6n of the guardianship, with
i. Adopter is the .§.iological parent of the respect to the ward; and
adoptee; and · · · · · 6,' ~learance .' of his/her financial
ii. Adopter is the §_pouse of the adoptee's accouotabilitles (R.A. 8552, Sec. 7, par. c).
parent.
. RULE ON ADOl?TION BY SPOUSES
f. Has _!iot been convidep of ahy crime GENERAL RULEf'The husband and the wife shall
involving moral turpitude; and , , . jointly adopt (R.A. 8552, Sec. 7).
g. gmotionally and psychologidilly_' capable of
caring for children (Sec. 7, par. a). ·. · REASQN: For the maintenance of harmony within
the-fa'inily (STA.MARIA, supra at 721).
2. Alien: (S-DELL)
a. §_ame qualifications as a Filipino Adopter; EXCEPTIONS: (LIS)
b. Country has Qiplomatic relations with. the 1. One spouse seeks to adopt the !,egitimate child
Philippines; of the other spouse;
c. His or her government allows the adoptee to 2. One spouse seeks to adopt his/her own
!;,nter his or her country as an adopted child; Illegitimate child with the consent of the other
d. Has been hiving in the Philippines for at spouse;and
least 3 continuous years prior to the 3. The spouses are legally §eparated (Id.).
application for adoption and maintains such
residence until the adoption decree is OTHER FACTORS TO BE CONSIDERED
entered; and IN EVALUATING PROSPECTIVE
Exception to (d): Temporary absences for
PARENTS: (PEQ-F2M)
professional, business, health, or
emergency reasons not exceeding 60 days 1. Total ,eersonality of the applicants;
2. gmotional maturity;
in 1 year does not break the continuity
requirement (PROCEDURAL RULE ON 3: Quality of marital relationship;
4. feeling about children;
ADOPTION, A.M. No. 02-6a02-SC).
5. f.eeling about childlessness and readiness to
e. Certified to have hegal capacity to adopt by
his/her diplomatic or consular office but adopt; and
 MEM:Q~Y AID
San Beda Univefsity College of Law - RGCT Bar Operations Cenier
6. _Motivation (STA.MARIA. supra at 718).
WHO MAY BE ADOPTED: (8 2-RILL)
1. Child whose .§iological or adoptive parent(s)
have died, provided that no proceedings shall be
initiated within 6 months from the time of death
of said parent(s);
2. Any person .§elow 18 years of age or a person
under Sec. 2(2) and Sec. 2(5) of R.A. 9523;
'.3 Child whose adoption has been previously
Rescinded;
4. fiiegitimate child of a qualified adopter to
improve the child's status to that of legitimacy;
5. !,egitimate child of the other spouse; and
6. A person of !,egal age, who, prior to the
adoption, has been consistently considered by
the adopter as his/her own child since minority
(R.A. 8552, Sec. 8).
CONSENT IN ADOPTION (A-BiLIS)
The written consent of the following is required:
1. The Adoptee, if he is 10 years of age or over;
2. Kno.;-n Biological parent(s) or legal guardians or
proper government instrumentality which has
legal custody of the child;
3. begitimate/adopted children, 10 years old or
over, of the adopter(s) and adoptee;
4. The !!legitimate children, 10 years ..old or over, ..
of the adopter if living with the adopter and the
latter's spouse, if any; and
5. §pouse, if any, of the adopter and adoptee
(R.A. 8552, Sec. 9).
ADOPTER IN A POSITION TQ S~PPORT
An alleged capability to support an adoptee through
the help of other persons is not enough to support a
petition for adoption. According to the Supreme
Court, adoption is personal between the adopter and
adoptee; the adopter should be ,in a pdsition to
support the would-be adopted child in keeping with
the means of the family (Landingin v. Republic, G.R.
No 164948, June 27, 2006).
WRITTEN CONSENT OF BIOLOGICAL
PARENTS
Sec. 9 of R.A. 8552 provides that if the written
consent of the biological parents cannot be
obtained, the consent of the legal guardian must be
sought. To dispense with the requirement of written
consent, the abandonment must be shown to have
existed at the time of adoption and evinces a settled
purpose to forego all parental duties. The written
consent of the biological parents is indispensable for
the validity of a decree ofadoption. The natural right
of a parent to his child requires that consent be
obtained before parental rights and duties may be
terminated and re- established in adoptive parents
(Landingin v. Republic, G.R. No 164948, June 27,
2006).
A rP.rinrl nf fi months from th!?- timl?- the biological
parents made their decision shall be allowed for the
biological parent/s to reconsider any decision for
adoption subject to the paramount interest of the
child (STA. MARIA, supra at 725).
EFFECTIVITY OF DECREE OF
ADOPTION
/\ Llec.:ree ur uLluµliun ~hull be effective un of tho date
the original petition was filed. This applies alsoin
case the petitioner dies before the issuance ofthe
adoption decree, to protect the interest of the
adoptee (R.A. 8552, Sec. 13).
EXCEPTION TO RETROACTIVE EFFECT
In Tamargo v. CA, G.R. No. 85044, June 3, 1992,
where the petition for adoption was granted after
the child had shot and killed a girl, the SC did not
consider the retroactive effect of the decree of
adoption so as to impose a liability upon the adopting
parents accruing at the time when they had no actual
or physical custody over the adopted child. It held
that retroactive effect may be given where such is
e.ssential to permit the accrual of some benefit or
ad%ntag$1t"ifavor of the adopted child. To hold that
parental autl)ority had been retroactively lodged in
the adopting ;p9 rents so as to burden them with
liability for i'i tqrtuous act that theycould neither have
r
foreseen ndr prevented would be unfair and
unconscibnable. Jo rule otherwise· would be
contrary to,tll~ g~tri9e of vicarious liability.
-,,\ ;:,; \ ?X-t?.iY-: , :.:-.);,
MIDDLE NAME OF ADOPTED CHILD
The. illegitimate child subsequently adopted by
-n',~ther: natural father is permitted to use as her
.. ,/nicttlle'"ri~rne the surname of her natural mother for
the following reasons:
1. It is necessary to preserve and maintain the
child's filiation with her natural mother because
under Art. 189 of the Family Code, she remains
to be an intestate heir of the latter. To prevent
any confusion and needless hardship in the
future, her relationship or proof of that
relationship _with her natural mother should be
maintained;
2. There is no law expressly prohibiting the
adopted to use the surname of her natural
mother as her middle name. What the law does
not prohibit, it allows; and
3. It is customary for every Filipino to have a middle
name, which is ordinarily the surname ofthe
mother (In the Matter of the Adoption of
Stephanie Nathy Astorga Garcia, G.R. No.
148311, March 31, 2005).
 : ;., r ',' < ' ~ ,'~ '

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EFFECTS OF ADOPTION: (SAL) 1992; see also Labaga/a v. Santiago, G.R. No.
1. §_everance of legal ties between the biological 132305, December 4, 2001 ).
parents and the adoptee, which shall be vested
in the adopters; RESCISSION OF ADOPTION
- decree of adoption may be rescinded by the
EXCEPTION: If the biological parent is the ADOPTEE only (R.A. 8552, Sec. 19).
spouse of the adopter (R.A. 8552, Sec. 16).
,. GROUNDS: (PASA)
NOTE: Binlogic:r1I pnrents of the c:overed person 1. Repented fhysical or verbal moltreatmont by
qualify as the deceased's dependent parent the adopter(s) despite having undergone
and, thus, entitled to the death benefits under counseling;
the government's Employees' Compensation 2. ~ttempt on the life of the adoptee;
Program (ECP). This ruling finds support on the 3. ~exual assault or violence;
fact that even though parental authority is 4. Abandonment and failure to comply with
severed by virtue of adoption, the ties between . parental obligations (R.A. 8552, Sec. 19).
the adoptee and the biological parents are not
entirely eliminated. To demonstrate, the
ADOPTER MAY ONLY DISINHERIT
biological parents, in some instances, are able
to inherit from the adopted, as can be gleaned ADOPTEE
from Art. 190 of the Family Code (Bartolome v. Adoption shall not be subject to rescission by the
SSS, G.R. No. 192531, November 12, 2014) adopters. However, the adopters may disinherit the
adoptee· for causes provided under Art 919 of the
2. The Adoptee shall be considered izlS · a Qivil Code (R.A. 8552, Sec. 19).
legitimate child of the adopt~r(s) for all intents
and purposes (Id. Sec, 17); ,ind An adoptee · refused to use the surname of the
adopter though 13lrfady adopted. The adopter
3. In begal or intestate succession; thef adoptee sought to resdnd/ reyoke the Decree of Adoption
and the adopter(s) shall, have redpro¢al rights (UUA), but lt1e Uo(ri~Sttc Adoption Act (H.A. HbbL}
of succession without distlnctioi'l from legitimate which reinoves'the right of adopter to challenge the
tiliation. However, if there is a will, the rules on validity of the DOA 'be&arne errective. SC held that
testamentary succession shall be followed (Id: the adopter may, disinherit the adoptee, and that the
Sec. 18). latter has the sole right to challenge the DOA
(Lahoin v. Sibulo, (3,.R. No 143989, July 14, 2003).
Section 18 of RA 8552 provides tllat, ii'.! legal and
intestate succession, the 'tjghts of!he adopter{s) Dl51NHERITANC~ OF ADOPTEE BY
and the adoptee refer only to th!':li{ "reciprocal ADOPTER' .
rights of succession witho~1t distinction from . GROUNl}S: (GAMM-CARD)
legitimate filiation." By. ·using the ...term 1. Qroundless accusation against the testator of a
"reciprocal," the limitation is clear that th~ rights Grime , pqnishable by 6 years or more of
only pertain to those existing and, applicable imprfsonment:
solely between them in their relationship as 2': · t=olind guilty of an Attempt against the life of
parent and child. Thus, the adoptee · · ls the testator, his/her spouse, descendants or
considered a stranger as to the adopter's ascendants; ·
parents. The link is personal and limited to ttie 3. Causes the testator to ,Make or change a
adoptee and adopter only. testator's will through fraud, violence,
intimidation, or undue influence;
It is a rule that successional rights of the adopted 4. ,Maltreatment of the testator by word or deed;
and the adopter are purely statutory. Unless s fonviction nf 8 crime which carries the penalty
provided by the adoption statute, the adopted ur civil i11leruiclior1;
child does not inherit from the lineal or collateral 6. Adultery or concubinage with testator's spouse;
kindred of the adoptive parents (STA. MARIA, 7. Refusal without justifiable cause to support the
supra at 738). parent or ascendant; and
8. Leads a Q_ishonorable or disgraceful life (CIVIL
DECREE OF ADOPTION, NOT SUBJECT CODE, Art. 919).
TO COLLATERAL ATTACK
EFFECTS OF RESCISSION: (PaRAS)
Once nn ndoption decree is issued, it cannot be
1. Parental authority of adoptee's · biological
attacked collaterally as in the action for partition,
parent(s) or legal custody of DSWD shall be
but in a direct proceeding frontally addressing the
restored if adoptee is still a minor or
issue (Sayson v. CA, G. R. Nos. 89224, January 23;
incapacitated;
 MEM:Q~Y AID
San Seda University College of Law • RGCT Bar Operations Center
2. Reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall .
be extinguished;
3. ~mended certificate of birth of the adoptee shall
be cancelled and its original shall be restomd;
and
4. ~uccession rights shall revert to their statusprior
to the adoption, but vested rights shall be
respected (R.A. 8552, Sec. 20).
ADOPTEE REMAINS AN HEIR OF THE
NATURAL PARENTS
Being a legitimate child only by virtue of adoption, it
follows that the child is entitled to all the rights
provided by law to a legitimate child. The adopted
child remains an intestate heir of his/her biological
parents. Hence, she can well assert her hereditary
rights from her natural mother in the future (In the
matter of adoption of Stephanie Nathy Astorga
Garcia, G.R. No. 148311, March 31, 2005).
SIMULATION OF BIRTH
It is the tampering of the civil registry making it
appear in the birth records that a certain child was
born to a person who is not his/her biological mother,
causing such child to lose his/her true identity and
status (R.A.8552, Art. 1, Sec. 3, par. j).
It is a crime defined and punished by Sec. 21 (b) of
R.A. 8552 committed by any person who shall ca.use
the fictitious registration of the birth of a child under
the names of persons who are not'his/her biological
parents. ·
NOTE: Sec. 22 of R.A. 8552 on Rectification of
Simulated Births has been repealed by RA 11222
otherwise known as "An Act AHowing the
Rectification of Simulated Birth Records. and
Prescribing Administrative Adoption Proceedings
for the Purpose" which has been signed info law on
February 21, 2019 and took effect on March 29,
2019.
SIMULATED BIRTH RECTIFICATION
ACT (R,A. 11222)
Grants amnesty and allows the rectification of the
simulated birth of a child where the simulation was
made for the best interest of the child, and that
such child has been consistently considered and
treated by the person or persons who simulated
such birth as her, his, or their own daughter or son
and exempts from criminal, civil, and administrative
liability those who simulated the birth record of a
child prior to the effectivity of the lav, (R.lt 11222,
Sec, 2).
Notwithstanding any provision of law to the contrary,
a person or persons who, prior to theeffectivity of
this Act, simulated the. birth of a child, and those
who cooperated in the execution of such simulation,
shall not be criminally, civilly, or administratively
liable for such act: Provided, That the simulation of
birth was made for the best interest of the child and
that the child has been consistently considered and
treated by such personor persons as her, his, or their
own daughter orson: Provided, further, That such
person or persons has or have filed a petition for
adoption with an application for the rectification of
the simulated birth record within ten 10 years from
the effectivity of thisAct: Provided, finally, That all
the benefits of this Act shall also apply to adult
adoptees (R.A. 11222, Sec.4).
EXEMPTION FROM CRIMINAL, CIVIL
AND ADMINISTRATIVE LIABILITY
A person or persons who, prior to the effectivity of
R.A. 11222, simulated the birth of a child, and those
who cooperated in the execution of such simulation,
shall not be criminally, civilly, or administratively
liable for such act provided that
1. That the simulation of birth was made for the
best interest of the child and that the child has
been consistently considered and treated by
.such person or persons as her, his, or their own
. cfoµgtitef or son;
2. That suct);person or persons has or have filed
a petitio,n: for adoption with an application for
the rectification of the simulated birth record
within. ten (1'0) years from the effectivity of this
Act; and .
3. Th<'\t all. thE; 9er1ef[ts of this Act shall also apply
to a'cft,:iltad:Opt~es:(R.A. 11222 Sec. 4).
INTER-COUNTRY ADOPTION ACT OF
,J~~5,(R.A. 8043)
''Thi#'soclo'.clegal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the
decree of adoption is issued outside the Philippines
(R.A. 8043, Sec. 3, par. a).
Who May Be Adopted
Only a "legally-free child" may be the subject of inter-
country adoption (R.A. 8043, Sec. 8).
A child for the purpose of the act is any person below
fifteen years of age or unless sooner emancipated
by law (R.A. 8043, Sec. 3 par. b).
Child Legally Available for Adoption
A child in whose favor a certification was issued by
the DSWD that he/she is legally .:iv.:iilable for
adoption after the fact of abandonment or neglect
has been proven through the submission of pertinent
documents, or one who was voluntarily committed
by his/her parent(s) or legal guardian (Sec 2 (5)
RA 9523).
 PERSONS AND FAMILY RELATIONS
There shall be no physical transfer of a voluntarily
committed child earlier than 6 months from the date
of execution of Deed of Voluntary Commitment
except:
1. Adoption by a relative; and
2. Children with special medical conditions (R.A.
8043, Sec. 26).
Deed of Voluntary Commitment
A deed signed by the parents with DSWD that a child
is being voluntarily submitted for adoption (R.A.
8043, Sec. 3, par. s).
Who may adopt:
1. Any alien; or
2. Filipino citizen, both permanently residing
abroad (R.A. 8043, Sec. 27).
Conditions: (JAC-NERD-PQ)
1. If married, his/her spouse must Jointly file for'the
adoption; · shall be responsible for the pre-adoptive placement,
2. At least 27 years of ~ge and atleast'16'years
older than the child to be adopted, 'at the time
of the application unless the adopter is:·
a. Parent by nature of the child tq be adopted;
or Spouse of such parent . shall furnish the Boan::! with quarterly reports on the
3. _g_apacity to act and assume -all rights and
responsibilities incidental to parental' authority
under his/her national laws·, ana has undergone
the appropriate counseling from an accredited
counselor in his/her country;
4. Has !'!ot been convicted of a crime involving
moral turpitude; · to the applicant who, as actual custodian, shall
5. .!;,ligible to adopt under his/her national law; ·
6. Agrees to uphold the basic B,ights of the chili:l
as embodied under Philippine laws, the U,N.
Convention on the Rights of a Child, and to
abide by the rules and regulations i$Su~d to
implement the Inter-Country Adoption Act;
7. Comes fr9m a country with whom the
Philippines has Q.iplomatic relations and whose
government maintains a similarly authorized
and accredited agency and that adoption is
allowed under his/her national laws;
8. In a fosition to provide the proper care and
support and to give the necessary moral values
and examples to all his children, including the
child to be adopted; and
9. Possesses all the Qualifications and none of the
disqualifications under the Inter-Country
Adoption Act and other applicable Philippine
laws (Implementing Rules of R.A. No. 8043, as
amended).
Filing of Application
Either with the Philippine RTC having jurisdiction
over the child OR with the Inter-Country Adoption
Board, through an intermediate agency (R.A. 8043,
Sec. 10).
Civil law
Inter-Country Adoption Board
It acts as the central authority in matters relating lo
inter-country adoption (Sec. 3, par. h).
The Board shall ensure that all possibilities for the
adoption of the child under the Family Code have
been exhausted and that inter-country adoption is in
the best interest of the child.
Family Selection and Matching
The matching of the child with an applicant shall be
carried out during a matching conference by the
committee together with the head or social worker
of the agency or the Secretariat social worker of the
inter-country adoption board. The Board shall set the
guidelines for the manner by which thematching
process shall be conducted (R.A. 8043, Sec. 11).
Supervision of Trial Custody
. The foreign governmental or an accredited agency
care and family counseling of the child for at least 6
months train his/her arrival in the residence of the
applicant/s,: when applicable. During the pre-
adoptive pl9 ce,rnent, the foreign authority/agency
child's health, . psycho-social adjustment, and
relationship with the applicant/s. The report shall
also include updated·-•- information regarding the
applicants' personal circumstances, if any (Sec. 44).
1. Starts upon actual physical transfer of the child
· exercise substitute parental authority over the
p13rson of the chifd (Implementing Rules of R.A.
8,043, Sec. 42); ·
2. Toe·. adopting parent(s) shall submit to the
· " gqvernmental agency or authorized and
·. accredited agency, which shall in turn transmita
copy to the Board, a progress report of the
child's adjustment.
Remedy in case of Disruption and Termination of
Placement:
In the event of serious damage in the relationship
between the child and applicant; or when the
continued placement is no longer in the best
interests of the child:
1. The Board through the Central Authority shall
take necessary measures to protect the child,
in particular cause the child to be withdrawn
from the applicant and arrange for his
temporary care;
2. The Central Authority shall exhaust all means
to remove cause of unsatisfactory relationship;
3. The Central Authority shall submit a complete
report to the Board as to the actions taken as
well as recommendations; and
4. Based on the report submitted by the Central
 &Rt\Q§@ \ I - I ,. i ' ' "r ' _, ~,~ , ,:," Vl '>

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Authority, the Board may terminate the pre- DOMESTIC ADOPTION V.

adoptive relationship (Implementing Rules of INTERCOUNTRY ADOPTION
R.A. 8043, Sec. 47).

NOTE: If a satisfactory pre-adoptive relationship is

formed between the applicant and the child, the
Board shall transmit an Affidavit of Consent to the
Adoption executed by the Department to theCentn:il
Authority and/or the Foreign Adoption Agency (FAA)
will 1i11 15 <.l::iys after receipt of the last µu::;l
placement report (Implementing Rules of R.A. 8043,
Sec. 50).
Family Court of the place Family Court where the
A copy of the final decree of adoption, including the where adopter(s) adoptee resides
Certificate of Citizenship/Naturalization, whenever reside(s). may be found, or
applicable, shall be transmitted by the Central lntercountry Adoption
Authority and/or the FAA to the Board within 1 month Board, through an
after its issuance. The Board shall require the intermediate agency,
recording of the final judgment in the appropriate whether governmental
Philippine Civil Registry (Implementing Rules of R.A. or an. authorized
8043, Sec 52). and accredited
agency, in the country
In the event of termination of the pre-adoptive of the prospective
relationship, the Board shall identify from the Roster adoptive parents (Sec.
of Approved Applicants a suitable family with whom 30 and 51).
to place the child. The Central Authority and/or the
FAA may also propose a replacement family whose
application shall be filed for the approval of the
Board. No adoption shall take place until after the 1. Any Filipino citizen; Foreign nationals and
Board has approved the application of such 2. Any alien Filipino citizens
possessing the permanently residing
replacement family (Implementing Rules of R.A.
samkl qualifications abroad.
8043, Sec. 48).
forl:,ilipipl) r1ay9nals,
Presumption of Illegal adoption: (CPEN) (see)\·. i:i!Jsc.ussion
1. ,Qonsent for adoption was acquired through or regarding .
attended by coercion, fraud, improper material qualifications); and
inducement; The guardian with
2. erocedures and safeguards provided by law for t~spect to the ward
adoption were not complied with; · after the termination
3. Has ~xposed or subjected the child to be of the guardianship
adopted to danger, abuse or exploitation; and and clearance of
4. No authority to effect adoption from the Board this financial
(Implementing Rules of R.A. 8043, Sec. 57). accountabilities.

1. Any person below 18 Only a legally free .child

years of age who may be legally adopted
has been voluntarily under the inter-country
committed; adoption act (Sec 8).
2. The legitimate
son/daughter of one Child Legally Available
spouse by the other for Adoption refers to a
spouse; child in whose favor a
3. An illegitimate certification was issued
son/daughter by a by the DSWO that
qµalified adopter to he/she is legally
improve his/her available for adoption
status to that of after the fact of
legitimacy; abandonment or
 PERSONS AND FAMILY RELATIONS
Civil Law

4. A person of legal neglect has been KINDS: (LJC)

age regardless of proven through the 1. _begal
civil status if, prior to submission of pertinent - one required or given by law;
adoption, said documents, or one who
person has been was voluntarily 2 . .Judicial
consistently committed by his/her - required by the court to be given whether
considered and parent(s) or legal pendente lite or in a final judgment; and
treated by the guardian (Sec 2 (5)
adopter(s) as his/her R.A. 9523). 3. f onventional
own child since - given by agreement
minority;
5. A child whose CHARACTERISTICS: (MR-P 2 1NE)
adoption has been 1. .Mandatory;
previously 2. Reciprocal on the part of those who are by law
rescinded; or bound to support each other;
6. A child whose 3. fersonal; ·
biological or 4. frovisional character of support judgment;
adoptive parent( s) 5. !ntransmissible;
has died: provided 6. Not subject to waiver or compensation; and
that no proceedings 7. gxempt from attachment or execution
shall be initiated (1TOLENTINO, supra at 575).
within 6 months from
time of death of said PERSONS. ·()BLIGED TO SUPPORT
parents (Sec. 8)
7. A Child not
EACH OTHER: (SP 2 L2 )
otherwise 1. Spouses;
disqualified by law or a. The' duty to ·support and the right to be
the rules. supported / pr~suppose a valid marriage
between 'the parties. However, it has been
held that \he aoultery of the wife is a valid
defense. 'against an action for support
At least six months, but At least sixmd~ths. in.itiated: by the wife claiming support
the court may reduce the . (Quintana ,,v. . Lerma, G.R. No. 7426,
period or exempt parties Witttin: the country of Februa'ry 5, 1913).
from trial custody (Sec. theadopfor.
12). NQTE: It is•suggested that while adultery
may be a defense in an action for personal
suppprt, .that is, support of the wife by the
husband from his own funds, it is not a
, qefe'r1se when the support is to be taken
'from the conjugal partnership property
By the Family Court in By the Accredited
(Lerma v. CA, G.R. No. L-33352, Dec. 20,
the Philippines Agency Abroad
1974).
(DELEON & WIL WA YCO, supra at 286).
b. Also, a spouse who leaves the conjugal
home or refuses to live therein, without just
cause, shall not have the right to be
SUPPORT supported from the conjugal properties or
the absolute community of properties
(ARTS. 194-208) (FAM/LY CODE, Arts. 100 and 127).

2. J:arents and their legitimate children, and the

legitimate and illegitimate children of the latter;
SUPPORT:(SDC-MEDET)
It comprises everything indispensable for 3. f_arents and their illegitimate children, and the
§.ustenance, Qwelling, flothing, Medical legitimate and illegitimate children of the latter;
attendance, Education and · Transportation in
keeping with the financial capacity of the family 4. 1,egitimate ascendants ;;ind descendants; and
(FAMILY CODE, Art. 194).
5. 1,egitimate brothers and sisters whether full or
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half-blood provided, brothers and sisters not
legiti111c1lely rolntcd whether full or half-bloodare
likewise entitled to support to the full extent
under Art. 194 except when the need for support
of the brother or sister, being of age, is due to a
cause imputable to claimant\, rciull or
negligence (FAMILY CODE. Arts. 195-196).
NOTE: Art. 197 providing for the source from where
the support should be taken out highlight the fact that
the people enumerated in Art. 195 have a personal
obliyaliuri Lu ::;uµµort each other {STA. MARIA, supra
at 798).
Recognition by the Alleged Father Required
Before a child may be P.ntitlP.rl to support, he must
be recognized by the alleged father (Perla v.
Baring, GR. No. 172411, November 12, 2012).
ORDl::R OF LIABILITY IF SEVERAL
PERSONS ARE OBLIGEDTO GIVE
SUPPORT: (SDAB)
1. 2pouse;
2. .Qescendants in the nearest degree;
3. Ascendat 1b i11 ti Ie rn:H:tre::;t degree: and
4. J;!rothers and sisters (FAMILY CODE, Art. 199).

If the obligation to give support .falls upon two or

OBLIGATION TO SUPPORT A CHILD IS
A MATTER OF PUBLIC POLICY
As a rule, the obligation to give support is governed
by the national law the person obliged to give
support. In Del.Socorro v. Van Wilsem, the Supreme
Court held that "The obligation to give support to a
child is a matter that falls under family rights and
duties. Since the respondent is a citizen of Holland
or the Netherlands, he is subject to the laws of his
country, not to Philippine law, as to whether he is
obliged to give support to his child, aswell as the
consequences of his failure to do so." However,
since the law of the Netherlands as regards the
obligation to support has not been property pleaded
and proved in the instant case, itis presumed to be
the same with Philippine law, which. enforces the
obligation of parents to support tMir children and
penalizing the non-compliance therewith.
Additionally, when the foreign law, judgnient or
contract is contrary to a sound and established
public policy of the forum, the said forelgn law,
judgment or order shall not be applied. Thus, even if
the laws of the Netherlands neither enforce a
parent's obligation to support his child nbrpenalize
the noncompliance therewith, suchobligation is still
duly enforceable in the Philippines because"it would
be of great injustice to the child to be denied of
financial support when the latter is entitled thereto
(GR. No. 193707, December 10, 2014).·
For support of legitimate ascendants, descendants
(legitimate/illegitimate), brothers, and sisters
(legitimate/illegitimate), only separate property of the
person obliged to give support shall be answerable.
fn the absence of scporntc property, the CPG or
/\CP sh811 advance the support deductible from lhl:l
share of spouse obliged upon liquidation (FAMILY
CODE, Art. 197).
In case of legilirrmlc de:,r.P.ndants (common children
of the spouse or the legitimate children of either
spouse), the ACP or CPG shall be principally
charged for their support as mandated by law in
Arts. 94, par. 1 and 121, par. 1. This is different from
personal support owing to them from the father or
mother as provided in Arts. 195 and 197.
more persons, payment shall be divided between
them in proportion to their resources. In case of
urgent need and special circumstances, the court
may order only one of them to furnish support
provisionally subject to the right to claim from the
others the share due them (FAMILY CODE, Art. 200,
par. 1-2).
INSUFFICIENCY OF MEANS TO GIVE
SUPPORT
Wfi~n~q (j~tr,ore recipients at the same time claim
.for support 'ahd the person legally obliged to give
does not haye·sufficient means to satisfy all claims:
1. The order of liability provided by law shall be
followed; and .
2. If the concurrent obligees should be the spouse
and a ch)ld subject to parental authority, the
chil~;\sli~ll,~i!';preferred (FAMILY CODE, Art.
200)' · ...... .
}f},Mangonon v. CA, G.R. No. 125041, June 30,
, ~OQ~,~I:)~ 9upreme Court ordered the grandfather,
wh'6 ·wa:f 'proven to be well-off to support his
grandchildren on the basis of Art. 199, considering
that their parents were not capable of supporting
the children.
SUPPORT BY A STRANGER ·SHALL BE
REIMBURSABLE UNDER ART. 206 IF:
(IN)
1. Stranger gives support to another person with
the Intention to be reimbursed; and
2. Person obliged to givP. support to the recipient
does Not have knowledge of the stranger's act
UNDER ART. 207 IF: (UFU)
1. There is an !Jrgent need to be supported on the
part of ttm mr.irient;
2. A third person .Eurn is hes the support tu the
needy- individual; and
3. The person obliged to support !Jnjustly refuses
or fails to give the support.
 PERSONS AND FAMILY RELATIONS
APPLICATION OF THE PRINCIPLE OF
UNJUST ENRICHMENT
In Lacson v. Lacson, G.R. No. 150644, August 28,
2006, the Supreme Court ruled that the sisters
would, through their mother, turn to their uncle Noel
Daban for their sustenance and education when
petitioner (their father) failed to give the same, a
failing which stretched from their pre-schooling days
to tt1eir eulle<c-Je years. Since such failure has been
established, it is not r1miss to OP.duce, that Noel
Daban who, owing to consideration of kinship, had
reasons to help, indeed lent his sister Lea money to
support her children. Mention may alsobe made
that, contextually, the resulting juridical relationship
between the petitioner and Noel Dabanis a quasi-
contract, an equitable· principle enjoining one from
unjustly enriching himself at the expense of another.
AMOUNT OF SUPPORT
It shall be in proportion to the resources or means
of the giver and to the necessities of the recipient
(FAMILY CODE, Art. 201; Lam v. Chi.la, G.R.
No.131286, March 18, 2004). It shall be increased or
reduced proportionately, according to the increase
or reduction of necessities of the repipient and the
resources or means of the person oqliged (FAMILY
CODE, Art. 202).
The law on support is rooted on the fact that the right
and duty to support, especially the right to education,
subsists even beyond the age ·of majority (Estate of
Hilario M. Ruiz v. CA, G.R. {)lo. 118671, Januwy 29,
1996). . necessary for the support of his family (RULE 39,
DEMAND FOR SUPPORT (ART~ 203)
The obligation to give support shall be demandable
from the time the person who has ·a right to receiye
the same needs it for maintenance, b!,lf if shall not ·
be paid except .from the date of ·judicial or
extrajudicial demand (Sy v. CA, G.R. No. 12451.8,
December 17, 2007).
PAYMENT OF SUPPORT STARTS FROM
THE TIME WHEN DEMAND WAS MADE
Payment of the amount for support starts only from
the time support has been judicially or extra-
judicially demanded for the right to support does not
arise from the mere fact of relationship, but from
imperative necessity without which it cannotbe
demanded, and the law presumes that such
necessity does not exist, unless support is
demanded (Jocson v. Empire Insurance Co., G.R.
No. L-10792, April 30, 1958).
Civil Law
PERFORMANCE OF OBLIGATION TO
SUPPORT (PM)
The person obliged to give support shall have the
following options:
1. Eay the allowance fixed; or
2. Receive and _Maintain in the family dwelling the
person who has a right to receive support
provided that there is no moral or legal obstacle
to do so (FAMILY CODE, Art. 204).
NOTE: The latter alternative cannot be availed
of in case there is a moral or legal obstacle
thereto, such as the strained relationship
between the parties (Mangonon v. CA, supra).
SUPPORT EXEMPTED FROM
ATTACHMENT AND EXECUTION
The right to receive support as well as money or
property obtained as such support shall not be levied
upon on attachment or execution (FAMILY CODE,
Art.' 205f Bu.t in case of contractual supportor that
gi\/en by will; the excess in 9 mount beyond that
required for leg~! support shall be subject to levy on
attach_ment (X execution (FAMILY CODE, Art. 208).
Only salary "due" the.judgment debtor is subject to
attachment anc,l exl::)cution, and then only if it is not
made to appF.ar by Jhc affidavit of the debtor or
otherwise that such earnings are necessary for the
support of his family. Under the Rules of Court, so
much oflhe earnings of the debtor for his personal
s~rvlces within the mon,th preceding the levy as are
Sec. 1?2) is exemptfrom execution (Avendano v.
Alikapala, G.R. No. ~-21189, November 28, 1964).
CONTRACTUAL SUPPORT VIS-A-VIS
LEGAL. SUPPORT
Gonfractual support is one entered into by the
parties usually with reciprocal duties andobligations
and is not mandated by law. However, legal support
is that which is mandated by law to begiven and that
which is provided in Art. 194 (STA.MARIA, supra
at 826).
WHEN OBLIGATION TO SUPPORT
CEASES
The obligation to furnish support ceases upon the
death of the obligor, even if he may be bound to give·
it in compliance with a final judgement. The
obligation to give support shall also cease: (OREM)
1. Upon the Qeath of the recipient;
2. When the resources of the obligor have been
Beduced to the point where he cannot give the
support without neglecting his own needs and
those of his family;
3. When the recipient may gngage in a trade,
profession, or industry, or has obtained work, or
 ME~Q~YAID
san Beda University Coll<>ge of Law • RGCT Bar OperaVons Center
has improved his fortune in such a way that he
no longer needs the allowance for his
subsistence;
4. Upon annulment of the .Marriage.
Procedures in Application for Support
The Family Courts shall have exclusive original
jurisdiction to hear and decide Petitions for support
and/or acknowledgment (R.A. No.8369, Sec. 5 (e)).
In cases of violence among immediate family
members living in the same domicile or household,
the Family Court may issue a restraining order
against the accused or defendant upon verified
application by the complainant or the victim for relief
from abuse. The court may order the temporary
custody of children in all civil actions for their
custody. The court may also order support pendente
lite, including deduction from the salary and use of
conjugal home and other properties in all civil
actionsfor support (R.A. No.8369, Sec. 7).
SUPPORT PENDENTE LITE
During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity
of marriage, the spouses and their children shall be
supported from the properties of the absolute
community or the conjugal partnership.
Mutual support between the spouses ceases after
final judgment. · : 5.
In case of legal separation, the court may order the
guilty spouse to support the innocent . spouse
(FAMILY CODE, Art. 198 in relation to Rule 61 of the
Rules of Court).
In det(")rmining the amount to be awarded as support
pendente lite, it is not necessary to go fully into the
merits of the case, it being sufficient thatthe court
ascertain the kind and amount of evidence it. may
deem sufficient to enable it to justly resolve the
application, one way or the other, in view of the
merely provisional character of the resolution to be
entered. Mere affidavits may satisfy the court to
pass upon the application for support pendente
lite. It is enough that the facts be established by
affidavits or other documentary evidence appearing
in the record (Reyes v. Ines- Luciano, G.R. No. L-
48219, February 28, 1979).
PARENTAL AUTHORITY
(ARTS. 209-233)
PARENTAL AUTHORITY (PATRIA
POTESTAS)
It is the sum total of the right of the parents over the
persons and property of their unemancipated
children. It is pursuant to the natural right and duty
of parents over the same and it includes caring for
and rearing of such children for civic consciousness
and efficiency and the development of their moral
and physical character and well-being (FAMILY
CODE, Art. 209).
CHARACTERISTICS OF PARENTAL
AUTHORITY: (NARD- RTW- JPT)
1. A Natural B,ight and Quty of the parents
(FAMILY CODE, Art. 209);
·. 2. It cannot be Benounced, ,Jransferred, or
,YYaived,1=1xcept in the cases authorized by law
(FAMJl..'f'CODE, Art. 210).
3. It is Jointly exercised by the father and mother
(FAMILY CODE, Art. 211, par. 1);
4. It is Et/rely personal and cannot be exercised
through agents.; and
It is Iemporary and will end when the child is
er:iian~ipatt;ld or can otherwise take care of
hims~!f~/)9{9!~ property, or the parent is unable
to properly· exercise the authority (SEMP/O-
DIY, supra at 351).
PARENJ?AL PREFERENCE RULE
The natural parents, who are of good moral
character and who can reasonably provide for the
child, are ordinarily entitled to custody as against all
other persons (STA.MARIA, supra at 838).
MATERNAL PREFERENCE RULE
The law favors the mother if she is a fit and proper
person to have custody of her children so that they
may not only receive her attention, care,supervision
and kindly advice, but also may have the advantage
and benefit of a mother's love and devotion for which
there is no subst,itute (STA. MARIA, supra at 839,
citing Cooke v. Cooke, 70 ALR 3d 255).
The general rule that children under seven years of
age shall not be separated from their mother finds its
raison d'etre in the basic need of minor children for
their mother's loving care (Pablo-Gualberto vs.
Gua/berto, GR. No. 154994, June 28, 2005).
 PERSONS AND FAMILY RELATIONS
EXEMPTION TO MATERNAL
PREFERENCE RULE
Maternal preference is not an absolute rule. It is
intended to service only the function of a tie- breaker
in those rare instances when parental qualities are
so equally balanced between litigants that resort to
preference is necessary (STA. MARIA, supra at
844). The Court may decide to separate the mother
from the child in exceptional cases where there are
compelling reasons to do so under Art. 213.
PARENTAL AUTHORITY IS PURELY
PERSONAL
Parental authority and responsibility are inalienable
and may not be transferred or renounced except in
cases authorized by law. The right attached to
parental authority, being purely personal, the law
allows a waiver of parental authority only in cases
of adoption, gLJardianship and surrender tq, ,,a
children's home or an orphan institution ..When a
parent entrusts the custody of a minor t6 another,
a
such as a friend or godfather, even ,irt docum~ot,
what is given is merely temporary custody and it
does not constitute a renundatiOIJ of parental
authority. Even if a definite renunciatjon is manifest,
the law still disallows the same.· The fa_ther and
mother, being the natural guardians of
unemancipated children, are · duty-bouna . and
entitled to keep them in their custody and company
(Sagala-Eslao v. CA, G.R. No,. 116773, January 16;
1997).
The right of custody accordetltipa;ents· ·iipr'tngfmm
the exercise of parental autt:iority (Santos v: CA,
G.R. No. 113054, March 16, 1995). '
RULES ON THE EXERCIS~ OF'
PARENTAL AUTHORITY
Joint parental authority by the father ahd ,,rnother
over the persons of their common children, wl¾'ether
legitimate or illegitimate. In case of disagreement,
the father's decision shall prevail unless there is a
judicial order to the contrary (FAMILY CODE, Art.
211, par. 1).
Under Art. 176, parental authority of illegitimate
children is generally with the mother. To harmonize
Art. 176 with Art. 211, joint parental authority may be
exercised over illegitimate children if:
1. The father is certain; and
2. The illegitimate children are living with the said
father and mother who are cohabiting without
the benefit of marriage or under a void marriage
not falling under Arts. 36 and 53 (STA.MARIA,
supra at 830-831 ).
NOTE: The recognition by the father could be a
ground for ordering him to give support, but not
custody of the child·. Only if the mother defaults can
CiVil Law
the father assume such custody or authority. Only
the most compelling of rn;:isons, s11r.h ;:is thP.
mother's unfitness to exercise sole parental
authority shall justify deprivation of her parental
authority and the award of custody to someone else
(Briones v. Miguel, G.R. No. 156343, October 18,
2004).
RIGHTS OF PARENTS WITH PARENTAL
AUTHORITY
The parents may exercise the following rights over
the person and properties of their children: (C 201L-
U)
1. The right to have them in their company
(fustody);
2. The right to withhold or give ~onsent in certain
matters;
3. The right to be Qbeyed and respected;
4. The right to Impose discipline on them as may
.be required under the circumstances;
5. The right to exercise begal guardianship over
the property of unemancipated common
I children'; and
6. The iimited, right of !J_sufruct over the child's
property (RABf:JYA, supra at 656).
I
Duties of Childre11 tc>v,,ards their Parents: (RO)
, 1. To observe.Respect and reverence toward their
parents; and ·
2. To Qbey their pare,nts as long as they are
under their parerifal'authority.
~ULEOF FILIAL. f>RIVILEGE
GEN~RAL RULE: :No descendant shall be
compelled, in a criminal case, to testify against his
parents and grandparents.
l:XCE'l?TIC>N, When such testimony is
indispensable in a crime against the descendant or
by one parent against the other (FAMILY CODE, Art.
215; in relation to Sec. 25, RULE 130 of the Rules
on Evidence).
FILIAL PRIVILEGE APPLIES ONLY TO
DIRECT ASCENDANTS AND
DESCENDANTS
In Lee v. CA, G.R. No. 177861, July 13, 2010, the
person (Tiu) who invoked the filial privilege claims
that she is the stepmother of petitioner Lee. The
privilege cannot be applied because the rule applies
only to "direct" ascendants and descendants, a
family tie connected by a common ancestry. A
stepdaughter does not have common ancestry to her
stepmother. Relative thereto, Art. 965 of the Civil
Code provides that the direct line is either
descending or ascending. The former unites the
head of the family With those who descend fromhim.
The latter .binds a person with those from whom he
descends. Consequently, Tiu can be compelled to_
 Gt&M'i"' \ I

MEM/Q-RY Al D
San Seda Unive,srty CoWege of Law - RGCT Bar Operations Coote,

testify against petitioner Emma Lee.

This rule is not strictly a rule on disqualification

because a descendant is not incompetent or
disqualified to testify against an ascendant. Therule Legal PA shall be exercised by the
refers to a privileg,e not to testify, which can be separation of parent designated by the court.
invoked or waived like other privileges. As correctly parents.
observed by the lower court, Elven was not EXCEPTION:
compelled to testify against his f:::lther; he chose to If the child is under seven years
waive thot filinl rrivilnon whAn he voluntarily testified old, the mother 3holl hove
against Artemio. Elven declared that he was custody over said child.
testifying as a witness against his father of his own
accord and only "to tell the truth" (People v. EXCEPTION TO THE
lnvencion, G.R. No. 131636, March 5, 2003). EXCEPTION:
Unless the court finds
MARITAL PRIVILEGE compelling reasons to order
In line with the filial privilege under Art 215 of the otherwise.
Family Code is the marital privilege provided for
under the Rules of Court which states that: Death, Substitute parental authority
absence or shall be exercised by the
The husband or the wife, during or after the unsuitability of surviving grandparent. In case
marriage, cannot be examined without the consent both parents. several survive, the one
of the other as to any communication received in designated by the court shall
confidence by one from the other during the exercise such, taking into
marriage except in a civil case by one against the account the best interest of the
other, or in a criminal case for a crime committed child.
by one against the other or the latter's direct
descendants or ascendants (RULES OF COURT,
Sec. 24(a)). ·
DOCTRINES·, REGARDING THE
RULES IN CASE PARENTAL MATERNAL PREFERENCE GRANTED
AUTHORITY CANNOT BE EXERCISED BY ART-,2-1.3, PAR,. 2.
JOINTLY' ... 1. Mater_nal:pt~fe'rence cannot be subjected
to an agreement between the separated
spouses
;{· ff- J\5 {H,
; '1fh~'s'eparated parents cannot contract away the
Absence or PA continued by the pre$ent provision in the Family Code on the maternal
death of either parent or survivingparenL , · custody of children below 7 years any more than
parent. they can privately agree that a mother who is
unemployed, immoral, habitually drunk, a drug
In case of PA continued to beexercised by addict, insane, or afflicted with a communicable
remarriage of surviving parent unless the court disease will have sole custody of a child under
the surviving appoints another person as seven as these are reasons deemed compelling
parent. guardian to preclude the application of the exclusive
maternal custody regime under the second
NOTE: The new spouse, by paragraph of Art. 213.
virtue of his or her marrying the
surviving parent, does not Any agreement of the parties unduly depriving
automatically possess parental the mother of custody of their children under 7
authority over the children of the years of age in the absence of compelling
surviving parent unless such reasons determined by courts is null and void.
new spouse adopts the children (STA.MARIA, supra at 841).
(STA.MARIA, supra at 833).
2. As to the bias favoring the mother over
the father in case of separation
At any rate, the rule's seeming harshness or'
undesirability is tempered by. ancillary
agreements the separated parents may wish to
 PERSONS AND FAMILY RELATIONS
enter, such as granting the father visitation and
other privileges. These arrangements are not
inconsistent with the regime of sole maternal
custody under the second paragraph of Art. 213
which merely grants to the mother final
authority on the care and custody of the minor
under 7 years of age, in case of disagreements
(Dacasin v. Dacasin, G.R. No. 168785, February
5, 2010).
3. As to the limited period of application of
preference
Further, the imposed custodial regime underthe .
second paragraph of Art. 213 is limited in
duration, lasting only until the child's 7th year.
From the 8th year until the child's emancipation,
the law gives the separated parents freedom,
subject to the usual contractual limitations, to
agree on custody regimes they see fit to adopt
(Dacasin v. Dacasin, G.R. No. 168785, February.
5, 2010).
WRIT OF HABEAS CORPUS IN CHILD
CUSTODY CASES
Habeas corpus may be resorted in ·cases Where
rightful custody is withheld from a
person entitled
thereto (Salientes v. Abanilla, G.R No. 162734,
August 29, 2006). · be sufficient reason to strip him of his permanent
CONSIDERATION IN, CHILD CUSTODY
CASES . .,
The controversy does not 'invofvErthe question of
personal freedom, because an infant is presuni'edto
be in the custody of someone until he .attains
majority age. In passing on the writ in a Child custody
case, the court deals with a matter of ari equiti:lbfe
nature. Hence, the court is not bound to deliver a
child into the custody of any claimanl or of~ny
person, but should, in the consideration 'of the facts,
leave it in-such custody as its welfare at thedime
appears to require. In short, the child's welfareis the
supreme consideration (Sombong v. CA, G.R. No.
111876, January 31, 1996).
MATERNAL PREFERENCE/TENDER
YEARS RULE
GENERAL RULE: No child under 7 years of age
shall be separated from the mother.
EXCEPTION: When the court finds compelling
reason to order otherwise. The welfare and well-
being of the child is the paramount consideration in
awarding custody (FAMILY CODE, Art. 213).
SUBSTITUTE PARENTAL AUTHORITY
Persons who will exercise parental authority in
default of parents or a judicially appointed guardian,
in the order indicated,: (SOC)
Civil Law
1. ~urviving grandparent;
2. Qldest brother or sister, over 21 years of age,
unless unfit or disqualified; and
3. Actual ~ustodian over 21 years of age unless
unfit or disqualified (FAMILY CODE, Art. 216).
NOTE: The same order of preference shall be
observed when the appointment of a guardian
over the property of a child becomes necessary.
NOTE: The person exercising substitute
parental authority shanhave the same authority
over the person of the child as the parents
(FAMILY CODE, Art. 233, par. 1).
In the Absence of the Legitimate Mother, the
Legitimate Father is still preferred over the
Grandparents
Notwithstanding the fact that private respondents'
(grandparents) demonstrated love and affection for
the boy"· the legitimate father is still preferred over
thee grarippc1rents. The latter's wealth is not a
deciding factor, particularly because there is no
proof Jhat at, the. present time, petitioner is in no
position ·t9 support the boy. The fact that he was
unable to provide financial support for his minor son
fro.m birth up•toover.three years when he took the
boy from his in~l9 w,s,without permission, should not
right to the child's custody (Santos v. CA, G.R. No.
113054/ March 1.6., 1995).
. RULE IN ,CASE OF FOUNDLINGS,
Af3~NDONED, '... NEGLECTED OR
ABUSED,,-' CHll,.;OREN AND OTHER
-· CHilDijtN S1Mf1-ARLY SITUATED:
FOUND UNG
Newborn child abandoned by its parents who are
1,1nknown (Bouvier's Law Dictionary, 3rd Revision, p.
1293).
ABANDONED CHILD
One who has no proper parental care or
guardianship, or those whose parents or guardians
have deserted him for a period of at least 6
continuous months (P.D. 603, Art. 141, par. 2).
NEGLECTED CHILD
One whose basic needs have been deliberately
unattended or inadequately attended and may be
done through physical or emotional neglect (P.D.
603, Art. 141, par. 3). An abused child can come
within the emotionally-neglected child (STA.MARIA,
supra at 853).
 ... '. -\>·_- :4, ::··/"_;:~./!'.
MEM:Q~Y AID
San Beda Universrty Co/!ege of Law - RGCT Bar Operations Center
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,Y V

PARENTAL AUTHORITY SHALL BE and its heads and teachers exercise over the pupils
ENTRUSTED IN SUMMARY JUDICIAL and students tor as long as they are at attendance in
the school, including recess time.There is nothing in
PROCEEDING TO HEADS OF: (COS) the law that requires that for such .liability to attach,
1. fhildren's homes; · the pupil or student who commits the tortious act
2. Qrphanagcs; or must live and board in the school. In the view of .the
3. ~imilar institutions duly accredited by the proper Court, the student is inthe custody of the school
government agency (FAMILY CODE, Art. 217). authorities as long _as he is under the control and
SPECIAL PARENTAL AUTHORITY influence of the school and within its premises,
(ARTS. 218 AND 219) whether the semester has not yet begun or has
Can only be exercised by the school, already ended.
its administrators and teachers, or the individual,
entityor institution engaged in childcare over minors SPECIAL PARENTAL AUTHORITY V.
while under their supervision, instruction or SUBSTITUTE PARENTAL AUTHORITY
custody. The authority and responsibility alsoattach
to all authorized activities whether inside oroutside
the premises of the school, entity or institution.

The following shall be held principally and solidarily

liable for damages caused by the acts or omissions
of the unemancipated minor: (SAC) Exercised in case of
1. .§chool; No distinction between academic or death, absence, or
non-academic (arts and trades). care and custody of the unsuitability of parents
2. ~dministrators and teachers; and person/s exercising (FAMILY CODE, Art.
3. Individual, entity or institution engaged in child .~e~cial parental 216).
fare. iautngrjtY;, j~e parents
temporarily !. relinquish
NOTE: In no case shall the persons exercising parental auth6rity.
special parental authority inflict corporal p!Jnishment
upon the child (FAMILY CODE, Art.233, pai 2).

ARTICLE 2180 OF THE _CIVIL CODE

Concurltent ,,, :, . with NOT exercised
APPLIES IF THE STUDENT IS NO
parent~l;tiUth~ritY: :· concurrently with the
LONGER A MINOR parents.
In Amadora v. CA, GR No. L-47745, April 15, 1988,
it was held that- where the school is academic rather
than technical or vocational in nature, responsibility
for the tort committed by the student will attach to the
teacher in - charge of such student, following the Liability is principal and 1. Liability is direct
first part of the provision. This is the general rule. In solidary. and primary (See
the case of establishments of arts and trades, it is FAMILY CODE,
the head thereof, and only he, who shall be held Art. 219, par. 3 in
liable as an exception to the general rule. In other relation to FIM..Y
words, teac~ers in general shall be liable for the acts CODE, Art. 221
of their students except where the school is technical and CIVIL CODE,
in nature, in which case it is the head thereof who Art. 2180).
shall be answerable. Following the canon of 2. If there are
reddendo singula singulis, "teachers" should apply persons exercising
to the words "pupils and students" and "heads of special parental
establishments of arts and trades" to the word authority - Liability
"apprentices". is only subsidiary
(i.e., only if the
PROTECTIVE ANO SUPERVISORY persons with
special parental
CUSTODY
authority cannot
As held in the case of Palisoc v. Brillantes, G.R. No. satisfy their
L-29025, October 4, 1971, the phrase "so long as liability).
(the students) remain in their custody" meansthe
protective and supervisory custody that the school
 PERSONS AND FAMILY RELATIONS
Civil Law

self-discipline, self-reliance, industry and thrift,

stimulate their interest in civic affairs, and inspire
in them compliancewith the duties of citizenship;
d. To £nhance, protect, preserve, and
maintain their physical and mental health atall
times;
Exercise of proper Exercise of diligence of e. To Eurnish them with good and wholesome
diligence required a good father of a educational materials, supervise their activities,
under the particular family may be invoked recreation and association with others, protect
circumstances may fAMIL Y CODE, Art. them from bad company,and prevent themfrom
extinguish the principal 221) (Tamargo v. acquiring habits detrimental to their health,
.:ind solidury li.:ibility Court of /\ppea/s, G.R. studies and morals;
(FAMILY CODE, Art. 85044, June 3, 1992). f. To Qemand from them respect and obedience
219). g. To Represent them in all matters affecting
their interests;
h. To Impose discipline on them as may be
PRINCIP[E OF PARENTAL LIABILITY required under the circumstances; and
The principle of parental liability (under Art. 221) is i. To Eerform such other duties as are
a species of vicarious liability, or the doctrine of imposed by law upon parents and guardians
imputed negligence where a person is not only liable (FAMILY CODE, Art. 220).
for torts committed by himself, but also for torts
committed by others with whom he has a certain DUTIE;S OF PARENTS UNDER P.O. NO. 603:
relationship and for whom he is responsible:Parental (GESIS-PAGA)
liability is, in other words, anchored upon the a. To §ive hi111 affection, companionship and
parental authority coupled with the presumed understanding;
parental dereliction in the discharge of the duties b. To ~xtehd to him the benefits of moral
accompanying such authority (Tamargo v. CA, G.R. guidance, self-discipline and religious
No. 85044, June 3, 1992). instruction;
c. To §upervise his activities, including his
VICARIOUS LIABILITY OR IMPUTED recreation; .
d. To Inculcate in hirri the value of industry, thrift
NEGLIGENCE
and self~reliance; .
Parents and other persons exercising· PA shall be e. To Stirilulat~ his interest in civic affairs, teach
civilly liable for injuries and damages caused by him~he d1;1ties of titizenship, and develop his
acts or omissions of their unemancipated children commitment to his country; .
living in their company and under their PA subject f. To Erovlde him with adequate support, as
to appropriate defenses provided by law (FAMILY
defined in Art. 194 of the Family Code;
CODE, Art. 221). g. To Advise .him properly on any matter
~ffecting'his development and well-being;
The parents may show that they· exerci$ed the h. Jo.always set a good example; and
diligence of a good father of a family 'to remove i. T.o,8dminister his property, if any.according to
themselves from liability under Art. 221 (STA.MARIA, ·his best interests. subject to the provisions of
supra at 869). Art. 225 of the Family Code (P.O. 603, Art. 46).

EFFECTS OF PARENTAL AUTt-iORITY PROCEDURE FOR IMPOSING DISCIPLINE ON

1. UPON THE PERSON OF THE
CHILDREN
RIGHTS AND DUTIES OF PARENTS AND THOSE
EXERCISING PARENTAL AUTHORITY: (KeG-
PEF- DRIP)
a. To Keep them in their company, to support,
educate and instruct them by right precept and
good example, and to provide for their
upbringing in keeping with their means;
b. To §ive them love and affection, adviceand
counsel, companionship, andunderstanding;
c.· To Erovide them with moral and spiritual
guidance, inculcate in them honesty, integrity,
THE CHILD
a. Parent or person exercising parental authority,
may petition the proper court of the place where
the child resides, for an order providing for
disciplinary measures over the child (FAMILY
CODE, Art. 223).
i. Relief prayed for may includecommitment in
entities or institutions engaged in child care
or in children'shomes duly accredited by the
proper government agency for not more
than 30 days.
ii. If petition is granted, parent shall not
interfere with the implementation of the ·
decision but shall continue to provide for his
support (FAMILY CODE, Art. 224).
 MEM:0-RY AID
San Booa University CoUege of Law - RGCT Bar Operations Center
b. There will be a summary hearing and the chili:!
shall be entitled to the assistance of counsel,
either of his choice or appointed by the court
(FAMILY CODE, Art. 223).
c. If in the same proceeding the court findsthe
petitioner at fault, irrespective of themerits of
the petition, or when the circumstances so
warrant, the court may also order the
deprivation or suspension of parental authority
or adopt such other measures as it may deem
just and proper (FAMILY CODE, Art. 223).
d. The court may terminate the commitmentof
the child whenever just and proper (FAMILY
CODE, Art. 224).
2. UPON THE PROPERTY
CHILDREN
Administration of the Child's Property bythe
Parents
The father and the mother shall jointly exercise legal
guardianship over the property of the
unemancipated common child without the necessity
of a court appointment. In case of disagreement, the
father's decision shall prevail, unless there is a
judicial order to the contrary (FAMILY CODE, Art.
225).
NOTE: There are cases where a parentcannot be
the administrator of the property of his children
under the provisions on succession,Art. 923 and Art.
1035 of the Civil Code, on disinh~rjted pare>nt.
Bond Requirement
Parents are required to file a bond where the market
value of the property or the annual income of the
child exceeds PS0,000. The bondshall not be less
than ten per centum ( 10%) of the value of the
property or annual income, to guarantee the
performance of the obligations prescribed for
general guardians (FAMILY CODE, Art. 225).
Fruits and Profits of Industry of Child:
a. Owned by the child;
b. Shall be devoted exclusively to the child's
support and education unless the title or transfer
provides otherwise;
c. Parent may only use such fruits and income
primarily to the child's support and secondarily
to the collective daily needs of the family
(FAMILY CODE, Art. 226).
Administration or Management of Parents'
Property by Unemancipated Child
a. The net proceeds of such property shallbelong
to the parents-owner.
b. The child shall be given a reasonable monthly
allowance in an amount not less than that which
the owner would have paid if the administrator
were a stranger,, unless the owner grants the
entire proceeds to the child.
c. The proceeds given in whole or in part shallnot
be charged to the child's legitime (FAMILY
CODE, Arl. 227).
NOTE: The courts may appoint a guardian of the
child's property, or a guardian-ad /item when the best
interests of the child so require (FAMILY CODE, Art.
222).
SUSPENSION AND TERMINATION OF
PARENTALAUTHORITY
Grounds for suspension: (CEO-BAN)
1. _g_onviction of a crime with the penalty of civil
interdiction; (FAMJL Y CODE, Art. 230).
2. gxcessively harsh or cruel treatment against
OF THE the child;
3. Qrders, counsel or example which are
corrupting, given by the person exercising
authority;
4. Child is compelled to .§.eg;
5. Subjecting child or allowing child to be
subjected to ~els of lasciviousness; or
6. Negligence, which is culpable, committed by
the p1;:rpon exercising authority (FAMILY
;CQD!f,t,rt. 231).
Necessity bf Court Order for Suspension,
Revocation, ,and Revival of Parental Authority
GENERAl-, RULE: The suspension or deprivation
maybe r~voked and parental authority revived if the
court finds that the cause has ceased and will not
be rep~at~d (f::AhiltY CODE, Art. 231, par. 4).
';~,"': i:-:,' .,, '',
EXCEPTION: In case of conviction for a crime which
.. ~rr:ies with it the penalty of civil interdiction, the
. ~Qfi)OJjty j~ automatically reinstated upon service of
· peflalty · or · pardon or amnesty of the offender
(FAMILY CODE, Art. 230).
GROUNDS FOR TERMINATION OF
PARENTAL AUTHORITY
PERMANENT TERMINATION: (DEDS)
1. Q.eath of the parents;
2. .!;_mancipation of the child;
3. Q.eath of the child; and
4. If the person exercising parental authority has
subjected the child or allowed him to be
subjected to §.exual abuse (FAMILY CODE, Art.
228; Art. 232).
OTHER GROUNDS FOR- TERMINATION OF
PARENTAL AUTHORITY: (1-DAGA)
1. Upon ~doption of the child:
2. Upon appointment of a 2,eneral guardian;
3. Upon judicial declaration of ~bandonment ofthe
child in a case filed for the purpose;
4. Upon final judgment of a competent court
Q_ivesting the party concerned of parental
 PERSONS AND FAMILY RELATIONS
authority; or
5. Upon judicial declaration of absence or
Incapacity of the person exercising parental
authority (FAMILY CODE, Art. 229) ..
LOSS OF PARENTAL AUTHORITY
UNDER THE REVISED PENAL CODE
Any parent of a child under sixteen years of age, who
shall deliver such child gratuitously or in
consideration of any price, compensation or
promise to any person being an acrobat, gymnast,
rope-walker, diver, wild-animal tamer or circus
manager or engaged in a similar calling who
employs said child in exhibitions or to any habitual
vagrant or beggar may be deprived, temporarily or
perpetually, in the discretion of the court, of their
parental authority (REVISED PENAL CODE, Art.
278, par. 4).
LOSS OF PARENTAL AUTHORIT Y 1
UNDER R.A. NO. 7610
Sec. 10 (c) of R.A. 7610 provi<;les as penalty,
among others, the loss of parental authority to any
ascendant, stepparent, or guarqian of a minor, who
shall induce, deliver or offer sud; minor uhder his
custody to persons prohibited by this Act to keep
persons described and enumerated in Sec. 10 (b ).
Sec. 10 (b) of the R.A. No. 761bprnjishes anyperson
who shall keep or have in his company a minor:
1. Who is 12 years old or younger in any public or
private place, hoteI;: . motel, beer joint,
discotheque, cabaret, p~nsion house, sauna or
massage parlor, beach, and/or·, other tourist
resort or similar·places; or ··
2. Who is 10 or more years his j~hior, in tht1places
enumerated in (1 ). · · - even ovE!r 18 years but are incapable of self-support
NOTE: The same provision does not apply to any
person who is related to the minor within the fourth
degree of consanguinity or affinity or any bond
recognized by law, local customand tradition or acts
in the performance of a social, moral, or legal duty.
R.A. NO. 8972: SOLO PARENTS'
WELFARE ACT OF 2000 (EFFECTIVE
NOVEMBER 28, 2000)
DEFINITION OF TERMS
SOLO PARENT refers to any individual who falls
underany of the following categories: (RaDe-DISNA-
Un- OF)
1. A woman who gives birth as a result of Rape and
other crimes against chastity even without a final
conviction of the offender: Provided, That the
mother keeps and raises the child;
2. Parent left solo or alone with the responsibility of
Civil Law
parenthood due to Q~ath of spouse;
3. Parent left solo or alone with the responsibility of
parenthood while the spouse is Detained or is
serving sentence for a criminal conviction for at
least one ( 1) year;
4. Parent left solo or alone with the responsibility of
parenthood due to physical and/or mental
Incapacity of spouse as certified by a public
medical practitioner;
5. Parent left solo or alone with the responsibility of
parenthood due to legal separation or de facto
.§eparation from spouse for at least one (1) year,
as long as he/she is entrusted with the custody
of the children;
6. Parent left solo or alone with the responsibility of
parenthood due to declaration of Nullity or
annulment of marriage as decreed by a court or
by a church as long as he/she is entrusted with
, the custody of the children;
7. Parent left solo or alone with the responsibility of
parenthood due to 8bandonment of spouse for
· at least one (1 )year;
8.' Unmarried mother/father who h?S preferred to
keep and re<;1r her/his child/children instead of
having others care for them or give them up to a
welfare· Jnstitution;
9. Any Qthef person who solely provides parental
care and support to a child or children;
10. Any'. Family member who assumes the
resp'onsibility of head of family as a resultof
the death, · abandonment, disappearance or
prolonged absence of the parents or solo
parent for at least'1 year (R.A No. 8972, Sec. 3,
par_ (a)). ·
CHll,.DREN refer to Jhose living with and dependent
ypon the solo parent for support who are unmarried,
unerpployed, and hot more than 18 years of age, or
l)ecause})f mental and/or physical defect/disability
(R.A. No. 8972, Sec. 3. Par (b)).
PARENTAL RESPONSIBILITY, with respect to
their minor children, shall refer to the rights and
duties of the parents as defined in Article 220 of
Executive OrderNo. 209, as amended, otherwise
known as the "Family Code of the Philippines" (R.A.
No. 8972, Sec. 3. Par(c)).
BENEFITS OF A SOLO PARENT
1. Leave Benefit
In addition to leave privileges under existing
laws, parental leave of not more than 7 working
days every year shall be granted to any solo
parent employee who has rendered service of at
least 1 year. The7-day parental leave shall be
non-cumulative (/RR of R.A. No. 8972, Sec.
18).
 MEM✓Q~Y AID
San Booa University College of Law • RGC r Bar Operauons Center
2. Flexible Work Schedule
The employer shall provide for a flexible work
schedule for solo parents. The schedule should
not, however, affect theindividual and company
productivity (R.A. No. 8972, Sec. 6).
3. Educational Benefits
The DECS, CHED and TESDA shall provide the
following bcncfitG ond privileges: scholarship
rrogmms tor qualified solo parents and their
children in institutions of basic, tertiary and
technical/skills education; and nonformal
education programs appropriate for solo parents
and their children (R.A. No. 8972, Sec. 9).
4. Housing Benefits
Solo parents shall be given allocation in housing
projects and shall be provided withliberal terms
of payment on said government low-cost
housing projects in accordance with housing law
provisions prioritizing applicants below the
poverty lineas declared by the NEDA (R.A. No.
8972, Sec. 10).
5. Medical Assistance
The DOH shall develop a comprehensive health
care program for solo parents and their children.
The program shall be implemented by the DOH
through their retained hospitals and medicBI
centers and the local government units (LGUs)
through their provincial/district/city/municipal
hospitals and rural health units (RH Us) (R.A. No.
8972, Sec. 11 ).
EMANCIPATION
(ARTS. 234-237)
Emancipation takes place by the attainment of the
age of majority. Unless otherwise provided, majority
commences at the age of 18 years (FAMILY CODE,
Art. 234 as amended by R.A. 6809).
EFFECT OF EMANCIPATION
Emancipation for any cause shall terminate parental
authority over the person and property of the child
who shall then be qualified and responsible for all
acts of civil life, save the exceptions established by
existing laws in special cases (FAMILY CODE( Art
236 as amended by R.A. 6809).
Upon the effectivity of this Act on December 13,
1989, existing wills, bequests, donations, grants,
insurance policies, and similar instruments
containing references and provi~ions favorable to
minors will not retroact to their prejudice (R.A. No.
6809, Sec. 4).
SUMMARY JUDICIAL
PROCEEDINGS IN THE
FAMILYIAW
(ARTS. 238-253)
ACTIONS REQUIRING SUMMARY
JUDICIAL PROCEEDINGS UNDER THE
FAMILY CODE:
1. Obtaining a judicial declaration of presumptive
death for the purpose of contracting a
subsequent marriage (FAMILY CODE, Art. 41);
2. In case of legally separated spouses, when the
consent of one spouse to any transaction of the
other is required by law, judicial authorization
shall be obtained in a summary proceeding
(FAMIL '(CODE, Art. 100, par. 2);
3." tn cas~',bf legally separated spouses, when the
community property is not sufficient for the
support 6fthe family each spouse is liable with
his/her, separate property. The spouse present
shall file ;before the court a petition for t_he
administration• of the specific separate property
of the other spouse and the use of the fruits or
proc~eos:Jg,;!:i?tisfy the latter's share (FAMILY
CODE, Art/100, par. 3);
4. Entrusting parental authority over foundlings,
. iJibandoned, neglected, and abused children to
lie~s,. of children's homes and orphanages
1(FAMILY CODE, Art. 217);
5. Providing for disciplinary measures over the
child at the motion of the parents or any person
exercising parental authority (FAMILY CODE,
Art. 223);
6. For the filing of a bond to enable the parents of
a minor to exercise legal guardianship over the
latter's properties, when the value of said
properties exceeds P50,000 (FAMILY CODE,
Art. 225);
7. Determination of the value of the presumptive
legitimes in cases of partition of the conjugal
dwelling (FAMILY CODE, Art. 51);
8. In case of disagreement in fixing the family
domicile (FAMILY CODE, Art. l;i9);
9. In case of objection to a spouse's exercise of
legitimate profession (FAMILY CODE, Art. 73);
10. In case of disagreement in the administration
and enjoyment of the community
property/conjugal partnership (FAMILY CODE,
Art. 96; Art. 124);
11. When a husband and wife are separated infact,
or one has abandoned the other and one of
 PERSONS AND FAMILY RELATIONS
them seeks judicial authorization for a the parties herein, and status affects or binds the
transaction (FAMILY CODE, Art. 239).
PROCEDURE: (F-NOPE-DJ)
1. Upon filing of a verifiP.d petition in the family
court where the spouses reside (or in the RTC,
if there is no family court), jurisdiction of said
court over the petition shall attach upon proof of
notice to the other spouse.
2. ~otice to the non-petitioning spouse shall
include a show cause order why the petition
should not be granted
3. The non-petitioning spouse is given the
Qpportunity to answer on or before the date set
for the initial conference as indicated in the
notice.
4. The E,reliminary conference shall be conducted
by the judge personally, and the spouses shall
not be assisted by counsel. After the initial
conference, the spouses may be assisted by
counsel at the court's discretion. ··
5. The court may proceed Ex parte and render
judgment if despite all ef(orts·, .. the'. non-
petitioning spouse does not appeqr.: . . · a_ direct. action. A direct action is necessary to
6. If both spouses are pres~nt durJn9 th:t initial
conference and the petition is 9ot r_esolyed then,
the petition shall be Qecidecl · ir;i a summary
hearing on the basis of qffidavits submitted.
7. The Judgment of the courtsha/J be imhiei:Jfaitely
final and executory (FAMILYCODE, ~rts. 239-
248).
RULE ON DECLARATION
OF ABSOLUTE ~UL4TY:·
OF VOID, MARRIAGES
AND ANNULMENTJ)F.
VOIDABLE MARRIAGES
(A.M. NO. 02-11-10-SC)
This Rule became effective on March 15, 2003 (A.M.
No. 02-11-10-SC, Sec. 25) and governs petition for
declaration of absolute nullity of void marriages and
annulment of voidable marriages (A.M. No. 02-11-
10-SC, Sec. 1). This rule covers marriages under the
Family Code of the Philippinesand is prospective in
· its application (Enrico vs. Heirs of Sps. Eulogio B.
Medinaceli and Trinidad Catli-Medinaceli, G.R. No.
173614, September 28, 2007).
NATURE OF AN ACTION FOR
ANNULMENT OF MARRIAGE
This is an action in rem, for it concerns the status of
Civil Law
whole world. The court has jurisdiction over the
res, in an action for annulment of marriage,
provided, at least, one of the parties is domiciled in,
or a national of, the forum (Rayray vs. Chae Kyung
Lee, No. L-18176, October 26, 1966).
ACTION TO NULLIFY MARRIAGE MUST
BE MADE IN A DIRECT ACTION
A petition for correction or cancellation of an entry
in the civil registry cannot substitute for an action to
invalidate a marriage. A direct action is necessary
to prevent circumvention of the substantive and
procedural safeguards of marriage under the Family
Code, A.M. No. 02-11-10-SC and other related laws
(Republic vs. O/aybar, G.R. No. 189538, February
10, 2014).
It was reiterated in a criminal case for falsification of
public_ documents (marriage certificate) where the
court held that the validity of marriage cannot be
.· collaterally attacked since under existing laws and
jurisprudence, the same may be questioned only in
prevent circumvention of the substantive and
procedural safeguards of marriage (Corpuz, Jr. vs.
People, G.R. Nos. 212656-57, November 23, 2016).
. ' ~ .
A.M. NO. 02;;11-1'0:.sc RULE DOES NOT
APPLY TO ~ECO$NITION OF FOREIGN
DIVO_RCE
The prO:cedure in AM; No. 02-11-1 0"SC does not
apply if:l a petition to recognize a foreign judgment
~annulling a ,pigamous marriage where one of the
parties is a citizen of the foreign country. A petition
for recqgnition does not require a re-litigation of the
case ::is if)t ,w~re a new petition for declaration of
nullity o( m9rfiage (Fujiki vs. Marinay, G.R. No.
196049, _June 26, 2013). .
WHO MAY FILE A PETITION FOR
DECLARATION OF ABSOLUTE NULLITY
OF VOID MARRIAGE
A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the
wife (A.M. No. 02-11-10-SC, Sec. 2).
NOTE: Section 2(a) of A.M. No. 02-11-10-SC does
not preclude a spous!;) of a subsisting marriage to
question the validity of a subsequent marriage on the
ground of bigamy. On the contrary, when Section
2(a) states that "[a] petition for declaration of
absolute nullity of void marriage may be filed solely
by the husband or the wife" - it refers to the
husband or the wife of the subsisting marriage (Fujiki
vs. Marinay, G.R. No. 196049 June 26, 2013).
 M!WMO \ 1
MEM✓v-RY Al D
San Seda University CoHege of law • RGCT Bar Operations Center
Only an aggrieved or injured spouse may file a
petition for annulment of voidable marriages or
declaration of absolute nullity of void marriages.
Such petiti9n cannot be filed by compulsory or
intestate heirs of the spouses or by the State (Enrico
vs. Heirs of Sps. Eulogio B. Medinaceli and Trinidad
Catli-Medinace/i, G.R. No. 173614, September 28,
2007).
PROHIBITION AGAINST HEIRS TO FILE
THE PETITION DOES NOT APPLY IF THE
CASE IS FILED BEFORE EFFECTIVITY
OF THE RULE
The Rule does not apply to cases already
commenced before March 15, 2003 although the
marriage involved is within the coverage of the
Family Code. This is so, as the new Rule which
became effective on March 15, 2003 is prospective
in its application (Carlos vs. Sandoval, G.R. No.
179922, December 16, 2008).
While the Family Code is silent with respect to the
proper party who can file a petition for declaration
of nullity of marriage prior to A.M. No. 02-11-10-SC,
it has been held that in a void marriage, in which no
marriage has taken place and cannot be the source
of rights, any interested party (an heir) may attack
the marriage directly or collaterally without
prescription, which may be filed even beyond the
lifetime of the parties to the marriage (Juliano~Llave
VS. Republic, G.R. No. 169766, March 30, 2011).
RECOURSE OF HEIRS IN QUESTIONING
THE VALIDITY OFMARRIAGE
While A. M. No. 02-11-10-SC declares that a petition
for declaration of absolute nullity of marriage may
be filed solely by the husband or the wife, it does not
mean that the compulsory or intestate heirs are
without any recourse under the law. Compulsory or
intestate heirs can still questionthe validity of the
marriage of the spouses, not in a proceeding for
declaration of nullity but upon the death of a spouse
in a proceeding for the settlement of the estate of
the deceased spouse filed in the regular courts
(Carlos vs. Sandoval, G.R. No. 179922, December
16, 2008).
WHO MAY FILE A PETITION FOR
ANNULMENT OF VOIDABLE
MARRIAGE: (CIF-FCS)
1. The contracting party whose parent, or
guardian, or person exercising substitute
parental authority did not give his or her
~onsent, within five years after attaining theage
of twenty-one unless, after attaining theage of
twenty-one, such party freely cohabitated with
the other as husband or wife; or the parent,
guardian or person having legal charge of the
contracting party , at any time before such party
has reached the age of twenty-one;
2. The sane spouse who had no knowledge of the
other's Insanity; or by any relative, guardian, or
person having legal charge of the insane, at any
time before the death of either party; or by the
insane spouse during a lucid interval or after
regaining sanity, provided that the petitioner,
after coming to reason, has not freely cohabited
with the other as husband or wife;
3. The injured party whose· consent was obtained
by .Eraud, within five years after the discovery of
the fraud, provided that said party, with full
knowledge of the facts constituting the fraud,
has not freely cohabited with the other as
husband or wife;
4. The injured party whose consent was obtained
by .Eorce, intimidation, or undue influence,
within five years from the time the force
intimidation, or undue influence disappeared or
ceased, provided that the force, intimidation, or
undue influence having disappeared or ceased,
said party has not thereafter freely cohabited
with the other as husband or wife;
5. The injured party where the other spouse is
.J?hysically incapable of fonsummating the
· marriage with the other and such incapability
continues:'and appears to be incurable, within
five yearsiafter the celebration of marriage; and
6. The injured \party where the other party was
afflicted with 'a Sexually-transmissible disease
found to t{e set.ious and appears to be incurable,
wlthirJ,tiY¢YE>J:)($ a,fter the celebration of marriage
(A.M. 6'/i(Q?.-·dd~10-sc;,
".·<·,,·.·"'·
Sec. 3).
VENUE OF THE PETITION
i•·frieBetition
,. <;:>t,\.--.-5, '''."'t:iJ,·i
i.
shall be filed in the Family Court of the
· province cir city where the petitioner or the
respondent has been residing for at least six months
prior to the date of filing. Or in the case of non-
resident respondent, where he may be found inthe
Philippines, at the election of the petitioner (A.M.
No. 02-11-10-SC, Sec. 4).
IN CASE THE RESPONDENT FAILS TO
ANSWER, THE PROSECUTOR SHALL
INVESTIGATE WHETHER THERE IS A
COLLUSION
Where no c1nswer is filed or if the answer does not
tender an issue, the court shall order the public
prosecutor to investigate whether collusion exists
between the parties (A.M. No. 02-11-10-SC, Sec. 8).
CERTIFICATION FROM THE SOLICITOR
GENERAL NO LONGER REQUIRED IN
AN ACTION FOR NULLITY UNDER
ARTICLE 36
The requirement in Molina that the Solicitor General
 PERSONS AND FAMILY RELATIONS
must issue a certification stating his reasons for his
agreement or opposition to the petition was
dispensed with following the implementation of A.M.
No. 02-11-10-SC, or the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages. Still, Article 48 of the Family
Code mandates that the appearance of the
prosecuting attorney or fiscal assigned be on behalf
of the State to take steps to prevent collusion
between the parties and to take care that evidence
is not fabricated or suppressed (Antonio vs. Reyes,
G R No 155800, Merch 10, ?OOn)
NOTE: Nevertheless, the court may require the
parties and the public prosecutor, in consultation
with the Office of the Solicitor General, to file their
respective memoranda in support of their claims
within fifteen days from the date the trial is
terminated. It may require the Office of the Solicitor
General to file its own memorandum if the case is
of significant interest to the State (A. M. No. 02-11-
10-SC, Sec. 18).
PROHIBITED COMPROMISE (CVL-SJL)
1. The £ivil status of persons;,'
2. The Y:alidity of a marriage or, of a legal
separation; .· ·
3. Any ground for !,_egal separation;
4. Future §upport; · (A.M. No. 02-11-10:sc, Sec. 21).
5. The Jurisdiction of courts; and
6. Future !,_egitime (A.!vJ. No.02-11-10-SC,
Sec.16).
MOTION FOR RECONSJDERATION
. REQUIRED BEFORE AN APPEAL
No appeal from the decision shaU be allowed unless
the appellant has filed a motion for reconsiaeration
or new trial within fifteen days f~om· riotice of
judgment (A.M. No. 02-11-10-SC, Sec: 1EJ,par. 1).
FINALITY OF DECISION
The decision becomes final upon the expiration of
fifteen days from notice to the parties. Entry of
judgment shall be made if no motion for
reconsideration or new trial, or appeal Is filed by any
of the parties, the public prosecutor, or the Solicitor
General (A.M. No. 02-11-10-SC, Sec. 19, par. 3).
EFFECT OF DEATH OF ONE OF THE
PARTIES
1. In case a party dies at any stage of the
proceedings before the entry of judgment, the
court shall order the case closed and
terminated, without prejudice to the settlement
of the estate in proper proceedings in the regular
courts (A.M. No. 02-11-10-SC, Sec. 24, par.1).
2. If the party dies after the entry of judgment of
nullity or annulment, the judgment shall be
Civil Law
binding upon the parties and their successors
in interest in the settlement of the estate in the
regular courts (A.M. No. 02-11-10-SC, Sec. 24,
par. 2).
SERVICE AND EFFECT OF DECISION
GRANTING PETITION
1. The parties, including the Solicitor General and
the public prosecutor, shall be served with
copies of the decision personally or by
registered mail. If the respondent summonodby
publication tailed to appear In the action, the
dispositive part of the decision shall be
published once in a newspaper of gonoml
circulation (A.M. No. 02-11-10-SC, Sec. 19, par.
2).
2. Upon the finality of the decision,' the court shall
forthwith issue the corresponding decree if the
parties have no properties (A.M. No. 02-11-10-
SC, Sec. 19, par. 4).
3. If the parties have properties the parties shall
pmceed . with the liquidation, partition and
d,istribution · of the properties of the spouses,
including custody, support of common children
and delivery of their presumptive legitimes
pursuant to ArtiG/es 50 and 51 of the Family
Code unless. s,uch matters had been
adjupicated in previous judicial proceedings
NOTE: l;)ecree 9fnullit)) will be issued by the court
only after compliance vjith Articles 50 and 51 (A.M.
No. 92~1.1-10-SC, Sac. 19, par. 1). If the parties have
no properties,.upon finality of the decision, thecourt
will issue the correspohding decree (A.M. No. 02-11-
to~sc, Sec. 19, par. 4).
DEC,REEWltL BE REGISTERED IN THE
c•v1L RE:GISTRY .
Th~. prevailing party shall cause the registration of
· ···the Decree in the Civil Registry where the marriage
was registered, the Civil Registry of the place
where the Family Court is situated, and in the
National Census and
Statistics Office. He shall report td the court
compliance with this requirementwithin thirty days
from receipt of the copy of theDecree (A.M. No.
02-11-10-SC, Sec. 23, par. 1).
WHEN PUBLICATION OF DECREE IS
REQUIRED
In case service of summons was m_ade by
publication, the parties shall cause the publication
of the Decree once in a newspaper of general
· circulation (A.M. No. 02-11-10-SC, Sec. 23, par. 2).
 ♦hi dtD
MEM:<~);RY AID
\ 1
San Beda University Coflege of Law - RGCT Bar Operations Center
RULE ON LEGAL
SEPARATION
(A.M. NO. 02-11-11-SC)
WHO MAY FILE:
The husband or the wife (A.M. No.02-1111-SC,
Sec. 2 (a)).
WHEN TO FILE:
The petition for legal separation maybe filed within
five (5) years from the time of the occurrence of any
of the following grounds: (VP-61- B_ALIDS)
1. Repeated physical Yiolence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
- 2. Physical violence or moral fressure to compel
the petitioner to change religious or political
affiliation;
3. Final judgment sentencing the respondent to
imprisonment of more than six (~) years, even if
pardoned;
4. Abandonment of petitioner by respondent
without justifiable cause for more than ,one (1)
year;
5. Contracting by the respondent of a subsequent
_!;!igamous marriage, whether. in or outside the
Philippines; · ·
6. ~ttempt on the life of petitio:1er by the
respondent;
7. !:,_esbianism or homosexuality of the
respondent;
8. Attempt of respondent to corrupt orJnduce the
petitioner, a· common child, or a child of the
petitioner, to engage in prostitution; or
connivance in such corruption or inducement;
and
9. Qrug addiction or habitual alcoholism of the
respondent; and
10. .§exual ·infidelity or perversion of respondent
(A.M. No. 02-11-11-SC, Sec. 2 (a)).
MOTION TO DISMISS
No motion to dismiss the petition shall be allowed
except on the ground of lack of jurisdiction over the
subject matter or over the parties (A. M. No. 02-11-
11-SC, Sec. 4).
LIQUIDATION, PARTITION
DISTRIBUTION, CUSTODY,
SUPPORT OF MINOR CHILDREN
Upon entry of the judgment granting the petition, or,
in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition,
'. ":{?};: \1;f:
~-:f)l: t•,.,;_,' '< Y;<~,/''~ ,,~,
the Family Court, on motion of either party, shall
proceed with the liquidation, partition and distribution
of the properties of the spouses, including custody
and support of common children, under the Family
Code unless such matters had been adjudicated in
previous judicial proceedings (A.M. No. 02-11-11-
SC, Sec. 18).
WHEN MAY THE COURT ISSUE A
DECREE OF LEGAL SEPARATION
1. After registration of the entry of judgment
granting the petition tor legal separation in the
Civil Registry where the marriage was
celebrated and in the Civil Registry where the
Family Court is located; and
2. After registration of the approved partition and
distribution of the properties of the spouses, in
the proper Register of Deeds where the real
properties are located (A.M. No. 02-11-11-SC,
Sec. 19).
PETITION FOR REVOCATION OF
DONATIONS
..· WHEN TO FILE: Within five (5) years from the date
t_~~',: decision granting the petition for legal
. separation has become final, the innocent spouse
may file a petition under oath in the same proceeding
for legal separation to revoke the donations in favor
of the offending spouse.
WHERE RECORPED: The revocation of the
donatipn$ ;stli:i!L ~I:!: recorded in the Register of
Deeds in, ~li~)places where the properties are
located.
, NOTE:. Alienations, liens, and encumbrances
registered in good faith before the recording of the
petition for revocation in the registries of property
shall be respected.
After the issuance of the Decree of Legal
Separation, tlie innocent spouse may revoke the
designation of the offending spouse as a beneficiary
in any insurance policy even if suchdesignation be
stipulated as irrevocable. The revocation or change
shall take effect upon written notification thereof to
the insurer (AM. No. 02-11- 11-SC, Sec. 22).
DECREE OF RECONCILIATION
1. If the spouses had reconciled, a joint
manifestation under oath, duly signed by the
spouses, may be filed in the same proceeding
AND for legal separation.
AND 2. If the I C:LUIIL,aiatiu1 I UL,VUI I c;d V'v'hile the
proceeding for legal separation is pending, 'the
court shall immediately issue an order
terminating the proceeding.
3. lfthe reconciliation occurred after the rendition
of the judgment granting the petition for legal
 PERSONS AND FAMILY RELATIONS
separation but before the issuance of the
Decree, the spouses shall express i11 their
manifestation whether or not they agree to
revive the former regime of their property
relations or choose a new regime.
The court shall immediately issue a Decree of
Reconciliation declaring that the legalseparation
proceeding is set aside and specifying the
regime of property relations under which the
spouses shall be covered.
4. If the spouses reconciled after the issuance of
the Decree, the court, upon proper motion, shall
issue a decree of reconciliation declaring therein
that the Decree is set aside but theseparation of
property and any forfeiture of the share of the
guilty spouse already effected subsists, unless
the spouses have agreed to revive their former
regime of property relations or adopt a ne'N
regime.
5. If the reconciled spouses choose, td adopt a
regimeof property relations differept from th§t
which they had prior to the· fiijng of the petition
forlegal separation, the spous~· shatf cqmply
with Section 24 by filing .a verifie,d · motion for
revival indicating the propert\/tope cqntributed
or retained and the names, addresses and
amounts owing to creditors. , , :_
6. The decree of reconcil(ation.,s/lall be ;;recorded
in the Civil Registries where• t.he marriage and
the Decree had been registwed (('t.M. 1No. 02-
11-11-SC, Sec. 23). . .
·RULE ON PROVISIONAL ORQERS (JtM.
NO. 02- 11-12-SC) . 2; ...· The physical and emotional health of the child
RULES FOR SPOUSAL SUPPORT :
In determining support for the spous"'es, t~ .court
may be guided by the following rules: ·· · . , · vyiU·make toward the care and well- being of the
1. It is based on written agreement between the
spouses;
2. In the absence of (1 ), the spouses may be
supported from the properties of the absolute
community or the conjugal partnership;
3. The court may award support to either spouse in
such amount and for such period of time as the
court may deem just and reasonable based on
their standard of living during the marriage; and
The court may likewise consider the
following factors:
a. whether the spouse seeking support is the
custodian of a child whose circumstances
make it appropriate for that spouse not to
seek 011tside employment;
b. the time necessary to acquire sufficient
education and training to enable the spouse
seeking support to find appropriate
Civil Law
employment, and that spouse's future
earning capacity;
c. the-duration of the marriage;
d. the comparative financial resources of the
spouses, including their comparative
earning abilities in the labor market;
e. the needs and obligations of each spouse;
f. the contribution of each spouse to the
marriage, including services rendered in
home-making, child care, education, and
career building of the other spouse;
g. the age and health of the spouses;
h. the physical and emotional conditions ofthe
spouses;
i. the ability of the supporting spouse to give
support, taking into account that spouse's
earning capacity, earned and unearned
income, assets, and standard of living; and
j. any other factor the court may deem just and
equitable.
4, Tt)e faITlily Court may direct the deduction of the
provisiorial,support from the salary of the spouse
(A.M. No ..02,11-12-SC, Sec. 2).
DETERMINl':J")ON OF THE AMOUNT OF
PROVISIONAL .CHILD SUPPORT
The .. common ··children of the spouses shall be
·
supported from the broperties of the absolute
community or the ,conjugal partnership.
The F9Howir19, f:,aclors Are Considered:
1. The firiancjal resoL{rces of the custodial andnon-
-eustcidial ,i:iarent a_nd those of the child;
and his or her special needs and aptitudes;
, 3. The standar.d of living the child has been
~CC\jstom~d to;
4: .tB~ ncin"monetary contributions thattheparents
· · ''child.
The Family Court may direct the deduction of the
provisional support from the salary of the parent
(A.M. No. 02-11-12-SC, Sec. 3).
CONSIDERATION IN DETERMINING THE
RIGHT PARTY TO WHOM CHILD
CUSTODY WILL BE AWARDED
In determining the right party or person to whom
the custody of the child of the parties may be
awarded pending the petition, the court shall
consider the best interests of the child and sha" give
paramount consideration to the material and moral
welfare of the child (A.M. No. 02-11-12-SC, Sec. 4).
 e&Sh!'i \ I
MEM:Q-RY Al D
San Beda University College of Law - RGCT Bar Operations Center
ORDER OF PREFERENCE
DETERMINING CHILD CUSTODY
1. To both parents jointly;
2. To either parent taking into account all relevant
considerations under the foregoing paragraph,
especially the choice of the child over seven
years of age, unless the parent chosen is unfit;
3. To the surviving grandparent, or if there are
several of them, to the grandparent chosen by
the child over seven years of age and of
sufficient discernment, unless the grandparent is
unfit or disqualified;
4. To the eldest brother or sister over twenty-one
years of age, unless he or she is unfit or
disqualified;
5. To the child's actual custodian over twenty-one
years of age, unless unfit or disqualified; or
6. To any other person deemed by the court
suitable to provide proper care and guidance
for the child (A. M. No. 02-11-12-SC, Sec. 4).
VISITATION RIGHTS
Appropriate visitation rights shall be provided to the
parent who is not awarded provisional custody
unless found unfit or disqualified by the court (AM.
No. 02-11-12-SC, Sec. 5).
ADMINISTRATION OF COMMON
PROPERTY IN CASE · OF
ABANDONMENT
If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the
family, the court may, upon applicatiqn of the
aggrieved party under oath, issue a provisional order
appointing the applicant or a third person as receiver
or sole administrator of the common property subject
to such precautionary conditions it may impose
(A.M. No. 02-11-12-SC, Sec. 8).
NOTE: The receiver or administrator may not
dispose of or encumber any common property or
specific separate property of either spouse without
prior authority of the court (A.M. No. 02-11-12-SC,
Sec. 8).
USE OF SURNAMES
(ARTS. 364-380)
NAME
It is a word or combination of words by which a
person is known and identified, and as distinguished
from others, for the convenience of the world at large ·
in addressing him, or in speaking of or dealing with
IN him (1 TOLENTINO, supra at 672). The surname or
family name is that which identifies the family to
which he belongs and iscontinued from parent to
child. The given name may be freely selected by the
parents for the child, but the surname to which the
child is entitled is fixed by law (In the matter of the
adoption of Stephanie Nathy Astorga Garcia, G.R.
No. 148311,March 31, 2005).
NOTE: ThR right to a surname is not exclusive. It
does not pertain in ow11er!:itlip lu clllY tlelerrr1ir1c1le
person (Id. at 673).
RULES ON THE SURNAME OF A
MARRIED WOMAN
1. A married woman may use:
a. Her maiden first name and surname and
add her husband's. surname (e.g., Aurora
Aragon - Quezon); or
b. Her maiden first name and her husband's
surname (e.g.: Aurora Quezon); or
c. Her husband's full name, but prefixing a
word indicating that she is his wife, such as
"Mrs." (e.g.: Mrs. Manuel Quezon) (CIVIL
•. COQE;, Art. 370).
i:i. ":t'~t:~aiden name upon marriage (e.g.,
Aurma Aragon) (Remo v. Sec. or Foreign
Affairs,cG.R. No. 169202, March 5, 2010).
A married woman has an option but not a duty
to u7~ t~e sumame of the husband. She is
the~efore aHovyed to use not only any of the three
na'm~.)tifykl(i~tk in Article 370, but also her
maiden name upon marriage. She is not
prohibited from continuously using her maiden
name once she is married because when a
.·WO!UIW-marries, she doesnot change her name
butonly her civil status (Remo v. Sec. of Foreign
. . Affairs, G.R. No. 169202, March 5, 2010).
NOTE: Once a married woman opted to adopt
her husband's surname in her passport, she
may not revert to the use of her maiden name,
except in the cases enumerated in Section S(d)
of RA.8239:
1) Death of husbaod;
2) Divorce;
3) Annulment; or
4) Nullity of marriage.
2. In case of annulment of marriage
a. If the wife is the guilty party, she shall
resume her maiden name and surname.
b. If she is the innocent spouse, she may
resume her maiden name and surname.
However, she may choose to continue
employing her former husband's surname,
unless:
i. The court decrees otherwise, or
ii. She or the former husband is married
 ,•,' :}*,?, /'\; :~:.-'.i .'~' •,
.':156.·}i,,: -:.,,,,; PERSONS AND FAMILY RELATIONS
Civil Law
,, ~' J ~• ,',~: :~ \ ~ ~~\' ::, / " : ~ ,:~ \ / I~,';~~~-~ 'o

again to another person (CIVIL CODE,

Art. 371). NOTE: "Principally" used in Article 364 is not
equivalent to "exclusively~, so that there is no legal
3. When legal separation has been obstacle if a legitimate or legitimated child should
granted, the wife shall continue using choose to use the surname of the mother to whichit
her name and surname employed is legally entitled. (Alfon v. Republic, G.R. No. L-
before the legal separation (CIVIL CODE, 51201, May 29, 1980).
Art. 372).
Reading Article 364 of the Civil Code together with
NOTE: The language of the statute is the State's declared policy to ensure the
mandatorythat the wife, even after the legal fundamental equality of women and men before the
separation has been decreed, shall continue law, a legitimate child is entitled to use the surname
using her name and surname employed before of either parent as a last name (Alanis Ill vs Court Qf
the legal separation. This is so because her Appeals, G.R. No. 216425, November 11, 2020).
married status is unaffected by the separation,
therebeing no severance of the vinculum. It USE OF THE MOTHER'S SURNAME AND
seemsto be the policy of the law that the wife SIGNATURE IS REQUIRED FOR HER
should continue to use the name indicative of ILLEGITIMATE CHILDREN'S BIRTH
her unchanged status for the benefit of all
concerned (Laperal v. Republic, G.R. No. L-
CERTIFICATES
18008, October 30, 1962). The tRR of RA. No. 9255 states that illegitimate
children shall use the surname and shall be under
4. A widow may use the deceased th@ parental authority of their mother. The
husband's surname as_ though he were discretion on the part of the illegitimate childto use
the surname of the.father is conditional upon proof of
still living, in accordance With Art. 370 compliance with RA: No. 9255 and its IRR.
(CIVIL CODE, Art.373).
It is mandatory that the mother of an illegitimate
USE OF SURNAME BYTHE CHILD child signs the birth certificate of her child in all
cases, i(respective of whether the father recognizes
the child as his or not. The only legally known parent
of an illegitimate Child, by the fact of illegitimacy, is
Legitimate Surname of father, _priri<;ipally the mother of the child )NhO conclusively carries the
(CIVIL CODE.;; Ait 364), .
blood of the mother (In re: Yuhares Jan Barcelote
Tinitigan; G.R: No. 22;2095, August 7, 2017).
Legitimated Surname of father, __ principally IDENTITYOF NAMES AND SURNAMES
(CIVIL CODE; Art. 364) ..
• 1, The. younger person shall be obliged to use such
<': ,·,~- , .•, additional name or surname as will avoid
Conceived Surname of rather · (C/1,{IL _confvsion (CIVIL CODE, Art. 374).
before the CODE, Art. 369). 2. Between ascendants and descendants, the
decree . -· word "Junior" can be used only by a son.
annulling a Grandsons and other direct male descendants
voidable shall either:
marriage a. Add a middle name or the mother's
surname, or
Illegitimate Generally, surname of mother b. Add the Roman Numerals II, Ill, and so on
(CIVIL CODI=, Art. 368). (CIVIL CODE, Art. 375).

May use surname of father if Art. 375 restricts the use of "Junior"but social usage
filiation has been expressly allows the use of "Junior" also for daughters.not for
recognized by the father through granddaughters (1 PARAS, supra.at 875).
the record of birth appearing in
the civil register, or when an NOTE: Article 376 on the change of name or
admission in a public document surname has been repealed by R.A. No. 9048
or private handwritten (2001 ).
instrument is made by the father
(CIVIL COBE, Art. 282). CHANGE OF NAME
Change of name is a matter of public interest. It is
Adopted Surname of adopter
not a right. It is a privilege. The court may give or
(CIVILCODE, Art. 365).
withhold its consent (In the Matter of the Petition for.
 MEM:Q~Y AID
San Seda University College of Law - RGCT Bar Operations Center
Change of Name, Go Chiu Beng v. Republic of the
Philippines, G.R. No. L-29574, August 19, 1972).
APPLICATION FOR CHANGE OF NAME
Change of nam_e is a judicial proceeding in rem.
Jurisdiction to hear and determine a petition
therefore, by law, is acquired after publication
hearing thereof - for 3 successive weeks in a
newspaper of general circulation. But, for that
publication to be effective, it must give correct
information.
For purposes of an application for change of name
under Art. 376 of the Civil Code, the only name that
may be changed is the true or official name recorded
in the civil register. In addition, for a publication of
a petition for a change of name to be valid, the title
thereof should include, first, his real name, and
second, his aliases, if any (Jesus Ng Yao Siong v.
Republic, G.R. No. L-20306, March 31, 1966).
GROUNDS TO WARRANT A CHANGE
OF NAME
Jurisprudence has recognized certain justifying
grounds to warrant a change of name: (W-PACE)
1. The name is ridiculous, dishonorable or ·
extremely difficult to Write or _!:ronounce;
2. The change will ~void confusion;
3. One has been continuously used and been
known since _g_hildhood by -a Filipino .name,
unaware of alien parentage;
4. The surname causes gmbarrassment and there
is no showing that the desired change of name
was for a fraudulent purpose or that the change
of name will prejudice public interest (Republic
v. Bolante, G.R. No. 160597, July20, 2006).
GROUNDS FOR CHANGE OF FIRST
NAME OR NICKNAME UNDER RA 9048
1. Petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
2. The new name or nickname has been habitually
and continuously used by petitioner and he has
been publicly known by that first name or
nickname in the community;
3. The change will avoid confusion (R.A. 9048,
Sec. 4)
USURPATION OF A NAME
Usurpation_ of a name and surname may be the
subject of an action for damages and other relief
(CIVIL CODE, Art. 377). Conseqwently, the
unauthorized or unlawful use of another person's
surname gives a right of action to the latter (CIVIL
CODE, Art. 378).
ELEMENTS: (AUDI)
1. There is an ~ctual use of another's name by the
defendant;
2. The use is .!,!nauthorized; and
3. The use of another's name is to Qesignate
personality or Identify a person (Tolentino v. CA,
G.R. No. L-41427, June 10, 1988).
GENERAL RULE: No person shall use different
namesand surnames (CIVIL CODE, Art. 380).
EXCEPTION: Use of pen names or stage names is
permitted, provided it is done in good faith andthere
is no injury to third persons (CIVIL CODE, Art.379).
ABSENCE
(ARTS. 381-:396)
The legal status of a person who has absented
· himself from his domicile and whose whereabouts
9 n(;t,.fate ai:_,e unknown, it not being known with
• certainty wtMther he is still living or not (JURADO,
supra at 260);
KrNDS OF AijSENCE: {PO)
1. e,rovisionaf. absence (CIVIL CODE, Art.
3811
- l.o/h~n ap~r::,9n disappears from his domicile,
his' Wfi.Etf~aooUts being unknown, without
leaving an agent to administer his property.
,a. There is no declaration of absence yet but
· ,,J,agal representative may be appointed only
·. >: wneh urgent representation is necessary and
applies only if no agent has been appointed
to represent the absentee or agent's
authority has expired (1 PARAS, supra at
874);
b. The spouse is preferred as the legal
representative except when they are legally
separated (CIVIL CODE, Art. 383, par. 1);
and
c. If absentee left no spouse, any competent
person any be appointed (CIVIL CODE, Art.
383, par. 2).
2. Qeclared absence (CIVIL CODE, Art. 384)
a. Without administrator - When a person
disappears from his domicile, and 2 years
have elapsed without any news about him, or
since the receipt of the last news.
b. With administrator - 5 years have elapsed
The following may ask for the declaration
ofabsence: (STIR)
i. §.pouse present;
 PERSONS AND FAMILY RELATIONS
ii. Testate heirs;
iii. intestate heirs; and
iv. Other persons subordinated to Rights
over theproperty of absentee by death.
(CIVIL CODE, Art. 385)
The judicial declaration of absence shall nottake
effect until 6 months after its publication in a
newspaper of general circulation ( CIVIL CODE,
Art. 386).
An administrator of the absentee's property shall
be appointed by the court in accordance with
Art. 383 (CIVIL CODE, Art. 387).
NECESSITY OF JUDICIAL
APPOINTMENT
Appointment by the court is essential to capacitate
the wife to represent the absentee.Otherwise, she
cannot, for example, dispose ofconjugal property (1
PARAS, supra at 868). · years EXCEPTION:
If the wife is appointed as an administratrix, she
cannot alienate or encumber the husband's property.
or that of the conjugal property without judicial
authority (CIVIL CODE, Art. 388) ..
RIGHTS OF WIFE AS ADMINISTRATIX:
She must always obtain judiciaJpermissibn or
authority in order that:
a. She can alienate or encumber
herhusband's property; . .
b. She can alienate or encumber th~ conjugal
property (1 PARAS, supra at 876).
THE ADMINISTRATION SHALL . CEASE
WHEN: (RPA)
1. Absentee Reappears personally or.through· an·
agent;
2. Death is froven and his testate/intestate heirs
appear; and
3. Third person appears and shows proof that he
Acquired absentee's property when absentee
was still alive (CML CODE, Art. 389).
PRESUMPTIVE DEATH
When the absentee is presumed dead ( CIVIL
CODE, Arts. 390-391).
KINDS OF ABSENCE VIS-A-VIS
PRESUMPTION OF DEATH:
1. Ordinary
- it is when after an absence of 7 years, it being
unknown whether or not the absentee still lives
(CIVIL CODE, Art. 390).
2. Extraordinary or Qualified
- the following shall be presumed dead for all
Civil Law
purposes: _
a. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing,
who has not been heard of for 4 years
since the loss of the vessel or aeroplane;
b. A person in the armed forces who has taken
part in war, and has been missing for 4
years;
c. A person who has been in danger of death
under other circumstances and his
existence has not been known for 4 years
(CIVIL CODE, Art. 391).
PRESUMPTION OF DEATH
CIVIL CODE, ARTS. 390 TO 392
Presumed dead for all purposes
Eo't-,purposes of opening succession
J?r(C)sumed. dead for purposes of opening
sac;cession
10 EXCEPTION:
of
years ·If at th~ time disappearance, the person
;was alr,eady 15 years old, 5 years of
absence is. ?~fficient for this presumption
. to apply. ·
4 . Presurfied @ead for . purposes of
years rem~rriage ofthe spouse present (FAMILY
CODE, Art.41)
4· Presumed dead for all purposes
years includingopening of succession.
2 Presumed dead for purposes of
years remarriage (FAMILY CODE, Art. 41).
EFFECT OF APPEARANCE BY
ABSENTEE
If the absentee appears, or without appearing his
existence is proved, he shall recover his property in
the condition in which it may be found, and the price
of any property that may have been alienated or the
property acquired therewith; but he cannot claim
either fruits or rents (CIVIL CODE, Art. 392).
 1
MHMMD '
ME~Q~Y AID
San Seda University College of Law - RGCT Bar Operations Center

PRESUMPTION OF DEATH OF ABSENT EXCEPTIONS:

SPOUSE ·1. Before the celebration of the subsequent
marriage, the prior spouse had been absent for
A well-founded belief that the absentee is already
four consecutive years and the spouse present
dead is required before an absent spouse may be
has a well-founded belief that the absent spouse
declared presumably dead. The requisites are: (4-
was already dead; or
RBF)
2. In case of disappearance where there is danger
1. The absent spouse has been missing for ,4 years of death under the circumstances set forth inthe
or 2 consecutive years if the disappearance is
provisions of Article 391 of the Civil Code, an
under extraordinary circumstances stated in Art.
absence of only two years shall be sufficient
91 of the Civil Code;
.(FAMILY CODE, Ari. 41).
2. The present spouse wishes to .!3.emarry;
3. The present spouse has a well-founded gelief
NOTE: Article 41 of the Family Code only applies
thatthe absent spouse is dead; and
when the petitioner seeks to remarry (Tadeo-Matias
4. The present spouse f.iles a summary
v. Republic, G.R. No. 230751, April 25, 2018).
proceeding for the declaration of presumptive
death of the absent spouse (Republic v.
Nolasco, G.R. No. 94053, March 17, 1993).

NOTE: The legal requirement on the need for judicial CIVIL REGISTRAR
declaration of presumptive death does not apply to
a marriage celebrated under the ~Old) Civil Code
(ARTS. 407-413)
as the law itself presumed as dead the spouse who
disappeared for a period of 7 years where the
present spouse has no news of the absentee belng Acts, events and judicial decrees concerning the civil
alive, or for less than 7 years wherethe absentee > §~\Ui? of f¥'[.Sons shall be recorded in the civil .
was generally presumed dead. Hence, proof of · . · re1jisterr{CJ.flL CODE, Art. 407). This includes:
"well-founded" belief is not required. F:efitioner (BMD-LAVLA~-NEC-JC)
could not have been expected to comply with this 1. !}irths; ...
requirement since the Family Code was·not yet in 2. _Marriages; ;
effect at the time of her marriage (Valdez V. 3. Qeath,s; . .
Republic, G.R. No. 180863, Sept,f:Jifiber 8, 2009). 4. _beg<jjl separatil;ms;
5. JµJ;l,Qm~nw. 9f Aop.ulment of marriage;
Claims based on bare assertions;trncorrobotated t,y 6. Judgroehte::P~faring marriages Yoid from the
any kind of evidence, falls short. of th'e diligence beginning;·' .
required to engender a well-founded belief tl'lat the 7. _begitimations;
absentee spouse is dead (Republic v'. Ceitubag, G.R. · .• ~'{·; Adoptions;
No. 210580, April 18, 2018). ' {1),(]JA~~:wledgments of natural children;
10. Naturalization;
WELL-FOUNDED BELIEF 11. glection, loss or recovery of citizenship;
The "well~founded belief' in the absentee's ·death 12. £ivil interdiction;
requires the present spouse to prove that his/her 13. Judicial determination of filiation; and
belief was the result of diligent and reasonable 14. £hange of name (CIVIL CODE, Art. 408).
efforts to locate the absent spouse and that based
on these efforts and inquiries, he/she believes that NOTE: These are entries subject to cancellation or
under the circumstances, the absent spouse is correction upon good.and valid grounds (RULES OF
already dead. It necessitates exertion of active COURT, RULE 108, Sec. 2).
effort, not a passive one. As such, the mere absence
of the spouse for such periods prescribed under the DUTY OF THE CLERK OF COURT
law, lack of any news that such absentee spouse is To ascertain whether the decree has been
still alive, failure to communicate, or general registered, and if this has not been done, to send a
presumption of absence under the Civil Code would copy of said decree to the civil registry of the city or
not suffice (Republic v. Tampus, G.R. No. 214243, muni.cipality where the court is functioning (CIVIL
March 16, 2016J: CODE, Art. 409).

GENERAL RULE: Any marriage contracted by a

person during the subsistence of a previousmarriage
shall be null and void (FAMILY CODE, Arts. 41 and
35 (4)).
 PERSONS AND FAMILY RELATIONS
NATURE OF THE BOOKS OF THE
CIVIL REGISTER ANDRELATED
DOCUMENTS
1. Considered public documents; and
2. Prima facie evidence of the facts contained
therein (CIVIL CODE, Art. 410).
UNLAWFUL ALTERATION
GENERAL RULE: Every civil registrar shall be civilly
responsible for any unauthorized alteration made in
any civil register, to any person suffering damage
thereby (CIVIL CODE, Art 411 ).
EXCEPTION: If the civil registrar proves that he has
taken every reasonable precaution to prevent the
unlawful alteration, he may exempt himself from
liability (CIVIL CODE, Art. 411).
FURTHERANCE OF AUTHORITY OF
THE CIVIL REGISTRAR TO CORRECT
CLERICAL AND TYPOG.RAPHICAL
ERRORS UNDER R.A. NO ..10172
(An Act further Authorizing the City orMunicfpal Civil··
Reglstrar or the Consul General to C6dect° Clerical
or Typographical Errors in theDayandMonth in the
Date of Birth or Sex ofa Person Appear~ng in the
Civil Register without Need of a . Judicial Order,
Amending For This PurposeRepub/ic Act Numbered
Ninety Forty- Eight).
AUTHORITY TO CORRECT CLERICAL
OR TYPOGRAPHICAL ; ERROR AND
CHANGE OF FIRST NAME .· OR
NICKNAME
GENERAL RULE: No entry in a,civil register shall
be changed or corrected without a judicial order
(C/VILCODE, Art. 412).
EXCEPTION: Administrative proceeding for clerical
or typographical errors and change of name or
nickname, the day and month in the date of birth or
sex of a person where it is patently clear that there
was a clerical or typographical error or mistake in the
entry (R.A. No. 10172, Sec. 1).
Clerical or Typographical Error
Refers to a mistake committed in the performance
of clerical work in writing, copying, transcribing or,
typing an entry in the civil register that is harmless
and innocuous, such as misspelled, name or
misspelled place of birth, mistake in the entry of
day and month in the date of birth or sex of the.
person or the like, which is visible to the eyes or
· obvious to the understanding, and can be corrected
or changed only by reference to other existing record
or records (R.A. No. 10172, Sec. 2, par. 3).
Civil Law
EXCEPTIONS TO THE EXCEPTION: (ANS)
1. ~ge
2. !!ationality
3. .§.tatus (R.A. No. 10172 Implementing Rulesand
Regulations, Rule 2.1).
NOTE: Correction or change can be made by the
concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act
and its implementing rules and regulations.
CHANGE OF NAME IS A PRIVILEGE
The State has an interest in the names borne by
individuals and entities for purposes of
identification. A change of name is a privilege, not a
right. Petitioner must show proper or reasonable
cause or any compelling reason which may justify
such change (Silverio v. Republic, G.R. No. 174689,
October 22, 2007).
A change of name is a privilege and not a matter of
. right; •a proper and reasonable cause must exist
before a. persori may be authorized to change his
narrie. "In gr.antjng or denying petitions for change
of name, tt\e qu~stion of proper and reasonable
cause is left to .the· sound discretion of the court.
What is invoi\(ed is not a mere matter of allowance
or disallowance Of tf\e request, but a judicious
evaiuation of the sufficiency and propriety of the
justifications adyanced\ in support thereof, mindful
bf the consequeott~sults in the event of its grant and
with the sole prerogative for making such
dete~miha~ion being lodged in the courts (Gan v.
Republic, GR.No. 2bf147, September 14, 2016),
~ROUNDS FOR. CHANGES OF NAME:
{C 2 LEAR)
1. When the change will avoid Confusion;
2. Havihg ~ontinuously used -and been known
~jnce''childhood by a Filipino name, unaware of
her alien parentage;
3. When the change results as a 1.egal
consequence;
4. When the surname causes Embarrassment and
there is no showing that the- desired change of
name was for a fraudulent purposeor that the
change of name would prejudice public interest;
5. A sincere desire to adopt a Filipino name to
erase signs of former Alienage, all in good faith
and without prejudicing anybody; and
6. When the name is Ridiculous, dishonorable or
extremely difficult to write or pronounce
(Republic v. CA G.R. No. 97906, May 21, 1992).
FIRST NAME
It refers to a name or nickname given to a person .
which may consist of one or more names in addition
to the middle and last names (R.A. No. 9048, Sec.
2(6), as amended).
 EPff4M \ I
MEM:Q~Y AID
San Beda University College of Law - RGCT Sar Operabons Center
GROUNDS FOR CHANGE OF FIRST
NAME OR NICKNAME (R.A. NO. 9048):
(HAR)
1. New first name or nickname has been _t!abitually
and continuously used by the petitioner and he
has been publicly known by that first name or
nickname In the community;
2. The change will ~void confusion; or
3. First name or nickname is Ridiculous, tainted
with dishonor or extremely difficult to write or
pronounce (R.A. No. 9048, Sec. 4, as
amended).
NOTE: R.A. 9048 (as amended by R.A. 10172) does
NOT sanction a change of first name on the ground
of sex reassignment. To rule otherwise may create
grave complications in the civil registry and public
interest (Silverio v. Republic, G.R. No. 174689,
October 22, 2007).
WHO MAY FILE A PETITION FOR THE
CORRECTION OF A CLERICAL O.R ·
TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR
NICKNAME
Any person having direct and personal interest in the
correction of a clerical or typographical error in an
entry and/or change of first name or. nickname in the
civil register may file, in person, a verified petition
with the local civil registry office of the_ city or
municipality where the record being sought to be.
corrected or changed is kept (R.A. No. 9048, Sec.
3, par. 1, as amended).
NOTE: All petitions for the clerical or typographical
errors and/or change of first names or nicknames
may be availed of only once (R.A. No. 9048, Sec.
3, par. 5, as amended).
VENUE OF PETITION
1. Petitioner has already migrated to another
place in the Philippines
In case the petitioner has already migrated to
another place in the country and it would not be
practical for such party, in terms of
transportation expenses, time and effort to
appear in person before the local civil registrar
keeping the documents to. be corrected or
changed, the petition may be filed, in person,
with- the local civil registrar of the place where
the inte.rested party is presently residing or
domiciled. The two (2) local civil- registrars
concerned will then communicate to facilitate the
processing of the petition.
2. Petitioner is a citizen of the Philippines
presently residing in a foreign country
Citizens of the Philippines who are presently
residing or domiciled in foreign countries may
file their petition, in person, with the nearest
Philippine Consulates (R.A. No. 9048, Sec. 3,
pars. 2 and 3, as amended).
CHANGE OF MlDDLE NAME
Middle names serve to identify the maternal lineage
or filiation of a person, as well as further distinguish
him from others who may have the same given name
and surname as he has. Dropping the middlename
of a minor so that he will not be different fromhis
classmates in Singapore and on the additional
ground that it would cause confusion and difficulty
in its pronunciation in Singapore does not constitute
proper and reasonable cause to drop it from his
registered complete name. As he is of tender age,
he may not yet understand and appreciate the value
of the change of his name and granting of thesame
at this point may just prejudice him in his rights under
our laws (In Re: Petition for Change of Name and/or
Correction/C1:mce/Jation of Entry in Civil Registry of
Juii~n .Lin . '.,C,arulasan Wang v. Cebu City Civil
Registrar; 'G.R. No. 159966, March 30, 2005).
Please refe'r to Remedial Law Memory Aid for a
comprehensive . discussion of the procedural
aspects of change of name.
CANC~l.,)4\Jlf)~ .OR CORRECTION OF
ENTRIF1S IN;THE CIVIL REGISTRY
WHO MAY FILE: Any person interested in any act,
'event, 9rder or decree concerning the civil status of
pe(~ns •W);iich has been recorded in the civil
register, may file a verified petition for the
cancellation or correction of any entry relating
thereto, with the Court of First Instance (Regional
Trial Court) of the province where the corresponding
civil registry is located (RULES OF COURT, RULE
108, Sec 1). ·
The Civil Registrar and all persons who have or
claim any interest which would be affected thereby
shall be made parties to the proceeding (RULES OF
COURT, RULE 108, Sec. 3).
UPON THE FILING OF THE PETITION,
THE COURT SHALL: (FRO)
1. f.ix the time and place for the hearing of the
same;
2. Cause _Beasonable notice thereof to be given
to the persons named in the petition; and
3. Cause the Qrder to be published once a week
for 3 consecutive weeks in a newspaper of
general circulation in the province (RULES OF
COURT, RULE 108, Sec. 4).
 PERSONS AND FAMILY RELATIONS
Civil Law

OPPOSITION TO THE PETITION

Opposition may be filed by the civil registrar and any
person having or claiming any interest under the
entry whose cancellation or correction is sought
within 15 days from notice of the petition, or from the
last date of publication of such notice (RULES OF
COURT, RULE 108, Sec. 5).

ORDERS OF EXPEDITING
PROCEEDINGS
Orders expediting the proceedings and preliminary
injunction for the preservation of the rights of the
parties pending such proceedings may be granted
by the court (RULES OF COURT, RULE 108, Sec.
6).

DISMISSAL OF PETITION
After hearing, the court may either dismiss .the.
petition or issue an order granting the canc;ellafion or •
correction prayed for. In either case, a certifiedCcopy
of the judgment shall be served •upon the clvil
registrar concerned who shall annotate the same in
his record (RULES OF COURT/RUtf; 108, Sec:·?).
y _, ~
 1
ifM#N '
MEt4v-RY Al D
San Seda University College of Law • RGCT Bar Operati@s Center

I I
CLASSIFICATION OF THINGS:
PROPERTY 1. Res Nul/ius
- "belonging to no one"

REASON: They have not yet been appropriated.

PROPERTY AS A SUBJECT a. Res Oerelictae - abandoned by the owner
It is a branch of civil law which classifies and defines with the intention of no longer owning them;
the different kinds of appropriable objects, their b. Ferae Naturae - free in their m1turnl habitat
acquisition and loss, and in general, treats of the
nature and consequences of real rights (PARAS, Civil 2. Res Communes
Code of the Philippines Annotated Volume II, (2016), - "belonging to everyone"; their use and
p. 1 [hereinafter 2 PARAS]). enjoyment are given to all mankind.

PROPERTY NOTE: They are not capable of appropriation in

All things which are or may be the object of
appropriation (CIVIL CODE, Art. 414).
Under civil law, property comprehends every species
of title, inchoate or complete, legal or equitable
(China Banking Corporation v. CA, G.R. No. 129644,
March 7, 2000).
THING V. PROPERTY
their entirety as such although they may be
appropriated under certain conditions in a limited
way (Id. at 2).
3. Res Alicujus
- "belonging to someone"; objects, tangible or
intangible, which are owned privately, either in a
collective or individual capacity (2 PARAS, supra
at 2).

f f!~9lJISl1+§S/CLASSIFICATIONS OF
Any object which Anyttiing which is PR8PE8]1t: (USA)
exists and is capable already an object of 1. Utility
of satisfying human appropriation. or_ found :- capaqity tp satisfy some human want. This
needs, including those in the possession of utility, ,wh[Ch is generally economic, endows
already possessed, man. .It must be propei;ty with ,value susceptible of pecuniary
those sus€eptible of susce•ptible of estfmation;(DE'LEON, Property, supra at 2);
appropriation, and appropriation.
common thi_ngs which 2. .§ubstantivitY' or individuality
are physically or - quality of having existence apart from any other
legally impossible to , .. .thing. Thus, parts of the human body such as
possess. ~'_:,,'hair; blood, and teeth cannot exist by themselves
(DE LEON, Comments and Cases Propeity, oh indepe'ndent of the body; they become property
(2015), p. 1 [hereinafter DE LEON, Properly]). · only when separated from the body of the person
to whom they belong (Id.); and
NOTE: Strictly speaking, "thing" is not synonymous 3. ~ppropriability
with "property". However, the Civil Code uses these - susceptibility of being possessed by men {Id.).
terms interchangeably (Id.}.

DOHN ALFRED E. AQUIUZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad Hoc Director for Bar Matters! MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance! JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations IALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit I CORINA TANI.PUS, Vice Chairperson
for Secretariat I ARVY KEITH CHUNG, Vice Chairperson for Logistics I ANTONIO JlJN-JUN C. MANAUGOD IV, Vice Chairperson for
Membership I JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSI.EN ANGJNEB E. MENDOZA, Subject Chair I KING LAURENZ S. MASILUNGAN, Assistant Subject Chair I ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing I SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts! QUENNIE IRIS V.
BULATAO, Conflicts of Law ! JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations al/d Contracts !
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Relations I KRISTOFFER MONICO S. NG, Property I JUI,EF.N EVETTE
D. MALLARI, Land Titles and Deeds I MARISOL 0. SISON, Sales I GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARrn G. CARLON,
CHARISMA T. CBAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BAHE, MICHELLE L DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHlY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JOSEPH FERDINAND DECHAVEZ and Dean EDUARDO J.F. ABELLA


CLASSIFICATION OF
PROPERTY
(ART. 414)
KINDS OF PROPERTIES:
1. Immovable or Real {CIVIL CODE, Art. 415);
2. Movable or Personal (CIVIL CODE, Arts. 416 and
417); and
3. Mixed or Semi-movables
a. Movables that are rendered immovable by
reason of being immobilized by destination or
through attachment to an immovable;
b. Immovables but are treated as movables
because they can be transplanted (e.g.,
plants) or dismantled and moved to another
place (e.g., house of light materials) without
impairing their substance; and
c. Animals in animal houses, pigeon houses,
etc. (CIVIL CODE, Art. 414, Par. 6) whJcn are
classified as immovable thoµgh transferable.
from place to place or they Can move by
themselves (DE LEON, Piopetty, supra at9- ·
10. . 10. Whether intheC1.istody of the Court or Free:
OTHER CLASSIFICAT,ONS . OF
PROPERTIES:
1. Ownership:
a. Public dominion; and
b. Private dominion (Id: at6-7f.
2. Alienability: · movables' do~s not assume its importance from the
a. Within the commerce of man; and
b. Outside the commerce of man (fd.).
3. Existence: ·. .
a. Present or existing property (res exJstenfes);
and
b. Future property (res futurae) (Id.).
4. Materiality or Immateriality:
a. Tangible or Corporeal (objects which can be
seen or touched); and
b. Intangible or Incorporeal (Id.).
NOTE: Rights or credits, like the credit
represented by P1 ,000 Bangko Sentral (2
PARAS, supra at 3).
NOTE: Philippine peso bills when attempted to
be exported may be deemed to have been taken
out of domestic circulation as legal tender and
may therefore be treated as a commodity.
Hence, bills carried in excess of that allowed by
the Bangko Sentral may be forfeited pursuant to
CB Circular No. 37 in relation to Sec. 1363 (f) of
the Revised Administrative Code (Commissioner
of Customs v. Capistrano, G.R. No. L-11075,
June 30, 1960).
PROPERTY
Civil Law
5. Dependence or Importance:
a. Principal; and
b. Accessory (DE LEON, Property, supra at 6-
7).
6. Capability of Substitution:
a. · Fungible; and
b. Non-fungible (Id.).
7. Definiteness or Nature:
a. Generic or Indeterminate - referring to a
group or class; and
b. Specific or Determinate - referring to a
single, unique object {Id.).
NOTE: Under the Law on Sales, a thing is
determinate or specific when it is particularly
designated or physically segregated from all
others of the same class (CIVIL CODE, Art.
1460).
8. Divisibility:
a. Divisible; and
b. lndivisib,e (DE LEON, Property, supra at 6-
. 7). .· .
9. .Corisurniibility (Movables):
a. , Consumable~.and
b. Non-consumable (Id.).
a. In custodialegis -·those seized by an officer
u;nder a writ of attachment or execution; and
b. "Free" property (Jd.).
'
lmport~nceof Classification:
The classification of property into immovables and
fact of mobility or non°mobility, but from the fact that
different pr6visions,.6f the law govern the acquisition,
poss~$Sion; disposition, loss, and registration _of
immovables and movables (2 PARAS, supra at 5).
1. In Priv"'te International Law, the general rule is
· that immovables are governed by the law of the
country in which they are located, whereas
movables are governed by the personal law of
the owner (DE LEON, Property, supra at 8).
2. Under the law on Donation, in order for a
donation of an immovable property to be valid, it
must be made .in a public document (CIVIL
CODE, Art. 749). If the donated property is a
movable one, which value exceeds PS,000.00,
both the donation and the acceptance must be in
writing (CIVIL CODE, Art. 748).
3, In Criminal Law, usurpation of property can take
place only with respect to real property; while
robbery and theft can be committed only with
respect to personal property (DE LEON,
Property, supra at 8-9).
4. In Civil Procedure,. actions concerning real
property are brought in the RTC where the
property or any part thereof lies, whereas
 MM!IMi \ 1
MEM✓Q~Y AID
San Beda Univerelty Co!}e-ge of Law - RGCT Bar Operations Center
personal property are brought in the court where
the defendant or any of its defendants reside or
may be found, or where the plaintiff or any of the
plaintiffs reside (Id.).
5. In Contracts, only real property can be the
subject matter of real mortgage and antichresis,
while only personal property can be the subject
matter of simple loan or mutuum, and voluntary
deposit and Personal Property Security Act (Id.).
NOTE: The laws on pledges and r.h0ttel
mortgage are repealed by RA 11057
otherwise known as the Personal Property
Security Act (hereinafter PPSA). Based on
Section 68 and 26 of the PPSA, the
implementation of this act shall be
conditioned upon the establishment and
operation of the Registry.
6. Under the law on Prescription, ownership of real
property may be acquired by prescription,with
just title and in good faith for at least ten (10)
years or without need of title or of good faith for
at least thirty (30) years (CIVIL CODE, Art. 1137),
whereas in case of personal property, the period
is four (4) years, if in good faith and eight (8)
years without need of any condition (CIVIL.
CODE, Art. 1132).
7. In order to affect third persons, g.enerally, ·
transactions involving real property must be
recorded in the Registry of Property (CIVIL
CODE, Art. 2140; DE LEON, Property, supra at
8-9). In any tangible asset, a security interest
may be perfected by registration or possession.
A security interest in investment property and
deposit account may be perfected by.r~gistration
or control. On perfection, a security interest
becomes effective against third persons (R.A.
No. 11057, Secs. 11 and 12).
NOTE: The human body, whether alive; or dead, is
neither real nor personal property, for it ts not even
property at all, in that generally, it cannot be
appropriated although there is a right of possession
over it for burial purposes. Under certain conditions,
the body of a person or parts there'of may be the
subject matter of a transaction (2 PARAS, supra at
7).
NOTE:
1. R.A. 349: An Act to Legalize Permissions to
Use Human Organs or Any Portion or
Portions of the Human Body for Medical,
Surgical, or Scientific Purposes, Under
Certain Conditions (1949), as amended by
R.A.1056 . a. §pouse;
Under this law, a person may validly grant to a
licensed physician, surgeon, known scientist, or
any medical or scientific institution including eye
banks and other similar institutions, authority to
detach at any time after the grantor's death any
organ, part or parts of his body and to utilize the
same for medical. surgical, or scientific purposes.
Similar authority may also be granted for the
utilization for medical, surgical, or scientific
purposes, of any organ, part or parts of the body
which, for a legitimate reason, would be detached
from the body of the grantor (R.A.No.349, as
amended by R.A. 1056, Sec.1).
Requisites for the validity of the
authorization: (WSS)
a. It must be in Writing;
b. It must §.pecify:
1. The person or institution granted the
authorization;
2. The organ, part or parts to be
detached;
3. The use or uses of the organ, part or
parts to be employed; and
c. It must be §.igned by the grantor and two
disinterested witnesses (R.A. No. 349, Sec.
2).
Under R.A. No. 349, consent to organ retrieval
after the patient's death may be given, first and
foremost, by the patient's nearest relative or
guardiarfat the time of death. II is only in the
i:!Vent.thatthese relatives cannot be contacted
despite r~a:;;onable efforts that the head of the
hospital ordn,stitution having custody of the body
may give donsent for organ retrieval on behalf of
the patienl. Failing this, liability for damages
arises (Alano·· v. Magud-Logmao, G.R. No.
17f;f>,10,. ,(l;prJI l, 2°"14).
<:\'._.!--.: ;:.~.:~;·.~; . : ·:
2. R.A. No. 7170: Organ Donation Act of 1991
· ::t>onation by way of legacy:
Uriffer,this law, any individual, at least 18 years
of age and of sound mind, may give, by way of
legacy, to take effect after his death, all or part of
his body for medical or dental education,
research, advancement of medical or dental
science, therapy or transplantation, as the case
may be.
Persons who may execute a donation on
behalf of another: (S 3PG)
Any of the following persons, in the order stated
hereunder, in the absence of actual notice of
contrary intentions by the decedent or actual
notice of opposition by a member of his or her
immediate family, may donate all or any part of
the decedent's body:
b. §.on or daughter of legal age;
c. Either farent;
d. Brother or .§.ister of legal age; or
e. Quardian over the person of the decedent at
the time of his death (R.A. No. 7170, Sec.
4(a)).

NOTE: The persons authorized by subsection (a)
may make the donation after or immediately
before death (R.A. No. 7170, Sec. 4, Par. b).
Possible Donees:
a. Any hospital, physician or surgeon - for
medical or dental education, research,
advancement of medical or dental science,
therapy, or transplantation;
b. Any accredited medical or dental school,
college or university - for education,
research, advancement of medical or dental
science, or therapy;
c. Any organ bank storage facility - for medical
or dental education, research, therapy, or
transplantation; and
d. Any specified individual - for therapy or
transplantation needed by him (R.A. No.
7170, Sec. 6).
3. R.A. 7719: National Blood Servjces Act of
1994 ,, . . '.
This act promotes voluntary blood {lo11ation to
ensure adequate supply of human blqod. ·.
NOTE: R.A. 7719 or the National Blood Services
Act of 1994 is intended primarily fo safeguard the
health of the people and has rrandated several
measures to attain this objective. One of these is
the phase out of commerci;;il:tilood banks in the
country. The law has: sufficiently provided a
definite standard for the .guidance ·of the.
Secretary of Health in carrying o~t its.provisions,
that is, the promotion of public health by providing
a safe and adequate supply of bJood through
voluntary blood donation. By.its provisions; if has ..·
conferred the power and ,authority· tp the
Secretary of Health as to its execution, to be
exercised under and in pursuance of the· law
(Beltran v. Secretary of Health, GR. No. 133640,
November 25, 2005).
IMMOVABLE
PROPERTIES
(ART. 415)
CATEGORIES: (NIDA)
1. Real by ,Mature
- it cannot be carried from place to place (CIVIL
CODE, Art. 415(1-2 and 8));
PROPERTY
Civil Law
2. Real by !ncorporation
- attached to an immovable in a fixed manner to
be an integral part thereof (CIVIL CODE, Art.
415(1-4 and 6));
3. Real by Qestination
- placed in an immovable for the utility it gives to
the activity carried thereon (CIVIL CODE, Art.
415(4-7 and 9)); and
4. Real by Analogy
- it is so classified by express provision of law (2
PARAS, supra, at 12; CIVIL CODE, Art. 415(10)).
TYPES OF IMMOVAijLE PROPERTIES
(CIVIL CODE, Art. 415) (LaTAS-FAMine-
MacDoCo)
1. Land, buildings, roads and constructions
of all kinds adhered to the soil
a.. Land is the best example of immovable
. pfoperfy; However, a shovelful of land is a
• personal• property since this no longer
adheres to the soil but when it is used to
covt:ir a·land, it becomes immovable again (2
PARA9, ·suprii at 13).
b. (:Juildin~s are ir;nmovables by incorporation.
Their aqherence to the land must be
permanehtarid Jubstantial. They are more or
a
l~ss bf perma'.nent structure, substantially
_/ adhering 'tE{' the land, and not mere
. superirppositions on the land like barong-
barongs or quonset fixtures, provided there
is intent of permanent annexation (Id.).
'
"Construttions of All Kinds" - the
· ·. attachinent must be more or less permanent;
'intent to attach permanently is important (2
"'PARAS, supra at 18). ·
It should be attached to the land in such a
way it cannot be separated therefrom without
breaking the material or deterioration of the
object (Mera/co Securities Industrial Corp v.
CBAA, G.R. No. L-46245, May 31, 1982).
Where a building is sold to be demolished
immediately, it is to be regarded as movable
because the subject matter of the contract is
really the materials thereof (DE LEON,
Property, supra, at 55).
Principle of Accession - the building is
immovable property whether it is erected by
the owner, usufructuary, or lessee of.the land
(Evangelista v. Alto Surety & Ins. Co., Inc.,
G.R. No. L-11139, April 23, 1958).
++MW \/
MEM,Q-RY AID
San 8eda Vnivers~y Co»age of law - RGCT Bar Operations canter
The building and the land on which it is
erected are separate immovable properties
(Lopaz v. Orosa, G.R. No. L-10817-18,
F&b1u8ly 28, 1058).
While it is true that generally, real estate
connotes the land and the building
constructed thereon, it is obvious that the
inclusion of the buildiny, ~eµc1rc1te and
distinct from the land, in the enumeration of
what may constitute real properties could
mean only one thing - that a building is by
itself an immovable property (Lopez v.
Orosa, Jr., G.R. Nos. L-10817-18, February
28, 1958).
A building is an immovable property
irrespective of whether or not said structure
and the land on which it is adhered to belong
to the same owner. It cannot be divested of
its character of a realty by the fact that the
land on which it is constructed belongs to
another (Associated Insurance & Surety Co:
Inc. v. /ya, G.R. No. L-10837-38, May 30,
1958).
GENERAL RULE: The execution of a chattel
mortgage on a building is m,iU ·aiid void,
notwithstanding registration iri'Jhe Chattel
Mortgage Registry (Associated/Hsurance ·&
Surety Co. Inc. v. /ya, G.R. No. L-W837-38.
May 30, 1958).
EXCEPTION: A property may :have a
character different from that imputed, to it by
the law, i.e., the parties to a contract may, by
agreement, treat as personal property that
which, by nature, would be real property. The
view that parties to a deed. of chattel
mortgage may agree to conside,r; it '.as a
personal property is good only insofar iis the
contracting parties are concerned. The same
is based on the principle of estoppel
(Evangelista v. Alto Surety Co. as cited in
Navarro v Pineda and Reyes, G.R. No. L-
18456, November 30, 1963). Hence, a house
may be the object of a chattel mortgage
contract, provided that:
i. The parties to the contract so agree; and
ii. No innocent third party will be prejudiced.
NOTE: The laws on pledges and chattel
mortgage are repealed by RA 11057
otherwise known as the Personal Property
Security Act (horoinafter PPSA). Based on
Section 68 and 26 of the PPSA, the
implementation of this act shall be
conditioned upon the establishment and
operation of the Registry.
On March 25, 2021, the LRA announced the
soft launching of lhe Pl1ilippines Personal
Property SP.r.llrily Regislry (PPSR). For
clarity, lt1e uperntion;;ilization of the PPSR
with respect to User Account crec1lior1 sl 1all
not mean that the Registry has been fully
established and operational, as
contemplated in Sec. 55 item d of the PPSA,
nor does this mcm1 thut ll 1e PPSR is now fully
implemented as provided in Section 8.3 item
a (ii) and 10.03 of the PPSA IRR, (LRA
Circular 11-2021 Sec 5.2).
c. Roads, whether public or private, are
immovable. They are considered integral
parts of the land.
d. Constructions. Examples of constructions
are railroads. A wall or fence is to be
regarded as a construction by incorporation
as long as there is· intent to attach it
permanently although it is merely made to
rest on the land (DE LEON, Property, supra
:;i; at 13).
· i';:~t'[f,~~s. pJ~mts, and growing fruits
U' ·.· ·· · tfiey;~rt:ii\tnmovable property on the theory that
· they deri/~_their existence or sustenance from
al
the soil f1d. 19). .
a. :frees:,
Hbwever, ';when trees are detached or
::.; . · '"°~orporation ceases and they
betQ ·• · · ables, except in the case of
uprooted timber if the land is a timberland.
This is because it is still an integral part of an
immovable property when it constitutes the
product of the latter (2 PARAS, supra
at 18).
b. Growing Crops
Inasmuch as the law makes no distinction,
growing crops whether on one's land or on
another's, as in the case of usufructuc1ry, a
possessor or a tenant, should be considered
as real property (Id. at 19-20).
On the other hand, once they have been
severed they become personal property.
Sale of growing crops is sale of personal
property (3 MANRESA 22 as cited in
PARAS, supra at 19) because when the
crops are sold it is understood that they are
to be gathered (2 PARAS, supra at 19-20).
3. Everything ~ttached to an immovable in a
fixed manner
The attachment need not be made by the owner.
The same must be such that it cannot be
separated from the immovable without breaking
 : ~" - ' > ' ,' 1: ',\' i.

. 1~8. ', · . . >': . .· PROPERTY

~ ~
~ ".\
,,, - ''
" J
' , •
'
'w
< I
'
Civil Law
, ~ : '/,

the material or deterioration of the object. The d. There is an !ntention of permanent

breakage or injury, in case of separation, must be annexation or attachment, even if adherence
substantial (Id. at 20). will not involve breakage or injury - this is the
main consideration (DE LEON, Property,
Article 415 paragraphs 1 and 3 provide that real supra at 21-22).
property may consist of constructions of all kinds
adhered to the soil and everything attached to an DISTINCTIONS BETWEEN PAR. 3 AND 4
immovable in a fixed manner, in such a way that
OF ART. 415
it cannot be separated therefrom without .,,,.,,~~"'¼tv· _,.-~~$1!?-~~~,,:~r·,'---.., -,~-;:~~ "{•';--'-""'f. ..-..~::,.:!;::.-{';l~~,, H~,Vl<--' '""-;;;'>j. ~"-"f-s~-·

breaking the material or deterioration of the ---. l~

;,;;;~
''PAR'AC§~·"·.. , ..
K ,,~ , ~:1/~~~~~ < ,,~. -~~G~!lff""'·•·~
, ~ -½',~i.
-%'-~1'R1£%i\:i'..J ,M-:.~~..._:- ~., f~:;R.,,,{iit~-~1•'1f.:'/~t~=#{l*J,,~,""4; 0¾}f/.. ·1-\""?-t~i::r:
object. The pipeline system in question is
indubitably a construction adhering to the soil. It Cannot be separated Can be separated from
is attached to the land in such a way that it cannot from immovable without immovable without
be separated therefrom without dismantling the breaking or breaking or
steel pipes which were welded to form the deterioration deterioration.
pipeline (Mera/co v. CBAA, G.R. No. L-46245,
Need _not be placed by Must be placed by the
May 31, 1982).
the owner. owner or his agent.
Where the property like a water pump and its Real property by Real property by
accessories can be separated from th~. jncorporation. incorporation and
immovable without being broken or . suffefing. destination.
deterioration as when such removal involved·. ·.

nothing more complicated than the,, loo~eniilg of (2 PARAS, supra at 20).

bolts or dismantling of fasteners'> the· said ··v,_,
property is not immovable under Art. f!-15(3) (Yap 5. Machinery, receptacles, instruments, or
V. Tanada, G.R. No. L-32917, JuJy)B, 1988). implements for an industry or works

Both electric lines and cpmmunitation:cables, in Machinery .is. a cqll13ctive term for machines and
the strictest sense, are notdirec;tly adhered to the appti9 nces used in tpe industrial arts (DE LEON,
soil but pass through posts, felays, or landing Prop~rty, supra at 23).
stations, but both may. be classified imder the
term "machinery" as r~ar property um;ler Article Equipment covers:physical facilities available for
415(5) of the Civil Code for tl;ieJimplereas6n that production, including buildings, machineries, and
such pieces of equipmenf serve the, ciwner's tools (Id.).
business or tend to meet tre needs of his industry
or works that are on real es.tate (Capitol Wireless lfl)plemerits pe~in to whatever may supply to
v. The Provincial Treasurer of Bataogas, G:R. what is lacking especially an instrument, tool, or
No. 180110, May 30, 2016).· ut1::nsl1 (Ip.).

Intent Material . Requisites: (OBM)

The fact that the machineries were bo]ti,d or a,. lt must be placed by the Qwner of the
cemented on real property mortgaged does not tenement or his agent (Davao Sawmill Co. v.
make them ipso facto immovable under Article Castillo, G.R. No. 40411, August 7, 1935);
415'(3) and (5) as the parties' intent has to be b. The industry or works must be carried on in
looked into. Even if the properties appear to be a !;!uilding or on a piece of land (CIVIL
immovable by nature, nothing prohibits the CODE, Art. 415(5)); and
parties from treating them as chattels to secure c. They tend directly to ,Meet the needs of the
an obligation under the principle of estoppel (Tsai said industry or works (CIVIL CODE, Art.
v. CA, G.R. No. 120098, October 2, 2001). 415(5)). .

4. §tatues, reliefs, paintings, or other Test of Essentiality

objects for use or ornamentation The machineries must be an essential and
principal element of the industry or works, without
Requisites: (OPOI) which such industry or works would be unable to
a. It is an Qbject of ornamentation or object of function or carry on the industrial purpose for
use; which it was established, and not merely
b. The property is E,taced on a building or land; incidental (Mindanao Bus Co. v. City Assessor
c. It must be placed by the Qwner of the and Treasurer, G.R. No. L-17870, September 29,
immovable or by his agent, (buildings or 1962).
lands); and
ME·~o~v AID
Sari Beda University College of Law RGCT Ba,- Operations Center
The equipment and living quarters of the crew,
being permanently attached to the platform,
which is also an immovable, are immovables.
This is especially so if they are intended to meet
the needs of the business and industry of the
corporation (FELS Energy, Inc. v. Province of
Batangas, G.R. No. 168557, Feb 16, 2007).
A machinery, although movable in nature,
becomes immobilized when placed on a plant by
the owner of the property but not so when placed
by a tenant, usufructuary, or a person having only
a temporary right, unless:
a. Such person acted as an agent of the owner
of the land; or
b. In the case of a tenant and he had promised
to leave the machinery on the tenement at
the end of the lease (Davao Sawmill Co. v.
Castillo, G.R. No. 40411, August 7, 1935).
The special civil acti_on of replevin is applicable
only to personal property. It cannot be filed when
the subject machinery and equipment had
become an immovable property (Machinery .&
Engineering Supplies, Inc. v. CA, G.R. No. L~
7057, October 29, 1954).
Poles and steel supports or towers of.an ~lectric
company are not real property for purpose of real·
property tax, since they are merely attached to a
square metal frame by means of bolts, which
could easily be dismantled and moved from place
to place (Board of Assessm(;tri(Appeals v. Manila
Electric Company, G.R. No. L-15334, January
31, 1964).
Conflicting Views on the Effect .. of the
Temporary Separation of Movables f.rom
Immovables to which they are attached:
a. They continue to be regarded as imrn.ovables
as long as they are utilized or still needed in
the industry (View supported by De Leon).
b. Fact of separation determines the condition
of the object (View supported by Paras and
Tolentino).
c. Things temporarily separated from the
immovable shall continue to be regarded as
immovables if there is intent to put them back
(Partidas).
d. The material fact of incorporation or
separation is what determines the condition
of these objects; so that as soon as they are
separated from the tenement. they recover
their condition as movables irrespective of
the intention of the owner (2 NAVARRO
AMANDI, supra at 14-15).
e. If the machine is still in the building, but is no
longer used in the industry, the machine
reverts to the condition of a chattel. On the
other hand, if still needed for the industry, but
separated from the tenement temporarily. the
property continues to be an immovable (2
PARAS, supra at 23).
6. Animal houses, pigeon houses,
beehives, fishponds or breeding places
of similar nature
Requisites: (PIO}
a. Forms a Permanent part of the immovable;
b. Placed o;:-preserves them with the !ntention
of permanent atta.chment; and
c. Placed by the Qwner (CIVIL CODE, Art.
415(6)).
The animals in these places are included as real
property (DE LEON, Property, supra at 29).
In case of alienation, if the building or tenement
in which the animals are placed is also alienated,
they are to be regarded as immovable. However,
when the animals inside the permanent animal
houses are alienated onerously or gratuitously, it
is believed that the transaction is an alienation of
personal property (2 PARAS, supra at 27).
·,,· ft·~,g,;.0'- {,
Hc5W~vet: ~nimals are to be regarded as personal
property for purposes of criminal law (OE LEON,
Properly; suf)ra at 29).
Animals which. are temporarily outside may still
be cohsidered real property, as long as the intent
to retum?ts:j~re~~nt, as in the case of homing
0
pigeoris (2PARAS, supra at 27).
7, .. .Fertilizer
/:This.is an immovable by destination (DE LEON,
··Prop~rty, supra at 29-3@J.
The term "actually used" means that it has been
spread over the land (2 PARAS, supra at 28).
Fertilizers kept in a barn or still in their containers
should be regarded as movables (Id.).
8. Mines, quarries and slag dumps
They are considered as realty only if the matter
remains unsevered from the soil. Once severed,
they become personalty (DE LEON, Property,
supra at 30).
Mines - mineral lands where excavations are
done to extract minerals (include minerals when
still attached thereto) (Id.).
Quarries - lands where stones are chipped off
or where sand is being extracted; once extracted
they become movables (Id.).
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Slag dumps - dirt and soil taken from a mine and
piled upon the surface of the ground (Id.).
Waters - those still attached to or running
through the soil or ground (Id),
Waters which are immovable, such as sea, river,
or lake must not be confused with "water" itself
which is plainly movable property (Id), .
9. Docks and Structures
Since "waters either running or stagnant" are
considered immovables, it is logical that
constructions united to them in a fixed and
permanent manner are also immovable (Id),
Vessels are considered personal property under
civil law as well as under common law, although
occasionally referred to as a peculiar kind of
personal property (Phil. Refining Co., Inc, .. v.
Jarque, GR No. 41506, March 25, 19~5}:
Although vessels are personal property, th~y
partake to a certain extent of the natt,tre· and
conditions of real property because ottheir value
and importance in the world of commerce
(Rubiso v. Rivera, GR No. 1'52~0, August 18,
1920).
Power barges are categorized as immovable
property by destination, beirig the nature of
machinery and other implements intended by
the owner for an industry or;w9fk which may be
carried on in a building or on a pif:)ce of land,and
which tend directly to meet the needs of saig
industry or work (Fels Energy, Inc v., ProviQC'e of
Batangas, G.R. No. 168557; februaryJ6,2007).
10. Contracts for
servitudes and other real rights
Properties referred to in Art. 415(10)are not
material things but rights, which are necessarriy
intangible (3 MANRESA 11 as cited in 2PARAS,
supra at 30).
Where the res of a real right is real property, the
right itself is real property; but where it is personal
property, the right itself is personal property.
Hence, ownership is real property if the thing
owned is immovable and personal property if
movable (DE LEON, Property, supra at 32).
Hence, a real right over a real property is also a
real property and a real right over a personal
property is also a personal property.
A personal right is always regarde~ as personal
property. The exception is in the case of a
contract for public works which is considered real
property (Id.}.
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PROPERTY
. Civil Law
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Pursuant to Section 1 of Ad No. 4166, suga,
quotas, although not physically united to the land,
are considered immovable because they are
inseparable therefrom and are real rights over
immovable property (PINEDA, Law on Property,
(2009), p. 18 [hereinafter PINEDA, Law on
Property]).
As between the Civil Code, a general law
governing property and property relations, and
the Local Government Code, a special law
granting local government units (LGUs) the
power to impose real property tax, the latter
prevails for the purpose of determining which
property is subject to real property tax. In Manila
Electric Company vs City Assessor, it was ruled
that the transformers, electric posts, transmission
lines, insulators, and electric meters of
MERALCO may qualify as "machinery" under the
Local Government Code subject to real property
·· tax.
:, '
MOVABLE PROPERTIES
(ARTS. 416-418)
, ·.,
TESTS~
1. By aescripJion ,
a. , , Wnether' the prdperty can be transported or
carried from place to place; and
b: WhethE:Jr such change of location can be
made without injuring the immovable to
which the object may be attached (CIVIL
CODE, Art. 416).
Public works; , and
2 .•. By exclusion
= Wti'ether the object does not fall within any of
the 10 cases enumerated in Art. 415 (2 PARAS,
supra at 34).
KINDS OF MOVABLE PROPERTIES:
(AP-F-TOS)
1. Those movables susceptible of Appropriation
which are not included in Art. 415 (CIVIL CODE,
Art. 416(1)).
2. Real property which by any special provision of
law is considered as fersonalty (CIVIL CODE,
Art. 416(2)).
3. forces of nature Which are brought under control
by science (CIVIL CODE, Art. 416(3)).
Examples: electricity, gas, rays, heat, light,
oxygen, atomic energy, water power, etc.
 &WMP \ /
MEM:Q~Y AID
San Beda UniverSity College of law - RGCT Bar Operations Center
It is true that electricity is no longer, as fur rnerly
regarded by electricians as fluid, but its
manifestations and effects like those of gas, may
be seen and felt. The true test of what is a proper
subject of theft is not whether the subject is
corporeal or incorporeal but whether it is capable
of appropriation by another than the owner (U.S.
v. Carlos, G.R. No. 6295, September 1, 1911).
4. In general, all things which can be Iransported
from place to place without impairment of the real
property to which they are fixed (CIVIL CODE,
Art. 416(4)).
5. Qbligations and actions which .have for their
object movables or demandable sums ( CIVIL
CODE, Art. 417(1)).
An action to recover a personal property like a car
is personal property by itself. But the right to
recover possession of a piece of land is real
property.
Demandable Sums - amounts which
liquidated and determined.
6. §.hares of stocks of agricultural, commercial, and
industrial entities, although they ma,y have real
estate (CIVIL CODE, Art. 417(2)). . LEON, Property, supra at 38); or
The term "entities" includes all juridical persons
such as partnerships, although they do not issue
shares of stocks (DE LEON; Property, supra at
36).
Stock
Participation or interest in a business is a
personal property but interest in the real property
of a business entity is a real property (Id.).
CLASSIFICATION OF MOVABLES:
1. By Nature:
a. Consumable - cannot be used according to
its nature without it being consumed (CIVIL
CODE, Art. 418); and
b. Non-consumable - any other kind of
movable property (CIVIL CODE, Art. 418).
NOTE: The classification applies
movables or to corporeal objects only.
2. By Intention:
a. Fungible - replaceable by an equal quality
and quantity, either by nature of things or
agreement; if it is agreed that the equivalent
thing be returned, it is fungible (2 PARAS,
supra at 39); and
b. Non-fungible - irreplaceable because
identical objects must be returned; if it is
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agreed that the identical thing be returned, it
is non-fungible (Id.).
Illustration: Rice is, by nature, consumable
but if the parties intended it for display, it is
non-fungible because the identical rice need
to be returned. If it is loaned for consumption,
it is both consumable and fungible (DE
LEON, Property, supra at 37).
NOTE: The Civil Code, in many instances,
uses the terms consumable and fungible
interchangeably (2 PARAS, supra at 39).
PROPERTY IN RELATION
TO WHOM IT BELONGS
(ARTS. 419-425)
PROPERTY IS EITHER OF:
are
1~.. Public .9,qminion
· ·...; ownecl\by the state in its public or sovereign
capacity a(ld intended for public use and not for
the use of the state as a juridical person (DE
2. Private ownership
a. . PtPP@~y.pwoed by the State and its political
sci~i\liSi6ilf fn their private capacity and is
kriowri aK patrimonial property (CIVIL CODE,
Arts. 421-424); or
Property belonging to private persons, either
;.inclividually or collectively (CIVIL CODE, Art.
425).
Property is presumed to be owned by the State in the
absence of any showing to the contrary (Salas v.
Jarencio, G.R. No. L- 29788, August 30, 1972). All
lands not appearing to be clearly private dominion is
presumed to belong to the State (Republic v. T.A.N.
Properties, Inc., G. R. No. 154953, June 26, 2008).
Accordingly, public lands not shown to have been
classified, reclassified, or released as alienable
agricultural land or alienated to a private person by
to
the State remain part of the inalienable lands of public
domain. Therefore, the onus to overturn, by
incontrovertible evidence, the presumption that the
land subject of an application for registration is
alienable and disposable rests with the applicant
(Republic v. Spouses Alejandre, GR. No. 217336,
October 17, 2018).
f:. _ < ~. ,' -. 1 ' ~ ' • "-i:. ) ,, f
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Civil Law

This principle is rooted in the Regalian doctrine under Absent any expropriation proceeding and without any
which the state is the source of any asserted right of evidence that the petitioner donated or sold the
ownership of land (CONST., Arl. XII, Sec. 2). subject property to the municipal government, the
same is still private property. A municipal ordinance
PROPERTY OF PUBLIC DOMINION does not convert the same to public property
CONCEPT: It does not import the idea of ownership. (Gatchalian v. Flores, G.R. No. 225176, January 19,
It is not owned by the State but simply under its 2018).
jurisdiction and administration for the collective
enjoyment of the people. The ownership of such KINDS:
properties is in the social group, whether national, 1. For Public Use
provincial or municipal (DE LEON, Property, supra at - may pe used by anybody and not limited to
39). privileged individuals. It includes roads, canals,
rivers, torrents, ports, and bridges constructed by
PURPOSE: to serve the citizens for the common and the State, banks, shores, roadsteads, and others
public welfare and not .the State as a juridical person of similar cha~acter
(Id. at 80). (DE LEON, Property, supra at 40-41).

CHARACTERISTICS: (OI-PEAR) Canals - artificial waterways designed for

1. Qutside the commerce of man except insofar as navigation or for irrigating or draining land (Id. at
they may be the object of repair or improvement 41).
or other similar things; .
2. !nalienable, however, when it is no longer needed Shores ·-'--- portion of the land bordering the sea
for public use or service, it may be de_clared as and which is subject to the ebb and flow of the
patrimonial property; waters (Id).
3. It cannot be acquired by ,Erescription;
4. It cannot be burdened with ~aseruents; · Roadstead'-:- a place less sheltered or enclosed
5. It is not subject to ~ttachment or Execution; and a
than harbor (Ip.).
6. -It cannot be Registered under the Property
Registration Decree or P.O. No, 1529, and be the Torrent - amount ';of water which in case of
subject of a Torrens Title (Id. at 43-44). - heavy rain gather13' in deep places or canals
where it is supposed, to flow afterwards (Id.).
If erroneously included in a Tor,rens Title, the land
involved remains property of public; dominioh. The NO,TE: The, tehi'{i'dorts" includes seaports and
character of public property is not affected by . airports. Ttie MIM'Airport Lands and Buildings
possession or even a Torrens Title in favor of private constitute a "port" constructed by the State.
persons (Palanca v. Commonwealth, . G.R. No. Under Ah. 420, the same are properties of public
46373, Jan. 29, 1940). .dominion and thus owned by the State (MIAA v.
CA, G.R. Ne!_. 155650, July 20, 2006).
As a property of public dominion, the Rqppongi lot is
outside the commerce of man. The fact thatithas not Examptliis of "and others of similar
been used for a long time does not automatically character":
convert it to a patrimonial property. The conversion a. Public streams, natural beds of rivers, river
happens only if the.abandonment is definite and upon channels and water of rivers, creeks, and
a formal declaration on the part of the government to "esteros";
withdraw it from public use (Laurel v. Garcia, G.R. No. b. Accretions to the shores of the sea by action
92013, July 25, 1990). · of the water;
c. Submerged lands and reclaimed lands;
WHO MAY DECLARE WITHDRAWAL
NOTE: The mere reclamation of certain
FROM PUBLIC USE foreshore land and submerged areas by a
Only the Executive and possibly the Legislative government agency like the Public Estate
Departments have the authority and the power to Authority does not convert these inalienable
make the declaration that the lands so gained by natural resources of the State into alienable
action of the sea is not necessary for purposes of or disposable lands of the public domain. In
public utility or for the cause of establishment of the hands of the government agency tasked
special industries or for coast guard services and authorized to dispose of alienable and
(Natividad v. Director of Lands as cited in Monteverde disposable lands of public domain, these
v. Director of Land, G.R. No. L- 4628, May 25, 1953). lands are still public, not private lands. There
must be a law or presidential proclamation
officially classifying the~e reclaimed lands as
 1 ':,)
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MEM✓v:r{Y Al D
San Beoa University College of Law - RGCT Bar Operations Center
alienable or disposable and open to
d1spos1t1on or concession ( Chavez v. Public
Estates Authority, GR No. 133250, May 6,
2003; Chavez v. National Housing Authority,
GR. No. 164527, August 15, 2007).
d. Lands that disappeared into the sea by
natural erosion due to the ebb and flow of the
tide; and
e. Foreshore lands; when the sea moved
toward an estate and the tide invaded it, the
invaded property becomes foreshore land
c111u µc1sses lo lhe rec1lr11 of lhe µuulic.; uomc1i11,
and accordingly cannot be a subject of a free
patent (Republic v. CA, G.R. No. 100709,
November 14, 1997).
Foreshore Land - a strip of land that lies
between the high and low water marks and
that is alternatively wet and dry according to
the flow of the tide (DE LEON, Property,
supra at 42).
De Facto Case of Eminent Domain or
Natural Expropriation
It is the expropriation resulting from the
actions of nature as in a case where land
becomes part of the sea. The owner loses
his property in favor of the State without any
compensation (Republic v. CA, Morato, G.R.
No. 100709, November 14, 1997).
If a river is capable, in its natural state, of
being used for commerce, it is navigable in
fact and, therefore, becomes a public river
(Ta/eon v. Secretary of Public Works, G.R.
No. L-24281, May 16, 1967)c
2. For Public Service
- may be used only by authorized persons.
All public buildings constructed by the State for
its offices and functionaries belong to this class
(Baguio Citizen's Action v. City Council, G.R. No.
L-27247, April 20, 1983).
3. For the Development of National Wealth
GENERAL RULE: All natural resources belong
to the State and are not subject to alienation
(CONST., Art. XII, Sec. 2).
EXCEPTION: Public agricultural land
NOT[: Defore public agricultural land is made
;:ivr1ilr1hlA for disrosition thP.y ArA rrorP.rty of
µul.Jli<.; uur11c:1i11 fur the tlevelupme11l uf national
wealth.
The charging of fees to the public does not
determine the character of the property, whether
it is of public dominion or not. Art. 420 defines
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property of public dominion as one "intended for
public use". l::ven 1t the government collects toll
fees, the road is still "intended for public use" if
anyone can use it under the same terms c111d
conditions as the rest of the public (MIAA v. CA,
G.1-.?. No. 1ooli!:JU, July W, WUC).
DISTINCTION BETWEEN GOVERNMENT
LANDS AND PUBLIC LANDS
The term "government lands" is broader in scope. It
includP.s lands dP.voted to rublic use or servir,P., ilS
well as public lands before and after they are made
available for private appropriation and also
patrimonial lands. While "public land" is used to
describe much of the national domain under the
legislative power of Congress as has not been
subjected to private right or devoted to public use (DE
LEON, Property, supra at 45).
CONVERSION TO PATRIMONIAL
PROPERTY
There must be:
1. Abandonment or non-use
•2. Affirmative act either on the part of the executive
,.pf>)h~ l~plative, to reclassify property of the
'public domlnion into patrimonial property.
NOTE: I( however, public land will be classified
as neither agricultural, forest or timber, mineral or
national park, or when public land is no longer
intended for public seNice or for the development
of .;the. nation~! wealth, thereby effectively
rem6~1ng'.iH~ land from the ambit of public
dominion, a declaration of such conversion must
be made in the form of a law duly enacted by
i?~ongress or by a Presidential proclamation in
'caseswhere the President is duly authorized by
law to that effect (Heirs of Malabanan vs
Republic, G.R. 179987, September 3, 2013).
Thus, until the Executive Department exercises
its prerogative to classify or reclassify lands, or
until Congress or the President declares that the
State no longer intends the land to be used for
public service or for the development of national
wealth, the Regalian Doctrine is applicable (Heirs
of Malabanan vs Republic, G.R. 179987,
September 3, 2013).
PROPERTY OF PRIVATE OWNERSHIP
Kinds:
1. Property owned by the State and its political
subdivisions in their private capacity and is
known as patrimonial property (CIVIL CODE,
Arts. 421-424); and
2. Property belonging to private persons, either
individually or collectively (CIVIL CODE, Art.
425).
 • • ' ,, 0 ' · ; , ~ ; • ' ' ' '
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PATRIMONIAL PROPERTY
STATE
1. Property of the State 9wned in a private or
proprietary capacity; and
2. Property of public dominion, when no longer
intended for public use or for public service, shall
form part of the patrimonial property (CIVIL
CODE, Art. 422).
NOTE: Article 422 is not self-executing and
cannot be inferred from non-use alone. There
must be a formal declaration by the executive or
possibly the legislative department that the
property of the State is no longer needed for
public use or for public service before the same
can be classified as patrimonial or private
_ property of the State (Manila Lodge No. 761 v.
CA, GR. No. L-41001, September30, 1976).
In Heirs of Mario· Malabanan vs Republic, the.
Court held that patrimonial property pf the State
may be acquired by prescription; 'citing. Article
1113 of the Civil Code. · '
If the mode of acquisition is. pr,es2liption, whether
ordinary or extraordinary, proof th~t thQ land has
been already converted to ptivate ownership
prior to the requisite , acquisitive prescriptive
period is a condition sii:~ qU'a nbn in observance
of the law {CIVIL CODE, Ad '1:1113) tha"t property
of the State not patrimonial ,in qharactet,shall not
be the object of prescription.
CHARACTERISTICS:
1. Patrimonial properties may be , ,acquired by
private individuals or corporati611s through
,Erescription ( CIVIL CODE, A}t.., 1113); . .
2. May be Qisposed by the State; . . . . ·• •
3. It exists for the State to ~upport the attainment of
economic needs; and
4. It can be the object of ordinary fontract (DE
LEON, Property, supra at 46).
PROPERTY OF
SUBDIVISIONS
1. Property for Public Use
- consists of roads, streets, squares, fountains,
public waters, promenades, and public works for
public service paid for by the LGUs; they cannot
be alienated and acquired by prescription (Id. at
50).
NOTE: The enumeration in Art. 424 is not
exclusive.
Characteristics:
a. Outside the commerce of man;
b. Cannot be acquired by prescription;
c. Not subject to attachment and execution; and
'
PROPERTY
Civil Law
OF THE d. Cannot be burdened by any voluntary
easement (RABUYA, Property, (2008), p. 88-
89 [hereinafter RABUYA, Property]).
2. Patrimonial Property
- all other properties possessed by LGUs
including property for public service without
prejudice to provisions of special laws; they may
be alienated and acquired by others through
prescription. (2 PARAS, supra at 75).
NOTE: When a property is owned by a political
subdivision in its public and governmental
capacity, the Congress has absolute control. But
if the property is owned in its private or
proprietary capacity, it is patrimonial and
Congress has no absolute control. The
municipality cannot be deprived of it without due
process and payment of just compensation
(Rabuco v. Villegas, G.R. No. L-24661, February
28,, 1974).
Aft. 423 and424 speak of property for public use,
indicating that property for public service is
· patrimonial. However, the Supreme Court, in
Province of Zamboanga Del Norte v. City of
Zamboang.a categoriGally stated that "the Court is
not inclined, to Mold that municipal property held
and devoteo to public service is in the same
category as . ordin1:iry private property. The
classification of municipal property devoted for
distrnctly. go;vernmE!ntal purposes as public,
under .the Law-of Municipal Corporations, should
prevail overthe Civjl Code in this particular case."
(f>D-SC) The Lav{ of Municipal Corporations was
considered as a special law in the context of Art.
424 of the Civil Code (Province of Zamboanga
Del Norte v. City of Zamboanga, G.R. No. L-
. 24440, March 28, 1968).
Properties of public dominion devoted to public
use are outside the c0mmerce of men and cannot
be disposed of or leased by the LGU to private
persons. LGUs have no authority to control or
POLITICAL regulate the use of public properties, unless
specific authority is vested upon them by
Congress (Macasiano v. Oiokno, G.R. No.
97764, August 10, 1992).
PROPERTY OF PRIVATE
OWNERSHIP
Collective ownership includes co-ownership and
ownership by corporations, partnerships, and
other juridical entities which are allowed under
the law to acquire and possess property of all
kinds (2 PARAS, supra at 76).
A possessory information inscribed in the
Registry of Property showing possession by
priv&te persons and their predecessors since
time immemorial demonstrates prima facie that
 5%1 &I ' 1
MEM✓v-RY AID
San Seda University College of Law - RGCT Bar Operations Center
the possessors of the land to which it refers are
the owners thereof (Querubin v. Alconcel, G.R.
No. L-23050, September 18, 1975).
NOTE: Foreigners cannot acquire land in the
Philippines except in case of hereditary
succession (CONST., Art. XII, Sec. 7).
In case of unconstitutional purchase, foreigners
cannot make a claim for reimbursement of the
value of purchased parcels of Philippine land.
The Court cannot, even on the grounds of equity,
grant reimbursement to the foreigner given that
he acquired no right whatsoever over the subject
properties by virtue of its unconstitutional
purchase. It is well-established that equity as a
rule will follow the law and will not permit that to
be done indirectly which, because of public
policy, cannot be done directly (Beumer v.
Amores, G.R. No. 195670, December 3, 2012).
OWNERSHIP
(ARTS. 427-437)
:-'-1: 'R'.
It is the independent and general right o,f a person to•·
control a thing particularly in his possession,
enjoyment, disposition, and recovery,. subject to no
restrictions, except those imposed by the•· State or
private persons, without prejudice to the provisions of
the law (2 PARAS, supra at 83). - · - i~fttj~·rig~hP:_t;11interest belonging to a person
Ownership and possession are two distinct legal
concepts (Garcia v. CA, G.R. No. 133140, August 10,
~ ~-}3~t {'. ~ ·. 3,1 .
1999).
NOTE: Homeowners' Association can own properties
termed as "Common Areas" under the "Magna Carta
for Homeowners and Homeowners' Associations".
These properties include, but are not limited to,
roads, parks, playgrounds, and open spaces as
provided in Presidential Decree No. 1216. (R.A. No.
9904, Sec. 3(f)).
"OPEN SPACES," DEFINED
Area reserved exclusively for parks, playgrounds,
recreational uses, schools, roads, places of worship,
hospitals, health centers, barangay centers and other
similar facilities and amenities (P.O. No. 1216, Sec.
1).
KINDS OF OWNERSHIP:
1. Full ownership (dominium or jus in re
propria)
- includes all the rights of an owner;
2. Naked ownership (nuda proprietas)
- the bare title to property; where the right to the
use and fruits has been denied;
3. Beneficial ownership/Usufruct
- right to enjoy the use and fruits of a property;
where the legal title is vested in another;
NOTE: Naked ownership
+ Beneficial ownership
= Full ownership
4. Sole Ownership
- one where the ownership is vested in only one
person; and
i
5. Co-ownership
- when the ownership is vested in two or more
persons (DE LEON, Property, supra at 76).
SUBJECT MATTER
Ownership may be exercised over a:
1. Thing
- Usually refers to a corporeal property; or
19ht•·' "
- Whethe(\real or personal, usually refers to an
incorpor1?al pmperty (CIVIL CODE, Art. 427).
RIGHT AS PROPERTY:
A_re.al ri9-ht ?r)us in re
over a'specifie' thing without a definite passive
subject against whom such right may be
personally enforced (DE LEON, Property, supra
:qt?;
Classification of Real Rights Based on
Dominion:
a. Domino pleno - the powers to enjoy and tc
dispose are united (e.g., dominion; civ,
possession; and hereditary right);
b. Domino menos pleno - the powers to enjo1
and to dispose are separated (e.g., surfaci
right; and usufruct); and
c. Domino limitado - the powers to enjoy and tc
dispose, though united, are limited by a charg1
(e.g. easement, tax), by a guaranty (e.g.
mortgage, pledge), or by a privilege (e.g. pre-
emption, redemption, lease record) (Id. at 4).
2. A personal right or jus in personam or jus
ad rem or right of obligation
- is the right or power of a person (creditor or
obligee) to demand from another (debtor or
obliger) as a definite passive subject, the
fulfillment of the latter's obligation (Id at 5).

REAL RIGHTS V. PERSONAL RIGHTS
There is a definite active
subject who has a right
against all persons
generally as an indefinite
passive subject.
The object is generally a It is always an
corporeal thing (objects
which can be seen or
touched).
Created by concurrence·
of a title and a mode of
acquisition
Note: Mode is the·
specific cause which
produces dominion and
other real rights as a
result of the co-existence
of special status of
things, capacity, x x x
intention of person and
[the] fulfillment of the
requisites of law
(Spouses Stilianopoulos
v. Register of Deeds for
Legazpi City, G.R. No.
224678, July 3, 2018).
Generally, it is
extinguished by the loss
or destruction of the thing
over which it is
exercised.
It is directed against the
whole world, giving rise
PROPERTY
Civil Law
to real actions (action in against a particular
rem) against third person (the
persons. debtor), giving rise
to personal actions
There is a definite (action in
active subject personam) against
(creditor) and a such.debtor.
definite passive
(Id. at 5-6).
subject (debtor).
MODES OF ACQUIRING OWNERSHIP
1. Original Modes
a. Occupation
incorporeal thing. b. Work which includes Intellectual creation
2. Derivative Modes
a. Law
b. Tradition
c. Donation
· d. :Prescription
e. Succession •(DE LEON, Property supra at
580).
NOTE: Original modes of acquiring ownership
pertains .to those independent of any pre-existing
right of another person while derivative modes. are
those based on' pre-qXisting right held by another
Created merely by person. Moreover, derivative modes are modes both
"title" for the acquisition and fqr transmission of ownership
and other real rights {lel'at 591).
.
Note: Title . is . the ,: '
juridical right whic;h SEVEN ATTRIBUTES OF OWNERSHIP
gives a means to (PVF~A2 -DY):
the acquisition. of
1; Jus e,ossidendi
[such] rights
- The.· right to possess; it is different from
(Spouses
ownership Qudgment of ownership does not
Stilianopoulos. v.
· include the right to possess except when claim of
Register of Dee,ds
possession is based upon the claim of
for Legazpi City,
ownership) (Id. at 80);
G.R. No. 224678,
July 3, 2018).
2. Jus !f.tendi
- The right to use and enjoy; it may also include
the right to exclude any person from enjoyment
and disposal of the thing (relate to CIVIL CODE,
Arts. 429 and 431);
Personal right 3. Jus Eruendi
survives the - The right to enjoy the fruits (natural, industrial,
subject matter. and civil); possessor in good faith (CIVIL CODE,
Art. 544), usufructuary (CIVIL CODE, Art. 566),
lessee of agricultural land (CIVIL CODE, Art.
1676), and antichretic creditor (CIVIL CODE, Art.
432) are entitled to the fruits even if they are not
the owner;
 @4iAA \ /

MEM✓Q-RY Al D
San Seda University CoHege of Law • RGCT Bar Operations Center

4. Jus !3.ccessionis acquire real property needed as right~of-way site

- The right lo accessories; the general rule is that or location for any national government
all accessions and accessories are included in infrastructure project through donation,
the obligation to deliver a determinate thing negotiated sale, expropriation, or any other mode
although they may not have been mentione.d of acquisition as provided by law (R.A. No.
(CIVIL CODE, Art 1166); 10752, Sec. 4).

5. Jus !3.butendi 2. Limitations imposed by the Qwner himself;

- The right to abuse (or even destroy) or to
consume a thing by its use, subject to the 3. §pecific limitations imposed by law
provisions of law (e.g. disposition of wealth to the - e.g. legal easement and non-impairment of
prejudice of others); legitime in succession;

6. Jus Qisponendi 4. !nherent limitations arising from conflict with

- includes the following· rights (DATE-Not): other rights such as those which take place in
a. To Qestroy; accession continua;_and
b. To ~lienate;
c. To Iransform; 5. Limitations imposed by the p_arty transmitting the
d. To £ncumber; and property · either by contract or by will (2
e. Not to dispose. TOLENTINO, supra at 59).

7. Jus Y.indicandi
- right of action against the holder and possessor
of the thing or right in order to recover it (DE
LEON, Property, supra at 84).

CHARACTERISTICS: (EG-PIE)
1. ~lastic
- power/s may be reduced and ttwre,after
automatically recovered upon the cessation of
the limiting rights; ·

2. General
- the right to make use of all the possibilities or
utility of the thing owned, except those attached
to other real rights existing thereon;

3. ferpetual
- ownership lasts as long as the thing exists. It
cannot be extinguished by non-use buf only by
adverse possession;
4. !ndependent .
- it exists without necessity of any other right;

5. ~xclusive
- there can only be one ownership over a thing
at a time; there may be two or more owners but
only one ownership) (2 TOLENTINO, Civil Code
of the Philippines, Volume II, (1992), p. 59
[hereinafter 2 TOLENTINO}). .

LIMITATIONS: (GOSIP)
1. Q.eneral limitations imposed by the State for its
benefit
- power of taxation, police power, and power of
eminent domain;

NOTE: Under RA No. 10752, otherwise known

as "The Right-of-Way Act", the government may
,,,~, :t-, ' ~ ' ;,~ "-',__ \.,,.. \" l'.

_-. 178 ) . , . , , :·'•~:' ~ ', . PROPERTY

0 ' ' ::;.\ , ' ' ,, 1 '\ Civil Law
) , ~ \, ' ,s;

LEGAL REMEDIES TO RECOVER POSSESSION OF

PROPERTY

Replevin A remedy for the recovery of Physical RTC or MTC Four (4) years (if
possession of personal Possession possession in good
property which is governed If the value of the faith) from the time
by Rule 60 of the Rules of personal property the possession
Court. does not exceed thereof was lost
1. As a form of principal P300,000.00 (or
remedy - to regain P400,000.00 in Metro Eight (8) years
possession Manila) - MTC (without other
2. As a form of provisional conditions) (CIVIL
remedy - to retain what ·if the value of the CODE, Art. 1132)
has been wrongfully personal property from the time the
detained pendente/ite. exceeds 'P300,000.00 possession thereof
(or P40D,ooo.oo in was lost
Replevin .wjll not· · lie for Metro Manila), RTC
property iri .CtJS.fodia •. legis
(Chua v.
CA,. G.R. No.
79021,Jvfay 17, 1993}..

1. Accion A sGmmarY, action to

lnterdictal recov~r physit:al or rriateriaf
(Ejectment possession of properly
Suit)
a. Forcible An action for recovery o,f Possession MTC;"irrespe.ttive of One (1) year. from the
Entry material possession d~ facto tbe . amqunt of date of actual entry on
(detentacion) (possession defacto).o( real damages or unpaid the land when entry
property when ;J, person rentals,sought to be was made through
originally in possesSioo 'Was Te.covered force, intimidation,
deprived thereof by .Eorce, •.• strategy, or threat
!ntimidation, §trategy,
Ihreat, or §tealth (FISTS). One (1) year from
discovery when entry
Reason: Irrespective of the was made through
actual condition of the title to stealth
the property, the party in
peaceable quiet possession
shall not be turned out by
slruny ha11u, viule11Ge, u,
terror (Javier v. Veridiano,
G.R. No. L-48050, October
10, 1994). ,

Actual possessors who can

prove prior possession can
recover such possession
even against the owner
himself. Whatever may be
&•&¥# \ I

MEM:Q~Y AID
San Seda University CoUoge of Law • RGCT Bar Operations Center

the character of such

possession, if he has in his
favor priority in time, he has
the security that entitles him
to remain on the property
until he is laWfully ejected by
a person having a better
right by accion publiciana or
accion reinvindicatoria
(German Management &
Services v. CA, G.R. No. L-
76216, September 14,
1989).
b.UnlaWful An action for recovery of Possession MTC One ( 1) year from the
detainer possession of any real de facto date of last demand to
(desahuico) property by a landlord, vacate
vendor, vendee, or other
person, against whom the If there is a fixed
possession of the same was period for termination
unlaWfully withheld, after the of the lease, lease
expiration or termination of ends automatically
the right to hold possession. without need of
demand, one year
A requisite for a valid cause period is reckoned
of action in an unlawful from the expiration of
detainer case is that the lease (2 PARAS,
possession must be supra at 109).
originally laWfuJ, and such
possession . must . have If the reason for
turned unlawful . only upor:i ejectment is non-
the expiration ofthe right to . payment of rent or
possess (Eversley ,.Childs non-fulfillment of the
Sanitarium v:
Spouses conditions of the
Perlabarbarona, G.R. _No. lease, one year period
195814, April 4, .2018). is reckoned from the
Without proof that ttie · date of demand to
possession was leg~I at ij)e vacate (Id.}.
outset, the action for
unlaWful detainer shall be
dismissed (Javelosa v.
Tapus, GR. No. 204361,
July 4, 2018).

A person or squatter, who

occupies the lond of another
at the latter's tolerance or
perm1ss1on, without any
contract between them, is
necessarily bound by an
implied promise that he will
vacate upon demand; failing
which, a summary action for
ejectment or unlav·vful
detainer is the proper
remedy against him (Yu v.
de Lara, GR. No. L-16084,
November 30, 1962).
"<, < : i '~ r ~ )<$ -,~ { ,t ' ' < :, V,,. ,,

\ ' 18() .. ' ) '. ' . ,· PROPERTY

'1- ). "
l
t
,,,,_,,
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Civil Law

NOTE: An action for

unlawful detainer is
summary in nature and the
only issue that needs to be
resolved is who is entitled to
physical possession of the
premises, possession
referring to possession de
facto, and not possession de
jure. Nonetheless, where the
parties to an ejectment case
raise the issue of ownership
and such is inseparably
linked to that of possession,
the courts may pass upon
that issue to determine who
between the parties has the
better right to possess the
property. The adjudication,of
the ownership·• issue,.
however, is ,not final .and
binding. Th!:isame is.only for
the purpqse Qf resci'lving the
Issue . of ·, ·possession
(Baleares, Ba/eare's v.
Espanto, GR .. No. 229645,
June 6; 2018);

It does riot even matter if a

party's title Jo the property fs
questionable. :Whefe ' the
parties to an ejectment case '
raise the issue ofownership,
the courts may pass upon ·
that issue tO determine who
between the parties has the
better right to possess the
property (Spouses Santiago
v. Norlhbay Knitting Inc.
(NKI), G.R. No. 217296,
October 11, 2017).
2. Accion An ordinary civil proceeding Possession RTC or MTC Ten (10) years from
Publiciana to recover possession of real de Jure the time the cause of
property when the If the assessed value action arose
dispossession was of the real property
committed: does not exceed
1. Where the entry was not P20,000.00 (or
obtained through FISTS PS0,000.00 in Metro
or failure to state that Manila) - MTC
deprivation was caused
by FISTS. This can be If the assessed value
brought as soon as the of the real property
dispossession takes exceeds P20,000.00
place, without waiting for (or PS0,000.00 in
the lapse of the one (1) Metro Manila)- RTC
year period ( Gutierrez v.
 p Jffle \ /

MEM:Q-RY Al D
San Seda Uni~erslty College of Law - RGCT Bar Operations Center

Rosario, G.R. No. 4145, NOTE: Jurisdiction is

January 28, 1910; determined not only
Gumiran v. Gumiran, by the type of action
G.R. No. 6364, January filed but also by the
11, 1912);or assessed value of the
2. Where the- one-year property. In accion
period for bringing pub/iciana and
forcible entry or unlawful reinvindiatoria, the
detainer has already assessed value of the
expired. real property is a
jurisdictional element
to determine the court
that could take
cognizance of the
action. In the absence
of any allegation in the
Complaint of the
assessed value of the
subject properties, it
cannot be determined
which court has
:?i". exclusive original
. ·;. \~l\ jurisdiction over
· }Ii·,~\::,::,:,, .r~wo~nts'
,i "c6mpl~lpt (Regalado
· v. De la Pena, G.R.
,i No. i . . 2012448;
1; Dec~inber-p, 2017).
3. Accion An action to recover real Owne~ip RTC or MTG Four (4) years if
Reinvindica- property · .• based on :1: IJ (b~ f!S§e)=1:feq. value based on fraud from
toria ownership, ),) 6'f/tlje;;r,"~~kiproperty the issuance of
Ii doe~"'loflbf exceed certificate of title over
P20,000.00 (or the property
;,;< . , P50,000.00 in Metro
;;)(t,\ i'i }~~J1\\1!3) - MTC Ten (10) years if
based on implied or
If the assessed value constructive trust
of the real property
exceeds P20,0DD.OO lmprescriptible
(or P50,000.00 in when plaintiff is in
Metro Manila) - RTC posse~sion of the
property.
NOTE: Under RA
11576 (Effective on
August 20, 2021), the
jurisdiction of METC,
MTC, MCTC, MTCC
will be further
expanded. The RTC
shall exercise
exclusive jurisdiction
in all civil actions
involving the title to, or
possession of, real
property valued at
P400,000, from the
 PROPERTY
Civil Law

previous P20,000 to
P50,000.

1. Writ of Writ of execution commanding Court where the lmprescriptible

Possession the sheriff to enter into the• land case is pending
and give the posse_ssi6n thereof
to the entitled ~E;)rson.. .

2. Writ of Injunction _. requ1ri))g'' Jhe Court where the 10 days from filing in case of
Preliminary defendanUo do·-ovtefrairi from case ofun·lai,vtul fprcjble entry
Injunction doing a partiqul~mthing det,liner or forcible· ·
ehtr{is pending. W<:lays from the time the appeal
ls 1perfected in case of unlawful
detaine_r
(DE LEON, Property, supra:at 8z4-1B)
 f 19 \ / ,t: ~, '" :- ~ <)' - \ - ~ ' ~~:

MEMl)~Y AID
San Seda Universfty College of Law ~ RGCT Bar Operations Center
I ~
,·· . ;;·' · · :, 183;: ·
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-
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FORCIBLE ENTRY V. thing in urtler lu recover it." Moreover "every

UNLAWFUL DETAINER possessor has a right to be respected in his
possession, and should he be disturbed therein,
he shall be protected in or restored to said
possession by the means established by the laws
and the Rules of Court." (CIVIL CODE, Art. 539,
Par. 1; 2 PARAS, supra at 89).
Possession of the Possession is
defendant is unlawful inceptively lawful, but 2. Right to Enjoy; and
from the beginning as becomes illegal from The right to enjoy includes:
he acquires possession. the time the defendant a. The right to possess;
by Force, Intimidation, unlawfully withholds b. The right to use; and
Strategy, Threat or possession, after the c. The right to the fruits (Id. at 89).
Stealth (FISTS). expiration or
termination of his right 3. Right to Qispose
thereto. The right to dispose includes:
a. The right to consume, destroy, or abuse; and
b. The right to encumber or alienate (Id.)

No previous demand for Demand is PRINCIPLE OF SELF-HELP UNDER

the defendant to vacate jurisdictional.
is necessary.
EXCEPTION: if there is
a fixed period for the
termination of the lea$e,
demand is unnecessary
(2 PARAS, at
109).
ARTICLE 429
The owner or lawful possessor of a thing has the right
· to exclude any person from the enjoyment and
· ,,P~~posal ther~of. For this purpose, he may use such
f◊rc~fasfrQafbe reasonably necessary to repel or
supra prevent ··artactual or threatened unlawful physical
invasion or usurpation of his property (CIVIL CODE,
Art. 429). .- . .

.. Requisites: (ROA[))
_..,,. ,
• 1. Rec;1~9nable force;
Plaintiff must prove that Plaintiff need not have 2. Qw¾t.qtii~»'ftil'possessor is the person who will
he was in prior physical been in prior physical exercise: •· · · ·
possession of the possession. • 3. ~ctual or threatened physical invasion or
premises until he was . 1.1surpation; and
deprived thereof by the
defendant.
.:-: r.;;,'.f~c{Qel~y in one's exercise (i.e., at the time of an
actual or threatened dispossession, or
immediately after the dispossession). Once delay
has taken place, even if excusable, the owner or
lawful possessor must resort to judicial process
for the recovery of the property (CIVIL CODE,
From the date of actual From the date of last,
Arts. 433 and 536; DE LEON, Property, supra at
entry on the land when demand or last letter of
105).
entry was made through demand
force, intimidation,
GENERAL RULE: A person cannot interfere with the
strategy, or threat In case of a lease with a
right of ownership of another (DE LEON, Property,
fixed period, the one-
supra at 112).
From discovery when year period is reckoned
entry was made through from the expiration of
EXCEPTION: Doctrine of Incomplete Privilege or
stealth the lease. State of Necessity (CIVIL CODE, Art. 432).
(RULES OF COURT, Rule 70).
NOTE: Art. 11 of the Revised Penal Code on self-
RIGHTS OF AN OWNER UNDER ARTICLE defense includes not only defense to a man's person,
428: (RED) but also that of his rights to property.

1. Right to fiecover or vindicate; Acts in a state of necessity are different from defense
The right to recover is given expressly in Art. 428 against unlawful aggression or defense against
which provides that "the owner has also a right of dangerous objects, although the principle which
action against the holder and possessor of the

justifies them is the same. If the danger comes from
another's property, and the force is employed against
it, the case is one of defense against danger. But if
another's property is used to avert danger not arising
from it, the act is essentially one in a state of
necessity; in other words, it is for the purpose or
protecting the actor himself or another person at the
expense of the owner of the property who has no part
in the state of necessity (2 TOLENTINO. supra at 68).
The actual invasion of rrorerty may consist of:
1. Mere disturbance of possession; or
2. Real dispossession (Id.).
The rules are:
a. If it is mere disturbance of possession, force may
be used against it at any time as long as it
continues, even beyond the prescriptive period
for an action of forcible entry (e.g. if a ditch is
opened by P in the land of J, the latter may close
it or cover it by force at any time) (Id. a(54):' •.
b. If it consists of a real disposseS$iOri; fqrce J9
regain possession can only · . be · used
immediately after the dispossession··(e.g. if J,
without P's permission, picks .up a book
belonging to the latter and runs.off with it, P can
pursue J and recover the book l:>y force) (Id.). ·
3. There should be no delay in;the use of force to
recover it; a delay, even if excusable, such as
when due to the ignorance of the dispossession,
will bar the right to the us~ Qf fore~.· Once the·
usurper's possession has become firm by the
lapse of time, the lawful possessor must resort. to
the competent authority to recover his property..
(Id.). .
Where a tenant is given a certain peripd to
vacate, the act of the owner iri dragging the
tenant away is not justified under Art. 429, During
said period, the tenant is considered a lawful
possessor (Caisjp v. People, GR. No. L-28716,
November 18, 1970).
However, in another criminal case, wherein a
private corporation sought to take over a land by
fencing the same without authority or court order,
the Court sustained the use of force under Art.
429. In said case, the owner of the land fought off
and prevented the workers from constructing the
fence. The Supreme Court acquitted the owner
hnlrlino that the use of such necessary force to
protect proprietary or possessory rights
constitutes a justifying circumstance under the
penal laws (People v. Pletcha, GR. No. 19029,
June 27, 1977).
PROPERTY
Civil Law
RIGHT TO ENCLOSE OR FENCE
Every owner may encluse ur fence his land or
tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to
servitudes constituted thereon (CIVIL CODE, Art.
430). .
Every owner has an absolute right over his property
and his act of fencing and enclosing the same was an
act which he may lawfully perform in the exercise of
said right. Thus, damages arising from the act ot the
owner in building a fence within the latter's lot is
considered damnum absque injuria, since it is the
owner's legal right to do so (Custodio v. CA, G.R. No.
116100, February 9, 1996).
OBLIGATION TO RESPECT THE RIGHTS
OF OTHERS
The owner of a thing cannot make use thereof in such
~ariner, as to injure the rights of a third person (sic
1,;dere tuo'ut .. a/ienum non laedas) (CIVIL CODE, Art.
. . ,}!31). ! . ...
Adjoining)an8o'1ners have mutual and reciprocal
dL1ties w~ich fequire ltiat each must use his own land
iri a reaionable tnanrier, so as not to infringe upon
the rights'iand interesls qf others. The structures must
be so 'constructed . and maintained using all
re,;15onable care so tnat
{hP.y r.annot be dangerous to
?djoining landowners.. ~9d can withstand the usual
· and expectE;!d forces ofn~ture. If the structures cause
injury·of d~mageto .qn'qtijoining landowner or a third
persoh; •the latter can claim indemnification for the
injury or dama.fle suffered (Andamo v. JAG, G.R. No.
74761, Nove_mber 6, 1990).
Ah ow.nef caqnot be debarred from the legitimate use
. of, his prpperty simply because it may cause real
d;=ii'l'la_§s to',his neighbor (Higgins Oil & Fuel Co. V.
.Guar9nty Oil Co., 145 la 233, 82 So. 206, as cited in
2·rbLENTJNO, supra at 67).
DOCTRINE OF INCOMPLETE PRIVILEGE
OR STATE OF NECESSITY
The owner of a thing has no right to prohibit the
interference of another with the same, if the
interference is necessary to avert an imminent
danger and the threatened damage, compared to the
damage arising to the owner from the interference, is
much greater (CIVIL CODE, Art. 432).
It authorizes the destruction of a property which is
lesser in value to avert the danger poised to another_
property, the value of which is much greater (2
PARAS, supra at 150-151).
 &@fiiM@ \ /
MEM:Q~Y AID
San Seda University Cottege of law - RGCT Bar Operations Center
BASIS: There is no unlawful aggression when a
person or grou·p of person acts pursuant to the right
given in a state of necessity (DE LEON, Property,
supra at 105).
Art 432 is based on what is known as the state of
necessity, a justifying circumstance recognized in the
Revised Penal Code (Art. 11) but which does not also
exempt the offender from civil liability. It likewise
embodies the principle of "the least evil" rule, i.e., that
as between two evils, one is justified in choosing the
lesser evil (Id.).
NOTE: It is also for the purpose of protecting the
actor himself or another person at the expense of the
owner of the property who has no part in the state of
necessity (Id.).
The owner of the sacrificial property is obliged to
tolerate the act of destruction but is entitled to
reimbursement by all those who benefited through
the act or event (CIVIL CODE, Art. 432).
Basis of Reimbursement: the benefit derived from
the act.
Requisites: (ID)
1. Interference necessary to avert an imminent and
threatened danger to the actor or a third person;
and
2. Qamage to another is much greater than damage
to property (DE LEON, Pro(J!:lrlY, supra at 109).
Illustrations: The attacking animal, belonging to
another, may be killed by the victim; c:i in the
path of a fire may be demolished; and a dike may be
destroyed at one point to prevent a flood over other
places (2 TOLENTINO, supra at 68).
DOCTRINE OF SELF-HELP VS. STATE
OF NECESSITY
The doctrine of self-help is invoked by the owner or
lawful possessor in protection of his right to prevent
other persons from interfering with his property. The
state of necessity, on the other hand, is availed of by
another person against someone else's property for
the purpose of averting an imminent danger to
himself or to another person or to their property
(RABUYA, Property, supra at 134).
DISPUTABLE PRESUMPTION
OWNERSHIP
Actual possession under claim of ownership raises a
disputable presumption of ownership. The true owner
must resort to judicial process for the recovery of the
property (CIVIL CODE, Art. 433).
ACTIONS TO RECOVER
In an action to recover, the property must be
identified, and the plaintiff must rely on the strength
of his title and not on the weakness of the defendant's
claim (CIVIL CODE, Art. 434). The person who claims
that he has better right to the property must
satisfactorily prove both ownership and identity of the
same (Pang-oden v. Leanen, G.R. No. 138939,
December 6, 2006).
REQUISITES: (IT)
1. Proof of Identity of the Property
He must- fix the identity of the land claimed by
describing the location, area, and boundaries
thereof.
Failure to prove the boundaries of the land - the
action to recover will necessarily fail (Santiago v.
Santos, G.R. No. L-20241, November 22, 1974).
2. Proof of Title
In an action to recover, the plaintiff must rely on
the strength of his title and not on the weakness
of the defendant's claim (CIVIL CODE, Art. 434).
' \(ff'F•.order~ lo successfully maintain actions for
;i:icrveN' 'd,t ownership of a real property' the
complainants must prove the identity of the land
and their Otle thereto as provided und_er Article
434 of Jhe' Civil Code. They have the burden of
proof to establish the averments in the complaint
by preponderance of evidence, relying on the
strengtttet;tl}e!r,own evidence and not upon the
weakiiessi.ottheir opponent's evidence (Arjonilfo
house v. Pagulayan, G.R No. 196074, October 4,
J017).
'REASONS:
a. There is a possibility that neither the plaintiff
nor the defendant is the true owner of the
property;
b. The one in possession is presumed to be the
owner, and he cannot be obliged to show or
prove a better title;
c. The possessor in the concept of an owner is
presumed to be in good faith; and
d. He who relies on the existence of a fact,
should prove· that fact (2 PARAS, supra at
152-153).
OF RULE ON THE DEPRIVATION OF
PROPERTY
If the deprivation is in the exercise of the power of
eminent domain, no person shall be deprived of his
property except by competent authority and for public
use and always upon payment of just compensation
(CIVIL CODE, Art. 435).

The ownership of the property is transferred upon
payment. If conditional, ownership reverts to the
original owner when the property is no longer needed
for the purpose for which it was expropriated (DE
LEON, Property, supra at 121).
When any property is condemned or seized by
competent authority in the interest of health, safety,
or security, the owner thereof shall not be entitled to
compensation, unless he can show that such
condemnation or seizure is unjustified (CIVIL CODE,
Art. 436).
SURFACE RIGHTS
The owner of a parcel of land is the owner of its
surface and everything under it, and he can construct
thereon any works or make any plantations and
excavations which he may deem proper, without
detriment to servitudes and subject to special laws
and ordinances (CIVIL CODE, Art. 437).
NOTE: Horizontally: extends up to the boundaries
(RABUYA, Property, supra at 142)., :
Vertically: extends below the surface 'and above it to
the extent required by the eCOnQmicrlnterest of or
utility to the owner, in relation to the ilxploitation that
may be made of the property (ldJ , pbjecis; and
NOTE: Following the Doctrine of Ad; Coleum,
ownership of land· extends to the· surf9 ce a? well as
to _ the subsoil under it rJ¢rice,. _buitding of
underground tunnels by a' gov~rnnieht, 'agency
entitles the owner of the land'to just compens·ation as
the sub-terrain portion of the property similarly
belongs to him (National Powerr;;orp v. Ibrahim, GR.
No. 168732, June 29, 2007).
Airspace: The owner cannot complain. of, the
reasonable requirements of aerial navigatioh (CIVIL
CODE, Art. 437).
Right to sub-surface: The rights over the land are
indivisible and the land itself cannot be half-
agricultural and half-mineral. The classification must
be categorical - the land must be either completely
mineral or completely agricultural. In the instant
case, the land which was originally classified as forest
land ceased to be so and became mineral - and
completely mineral - once the mining claims were
perfected. As long as mining operations were being
undertaken thereon, or underneath, it did not cease
to be so and become agricultural, even if only partly
so, because it was enclosed with a fence and was
cultivated by those who were unlawfully occupying
the surface (Republic v. CA, Dela Rosa, G.R. No. L-
4393~ AprH 15, 1988).
The landowner's right extends to such height or depth
where it is possible for them to obtain such benefit or
PROPERTY
Civil Law
enjoyment, and it is extinguished beyond such limit
as there would be no more interest protected by law
(National Power Corp. v. Ibrahim, G.R. No. 168732,
June 29, 2007).
Restrictions: (S 2ORP)
1. §ervitudes or easements;
2. §pecial laws;
3. Qrdinances;
4. Reasonable Requirements of aerial navigation;
and
5. _erinciples on human relations or rights of third
persons (2 PARAS, supra at 196).
HIDDEN TREASURE
(ARTS. 438-439)
REQUISITES FOR THE PROPERTY TO
BE CONSIDERED HIDDEN TREASURE
(HU-MoJO-L):
1 .. ,t!idden and Y,n!<nown deposit (such that finding it
would indeed be a discovery);
2. It consists of Money, _Jewelry, or Qther precious
·
NOTE: The phrase, "other precious objects" does
not include proper;ty embedded to the soil like
mil}erats (Id. at 206):
3. J'heir kawful owner,hip does not appear (CIVIL
,CODE, Arts. 438 and 439).
GENERAL RULE: The hidden treasure belongs to
th!'! owner of th~ land, building, or other property on
Which. it is foynd (CIVIL CODE, Arts. 438).
_EXCEPTIONS: The finder is entitled to one-half (½),
provided (AS-C-CoTAM):
1. Discovery was made on the property of ~nother,
or of the .§.tate or any of its political subdivisions;
2. The finding was made by ~hance;
3. The finder is not a Co--0wner of the property
where it is found;
4. The finder is not a Irespasser;
5. The finder is not an 8gent of the landowner; and
6. The finder is not Married under the absolute
community or the conjugal partnership system
(otherwise his share belongs to the community)
(2 PARAS, supra at 201-203).
It is necessary that no known owner appears.
"Hence, the money found in a library, when. the books
were delivered to the legatees in a testamentary
proceeding, could not be considered a treasure
because it was shown that the library had been used
by the testator and that money consisted, in greater
 1
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MEM✓v~Y AID
San Beda University Collage of Law - RGCT Bar Ope,ations Center

part, of this kind in circulation during the life of the

testator" (1 CAPISTRANO 394).
"And by chance" - "by good luck," implying that one
who intentionally looks for the treasure is embraced
in the provision (DE LEON, Property, supra at 134).
The right by virtue of which the owner of a thing
becomes the owner of everything that is produced
thereby or which is incorporated or attached thereto,
either naturally or artificially (CIVIL CODE, Art. 440).

REASON: It is extremely difficult to find hidden In general, the right of accession is automatic,
treasure without looking for it deliberately, for in many requiring no prior act on the part of the owner of the
instances, the treasure is buried (2 PARAS, supra at princip31 ( ArrinlA v ArriolA, G.R. No. 177703, January
202). 28, 2008).

Stranger -- anyone who has absolutely no right over
the immovable or the thing in which the treasure is
found. The term also includes a lessee, a
usufructuary, or a paid laborer working for the owner
of the land, provided he has not been engaged
precisely to look for hidden treasure (2 TOLENTINO,
Civil Code, supra at 94).
Art. 440 does not apply to property of public domain
(Sps. Gulla v. Heirs of Labrador, G.R. No. 149418,
July 27, 2006).
Accession is not a mode of acquiring ownership. It is
merely an incidence or consequence of ownership
(DE LEON, Property, supra at 137).

In case of a usufructuary, he shall be considered a BASIS: It presupposes a previously existing

stranger with respect to hidden treasure which may
be found on the land or tenement (CIVIL CODE, Art.
566). This means that the usufructuary does not ge1
a share. However, if he is the finder, he gets one-half
(½) as such finder.
ownership by the owner over the principal which is
not necessary in modes of acquiring ownership (Id.).
ACCESSION V. ACCESSORIES

If the finder is a paid laborer of the landowner, a

distinction must be made. If he discovered the
property by chance, he gets half. If he had _been The fruits : of, or Things joined to or
employed precisely to look for the treasure, -twvyill get additions. ; to, or included with the
nothing insofar as the treasure is-concerned; but he improvements upon, a principal thing for the
will get his wages or salary (3 MANRESA 165-166 at thing (pril'.lc\pal),>,/,. latter's embellishment,
as cited in 2 PARAS, supra at 198). · · 0 , .:' ,';, "h •,. ,, :

better
,! •~• 'S''

or

Where things discovered do not qualify as a hidden

treasure, the rules on occupation, as a mode of ·
acqumng ownership, would be applicable
(DE LEON, Property, supra at 135).

If the finder or owner of the property where the (Id. at 134).

treasure is found is a married person, the treasure
forms part of the conjugal property (FAMILY CODE,
Art. 117(4)).
CLASSIFICATIONS:
1. Accession Discreta
Effect of Concealment - the right pertaining to the owner of a thing over
If the finder of the treasure conceals it from the owner everything produced thereby (Id. at 138).
of the land on which it is found, he does not thereby
lose his share; but he becomes liable civilly and REASON: Justice, pure and simple for one who
criminally for taking something not belonging to him, owns the thing should justly enjoy the fruits (Id.).
which is the share of the landowner. He will also be
responsible for all the consequences of possession in Requisites: (ORI)
bad faith with respect to the loss or deterioration of a. Increase or addition to the Qriginal thing;
the thing (2 TOLENTINO, supra at 95). b. At ,Bepeated intervals; and
c. By !nherent forces (Id.).

Fruits
ACCESSION Kinds of Fruits:
a. Natural Fruits
(ARTS. 440-4 75) i. Spontaneous products of the soil; and

ii. The young and other products of animals
(CIVIL CODE, Art. 442, Par. 1).
Rule of Partus Sequitur Ventrem (the
offspring follows the dam/mother):
To the owner of the female animals also
belong the young of such animals, although
this right is lost when the owner mixes his
cattle with those of another (DE LEON,
Property, supra at 140).
REASON: First, it is not known who the male
is. Second, during the pregnancy of the
female, its owner is greatly burdened by the
consequential expenses and virtual
uselessness of the animal, and it is only fair
that when the young is born, the owner
should gain, or at least recover his loss (Id.
at 140-141).
b. Industrial Fruits
- those produced by lands of· any, kind '
through cultivation or labor (CIVIL COPE, . -
Art. 442, Par. 2).
Perennial crops growipg pe( seJ~o.n without
the need of replanting are n¢ural fruits (DE
LEON, Property, supra at 141).
Annual crops planted each year are industrial
fruits (Id.).·
c. Civil Fruits
i. Rents of buildings;.-
ii. Price of leases of lands; ·and
iii. The amount of perpetual dr_life annuities
or other similar int(?m·e (CIVJL COt;JE,
Art. 442, Par. 3).
Bonus to planters for the risk ·undergone in
mortgaging property is not a civil fruit()f the
mortgaged property having no immediate
relation to the property but only a remote and
accidental relation, not derived from the land
nor based on the value thereof (Bachrach
Motor Co. v. Talisay-Silay Milling Co., G.R.
No. 35223, September 17, 1931).
Right of Owner to the Fruits
GENERAL RULE: To the owner of the principal
belongs the natural, industrial, and civil fruits
(CIVIL CODE, Art. 441).
EXCEPTIONS: Instances when the owner of the
land does not own the fruits: (PULA)
a. fossessor in good faith;
b. .!J.sufructuary;
c. bessee of rural lands; or
d. In possession of an ~ntichretic creditor (2
f'ARA'S, supra at 208).
PROPERTY
Civil law
NOTE: Fruits naturally falling upon adjacent land
belong to the owner of the said land and not to
the owner of the tree.
Obligation of Recipient of Fruits to Reimburse
Necessary Expenses of Third Persons
GENERAL RULE: Necessary (not luxurious)
expenses of production, gathering and
preservation (whether more or less than the
value of the fruits) must be borne by the receiver
of the fruits (CIVIL CODE, Art. 443).
Applies where:
a. The owner of the property recovers the same
from a possessor and the latter has not yet
received the fruits although they may have
already been gathered or harvested; or
b. The possessor had already received the
fruits but is ordered to return the same to the
owner (DE LEON, Property, supra at 143).
NbTE:-The above provision is not applicable
when the planter is in good faith because in
_this -case, h(;l is entitled to the fruits already
· received; hence, there is no necessity -of
r~imoursing him (CIVIL CODE, Art. 544).
-· NOTE: - Th'e gbod or bad faith of the
possessor1s material where the fruits are still
pending (ungathi:lred) at the time he gave up
.his possession. _In any case, Art. 443 should
be read in conne'ction with Articles 544 to 551
(DE LEON, Prqperty, supra at 144).
· A possessor· in bad faith has no right
_ whatsoever to the fruits, gathered or pending,
.. except only necessary expenses for
gatheted fruits (Id. at 389).
-- EXCEPTION: The rule does not apply to
pending fruits under Art. 449.
When Natural Fruits and Industrial Fruits
Deemed to Exist (CIVIL CODE, Art. 444)
Natural and industrial fruits, while still
ungathered, are real property. The following rules
shall apply in determining the time when they are
deemed to have existed:
a. Plants producing one crop only and then
perish - They are deemed to have existed
from the time their seedlings appear from the
ground;
b. Plants and trees living for years and
producing periodic fruits - They are
deemed to have existed from the time they
actually appeared on the plants or trees;
c. Animals - They are deemed to have existed
at the beginning of the maximum period of
gestation; and
 1
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d. Fowls - the fact of appearance retroact to
the beginning of incubation (Id. at 145).
Rule for Civil Fruits as Distinguished from
Natural and Industrial Fruits
Civil fruits are easily prorated for under Art. 544
of the Civil Code, they are deemed to accrue
daily. They are considered in the category of
personal property and belong to the possessor in
good faith in that proportion while natural and
industrial fruits ordinarily cannot be prorated and
are considered real property while still growing (2
PARAS, supra at 216).
2. Accession Continua
- The right pertaining to the owner of a thing over
everything that is incorporated or attached
thereto, either naturally or artificially, by external
forces (Id. at 220).
REASONS: Economic convenience is better
attained in a state of single ownership than in a
co-ownership, and natural justice demands that
the owner of the principal should also own the
accessory (Id. at 211 ).
a. With respect to real property:
i. Accession industrial -- building, planting,
sowing
ii. Accession natural -- alluvium. avulsion,
change of course of rivers, formation of
islands · owner~hipby th~ owner-spouse, likewise subject
b. With respect to personal property:
i. Adjunction or conjunction
ii. Commixtion or confusion
iii. Specification
Basic Principles: (GONE-BAD)
a. He who is in §.ood faith may be held
responsible but will not be penalized;
b. To the Qwner of a thing belongs the
extension or increase of such thing;
c. Bad faith of one party ~eutratizes the bad
faith of the other;
d. There should be no unjust !;nrichment at the
expense of others;
e. _!!ad faith involves liability for damages;
f. Accessory follows the principal; and
g. Accession exists only if the incorporation is
such that separation would either seriously
Qamage the thing or Qiminish its value (Id. at
220).
RIGHT OF ACCESSION
WITH RESPECT TO REAL
PROPERTY
(ARTS. 445-465)
GENERAL RULE: Whatever is built, planted, or sown
on the land of another and the improvements or
repairs made thereon belong to the owner of the land
subject to the provisions of Arts. 447-456 (CIVIL
CODE, Art. 445) and Article 120 of the Family Code.
The ownership of improvements, whether for utility or
adornment, made on the separate property of the
spouses at the expense of the partnership or through
the acts or efforts of either or both spouses shall
pertain to the conjugal partnership, or to the original
owner-spouse, subject to the following rules:
1. When the cost of the improvement made by the
conjugal partnership and any resulting increase
in value are more than the value of the property
; ?t the YIJ1e of the improvement, the entire
pro/;l~-,pfone of the spouses shall belong to the
conjugal partnership, subject to reimbursement
of the vatu:e pf the property of the owner-spouse
at the ti,me ofthe improvement;
2. Otherwise!', sa\d property shall be retained in
to. ~:ei~b,u,r~ei;n1;;:ht pf the cost of the improvement.
>~-;;3f;>,1,.;:: ;; 3 ~ .,·:.
In eithcir'case, the ownership of the entire
property shall be vested upon the
'.';_reimbursement, which shall be made at the time
· b,(fp~; liquidation of. the conjugal partnership
(FAMILY CODE, Art. 120).
Scope of Building
The term "building" is a generic term for all
architectural work with a roof, built for the purpose of
being used as man's dwelling, or for offices, clubs,
theaters, etc. (DE LEON, Property, supra at 183).
Scope of Planting
It is not necessary that the trees or plants should have
taken root; it is enough that they are planted in order
to belong to the owner of the land (2 TOLENTINO,
supra at 107).
Presumption: Atl works, sowing, and planting are
presumed made by the owner and at his expense,
unless the contrary is proved (CIVIL CODE, Art. 446).
NOTE: Art. 445 is applicable only if the owner of the
land is known (DE LEON, Property, supra at 146).
 PROPERTY
Civil Law

ACCESSION INDUSTRIA

TABLE OF RIGHTS AND OBLIGATIONS

indemnity preservation both acted in
and collect good faith).
damages, 2.Lose 2.lf B, P, S
OR improvement acquires
2. Demolition or s without right improvement
restoration, to · indemnity remove
1. Acquire 1. Right of 1. Collect and collect from LO materials if
improvement retention volue of dan18ye:;, u1 (CIVIL without injury
s and pay for materials 3. Sell to B, P or CODE, Art. {CIVIL
indemnity to necessary primurily rent to S, c111u 452) unless CODE, Art.
B, P, S; OR and useful from B, P, collect the LO sells 447);
2. Sell land to B expenses; S; damages; land. 3.No action
or P except if 2. Pay value subsidiarily 4.Pay against LO.
the value of of from LO if necessary
the land is materials B, P, s expenses to
considerably to OM. insolven!;. B, P, S
more; and 2. Remove (CiVIL
rent to S oryly if . CQbE, · A,:ts.
{CIVIL without 449, 4[50, and
CODE, Arts. injury, 451). . .
448, 546, and (CIVIL
455); .COPE,
3. Subsidiarily Arts. 455
liable to OM. arid 447).

1. Acquire 1. Right·· of 1 . Lose : them

improvement retention without eight
1.Acquire _
s and pay for to indemnity
irjiprovement improvements materials if
indemnity to necessa·ry
B, P, S; OR and useful
(CIVIL
CQDE, Art.
s after pl'iyingin any event; without
indemnity and 2.Be injury;
2. Sell to B, p expenses; 449).
.dar'nages1 to indemnified 2.Collect value
except if the 2. Keep what _·· E3,f\ S; _. . for damages; of materials,
value of land has been
2. Subsidia'rily primarily
is built,
liable to OM from B, P, S;
considerably planted, or
(CIVIL 3. Subsidiarily
more, forced sown
CODE, Arts. from LO
lease; without (CIVIL.
454, 447, and
3. Without indemnity
455). CODE, Arts.
subsidiary to OM and
447 and
liability for collect
455).
cost of damages
material. {CIVIL
CODE;
Arts. 546
and 449). 1.Acquire 1.Right of 1.Collect value
improvement retention for of materials
s after necessary primarily from
indemnity to expenses; B, P, S;
B, P, S; OR 2.Pay value of subsidiarily
~j 1. Acqutre
. 1. Recover 1.R~cover 2.Sell to B, p materials to from LO;
l.c improvement necessary value from B, except: if the OM and pay 2.Collect
f without expenses P, S (as if value is him damages damages;
l/ paying for
s(CIVIL
 iHMii& \ 1

MEM✓Q~Y AID
San Beda University Co«ege of law - RGCT Bar Operations Center

APPLICATION OF THE RULES

Art. 447 applies when the owner of the pro.per:ty
uses the materials of another -- whether
personally or through another. It does not refer to
considerably CODE, Arts. 3.lf B, P, S the instance when a possessor builds on the property
more; 546 and acquires of another (Macasaet vs. Macasaet, G.R. Nos.
3.Rent to S 447). improvements, 154391-92, September 30, 2004).
(CIVIL remove
CODE, /\1ts. materials in It co11ternplc1tes c1 pri11eipc1I 1:111C.l clfl c1cr.:essory, the lw1J
453, 448, any event being considered the principal and the plantings,
546, 548, and (CIVIL CODE, constructions, orworks, the accessory. The Supreme
455); Arts. 447, and Court considered buildings as the principal and the
4. Subsidiarily 455). lumber and construction materials as the accessory
liable to the (Pacific Farms, Inc. v. Esguerra, G.R. No. L-21783,
owner of November 29, 1969).
materials.
On the other hand, Article 448 applies when a
person builds, sows, or plants in good faith on
the land of another (DE LEON, Property, supra at
152); when he believes that he has the right to build,
1.Acquire w/o 1.Recover 1. Collect value plant, or sow because he thinks he owns the land or
paying necessary of materials believes himself to have a claim of title (Communities
indemnity expenses and Cagayan Inc. v. Sps. Arsenio. G.R. No. 176791,
and collect (CIVIL damages _November 14, 2012).
damages; CODE, · Art. from B, P, S
OR 452, and and Aft; 448 r~fsts to a land whose ownership is
2.Sell to B, P 443); subsidiarily claimeciby'tvi{Q or more parties, one of whom has
and rent to S 2.Lose frQm LO; built some worl<s, or sown or planted something.
and collect improvement 2.Remqve It does not apply; to a case where the owner of the
damages; s without materials in ·. land is the builder, sower, or planter who then later
OR right of.. any event if loses owners~ip of
the land by sale or donation.
3. Demolish or retention B, P, S Where the true owner himself is the builder of the
restore and from LO acquires • · works,'tti~)sStHt9f;gpod faith or bad faith is entirely
collect (CIVIL improvement · irrelevani>tttertil'e'bh good faith laid down in Art. 526
damages; CODE, Art. of the Civil Code shall be applied to determine the
4.Pay 452) unless good faith of the builder in Art. 448 (Pecson v. CA,
necessary LO sells the f:fff?.\Np; 1.15814, May 26, 1995).
expenses to land. ' ' ~ ,~ :(.,.~- """
B, P, S; Thus, although it does not appear from the records of
5. Subsidiarily the case that the appellee (owner of the buildings)
liable to OM owns the land upon which the buildings were erected,
(CIVIL the appellee must bear the obligation to pay for the
CODE, Arts. value of the construction materials; the appellant has
449,450, and the corresponding right to recover the value of the
451). unpaid lumber and construction materials (Pacific
Farms, Inc. v. Esguerra, G.R. No. L-21783,
November 29, 1969).

1.Acquire 1.lndemnity for 1,No indemnity When Co-Ownership is Terminated by Partition

improvements damages 2.Lose The provisions of Art. 448 should apply to determine
pay indemnity 2.Remove materials the respective rights of the parties when it appears
& damages to improvements (CIVIL that the house of an erstwhile co-owner has
B, P, S (CIVIL in any event CODE, Art. encroached upon a portion pertaining to another co-
CODE, Arts. (CIVIL CODE, 449). owner which was however made in good faith (lgnao
454, and 447). Arts. 454 and v. !AC, G.R. No. 72876, January 18, 1991).
447).
The provision on indemnity in Art. 448 may be applied
by analogy considering that the primary intent of the
law is to avoid a state of forc~d co-ownership
especially where the parties agree that Arts. 448 and
~- {?./l' ~/~J ,::1,}:r i,' ~,~~~ ~
9
, 192' ,,,,\ j, ' ' .( ,,
•,"" ; i<:c•· }/ \, ·,:,:,, .'. '!'.
546 are applicable and indemnity for the
improvements may be paid although they differ as to
the basis of the indemnity, It is the current market
value of the improvements which should be made the
basis of reimbursement to the builder in good faith
(Pecson v. CA, G.R. No. 115814, May 26, 1995).
Property Sold by the Government due to
Delinquency
If a property was caused to be sold at a publlc auction
due to non-payment of taxes and the buyer at the
public auction moved not only for the delivery of the
lot but also of the improvements therein, the former
owner of the property is entitled to be reimbursed by
the buyer (Spouses Nuguid v. CA, G.R. No. 151815,
February 23, 2005).
REASON: He is a builder in good faith. He was still
the owner - of the lot when he constructed \he
improvement (Spouses Nuguid v. CA, GR No.
151815, February 23, 2005).
Cases NOT Covered:
1. Other provisions of law (e.g: . usufruct, lease,
agency, co-ownership); · · OPTIONS()F T~E LANDOWNER
EXCEPTION: In case .of tl:lrmihation of co-
ownership, rights provided in Art.' 448 fnay apply
(lgnao v. /AC, G.R. No. 72ff76, January 18,
1991).
. '
Art. 448 does not apply where one's interest in
the land is merely that of a hplder SU(::h.as a mere
lessee under a rental contract (Balucanag v.
Francisco, G.R. No. L-33422, May 30, 1983), ;:rn
agent, or a usufructu9 ry (Mc1casaet vs.
Macasaet, G.R. Nos. 154391,-92, Septemoer,30, ·
2004). , .
Jurisprudence is replete with cases which
categorically declare that Article 448 cove.rs only
cases in which the builders, sowers, or planters
believe themselves to be owners of the land or,
at least, have a claim of title thereto, but not when
the interest is merely that of a holder, such as a
mere tenant, agent or usufructuary. A tenant
cannot be said to be a builder in good faith as he
has no pretension to be owner. In a plethora of
cases, this Court has held that Articles 448 of the
Civil Code, in relation to Article 546 of the same
Code, which allows full reimbursement of useful
improvements and retention of the premises until
reimbursement is made, applies only to a
possessor in good faith, i.e., one who builds on
land with the belief that he is the owner thereof. It
does not apply where one's only interest is that of
a lessee under a rental contract; otherwise, it
would always be in the power of the tenant to
"improve" his landlord out of his property (Parilla
v. Pilar, G.R. No. 167680, November 30, 2006).
PROPERTY
Civil Law
Lessees came into possession of the lot by virtue
of a contract of lease. They are then estopped to
deny their landlord's title or to assert a better title
not only in themselves, but also in some third
person while they remain in possession of the
land until they surrender such possession to the
landlord (Munar v. CA, GR No. 100740,
November 25, 1994).
The estoppel applies even though the lessor had
no title at the time. The relation of lessor and
lessee may also be asserted by the successors
of the original lessor to the latter's title (Feliciano
v. Sps. Zaldivar, GR No. 162593, September
26, 2006).
2. Improvement constructed on one's own land
subsequently sold (Id. at 165-167);
:3. Builder, a belligerent occupant (Id. at 166);
4. · Constructions not in the nature of buildings (Id. at
167); and
of
5. Property public dominion (Id.).
The landowner can c,hoose between appropriating
the building by paying the proper indemnity or
obliging t~e builder. to pay the price of the land, unless
its value· is considerably more than that of the
structures, in which case the builder in good faith
shall pay reasonable rent. If the parties cannot come
to terms over the conditions of the lease, the court
must fix the tenns theteof (Rosales V. Castel/tort,
GR N_o, 157044, Octoper 5, 2005).
The landowner may' not refuse both to pay the
building and to sell the land, and, instead seek to
·compel ,the owne'r of the building to remove the
building from the land. He is entitled to such removal
only when, after having chosen to sell the land, the
other party fails to pay for said land (Ignacio v. Hilaflo,
G.R. No. L-175, April 30, 1946).
Should no other arrangement be agreed upon, the
owner of the land does not automatically become the
owner of the improvement (Filipinas Colleges Inc. v.
Timbang, G.R. No, L-12812, September 29, 1959).
Right to Choose: The option to appropriate the
building or sell the land belongs to the landowner.
Tlie only right of the builder in good faith is the right
to reimbursement, not to compel the owner of the
land to sell. The option is not to buy but to sell.
(Quemuel v. Olaes, G.R. No. L~11084, April 29,
1961).
 E&SIW# \ I
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Reasons Why the Option is Given to the
Landowner:
1. His right is older; and
2. By the principle of accession, he is entitled to the
ownership of the accessory thing (Communities
Cagayan Inc. v. Sps. Arsenio, G.R. No. 176791,
November 14, 2012).
NOTE: Where the builder, planter or sower has acted
in good faith, a conflict of rights arises between the
owners, and it becomes necessary to protect the
owner of the improvements without causing injustice
to the owner of the land. In view of the impracticability
of creating a state of forced co-ownership, the law
has provided a just solution (Depra v. Dumlao, G.R.
No. L-57348, May 16, 1985).
In view of the impracticability of creating a state of
forced co-ownership, the law has provided a just
solution by giving the owner of the land the option to
acquire the improvements aft~r payment of the
proper indemnity, or to oblige the builder or planter to
pay for the land and the sower the proper rent. He
cannot refuse to exercise either option (Communities
Cagayan Inc. v. Sps. Arsenio, G.R. No. 176791,
November 14, 2012).
),w~o:1s,A BUILDER IN GOOD FAITH?
Not even a declaration of the builder's bad faith shifts
the option to him as provided in Art. 45Q of the Civil
Code (Sps. Benitez v. CA, G.R. No. 104$28, January
16, 1997).
Once the choice is made by the landowner, it is
generally irrevocable (Tayag v. Yuseco, G.R. No. l.-
8139, October 24, 1955). · ·
The so-called "workable solution" suggested in the
case of Grana v. CA (G.R. No. L-1248(>, August 31,
1960) where the Court ordered the owner of the land
·. fefeftci one who, not being the owner of the land,
to sell to the builder, etc. the part of the land intruded
upon thereby depriving him of his right to choose
because it would be impractical to choose the first
alternative for the whole improvement might be
rendered useless, is contrary to the explicit provisions
of Art. 448 to the effect that, "(t)he owner of the
land ... shall have the right to appropriate ... or to oblige
the one who built.. .. to pay the price of the land ... "
The law is clear and unambiguous when it confers the
right of choice upon the landowner and not upon the
builder and the courts (lgnao v. /AC, G.R. No. 72876,
January 18, 1991).
NOTE: Art. 448 is not mandatory. There is nothing,
however, in the law to prevent the parties from
agreeing to adjust their rights in some other vvay.
REMEDIES OF THE PARTIES
The following are the remedies of the parties should
the builder in good faith is unable to pay the value of
the land as demanded by the landowner:
1. The parties may decide to leave things as they
are and assume the retention of lessor and
lessee, and should they disagree as to· the
amount of rental, then they can go to the court to
fix that amount;
2. Should the parties not agree to assume the
relation of lessor and lessee, the owner of the
land is entitled to have the improvement
removed; and
3. The land c:Hlll tho irnprovcmcnt rnoy be sold at
public auction, applying the proceeds thereof first
to the payment of the value of the land and the
excess, if any to be delivered to the owner of the
improvement in payment thereof (Filipinas
Colleges, Inc. v. Timbang, G.R. No. L-12812,
September 29, 1959).
NOTE: Jhese alternative remedies shall be
resorted to by the parties when the builder in
good faith fails to pay the value of the land when
such is demanded by the landowner. Take note
too that the options of the landowner under Art
448 are alternative and exclusive. (Filipinas
Colleges, Inc. v. Timbang, G.R. No. L-12812.
September 29, 1959).
1
To be considered a builder in good faith, it is essential
that a persoh asserts title to the land in which he
builds. ie., that he be a possessor in the concept of
an owner and that he be unaware that there exists in
his title or mode of acquisition any flaw which
invalidates _ ffd'(Spduses de Vera v. Spouses
· Mayandoe;:$:'Rff>'Nd. 211170, July 3, 2017).
Toe, terms builder, planter, or sower in good faith as
,u~diin reference to Article 448 of the Civil Code,
builds, plants, or sows on that land believing himself
to be its owner and unaware of the defect in his title
or mode of acquisition. The essence of good faith lies
in an honest belief in the validity of. one's right,
ignorance of a superior claim, and absence of
intention to overreach another. On the other hand,
bad faith may only be attributed to a landowner when
the act of building, planting, or sowing was done with
his knowledge and without opposition on his part
(Delos Santos v. Abejon, G.R. No. 215820, March 20,
2017).
Good Faith May co-exist with Negligence
Good faith does not necessarily preclude negligence,
for, in fact, in negligence there is no intention to do
wrong or cause damage unlike in bad faith which
presupposes such intention (DE LEON, Property,
supra at 177).

Articles 448 and 546 on builders in good faith is
not applicable to cases covered . by the
Condominium Code
Articles 448 and 546 of the Civil Code on builders in
good faith are inapplicable in cases covered by the
Condominium Act where the owner of the land and
the builder are already bound by specific legislation
on the subject property (the Condominium Act), and
by contract (the Master Deed and the By-Laws of the
condominium corporation). The raison d'etre for this
is where the builder, planter or sower has acted in
good faith, a conflict of rights arises between the
owners, and it becomes necessary to protect the
owner of the improvements without causing injustice
to the owner of the land (Leviste Management
System, Inc., vs. Legaspi Towers 200, Inc., G.R. No.
199353, April 4, 2018).
ACCESSION NATURAL
1. ALLUVION OR ALLUVIUM (CIVIL ~ODE,
Arts. 457 and 458) .. ·:
- increment gradually received by. lancls abutting .
rivers as a result of the current of th·e waters . ·
Accretion - the process by whict,a.rip~riah~land ..
gradually and imperceptibly Jec¢1ves addition
made by the water to whi<;h the ifo'id is dontiguous
.· . ~
PROP~RTYS
Riparian owner - the owner of the land adjacent
to the river bank
Littoral owner - the owner of lands bordering
the shore of the sea or lake or other tidal waters
If the increment is formed by the action of the sea,
the same is not called alluvium/accretion but
foreshore land. As such, it is part of the public
domain (Heirs of E. Navarro v. /AC, G.R. No.
68166, February 12, 1997).
PROPERTY
Civil Law
ALLUVION V. ACCRETION
Soil deposited on the Process by which the
estate fronting the river soil is deposited.
bank.
Applies only to the soil Broader term.
deposited on river banks.
(2 PARAS, supra at 265-266).
Requisites of Alluvion or Accretion (G-Cae):
a. The deposit or accumulation of soil or
sediment must be Qradual and imperceptible
(iricrease must be comparatively little);
b ..' The -accretion must result from the effects or
action ·C>f. the Current of the water;
c.' r_he lc:!hd' _where 8ccretion takes place is
adjacent to the bank of the river; and
d. The'rivermust continue to .5.xist (2 PARAS,
supra et266). ·
- .. .. ',
REASONS FOR Tl-tE RULE:
a. T:o comp13nsate 1the owner for losses which
they may suffer by erosion;
b. To compensate them for the burdens of legal
. ; ,easemefits;whi,th are imposed upon them;
c. B_ecause it is the owner of the contiguous
Jand who can utilize the increment to the best
advantage; and
d. Because this is the only feasible solution,
• 'sinqe th~'Previous owners can no longer be
\ fdeJitifie'd (Id. at 267-268).
~ ;. '~
' Effects of Accretion on Registered Lands
·· a. In case of diminution of area
Registration under Torrens System does not
protect th_e riparian owners against the
diminution of the area of his registered land
(Viajarv. CA, G.R. No. 77294, December 12,
1988).
b. In case of increase of area
An alluvion is automatically owned by the
riparian owner .from the moment the soil
deposit can be seen, but the additional area
does not automatically become registered
land just because the lot which receives such
accretion is covered by a Torrens title. The
riparian owner must register the additional
area within 50 years (Heirs of E. Navarro v.
/AC, G.R. No. 68166, February 12, 1997).
 @e \ I
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NOTE: Ownership of a piece of land is one
thing; registration under the Torrens system
of that ownership is another (Delos Reyes v.
Municipality of Kalibo, Aklan, G.R. No.
214587. February 26, 2018).
Article 84 of the Spanish Law of Waters of
1866 specifically . covers ownership over
alluvial deposits along the banks of a creek.
It reads: /\RT. 81. /\ccrotions dopositod
gradually upon lands contiguous to creeks,
streams, rivers, and lakes, by accessions or
sediments from the waters thereof, belong to
the owners of such lands. Interestingly,
Article 457 of the Civil Code states: Art. 457.
To the owners of lands .adjoining the banks
of rivers belong the accretion which they
gradually receive from the effects of the
current of the waters. It is therefore explicit
from the foregoing provisions that alluvial
deposits along the banks of a creek do not
form part of the public domain as the alluvial
property automatically belongs to the owner_
of the estate to which it may have been
added. The only restriction provided for by
law is that the owner of the adjoining property
must register the same under the Torrens
system; otherwise, the alluvial property may
be subject to acquisition through prescription
by third persons (Office of the CityMayor of
Paraflaque City v. Ebio, GR. No. 17?411,
June 23, 2010).
NOTE: Lands acquired by accretion as provided
in Art. 457 is not lost upon th€/. sudden and
abrupt change of course by the river and
separated to the other side (Agustin v. /AC, G.R.
Nos. L-66075, July 5, 1990). In the absence of
evidence that the change in the course of the
river was sudden. the presumption :js tb,~t the
change was gradual and was caused by alluvium
and erosion (Payatas-Estate Improvement Co. v.
Tuason, G.R. No. 30067, March 23, 1929).
NOTE: In the absence of evidence that the
change in the course of the river was sudden or
that it occurred through avulsion, the
presumption is that the change was gradual and
was caused by alluvium and erosion (Bagaipo v.
Court of Appeals, G.R. No. 116290, December 8,
2000).
Deposit Caused by Human Intervention Not
Covered
A riparian owner does not acquire the addition to
his land caused by special works (e.g. dikes)
expressly intended by him to bring about
accretion (i.e., for reclamation purposes) and not
to protect his property from the destructive force
of the waters of the river (Republic v. CA, G.R.
No. L-61647, October 12, 1984).
Art. 457 excludes all deposits caused by human
intervention. Alluvion must be the exclusive work
of nature (Vda. De Nazareno, et al. V. CA, G.R.
No. 98405, June 26, 1996).
Effect of Public Service Constructions or
Easements on River Banks
a. If a public service construction, like a railroad
or a road, is made on a river bank, it is the
government or the railroad company which
will own the accretion.
b. If instead of a public service construction,
there is only an easement for the benefit of
navigation, floatage, fishing, and salvage, the
right of the riparian owner subsists because
in easements, the owner of the servient
estate does not lose his ownership over the
portion covered (2 PARAS, supra at 269-
270).
Estates Adjoining Ponds or Lagoons
The owners of estates adjoining ponds or
;½~go11s,,~@ not acquire the land left dry by the
nafural'O:'<fi'Jtrease of the waters, or lose that
i~undatec{t5y them in extraordinary floods (CIVIL
CODE, jrt: 4.58).
Definition~:
a. Pond•.
i,~~~Cil¥:9[~1f!gnant water without an outlet
,,:, :><~(~,;f~·t:l'.~ :· . ,.
Lagoon
- a small lake, ordinarily of fresh water and
. not very deep, fed by floods, the hollow bed
,;ofwhich is bounded by the elevation of the
land
c. Lake
- a body of water formed in depressions of
the earth, ordinarily fresh water, coming from
rivers, brooks, or springs and connected by
them to sea
NOTE: This provision refers to ponds and
lagoons, and therefore has no application to
lakes (2 TOLENTINO, supra at 129).
2. AVULS/ON
The transfer of a known portion of land from one
tenement to another by the force of the current.
The portion of land must be such that it can be
identified as corning frorn a definite tenement
(CIVIL CODE, Art. 459).
Also called "force of the river'; since it implies a
violent tearing or breaking away.
 PROPERTY
Civil Law

It may also be reterred as "delayed accession" in ALLUVIUM V. AVULSION

the sense that if the owner abandons the soil
involved or fails to remove the same within two
years, the land to which it has been attached
acquires ownership thereof (2 PARAS, supra at
271). Gradual and Sudden or abrupt
imperceptible process
Art. 459 can be applied by analogy in case a
known portion of a land is transferred from one
estate to another by forces of nature other than
thA current of A rivAr (DF I EON, Propertv, supra
at 178). Soil cannot be Identifiable and
identified verifiable

Belongs to the owner Belongs to the owner

of the property to from whose property it
which it is attached was detached

(2PARAS, supra at 275).

· Removal -Within Two (2) Years: The owner

musfren)ove (not merely claim) the transported
PROPERTYB portion within·. two years to retain ownership
(CIVIL CODE, Art.'459).

Reasons fot Removal

Requisites (CSK):
a. The segregation :and . · transfer ,must be
caused by the f.urrenf of a river; creek or
torrent; •,
b. The segregation and transfer must be
~udden or abrupt; and
c. The portion of land transported must be
_!Snown or identified (Id.at
189). • ,
Current -the continuous movementofgbpdy of
water, often horizontal, in a certain direction (Id.
at 190).
River - a natural stream of water, of greater
volume than a creek or rivulet flowing, in a more
or less permanent bed or channel, between well-
defined banks or walls, with a current which may
either be continuous in one direction or affected
by the ebb and fldw of the tide (Id.).
Creek - a small stream less than a river; a recess
or inlet in the shore of a river, and not a separate
or independent stream though it is sometimes
used in the latter meaning (/d.).
Torrent- a violent, rushing, and turbuleAt stream
a. The segregated portion is usually very small;
b. If the are~ is large there is a need to claim for
its:value within t\i.to (2) years;
c. If there is•'flO need for claim, ill feeling may
arise b~tweeri the neighbors;
To
ct: prevent legal absurdities; .
,e. · To prevent permanent attachment; and
•·. f. The principle is similar to that underlying Art.
460(2PARAS, supra at 276-277).
Rufo on Uprooted Trees
Trees- uprooted and carried away by the current
of the waters belong to the owner of the land
upon which they may be cast, if the owners do
not claim them within 6 months (CIVIL CODE,
Art. 460).
If such owner claims them, they shall pay the
expenses incurred in gathering them or putting
them in a safe place (CIVIL CODE, Art. 460).
The 6-month period is a condition precedent and
not •a prescription. After a claim is made within 6
months, an action may be brought within the
prescription period provided under Art. 1140.
 iWM4D '
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: ,; . ~ ' . ~- 197 ,,
l , ,., ,,.:" ,i"

If he has incurred expenses for preserving them, as

when he gathered them in a safe place for eventual
return, or when he transplants them, only for
preservation purposes, he is entitled to
indemnification.

If he has done nothing, he cannot demand

indemnification unless he has suffered in any way
and th.e real owner benefited (2 PARAS, supra at
280).

In case of uprooted trees, the owner · retains

ownership if he makes a claim within six (6)_ months.
This does not include trees which remajn planted on
a known portion of land carried by the force of the
waters. In the latter case, the trees are regarded as
accessions of the land through gradual changes in
the course of adjoining stream (Payatas Estate
Improvement Co. v, Tuason, G.R. No. 30067, March
23, 1929).
If the owner of the land upon which the trees have NOTE: If the tree is still attached to the portion of the
been cast, transplanted them on his own land, the land transferred to the other estate, Art. 459 on
former owner may still recover the same within the avulsion applies and not Art. 460.
period of 6 months (3 MANRESA, 244 as cited in 2
PARAS, supra at 273).

Indemnification of Owner of the Land Upon Which

Uprooted Trees may have been Cast
Trees uprooted and carried away by the current of the
waters belong to the owner of the land upon which
they may be cast, if the owners do not clc1im them
within six months. If such owners claim them, they
shall pay the expenses incurred in gathering them or
putting them in a safe place (CIVIL CODE, Art. 460).
 PROPERTY
Civil Law

3. CHANGEOFCOURSEOFruVERS "River beds which are abandoned" means that

where there is abandonment by the government
l.·ru1;.,
. ,~' of its right over the old bed, the owner of the
.... invaded land automatically acquires ownership of
/" the same without the necessity of any formal act
/ OldRlve on his part. No positive act is needed on their
~ Bed part, as it is subject thereto ipso jure from the
/' moment the mode of acquisition becomes
evident (2 TOLENTINO, supra at 137).

'1n proportion to the area lost" contemplates

two or more owners whose lands are occupied by
the new bed. If only one owner has lost, he gets
the entire abandoned river bed (2 PARAS, supra
Estate A
at281).

It does not apply to cases where the river simply

The owner of estate A owns the old river bed in dries up because there are no persons whose
proportion to the area lost or occupied by the new lands are occupied by the waters of the river. The
bed on his land. new river bed thus formed become of public
dominion (Id.).
Rules:
a. River beds which are abandoned through thB 4. FORMATlON OF ISLAND BY THE
natural change in the cour~e ol th~·waters . BRANCHING OFF OF A RIVER
ipso facto belong to the dwners. whose, lands · · · · Whenever the current of a river divides itself into
are occupied by the new course in proportion branches, leavin·g a piece of land or part thereof
to the area lost; · · · isolated, tpe owher of the land retains his
ownership. t1e alSOTetains it if a portion of land is
"Ipso facto" - the prejudiced owner separated fr'gm the •,estate by the current (CIVIL
automatically becomes the owner of the CODE, Art. 463). .
abandoned river bed (DE LEON, Property,
supra at 191). ·
PROPERTY A
.,,.
/
b. The owners of the land iid)ciining the old bed / / B ,
shall have the right tp acquire the same by / /
/ OLD RIVER ISOLA TED ..
paying the value thereof, which value shall BED _, LAND .
not exceed the value oft.he area opcuQied by, . ·. I
the new bed {CIVIL CODE, Art. 461); flhd .

c. Whenever a river, changing its course by

natural changes, opens a new bed through a
private estate, this bed shall become of
public dominion (CIVIL CODE, Art. 462).

Requisites: (CA 2PE)

a. There must be a natural _Qhange in the
course of the waters of the river; otherwise, There is isolation where the portion has not
the bed may be the subject of a State grant physically moved. There is separation when
(REYES-PU NO, An Outline of the Philippine such portion has physically moved (2 PARAS,
Civil Law, (1964), p.54 [hereinafter REYES- supra, at 233).
PUNO, Philippine Civil Law]);
b. The change must be ~bn.ipt or sudden; NOTE: The piece of land formed by isolation or
c. There must be Abandonment by the owner separation belongs to the owner of property 8
of the bed i.e., a" decision not to bring back since no accession takes place. He retains
the river to the old bed (Id. at 53); ownership over the land (Id.).
d. The change must be fermanent; the rule
does not apply to temporary overflowing; and
e. The river continues to gxist (2 PARAS, supra
at 283-284).
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5. FORMATION OF ISLANDS BY
SUCCESSIVE ACCUMULATION OF RIGHT OF ACCESSION
ALLUVIAL DEPOSITS
a. If formed on the sea:
WITH RESPECT TO
i. Within territorial waters - the island/s PERSONAL PROPERTY
belong/s to the state; said island/s is/are
considered patrimonial property ( CIVIL (ARTS. 466-4 75)
CODE, Art. 464).
ii. Outside territorial waters - to the first
occupant; this is in occurdance with the
Basic Principle: Whenever the things united can be
principles of Public International Law for
separated without injury, their respective owners may
discovery and occupation considered as
demand their separation (CIVIL CODE, Art. 469).
a definite mode of acquiring territory.
Accession exists only if separation is not feasible.
b. If formed in lakes, or navigable or floatable
rivers - State; also a patrimonial property
(CIVIL CODE, Art. 464). KINDS:
1. ADJUNCTION/CONJUNCTION (CIVIL
Navigable or floatable river - if useful for CODE, Arts. 466-471)
floatage and commerce, whether the tides - The union of two movable things belonging to
affect the water or not; should benefit trade different owners, in such a manner that they
and commerce (2 PARAS, supra at 233). cannot be separated without injury, thereby
forming a single object (DE LEON, Property,
c. If formed on non-navigable or non-floatable supra at 197).
rivers:
i. If nearer to one margin or bank - to the Requisit~s: (MUI)
nearer riparian owner (CIVIL CODE, Art. · El-; ,Jhere'.i
are two Movables belonging to
465). different owners;
b. They tire .!J_nited in such a way that they form
a single Qbject; and
c. They are so !nseparable that their separation
would; impair their nature or result in
sobstantial injury to either component (Id. at
t9l3)f . ,, ·n;, ·
. ·~ ·. l-'

NOTE: The application of the rule of accessorium

... ,. s_equitur principale ("the accessory follows the
' hf:tpdn<;:ipc1I") must give way to any express or
' ' .;; knptiecf "agreement of the owners as to the
ownership of the new object (2 TOLENTINO,
supra at 142).
REASON: The nearer margin has the
Kinds: (ISEPT)
better chances of developing the island
a. !nclusion or engraftment (e.g. when a
in the interest of agriculture (2 PARAS,
diamond is set on a gold ring);
supra at 244).
b. §oldadura or soldering (e.g. when lead is
united or fused to an object made of lead);
ii. If equidistant from both banks - to the
i. Ferruminacion - if both the accessory
riparian owners, by halves (CIVIL CODE,
and principal objects are of the same
Art. 465).
metal; or
ii. Plumbatura - if the accessory and
principal objects are of different
materials.
c. Jg_scritura or writing (e.g. when a person
PROPERTY writes on a paper belonging to another);
B
d. f_intura or painting (e.g. when a person paints
on a canvas belonging to another); and
e. Iejido or weaving (e.g. when threads
belonging to different owners are used in
making textile) (DE LEON, Property, supra at
198).

Tests to Determine Principal in Adjunction:
a. Test of Intention - the principal thing, as
between two things incorporated, is deemed
to be that to which the other (accessory) has
been united as an ornament or for its use or
perfection (r;;tVIL CODE, Art. 467);
b. If it cannot be determined by the rule given in
Art. 468:
If the two things are of unequal values - the
thing of greater value shall be considered the
principal;
If they are of equal values - the thing of
greater volume shall be considered the
principal (CIVIL CODE, Art. 468).
NOTE: In all cases, sentimental value shall be
duly appreciated (CIVIL CODE, Art. 475).
With reference to a motor vehicle, the.·ehgine.
may be considered as the principal, all the.other·
parts of the vehicle being regarded as· mere
accessories (2 PARAS, supra.at 293),
SPECIAL RULE; In painting. a~' sculpture,
writings, printed matter, .engraving and
lithograph, the board, metal, J stone; canvas,
paper, or parchment, .. shgll be de~med the
accessory thing (CIVIL CObE; Art. 46{3). This is
based on the considerationJhat what is painted,
etc. is of greater valuEi or importance than the
board, etc. (DE LEON, Prop~rty, supr(} 9 t 199).
NOTE: Since the specJal rule. specifies · the
special cases, analogous .. cases which are not
enumerated should not be solved analogously,
but in accordance with the gent;lral tests"provided
for in Arts. 476 and 468, first. paragraph (2 ..
PARAS, supra at 293). · ' · ·
2. ~IXTlJRE
Rules on who is Entitled:
a. Ad}unction in good faith by either owner
GENERAL RULE: Accessory follows the
principal.
EXCEPTIONS (SP):
i. · If the accessory can· be ~eparated
without injury, their respective owners
may demand their separation (CIVIL
CODE, Art. 469); and
ii. If the accessory is much more ~recious
than the principal, the owner of the
accessory may demand the separation
even if the principal suffers some injury
(CIVIL CODE, Art. 469).
PROPERTY
·civil Law
b. Adjunctlon in bad faith by the owner ot
the principal
The owner of the accessory thing shall have
a right to choose between:
i. The principal paying him its value; or
ii. The thing (accessory) belonging to him
be separated, even though for this
purpose it be necessary to destroy the
principal thing (CIVIL CODE, Art. 470).
In either case, the principal shall be liable
for damages (CIVIL CODE, Art. 470).
c. Adjunction in bad faith by the owner of
the accessory
Whenever the owner of the accessory thing
has made the incorporation in bad faith:
i. He shall lose the thing (accessory)
incorporated; and
ii. He shall have the obligation to indemnify
the owner of the principal thing for the
··damages he may have suffered (CIVIL
CODE, Art. 470).
d.. Adjunction in bad faith by both owners
If either one of the owners has made the
ibcorporajtion with the knowledge and without
the objection of the other, their respective
· rtghts shall be determined as though both
a.cted in good faith (CIVIL CODE, Art. 470).
In such case,. apply Arts. 466 to 499.
Form of lndemnityfto Owner of Material
Whenever the owrter of the material employed
w\thout hi$' consent has a right to an indemnity,
he may demand that this consists in the:
1: Delivery of a thing equal in kind and value;
2. Payment of price as appraised by experts
(CIVIL 'CODE, Art. 471).
- It takes place when 2 or more things belonging
to different owners are mixed or combined with
the respective identities of the component parts
destroyed or lost (DE LEON, Property, supra at
203).
NOTE: As distinguished from adjunction, there is
in mixture greater inter-penetration or
decomposition of the objects that have been
mixed (Id.). ·
Kinds:
a. Commixtion - mixture of solids
b. Confusion - mixture of liquids
Rules:
a. Mixture by will of the owners:
i. Primarily, their rights should be governed
b;;<; their stipulations (Id. at 203-204);
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ii. In the absence of any stipulation, each
owner st1all acquire a rigt1t proportional
to the pmt belonyi11y lo hi111, bei:Hi11y i11
mind the value of the things mixed or
confused (CIVIL CODE. Alt. 472).
b. Mixture caused by an owner in good faith or
by chance: Each owner shall acquire a right
proportional to the part belonging to him,
bearing in mind the value of the things mixed
or confused (CIVIL CODE, Art. 472).
c. By one owner in bad faith:
i. He loses all his rights to his own material;
and
ii. He is liable for damages (CIVIL CODE,
Art. 473).
d. With the knowledge and without the objection
of owner: As though both acted in good faith
(DE LEON, Property, supra at 203-204);
e. By the negligence of one of the parties: The
negligent owner is liable for damages (Id.).
3. SPECIFICATION
One who in good faith employs the material of
another in whole or in part in order to make a
thing of a different kind shall appropriate the thing
thus transformed as his own, indemnifying the
owner of the material for its value (CIVIL CODE,
M4~.
The transformation of another's material by the
application of labor. The material becomes a
thing of different kind. Labor is the principal (2
PARAS, supra at 299).
Example: Using the paint of another to make a
painting on your own canvas (Id.).
NOTE: If you use your own paint on the canvas
of another, this is adjunction. Reason: the canvas
is considered the accessory in Art 4E?8 on
adjunction (Id.).
the following option with a right to indemnity
for damages:
1. Aµµ1oµriate tt,e new thing without paying
the owner of the material; or
ii. Require the owner of the material to pay
him the value of the thing or value of his
work or labor (DE LEON, Property, supra
at 210).
c. Owner of the principal (worker) in bad faith.
the owner of the material has the option:
i. Io appropriate the work to himself
without paying anything to the maker; or
ii. To demand of the maker that he
indemnify him for the value of the
material and the damages that he may
have suffered (CIVIL CODE, Art. 474).
EXCEPTION TO THE EXCEPTION: The owner
of the material cannot appropriate the work in
case the value of the latter, for artistic or scientific
reasons, is considerably more than that of the
material (CIVIL CODE, Art. 474).
Form of Indemnity to Owner of Material
":Whenever. the owner of the material employed
w1thoiit.his, consent has a right to an indemnity,
. he may dernand that this consist in the:
1. Delivery of a thing equal in kind and value;
2. Payment of price as appraised by experts
(CIVIL CODE, Art. 471).
NOTE,:,Jo, deterrnining the value, sentimental
va1J~\tn.1S(be taken into account (CIVIL CODE,
Art. 475).
ADJUNCTION V. MIXTURE V.
SPECIFICATION

GENERAL RULE: Involves at Involves at May involve

a. Owner of the principal (worker) in good faith: least two (2) least two (2) one (1) thing
i. Maker acquires the new thing; and things. things. (or more) but
ii. He must indemnify the owner of the form is
material (Id.). changed.
EXCEPTION:
If the material is more precious than the
transformed thing or is of more volue, its
owner may, at his option: Accessory Co- Accflssory
i. Appropriate the new thing to himself, follows the ownership follows the
after first paying indemnity for the principal. results. principal.
value of the work; or
ii. Oem,md indemnity for the material
(CIVIL CODE, Art. 474).
Things Things The new
joined retain mixed or object retains
b. Owner of the principal (worker) in good faith
their nature. confused or preserves
but owner of material in bad faith. Applying
may either the nature of
Art. 470, Par. 2 by analogy, the worker has

retain or lose the original
their object.
respective
natures.
(DE LEON, Property, supra at 212-213).
QUIETING OF TITLE
(ARTS. 4 76-481)
ACTION TO QUIET TITLE
An action for quieting of title is essentially a common
law remedy grounded on equity. The competent court
is tasked to determine the respective rights of the
complainant and other claimants, not only to place
things in their proper place, to make the one who has
no rights to said immovable respect and riot djsturb
the other, but also for the benefit of both, so that he
who has the right would see every cloud bf doubt over
the property dissipated, and he cou[d afterwards
without fear introduce the improvements he may
desire, to use, and even to abuse the property as he
deems best (Mananquil, et. al. v. Moico, G.R. No.
180076, November 12, 2012).
PURPOSE: To secure an adjudication that a claim of
title to or an interest in property, adverse to that of
complainant is invalid, so that the complainant and
those claiming under him may be forever afterward
free from any danger of hostile claim (2 PARAS,
supra at 301).
CLOUD ON TITLE
A semblance of title, either legal or'equitable; or a
claim or a right in real property. appearing in some
legal form but which is, in fact, invalid or which woqld
be inequitable to enforce (DE LEON, Property, supra
at215).
REQUISITES FOR THE EXISTENCE OF
CLOUD ON TITLE (IRCEP-VIP):
1. There is an !nstrument, ,Record, g_laim,
gncumbrance, or e,roceeding (IRCEP);
2. The instrument, claim, encumbrance, or
proceeding is apparently ~alid or effective;
3. Such instrument, etc. is in truth and in fact,
Invalid, ineffective, voidable, or unenforceable, or
has been extinguished or terminated, or has
been barred by extinctive prescription; and
4. Such instrument, etc. may be ,Erejudicial to said
title (CIVIL CODE, Arts. 476 and 478).
PROPERTY
Civil Law
GENERAL RULE: Only re,-il µroperty could be the
subject matter of quieting of title (DE LEON, Property,
supra at 217).
EXCEPTION: Certain personal properties like
vessels may be the object of quieting of title (Id.),
NATURE: Actions for quieting of title are neither suits
in rem nor suits in personam. They are suits against
a particular person in respect to the res and the
judgment will apply only to the property in dispute.
They are suits quasi in rem (Realty Sales Enterprise,
Inc. v. /AC, G.R. No. L-67451, September 28, 1987).
Actions quasi in rem deal with the status, ownership
or liability of a particular property but which are
intended to operate on these questions only as
between the particular parties to the proceedings and
not to ascertain or cut off the rights or interests of all
possible claimants. The judgments therein are
binding only upon the parties who joined in the action
(Spouses Pozon v. Lopez, G.R. No. 210607, March
25, 2019):'
KINDS OF ACTION REFERRED TO (REP):
1. Remedial
- An ·action to remove the cloud or to quiet title to
real property or an interest therein (CIVIL"CODE,
Art. 476, par. 1);
2. Extinctive
- An actior) to quiet title or remove cloud
therefrom when the contract, instrument, other
obligation has beeh extinguished or has been
terminated or has been barred by extinctive
prescription (CIVIL CODE, Art. 478); and
3. Preventive ·
- An action to prevent a future cloud or doubt
frorn. being cast upon the title to real property or
an interest_ therein (CIVIL CODE, Art. 476, par.
2).
·
REASONS FOR ALLOWING THE
ACTION:
1. The prevention of litigation;
2. The protection of the true title and possession;
and
3. The promotion of right and justice (2 PARAS,
supra at 486).
REQUISITES FOR AN ACTION TO QUIET
TITLE TO PROSPER: {LCD)
1. Plaintiff must have a ,begal or equitable title to, or
interest in the real property, which is the subject
matter of the action, but he need not be in
possession of the property (CIVIL CODE, Art.
477).
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QUIETING OF TITLE V. REMOVING OF

In order that an action for quieting of title may CLOUD V. PREVENTING A CLOUD
prosper, the plaintiff must have legal or equitable
title to, or interest in, the property which 1s the
subject matter of the action. While legal title
denotes registered ownership, equitable title
means beneficial ownership. In the absence of
such legal or equitable title, or interest, there is
To put an end To procure the To remove
no cloud to be prevented or removed. Likewise,
to vexatious cancellation, possible
the plaintiff must show that the deed, claim,
litigation with delivery, foundation of
encumbrance, or proceeding that purportedly
respect to the release of an a future
casts a cloud on their title is in fact invalid or
property instrument, hostile claim.
inoperative despite its prima facie appearance of
involved. encumbrance
validity or legal efficacy (Delos Reyes v.
or claim, which
Municipality of Kalibo, Aklan, G.R. No. 214587,
constitutes a
February 26, 2018).
claim in
plaintiffs title,
In the absence of such legal or equitable title, or
and which may
interest, there is no cloud to be prevented or
be used to
removed (Spouses Basa v. De Senly Loy, G.R.
injure or vex
No. 204131, June 4, 2018).
him in his
enjoyment of
The Court ruled that a judgment debtor who failed
his title.
to redeem the property within the time provided
for had lost whatever right he had over the land
in question. Certainly, he no longer possessed
any legal or equitable title to or interest over the Remedial· -in Preventive in Preventive in
parcels of land; hence, he cannot validly maintain nature, nature, in nature, in
an action for quieting of title (Lucasan v. involves a order to ordJ:Jr to
Philippine Deposit Insurance Corporation G.R. present remove cloud prevent a
No. 176929, July 4, 2008). adverse which may be future cloud.
claim. used for future
2. There must be a ~loud in such title;

3. Such cloud must be Que to some instrument,

record, claim,_ encumbrance or proceeding which
is apparently valid or effective but is in truth -Plaintiff Plaintiff No claim yet.
invalid, ineffective, voidable or unenforceable, .asserts own declares his
and is prejudicial to the plaintiff's title (CIVIL claim and own claim and
CODE, Art. 476). declares that title, and at the
the claim of same time
There may also be an action to quiet title or remove the defendant indicates the
a cloud there from when the contract, instrument or is unfounded source and
other obligation .has been extinguished or has and calls on nature of
terminated, or has been barred by extinctive the defendant defendant's
prescription (CIVIL CODE, Art. 478). to justify his claim, pointing
claim on the its defect and
REQUISITES FOR AN ACTION TO property for praying for the
the court to declaration of
PREVENT A CLOUD ON TITLE (TBA): determine the its invalidity.
1. Plaintiff has a Iitle to a real property or interest same.
therein;
2. Defendant is ~ent on creating a cloud on the title
or interest therein. The danger must not be
merely speculative or imaginary but imminent; Filed against Filed against No claim yet.
and people who defendants
3. Unless the defendant is restrained br stopped, have who assert
the title or interest of the plaintiff will be prejudiced claims which claims based
or ~dversely affected (DE LEON, Property, supra are more on an invalid
at 217). instrument

general in (but not
nature. apparent).
(Id. at 223-229).
Not a collateral attack on title
Raising the invalidity of a certificate of title in an action
for quieting of title is NOT a collateral attack because
it is central, imperative, and essential in such an
action that the complainant shows the invalidity of the
deed which casts cloud on the title (Filipinas Es/on
Manufacturing Corp. vs Heirs of Basilio Llanes, G.R.
No. 194114, March 27, 2019).
PRESCRIPTIVE PERIOD:
1. Plaintiff in possession
- lmprescriptible, because the owner is given the
continuing aid by the court to ascertain and
determine the nature of such claim and its effect
on his title. He can wait until his possession is
disturbed and attacked before taking steps to
vindicate his right (Coronel v. !AC, GR. No.
70191, October 29, 1987).
2. ·Plaintiff not in possession
- 1O years (ordinary) or 30 years (extraordinary)
or estoppel by /aches will be applicable (DE
LEON, Property, supra at225).
An action for reconveyance based on implied
trust partakes the nature of an action for quieting
of title if the plaintiff remains in possession of the
subject property, thereby making the ·action
imprescriptible .
The Court, in a catena of cases, has. permitted the
filing of an action for reconveyance despite the lapse
of more than ten (10) years from the issuance of title.
· The common denominator of these cases is that the
plaintiffs therein were in actual possession of the·
disputed land, converting the action from
reconveyance of property into one for quieting of.title.
lmprescriptibility is accorded to cases for quieting of
title since the plaintiff has the right to wait until his
possession is disturbed or, his title is questioned
before initiating an action to vindicate his right
(Ocampo v. Ocampo, Sr., G.R. No. 227894, July 5,
2017).
THE ACTION TO QUIET TITLE DOES NOT
APPLY (BIC-SIQ):
1. To ~oundary disputes;
The courts cannot, in an action for q'uieting of title,
order the determination of the boundaries of the
claimed property, as that would be tantamount to
awarding to one or some of the parties the
disputed property in an action where the sole
issue is limited to whether the instrument, record,
claim, encumbrance or proceeding involved
PROPERTY
Civil Law
constitutes a cloud upon the petitioners' interest
or title in and to said property (Vda. de Aviles v.
CA, GR. No. 95748, November 21, 1996).
2. To questions involving !nterpretation of
documents;
3. To mere written or oral assertions of Claims,
except if made in a legal proceeding;
4. If it is being asserted that the instrument or entry
in plaintiff's favor is not what it purports to be;
5. To deeds by ~!rangers to the title unless
purporting to convey the property of the plaintiff;
6. To instruments !nvalid on their face; and
7. Where the validity of the instrument involves pure
Questions of law (2 PARAS, supra at 315).
NOTE: The possession of the actual possessor must
be respected during the pendency of the case for
quieting of title (Balbecino v. Judge Ortega, GR. No.
L-14231, April 28, 1962).
Duty of Plaintiff to Return Benefits and Expenses:
The plaintiff must return to the defendant all benefits
he may have received from the latter, or reimburse
him for expenses that may have redounded to the
plaintiff's benefit (CIVIL CODE, Art. 479).
Restoration is requited whenever the complainant is
shown to be · morally bound to reimburse the
defendant. Even if the debt is not enforceable by
reason of the statute of limitations, payment may be
required by the court (DE LEON, Property, supra at
229). .
REASON: "He who seeks equity must do equity"
(Id.).
PURPOSE: To quiet title, not to obtain pecuniary
interest (Id.).
RUINOUS BUILDINGS
AND TREES IN DANGER
OF FALLING
(ARTS. 482-483)
AS TO BUILDINGS:
If a building, wall, column, or any other construction
is in danger of falling, the owner shaJI be obliged to
demolish it or to execute the necessary work in order
to prevent it from-falling. (CIVIL CODE, Art. 482, Par,
1).
If the proprietor does not comply with this obligation,
the administrative authorities may order the
 @Mbfii,&D \ I

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demolition of the structure at the expense of the
owner, or take measures to insure public safety
(CIVIL CODE, Art. 482, Par. 2). .
The complainant must show that his property is
adjacent to the dangerous construction, or must have
to pass by necessity in the immediate vicinity.
the entire land or thing. (Uy v. Estate of Vipa
Fernandez, G.R. No. 200612, April 5, 2017).
The nature of possession of a co-owner is like that of
a trustee and shall not be regarded as adverse to the
other co-owner but in fact beneficial to all of them
(Salvador v. CA, GR. No. 109910, April 5, 1995).

Lack of knowledge of the falling condition of the As the right of common dominion which two or more
structure will not excuse the owner from liability. persons have in a spiritual part of a thing not
materially or physically divided (Sanchez v. CA, GR
The proprietor of a building or structure is responsible No. 108947, September.29, 1997).
for the damages resulting from its total or partial
collapse, if it should be due to the lack of necessary REQUISITES: (POL)
repairs. (CIVIL CODE, Art. 2190). 1. ~lurality of owners;
2. The Qbject of ownership must be a thing or right
For damages caused by defects in the construction, which is undivided; and
the contractor is responsible for the damages within 3. Each co-owner's right must be .!:imited only to his
15 years from the completion of the same (CIVIL ideal share of the physical whole (DE LEON,
CODE, Art. 1723). Property, supra at 233).

AS TO TREES: CHARACTERISTICS: (PNoCS-LeG)

Whenever a large tree threatens to fall in such a way 1.
as to cause damage to the land or tenement. of 2.
another or to travelers over a public or private road,
the owner of the tree shall be obliged to fell and
3:
remove it; and should he not do so, it shall be done
at his expense by order of the administrative 4.
authorities. (CIVIL CODE, Art. 483).
5.
If damages were caused by the falling of trees 6.
situated at or near highways or lanes, the owner of
the tree is liable for damages under the law on quasi-
delict if it is not caused by force majeure (CIVIL
CODE, Art. 2191, Par. 3).
flurality of subjects/owners;
There is No mutual representation by the co-
owners;
It exists tor the ~ommon enjoyment of the co-
owners;
There is a §_ingle object which is not materially
divided; .
It has no distinct Legal personality; and
It is §overned first of all by the contract of the
parties; otherwise, by special legal provisions;
and · ip, default of such provisions, by the
provisions of Title Ill on co-ownership (Id. at
234).

SOURCES: (C 2 LOST)
1 . ~ ontract;
CO-OWNERSHIP 2. ~hance;
(ARTS. 484-501) 3. !:aw;
4. Qccupation;
5. §uccession; and
6. Iestamentary disposition or donation inter vivas
CO-OWNERSHIP (Id. at 236-237).
There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons CO-OWNERSHIP V. PARTNERSHIP
(CIVIL CODE, Art. 484).

By the nature of co-ownership, a co-owner cannot

point to any specific portion of the property owned in
common as his own because his share in it remains
intangible and ideal (Avila v. Sps. Barabat, G.R. No.
141993, March 17, 2006).

Before the partition of a land or thing held in common,

no individual or co-owner can claim title to any
Has juridical personality
definite portion thereof. All that the co-owner has is
distinct from the partners.
an ideal or abstract quota or proportionate share in
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PROPERTY
Civil Law
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Each co-owner may Each joint-tenant cannot

dispose of his ideal dispose of his own share
share without the without the consent of all
consent of the others. the others.

Co-owner can A partner, unless

dispose of his shares authorized, cannot
without the consent of dispose of his share and
the others with the substitute another as a
transferee partner in his place.
automatically
becoming a co-owner.

Prescription runs Prescription does not run

against all co-owners, against all the joint-
even if one of them tenants, if one of them is
happens . to be a a minor or is under legal
minor. disability.
(Id. at 237-238).
Distribution of profits Distribution of profits is
must be proportional subject to the stipulation RIGHTS OF EACH CO-OWNER AS TO
to the respective of the parties. THE THING OWN.ED IN COMMON:
interests of the co- (US-BRA-PLOP)
owners.
1. To ,!Jse the thing owned in common (CIVIL
CODE, Art. 486):

Limitations: .
a. The co-owner must do so in accordance with
the purpose for which it is intended; and

NOTE: Mere tolerance on the part of the co-

owners cannot legalize the change in the use
of a thing from that intended by the parties.

b. In such a way as not to injure the interest of

the co-ownership or prevent the other co-
owners from using it according to their rights
(CIVIL CODE, Art. 486).

An agreement to keep There may be agreement Illustration: A and B owned in common a two-
the thing undivided for as to a definite term story house. The upper floor was used as a
a period of more than without limit set by law. dwelling; the lower was available for rent by
ten (10) years is void. stores. If A, lives in a room on the upper floor, and
uses a room on the lower floor as an office, can
(Id. at 238-239).
B demand rent?
a. No rent for the upper floor can be demanded,
CO-OWNERSHIP V. JOINT OWNERSHIP for A was exercising her right as co-o'o/1'._ner,
without prejudicing B who, had she wanted,
could have also lived in another room of said
floor, and who therefore could not have been
prejudiced.
Each co-owner owns Each joint-tenant and all b. Half-rental may be demanded for the use of
his ideal share in the of them own the whole the lower floor. Rent could be asked because
whole property. property. others could have rented the same, but only
half should be giveh because A was a co-
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owner (Parde/I v. Bartolome, G.R. No. 4656,
November 18, 1912). · .prejudicial to the co-ownership (CIVIL CODE, Art.
2. To §hare in the benefits and charges in
proportion to the interest of each. Any
stipulation to the contrary is void (CIVIL
CODE, Art. 485).
REASON: It is contrary to the essence of co-
ownership (2 PARAS, supra at 323).
The interests of the co-owners are presumed
equal unless the contrary is proved (CIVIL
CODE, Art. 485).
NOTE: Art. 485 speaks of "stipulation in a
contract." If the co-ownership is created other
than by a contract, such as by will or by donation,
the share of the co-owners need not be
proportionate to their respective interests (2
PARAS, supra at 322).
If a co-owner has paid the taxes to prevent
forfeiture of the common property for tax
delinquency, he could compel contribution from
his co-owners (Id. at 323).
3. To the !!enefits of prescription:
prescription by one co-owner benefits all
(DE LEON, Property, supra at 267).
4. _Repairs and taxes: Each co-owner shall
have a right to compel the other co-
owners to contribute to the expenses of
the preservation of the thing or right
owned in common and to the taxes (CIVIL
CODE, Art. 488).
Repairs for preservation may be made atwill of
one of the co-owners, but he must, if practicable,
first notify his co-owners of the necessity for such
repairs (CIVIL CODE, Art. 489).
The co-owners who should have been notified
will not 'be required to contribute to expenses
which are excessive. They may show, for
instance, that if the required notice had been
given, they could have obtained other means of
effecting the repairs which are not as costly as
that availed of by the co-owner who made or
ordered them (2 TOLENTINO, supra at 179).
Any one of the co-owners may exempt himself
from this obligation by mnouncing so much of his
undivided interest as may be equivalent to his
share of the e~penses and taxes (CIVIL CODE,
Art. 488).
NOTE: No such waiver shall be made if it is
488).
Renunciation is not allowed if the co-ownership
will be prejudiced, as in the case of a house which
is badly in need of repairs in order to prevent a
collapse, the waiver in this case is void in which
case the· other co-owner may proceed to have it
repaired, and the co-owner who has made a
previous renunciation would still be liable (2
TOLENTINO, supra at. 177).
Rules on Renunciation:
a. If the renunciation is in favor of the co-owner
creditor who has not yet been paid, said
creditor must give consent. This is a case of
dacion en pago;
b. If the renunciation is made in favor of the co-
owner/s, a novation (in the form of
substitution of debtor/ subjective novation)
would result. Thus, consent of said other co-
owner/s and of the creditor is required (2
PARAS, supra at 333).
Note: The; creditor's consent would be needed
Only if expenses have already been incurred,
otherwise, tt;iere would be as yet no creditor (DE
LEON, 2011, Property, supra at
245).
Reimbursement covers only necessary expenses
·
(2 PARAS, supra at 333).
5. T O:¢on!>eJ1t to'alterations: None of the co-
owriers· sfjalltwithout the consent of the
others, make alterations in the thing
qwned in common, even though benefits
fc:>,r_aU yvould result therefrom (CIVIL CODE,
Art. 491). .
However, if the withholding of the consent by one
or more of the co-owners is clearly prejudicial to
the common interest, the courts may afford
adequate relief (CIVIL CODE, Art. 491).
Alteration
An act by virtue of which a co-owner changes the
thing from the state in which the others believe it
should remain, or withdraws it from the use to
which they desire it to be intended. It is not limited
to material or physical changes (2 TOLENTINO,
supra at 192).
NOTE: However, it should not be understood to
include any chanqe which a co-owner may make
in the common p;operty, but only that which
modifies and limits, and above all, prejudices the
condition of the thing or its enjoyment by the
others (Id.).
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For the purpose of legalizing the alteration of the
common property, the consent may be either
express or tacit A co-owner who knows the
alteration but does not interpose any objection is
deemed to tacitly consent to such alteration (Id.).
Effects of an Illegal Alteration:
A co-owner who makes alteration without the
express or implied consent of the other co-
owners acts in bad faith because he does so as
if he were the sole owner. Thus,
a. The co-owner responsible may lose what he
has spent;
b. Demolition can be compelled;
c. He would be liable for losses and damages;
and
d. Whatever benefits the co-ownership derives
will belong to it (3 MANRESA as cited in 2
PARAS, supra at 349).
6. To frotest against seriously prejudicial
decisions of the majority (CIVIL CODE, Art.
492).
7. !:,egal redemption: to be exercised within
30 days from written notice of sale of an
undivided share of another co-owner to a
stranger (CIVIL CODE, Arts. /620 and 1623) ..
8. To Q_efend the co-ownership's interest in
court (DE LEON, Property, supra at 253-255).
Anyone of the co-owners may bring an action for
ejectment (CIVIL CODE, Art. 481).
Art. 487 allows a co-ownerto bring an action for
ejectment which covers all kinds of actions for the
Recovery of Possession, including Forcible Entry
and Unlawful Detainer, without the. necessity of
joining all the other co-owners as co-plaintiffs
because it is deemed to be instituted for the
benefit of all (2 PARAS, supra at 329; Heirs of
Ampil v. Manahan, GR. No. 175990, October 11,
2012).
Only one of the co-owners, namely the co-owner
who filed the suit for the recovery of the co-owned
property, is an indispensable party thereto. The
other co-owners are not indispensable parties.
They are not even neGessary parties, for a
complete relief can be afforded in the suit even
without their participation, since the suit is
presumed to have been filed for the benefit of all
co-owners (Catedrilla v. Lauran, G.R. No.
179011, April 15,2013).
If the action is for the benefit of the plainUff alone,
such that he claims the possession for himself
PROPERTY
Civil Law
and not for the co-ownership. the actiun will not
prosper (Adlawan v. Adlawan, G.R. No. 161916).
9. To demand e_artition at any time (CIVIL
CODE, Art. 494).
GENERAL RULE: Partition is demandable by
any of the co-owners as a matter of right at any
time (CIVIL CODE, Art. 494).
EXCEPTIONS: (SC-LUPA)
a. When there is a .§tipulation against it; but not
to exceed 10 years. However, the term may
be extended as many times as the co-owners
may stipulate but every extension must not
. exceed 10 years (CIVIL CODE, Art. 494);
b. When the fondition of indivision is imposed
by the donor or testator; but not to exceed 20
years (CIVIL CODE, Art. 494);
c. When the !,_egal nature of the community
prevents partition;
d. When partition would render the thing
!!_nserviceable (CIVIL CODE, Art. 495);
e. When .partition is ~rohibited by law (CIVIL
CODE; Art. 494); and
f. When ~nether co-owner has possessed the
property as an exclusive owner for a period
sufficientto acquire it by prescription.
PERPENDICULAR OWNERSHIP
Orie where the different stories of a building belong
to different persons, .as distinguished from an
ordinary case of co-ownership where all the floors
and everything else belong to all co-owners (CIVIL
CODE, Art. 490).
NOTE: The above form of ownership is different from
condominium (DE LEON, Property, supra at 252). A
horizontal co-ownership is one where various units
are ,n one plane as wl)en one-story units all set on
th.e gr◊und (2 PARAS, supra at 332). ·
RULESINTHEABSENCEOFCONTRARY
PROVISION IN THE TITLES OF
OWNERSHIP OR AGREEMENT (CIVIL
CODE, Art. 490):
1. Proportionate contribution is required for the
preservation of:
a.· The main walls;
b. The party walls;
c. The roof; and
d. Other things or areas used in common.
2. Each floor owner must bear the expenses of his
floor.
3. Expenses of all owners pro rata:
a. The floor of the entrance;
b. The front door;
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c. The common yard; modifications made are changes, modific:atiorn,

d. Sanitary works common to all; and simple administration. made are alterations.
e. Stairs from the entrance to the first story.
(2 TOLENTINO, supra at 195).
4, Stairs are to be maintained from story to story, by
the users (stairs from entrance to first story at the 2. Enjoyment; and
expense of all owners aside from the owner of the
ground floor, the stairs from the second story at 3. Improvement or embellishment (DE LEON,
the expense of all except the owner of the ground . Property, supra at ?55)
floor and first story, and so on),
Majority
NOTE: Ground floor, if any, is distinguished from Consists of co-owners who represent the controlling
the first story (2 PARAS, supra at 337), interest in the object of the co-ownership (CIVIL
CODE, 492) i.e., at least more than 50% of the
Ground Floor - The floor of a building most nearly financial interest (DE LEON, Property, supra at 256).
on a level with the ground (MERRIAM-
WEBSTER, 2017). LIMITATIONS:
1. Before a decision is made, there should first be a
First Floor - The floor next above the ground floor notice to the minority so that they can be heard;
(Id.). 2. The maj.ority would be justified in proceeding only
when the urgency of the case and the difficulty of
THE FOLLOWING QUESTIONS ARE meeting with them render impracticable the
DETERMINED BY THE MAJORITY OF giving of such notice; and
INTERESTS: 3. Minority may appeal to the court when:
a. There is no real majority;
1. Administration or Management;
. bi .Decision is seriously prejudicial to individual
rights of co-owners;
Characteristics:
c. There is fraud;
a. Those that do not involve an alteration;
d. Alteration is agreed upon; and
b. Are renewable from time to time;
c. Do not bind the community for a long time in
e. Refusal to correct abuse of administration
(2PARAS, supra, at 357).
thefuture (transitory effect);
d. Do not give rise to a real right over the thing
owned in common (REYES-PUNO, ACTIONS ,Rl;QUIRING THE CONSENT
Philippine Civil Law, supra at 73); .. / OF CO-OWNERS
e. Do not affect the substance or nature of the
thing; and
f. For the common benefit of all (2 PARAS,
supra at 357).

NOTE: Minority may appeal to the court against Alterations or Acts of All of the co-owners
the majority's decision if .the same is seriously Ownership (CIVIL CODE, Art. 491)
prejudicial (CIVIL CODE, Art. 492).
All others (e.g. useful Financial majority of the
ADMINISTRATION V. ALTERATION improvements, co-owners (CIVIL
embellishments, CODE, Arts. 489 and
administration and 492).
better enjoyment).

RIGHTS AS TO THE IDEAL SHARE OF

EACH CO-OWNER (CIVIL CODE, ART.
493)
1. Each has full ownership of his part and of his
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2. Right to substitute another person in its

When nature of a thing When nature of the enjoyment, EXCEPT when personal rights are
requires modification or thing does not require involved or for the purpose of giving the thing a
changes (such as an modification or different use from that agreed upon;
industry or business),

Personal rights - used in its real meaning and not
in its legal or technical sense; it is the right which
cannot be transferred because it affects the
personal relations of the co-owners with one
another.
3. Right to alienate, assign, or mortgage, dispose or
encumber;
4. Right to exempt himself from necessary
expenses and taxes by renouncing part of his
interest in the co-ownership (2 PARAS, supra at
359-360); and
5. He may demand partition of the thing owned in
common, in so far as his share is concerned
(DE LEON, Property, supra at 257).
NOTE: This right is without prejudice to the
exercise by the others of the right of legal
redemption under Art. 1620.
SALE OR MORTGAGE OF COMMON
PROPERTY
1. Undivided portion
- transferee does not acquire any specific or
determinate physical portion of.. the whole
property (Id. at 258).
2. Definite portion
-valid; subject to the intentst of the vendor (Id. at
259).
3. Whole property
- valid only insofar as the co-owner's share is
concerned, unless the sale is authorized by the
other co-owners' right to renounce part of his
interest to reimburse necessary, expenses
incurred by another co-owner (Id. at 2'60).
4. Transactions entered into by each co--
owner only affect his ideal share (Id.):
When a co-owner sells the whole property as his,
the sale affects only the seller's share pro indiviso
and the transferee gets only what corresponds to
his grantor's share in the partition of the property
owned in common. Since a co-owner is entitled
to sell his undivided share, a sale of the entire
property by one co-owner without the consent of
the other co-owners is not null and void; only the
rights of· the co-owners/seller are transferred,
thereby making the buyer a co-owner of the
property (Oesmer v. Paraiso Development Corp.;
G.R. No. 157493, February 5, 2007).
The effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the
portion. which may be allotted to him in the
division upon the termination ot the co-ownership
PROPERTY
Civil Law
(Magsano v. Pangasinan Savings and Loan
Bank, Inc., G.R. No. 215038, October 17, 2016).
In such cases, the remedy is to ask tor partition, ·
not to ask for the nullity of the sale (Aguirre, et. al
v.CA, G.R. No. 122249, January 29, 2004).
Forged Special Power of Attorney to mortgage a
real property made by a co-owner shall be valid
only insofar as the share of the forging co-owner
(Rural Bank of Cabadbaran, Inc. v. Melecio- Yap,
G.R. No. 178451, July 30, 2014).
DONATION OF CONJUGAL PROPERTY
The spouses are the absolute owners of their
undivided one-half interest over a conjugal property.
The donation by one spouse of a conjugal property
without the consent of the other spouse will transfer
title only to the extent of the one-half undivided
portion of that property by the donor-spouse. The
donation is not wholly void ab initio. Accordingly,
.vendees in' the subsequent sale of the subject
property, is confined only to the one-half undivided
portion thereof (Spouses Carlos v. Tolentino, G.R.
No. 234533, June 27, 2018).
RIGHT OF A CO~OWNER TO DEMAND
PARTITION ,
No co-owner shall tie obliged to remain in the co-
ownership. Each co-owner may demand at any time
the partition of the thing owned in common, insofar as
his share is concerned, (CIVIL CODE, Art.494).
REASONS:
1. Law discourages,.co-ownership; and
2. Tb remain in the co-ownership is to subject a.
person. to the desires of the rest; conflicts in
management being bound to arise (2 PARAS,
supra at
362).
PROHIBITION TO PARTITION BECAUSE
OF AN AGREEMENT (CIVIL CODE, Art.494):
1. Period must not extend more than 10 years;
2. If it exceeds 10 years, the stipulation is valid only
insofar as the first 10 years;
3. There can be an extension but only after the
original period has expired; and
4. After the first extension, there can be another,
and so on indefinitely, as long as for each
extension, the period of 10 years is not exceeded
(3 MANRESA as cited in 2 PARf.S, supra.at 362).
PARTITION
Partition is the separation, division, and assignment
of a thing held in common among those to whom it
may belong. It may be effected extrajudicially by the
heirs themselves through a public instrument filed

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before the register of deeds (Espinas-Lanuza v.
Luna, k, G.R. No. 229775, March 11. 2019).
An action for partition is at once an action for
declaration of co-ownership and for segregation and
conveyance of a determinate portion of the properties
involved (Balo v. CA, G.R. No. 129704, September
30, 2005) . .
REASON: The policy of the law is not to favor co-
ownership · because it Is not conducive to the
development of the community property particularly
where it involves real estate (DE LEON, Property,
supra at 272).
NOTE: The thing itself may be physically divided, or
if not, its value may be partitioned (7 MANRESA as
cited in 2 PARfiS, supra at 362; Art. 1079). Partition
is governed primarily by the Civil Code and
suppletorily by the pertinent provisions of the Rules
of Court particularly Rule 69.
GENERAL RULE: Under Art. 494, Par. 5 of the Civil
Code, prescription does not run in favor of or against
a co-owner or co-heir.
REASON: Possession of the co-owner or co-heir is
ordinarily not adverse to· the others, but, in fact,
beneficial to all of them. The possession of a co-.
owner is similar to that of a trustee (DE LEON,
Property, supra at 267).
EXCEPTION: Where a co-owner or co-heir
repudiates the co-ownership or co-heirship,
prescription begins to run from the time of
repudiation, subject to the concurrence of following
conditions: (PUKE)
1. His fossession is open, continuous; exclusive,
and notorious;
2. The co-owner has performed !J_nequivocal acts of
repudiation amounting to an ouster of the other
co-owners;
3. Such positive acts of repudiation have been
made ,!S_nown to the other co~owners; and
4. The gvidence thereof is clear and convincing
- (Robles v. CA, G.R. No. 123509, March 14,
2000).
NOTE: A co-owner cannot, without the conformity of
the other co-owners or a judicial decree pursuant to
Rule 69 of the Rules of Court, adjudicate to himself in
fee simple a determinate portion of the lot owned in
common, to the exclusion of other co-owners (Del
Blanco v. /AC, G.R. No. 72694, December 1, 1987).
An agreement of partition, though oral, is valid and
consequently binding upon the par:ties (Caro v. CA,
G.R. No. L'-46001, March 25, 1982).
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As between the parties, a public instrument is neither
constitutive nor an inherent element ot a contract of
partition. Since registration serves as constructive
notice to third persons, an oral partition by the heirs
is valid if no creditors are affected. Moreover, even
the requirement of a written memorandum under the
statute of frauds does not apply to partitions effected
by the heirs where no creditors are involved
concidoring that such transaction is not a conveyance
of property resulting in change of ownership but
merely a designation and segregation of that part
which belongs to each heir (Espinas-Lanuza v. Luna,
Jr., G.R. No. 229775, March 11, 2019).
Mere receiving of rents or profits, payment of taxes,
or construction .of a fence or building would not be
suffi,.cient proof of exclusive or adverse possession
because anyone in the co-ownership may do it
(Laguil 9 v. Levantino, G.R. No. L-47386, April 18,
1941).
The act of executing the affidavit of self-adjudication
did not constitute sufficient act of repudiation. In fact,
there was bad faith of the co-heir in feigning sole
· ownership of the property to the exclusion of the other
COc'-'heirs (Galvez v. CA, G.R. No. 157954, March 24,
2006). - -
While it is true 'that registration under the Torrens
system is constructive notice of title, the Torrens title
a
does not furnish shield for fraud. Thus, where one
registered the J)roperty in question in _his name in
.. fraud of hil> ,c~hElirs, prescription can only be
deemed to-have: crimrnenced from the time the latter
discovers the fraudulent act (Adille v. CA, G.R. No. L-
44546, January 29, 1988).
·.' Redempti61i·of the whole property by the co-owner
does not vest in him sole ownership over the said
property. Redemption duly made within the period
prescribed by law inures to the benefit of the co-
ownership and does not put an end to its existence
(Mariano v. CA, G.R. No. 101522, May 28, 1993).
RIGHTS/PARTICIPATION OF
CREDITORS AND ASSIGNEES OF THE
CO-OWNERS IN THE PARTITION (CIVIL
CODE, ART. 497)
1. Scope of Creditors or Assignees
As the law does not distinguish, creditors include
all kinds of creditors provided they became so
during the existence of the co-ownership.
Assignees are transferees of interests of one or
more of the co-owners (DE LEON, Property,
supra at 277).

Illustration: A, B, and C are co-owners. A sold
his share to X. Who is entitled to participate in the
partition, A or X?
Answer: It depends.
a. If A had sold his whole interest, and has
delivered same, then X should participate (X
is participating as a co-owner).
b. If A had sold only part of his share, or even
if he sold his entire share, he has not yet
delivered same to X, both A and X are
allowed to participate in the partition. (A
participating as co-owner and X as:assignee)
(2 PARAS, supra at 382 - 383).
2. Right of notice of partition
While the law does not expressly require
previous notice of the proposed partition be given
to the creditors and assignees, since they are
granted the right to participate, they have also the
right to be notified thereof, such that in the
absence of such notice, the partition will not be
binding on them (De Santos v. Bank of the
Philippine Islands, G.R. No. 44065, July 30,
1938).
3. Right to object to or impugn
a. If notice is given, it is their duty to appear and
make known their position; they may concur
with proposed partition or object tcj its being
affected. · ·
b. If no notice is given, the creditors or
assignees may question the partition already
made (DE LEON, Property, supra at 278-
279).
However, they cannot impugn any partition
already executed, unless:
a. There has been fraud; or
b. The partition was made notwithstanding a
formal opposition presented to prevent it
(CIVIL CODE, Art. 497).
NOTE: The debtor or assignor has always the
right to maintain its validity of the partition (DE
LEON, Property, supra at 279).
PARTITION IN CASE CO-OWNERS
CANNOT AGREE/THING IS
ESSENTIALLY INDIVISIBLE (CIVIL CODE,
ART. 498)
Whenever the thing is essentially indivisible and
the co-owners cannot agree:
Firstly, the property may be adjudicated to one of the
co-owners, who shall indemnify the other.
Otherwise, it shall be sold, and the proceeds
distributed (DE LEON, Property, supra at 280).
PROPERTY
Civil Law
NOTE: The sale shall be resorted to only when the
property cannot be divided without prejudice to the
co-owners, and the co-owners cannot agree (DE
LEON. supra at 267).
PROTECTION ON THE RIGHTS OF THIRD
PERSONS
The partition of a thing owned in common shall not
prejudice third persons, who shall retain the rights of
mortgage, servitude or any other real rights belonging
to them before the division was made. Personal rights
pertaining to them against the co-ownership shall
also remain in force, notwithstanding the partition
(CIVIL CODE, Art. 499).
EFFECTS OF PARTITION (CIVIL CODE,
ARTS. 500 AND 501)
1. Mutual accounting for the benefits received
(CIVIL CODE, Art. 500);
2. Mutual reimbursements for expenses (i.e.,
necessary expenses, taxes, and others in proper
cases) (CIVIL CODE, Art. 500);
3. Indemnity for damages caused in case of
negligence or fraud (CIVIL CODE, Art. 500);
4. Reciprocal warranty for defects of title or quality
of the portion assigned to a co-owner (CIVIL
CODE, Art. 501 );
5. Each. former co~owher is deemed to have had
exclusive possession of the part allotted to him
for the entire period during which the co-
possession lasted (CIVIL CODE, Art. 543); and
6. Partition confers: upon each, the exclusive title
over his respective share (CIVIL CODE, Art.
1091).
GROUNDS FOR THE EXTINGUISHMENT
OF CO-OWNERSHIP: (JEx-CoS-M-LEx-
T2)
1. Judicial partition;
2. Extrajudicial partition;
NOTE: The possession of a co-owner cannot
ripen into ownership because the possession is
merely in the concept of a trustee for the other
co-owners (Salvador v. CA, G.R. No: 55691, May
21, 1992).
There is juridical dissolution of co-ownership
when the thing is sold, either publicly or privately,
to a third person (Republic v. Baltazar-Ramirez,
GR. No. 148103, July 27, 2006).
3. When by prescription, one Co-owner has
acquired the whole property by adverse
possession as against all the others, and
repudiating unequivocally the ownership of the
other;
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4. When a §_tranger acquired by prescription the MINERALS (CIVIL CODE, Art. 519)
thing owned in common; Laws Governing Minerals:
5. Merger in one co-owner; 1. Before 1902: R. D. Sob re Mineria 1867;
6. Loss or destruction; 2. Between 1902-1906: The Philippine Bill of 1902
7. Expropriation (PARAS. Property, supra at 348); and Legislative Acts;
8. By the Iermination of the period agreed upon or 3. Art. XII of the 1987 Constitution; and
imposed by the donor or testator, or of the period - 4. Present: Miheral Resources Development
allowed by law (CIVIL CODE, Art. 494, Pars. 2 Decree of 1974 (PD Nn. 4fi.1) cind the Civil Code
and 3); and of the Philippines.
9. By the sale by the co-owners of the thing to a
Third person and the distribution of its proceeds Minerals
among them (CIVIL CODE, Art. 498). All inorganic substances found in nature, whether in
solid, liquid, gaseous, or any intermediate state, with
the exception of soil which supports the organic life,
and of ordinary earth, gravel, sand, and stone which
SOME SPECIAL are used for building or construction purposes (C.A.
No. 137, Sec. 7).
PROPERTIES
(ARTS. 502-522) Mineral Lands
Are those in which minerals exist in sufficient quantity
or quality to justify the necessary expenditures to be
incurred in extracting and utilizing such materials
WATERS (CIVIL CODE, Arts. 502-518) (P.O. No. 463, Sec. 2).
Laws Governing Waters:
1. Civil Code of the Philippines; TRADEMARK AND TRADE NAMES (CIVIL
2. Spanish Law on Waters of August 3, 1866; CODE,Arts: 520 and 523)
3. The Irrigation Acts, Act 2152 and its Mark '
amendments; Is any visible siglJ capable of distinguishing the goods
4. Water Power Act No. 4062; or services of an enterprise and shall include a
5. Art. XII, Sec. 2 of the 1987 Constitution; and stamped or marked container of goods (R.A. No.
6. Water Code of the Philippines (P.O. No. 1067). 8293, Sec. 121) .

Classification: . Service marl(is used in the sale or advertising of

1. Waters public per se (water is the principal); the
bed follows the character of the water.
Running water (CIVIL CODE, Art. 502).
2. Waters public or private according to their bed
(water is accessory to bed). ·
a. Subterranean waters (CIVIL CODE, Arts.
502 and 503);
b. Subterranean waters rising to the surface ·
continuously or intermittently (CIVIL CODE,
Arts. 502 and 503);
c. Non-running water (CIVIL CODE, Arts. 502
and 503); and
d. Rain water (CIVIL CODE, Arts. 502 and 503).
services to identify the services of one person and
distinguish them from services of others, and includes
without limitation the marks, names, symbols, titles,
designations, slogans, character names, distinctive
features of radio or other advertising (DE LEON,
Property, supra at 327).
Trade Name
Is a name or designation identifying or distinguishing
an enterprise (R.A. No. 8293, Sec. 121).
Laws Governing Trademarks and Trade names:
1. Intellectual Property Code (R.A. No. 8293); and
2. Civil Code of the Philippines

3. Waters public by special provision.

a. Waters within the zone of public works, even
if constructed under a contract (CIVIL CODE,
Art. 502); .
b. Private water after leaving the estate of origin
(CIVIL CODE, Arts. 502, 507 and 514); and
c. Waste water of fountains, sewers, and public
establishments (CIVIL CODE, Art. 502).

POSSESSION
(ARTS. 523-561)
CONCEPT:
1. As an act
- (holding) the holding of a thing or the enjoyment
of a right with the intention to possess in one's
own right (CIVIL CODE, Art. 523).
2. As a fact
- (existence) when there is holding or enjoyment
(CIVIL CODE, Art. 523).
The fact of possession gives rise to certain rights
and presumptions, such as the right to be
respected in his possession, and should _h!:J be .
disturbed therein, he shall be protected in or ..
restored to said possession (CIVIL COQE, Art.
539). ·
Possession is not a definitiye proqf of ownership
nor is non-possession inconsistent therewith
(Heirs of G. Bofi/1 v. CA, GR. No. 107930,
October 7, 1994). It is well~established that
ownership and possession are two entirely
different legal concepts (Heirs of Spouses Arcilla
v. Teodoro, -G.R. No. 162886, August f1, 2008).
3. As a right
- (consequences) the right bfa person tb hQld or
enjoy to the exclusion of all others having better
right than the possessor.
a. Jus possidendi- right to possession which
is incidental ·to or included in the rfghfdf
ownership. (e.g., I own a house: therefore, I
am entitled to possess it) (PARAS, supra at
456); or
b. Jus possessionis - right of possession
independent from the right of ownership.
(e.g., I am renting a house form C. Although
I am not the owner, still by virtue of the lease
contract, I am entitled to possess the same)
(Id.).
Requisites (RIO):
i. Qccupancy, apprehension, or taking of a
thing or right (possession in fact) which
may be actual or constructive (Id. at
457);
ii. Deliberate !ntention to possess (animus
possidendi); and
NOTE: An insane or demented person
cannot acquire possession as they are
PROPERTY
Civil Law
incc1µc1l.Jle uf understanding the Import of
their actions (Id.).
iii. By virtue of one's own Right - in his own
name or in ttiat of another (Id.).
POSSESSION DISTINGUISHED FROM
OWNERSHIP
1. A person may be declared the owner but he may
not be entitled to possession.
2. A person may have introduced improvements
thereon of which he may not be deprived without
due hearing. He may have other valid defenses
to resist surrender of possession.
3. Judgment for ownership does· not necessarily
include possession as a necessary incident. (Id.
At 458).
There is ownership when a thing pertaining to one
persor is completely subjected to his will in a manner
nqt prohibited by law and consistent with the rights of
others. Possession is the holding of a thing or the
enjoyment of a right. Literally, to possess means to
actually and physically occupy a thing with or without
right (DE LEON, Property, supra at 325).
DEGREES:
1. Grammatical De,gree
Poss~ssion without any title whatsoever - mere
holding without any right at all (e.g., thief or
squatter) (Id. at 339j;
2. Juridical Possession
Possession with juridical title - predicated on
juridical relation existing between the possessor
and Jhe owner (e.g., lessee, usufructuary,
dep6sitary, agent, pledgee and trustee) (Id.);
3. •Re.i Possessory Right
.Possession with just title - the possession of an
· adverse · claimant whose title is sufficient to
transfer ownership but is defective (e.g., when
the seller is not the. true owner or could not
transmit his rights thereto to a possessor who
acted in good faith) (Id); or
4. Dominium
Possession with a title in fee simple - derived
from the right of dominion or possession of an
owner; the highest degree of possession (Id.).
CLASSES:
1. According to Names under which
Possession May be Exercised
a. In one's own name (CIVIL CODE, Art. 524) -
where possessor claims the thing for himself;
and
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b. In the name of another (CIVIL CODE, Art.
524) - for whom the thing is held by the
possessor.
i. Voluntary - as when an agent possesses
for the principal (by virtue of an
agreement);
ii. Necessary or Legal - when exercised by
virtue of law, such as possession in
behalf of incapacitated persons, a
mother for her child and juridical entities;
or
iii. Unauthorized - This will become the
principal's possession only after there
has been ratification without prejudice to
the effects of negotiorum gestio (2
PARAS, supra at 461).
NOTE: Landlord is in actual possession
through the tenant. Hence, he can also bring
a suit against an intruder (Simpao v. Dizon,
G.R..No. 452, April 30, 1902).
2. According to the Concept of Possession
a. In the concept of owner (enconcepto de
dueno) - possessor of thing or right, by his ·
actions, is considered or believed by others
as the owner, regardless of good or bad faith
of the possessor, recognizing · no title of
ownership in another (CIVIL CODE, Art.
525).
Only the possession acquired and enjoyed in
the concept of owner can serve as ·cj_ title for
acquiring dominion (CIVIL CODE, Art. 540).
Such possessor is presumed to possess just
title and cannot be obliged to show or prove
it (CIVIL CODE, Art. 541).
NOTE: It is essential that such flaw or defect
in the title must be such that it will have the
effect of invalidating the title. If flaw or defect
does not result in invalidation of title, he is not
merely a possessor in good faith but the
owner. The phrase possessor .in good faith
presupposes ownership of another (Pershing
Tan Cueto v. CA, GR.No. L-35648, February
27, 1987).
The Court unequivocally stated that !aches
can only apply to one whose possession of
the property was open, continuous,
exclusive, adverse, notorious, and in the
concept of an owner for a prolonged period
of time. Additionally, physical possession
must be coupled with intent to possess as an.
owner in order for it to be considered as
adverse. Therefore, the petitioner's claim that
their possession of the subject lot was
adverse and in the concept of owner, must ,m
fail. Being the owners of the subject property,
respondents have the right to recover
possession from the petitioner because such
right is imprescriptible. Even if the
Department of Education has been
occupying the subject property for a
considerable length of time, respondents, as
lawful owners, have the right to demand the
return of their property at any time as long as
the possession was only through mere
tolerance (Department ofEducation vs. Heirs
of Bangui/a, G.R. No. 230399, June 20,
2018).
b. In the concept of holder, possessor holds it
merely to keep or enjoy it, the ownership
pertaining to another person (CIVIL CODE,
Art. 525).
Possessor acknowledges in another a
superior right which he believes to be
ownership, whether his belief be right or
wrong (Carlos v. Republic, G.R. No. 164823,
August 31, 2005).
. NOrE: There can be possession in concept
of both owner and holder or in neither (DE
LEq,N,' Property, supra at 334). ·
Although fhe taxable person who has actual
and beneficial use and possession of a
. prqp.~~Y .may;l:l.e charged with the payment of
uopf!l!:Ji \.fealty tax due thereon, such
assumption of liability does not clothe the
said person with the legal title or interest over
the property. To rule otherwise would be to
tfefeat the true owner's rights by allowing
lessees or other occupants of a property to
assert ownership by the simple expedient of
redeeming the same at a tax delinquency
sale (Onstott v. Upper Tagpos Neighborhood
Association Inc., G.R. No. 221047,
September 14, 2016).
3. According to the Condition of the Mind
a. In good faith, the possessor is not aware that
there is in his title or mode of acquisition a
flaw that invalidates it (CIVIL CODE, Art.
526).
Requisites: (OVI)
i. Qstensible title or mode of acquisition;
ii. )lice Oi defect in the title; and
iii. Possessor is !gnorant of the vice or
defect and must have an honest belief
that the thing belongs to him (CIVIL
CODE, Art. 526).
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Mistake upon a doubtful or difficult question
of law may be the basis of good faith (CIVIL
CODE, Art. 526).
Mistake upon a doubtful or difficult question
of law, which may be the basis of good faith.
under Art. 526, refers to honest error in the
application of the law or interpretation of
doubtful or conflicting legal provisions or
doctrines, but is different from "ignorance of
the law," as when a person acquired property
by a deed which is absolutely void because it
is in violation of prohibitory laws (DE LEON,
Property, supra at 351).
b. In bad faith (CIVIL CODE, Art. 526) -
possessor is aware of the flaw that
invalidates his title.
Bad faith does not simply connote bad
judgment or negligence; it contemplates a
state of mind affirmatively operating with
furtive design or some motive of self-interest
or ill-will for ulterior purposes ( Villanueva v.
Sandiganbayan. GR. No. 105607, June
21, 1993).·
Only personal knowledge of the flaw in one's
title or mode of acquisition can make him a
possessor in bad faith. It is not transmissible
even to an heir (DE LEON, Property, supra
at 354).
The distinction between possession in good
faith and possession in bad faith is of
importance principally in connection with the
receipt of fruits and the payment of expenses
and improvements under. Arts. 544 - 553;
and the acquisition of ownership by
prescription under Ari. 1127. However, such
distinction is immaterial in the exercise of the
right to recover under Art. 539 which speaks
of every possessor (Id. at 347).
Bad faith is personal. Just because a person
is in bad faith does not mean that his
successors-in-interest are also in bad faith.
(Id. at 364).
A lessee who continues to stay on the
premises after the expiration of the lease
contract is deemed a usurper; as such he has
become a possessor in bad faith (Republic v.
Diaz, G.R. No. L-36486, August 6, 1979).
Possession in
possession in
facts exist
knowledge of
528).
good faith is converted to
bad faith from the moment
showing the possessor's
the flaw (CIVIL CODE, Art,
PROPERTY
Civil Law
Article 528 of the New Civil Code provide that
possession acquired in good faith does not
lose his character, except in a case and from ·
the moment facts exist which show that the
possessor is not unaware that he possesses
the thing improperly or wrongfully.
Possession in good faith ceases from the
moment defects in the title are made known
to the possessors, by extraneous evidence or
by suit for recovery of the property by the true
owner. Whatever may be the cause or the
fact from which it can be deduced that the
possessor has knowledge of the defect of his
title or mode of acquisition, it must be
considered sufficient to show bad faith (Pen
Development Corporation and Las Brisas
Resort Corporation vs. Martinez Leyba Inc.,
GR. No. 211845, August 9, 2017).
In the absence of other facts showing the
possessors knowledge, good faith is
interrupted from the receipt of service of
judicial summons (DE LEON, Property,
supra at 354).
If date .of service of summons cannot be
determined, then good faith is deemed
interrupted at the date of filing an answer
(Id.).
EXTENT OF POS&ESSION:
1. Actual possessiqn
- Occupancy in fact of the whole or at least
substantially the whole property; and
2. Constructive possession
- Occupancy of part, in the name of the whole,
under such circumstances that the law extends
'the occupa'ncy to the possession of the whole (Id.
at340).
DOCTRINE OF CONSTRUCTIVE
POSSESSION.
Possession in the eyes of the law does not mean that
a man has to have his feet on every square meter of
ground before it can be said that he is in possession
(Ramos v. Director of Lands G.R. No. 13298,
November 19, 1918).
Possession can be acquired not only by material
occupation, but also by the fact that a thing is subject
to the action 9f one's will or by the proper acts and
legal_ formalities esta.blished for acquiring such right.
Possession can be acquired by juridical acts. These
are acts to which the law gives the force of acts of
possession. In one case, this Court has considered a
claimant's act of assigning a caretaker over the
disputed land, who cultivated the same and built a hut
thereon, as evidence of the claimant's possession of
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the said land (Municipal Rural Bank of Libmanan,

Camarines Sur v. Ordonez, G.R. No. 204663, ACQUISITION OF
September 27, 2017).
POSSESSION
Jurisprudence states that the law does not
require a person to have his feet on every square
(ARTS. 531-538)
meter of the ground before it can be said that he
is in possession thereof. In Bunyi vs. Factor, the
Court held that "visiting the property on
ESSENTIAL REQUIREMENTS FOR
weekends and holidays is evidence of actual or
physical possession. The fact of her residence ACQUIRING POSSESSION: (Cl)
somewhere else, by itself, does not result in loss 1. forpus (or thing physically detained); and
of possession of the subject property" (Spouses 2. !ntent to possess (expressly or impliedly) (DE
Fahrenbach v. Pangilinan, G.R. No. 224549, LEON, Property. supra at 337).
August 8, 2017).
MANNER OF ACQUIRING POSSESSION
PRESUMPTIONS IN FAVOR OF THE (CIVIL CODE, ART. 531 ):
POSSESSOR: 1. Material occupation of the thing or
1. Good faith (CIVIL CODE, Art. 527); exercise of a right
2. Continuity of initial good faith (CIVIL CODE, Art. - Includes both actual delivery and constructive
528); . delivery (traditio brevi manu and constitutum
3. Enjoyment in the same character in which possessorium);
possession was acquired until the contrary is
proved (CIVIL CODE, Art. 529); 2. Subjection to our will
4. Non-interruption in favor of the present - This includes tradition longa manu and traditio
possessor (CIVIL CODE, Art. 554) and of symbolica; or
hereditary property (CIVIL CODE, Art. 533);
5. Continuous possession by the one who recovers 3. Proper acts and legal formalities
possession of which he was wrongfully deprived established for acquiring such right
(CIVIL CODE, Art. 561); (DE LEON, Property, supra at 358).
6. Extension of possession of real property to all
movables contained therein (CIVIL GODE, Art.
RULE.$, JN .,THE ACQUISITION OF
542);
7. Just title (CIVIL CODE, Art. 541);
POSSESSlON:< ..
8. Continuity of possession of property unjustly lost 1. Personally or by the same person who is to enjoy
but legally recovered (CIVIL CODE, Art. 561); it;
9. Possession during intervening period (CIVIL ·•·}.Requisites (ICO):
CODE, Art. 1138, Par. 2); and a. !nlentto possess;
10. Exclusive possession of common property by b. fapacity to possess; and
each one of the participants of their allotted share c. Qbject must be capable of being possessed
upon division (CIVIL CODE, Art. 543).
2. Through an authorized person or by his legal
OBJECT OF POSSESSION representative or agent; and
Requisites (PIA):
GENERAL RULE: All things and rights susceptible of
a. !ntent to possess for principal;
being appropriated may be the object of possession
b. ~uthority or capacity to possess; and
(CIVIL CODE, Art. 530).
c. frincipal has intent and capacity to possess.
EXCEPTIONS: (PREP)
3. Through an unauthorized person or by any
1. _Eroperty of public dominion;
persons without any power or authority
2. Bes communes;
whatsoever.
3. Easement; and
Requisites (RIC):
4. _Erohibited by law (2 PARAS, supra at 482).
a. !ntent to possess for another - principal;
b. fa pa city of principal to possess; and
'-'· Ratification by principal (2 PAF?AS, supra at
486).

NOTE: In No. 3, possession shall not be considered

as acquired until the person in whose name the act of
possession was executed has ratified the same,

without prejudice to the juridical consequences of
negotiorum gestio in the proper case {Id.).
ACQUISITION BY SUCCESSION (MORTIS
CAUSA)
The rights to succession are transmitted from the
moment of the death of the decedent. (CIVIL CODE,
Art. 777).
1. Time of Acquisition - If the inheritance is
accepted, the estate is transmitted without
interruption from the death of the predecessor.
But the heir who repudiates is deemed never to
have acquired possession ( CIVIL CODE, Art.
533).
Note: An heir can sell whatever right, interest or
participation he may have in the property under
administration, subject to the result of said
administration (DE LEON, Property, supra at
362).
From the moment of death of the decedent, each
of his heirs becomes the undivided owner. ofthe ·
whole estate left with respect ·to· th.at portion
which might be adjudicated to him(ld.).,
. '
2. If the inheritance is validly renounced, the heir
is deemed never to have possessed the same
(CIVIL CODE, Art. ~33). . consolidated. and affirmed a relation the legality .
3. Effect of bad faith of the decedent - One who
succeeds by hereditary title_ shall not su,ffer the
consequences of the wrongful posse~sfon of the
decedent unless it is shown. that he had
knowledge of the defects affecting it; but the
effects of possession in good faith shall not
benefit him except from the death ofthecl_ecedent
(CIVIL CODE, Art. 534).
Tacking of Possession: The latter p9rt of Art
534 is not applicable if the father (or decedent)
had been in good faith, for the son (or heir) would
not suffer. In such a case, the possession of the
father in good faith is added to the possession of
the son in good faith, and we cannot say that the
effects of possession in good faith shall
commence only from the decedent's death.
ACQUISITION · BY MINORS AND
INCAPACITATED PERSONS
Minors arid incapacitated persons may acquire the
possession of things, but they need the assistance of
their legal representatives in order to exercise the
rights which from the- possession arise in their favor
(CIVIL CODE, Art. 535).
NOTE: Minors and incapacitated persons may
acquire property or rights by prescription, either
PROPERTY
Civil Law
personally or through their parents, guardians, or
legal representatives {CIVIL CODE, Art. 1107).
MODES THROUGH WHICH POSSESSION
CANNOT BE ACQUIRED: (FTC)
1. Through force or intimidation, AND as
long as there is a possessor who obj~cts
thereto (CIVIL CODE, Art. 536);
For all intents and purposes, a legal possessor,
even if physically ousted, is still deemed the legal
possessor because possession cannot be
acquired through force or violence (Cequeiia v.
Bolante, G.R. No. 137944, April 6, 2000).
2. Through mere !olerance (CIVIL CODE, Art.
537); and
Acts merely tolerated are those which by reason
of neighbourliness or familiarity, the owner of
property, allows his neighbour or another person
to do on the property (2 TOLENTINO, supra at
. 268). .
It is difficult -to draw a dividing line between
tolerance" of Jhe ovvner and abandonment of his
rights when the. acts of the possessor are
repeated, espetiaUi when the lapse of time has
of the origin of which can be doubted. When there
is license.or permission, the proof is easy. It is for
the court to decide ln each case whether there
exists mere tolerance or an abandonment of
rights on the part of the owner (4 MANRESA 196-
197 as cited in 2 TOLENTINO, supra at 269).
Silence or inaction is negligellce, not tolerance.
But where a person occupies another's land with
· the' latter's permission (tole_rance), the occupier,
no ma'tter how long he may remain, can never
acquire ownership, because he never had
possession (2 PARAS, supra at 497).
Possession by mere tolerance is not adverse.
Thus, it does not start the running of the period of
acquisitive prescription (Id.).
3. Through ~landestine .efforts, secret
possession, and without the knowledge
of the possessor of a thing (CIVIL CODE,
Art. 537).
Requisites:
a. The acts are not public; and
b. · It must be unknown to the possessor or
owner.
NOTE: A person who believes himself entitled to
the possession of property may not take the law
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into his hands (Spouses Antazo v. Doblada, G.R.
No. 178908, February 4, 2010) or else he will be
made lo suffer the consequences of his
lawlessness (Santiago v. Cruz,G.R. No. L-31919,
March 24, 1930). For this reason, Article 536
mandates that he must invoke the aid of the
competent court, if the holder should refuse to
deliver the thing.
CONFLICT BETWEEN
CLAIMANTS:
GENERAL RULE: Possession as a fact cannot be
recognized at the same time in two different
personalities (CIVIL CODE, Art. 538).
EXCEPTIONS: In case of co-possession when there
is no conflict and possession in different concepts or
different degrees (DE LEON, Property, supra at 371).
Criteria in Case of Dispute:
1. Present/actual possessor shall be preferred;
2. If there are tvvo possessors, the one longer in
possession;
3. If the dates of possession are the same, the one
with a title; and
4. If all the above are equal, the fact of possession
shall be judicially determined, and in the
meantime, the thing shall be placep in judicial
deposit (CIVIL CODE, Art. 538). . - There •. Vilas such mode of transferring
EFFECTS OF
POSSESSION
(ARTS. 539-554)
NOTE: A squatter has no possessory rights of
any kind against the owner of the land into which
he has intruded (Banez v. CA, G.R. No. L-30351,
September 11, 1974).
POSSESSION IN THE CONCEPT OF AN
OWNER OR EN CONCEPTO DE DUENO
Only possession acquired and enjoyed in the concept
of owner can serve as a title for acquiring dominion
SEVERAL (CIVIL CODE, Art. 540) even if he acted in bad faith.
A possessor in the concept of an owner has in his
favor the legal presumption that he possesses with a
just title and he cannot be obliged to show or prove it
(CIVIL CODE, Art. 541).
Presumption of just title does not apply in acquisitive
prescription. The adverse possessor must prove his
just title (OE LEON, Property, supra at 387).
KINDS OF TITLES:
1. True and Valid Title ( Titulo Verdadero y
Valido)
~ There was a mode of transferring ownership
;md}~egrantor was the owner (Id. at 386-387);
2. Colorable Title ( Titulo Colorado)
ownership, BUT the grantor, whom the buyer
believes to be, the owner, was, in fact, not the
owner (Id.); and
3. Put1t1te)fiti~tTitu/o Putativo)
- That title although a person believes himself to
);ie the owner, he nonetheless is not because
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no mode of acquiring ownership (Id.).

NOTE: Titulo colorado is what is meant by "just title"

in the law of prescription, and not titulo verdadero y
RIGHTS OF EVERY POSSESSOR valido, for if it were the latter, there could be no
(WHETHER IN THE CONCEPT OF AN necessity of still acquiring ownership through
OWNER OR A HOLDER): prescription, the grantee being already the owner
1. To be respected in his possession; and (Solis v. CA, G.R. No. L-46753, August 25, 1989).
2. To be protected in or restored to said possession
by legal means should he be disturbed therein POSSESSION IN THE CONCEPT OF
(CIVIL CODE, Art. 539). HOLDER:
1. Lessees;
A possessor deprived of his possession through 2. Trustees, including: parents over the properties
forcible entry may within ten (10) days from the of their children; and husband and wife over each
filing of the complaint present a motion to secure other's property;
from the competent court, in the action for forcible 3. Antichretic creditors;
entry, a writ of preliminary mandatory injunction 4. Agents;
to restore him in his possession (CIVIL CODE, 5. Attorney's regarding their client's properties;
Art. 539). 6. Depositaries; and
7. Co-owners (2 PARAS, supra at 523).
REASON: There are many prolonged litigations
between the owner and the usurper and the NOTE: Possession of real property presumes that of
former is frequently deprived of his possession. the movables therein, so long as it is not shown or
 PROPERTY
Civil Law

µruvetJ llwl they should be excluded (CIVIL CODE,

Art. 542).

Presumption applies whether the possessor be in

good faith or bad faith, in one's own name, or in
another's and in concepto de dueno or in the concept
of holder (2 PARAS, supra at 530).

RULES ON CO-POSSESSION:
1. Each one of the participants of a thing possessed
in common shall be deemed to have exclusively Indemnity pro-rata to No indemnity.
possessed the part which may be allotted to him possessor (owner's
upon division thereof, for the entire period during option) in money, or by
which the co-possession lasted; allowing full cultivation
2. Interruption in the possession of the whole or a and gathering of all
part of a thing possessed in common shall be to fruits.
the prejudice of all possessors; and
3. In case of civil interruption, the Rules of Court
shall apply (CIVIL CODE, Art. 543.).

Possession is interrupted for purposes of prescription

either naturally or civilly (CIVIL CODE, Art. 1120).
Possession is naturally interrupted when through ·any
cause it should cease for more than one year (CIVIL
CODE, Art. 1121).
1. Reimbursement and No reimbursement.
retention; or Right of removal
CIVIL INTERRUPTION 2. May remove useful provided that the thing
When interruption is produced by judicial summons improvements if no suffers no injury and
to the possessor, only those possessors served with reimbursement, and lawful possessor does
judicial summons are affected (DE LEON, Property, no damage is not prefer to retain
supra at 390). · caused to the them by paying the
principal by the value they may have at
NOTE: Judicial summons shall be dee.med not to removal with right of the time he enters into
have been issued and shall not give rise. to retention (CIVIL possession. (CIVIL
interruption: CODE, Art. 546). CODE, Art. 549).
1. If it should be void for lack of legal sOlfmnities;.
2. If the plaintiff should desist from the complaint or
should allow the proceedings to lapse; and
3. If the possessor should be absolved from the 1. No reimbursement; 1. No reimbursement;
complaint. -and and
2. Removal without 2. Removal without
In all these cases, the period of interruption shall be injury or injury or
counted for the prescription (CIVIL CODE, Art. 1124; reimbursement of reimbursement of
2 PARAS, supra at 525). amount expended at value at time of
option of lawful recovery at option of
RIGHTS OF A POSSESSOR IN GOOD FAITH possessor. lawful possessor.
V. POSSESSOR IN BAD FAITH

Taxes and charges Taxes and charges

1. Charged to owner; 1. Charged to owner;
2. Charged to 2. Charged to owner;
possessor; 3. To owner.
3. Prorated.

possessor.
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summary action, but he may still bring an

action publiciana or reivindicatoria.

e. By reason of the object

i. Destruction or total loss of the things;
and
Only if acting with Liable in every case. ii. Withdrawal frnm commerce
fraudulent intent or
negligence. after ACTS NOT CONSTITUTING LOSS OF
summons (CIVIL POSSESSION (CIVIL CODE, Alts. 537-
CODE, Art. 552).
538)
NOTE: Before receipt of 1. Acts executed by stealth and without knowledge
judicial summons, of the possessor;
possessor not liable. 2. Acts merely tolerated either by the possessor or
(PARAS.supra at 537). by his representative or holder in his name unless
authorized or ratified; '
3. Violence; and
4. T·emporary ignorance of the whereabouts of
movable property.

The possessor who recovers possession is

considered as having had uninterrupted
Necessary Expenses possession despite these acts of violence,
Those made for the preservation of the thing stealth, and tolerance; but he must recover
(2 PARAS, supra at 539) possession by· due process and not otherwise
(GIVJ~:G()DE, Arts. 561, 536, 539).
Useful Expenses
Those that add value to property or increase the Possessory acts of mere holder do not bind or
object's productivity (Id. at 541 ). prejudice the possessor in the concept of owner,
unless said acts were previously authorized or
Ornamental/Luxury Expenses. ratified by the laUer (CIVIL CODE, Art. 558).
Those that add value to the thing only for certain
persons in view of their particular whims; neither POSSESSlbN'; OF MOVABLES (CIVIL
essential for preservation nor useful to everybody in CODE, ART 559)
general (Id. at 549).
·1"HEOR~,OF IRREVINDICABILITY
GENERAL RULE: Possession of movable property
acquired in good faith is equivalent to a title (CIVIL
LOSS OF POSSESSION CODE, Art. 559).
(ARTS. 555)
NOTE: Possession in good faith does not really
amount to title, for the reason that Art. 1132 of the
Code provides for a period of acquisitive prescription
GENERAL CAUSES: for movables through 'uninterrupted possession for
1. By the will of the possessor four years in good faith' (~xx), so that many Spanish
a. Abandonment; and writers, including Manresa, Sanchez Roman,
b. Assignment Scaevola, De Buen, and Ramos, assert that under
2. Against the will of the possessor Art. 464 of the Spanish Code (Art. 559 of the New
a. Eminent domain; Civil Code), the title of the possessor in good faith is
b. Acquisitive prescription; not that of ownership, but is merely a presumptive title
c. Judicial decree in favor of one who has a sufficient to serve as a basis for acquisitive
better right; prescription (De Garcia v. Court of Appeals, G.R. No.
d. Pf\c<::Qc<::ion of another for more than one L-20264, January 30, 1971).
year;
Illustration: If X buys in good faith books from Y, an
NOTE: This refers to possession de facto impostor, who succeeded in purchasing the books
where the possessor loses the right to a from Z by falsely identifying himself and paying the
price by means of a check which was dishonored, the
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law establishes an actual right thereto in favor of X.
The subsequent dishonor of the check merely
amounted to a failure of consideration which does not
render the contract of sale void, but merely allows the
prejudiced party to sue for specific performance or
rescission of the contract and to prosecute the
impostor for estafa under Art 315 of the Revised
Penal Code. (EDCA Publishing v. Santos, G.R. No:
80298, April 26, 1990).
Requisites: (GOV)
1. Possession is in §ood faith;
2. Possessor is in the concept of Qwner; and
3. The owner has yoluntarily parted with the
possession of the thing (DE LEON, Property,
supra at 411-412).
EXCEPTION: One who has lost or has been
unlawfully deprived of a movable may recover it from
whoever possesses it without reimbursement. The
owner of the thing must prove: (a) ownership of the
thing; and (b) loss or unlawful deprivation; or bad faith
of the possessor (Id, at 420-421),
If the owner has lost a thing, or if he has been
unlawfully deprived of it, he has a right to recover it,
not only from the finder, thief or robber, but also from
third persons who may have acquired it in good faith
from such finder, thief or robber (Aznar v. Yapdiangco,
GR. No. L-18536, March 31, 1965).
NOTE: "Unlawful deprivation" includes all cases of
taking that constitute a criminal offense (DE. LEON,
Property, supra at 416).
EXCEPTIONS TO THE EXCEPTION: (NG)
1 Wh8r8 the owner ads Negligently or voluntarily
parts with the thing owned, he cannot recover ii
from the possessor; and
2. If the possessor of the movable acquired it in
§ood faith at a public sale, the owner cannot
obtain its return without reimbursing the price
paid therefore keeper (CIVIL CODE, Art. 559,
Par. 2).
NOTE: In the following public sale transactions,
the owner cannot recover:
a. WhAm thA owner of the movable is, by his
conduct, precluded from denying the seller's
authority to sell; and
b. Where the law enables the apparent owner
to dispose of the movable as if he were the
true owner thereof, i.e., Civil Code (Art. 1507-
1520), the Property Registration Decree
(PD. No, 1525), the Negotiable Instruments
Law (Art. 203/), and the Warehouse
Receipts Law (Act No. 2137);
c. Where the sale is sanctioned by statutory or
judicial authority;
,_j,~~~'
'
PROPERTY
"" ' Civil Law
: ~ f' <
d. Where the sale is made at merchant's stores,
fairs or markets (CIVIL CODE, Ail. 1505);
e. Where the seller has a voidable title, which
has not been avoided at the time of the sale
to the buyer in good faith for value and
without notice of the -seller's defect if title
( CIVIL CODE, Art. 1506);
f. Where recovery is no longer possible
because of prescription ( CIVIL CODE, Art.
1132); and
g, Where the possessor becomes the owner of
the thing in accordance with the principle of
finder's keeper (CIVIL CODE, Art. 719) (DE
LEON, Property, supra at 415),
SUMMARY OF RECOVERY OR NON-
RECOVERY PRINCIPLE
1, Owner may recover without reimbursement:
a. From possessor in bad faith; and
b. From possessor in good faith (if owner had
lost the property or been unlawfully deprived
of it an,d the acquisition being from a private
personr .
2. Owner may recover but should reimburse: if
possessor acquired the object in good faith at
public sale or auction_
3. Owner cannot recover, even if he offers to
reimburse:
a. If possessor had acquired it in good faith by
purchase from a merchant's store, or in fairs
or markets in accordance with the Code of
Commerce and ~pecial laws;
b. lf owner is by his conduct precluded from
denying the seller's authority to sell; and
c. If the· possessor had obtained the goods
because he was an innocent purchaser for
value and a holder of a negotiable document
of title to the goods (2 PARAS, supra at 566).
POSSESSION OF ANIMALS
Wild animals· are possessed only while they are under.
one's control; domesticated or tamed animals are
considered domestic or tame, if they retain the habit
of returning to the premises of the possessor (CIVIL
CODE, Art. 560).
Animals may,be: _
1. Wild animals
Those living in a state of nature independently
of i-md without the aid and care of man (DE
LEON, Property, supra at 423).
2. Domesticated or tamed animals
a. Wild or savage by nature but_ have been
subdued and became accustomed to live in
a tamed condition;
b. Domestic animals - born and reared u'nder
the control and care of man, lacking the
instinct to roam freely (Id.).
 MEM✓Q~Y AID
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NOTE: The possessor or owner of domesticated CHARACTERISTICS: (TRECT)

animals has a period of 20 days counted from the
1. Of Iemporary duration;
occupation by another person within which to reclaim
them.
2. _Beal right of the use and enjoyment of the
property whether or not the same be registered
in the Registry of Property;

USUFRUCT NOTE: It must be registered in the Registry of

(ARTS. 562-612) Property to prejudice third persons (CIVIL CODE,
Att. 709).

3. Purpose is to ~njoy the benefits and derive all

USUFRUCT advantages from the thing due to normal
exploitation;
Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and 4. May be ~onstituted on real or personal property,
substance, unless the title constituting it or the law consumable or non-consumable, tangible or
otherwise provides (CIVIL CODE, Art. 562). intangible, the ownership of which is vested in
another; and
THREE (3) FUNDAMENTAL RIGHTS
PERTAINING TO OWNERSHIP (DUF) NOTE: A person cannot create a usufruct over his
1. Jus Qisponendi own property and at the same time retain ownership
- Right to dispose, alienate, encumber, of the same for usufruct is essentially jus in re
transform, and destroy; aliena; and to be a usufructuary of one's own
property is, in law, a contradiction in terms and a
2. Jus Utendi · conceptual absurdity (Gaboya v. Cui, G.R. No. L-
- Right to use; and 19614March 27, 1971).

5. Iransmissibte (DE LEON, Property, supra at

3. Jus Eruendi
426).
- Right to the fruits.

DIFFERENCE IN RIGHTS BETWEEN REQUISITES OF USUFRUCT:

USUFRUCT AND NAKED OWNERSHIP ' 1. Essenti~E. :
- The real, temporary right to enjoy another's
property.

Jus -Utendi and Jus Jus Disponendi 2. ·N~tui:at

Fruendi. - The obligation to preserve its form or
substance.
(2 PARAS, supra at 578).
NOTE: Ordinarily this is present, but a contrary
FORMULA: stipulation can eliminate it because it is not
essential (2 PARAS, supra at 578). The
1. Full Ownership = Naked Ownership + Usufruct;
obligation being merely a natural requisite, the
2. Naked Ownership= Full Ownership - Usufruct;
title or law may provide otherwise (CIVIL CODE,
3. Usufruct = Full Ownership - Naked Ownership
Art. 562), giving rise to abnormal, irregular or
(Id.).
imperfect usufruct (2 PARAS, supra at 579).
Usufruct, in essence, is nothing else but the right to
enjoy another's property. While this right to enjoy the
3. Accidental
property of another temporarily includes both the jus - Those which may be present or absent
utendi and the jus fruendi, the owner retains the jus depending upon the stipulation of the parties. (Id.
disponendi or the power to alienate the same (Heirs at 579).
of Jarque v. Jarque, G.R. No. 196733, November 21,
2018). CLASSIFICATIONS OF USUFRUCT
1. As to Origin (CIVIL CODE, Art. 563):
a. Legal - Constituted by law.

Example: Usufruct of the parents over the

property of their unemancipated children

limited primarily to the child's support and
secondarily to the collective daily needs of
the family. (FAMILY CODE, Art. 226);
b. Voluntary - Constituted by the will of private
persons expressed in acts inter vivas or in a
last will and testament; and
c. Mixed - Constituted by prescription (i.e.,
created both by law and by the act of a
person);
Illustration: Usufruct acquired by
prescription such as when believing himself
to be the owner of the property of an
absentee, gave in his will the usufruct of the
property for the requisite prescriptive period
to his wife, who possessed it in good faith as
usufructuary, and naked ownership to his
brother (DE LEON, Property, supra at 425).
2. As to Extent of Coverage:
a. Total - constituted on the whole of theJruits
of the thing; and
b. Partial - a part of the fruits of the thing (CIVIL
CODE, Art. 564).
3. As to Kind of Object:
a. Over a right, if it involves intangible property
provided it is not strictly personal or
intransmissible; and
b. Over things, if it involves tangible property
(CIVIL CODE, Art. 564).
4. As to Number of Persons Enjoying the
Right
a. Singular - in favor of one person; and
b. Multiple - two or more persons
i. Simultaneously, i.e., atthe same'time or
ii. Successively, i.e., one after the other.
(CIVIL CODE, Art. 564).
NOTE: A usufruct constituted in favor of
several persons living at the time of its
constitution shall not be extinguished until the
death of the last survivor (CIVIL CODE, Art.
611).
5. As to Term or Conditions
a. Pure;
b. With a Term or Period;
a. Ex die - from a certain day;
b. In diem - up to a certain day; and
c. Ex die in diem - from a certain day up to
a certain day.
c. Conditional (CIVIL CODE, Art. 564).
·6. As to the Extent of Owner's Patrimony
(CIVIL CODE, Arts. 598-599):
a. Universal - if over the entire patrimony; and
PROPERTY
Civil Law
b. Singular or Particular - if only individual
things cire induded.
7. As to Whether or Not Impairment of
Object is Allowed (CIVIL CODE, Art. 562).
a. Normal (or Perfect or Regular) - that which
involves non-consumable things which the
·usufructuary can enjoy without altering their
form or substance; and
b. Abnormal (or Imperfect or Irregular) - that
which involves things which would be
useless to the usufructuary unless they are
consumed or expended.
RULES GOVERNING USUFRUCT:
1. The rights and obligations of the usufructuary
shall be thcise provided in the title constituting the
usufruct; or
2. In default of such title, or in case it is deficient, the
provisions contained in the Civil Code regarding
usufruct shall apply (CIVIL CODE, Art. 565).
OBLIGATION TO PRESERVE THE
OBJECT OF THE USUFRUCT
GENERAL RULE: Usufructuary is bound to preserve
the form and substance of the thing in usufruct (CIVIL
CODE, Art. 562).
EXCEPTIONS:
1. When the law or the title creating the usufruct
provides thaf the usufructuary is not so obliged
(CIVIL CODE, Art. 5$5);
2. When the usufruct includes things which, without
being consumed,· gradually deteriorate through
wear and tear (CIVIL CODE, Alt. 573); and
3. ·when tl;)e usufrud includes things which cannot
be usedwithoutbeing consumed (quasi-usufruct)
{CIVIL CODE, Art. 574).
USUFRUCT V. LEASE
Always a real right. Generally, a personal
right; However, a
registered lease on
land is a real right.
Person creating the Lessor may not be the
usufruct should be the owner, i.e., sub-lessor,
owner or his duly usufructuary.
authorized agent.
.May be created by law, Ge.nerally created by
by contract, by will of the contract.
 EiWM \ 1 · ><' ::: ~/· •• :> .: ' :rz ,;:'·"
MEM:Q~Y AID
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do so, he should pay its value at the time the
usufruct ceases (Id.).
testator, or by b. If deterioration is due to an event or act that
prescription. EXCEPTION: by law, endangers their preservation (fortuitous
i.e., implied new lease. event) (CIVIL CODE, Art. 1174), the
usufructuary is not responsible. He is,
however, obliged to make the necessary or
ordinary repairs (CIVIL CODE, Art. 592). ·
Usufrur.t generally Lease generally rP.fP.rs
covers all the fruits and to uses only, i.e., those NOTE: Ordinary repairs are understood such
all the uses and benefits stipulated. as are required by the wear and tear due to
of the entire property. the natural use of the thing and are
indispensable for its preservation (CIVIL
CODE, Art. 592).
Involves a more or less Lease involves a more
c. If deterioration is due to fraud (dolo incidente
passive owner who active owner or lessor
or fraud amounting to an evasion of the
allows the usufructuary who makes the lessee
obligation to preserve) or negligence (CIVIL
to enjoy the object given to enjoy the thing
CODE Art. 1174), the usufructuary shall be
in usufruct. leased.
obliged to indemnify the ·owner for any
deterioration they may have suffered by
reason of his fraud or negligence (CIVIL
Usufructuary pays for Lessee is not generally CODE, Art. 573).
ordinary repairs and under obligation to
taxes on the fruits (CIVIL undertake repairs or NOTE: Such liability however may be set-off
CODE, Art. 592). pay taxes. agaii;)$t the improvements he may have
inade:(CIVIL CODE, Art. 580).
(DE LEON, Property, supra at 428-429).
3. Of cons'umable property
SPECIAL USUFRUCTS Whenever" the usufruct includes things which
1. On Rent, Pension or Benefits cannot be used without being consumed, the
Whenever a usufruct is constituted on the right to usufrllctuary sh'all have the right to make use of
receive a rent or periodical pensicm, whether in - thern.:,3yn,i:iEirf,J~. obligation of paying their
money or in fruits, or in the interest.on bonds or apprai$f;ii,:J,v~iu~/at the termination of the usufruct,
securities payable to bearer, each payment due if they were appraised when delivered (CIVIL
shall be considered as the proceeds or fruits of CODE, Art. 574).
such right (civil fruits) (CIVIL CODE, Art. 570) and
shall be deemed to accrue proportionately to the ~se'they were not appraised, he shall have
usufructuary, from the time the U$ufruct. lasts the right to return the same quantity and quality
(CIVIL CODE, Art. 569). or pay their current price at the time the usufruct
ceases (CIVIL CODE, Art. 574).
Those that accrue after the termination of the
usufruct belong to the owner (DE LEON, NOTE: This is another instance of abnormal
Property, supra at 437). usufruct and is sometimes referred to as a
quasi-usufruct because the form is not really
2. Over things which gradually deteriorate preserved. Thus, this is really a ?imple loan (2
Art. 573 deals with abnormal or imperfect PARAS, supra at 599).
usufruct. It deals with things that deteriorate
much faster than others such as clothes, 4. On fruit bearing trees and shrubs
vehicles, and computers (2 PARAS, supra at The usufructuary may make use of the dead
597). trunks, and even of those cut off or uprooted by
accident, under the obligation to replace them
Effect of the Deterioration on the with new plants (CIVIL CODE, Art. 575).
Usufructuary's Liability:
a. !f deterioration is due to normal use (wear NOTE: No such obligation exists with respect to
and tear), the usufructuary is not respons;ble. those dead trees or shrubs already existing at the
Nor is he required to make any repairs to beginning of the usufruct (CIVIL CODE, Art. 575
restore it to its former condition. He may in relation to Art. 562).
return them in the condition they might be in
at the termination of the usufruct. If he fails to

Effect of a Calamity on the Trees and Shrubs
a. If it is impossible or too burdensome to
replace them, the usufructuary may either:
i. Use the trunks but should replace them
(CIVIL CODE, Art. 575); or . 7. On property owned in common
ii. Leave the dead, fallen, uprooted trunks
at the owner's disposal, and demand that
the latter remove them and clear the land
{CIVIL CODE, Art. 576).
b. If it is not "too burdensome" to replace them,
he must replace them (whether he uses the
trunks or not), and he cannot demand
clearance of the land by the owner (DE
LEON, Property, supra at 428).
5. On woodlands and nurseries
The usufructuary of woodland may enjoy all the
benefits which it may produce according to its
nature (CIVIL CODE, Art. 577).
In case of usufruct over a woodland which is a
copse or consists of timber for ·6ui1d1ng, in
cutting or feeling the trees, he must··
a. Follow the owner's habit or practices;
b. In default thereof, the customs ofthe .place
as to manner, amount; and.season; and
c. If there be no customs, ''thEt only time the
usufructuary can cut down. frees will be for
repair or improvement,:b1/t the owner musr
first be informed (2 PARAS, supra 'at 602).
6. On a right to recover by court ac:Uo~.
The usufructuary of an action. to ·resover real
property or a real right or any inpvab)~ property
has the right to bring the action and to oblige the
owner thereof to give him: .. •,
a. Authority to bring the action (through SPA);:
and · ·
b. Furnish him whatever proof the owner may ·
have (CIVIL CODE, Art. 578). . >
The Action May Be Instituted in the
Usufructuary's Name, Subject to the
Following:
a. If the purp0$8 is the recovery of the
property or right, he is still required to
obtain the naked owner's authority; or
b. If the purpose is to object to or prevent
disturbance over the property, no special
authority from the naked owner is needed (2
PARAS, supra at 605).
Effect of Judgment
If in consequence of the enforcement of the
action the usufructuary acquires the thing
claimed:
a. The usufruct shall be limited to the fruits; and
b. The dominion remains with the owner {CIVIL
CODE, Art. 578).
PROPERTY
Civil Law
NOTE: After a successfuljutJyment, the usufruct
is now over the thing awarded and not on the right
to recover (2 PARAS, supra at 605).
A co-owner may give the usufruct of his share to
another, even without the consent of others,
unless personal considerations are present
(CIVIL CODE, Art. 582 in relation to Art. 493).
The usufructuary in such a case takes the
owner's place as to:
a. Administration (management); and
b. Collection of fruits or interest (CIVIL CODE,
Art. 582).
Effect of Partition:
a. If there be a partition, the usufructuary
continues to have the usufruct of the part
allotted to the co-owner concerned (CIVIL
.DODE, Art. 582).
b. If , ihe partition was done without the
intervention of the usufructuary, the partition
binds .the usufructuary. However, the naked
ow_ner. must respect the usufruct (Pichay v.
Quero!. GR. No. 4452, October 1, 1908).
8. Of fruitfµI or productive livestock
·(livestock)
If the_ usufrutj be c9~stituted on a flock or herd of
livestock, the 'Usufructuary shall be obliged to
replace with the young thereof the animals that
die each year from natural causes, or are lost due
to ttie rapacity of beasts of prey (CIVIL CODE,
Alt. 591). .
·
• NOTE: This article applies only when the usufruct
. is on a
FLOCK and HERD of livestock (not
· merely two or three animals) (2 PARAS, supra at
620). d
There is Obligation to Replace:
a. If some animals die from natural causes; or
b. If some animals are lost due to rapacity of
beasts of prey (Id.).
NOTE: There is the duty to replace even though
the cause is fortuitous. Replacement should be
made from the young produced {Id.).
Illustration: If 15 catties died, but only
3 were produced, only 3 must be replaced; hence
also, if 15 died, but 20 were produced, the excess
of 5 belong to the usufructuary since they are
fruits (Id.).
There is NO Obligation to Replace:
a. If there is total loss of the animals because of
some unexpected or unnatural loss; or
b. If there is a partial loss (Id. at 621 ).
 f""5'Fl!Zl \ /

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In both of the foregoing instances, the Liability of the Naked Owner May Be
usufructuary must have no fault resulting in the Extinguished:
loss (Id.). a. By constituting a usufruct over an equivalent
estate;
NOTE: The remains, not the remainder should go b. By payment of a periodical pension
to the naked owner. The. usufruct continues on equivalent to the loss; or
the remainder, provided that the loss be by c. Any other similar way (Id.).
accident. and without fault of the usufructuary
(Id.). NOTE: It is believed that Art. 600 can also apply,
by analogy, to a pledged movDblc, pruviuud l11c1l
In case of sterile animals, since there are no the movable is in the usufructuary possession
young, the rule of usufruct over fungibles applies (/rj. at 632).
(CIVIL CODE, Art. 574).

9. Over the entire patrimony

In case of a universal usufruct, as when the RIGHTS OF THE
usufruct involves the entire patrimony and if at
the time of its constitution, the owner has debts, USUFRUCTUARY
or is obliged to make periodical payments, even (ARTS. 566-582)
if there should be no known capital, the
prm,isiOI)$ of Arts. 758 and 759 shall be applied
both with ·,~pect to the maintenance of the
usufruct and to the obligation of the usufructuary · ·suMMARY OF RIGHTS OF A
to pay such debts (CIVIL CODE, Art. 598). Thus: : :;: USUFRUCTUARY
a. If there is a stipulation for the payment by the·
usufructuary of the debts of the owner, the <t•\XA~ to t~.~,thing and its fruits
former is liable only for debts contracted by a-.: 'JQ,{f~C"eive and benefit from all the fruits -
the latter before the constitution of the natural, industrial and civil fruits · (CIVIL
usufruct (CIVIL CODE, Art. 758). CODE, A,rt. 566);
_ b. If there is no stipulation regarding the b. To ;,the half of the hidden treasure he
payment of debts, the usufructuary shall be acgldental!y finds· (CIVIL CODE, Art. 566 in
responsible only when the usufruct has been r~latioh to /:)rt. 438);
made in fraud of creditor{>_ (CIVIL CODE:, Art. c. ):9J?l'.l)9-Y 51~y, increase through accessions,
1
759). . ' s~!'y,1(tidij$;}'easements, and all benefits
in
inni:iren{ the property (CIVIL CODE, Art.
571); .
10. On mortgaged property .
The usu{ructuary of a mortgaged immovable ·. .d. To lease the thing, generally, for the same or
shall not be obliged to pay the debt for the 5-J1grter period as the usufruct (CIVIL CODE,
security of which the mortgage was constitute.cl. Art. 572);
Should the immovable be attached or sold e. To make on the property in usufruct such
judicially for the payment of the debt, the ~wner improvement. or expenses he may deem
proper and to remove the improvements
shall be liable to the usufructuary for whatever
the latter may lose by reason thereof (CIVIL provided no damage is caused to the
CODE, Art. 600). property (CIVIL CODE, Art. 579);
f. Right to set-off the improvements he may
Here, the usufruct is particular, constituted by have made on the P,roperty against any
will or by acts inter vivos, whether by onerous or damage to the same (CIVIL CODE, Ari. 580);
gratuitous title .. If the usufruct is universal, and
covering all the property of the owner, all or some g. To retain the thing until he is reimbursed for
of which are mortgaged, the liability of the advances for extraordinary expenses and
usufructuary to pay for the mortgage is governed taxes on the capital (CIVIL CODE, Art. 612).
by Art. 598 (DE LEON, Property, supra at 491).
2. As to the usufruct itself
NOTE: Since usufruct is a real right, the usufruct a. To alienate the usufructuary right (except
(as distinguished from the property itself) m~y be parental usufruct) (CIVIL CODE, Art. 572 in
mortgaged, not by the naked owner, but by the relation to FAMILY CODE, Arts. 225 and
usufructuary. In such a case, it is the usufructuary 226);
who should pay his own debt (2 PARAS, supra at b. To bring action and oblige owner thereof to
631). give him proper authority and necessary

proof in a usufruct to recover property or a
real right (CIVIL CODE, Art 578);
c. To exercise all the rights pertaining to the co-
owner with respect to the administration and
collection of fruits or interests from the
property in a usufruct of part of a common
property (CIVIL CODE, Art. 582);
d. Right to make use of the land and materials,
when building forming part of the usufruct on
immovable has been destroyed in any
manner (CIVIL CODE, Art. 607);
e. If usufructuary shares in insurance of
tenement in usufruct, and it was lost, he shall
continue in enjoyment of the new one if one
be constructed or receive interest on the
insurance indemnity (CIVIL CODE, Art. 608);
and
f. To remove improvements made by him if the
same will not injure the property (CIVIL
CODE, Art. 579).
3. As to advances and damages
a. To be reimbursed for ir1dispensflble
extraordinary repairs made by him in an
amount equal to the increase. in value which
the property may have acquired'by reason of
such repairs (Cl,VJL CODE, Art. 594);
h. To he reimhmsed for taxes on capitol
3dV3nced by him (CIVIL CODE, Alt. 597);
and
c. To be indemnified fordamages caused to
him by the naked owner. (CIVIL CODE, Art.
581).
RIGHTS OF THE USUFRUCTUARY:
1. As to the thing and its fruits
a. To receive and benefit from all the_ fruits - '
natural, industrial and civil fnJjts (CIVIL
CODE, Art. 566); ..
The usufructuary has the right to receive all
the fruits except:
i. Where the usufruct is constituted
only on a part of th€ fruits of a thing
(CIVlt CODE, Art. 564); or
ii. Where there is an agreement to the
contrary (CIVIL CODE, Art. 565).
RIGHTS TO THE FRUITS
Dividends
Products which fl)
diminish
capital
PROPERTY
Civil Law
Fruits
at
beginning
the usufruct
Fruits growing 0
at the
termination of
then usufruct
A dividend, whether in the form of stock, is
income and, consequently, should go to the
usufructuary, taking into consideration that a
stock dividend as well as a cash dividend can
be declared only out of profits of the
corporation (DE LEON, Property, supra at
430).
Since it is the obligation of the usufructuary
to pteserve the form and substance of the
property, unless the contrary is provided,
products (e.g., minerals extracted from
rnines) which when taken from the
property diminishes its substance are not
to be treated as fruits. They form part of the
capital atid be!onri to the naked owner (Id.).
Rules on Pending Natural or Industrial
Fruits (Art. 567)
i. Fruits pending at the beginning of
usufruct: ..
1.) Belong to the usufructuary;
2.) No necessity to refund the owner for
expenses incurred;
3.) But without prejudice to the right of
third persons.
· ii. J:=n:l1ts pending at the termination of
usufruct:
1.) Belong to the owner;
2.) But the owner must reimburse the
usufructuary for ordinary cultivation
expenses and for the seeds and
similar expenses, from the proceeds
of the fruits;
3.) Rights of innocent third parties
should not be prejudiced in relation
to Art. 546 and 443 of the Civil Code
(2 PARAS, supra at 589-590).
NOTE: If the expenses are greater than the
proceeds of the fruits, the owner has no
obligation to reimburse the difference (Id.).
REASON: There is no proceeds of fruits from
which the expenses should be paid (DE
LEON, Property, supra at 435).
 1
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MEM✓Q~Y AID
San Seda Univemlt'y Co!legf.l of Law - RGCT Bar Operations C•.mter
b. To the half of the hidden treasure, he
accidentally finds (CIVIi. CODE, Arl. 566 in
relation to Art. 438);
NOTE: The usufructuary is not entitled to any
hidden treasure which may be found on the
. property because it does not fall under the
term "fruits". He shsll be considered a
stranqer, i.e., if he is the finder, he is entitlerl
to 1/2 of the treasure with thP. othP.r h;:ilf
pertaining to the owner; if another person is
the finder, such person gets 1/2 as finder,
and the owner gets the other half as owner
(DE LEON, Property, supra at 430). If
somebody else is the finder, the usufructuary
gets nothing (4 MANRESA, supra at 386-
387).
c. To enjoy any increase through accessions,
servitudes, easements, and all benefits
inherent in the property (CIVIL CODE, Art.
571);
REASON: Usufruct covers the entire jus
fruendi and the entire jus utendi (2 PARAS,
supra at 594).
d. To lease the thing, generally, for the same or
shorter period as the usufruct (CIVIL CODE,
Art. 572);
The usufructuary may lease it even without
the owner's consent but; not being the owner,
the usufructuary, cannot alienate, pledge or
mortgage the thing itself (CIVIL CODE, Art.
572).
He may sell future crops subject to the rule
that those ungathered at the time when the
usufruct terminates belong to 'the owner.
When the things given ·in usufruct cannot be
used without being consumed or were
appraised when delivered, the usufructuary
may dispose of them (DE LEON, Property,
supra at 466).
2. As to the usufruct itself
If the lessee should damage the property,
the usufructuary shall answer to the owner.
(CIVIL CODE, Art. 590) subject to the latter's
right to demand reimbursP.ment from the
former. If the usufructuary cannot pay the
damage to the naked owner, his bond shall
be liable (CIVIL CODE, Art. 583(2)).
NOTE: A!! contracts entered into by the
usufructuary shall terminate upon the
expiration of the usufruct or earlier, except
rural leases which continue during the
agricultural year (CIVIL CODE, Art. 572 in
relation to Art. 1682).
e. To make such improvement or expenses he
may deem proper on thei property which is
the subject of the usufruct! (CIVIL CODE, Art.
579);
NOTE: The usufructuary has the right to
make useful improvements or expenses for
mere pleasure provided th;:it he must not
alter the form or substance of the property in
usufruct but he shall have no n~ht to be
indemnified therefor but he may either:
i. Remove the improvements if no
substantial damage to the property is
caused; or
ii. Set-off the improvements against
damages for which he may be liable
under Art. 580 (CIVIL CODE, Art. 579 in
relation to Art. 580).
f. Right to set-off the improvements he may
have made on the property against any
damage to the same (CIVIL CODE, Art. 580);
and
Requisites Before Set-off Can Be Made:
i. Damage must have been caused by the
usufructuary; and
ii. Improvements must have augmented the
value of the property (2 PARAS, supra at
608).
Rules Governing Art. 580:
I( damage exceeds· the value of the
iojprpvements, usufructuary is still liable
fo'r ttie difference;
ii. If the value of the improvements exceed
the damage, the difference does not go
· to the usufructuary, but accrues in favor
of the naked owner, in the absence of
stipulation to the contrary (Id. at 601).
g. To retain the thing until he is reimbursed for
advances for extraordinary expenses and
taxes on the capital (CIVIL CODE, Art. 612).
a. To alienate the usufructuary right (except
parental usufruct) (CIVIL CODE, Art. 572 in
relation to FAMILY CODE, Arts. 225 and
226);
GENERAL RULE: The usufrudumy may
pledge or mortgage the usufructuary right
(because he owns said right) but he cannot
pledge or mortgage the thing itself because
he does not own the thing (CIVIL CODE, Art.
572 in relation to Art. Art. 2085 (2)).

EXCEPTIONS:
I. The legal usutruct of the parent over his
or her children cannot be alienated,
pledged, or mortgaged for the right is
personal and intransmissible burdened
as it is by important obligations of the
parent for the benefit of said children
(CIVIL CODE, Art. 572 in relation to
FAMILY CODE, Arts. 225 and 226); and
ii. A usufruct given in consideration of the
person of the usufructuary to last during
his lifetime is also personal and,
therefore, intransmissible (2 PARAS,
supra at 424).
NOTE: All contracts entered into by the
usufructuary shall terminate upon the
expiration of the usufruct or earlier, except
rural leases which continue during the
agricultural year (CIVIL CODE, Art. 572 in
. r~wi~1?t9 Art.]68.2) . .. , .,
b. To bring action and oblige own,er thereof to .
give him proper authority and n~cessary
proof in a usufruct to recov€)r property or a
real right (CIVIL CODE; Art.. 578);
(See prior discussio~ on Special Usufructs,
particularly on Art. 578f
c. To exercise all the rights pertaining,to the co-
owner with respectto the administration and
collection of fruits< or interests 'trom the
property in a usufruct of part ofa common
property (CIVIL CODE, Art. 582);
(See discussion on ,Special UsuJrucfs,
particularly on Art. 582). ·
d. Right to make use of the land and materials:
i. if the usufruct is constituteq on
immovable property of which a building
forms part, and the latter should be
destroyed in any manner whatsoever
(usufruct on both the building and the
land); or
ii. if the usufruct is constituted ori a building
. only and the same should be destroyed
(usufruct on the building only) (CIVIL
CODE, Art. 607).
e.
NOTE: In this case. if the owner sho\Jld
wish to construct another building, he
shall have a right to occupy the land and
to make use of the materials, being
obliged to pay to the usufructuary, during
the continuance of the usufruct, the
interest upon the sum equivalent to the
value of the land and of the materials
(CIVIL CODE, Art. 607}. Precisely
PROPERTY
Civil Law
because there was no usufruct on the
land, the naked owner has preferential
right to its use (2 PARAS, supra at 634).
Usufruct. on a Building and/or the
Land Concerned (CIVIL CODE, Art.
607)
Rules:
1.) Usufruct on both building and land
(but the building is destroyed in any
manner whatsoever before . the
expiration of the period of the
usufruct):
a.) The usufruct on the building
ends, but the usufruct on the
land continues;
b.) Therefore, the usufructuary is
still entitled to the use of the land
and the use of whatever
materials of the house remain;
. c.) . If the naked owner wants ·to
rebuild but the usufructuary
refuses, it is the usufructuary
.who prevails for the use of the
land is still his for the remainder
ofthe period (2 PARAS, supra at
;640-641). .
2.) !Jsufruc\ on the building alone (but
the building is destroyed before the
termination of the period}:
a.) The., usufruct on the building
ends, but the usufructuary can
still make use of whatever
materials of the house remain;
b.} The usufructuary is entitled to
the use of the land;
c.)' Because there was no usufruct
on the land, the naked owner
has ,preferential right to its use
(Id. at 634-635).
NOTE: While the usufruct on a
building does not expressly include
the land on which it is constructed,
the land should be deemed included,
because there can be no building
without , land (DE LEON, Property,
supra at 472).
If usufructuary shares in insurance of
tenement in usufruct, and it was lost, he shall
continue in enjoyment of the new one if one
be constructed or receive interest on the
insurance indemnity (CIVIL CODE, Art. 608);
What constitutes as "sharing"
i. According to Manresa, the amount
respectively given is immaterial, and that
as long as both shared in paying the first
fi!l"llll!I' \ /
MEM:Ql<Y Al D
San Seda University College of Law - RGCT Bar Operations Canter
paragraph of Art. 608 applies, except if
there be a stipulation between them to
the contrary.
ii. A better solution perhaps would be to
make the sharing of the premiums
proportionate to the respective insurable
interests, the premium of the naked
owner being based on the insurable
interest of the naked ownership; that of
the usufructuary being based on the
insurable interest of the usufruct (2
PARAS, supra at 636).
NOTE: Article 608 is silent where the
usufructuary alone pays the insurance or,
where both share in the payment thereof, as
to the proportion of their contribution to the
insurance (DE LEON, Property, supra at
502).
Rules applicable to Art. 608:
i. The insurance indemnity (which cannot
be more than the value of the usufruct)
goes to the usufructuary alone, with-no
obligation on his part to share the.
indemnity with, nor to give legal interest
thereon to, the naked owner;
ii. The usufruct continues on the land for
the remaining period of the usufruct
· (unless the usufruct ,had .been
constituted on the building alone); ;md
iii. The usufructuary has no obligation to
construct a new building or to rebuild
(whether the usufruct was constituted on
the building alone, or on boththe building
and the land). The usufructuary surely
cannot be compelled to rebuild because
the insurance indemnity will be much
less than the cost of the building (2
PARAS, supra at 634).
NOTE: A contrary stipulation between
the
parties will prevail over the foregoing
rules (Id.).
Payment of Insurance on the Tenement Held
in Usufruct (CIVIL CODE, Art. 608)
a. If the naked owner and usufructuary share in
the premiums (and the property is
destroyed):
i. If the owner constructs a new building,
the usufruct continues on the new
building.
1.) If the cost of the building is less than
the insurance indemnity, the
usufructuary should get legal
interests on the difference.
2.) If the cost is more than the insurance
indemnity, the usufructuary enjoys
the new building completely, with no
obligation to give interest on the
additional cost of the naked owner (4
MANRESA 542-543 as cited in 2
PARAS, supra at 542-543).
ii. If the naked owner does not construct a
new building or rebuild, the naked owner
gets the insurance indemnity but should
pay the interest thereon to the
usufructuary (Id. at 643).
b. If the naked owner alone pays the insurance
and the usufructuary refused to share:
i. The naked owner gets the whole
indemnity (with the obligation to give the
interest thereon to the usufructuary).
ii. If the usufruct was on the building and
the land, the usufruct continues on the
land and the materials (CIVIL CODE, Art.
644).
iii. If the usufruct was on the building alone
the naked owner may rebuild, with or
without the approval of the usufructuary,
but he must pay interest on the value of
the land and the old materials that may
h,we been used (CIVIL CODE, Art. 607;
·/A' ';Jfl>ARAS, supra at 638).
c. If the: ~aked owner alone paid for the
insllrahce. but there is failure or omission of
usufructuary to share (Id. at 644).
effect is the saine as if there was
a,\::~,. .,, 'f· but
the usufructuary must
reimOurse the naked owner of the
usufructuary's share of the insurance
... premium (4 MANRESA 546 as cited in 2
1
·:\'\iJfPA'RAS, supra at 644).
d. If the usufructuary alone pays the insurance
premium:
i. The insurance indemnity goes to the
usufructuary alone, with no obligation on
his part to share the indemnity with, nor
to give legal interest thereon to, the
naked owner.
ii. The usufruct continues on the land for
the remaining period of the usufruct.
iii. The usufructuary has· no obligation to
construct a new building or to rebuild (Id.
at 644).
3. As to advances and damages
a. To be reimbursed for indispensable
extraordinary repairs made by him in an
amount eqwc1I to the increase in value which
the property may have acquired by reason of
such repairs (CIVIL CODE, Art. 594);

What constitutes as "extraordinary
repairs"
1. Those required by the wear and tear due
to the natural use of the thing but not
indispensable for its preservation;
ii. Those required by the deterioration of or
damage to the thing caused by
exceptional circumstances but not
indispensable for its preservation; and
iii. Those required by the deterioration of or
damage to the thing caused by
exceptional circumstances and are
indispensable for its preservation (DE
LEON, Property, supra at 444).
Requisites· before the usufructuary may
make extraordinary repairs: (No-FaiN)
c. There must be due Notification to naked
owner of urgency;
d. The naked owner Failed to make them;
and
e. The repair is Needed for preservation (2
PARAS, supra at 618). ·
Right of Usufructuary Who Has Made
Extraordinary Repairs:
i. Get increase in value (CIVIL CODE, Art.
594) or get reimbursement of expens~s
(CIVIL CODE, Art. 612); and
ii. Right of retention until paid (CIVIL
CODE, Art. 612).
b. To be reimburseci for taxes oncapital
advanced by him (CIVIL CODE, Aft. 597);
The naked owner pays for taxes imposed
directly on the capital (provided they are .not
annual - example, the estate tax) (2 ·
PARAS, supra at 621).
If advanced (in the meantime) by" the
usufructuary, said usufructuary:
i. Should be reimbursed the amount paid
without legal interest:
1.) If the advance was made voluntarily
the reimbursement shall be made at
the termination of the usufruct; or
2.) If the usufructuary was forced to pay,
the reimbursement should be made
thereafter (Id.).
ii. Is entitled to retention until paid (CIVIL
CODE, Art. 612; 2 PARAS, supra at
621).
c. To be indemnified for damages caused to
him by the naked owner (CIVIL CODE, Art.
581); and
The naked owner may alienate the property
in usufruct because the title (dominium
PROPERTY
Civil Law
directum) remain3 ve3ted in him but he
cannot:
1. Alter the form or substance of the
property; and
ii. Do anything thereon which may cause a
diminution in the value of the usufruct or
be prejudicial to the rights of the
l!sufructuary.
Otherwise, he would be liable for damages
under Art. 581.
Illustration:
i. In case of double sale of the usufructuary
right, Art. 1544 relating to a double sale
applies. Thus, if the second buyer in
good faith registers the usufruct, he can
oust the first buyer who did not register,
even though the latter be in possession.
The right of the first usufructuary
would be to proceed against the naked
owner for breach of the warranty against
eviction;
ii: In case of succession, if the naked owner
bequeaths (if personal property) or
devises (if real property) to another
through a will, the legatee or devisee
should respect the usufruct;
iii. In case the property subject of the
usufrud is sold to another, the buyer
must respect the usufruct in case it is
. registered or known to him, otherwise, he
can oust the usufructuary, who can then
look to the naked owner for damages (2
PARAS, supra at 601-602).
d. To remove improvements made by him if the
same will not injure the property (CIVIL
CODE, Art. 579).
NOTE: While a possessor in good faith is
entitled to a refund for useful improvements,
a usufructuary is not (2 PARAS, supra at
600).
 fW@Fw§ \ I
MEM:Q~Y AID
San Seda Urnvers,ty College of Law - RGCT Bar Operations Center
OBLIGATIONS O_F THE
USUFRUCTUARY
(ARTS. 583-602)
SUMMARY OF THE OBLIGATIONS OF
THE USUFRUCTUARY:
1. Before the duration of the usufructuary:
a. To make an inventory of the property (CIVIL
CODE, Art. 583); and
b. To give security (CIVIL CODE, Art. 583).
2. During the usufructuary:
a. To take care of the property as a good father
of a family (CIVIL CODE, Art 589);
b. To answer for the acts of the substitute
(CIVIL CODE, Art. 590) without prejudice to
his right of action against latter;
c. To replace with the young thereof animals
that die or are lost when the usufruct is
constituted on flock or herd of livestock
(CIVIL CODE, Art. 591);
d. To make ordinary repairs (CIVIL CODE, Art
592, Par.1);
e. To permit works and improvements by the
naked owner not prejudicial to the usufruct
(CIVIL CODE, Art. 595);
f. To pay annual taxes and charges on the
fruits (CIVIL CODE, Art. 596);
g. To pay interest on taxes on capital paid by
the naked owner (CIVIL CODE, Art. 597);
h. To pay debts when the usufrucfis constituted
on the whole patrimony (CIVIL CODE, Art.
598);
i. To secure the naked owner's or court's
approval to collect credits in certain cases.
(CIVIL CODE, Art. 599);
j. To notify the owner of any prejudicial act
committed by third persons (CIVIL CODE,
Art. 601 ); and
k. To pay expenses, costs, and liabilities in suits
brought with regard to the usufruct (CIVIL
CODE, Art. 602).
3. At the termination of the usufruct:
a. To return the thing in usufruct to the owner
unless there is a right of retention (CIVIL
CODE, Art. 612);
b. To pay legal interest on the amount spent by
the owner for extraordinary repairs or taxes
on the capital (CIVIL CODE, Arts. 594 and
597); and
c. To indemnify the owner for any loss due to
his negligence or of his transferees (CIVIL
CODE, Arts. 589 and 590).
OBLIGATIONS OF THE USUFRUCTUARY
BEFORE EXERCISING THE USUFRUCT;
1. To make an inventory of all the property
(CIVIL CODE, Art. 583(1)); and
The usufructuary, before entering upon the
enjoyment of the property, is obliged to make,
after notice to the owner or his legitimate
representative, an inventory of all the property,
which shall contain an appraisal of the movables
and a description of the condition of the
immovables (CIVIL CODE, Art. 583(1)).
NOTE: The inventory is merely a condition to be
complied with before the usufructuary may enter
into possession and enjoyment of the property (2
PARAS, supra at 604).
Requirements for the making of inventory:
(NDMAE)
a. The owner (or his legitimate representative)
must be previously Notified to enable him to
correct errors in the inventory, if he desires;
NOTE: The law says legitimate, not legal
repr(f§fmtative, so that notice may be given
_jn •Pf(l}per cases to the owner's parents,
spouse, guardian, adm·1nistrator, or agent
(DE Lfi;ON, Property, supra at 449).
Effect of Non-Notification: The inventory
can go on. but the naked owner may later
poirit out discrepancies and omissions in the
lnyei)ttprj.'{kl.MANRESA 450-452 as cited in
DELEON, Property, supra at 450).
The condition of the immovables must be
: !!~scribed;
c. · fhe _Movables must be 1ppraised;
d. gxpenses are to be borne by the
usufructuary, since the duty is his (2 PARAS,
supra at 611).
As a rule, no form is required except that
when there are real properties, Art. 1358
demands a public instrument to affect third
parties (Id.).
When Inventory is NOT Required:
a. When no one will be injured thereby (CIVIL
CODE, Art. 585), provided the naked O'.-i\'ner
consents;
b. In case of waiver by the naked owner or the
law; or
c. When there is stipulation in a will or contract
(2 PARAS, supra at 612).
2. To give security (CIVIL CODE, Art. 583)'
The usufructuary, before entering upon the
enjoyment of the property, is obliged to give

security, binding himself to fulfill the obligations
imposed upon him (CIVIL CODE, Art. 583).
This article does not apply if the 11sufructuary is
exempted from giving security. It applies only if
he is required but cannot afford to give security
(2 PARAS, supra aU318).
NOTE: Since the law does not specify what
kind of security should be given, it follows that
any kind of sufficient security shouid be allowed
·· such us u cush or personal bond, mortgage,
etc. (Id.).
GENERAL RULE: The usufructuary has the
obligation to give security, binding himself to fulfill
the obligations imposed upon him in accordance
with the Civil Code.
EXCEPTIONS:
a. When no one will be injured thereby (CIVIL
CODE, Art. 585);
b. When there is waiver by the naked owner,
(4 MANRESA, supra at 464-467) or there is
a stipulation either in a will or by contract;
c. When the usufructuary is the _donor of the
property who has reserved the usufrud
(CIVIL CODE, Art. 584); . instrumenf be converted into regular
d. When there is a parental usufruct, i.e., in the
c03c of porcnts who ore usufruotuorios of
their children's property (FAMILY CODE, Art.
225); and
e. In cases of caucionjuratoria (CIVIL CODE,
Art. 587; 2 PARAS, supra;at 617).
Caucion juratoria is a promise under oath to
take good care of the property and return the
same at the end of the usufruct. It takes fhe
place of a bond or security and, is based on
necessity and humanity (Id.). ··
NOTE: In this kind of usufruct, the·
usufructuary has no right to alienate his
usufructuary right or lease the same for that
would mean that he does not need the house
or the furniture or the implements (Id.).
Requisites Before Caucion Juratoria is
Allowed: (PANS)
i. _eroper court petition;
ii. Approval of the court;
iii. Necessity for delivery of furniture,
implements or house included in the
usufruct; and
iv. ~worn promise (Id.).
Retroactive Effect of Security
After the security has been given by the
usufructuary, he shall have a right to all the
proceeds and benefits from the da~ on which, in
PROPERTY
Civil Law
accordance with the title constituting the usufruct,
he should have commenced to receive them
(CIVIL CODE, Art. 588).
Illustration: If the usufruct commences January
3, 2014 but security is given March 3, 2014, the
usufructuary is entitled to all the proceeds and
benefits of the usufruct from January 3, 2014.
EFFECTS OF FAILURE TO GIVE
SECURITY IF NOT EXEMPTED (CIVIL
CODE, ART. 586):
a. On the rights of the naked owner
i. He may deliver the property to the
usufructuary;
ii. He may choose retention of the property
as administrator;
iii. He may demand receivership or
administration (by another) of the real
property, sale of movable, conversion or
· • deposit of credit instruments; or
investment of cash or profits (2 PARAS,
at
supra 609);
iv. He may demand that the movables be
~old;
v. He· may demand that the credit
certificate of deposit; or
vi. He may d~mand that the cash and
credits.,. be, invested in safe securities
(DE (.:EON, Property, supra at 452).
b. Qn the right~ ofthe usufructuary
i. ·· He cannot possess the property until he
giyes security;
ii. He cannot administer the property;
hence, he· cannot execute a lease
thereqn (2 PARAS, supra at 616); ·
iii. He cannot collect credits that have
matured, nor invest them unless the
Court or the naked owner consents
(CIVIL CODE, Art. 599);
iv. But the usufructuary can alienate his
right to the usufruct. The grantee may
possess the same from the moment he
gives security (2PARAS, supra at 616).
NOTE: If the movable be sold, the cash
belongs to the naked owner, but the interest
thereon (6% per annum) belongs to the
usufructuary (Id.).
OBLIGATIONS OF THE USUFRUCTUARY
DURING THE USUFRUCT
1. To take care of the property as a good
father of a family (CIVIL CODE, Art. 589);
The usufructuary shall take care of the things
given in usufruct as a good father of a family
(CIVIL CODE, Art. 589).
 fflN@wti \ 1
ME~Q~Y AID
San Beda University Coftege of Law · RGCT Ba, Op,;rations Cente,
Effect of Bad Use of the Property Held in
Usufruct (CIVIL CODE, Art. 610):
a. If bad use does not cat,Jse considerable injury
to the naked owner, usufruct continues, and
thA n::ik0.rl ownf!r r.,rnnot demand
administration by himself.
b. If bad use causes considerable injury to the
naked owner, usufruct continues but the
naked owner can demand delivery to and
administration by him, but he will be obliged
to pay net proceeds to the usufructuary (2
PARAS, supra at 646).
Being merely an administrator, he cannot sell or
alienate the right to the usufruct, though he may
still alienate the property, without prejudice to the
usufruct (Id. at 647).
NOTE: The Court will determine whether or not
there is considerable injury to the naked owner ( 4
MANRESA, supra at 548-549 as cited in 2
PARAS, supra at 647).
2. To make ordinary repairs (CIVIL CODE, Art.
592, Par.1);
The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct
(CIVIL CODE, Art. 592, Par. 1).
Ordinary repairs are understood such
required by the wear and tear due to the
use of thing and are indispensable
preservation (CIVIL CODE, Art_. 592, Par.
For the usufructuary to be responsible for
ordinary repairs, the following must concur:
(NPOF)
a. They are required by the wear and tear due
to the Normal or natural use of the thing;
b. They are indispensable for f reservation;
c. They must have Qccurred during the
existence of the usufruct; and
d. They must have happened with or without the
.Ea ult of the usufructuary (2 PARAS, supra at
622).
NOTE: If naked owner had demanded the repair,
and the usufructuary still fails to do so, the owner
may make them (personally or through another)
at the expense of the usufructuary (CIVIL CODE,
Art. 592, Par.2).
Exemption from the duty to make or pay for
the necessary repairs by renouncing the
usufruct:
a. If the usufructuary had no fault\ he can
renounce, but he must surrender the fruits
received.
b. If he had fault, he cannot renounce. He would
still be liable for damages (2 PARAS, supra
at 622).
3. To notify the owner of urgent extra-
ordinary repairs (CIVIL CODE, Arl. 593);
Extraordinary repairs shall be at the expense of
the owner. ThP. 11s11frnr.h 1;:iry is ohligP.rl to notify
the owner when the need for such repairs I ur:-Jent
(CIVIL CODE, Art. 593).
Kinds of extra-ordinary repairs:
a. Those caused by natural use but not needed
for preservation.
i. The naked owner should be held liable,
whether or not he is notified by the
usufructuary.
ii. The law does not require the naked
owner to make them; what is important is
that he will bear the expenses made by
the usufructuary (2 PARAS, supra at
624).
b. Those caused by abnormal or exceptional
circumstances and needed for
preservation.
i. The naked owner shall be held liable.
ii. The usufructuary is allowed to make
them, with the right to get the increase in
value and the right of retention (until
~id) at the termination of the usufruct,
•···provided that there was notification by
th1:1,usufructuary and failure to repair by
as are the naked owner (Id.).
natural c. Those· ca"t,ised by abnormal or exceptional
for its circumstances but are not needed for
2). preservati<)n.
i> -The naked owner is responsible.
ii'.F:ftM?us'ofructuary cannot compel the
na.ked owner to make such repairs and
he is not allowed to make. them even if
the naked owner has failed to make them
''(Id.).
4. To answer for the acts of the substitute
(CIVIL CODE, Art 590) without prejudice
to his right of action against latter;
A usufructuary who alienates or leases his right
of usufruct shall answer for any damage which
the things in usufruct may suffer through the fault
or negligence .of the person who substitutes· him
(CIVIL CODE, Art. 590).
REASON: It is the duty of the usufructuary to
preserve the form and substance of the thing in
usufruct (DE LEON, f'roperty supra at 455).
NOTE: Even when there is a sub-usufructuary, it
is still the usufructuary who answers to the naked
owner for ordinary repairs, taxes on tho fruits, etc.
(2 PARAS, supra at 619).
 :, ":~~ '\. ~' ~~"' :- : '~; -. ~~,' ;
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PROPERTY
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5. To replace with the young thereof 7. To pay annual taxes and charges and of
animals that die or are lost from natural those considered as a lien on the fruits
causes or due to rapacity of beasts or (CIVIL CODE, Art. 596);
prey when the usufruct is constituted on The payment of annual charges and taxes and of
flock or herd of livestock (CIVIL CODE, Art. those considered as a lien on the fruits, shall be
591);, at the expense of the usufructuary for all the time
If the usufruct be constituted on a flock or herd of that the usufruct lasts (CIVIL CODE, Art. 596).
livestock, the usufructuary shall be obliged to
replace with the young thereof the animals that CHARGES OR TAXES TO BE PAID
die each year from natural causes or are lost due
to the rapacity of beasts of prey (CIVIL CODE,
Art 591),

REASON: This obligation is related to the need

to preserve the form and substance of the
animals, i.e,, the same number and condition (DE Land taxes Ii]
LEON, Property, supra at 484).
Taxes levied @
NOTE: Sterile animals cannot be replaced and on the capital
shall be treated as fungible (CIVIL CODE, Art.
591, Par. 4). What Charges or Taxes the Usufructuary
MustPay:
(For further discussion, see the· section on a. The annual charges (in the fruits);
Special Usufructs, particularly on Art. 591 ). b. The.annual taxes on the fruits; and
c. Theoretically; annual taxes on the land
6. To permit works and improvements by (including real estate tax) should also be paid
the naked owner not prejudicial to the by the usufructuary (2 PARAS, supra at 626-
usufruct (CIVIL CODE, Art.. 595); 627). .
The owner may construct any works and make
any improvements of which the immovable in NOTE: A real prqperty tax, being a burden upon
usufruct is susceptible, or make new plantings the capital, should be paid by the owner of the
thEireon if it be rural, provided 'that such acts do land, and not oy a usufructuary (Board of
not cause a diminution in the value of the usufruct Assessment Appeals of Zamboanga de/ Sur v.
or prejudice the rights of the usufructucJ.ry (CIVIL Samar Mining Company, G.R. No. L-28034,
CODE, Art. 595). February 27, 1971).

Although the property is in the possession of the Other C~arges on the Fruits the Usufructuary
usufructuary, the naked owner may still- · Must Pay:
a. Construct works; a. · Ordinary repairs; and
b. Make improvements; and b: Necessary cultivation expenses (2 PARAS,
C, Make new plantings (if rural) supra at 621).

Provided: 8. To pay interest on taxes on capital paid

a. The value of the usufruct is not diminished; by the naked owner (CIVIL CODE, Art.
or 597);
b. The right of the usufructuary is not prejudiced The taxes which, during the usufruct, may be
(CIVIL CODE, Art. 595). ·imposed directly on the capital, shall be at the
expense of the owner.
Effect of Increase in the Value of the Usufruct
a. The usufructuary's profits will increase (for he If the latter has paid them, the usufructuary shall
will be entitled to the use and profits thereof); pay him the proper interest on the sums which
b. The usufructuary does not have to pay legal may have been paid in that character; and, if the
interest on the improvement (2 PARAS, said sums have been advanced by the
supra at 619). usufructuary, he shall recover the amount thereof
at the _termination of the usufruct (CIVIL CODE,
Art. 597).
 MEM:Q~Y Al D
San Beda University COiiege of lBw - RGCT Bar Operations Center
The naked owner pays for the taxes imposed
directly on the capital provided they are not
annual (2 PARAS, supra at 626).
Rules regarding payment of interest on taxes
on capital:
a. If paid by the naked owner, he can demand
legal interest on the sum paid (CIVIL CODE,
Art. 597, Par. 2);
b. If advanced (in the meantime) by the
usufructuary, said usufructuary -
i. Should be reimbursed the amount paid
without legal interest.
ii. Is entitled to retention until paid (CIVIL
CODE, Art. 612).
9. To pay debts when the usufruct is
constituted on the whole patrimony
(CIVIL CODE, Arl. 598);
NOTE: See discussion on Special Usufructs,
particularly on Art. 598.
10. To secure the naked owner's or court's
approval to collect credits in certair
cases (CIVIL CODE, Arl. 599); . Ql3LIGATIONS AT THE TERMINATION
The usufructuary may claim any matured credili
which form a part of the usufruct if he has given
or gives the proper security, If (1) l:ie has been
excused from giving security or (2) has not been
able to give it, (3) or if that given is not sufficient,
he shall need the authorization of the owner, or
of the court in default thereof, to collect such
credit (CIVIL CODE, Art. 599).
Rules:
a. If the usufructuary has given security,
collection and investment cari be done
without the approval or the court or of the
naked owner.
b. If he has not given security, or when he is
exempted or when there was only a caucion
juratoria, collection and investment can be
done only with the approval of the court or
the naked owner.
If the credit is collected, the same belongs to the
naked owner, l.Jul lhe usufructuary gets its
usufruct.
Failure to collect due to usufructuary's fault or
negligence makes the usufructuary liable if the
credit has matured (2 PARAS; supra at 624).
11. To notify the owner of any prejudicial act
committed by third persons (CIVIL CODE,
Arl. 601); and
The usufructuary shall be obliged to notify the
owner of any act of a third person, of which he
may have knowledge that may be prejudicial to
the rights of ownership, and he shall be liable
should he not do so, for damages, as if they had
been caused through his own fault (CIVIL CODE,
Art. 601).
12. To pay for court expenses and costs
regarding usufruct (CIVIL CODE, Arl.
602).
The expenses, costs, and liabilities in suits
brought with regard to the usufruct shall be borne
by the usufructuary (CIVIL CODE, Art. 6~2).
This article particularly applies only when the
usufructuary has lost the case (2 PARAS, supra
at 626).
NOTE: Since the expenses, costs and liabilities
mentioned are incurred in connection with
litigation over the possession, use and enjoyment
r' the thing in usufruct affecting the rights of the
ySi,,fructuary, it is just that they are borne by him.
ct C,'Ollrse, if the litigation involves only the naked
o,Nnership, the owner should assume them (DE
LEON, Property, supra at 492).
OF THE.U$lJFRUCT: {RPI)
1. To Betum the thing in usufruct to the owner
unless therejs a right of retention (CIVIL CODE,
Art. 612);
2. To _!:ay legal interest 011 the amount spent by the
owner for extraordinary repairs or taxes on the
capital (CIVIL c;poE, Arts. 594 and 597); and
3. To lnderi)nifythe owner for any losses due to his
neglige'rice or of his transferees (CIVIL CODE,
Arts. -589 and 590).
RIGHTSAND
OBLIGATIONS OF THE
NAKED OWNER
RIGHTS OF THE OWNER DURING THE
USUFRUCT: (RAC)
1. He Retains title;
2. He may ~lienate the property, but he may not:
a. Alter the form or substance of the thing; or
b. Do anything prejudicial to the usufructuary
(CIVIL CODE, Art. 581).
3. He may £onstruct buildings, make improvements
and plantings, provided:
a. That such acts do not cause a diminution in
the value of the usufruct; or
b. That such acts do not prejudice the right of
the usufructuary (CIVIL CODE, Art. 595).
 ~~, ff, '\ \ , I :/ l )~~ > ,/ , ', ~~
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PROPERTY
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', · ·, · , Ir;', Civil Law
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OBLIGATIONS OF THE OWNER DURING EXCEPTIONS:

THE USUFRUCT: (RCR) a. A usufruct constituted in favor of several
persons living at the same time shall not be
1. To make Reimbursement for advances of the extinguished until the death of the last
usufructuary (CIVIL CODE, Art. 597); survivor (CIVIL CODE, Art. 611 );
2. To fancel the security, upon discharge of the
usufructuary's obligations (CIVIL CODE, Art.
Rule in Case of Multiple Usufruct (CIVIL
612): a·nd
CODE, Art. 611)
3. To ,Respect leases of rural lands by the
i. If constituted simultaneously, it is
usufructuary for the balance of the agricultural
evident that all the usufructuaries must
year (CIVIL CODE, Art. 572).
be alive at the time of the constitution.
The death of the last survivor
extinguishes the usufruct.
ii. If constituted successively, Art. 611
EXTINGUISHMENT OF also applies. However, to constitute
USUFRUCT successive usufructs, it is essential that:
1.) If the successive usufructs were
(ARTS. 603-612) constituted by virtue of a donation,
all the donee-usufructuaries must be
living at the time of the constitution-
donation of the usufruct (CIVIL
SUMMARY OF EXTINGUISHNIENT OF . CODE, Art. 756).
USUFRUCT: 2.) .If the successive usufructs were
Usufruct is extinguished: (DEM-RTT-P) constituted by virtue of a last will,
1. By the _Qeath of the ustifructuary, unless a there should be only 2 successive
contrary intention clearly appears; usufructuaries; and both must have
2. By the .!;_xpiration of the period for which it was been alive at the time of the
constituted, or by the fulfillment of any resolutory testator's death (CIVIL CODE, Arts.
condition provided · in the t!tle creating the 863 and 869; 2 PARAS, supra at
usufruct; · . 647-648).
3. By Merger of the usufruct and ownersbip in the
same person; · - NOTE: The owner of the property imposed
4. By ,Renunciation of the usuftuctuary; as condition for the continuation of the
5. By the Iotal loss of the thing in usufruct; usufruct over the property by his kins that
6. By the Iermination of the right of the person they should rnaintain an atmosphere of
constituting the usufruct; or. cooperation,_ live in harmony and avoid
7. By ,Erescription (CIVIL CODE, Art. 603). ~jckering. There was a continuing animosity
among the kins, hence, it is a ground for
termination of the usufruct. The deterioration
MODES OF EXTINGUISHMENT OF of. the relations of the kins to an almost
USUFRUCT: (DEM-RTT-PO) (CIVIL CODE, irretrievable level is a good reason for the
Art. 603): termination of the usufruct (Moralidad v.
1. Qeath of the usufructuary. Pemes, G.R. No. 152809, August 3, 2006).
GENERAL RULE: Death of the usufructuary
generally ends the usufruct. b. In case there is a period fixed based on the
number of years that would elapse before a
This is true even if a resolutory condition or period person would reach a certain age, unless the
has been stipulated and death occurs before the period was expressly granted only in
expiration of the period or fulfillment of the consideration of the existence of such
condition (DE LEON, Property, supra at 465). person, in which case it ends at the death of
said person (CIVIL CODE, Art. 606); c1nd
NOTE: It is the death of the usufructuary which c. In case the contrary intention clearly appears
generally results in the termination of the (4 MANRESA 525-528 as cited in 2 PARAS
usufruct Hence, the death of the naked owner supra at 635). '
will not extinguish the usufruct unless the parties
expressly so stipulate (RABUYA, Property, supra 2. !;xpiration of the period or fulfillment of
at 497). the resolutorycondition.
If the usufructuary is a juridical person, the term
should not exceed 50 years {CIVIL CODE, Art.
605):
 fJ+iii4#% \ 1
MEM:Q-RY Al D
San Seda University Collage of Law - RGCT Bar· Operations Center
Premature abandonment or dissolution of the
juridical entity extinguishes the usufruct (CIVIL
CODE, Art. 605).
3. Merger of the usufruct and ownership in
the same person.
Takes place when the rights of usufruct and
owner are acquired by one and the same person
who becomes the absolute owner of the property
(DE LEON, Property, supra at 467).
Illustration: H was the usufructuary of land
owned by X. X died, leaving in his will, the naked
ownership of the land to H. The usufruct is
extinguished because now, H is both the naked
owner and the usufructuary (2 PARAS, supra at
629).
4. B_enunciation of the usufructuary.
The surrender of the rights as usufructuary refers
to a voluntary surrender of the very rights which
the usufructuary has, made by him with the intent
to so surrender them (City of Manila v. Monte de
Piedad, G.R. No. 1975, Nov. 10, 1905).
NOTE: It is really an abandonment by. the
usufructuary of his right and does not, therefore,
require the consent of the naked o:wner but it is
subject to the rights of creditors (DE LEON,
Property, supra at 496). · extjngoish the U$Ufruct for the rights of the
5. Iotal loss of the thing.
GENERAL RULE: A total loss would result to the
extinguishment of the usufruct. A thing is lost
when it perishes, or goes out ofcommerce, or
disappears in such a manner that its existence is
unknown or it cannot be recovered. Hence, loss
may either be physical or juridical (RABUYA,
Property, supra at 499).
EXCEPTIONS:
a. If the usufruct is constituted on a building and
the latter is destroyed without the fault of the
usufructuary, the usufruct is not extinguished
and Arts. 607-608 would apply; and
b. If the property held in usufruct was
expropriated for public use, the usufruct is
not extinguished.
Rule in Case of Expropriation (CIVIL CODE,
Art. 609):
a. If the naked owner alone was given the
indemnity, he has the option to:
i. Replace with equivalent thing; or
ii. Pay to the usufructuary legal interest on
the indemnity, with the obligation to give
security for the payment of interest.
b. If both the naked owner and the usufructuary
were separately given indemnity, each own
the indemnity given to him, the usufruct being
totally extinguished.
c. If the usufructuary alone was given the
indemnity, he must give it to the naked owner
and compel the latter to return either the
interest or to replace the property. He may
even deduct the interest himself, if the naked
owner fails to obJect (2 PARAS, supra at 645
- 646).
NOTE: A usufruct is not extinguished by bad use
of the thing held in usufruct (RABUYA, Property,
supra at 500).
6. Iermination of right of the person
constituting the usufruct.
The termination refers to the right of the person
constituting the usufruct, not to a condition
imposed upon the usufruct itself. Thus, if a
person constituted the usufruct with the belief
that he was the owner but was later defeated in
an action concerning its ownership, it follows that
the usufru9t must also terminate (DE LEON,
Properly, supra at 497).
a; lf th~j1;1sufructuary has a sub-usufructuary,
'. the: l~tter ends at the time the usufruct is
extingvished;
b. Death: of the naked owner does not
naked owner are transmitted to his own heirs
Ci PARAS,''.supra at 637).
7. f rescidptiijn/
a. This refers to the acquisitive prescription
(CIVIL CODE, Arts. 1006 and 1117) by a
c$,tranger either of the usufruct or of the naked
. ownership (CIVIL CODE, 603(7)).
b. Mere non-use of the usufructuary does not
terminate the usufruct, unless it is also a
renunciation (2 PARAS, supra at 631).
8. Qther causes
a. Annulment/rescission of contract;
b. Mutual consent;
c. Attainment of age of majority of a child whose
property is under parental usufructuary
(FAMILY CODE, Arts. 225 and 226); and
d. Other legal causes resulting in the
termination of the usufruct (2 PARAS, supra
at 631).

EASEMENTOR
SERVITUDE
(ARTS. 613-693)
EASEMENT- - - · · · · - - - - -
An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of
another immovable belonging to a different owner
(CIVIL CODE, Art. 613). However, servitudes_ may
also be established for the benefit of a community, or
of one or more persons to whom the encumbered
estate does not belong (CIVIL CODE, Art. 614).
2. It is enjoyed over another immovabl~,
The other aspect of easement or servitude refers to
the right of servitude (jus servitutes), or the right
which corresponds to the burden imposed, From
this viewpoint, an easement or servitude may thus be
defined as "a real right, constituted on the corpqreal
immovable property of another, by virtue of which the
owner has to refrain from doing, or must allow
someone to do, something on his property, for the
benefit of another thing or person" (RABUYA,
Property, supra at 502).
While Article 613 speaks of a: real easement,
Article 614 speaks of a persona) easem_ent. Both .
however are real rights, but "will prejudice third
persons only if duly registered (2 f ARAS, supra at
652).
3. It involves two neighboring estates (in
(Id. at 651; RABUYA, Property, supra at 502).
4.
NOTE: As used in the Civil Code, easement is
equivalent to servitude (2 PARAS, supra at 650).
CHARACTERISTICS:
1. It is a real right but will affect third persons
only when duly registered;
PROPERTY
Civil Law
NOTE: Easement is a real right since the right is
constituted on the thing itself and not upon its
owner or its occupant (RABUYA, Prope,ty, supra
at 502).
As a consequence, the right avails against every
person whomsoever, who may happen, for the
time being, to have any interest in the thing, or,
as adverse possessor, to exercise a right of
dominion over it. The right consists of a limited
use and enjoyment of the tiling without
possessio11 and gives rise to an action in rem in
favor of the owner of the tenement of the
· easement and against any possessor of the
servient estate (Id.).
never on one's own property;
It operates as a limitation on the title of the owner
of the servient estate, specifically, his right to
use dus utendi). Inasmuch as every easement
or servitude is a limitation upon one's ownership,
irfollows that no man has a right of servitude in a
tiling of which he is Ille owner: Nu/Ii res sua servit.
For if he !lad, he would have a right in the thing
against himself: which is, of course, absurd
because things serve their owner by reason of
ownership and not b.ecause of any servitude (Id.
at 503).
Note: The term "immovable," as used in the
law, inust be understood in its common and not
in its legal sense. What the law treats of are not
all immovl']bles as defined by tile Civil Code, but
only those which are so by their nature (are really
incapable of being moved), such as lands, roads,
buildings, and constructions adhering to tile soil
(DE LEON, Property, supra at 507).
case of real easements)- the dominant and
the servient estate (CIVIL CODE, Art. 613);
Dominant Estate
The immovable in favor of which the easement is
established (CIVIL CODE, Art. 613).
Servient Estate
That which is subjected to easement {CIVIL
CODE, Art. 613).
It is inseparable from the estate to which
it is attached, and, therefore, cannot be
alienated or mortgaged independently of the
estate .(CIVIL CODE, Art 617);
 1
fM@@&ffi '
MEM:v-RY AID
San Seda Univers!ty C'..oilege of Law - RG\.T 8ar O0siat1ons Center

5. It is indivisible for it is not affected by the EASEMENT V. USUFRUCT

division of the estate between two or more
persons. (CIVIL CODE, Art. 618);

As a consequence, even if the servient and

dominant estates are divided between two or
more persons, the easement or the servitude
continues to attach to the estates originally
affected (RABUYA, Properly, supra at 515).

6. It is a right limited by the needs of the

dominant owner or estate, without
possession;

7. It cannot consist in the doing of an act

unless the act is accessory in relation to a
real easement; and
8. It is a limitation on the servient owner's rights
of ownership for the benefit of the dominant
owner; and therefore, it is not presumed (DE
LEON, Properly, supra at 478-479).

NOTE: It is an abnormal restriction on the

property rights of the servient owner. Thus, it is
incumbent upon the dominant estate owner to
establish the presence of all the preconditions for
easement (Cristobal v. CA, G. R. No. 125339,
June 22, 1998).

EASEMENT V. LEASE
(Id. At 482; 2 PARAS, supra at 652).

SUMMARY· OF EASEMENT
CLASSIFICATION
Real right, whether Real right only when it is
1, 'As to Recipient of Benefit:
registered or not. registered, or when its
a .. Real/Predial; or
subject matter is real
b. Personal.
property and the
2. As to Source:
duration exceeds one
a. Voluntary;
year.
b. Legal; or
C. Mixed.
3. As to Exercise
a. Continuous; or
b. Discontinuous.
4. As to Indication of their existence
a. Apparent; or
b. Non-apparent.
There is a limited right Limited right to both the 5. As to the Duty of the Servient Esta~e
to the use of real possession and use of a. Positive; or
property of another but another's property. b. Negative.
without the right of 6. As to the Right Given
possession. a. Partial use of servient estate;
(DE LEON, Property, supra at 481). b. Participation in ovvnership;
c. Prevention of servient estate from performing
a specific act of ownership; or
d. Acquisition of specific materials or objects
from the servient estate.
 PROPERTY
Civil Law

CLASSIFICATION OF EASEMENTS: intervention of any act of man (CIVIL CODE,

Art. 615). .
1. As to recipient of benefit:
a. Real/ Predial - imposed upon an immovable
Example: Easement of aqueduct (CIVIL
for the benefit of another immovable
CODE, Art. 646)
belonging to a different owner (CIVIL CODE,
Art. 613).
NOTE: For an easement to be considered
"continuous," its use does not have to be
Illustration: Easement of Water where lower
incessant; it is enough that the use may be
estates are obliged to allow water naturally
incessant (OE LEON, Property, supra at
descending from upper estates to flow into
486).
them (CIVIL CODE, Art. 637).
b. Discontinuous Easements - those which
b. Personal - established for the benefit of a
are used at intervals and depend upon the
community, or of one or more persons to
acts of man (CIVIL CODE, Art. 615).
whom the encumbered estate does not
belong (CIVIL CODE, Art. 614).
Example: Easement of right of way which is
used at intervals, because it can be
Example: Easements of the right of way for
exercised only if a man passes over
the passage of livestock (CIVIL CODE, Art.
somebody else's land (CIVIL CODE, Art.
657)
649, Par. 3; 2 PARAS, supra at 656)
NOTE: In a personal servitude; there-is no
NOTE: The easement itself exists
"owher of a dominant teneme'nt'' to speak of,
continuously but its exercise may be
and the easement pertajns 'to persons
continuous or discontinuous or there may be
without a dominant estate, in this case, the
no exercise at all (DE LEON, Property, supra
public at large (Solid Manila Corp. v. Bio
at 486). •
Hong Co., Inc., G.R. No. 90596, April 8,
1991). : "
For legal ·. purposes, the easement of
i. Public - if it is vested in the public at aqueduct is considered continuous, even
large or in some class of indeterminate though the flbW of water may not be
continuous, or _its use depends upon the
individuals.
. needs of the qominant estate, or upon a
ii. Private - if it is vestep in a det~rminate
schedul.e of altrrnate days or hours (CIVIL
individ.ual or certain persons (DE LEON,
Property, supra at 484).
COD~; Art. 646).

NOTE: Wh'en the court says that an

2. As to its source: ··easement.·• exists, it is not creating one
a. Voluntary - when the easement is
(hence; there are no judicial easements). It
established by the will or agreement of the m§)rely declares the existence of an
parties or by a testator (CIVIL CODE, Art.
easement created by law or by the parties or
619; 2 PARAS, supra at 658);
testator (La Vista Association, Inc. v. CA,
G.R. No: 95252, September 5, 1997).
Note: Voluntary easements must be
recorded in the Registry of Property to
4. As to the indication of their existence:
prejudice third persons (CIVIL CODE, Art.
a. Apparent Easements - those which are
708).
made known and ~re continually kept in view
by external signs that reveal "the use and
b. Legal - when it is imposed by law eithe~ for
enjoyment of the same (CIVIL CODE Art.
public use or in the interest of private persons 615). '
(CIVIL CODE, Art. 619; 2 PARAS, supra at
658); and
Example: Easement of aqueduct, the
easement of aqueduct is always apparent,
c. Mixed - when it is created partly by will or
whether or not it can be seen (CIVIL CODE,
agreement and partly by law (CIVIL CODE,
Art.646). .
Art. 619; 2 PARAS, supra at 658).
NOTE: The mark or sign need not be seen
3. As to its exercise:
but should be susceptible of being seen (DE
a. Continuous Easements. - those the use of
LEON, Property, supra at 486).
which are or may be, incessant without the
 &MUii§ \ 1
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b. Non-apparent Easements - those which
show no external indication of their existence
(CIVIL CODE, Art. 615).
Example: Easeme.nt of lateral and subjacent
support (2 PARA$, supra at 657)
5. As to duty of servient owner:
a. Positive - one which imposes upon the
owner of the servient estate the obligation of
allowing something to be done or of doing it
himself (CIVIL CODE, Art 616).
Example: Easement of right of way which
imposes upon the owner of the servient
estate the duty to allow the use of said way.
b. Negative - one which prohibits the owner of
the servient estate from doing something
which he could lawfully do if the easement
did not exist {CIVIL CODE, Art. 616).
Example: Easement of light and view if
made on one's own wall and the wall does
not extend over the property of another (DE
LEON, Property, supra at 488)
6. As to the right given:
a. Right to partially use the servient estate;
Example: Right of way
b. Right to get specific materials or objects from
the servient estate;
Example: Easement of drawing water
c. Right to participate in ownership; or
Example: Easement of party wall
d. Right to impede or prevent the neighboring
estate from perfbrming a specific act of
ownership
Example: Easement of intermediate distances
as when the servient estate cannot plant trees
without observing certain distances (2 PARAS,
supra at 657-658).
MODES OF ACQUIRING
EASEMENT
(ARTS. 620-626)
MODES OF ACQUISITION: (TPDFA)
1. By !itle
By "title", it does not necessarily mean document.
It refers to the juridical act or law sufficient to
create the encumbrance, such as law, donation,
contract, and will of the testator (2 PARAS, supra
at 665).
NOTE: The following easements may be
acquired only by title:
a. Continuous non-apparent easements;
b. Discontinuous apparent easements; and
c. Discontinuous non-apparent easements
(Id.).
. 2. By E_ rescription of 10 years irrespective of
the good or bad faith of the possessor and
wh~tner '9r not he has just title. The only
requirernent is adverse possession.
~ ·: <
NOTE:: Only continuous and apparent
easements can be acquired by prescription
(C/V/L CODE, Art. 620). They are the only ones
thEL possessior1 of which fulfills two important
requfsites'iequired by law for prescription, to wit:
that the possession be public and continuous.
. ,·.'a,:,, Positive servitude -
computed from the day
" ,. oh''which the owner of the dominant estate,
or the person who may have made use of the
easement, commenced to exercise it upon
the servient estate (CIVIL CODE, Art. 621).
b. Negative servitude - computed from the
day on which the owner of the dominant
estate forbade, by an instrument
acknowledged before a notary public, the
qwner of the servient estate, from executing
an act which would be lawful without the
easement (CIVIL CODE, Att. 621).
There must be a notarized document
executed by anyone who desires to establish
the easement. Thus, there is no easement for
as long as the dominant owner does not
exercise his right to prohibit servitude (CIVIL
CODE, Art. 621).
3. By Qeed of recognition
The absence of document or proof showing origin
of an easement which cannot be acquired by
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prescription may be cured by a deed of (Resolme v. Lazo, GR No. L-8654, March

recognition by the owner of the servient estate or 30, 1914);
by final judgment (CIVIL CODE, Art. 623).
c. To !3enounce totally the easement if he
Easement exists even if acquired by oral contract desires to exempt himself from contribution
or by virtue of some document that has been lost to necessary expenses {CIVIL CODE, Art.
(DE LEON, PropeJty, supra at 496). 628; 2 PARAS, supra at 675); and

4. By final judgment
NOTE: If the owner of the servient estate refuses d. To _l;xercise all the rights necessary for the
to execute the deed of recognition, the court may, use of the easement ( CIVIL CODE, Art. 625).
in its judgment, declare the existence of the
easement (Id. at 492). NOTE: If there be several owners of
dominant estate, expenses that will be
5. By ~pparent sign established by the owner incurred in making the work shall be borne in
of two adjoining estates, un!ess at the time by all in proportion to the benefits which each
the ownership of the two estates is divided: may derive therefrom (RABUYA, Property,
a. There are contrary stipulations in the title of supra at 530).
conveyance of either of them; or
b. The sign is removed before the execution of OBLIGATIONS OF PARTIES
the deed (CIVIL CODE, Art. 624). 1. Obligations of a dominant owner:
(ABOUNCE)
a. He cannot ~lter the easement or render it
more burdensome (CIVIL CO[JE, Art. 627);
RIGHTSAND, b. He cannot use the easement except for the
!!enefit of the immovable originally
OBLIGATIONS OF THE contemplated (CIVIL CODE, Art. 626);
PARTIES TO EASEMENTS c. He cannot exercise the easement in any
Qther manner than that previously
(ARTS. 627-630) established (CIVIL CODE, Art. 626);
d. He may make any works or construct
anything which is. necessary for the Use and
preservation of the servitude (CIVICCODE,
PARTIES: Art 627. Par. 1);
1. Dominant owner e. He shall Notify the servient owner of works
The owner of the immovable in favor of which the necessary for the use and preservation of the
easement is established (CIVIL COD£, Art. 613). servitude (CIVIL CODE, Art. 627, Par. 2);
f. He must _g_hoose the most convenient time
2. Servient owner and manner in making the necessary works
The owner of the immovable whose property is as to cause the least inconvenience to the
subject to easement for the benefit of the servient owner (CIVIL CODE, Art. 627, Par.
dominant owner (CIVIL CODE, Art. 613). 2); and
g. He must contribute to the necessary
RIGHTS OF PARTIES: ~xpenses if there are several dominant
estates (CIVIL CODE, Art. 628, Par. 1).
1. Rights of a dominant owner: (MARE)
a. To ,Make on the servient estate all the works NOTE: He may only exercise rights
necessary for the use and preservation of the necessary for use of easement (DE LEON,
servitude, provided: Property, supra at 500).
i. This must be at his own expense;
ii. He must notify the servient owner; 2. OBLIGATIONS OF A SERVIENT OWNER:
iii. Select most convenient time and manner
(ICoRP)
so as to cause the least inconvenience to
a. He cannot !mpair the use of the easement
the servient owner; and
(CIVIL CODE, Art. 629, par. 1); .
iv. He must not alter the easement nor
b. Contribute to the necessary expenses in
render it more burdensome (CIVIL
case he uses the easement, unless there is
CODE, Art. 627).
an agreement to the contrary (CIVIL COOR
Art. 628, Par. 2);
b. To ~sk for mandatory injunction to prevent
impairment of his use of the easement
 MEM:Q~Y AID
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c. In case of impairment, to Restore conditions
to the status quo at his expense, plus
damages (3 SANCHEZ ROMAN, supra at
609); and
d. To f,ay for the expenses incurred for the
change of location (CIVIL CODE, Art. 629,
par. 2).
EXTINGUISllMENT OF
EASEMENTS
(ARTS. 631-633)
MODES OF EXTINGUISHMENT
EASEMENTS IN GENERAL: (REMAIN-
BREW)
1. Redemption agreed upon between the
owners of the dominant and servient estates;
NOTE: Pertains to voluntary redemption.
2. gxpiration of the term or fulfillment of the
resolutory condition;
Example: An easement was agreed upon to last
until the owner of the dominant easement
becomes a lawyer. When the condition is fulfilled,
the easement ceases (Id. at 686).
3. Merger of the ownership of the dominant and
servient estates;
A merger exists when ownership of the dominant
and servient estates is consolidated in the same
person. Merger then, as can be seen, requires
full ownership of both estates ( Solid Manila
Corporation v. Bio Hong Co. Inc., G.R. No.
90596, April 8, 1991).
The merger must be absolute, complete, not
temporary (if it is temporary, there is only
suspension of easement) (4 MANRESA 467 as
cited in 2 PARAS, supra at 677).
4. ~nnulment of the title to the servitude;
5. Permanent !mpossibility to
easement;
Mere impossibility to use the easement merely
suspends the same (RABUYA, Property, supra at
633).
To be permanent, the causes of the impossibility
of the use must be irreparable. If they are
reparable, the easement may still be
extinguished if the 10-year period by non-user
has already lapsed (Id.).
6. N_on-use for 10 years;
Reckoning period:
a. Discontinuous easement - counted from
the day the easement ceased to be used
(CIVIL CODE, Art. 631 Par. 2).
b. Continuous easement - counted from the
day an act adverse to the exercise of
easement took place (CIVIL CODE, Art. 631,
Pw. 2).
This mode is applicable only lo easements that
have been in use and later abandoned, for one
cannot discontinue using what one has never
used (DE LEON, Property, supra at 507).
The proof of non-user must be indubitable and
this is particularly true if the easement of right of
OF way was annotated in the Torrens Title
(Benedicto v. CA, G.R. No. L-22733, September
25, 1968).
The non-user must be due to the dominant
owner's voluntary abstention and not to fortuitous
event; otherwise, there is only suspension of
easement (2 TOLENTINO, Civil Code, supra at
3l6),
The running of the 10-year period will be
prevented by the use of the easement of any of
the co-owners cif the dominant estate ( CIVIL
CODE, Art. 633).
7. ~act Gondition
- when either or both estates fall into such a
condition that the easement could not be used;
NOTE: This merely suspends since possibility of
use revives the easement (CIVIL CODE, Art. 631
Par. 3).
8. _8esolution of the right to create the
servitude, (i.e., in case ·of pacto de retro, when
the property is redeemed);
9. gxpropriation of the servient estate; and
10. Waiver or renunciation by the dominant
use the owner.
Waiver or renunciation must be express, clear,
and specific (DE LEON, Property, supra at 504).
The mere fact that it has not been used at all
cannot give rise to the conclusion that there has
been a waiver (2 PARAS, supra at 680).
The sale of the dominant estate does not
extinguish the easement. There must be a
statement abolishing or extinguishing it. Hence,
~.,..;'\ " . ) , ' ,~ ;;. ' 'z'
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the use of the Gervient cGtntc iG continued by
operation of law (Tanedo v. Hon. Bernad, G.R.
No. 66520, August 30, 1988).
OTHER CAUSES FOR EXTINGUISHMENT
OF EASEMENT
1. Registration of the servient estate as free, i.e.,
although the servient estate was registered under·
the Torrens system, the easement thereon was
not registered, unless there is a stipulation or
actual knowledge of the existence of easement
on the part of the transferee (Cid v. Irene P.
Javier, G.R. No. L-14116, June 30, 1960);
2. In the case of the legal easement of right of way,
the opening of an adequate outlet to the highway
extinguishes the easement, if the servient owner
. makes a demand for such extinguishment (CIVIL
CODE, Art. 655).
LEGAL EASEMENTS
(ARTS. 634'"687)
These are easements imposed by law which have for
their object either public use br the interest of private
persons (CIVIL CODE, Art. 634).
KINDS OF LEGAL EASEMENTS:
. .·
1. Public legal easements
- Those for public ·or communal use and
governed primarily by special laws and by the
Civil Code; and
2. Private legal easements
- Those for the interest of private persons or for
private use and governed
a. Primarily by the agreement of the interested
parties;
b. In the absence thereof, by the provisions of
general or local laws and ordinances; and
c. In default of (a) and (b ), by Articles 634-687
of the Civil Code (DE LEON, Property, supra
at 514).
CLASSES OF PRIVATE LEGAL
EASEMENTS: (WaR-PaL- DraDiNuSu)
1. Easement relating to Waters (CIVIL CODE, Art.
637-648): (DARAD)
a. Easement of Qrainage of waters ( CIVIL
CODE, Art. 637; P.O. No. 1067, othetWise
known as Water Code of the Philippines, Art.
50 [hereinafter WATER CODE]);
b. Easement of !1butment of dam ( CIVIL CODE,
Art. 639);
~'le
PROPERTY
c. Eoscmcnt on fliparion property (CIVIL
CODE, Art. 638; P.O. No. 1067, Art. 51);
d. Easement of 8_queduct (CIVIL CODE, Art.
642-646); and
e. Easement for Qrawing water ( CIVIL CODE,
Art. 640 and 641).
2. Easement of Bight of way (CIVIL CODE, Art. 649-
657);
3. Easement of Party wall ( CIVIL CODE, Art. 658-
666);
4. Easement of _bight and view (CIVIL CODE, Art.
667-673);
5. Easement of Drainage of buildings ( CIVIL CODE,
Art. 674-676);
6. Easement of Distances (CIVIL CODE, Art. 677-
681);
7. Easement of Nuisance (CIVIL CODE, Art. 682-
683); and
8. Easement of lateral and subjacent Support
(CIVIL CODE, Art. 684-687).
1. EASEMENT OF DRAINAGE OF
WATERS-
NOTE: Art. 637 of the Civil Code has already
been superseded by Art. 50 of the Water Code.
Lower estates (servient estates) are obliged to
receive the yvaters which naturally and without
the intervention of man flow from the higher
estate (dominant estate), as well as the stone or
earth which they tarry with them (WATER
CODE, Art. 50).
t
The owner,of the lower estate cannot construct
works which will impede this natural flow, unless
he provides an alternative method of drainage
(WATER CODE, Art. 50).
Neither can the owner of the higher estate make
works which will increase this natural flow (DE
LEON, Property, supra at 515).
Right of higher estate to drain water
The owner of the higher estate has the right to
employ artificial means to drain water from higher
to lower land provided that:
a. He shall select the routes and methods that
will cause the minimum damage to the lower
lands; and
b. Pay just compensation (WATER CODE, Art.
46).
NOTE: Water right, such as the right to use a
drainage ditch for irrigation purposes, which are
appurtenant to a parcel of land, pass with
conveyance of the land, although not specifically
mentioned in the conveyance (Valisno v.
Adriano, G.R: No._ L-37409, May 23, 1988).
 fM4%¥i& \ 1
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Q: X owns an agricultural land planted mostly
with fruit trees. Y owns an adjacent land devoted
to his piggery business, which is two (2) meters
higher in elevation. Although Y has constructed a
waste disposal lagoon for his piggery, it is
inadequate to contain the waste water containing
pig manure, and it often overflows and inundates
the plantation of X. This has increased the acidity
of the soil in the plantation, causing the trees to
wither and die. X sues for damages caused to
his plantation. Y invokes his right to the benefit of
a natural easement in favor of his higher estate,
which imposes upon the lower estate of X the
obligation to receive the waters descending from
the higher estate. Is Hernando correct?
ANS: No, Y is incorrect. As worded, Art. 637 of
the Civil Code in relation to Art. 50 of the Water
Code, imposes a natural easement upon the
'lower estate to receive the waters which
naturally and without the intervention of man
descend from higher states. However, where
the waters which flow from a higher state are
those which are artificially collected in man-
made lagoons, any damage occasioned
thereby entitles the owner of the lower or
servient estate to compensation. (Remman
Enterprises Inc. v. CA, G.R. No. 125018, April 6,
2000).
2. EASEMENT ON
PROPERTY
NOTE: Art. 638, Par. 1 of the Civil Code has been
modified by Art. 51 of the Water Code. Article 51
of the Water Code states that the banks of rivers
and streams and the shores of the seas and lakes
throughout their entire length and within a zone
of three (3) meters in urban areas, twenty (20)
meters in agricultural areas, and forty (40)
meters in forest areas along their margins are
subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing
and salvage.
Limitation: No person shall be allowed to stay in
this zone longer than what is necessary for
recreation, navigation, floatage, fishing or
salvage or to build structures of any kind
(WATER CODE, Art. 51).
Real Party in Interest
The proper party entitled to institute a case with
respect to the 3-meter strip/zone of Mahabang
llog Creek was the Republic of the Philippines
through the OSG and the local government of
(as Pinas City and not the subdivision developer
(Pilar Development Corp. v. Oumadag, GR. No.
194336, March 11, 2013).
3. EASEMENT OF ABUTMENT OR
BUTTRESS OF A DAMOR ESTR!BO
DE PRESA (CIVIL CODE, Art. 639)
Whenever for the diversion of taking of water
from a river or book, or for the use of any
continuous or discontinuous stream, it should be
necessary to build a dam, and the person who is
to construct it is not the owner of the banks, or
lands which must support it, he may establish the
easement of abutment of a dam, after payment of
the property indemnity (CIVIL CODE, Art. 639).
A person may establish the easement of
abutment of a dam, provided that: (PIN 2S)
a. The furpose is to divert or take water from a
river or brook, or to use any other continuous
or discontinuous stream;
b. Payment of the proper !ndemnity is made;
c. It is ~ecessary to build a dam;
d. The person to construct it is ~ot the owner of
the banks or lots which must support it; and
e. He must ~eek the permission of the owner,
and in case of the latter's refusal, he must
secure authority from the proper
administrative agency.
' ,"
If the construction of the dam is unauthorized, it
can be considered a private nuisance; thus, it can
be lawfullY, removed (DE LEON, Property, supra
at 517). ·
RIPARIAN
4. EASEMENT FOR DRAWING WATER
AND<V\'ATERING ANIMALS (CIVIL
CODE, Arts. 640 and 641) ·
. ~ompulsory easements for drawing water or for
, · ·. wat~ring animals can be imposed only for
reasOns of public use in favor of a town or village,
after payment of the proper indemnity (CIVIL
CODE, Art. 640).
Requisites: (WIFIS)
a. The right of Way should have a maximum
width of 10 meters (4 MANRESA, supra at
722-723);
b. Must be !mposed for reasons of public use;
c. Must be in Eavor of a town or village;
d. !ndemnity must- be paid; and
NOTE: The indemnity for easement of right
of way must also be included, because the
easement for drawing water carries with it the
easement of right of way (RABUYA,
Property, supra at 539).
e. Must be §ought not by one individual, but by
the town or village, through its legal
representation (4 MANRESA, supra at 722-
723).

5. EASEMENT OF AQUEDUCT (CIVIL
CODE, Arts. 642-646)
Any person who may wish to use upon his own
estate any water of which he can dispose shall
have the right to make it flow through the
intervening estates, with the obligation to
indemnify their owners, as well as the owners of
the lower estates upon which the waters may
filter or descend (CIVIL CODE, Art. 642).
Requisites: (SIC 2)
a. He must prove that the water is ~ufficient for
the intended use;
b. !ndemnity must be paid;
c. Dominant owner must prove that he has the
_g_apacity to dispose of the water; and
d. The course is most fonvenient, and least
onerous to the third person (CIVIL CODE,
Arts. 642 and 643).
Limitation:
The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards,
annexes, or outhouses, or on orchards or
gardens already existing (CIVIL CODE, Art. 644).
NOTE: Notwithstanding the easement of
aqueduct, the servient owner may close or fence
his estate, or build over the aqueduct so long as
no damage is caused to the aqueduct or the
necessary repairs and cleanings of the same are
not rendered impossible (CIVIL CODE, Art. 645).
For legal purposes, easement of aqueduct is
apparent and continuous, and thus, susceptible
of acquisitive prescription (CIVIL CODE, Art.
646).
When the use, conveyance or storage of water
results in damage to another, the person
responsible for the damage shal! pay
compensation (WATER CODE, Art. 47).
6. EASEMENT FOR THE
CONSTRUCTION OF A STOP LOCK
OR SLUICE GATE (CIVIL CODE, Art.
647)
One who for the purpose of irrigating or improving
.his estate, has to construct a stop lock or sluice
-gate in the bed of the stream from which the
water is to be taken, may demand that the owners
of the banks permit its construction, after
payment of damages, including those caused by
the new easement to such owners and to the
other irrigators (CIVIL CODE, Art. 647).
PURPOSE: To take water for irrigation or to
improve an estate
PROPERTY
Civil Law
Requisites: (TIDEs)
a. Ihird persons should not be prejudiced;
b. Purpose must be for !rrigation or
improvement:
c. Q.amages must be paid; and
d. The construction must be on the Estate of
another (CIVIL CODE, Art. 647).
7. EASEMENT OF RIGHT OF WAY
Modes of Acquisition:
a. By a voluntary title (voluntary easement)
- it is constituted by covenant and does not
require that the dominant estate be isolated
and without an adequate outlet to a public
highway (CIVIL CODE, Arts. 688-693); and
b. By a compulsory title (compulsory
easement)
- if an estate is so isolated and without an
adequate outlet to a public highway, the grant
thereof is legally demandable ( CIVIL CODE,
Arts. 649-657; RABUYA, Property, supra at
642).
Who may Demand Compulsory Right of
Way: (OUR)
i. Qwner of the dominant estate
ii. Persons with Real right 1:o use the
dominant estate; and
iii. l!sufructuary (Id. at 550).
NOTE: A mere lessee is not entitled to
demand 'a right of way; his action is against
the lessor (Id.) ..
Requisites of Compulsory Right of Way:
(CD-RIPE)
i. Qlaimant must be the owner of the
enclosed immovable or one with real
right;
ii. The Qominant estate is surrounded by
other immovables and there must be no
adequate outlet to a public highway;
iii. Right of way must be absolutely
necessary;
iv. !solation must not be due to the
claimant's own act;
v. _Eayment of proper indemnity; and
1.) If passage is continuous and
permanent:
Indemnity = value of land occupied +
amount of damages caused to the
servient estate; and
2.) If passage is temporary:
Indemnity = payment of damage
caused (DE LEON, Property, supra
at 512-522).
vi. Easement must be established at the
point least prejudicial' to the servient
estate; and insofar as consistent with
&Wii@I@ \ I
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this rule, where the distance from the
dominant estate to the public highway
may be the shortest . (OE LEON,
Property, supra at 512-522).
The following are the requisites in order that the
dominant estate may validly claim a compulsory
permanent right of way under Artitles 649 and
650 of the Civil Code (1) the dominant estate is
surrounded by other immovables; (2) it is without
adequate outlet to a public highway; (3) after the
proper indemnity has been paid; (4) the isolation
was not due to the proprietor of the dominant
estate's own acts; (5) the right of way claimed is
at a point least prejudidal to the servient estate;
and (6) the right of way must be absolutely
necessary for the normal enjoyment of the
dominant estate by its owner (AMA Land Inc. vs .
. Wack Wack Residents' Association Inc., GR.
No. 202342, July 19, 2017).
GENERAL RULE: The least prejudice criterion
and the shortest distance criterion must concur
(Ca/imoso v. Roullo, G.R. No. 198594, January
25, 2016).
EXCEPTION: If the two criteria do not concur, the
criterion of least prejudice to the servient estate
must prevail over the criterion of shortest
distance (Calimoso v. Roullo, G.R. No. 198594,
January 25, 2016). · The wjdth of tl;Je easement of right of way shall
NOTE: The easement of right of way cannot be
acquired by prescription,· because it is
discontinuous or intermittent (Ronquillo v. Roca,
G.R. No. L-10619, February 28, 1958). On the
other hand, an easement of light and view can be
acquired through prescription counting from the
time when the owner of the dominant estate
formally prohibits the adjoining lot owner from
blocking the view of a window located wlthin the
dominant estate (Alolino v. Flores, G.R. No.
198774, April 04, 2016).
Burden of Proof
The burden of proving the existence of the
prerequisites to validly claim a compulsory right
of way lies in the owner of the dominant estate
(Costabella Corp. v. CA, G.R. No. 80511,
January 25, 1991).
Adequacy Test
The true standard for the grant of the legal right
of easement of right of way is adequacy. If there
is already an existing outlet from the dominant
estate to a public highway, even if inconvenient,
the need to open another is unjustified (Dichoso
v. Marcos, G.R. No. 180282, April 11, 2011).
'..}' , ', ' ~ ~ '' 1'
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Where the Buyer's Land is Enclosed
Whenever a piece of land acquired by sale,
exchange, or partition is surrounded by other
estates of the vendor, exchanger, or co-owner,
he shall be obliged to grant a right of way without
indemnity (CIVIL CODE, Art. 652).
NOTE: In case of simple donation, the donor
shall be indemnified by the donee for the
establishment of the right of way (CIVIL CODE,
Art. 652).
Where the Seller's Land is Enclosed
If it is the land of the grantor (seller, barterer or
co-owner) that becomes isolated, he may
demand a right of way after paying an indemnity.
However, the donor shall not be liable for
indemnity (CIVIL CODE, Art. 653).
Rules if Grantor's or Grantee's Land is
Enclosed (CIVIL CODE, Arts. 652 and 653)
a. If the enclosing estate is that of the grantor
(seller, barterer, or co-owner but not donor),
the grantee does not pay indemnity for the
easement.
If the.,t;?.nclosed estate is that of the grantor,
·the ijfuntor must pay indemnity (2 PARAS,
supra'~t 711).
Width of the Easement
be that which is sufficient for the needs of the
dominaDL; esti:i[e; and may accordingly be
chah'g~tffr6rn- time to time (CIVIL CODE, Art.
651). ·.,
'.'Jt may be modified from time to time depending
0pl:5nethe reasonable needs of the dominant
estate (2 PARAS, supra at 710).
The right of way for cattle should not be more
than 10 meters wide unless a greater width was
a vested right under laws prior to the Civil Code
of 1889 (CIVIL CODE, Art. 657).
Q: Tomas Encarnacion's 3,000 square meter
parcel of land, where he has a plant nursery, is
located just behind Aniceta Magsino's two-
hectare parcel land. To enable Tomas to have
access to the highway, Aniceta agreed to grant
him a road right of way a meter wide through
which he could pass. Through the years Tomas'
business flourished which enabled him to buy
another po_rtion which enlarged the area of his
piant nursery. But he was still landlocked. He
could not bring in and out of his plant nursery a
jeep or delivery panel much less a truck that he
needed to transport his seedlings. He now asked
Aniceta to grant him a wider portion of her
property, the price of which he was willing to pay,
 -.,\
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to enable him to construct a road to have access
to his plant nursery. Aniceta refused claiming that
she had already allowed him a previous road
right of way. Is Tomas entitled to the easement
he now demands from Aniceta? (BAR 1993)
ANS: Yes. Art. 651 of the Civil Code provides that
the width of the easement must be sufficient to
meet the needs of the dominant estate, and may
accordingly change from time to time. It is the
need of the dominant estate which determines
the width of the passage. These needs may vary
from time to time. As Tomas' business grows, the
need for use of modem conveyances requires
widening of the easement. The facts show that
the need for a wider right of way arose from the
increased production owing to the acquisitio,:i by
Tomas of an additional area. Under Art. 626 of
the Civil Code, the easement can be used only
for the immovable originally contemplated.
Hence, the increase in width is justified and
should have been granted.
The facts in this case is the ~me as that of the
case of Encarnacion v. CA (G;R t:,Jo. 77628, ·
March 11, 1991) where the,Court Held that: "To
force Tomas to leave his jeepneyjn the highway,
exposed to the elements and the risk of theft
simply because it could not pass through the
improvised pathway, is .sheer pigheadedness on
the part of the servient estate. ·:Tomas should not
be denied a passageway wide enough to
accommodate his jeepney sim;e .· tfiat is
reasonable and necessary' asped of the plant
nursery business."
Rules if the Right of Way is Permanent
As for the servient estate: The path belorigs to ·.
the servient estate, and he pays·all the taxes ..
As for the dominant estate: It should pay for the
repairs and should pay proportionate share of
taxes to the servient estate (CIVIL CODE, Art.
654; 2 PARAS, supra at 712).
NOTE: The word "proportionate". means the
whole tax for the whole estate.
Temporary Easement of Right of Way
Requisites: (ln-C 2 R-ln)
a. The easement must be Indispensable:
i. For the ~onstruction, repair,
improvement, alteration, or beautification
of a building; '
ii. To ~arry materials through the estate of
another; or
iii.· To Baise thereon scaffolding or .other
objects necessary for the work ( CIVIL
CODE, Art. 656).
PROPERTY
Civil Law
NOTE: "Indispensable" is not to be construed
literally. Causing great inconvenience is
sufficient (DE LEON, Property supra at 530).
b. Payment of proper Indemnity to owner of the
estate for damaged caused (CIVIL CODE,
Art. 656).
NOTE: The word "owner" comprehends the
usufructuary who may make use of the right
granted (4 MANRESA 753 as cited in DE
LEON, supra at 520).
8. EASEMENT OF RIGHT OF WAY FOR
THE PASSAGE OF LIVESTOCK OR
SERVIDUMBRES PECUARIAS
Easements of the right of way for the passage of
livestock known as animal path, animal trail, or
any other, and those for watering places, resting
plac::es, and animal folds shall be governed by the
ordinances and regulations relating thereto, and
in the,ir abs.ence, by the usages and customs of
the place (CIVIL CODE, Art. 657).
Maximum Width:
a. Animal path - 75 meters
b. Animal tr~il ~ 37: meters and 50 centimeters
c. Cattle - .10 met~rs (unless prior to the Old
Civil Code; vested rights had been acquired
to a greater wi<:lth) (2 PARAS, supra at 714).
NOTE: If . the., easement established is
compulsory ,,the wid,fh shall not exceed 10 meters
(DELEON;Properjy, supra at 531).
9. EASEMENT.·• 'OF PARTY WALL OR
$ERVIQUMBRE DE MEDIANERA
(CIVI l C0DE, Arts. 658-666)
fhi§ .refers to all those mass of rights and
obligations emanating from the existence and
common enjoyment of wall, fence, enclosure, or
hedges by the owners of adjacent buildings and
estates separated by such objects (2 CASTAN,
supra at 532).
Party Wall
Common wall which separates 2 estates built by
a common agreement at the dividing line such
that it occupies a portion of both estates on equal
parts (DE LEON, Property, supra at 712).
NOTE: Although called a legal easement, it is a
compulsory kind of co-ownership or forged
indivision where the shares of each owner cannot
be separated physically without destroying the
wall. Thus, each co-owner owns the half nearest
to him (2 PARAS, supra at 715).
 J:rft4Q~Y Al D
San Beda University Cofl8(Je cf Law - RGCT Bar Operations Center

PARTY WALL AND CO-OWNERSHIP b. In dividing walls of gardens 8nd yards

01STINGUISHED situated in cities, towns, or in rural
communities;

Shares of parties Shares of the co-owners

u:mnot be physically can be divided and
se9re(lated but they separated physically but
can be physically before such division, a
identified. co-owner cannot point to
any definite portion of the p t-0 pert y A

property as belonging to
him.
In fences, walls and live hedges dividing rural
lands;

No limitation as to use None of the co--owners

of the party wall for may use the community
exclusive benefit of a property for his exclusive
party. benefit. ·

Owner may free Partial renunciation is

himself from ·allowed.
contributing to the cost
of repairs and
construction of a party
wall by renouncing all
his rights thereto.
(DE LEON, Property, supra at 536).
d. )ll dit9i)es or .drains opened between two
NOTE: Not all common walls are party walls. e$t?Je>s:
Thus, a wall built on a lot co:owned' by two
persons is a common wall but not a party wall
(Id.).

Presumptions of Existence (Juris Tantum)

(CIVIL CODE, Arts. 659 and 661):
The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign,
or proof to the contrary:

a. In dividing walls of adjoining buildings, up to

point of common elevation;

Front View

Point of NOTE: If the earth or dirt removed to open the

common ditch or to clean it is only on one side, the
elevation
ownership of the ditch belongs exclusively to the
owner of the land having this exterior sign in its
favor (CIVIL CODE, Art. 661).

Rebuttal of Presumption:
a. By title;
b. By proof to the contrary (Valenzuela v.
Unson, G.R. No. L-10266, Oct. 20, 1915); or
c. By exterior signs to the contrary (CIVIL
CODE, Arts. 660 and 661).
 PROPERTY
Civil Law

NOTE: If one owner has signs in his favor, and 10PVltW

some against him, they generally cancel each
other, unless it can be shown from the purpose of
the wall that it had been made for the exclusive
benefit of one (PARAS, Property, supra at 710-
711).
~
Exterior Signs Rebutting the Existence of a
Party Wall (CIVIL CODE, Art. 660)
w....~=r Direct View

Opened 1
Wmdaw Dividing
It •is understood that there is an exterior sign, Wall
contrary to the easement of party wall:

a. Whenever in the dividing wall of buildings d. Whenever the dividing wall bears the burden
there is a window or opening; of the binding beams, floors and roof frame
of one of the buildings, but not those of the
others;
B(in his favor)
Front View A Wall

A
\

b. Whenever the dividing wall is, on one side,

straight and plumb on all itsfacemenf, and ori e. Whenever · the dividing wall between
the other, it has similar conditions on the courtyards, gardens, and tenements is
upper part, but the lower part ·slants or constructed in such a way that the coping
projects outward; sheds the water (!pon only one of the estates;

Properi:y A Proparty B

Wall

[fill l!ID
~

c. Whenever the entire wall is built within the

boundaries of one of the estates; f. Whenever the dividing wall, being built of
masonry, has stepping stones, which at
certain intervals project from the surface on
one side only, but not on the other;

Property A Proparty B

VI/ a II
►S@Df§ \ I
MEM,Q,RY Al D
San Seda University College of Law - RGCT Bar Operations Center
g. Whenever lands enclosed by fences or live
hedges adjoin others that are not enclosed;
and
h. Whenever the earth or dirt removed to open
the ditch or to clean ft is only on one side
thereof. The ownership of the ditch shall
belong to the owner of the land having this
exterior sign in his favor (CIVIL CODE, Art.
661).
The deposit of earth or dirt is on one side
alone is an exterior sign that the owner of that
side is the owner of the ditch or drain (DE
LEON, Property, supra at 537).
(in his favor)
NOTE: In all thesic; cases, the ownership of the
walls, fences, or hedges shall be deemed to
belong exclusively to the owner of the property or
tenement which has in its favor the presumption
based on any one of these signs (CIVIL CODE,
Art. 660).
Rights of Part Owners: (UID)
a. To make .l::!se of the wall in proportion to their
respective interests (CIVIL CODE, Art. 666),
rest buildings on it, or insert beams up to
one-half of the wall's thickness;
b. To !ncrease the height of the wall (CIVIL
CODE, Art. 664). He must (DPaBe-Pay-
ReAdd):
i. Qo so at his expense;
, ·, t·. . : ,? ;: ,:,;· '.:
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ii. Pay for any damage which may be
caused by the work, even though such
damage may be temporary;
iii. Bear the costs of maintenance of the
portion added;
iv. Pay for the increased cost of
preservation;
v. Reconstruct if original wall cannot bear
the increased height; and
vi. Give Additional space necessary, if the
wall is to be thickened (2 PARAS, supra
at 720).
c. To Qemolish the building being supported by
a party wall provided the cost of all repairs
and work necessary to prevent any damage
which the demolition may cause to the party
wall shall be borne by him (CIVIL CODE, Art.
663).
NOTE: He may also renounce his part
ownership of the wall (CIVIL CODE, Art.
663).
Obligations of Each Part-Owner:
\a .. To epntribute proportionately to the repair
and maintenance unless he renounces his
part-ownership (CIVIL CODE, Art. 662);
b. If on!;! part-owner raises the height of the wall,
he must (MECA);
i. · Bear the cost of Maintenance of the
additions;
ij.. ~rfr , Jhe, increased ~xpenses of
pteservation;
iii. · Bear the ~ost of construction; and
iv. Give ~dditional land, if necessary, to
thicken the wall (CIVIL CODE, Art. 664).
NOTE: The other owners who have not
contributed in giving the height, depth, or
thickness to the wall may, nevertheless, acquire
· the right of part-ownership therein, by paying
proportionally the value of the work at the time of
the acquisition and of the land used for its
increased thickness (CIVIL CODE, Art. 665).
10.EASEMENT OF LIGHT AND VIEW
(CIVIL CODE, Arts. 667-673)
Easement of Light (jus luminum)
The right to admit light from the neighboring
estate by virtue of the opening of.a window or the
making of certain openings (2 CASTAN, supra at
536).
Easement of View (jus prospectus)
The right to make openings or windows. to enjoy
the view through the estate of another and the
power to which would obstruct such view or make
the same difficult. It necessarily includes
easement of light (Id.).
 PROPERTY
Civil Law

No part-owner, without the consent of the others, NOTE: The non-observance of these
open through the party wall any window or distances does not give rise to prescription
aperture of any kind (CIVIL CODE, Art. 667). (CIVIL CODE, Art. 670, Par. 3).

Effect: If the opening is done without consent, Where the Above Distances are NOT
the other co-owners may demand that what has Applicable:
been done be undone solely at the part-owner's a. To buildings separated by a public way or
expense (RABUYA, Property, supra at 558). alley, which is not less than 3 meters wide
(CIVIL CODE, Art. 672);
10-Year Period of Prescription for Acquisition
of Easement of Light and View (CIVIL CODE,
Art. 668): Propef'ty A

The period of prescription for the acquisition of an

easement of light and view shall be counted:
a. Where the easement is positive (if made
through a party wall). from the time of the rt?~~~:•e [ - ~•~
lh-e-n 3.
r~d~Jt,ey _

QQ.e.ning of the window; or

b. Where the easement is negative (if made
me1ers

-------------
through a wall on the dominant estate), from
the time of the formal prohibition upon the P1operty B

adjoining owner (CIVIL CODE, Art. t;68).

Rules for Regular Windows (CIVIL CODE, Art. EXCEPTION: Unless a special regulation
670): / . and local, ordinance provide the contrary
a. For windows having DIRECT VIEWS (face to (CIVIL CODE, Art. 672).
face), observe at least 2. me\ers .distance
between the wall having the windows and the b. When~v.er by ·any title (such as by contract,
boundary line. will, donation, 'or prescription) a right has
been acquired to have direct views,
VVall
balconies,· or belvederes overlooking an
Propety S 9djoining . prop~rty. The servient estate
cannot build thereon if the direct view is less
· than a ciistancJ of 3 meters from the wall
(CIVIL CODE; Art. 673); and ,

Balsony.- a,.61atform that proje~ts from the

waif of a building and is enclosed by a
At least 2
• paraQ~t qrrailing.
metef'S
Belvedere - a structure (such as a cupola or
b. For windows having side or obliqu~ views a' summerhouse) designed to command a
observe a distance of at least 6Cf cm, view.
between the boundary line and the nearest
edge of the window. NOTE: Art. 673 speaks of a true servitude
(servitude of restraint or abstention) unlike
NOTE: Oblique view means that from direct Arts. 669 and 67() which do not really refer to
view, one must turn his head to the right or to easements since both owners are prohibited
the left to view the adjoining land. (2 PARAS, supra at 728).

Property A
Servient Estate

.......,...__ \N 3 I!

1 Wall

:
I
I
I
Owner cannot
build h~re if
distance is less
:~
I
t
I
I than 3 meters •
1
Piropert~ A
PYopLrty 8
•' At least 3 meters
~ .
&46MM \ I
MEM:Q~Y AID
San Booa Univernity College of Law - RGCT Bar Operations Center
c. Restricted Windows, when the above
distances are not observed (CIVIL CODE,
Art. 669).
11.DRAINAGE OF BUILDINGS
When the foregoing distances are not
observed, only restricted windows may be
made by the owner of a wall which is not a
party wall, subject to the following
requirements: (WISH-Pu)
i. There must be a Wire screen;
ii. There must be an !ron grating imbedded
in the wall;
iii. Maximum .§ize is 30- cm. square;
iv. The opening must be at the !:!eight of the
ceiling joists (beams) or immediately
under the ceiling (techo); and
v. The window must be for the Purpose of
admitting light and air only, but not of
view.
Ceiling joists
Commonly called beams laid horizontally
intended to serve as connection and main
support of the timbers of different floors that
separate the stories of a building.
There may be several openings provided, the
restrictions are complied with for every opening.
There can also be several openings in every floor
or story, for each floor or story has a ceiling
(Choco'v. Santamaria, G.R. No. 6076, Decemb_er
29, 1911).
Remedies of the abutting owner in case of
restricted windows (CB):
a. ~Jose the openings if the wall becomes a
party wall; or
b. _!:!lock the light by building or erecting his own
wall unless a servitude is acquired by title or
prescription (CIVIL CODE, Art. 669).
NOTE: He may also ask for the reduction of the
opening to the proper size.
(CIVIL
CODE, Arts. 674-676)
The owner of a building shall be obliged to
construct its roof or covering in such manner that
the rain water shall fall on his own land or on a
street or public place, and not on the land of his
neighbor (CIVIL CODE, Art. 674).
The owner of a tenement or a piece of land,
subject to the easement of receiving water falling
from roofs, may build in such manner as to
receive the water upon his own roof or give it
another outlet in accordance with local
ordinances or customs, and in such a w.ay as not
to cause any nuisance or damage whatever to
the dominant estate (CIVIL CODE, Art. 675).
.. \fVhenev~r the yard or court of a house is
'sbrfiOUl:}Q~ by other houses, and it is not
possible t9':give an outlet through the house itself
to the ,rain water collected thereon, the
establishment of an easement of drainage can be
demanded,(CIVIL CODE, Art. 676).
a. E;sement <>fdrainage of buildings - the
right'.f~~~iv~ft,br empty the rain waters from
one'if'own' roof or shed to the neighbor's
estate either drop by drop or through
conduits (2 CASTAN, supra at 539).
674 does not really create an easement
for it merely regulates the use of a person's
property insofar as rain water is concerned (4
MANRESA 810 as cited in PARAS, supra at
730).
NOTE: Art. 674 provides an exception to Art.
637 which obliges lower estates to receive
water naturally flowing from higher estates
(DE LEON, Property, supra at 551).
b. Easement to receive falling rain waters -
deals not with legal easement but with a
voluntary easement to receive rain water
falling from the roof of an adjoining building
(Id. at 552).
c. Easement giving outlet to rain water
where house surrounded by other
houses.
NOTE: This is similar to the legal easement
of right of way (2 PARAS, supra at 731 ).

Requisites (DINE):
a. Least possible Q.amage caused;
b. There must be payment of proper
!ndemnity (Id.);
c. There must be !fo adequate outlet to the
rain water because the yard or court of a
house is surrounded by other houses
(enclosure) (CIVIL CODE, Art. 676); and,
d. The outlet to the water must be at the
point where !;_gress is easiest and
establishing a conduit for drainage
(CIVIL CODE, Art. 676; 2 PARAS, supra
at 731~732).
Ownership of Rain Waters
Rain waters falling on private lands shall
belong to the State. However, any person
who collects water by means of cisterns,
tanks, or pools shall have exclusive control
over the same and shall have the right to
dispose it only for domestic . purposes
(WATER CODE, Arts. 6-7; RABUYA,
Property, supra at 661).
1"2.INTERMEDIATE DISTANCES ANO
WORKS -FOR CERTAIN
CONSTRUCTIONS AND PLANTINGS
(CIVIL CODE, Arts. 677~681)
No constructions can be built or plantings made
near fortified places or fortresses without
compliance with the c◊nditidns required in
special laws, ordinances, andregulations relating
thereto (CIVIL CODE, Art. 677)'
NOTE: Art .. 677, in effect establishes an
easement in favor of the State (DE LEON,
Propetty, supra at 549). The prbhibitions
prescribed by law cannot be altered or renounced
by stipulation of the parties (Cl\flL CODE, Art.
678).
REASON: National security and safety
specifically to prevent intrusion into neighboring
estates (2 PARAS, supra at 732).
a. Constructions (examples: wells, sewers,
etc.)
Rules (OC-P 2V):
i. Follow distances fixed by Qrdinances
and Customs;
ii. _!:rotective structures prescribed by
ordinances or custom must be erected;
iii. If none, erecautions must be taken to
avoid damage to neighboring estates;
and
iv. Violation causes responsibility for
damages caused (OE LEON, Property,
supra at 550).
PROPERTY
Civil Law
b. Plantings
Rules (OC-2-50):
i. Follow distances as prescribed by
Qrdinances;
ii. In the absence of ordinances, ~ustoms
must be observed;
iii. If none the following rule shall be
observed:
1.) For large trees: at least 6m from
boundary;. and
2.) For shrubs: at least §.Qcm from the
center of the tree .(2 PARAS, supra
at 733).
Remedy for Violation
Every landowner shall have the right to
demand that the plant be uprooted (CIVIL
CODE, Art. 679).
The provision covers:
i. Planted in violation of the rule; and
ii. Tree grows spontaneously at shorter
distance than mentioned ( CIVIL CODE,
Ar,t. 679).
NOTE: In case of disagreement, the court
shall · determine when trees are to be
classified as ''tall" or "small" (DE LEON,
Propet1y, supra f.1t 551).
c. Intrusions:
Rules:
i. Of branche,s: the owner of the tree may
be compe11!7!d to cut intruding branches at
the boundary.
NOTE: If the demand is not acted, the
owner of invaded tenement must seek
authority from the court before cutting
(CIVIL CODE, Art. 680).
ii. Of roots: the owner of the invaded
tenement may cut them himself at the
boundary (2 CASTAN 285, as cited in 2
PARAS, supra at 734).
Reason: By incorporation, the intruding
roots belong to the owner of the land
where they are found (2 CASTAN, supra
at 596-597).
NOTE: The right of the abutting owner
does not prescribe, unless he was
prohibited to cul, in such case, the 10-
year prescriptive period will run (CIVIL
CODE, Art. 621).
iii. Fruits falling naturally belong to the
owner Of the land (CIVIL CODE, Art.
681).
 fiiiWM■ \ 1
MEt4Q-RY Al D
San Beda University College of Law · RGCT Bar Operanons Center
REASON: To compensate for
inconvenience caused (DE LEON,
Property, supra at ob1).
NOTE: If a fruit fell on a public property,
then the owner of the tree retains
ownership (Id. at 552).
13.EASEMENT AGAINST NUISANCE
(CIVIL CODE, Arts. 682-683)
Every building or piece of land is subject to the
easement which prohibits the· proprietor or
possessor from committing · nuisance through
noise, jarring, offensive odor, smoke, heat, dust,
water, glare, and other causes (CIVIL CODE, Art.
682).
Subject to zoning, health, police, and other laws
and regulations, factories and shops may be
maintained provided · the least possible
annoyance is caused to the neighborhood (CIVIL
CODE, Art. 683).
The servient owner in an easement against·
nuisance is the proprietor or possessor of the ·
building or piece of land, who commits the
nuisance thru noise, jarring, offensive odor, etc.
(2 PARAS, supra at 736-737).
The general public, or anybody injured by the
nuisance is the dominant owner in an easement
against nuisance (Id.).
14.LATERAL AND S.U8JACENT
SUPPORT (CIVIL CODE, Arts. 684-687)
No proprietor shall make such excavations upon
his land as to deprive any adjacent land or
building of sufficient lateral or subjacent support
(CIVIL CODE, Art. 684). ...
Lateral support
When the supported and supporting lands are
divided by a vertical plane; on the same plane
(DE LEON, Property, supra at 553).
LATERAL SUPPORT
Subjacent support
When the supported land is above and the
supporting land is beneath (Id.).
SUPPORTED
LANO
SUBJACENT SUPPORT
NOTE: There exists a doubt as to whether
easements against nuisance and lateral and
subjacent support may be ·categorized as legal
easements (REYES-PUNG, Philippine Civil Law,
supra at 188-189). While they are restrictions on
ownership, still even without a prohibition by the
dominant estate, the elimination of such support
would be unlawful (2 PARAS, supra at 739).
The duty of an adjacent owner making
excavations upon his land not to deprive any
adjacent land of sufficient lateral or subjacent
support is an absol,ute one. It does not depend
· ••> ).JP9Jl t)1\,'i:ci~gree of care and precaution made by
the . ph:iprletor in making the excavation or
building in;his land (De Jesus v. Howmart Corp.,
G.R. No,. 44191-R, August 28, 1974).
Any .,stipulation or testamentary prov1s1on
allowing such kind of excavation is void (CIVIL
CO(il5,0Attt:f-J85);~r-·
Remedy: Injunctive relief and damages (DE
,4EON, Property, supra at 558).
'B'~tweeh two adjacent landowners, each has an
absolute property right to have his land laterally
supported by the soil of his neighbor, and if either,
in excavating on his own premises, he so disturbs
the lateral support of his neighbor's land as to
cause it, or, in its natural sta_te, by the pressure of
its own weight, to fall away or slide from its
position, the one so excavating is liable (Castro
v. Monsod, GR. No. 183719, February 02,
2011).
EXTINGUISHMENT OF LEGAL
EASEMENTS
Special Rules on the Extinguishment of the
Easement of Right of Way
Special causes of extinction (CIVIL CODE, Art.
655)
If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined
it to another abutting on a public road, the owner of
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the servient estate may dem,md that the ca~cmcnt
be extinguished (CIVIL CODE, Art. 655, Par. 1).
The owner of the servient estate may likewise
demand that the easement be extinguished in case a
new road is opened giving access to the isolated
estate (CIVIL CODE, Art. 655, Par. 2).
The· owner of the servient estate may demand the
extinguishment in the following instances:
1. The opening of a public road; or
2. Joining the dominant tenement to .another with
exit on a public road (2 PARAS, supra at 713).
NOTE: The opening extinguishes only compulsory
easements, not voluntary easements that are
extinguished only by mutual agreement or
renunciation by the dominant owner ( Unisource Corp.
v. Chung, G.R. No. 173252, July 17, 2009).
In either case, the owner of the servient estate must
return what he may have received by,, way of
indemnity (CIVIL CODE, Art. 655, Par. 1). and the
public highway must substantially meet,the needs of
the dominant estate in order that the easemenfmay
be extinguished (CIVIL CODE, Art. 655, Par. 3).
REQUISITES FOR . THE
EXTINGUISHMENT OF Tl:i~. EASEMENT
OF A RIGHT OF WAY; (PAQ)
1. The owner of the surrounded estate joined it to·
another abutting on a ~ubtf road (CIVIL CODE,
Art. 655, Par. 2) or a new road. is opeMd giving
access to the isolated estate (CIVIL :tODE, Art.
655, Par. 2); · '.·
2. The new outlet is ~dequate in either case (CIVIL
CODE, Art. 655, Par. 3); and .
3. The· servient owner must Qemand for ret~ase• of .·
his estate coupled with return of indemnity.
received without interest (DE LEON; Property,
supra at 529).
NOTE: The interest on the indemnity shall be
deemed to be in payment of rent for the use of
the easement (CIVIL CODE, Art. 655, Par. 1).
NOTE: The extinction is not automatic. There
must be a demand for extinction coupled with
tender of indemnity by the servient owner (DE
LEON, Property, supra at 529; 2 PARAS, supra
at713).
In case of temporary or discontinuous easement,
nothing has to be paid (DE LEON, Property,
supra at 529).
The easement of right of way is discontinuous
because it is exercised only if a person passes or
sets foot on somebody else's land. The presence
of more or less permanent railroad tracks does
,A <
PROPERTY
Civil Law
not chnngc this. It is not the presence of apparent
signs or physical indications showing the
existence of an easement, but rather the manner
of exercise thereof, that categorizes such into
continuous or discontinuous (Bogo-Mede/lin
Milling Co., Inc. v. CA, G.R. No. 124699, July 31,
2003).
Like a road for the passage of vehicles or
persons, an easement of right of way of railroad
tracks is discontinuous because the right is
exercised only if and when a train operated by a
person passes over another's property. In other
words, the very exercise of the servitude
depends upon the act or intervention of man
which is the very essence of discontinuous
easements (Bica/ Agro Industrial Producers
Cooperative v. Obias, G.R. No. 172077, October
09, 2009).
If-the owner of the servient estate demands that
the easement be extinguished, he sho'llld return
what he may have received by way of indemnity;
the amount to be returned must consist of the
value .of the land occupied and the damages
caused' to the _servient estate (DE LEON,
Property, supra af 530).
VOLUNTARY
EASEMENTS
(ARTS.: 688-693)
.VQLUNTARY EASEMENTS (CIVIL CODE,
ARTS.. 688-693)
These are easements constituted by will of the parties
or of a testator.
Every owner of a tenement or piece of land may
establish thereon the easements which he may deem
suitable, and in the manner and form for which he
may deem best, provided he does not contravene the
laws, public policy, or public order (CIVIL CODE, Art.
688).
REMEDY FOR IMPAIRMENT
Ask for the destruction of such works and the
restoration of the things to their condition before the
impairment -was committed, with indemnity for
damages suffered (3 SANCHEZ ROMAN, supra at
609).
The owner possessing capacity to encumber
property may constitute a voluntary servih1de. If there
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MEM:Q,RY Al D
San Beda University College of Law - RGCT Bar Operations Cenler
are various owners, all must consent; but consent
once given is not revocable {Id.).
RULES GOVERNING VOLUNTARY
EASEMENTS:
1. If created by title, such as contract or will, then by
such title;
2. If created by proscription, by the form and
manner of possession of the easement; or
3. In default of any of the above, by the provisions
of the Civil Code on easements (2 PARAS, supra
at 741).
WHEN THERE IS A USUFRUCT:
1. The owner of a tenement or piece of land may
impose thereon, without the consent of the
usufructuary, any servitudes which will not
injure the right of usufruct (CIVIL CODE, Art.
689).
2. When a usufruct exists, the beneficial owner may
by himself create a temporary easement
compatible with the extent of his beneficial
dominion (4 MANRESA 838 as cited in 2 PARAS,
supra at 737).
NOTE: If the easement is perpetual, both the
naked and beneficial owners must consent
(CIVIL CODE, Art. 690).
WHEN THERE IS CO-OWNERSHIP
In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the co-
owners shall be required (CIVIL CODE, Art. 691).
REASON: The creation of the voluntary easement is
an act of ownership (2 PARAS, supra at 743-744).
NOTE: However, the consent need no.t _be giv.en
simultaneously; they can be given successively (4
MANRESA 838-839 as cited in PARAS at 744).
The consent given by one of the co-owners
separately from the others shali"'bind the grantor and
his successors (CIVIL CODE, Art. 691, Par. 3).
NOTE: Once a co-owner gives the consent, he
cannot later on revoke his consent, unless it is a
vitiated consent. In fact, his own successors cannot
ordinarily revoke_ the consent he had given (3
SANCHEZ ROMAN, supra at 640).
VOLUNTARY EASEMENTS
ESTABLISHED IN FAVOR OF:
1. Predial servitudes:
a. For the owner of the dominant estate; or
b. For any other person having any juridical
relation with the dominant estate, if the owner
ratifies it.
2, Personal servitudes: for anyone capacitated to
accept (CIVIL CODE, Art. 613).
ABANDONMENT OF PROPERTY
If the owner of the servient estate should have bound
himself, upon the establishment of the easement, to
bear the cost of the work required for the use and
preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of
the dominant estate (CIVIL CODE, Art. 693).
NOTE: The abandonment must appear in a public.
document for convenience only {CIVIL CODE, Art.
1358 (1)).
NOTE: The abandoner must comply with the proper
juridical form for the transmission of the ownership of
real property. Thus, implied abandonment is not
allowed (4 MANRESA 843 as cited in PARAS at 746).
EXTINGUISHMENT OF VOLUNTARY
EASEMENTS
GROUND: Only by mutual agreement
NOTE: A voluntary easement could be extinguished
ohly by rrtut1,1at agreement or by renunciation of the
owner of the j:iominant estate. The opening of an
adequate outlet" to a highway can extinguish only
legal or wmpulsory easements, not voluntary
. easements: TI\e fact that an easement by grant may
have also qualified as an easement by necessity
does not de1rc!f1 from its permanency as a property
, right, wh'icfosurviyes the termination of the necessity.
(Unisource Commercial & Dev. Corp v. Chung, G.R.
No. 173252, July 17, 2009).
'JU~gen¢raUy effective between the parties, their heirs
and assigns, except in case where the rights and
obligations under the contract are not transmissible
by their nature (CIVIL CODE, Art. 1311). When the
easement in this case was established by contract,
the parties unequivocally made provisions for its
observance by all whom in the future might succeed
them in dominion (La Vista v. CA, G.R. No. 95252,
September 5, 1997).
NUISANCE
(ARTS. 694-707)
ARE
A nuisance is any act, omission, establishment,
business, condition of property or anything else
which: (ISA-HO)
1. !njures or endangers the health or safety of
others;
2. ~nnoys or offends the senses;
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NOTE: The determining factor is not its intensity CLASSES OF NUISANCE:

or volume. It is that the noise is of such character
As to the object it affects:
as to produce actual physical discomfort and
1. Public
annoyance to a person of ordinary sensibilities
- Affects the community or a considerable
rendering adjacent property less comfortable and
number of persons (although the extent of
valuable (2 PARAS, supra at 750).
annoyance or danger be unequal) (2 PARAS,
supra at 751);
3. §.hocks, defies or disregards decency or morality;
4. Qbstructs or interferes with the free passage to
Example: A noisy or dangerous factory in a
any public highway or street, or body of water; or
residential district
5. !!inders or impairs the use of property (CIVIL
CODE, Art. 694).
2. Private
- Affects only a person or a small number of
NOTE: Operates as a restriction upon the right of
persons; and
the owner of the property to make such use of it
as he pleases (DE LEON, Property, supra at
Example: An illega.lly constructed dam partially
564). But if the hindrance is just, authorized and
resting on another's estate.
necessary, it is not a nuisance (2 PARAS, supra
at 749).
3. Mixed
.,,- Nuisance may be both public and private in
Nuisance is so comprehensive that it has 'been
character (DE LEON, Property, supra at 564-
applied to almost all ways which have in@fered with
565).
the rights of the citizens, either in person; property,
the enjoyment of his property, or his comfort (Gruz v.
Pandacan Hiker's Club, G.R. No. 1[38213, January
As to its susceptibility to summary
11, 2016). abatement ,
1. Per se (nuisance c)t law)
- Nuisance at ..all times and under all
NEGLIGENCE V. NUISANCE circumstance's , regardless of location and
surrounding; .and

2. Per accideni (nuisance in fact)

- Nuisance by reason of circumstances, location,
Liability is based on Liability is on ba.seo ofsurr0undings (A[BANO, Torts and Damages
lack of proper care or re$ulting irjury to others, (2019); p.f;f87 [hereinafter ALBANO, Torts and
diligence. regardless'of the degree fJamages]).
of care or skill ex()rcised
to avoid injury. .
NUISANCE PER SE V. NUISANCE PER
ACCIDENS

Act complained of is There is continuing ,harm

already done which being suffered by the
caused injury to the aggrieved party by the
plaintiff. maintenance of the act
or thing which The thing becomes a The thing becomes a
constitutes the nuisance as a matter of nuisance as a question
nuisance. law. of fact.

Abatement is not Abatement without May be summarily A reasonable notice to

available as a remedy. judicial proceedings is abated. the person allegedly
The action is for allowed to suppress the maintaining the same is
damages. nuisance. required.
(DE LEON, Property, supra at 562).
 1 ' , ' .:~ ,-'; '
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NUISANCE V. TRESPASS 2. !:-!o breach of peace or unnecessary injury must

In trespass, there is entry into another's property, this be committed;
is not necessarily so in nuisance. In trespass, the 3. Prior Qcmand;
injury is direct and immediate; in nuisance, it is only 4. Prior demand has been Rejected;
5. ~pproval by district health officer and assistance
consequential (2 PARAS, supra at 748).
of local police; and
6. Value of destruction does not exceed P3,000
DOCTRINE OF ATTRACTIVE NUISANCE (CIVIL CODE, Art. 704).
One who maintains on his premises dangerous
instrumentalities of a character likely to attract The action to abatP- r:i pi 1blir./11riyr1tP. ni 1isance is not
d1ilt.l11::J11 i11 µlc1y c1nd w~10 falls to exercise ordinary extinguished by prescription except in easements
care to prevent children from playing therewith or which are extinguished by obstruction and non-user
resorting thereto is liable to a child of tender years for 10 years (2 PARAS, supra at 748). Since the right
who is injured thereby, even if the child is technically was extinguished by prescription, it ceased to be a
a trespasser in the premises (Hidalgo Enterprises v. nuisance anymore (Ongsiaco v. Ongsiaco, GR. No.
Balandan, G.R. No. L-3422, June 13, 1952). L-7510, March 30, 1957).

A swimming pool or water tank is not an attractive
nuisance unless there is some unusual condition or
artificial feature other than the mere water and its
location (DE LEON, Property, supra at 566).
NOTE: Every successive owner or possessor of
property who fails or refuses to abate a nuisance in
that property started by a former owner or possessor
is liable therefore in the same manner as who created
it (CIVIL CODE, Art. 696) . .
REASON: Injurious effect is a continuing one
(DE LEON, Property supra at. 567).
The Doctrine of Comparative Utility or Balancing
of Utilities Doctrine provides that there is only a
nuisance if the annoyance outweighs the utility to the
actor and to society as a whole (RABUYA, Property,
at 681-682).
REMEDIES AGAINST
NUISANCE: (PCE)
1. erosecution under the RPC or local ordinance;
2. Civil Action; and
3. gxtrajudicial Abatement (CIVIL CODE, Art. 699).
REMEDIES AGAINST
NUISANCE: (CE)
1. · Civil Action; and
2. gxtrajudicial Abatement (CIVIL CODE, Art. 705).
EXTRAJUDICIAL ABATEMENT
Any private person may abate a public nuisance
which is especially injurious to him by removing, or if
necessary, by destroying the thing which constitutes
the same, without committing a breach of peace, or
doing unnecessary injury (CIVIL CODE, Art. 704).
Requisites: (INDRAV)
1. Nuisance must be especially !njurious to the
person affected;
Unless a Nuisance is a Nuisance Per se, it May
Not be Summarily Abated
A nuisance per accidens (or that which depends upon
certain conditions and circumstances), its existence
being a question of fact, cannot be abated without
due hearing thereon in a tribunal authorized to decide
whether such a thing does in law constitute a
nuisance (Rana v. Lee Wong, G.R. No. 192861-62,
June 30, 2014).
. . .
Generally, LGUs have no power to declare a
particular thing as a nuisance unless such a thing is
a nuisance .per se (Aquino v. Municipality of Malay
Aklan, G.R. No. 211356, September 29, 2014).
Howev(ar, .mayo~~ .are empowered to order the
· closure and removal of illegally constructed
establishments for failing to secure the necessary
building permits, whether the building constituted a
11ulsa11ce per se or nuisance per accidens (Aquino v.
PUBLIC Mbnic'ipality of Malay Aklan, G.R. No. 211356,
September 29, 2014).
DEFENSES IN ACTIONS FOR DAMAGES
f3ASED ON NUISANCE (PE):
1. ~ublic necessity; and
PR~VATE 2. gstoppel (ALBANO, Torts and Damages, supra
at 398).
ROLES OF OFFICERS WITH RESPECT .
TO PUBLIC NUISANCE
1. District health officer is charged with the duty to
see to it that one or all of the remedies against a
public nuisance are availed of (CIVIL CODE,
Aris. 700-702). His power is simply to determine
whether or not the abatement, without judicial
proceedings, is the best remedy (DE LEON,
Properly, supra at 575); and
2. The action must be commenced by the city or
municipal mayor (Id. at 570-571).
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NOTE: A private person may also file an action if

the public nuisance is especially injurious to him DIFFERENT MODES OF
(CIVIL CODE, Art. 703).
ACQUIRING
NOTE: Under the Revised Charter of Manila, the OWNERSHIP
proper official insofar as illegal construction of
houses or public streets are concerned, is the (ART. 712)
City Engineer (Sitchon v. Aquino, G.R. No. L-
8191, February 27, 1956).

MOOE
This is the proximate cause of the acquisition; the
REGISTRY OF actual process of acquisition or transfer of ownership
over a thing in question (3 SANCHEZ ROMAN, supra
PROPERTY at 199-200).
(ARTS. 708-711)
TITLE
This is the remote cause of the acquisition; the
juridical justification fm the acquisition or a transfer of
REGISTRATION ownership or other real right. (Acap v. CA, G.R. No.
It is any entry made in a book or public· registry of. 118114, December 7, 1995).
deeds (OE LEON, Property, supra at 578). · ·

SYSTEMS OF REGISTRATION:
1. Former registration systems:
a. Spanish Mortgage Law of 1893;
b. Torrens System established by the Land
Registration Act (Act. No. 496); and
c. Sec. 194- Revised Administrative Code;

2. Present registration system Property

Registration Decree (P.O. No, 1529).

EFFECTS OF REGISTRATION:
1. · Operates as constructive notice;
2. Does not validate or cure defective instrument;
3. Cannot bind property where it is' legally
ineffective; ,
4. Does not vest title; and {::ssence of the right Means whereby that
5. Rule of first in time, first in right (DE LEON, · which rs to be created essence is transmitted.
Property, supra at 579-581). or transmitted ..

PURPOSES OF REGISTRATION: (DE LEON, Property supra at 579).

1. Gives true notice of the true status of the real
property and the real rights thereto; DIFFERENT MODES AND TITLES
2. Prejudices third persons; and OF ACQUIRING OWNERSHIP
3. Prevents commission of frauds, thus, insuring the
effectivity of real rights over real property (2
PARAS, supra at 761-762).

Occupation Condition , of being

without known owner

Work which includes Creation, discovery, or

Intellectual creation invention
 UMMM \ 1 ><- / 'ia ) ' \ I ' _;_ ' ,' ' ,;

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San Be<:la University Colle.,,_, of Law - RGCT Bar Operations Center
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263

NOTE: The critical factor· in the different modes

of effectinn delivery which qives leqal effect to the
;ir.t, is thP. ;:ir.ti 1r1I intP.ntinn nf thF' vendor to deliver,
and its acceptance by the vt=:nclt=:f:. Wit1·,c111t thr1t
intention, there is no tradition (Union Motor v. CA,
G.R. No. 117187, July 20, 2001).
Law Existence of required
conditions KINDS: (RCQM)
1. Real Tradition
Examples: CIVIL -:= Actual delivery;
CODE, Art. 624; Art.
681; Art. 1434
2. Constructive Tradition
Tradition Contract of the parties -= Delivery of the thing, not real or material, but
consists merely in certain facts indicative of the
Donation Contract of the parties same
a. Traditio Symbolica - parties make use of a
Prescription Possession in the token or symbol to represent the thing
concept of owner delivered;
b. Traditio Longa Manu - by mere consent of
Succession Death the parties if the thing sold cannot be
(DE LEON, Property supra at 580). transferred to the possession of the vendee
at the time of the sale;
LAW c. Traditio Brevi Manu - when the vendee
already has possession of the thing sold by
Those special legal prov1s1ons which directly vest·
virtue of another title;
ownership or real rights in favor of certain persons,
•d< T.ra(Jitio Constitutum Possessorium -
independently of the other modes of acquiring and
i).;){e11 the vendor continues in possession of
transmitting ownership or other real rights;
the thing sold not as owner but in some other
capacity; and
Examples:
e. Tradition_ by public instrument - the·
1. Fruits naturally falling upon adjacent land
execution is equivalent to the delivery of the
belorig to the owner of said land; and
thi11g, object of the contract.
,.,,,
2. When a person who is not the owner of a ,,,;:

thing sells or alienates and delivers it, and

later the seller or granter acquires title
NdTE: Th~ execution of c! public instrument
gives rise only to a prima facie presumption
thereto, such title passes by operation of law
of delivery which is destroyed when the
to the buyer or grantee (CIVIL CODE, Art.
instrument expresses that delivery was not
1434)
.. "intended, or by other means showing that
delivery was not effected because a third
TRADITION OR DELIVERY person was in actual possession thereof
It is a mode of acquiring ownership as a consequence (Equatorial Realty v. Mayfair Theater, GR.
of certain contracts by virtue of which the object is No. 133879, November 21, 2001).
placed in the control and possession of the
transferee, actually or constructively. It is a derivative 3. Quasi-tradition
mode of acquiring ownership and other real rights by
virtue of which, therP. being ;:in intentinn ;:inrl r.;,p;:ir::ity
=- Exercise of the right of the grantee with the
consent of the grantor; and
on the part of the grantor and grantee and the pre-
existence of said rights in the estate of the grantor, 4. Tradicion por Ministerio de la ley
they are transmitted to the grantee .through ;:i just title - Delivery by operation of law (nF LFON,
(Id. nt 593). Property, supra at 594- 595).

Requisites (ARTI):
1. Transmission should be manifested by some ~ct
MODES OF LOSING OWNERSHIP AND
which should be physical, symbolical or legal; OTHER REAL RIGHTS:
2. _Bight transmitted should have prnvirnisly existed 1. Voluntary Modes
in the patrimony of the grantor; - Those that depend upon the will of the owner:
3. Transmission should be by just title; and a. Abandonment - to be valid, requires that the
4. Grantor and grantee should have !ntention and holder have legal capacity and intention to
capacity to transmit and acquire (Id.). renounce the right.

b. Alienation - transfer of right to another by
acts mortis causa or inter vivos, either
onerous or gratuitous.
2. Involuntary Modes
- Those independent of the will of the owner:
a. Destruction of the thing which may be
physical or juridical (e.g., the thing goes out
of commerce);
b. Revocatory acts (e.g., nullity, rescission,
revocation, or resolution);
c. Extinguishment by legal precept and by
virtue of the owner or third persons' acts
(e.g., accession or acquisitive prescription);
d. Extinguishment by juridical decree (e.g.,
confirmation of judicial sale); or
e. Extinguishment by act of the State (e.g.,
confiscation of effects of crime or
expropriation) (2 CAGUIOA, supra at 351-
352) ..
OCCUPATION
(ARTS. 713-724)
OCCUPATION
Things appropriable by nature which are without an
owner, such as animals that are the object of hunting
and fishing, hidden treasure, and abandoned
movables, are acquired by occupation (CIVIL CODE,
Art. 713).
It is a mode of acquiring ownership by the seizure of
corporeal things that have no owner, '.,Vith, the
intention of acquiring them, and according to the rules
laid down by law (3 SANCHEZ ROMAN, supra at
210).
Requisites: (CARISO)
1. The thing seized must be ~orporeal personal
property;
2. The thing must be susceptible of ~ppropriation
by nature;
3. Requisites laid down by law must be complied
with;
4. There must be an !ntention to appropriate;
5. There must be §_eizure of a thing; and
6. The thing must be without an Qwner (DE LEON,
Property, supra at 602).
NOTE: Material holding is not essential as long
as the possessor considers the thing as
subjected to his control or disposition (Id. at 604).
PROPERTY
Civil Law
Specific Instances:
1. Hunting and fishing;
2. Finding of movables which do not have an owner;
3. Finding of abandoned movables (Id. at 598);
A thing is considered abandoned when:
a. Spes recuperandi (expectation to recover) is
gone;and
b. Animo revertendi (intention to return or have
it returned) has been given up by the owner
(2 PARAS, supra at. 790).
NOTE: A thing that has been lost or taken by
force is not ipso facto converted to res nullius for
it to belong to the person who takes possession
of the same without the necessity of proving the
mode of his acquisition and it may thus be
recovered by the original owner (CIVIL CODE,
Art. 559). Such thing cannot be acquired by
prescription even if extraordinary (2 PARAS,
supra at. 790).
4. Finding of hidden treasure (CIVIL CODE, Arts.
5.
438 and 439);
Catching of swarm of bees that has escaped from
its owner, under certain conditions ( CIVIL CODE,
Art. 716);
6. Catching of domesticated or ~amed animals that
have .escaped fror:n their owners, under certain
conditions (2PARAS, supra at 789);
7. Transfer of pigeons. to another breeding place
without fraud or artifice (CIVIL CODE, Art. 717);
and
8. Transfer of fish to another breeding place without
fraud or artifice (CIVIL CODE, Art. 717).
Land Ownership · Cannot be Acquired by
Occupation (CIVIL CODE, Art 714)
The ownership of a piece of land cannot be acquired
by occupation (CIVIL CODE, Art. 714).
REASON: When the land is without owner, it pertains
to the State pursuant to Regalian Doctrine (2
PARAS, supra at. 791).
NOTE: The State need not acquire abandoned lands
by occupation because once the requisites of
abandonment had been fulfilled; reversion operates
automatically (PINEDA, Law on Property, supra at
49).
RULE ON ABANDONED PRIVATE LAND
There is no law which categorically provides that such
land becomes the property of the State. Since Art.
714 makes no distinction between land which never
had an owner and a land originally with an owner but
later abaAdoned, it would seem that the land cannot
be acquired by occupation. However, there- are Civil
Law authorities who are of the view that· such
interpretation would result in the absurd situation of
 Gflf949 \ 1

MEM:v-RY AID
San Bt:da University College of Law ~ RGCT Bar Opmations Center

an abandoned land remaining perpetually res nullius 2. One who buys the property from the finder
and not capable uf being acquired by prescription. knowing that he is buying lost property has the
Thus, it is submitted that the abandoned land duty to mturn although he is not the finder;
becomes patrimonial land of the State susceptible of 3. Thing cannot be acquired by prescription even if
acquisition through acquisitive prescription (2 extraordinary;
PARAS, supra at 792). 4. Law requires the finder to deliver the movable to
the mayor where· the finding has taken place
OCCUPATION V. POSSESSION (CIVIL CODE, Art. 719, Par. 1);
5. Abandonment must be voluntary and intentional
to be effective;
6. If the owners should appear in time, he is obliged
to give the findE!r a 10% reward based on the sum
Mode of acquiring Merely raises the or the price of the thing found (CIVIL CODE, Art.'
ownership. presumption of 720); and
ownership when it is 7. The expenses must be reimbursed by the finder
exercised in the concept or the owner in case the latter claims the movable
of an owner. (CIVIL CODE, Art. 719, Par. 4; DE LEON.
Property, supra at 609-610).

NOTE: The rights and obligations of the finder of lost

personal property are based on the principle of quasi-
contract. The duty imposed on the finder by Art. 719
is based on the fact that one who lost his property
..does not necessarily abandon ii. If there is no
., ;abandonment, the lost thing has not become res
nuf[ius (DE LE:.0N, Property supra at 609).

·DONATION
(ARTS. 725-773).

DONATION
·. 'JtiSi'a11.act of liberality whereby a person disposes
grah.iitously of a thing or right in favor of another who
accepts it (CIVIL CODE, Art. 725).

Requisites: (CIDA)
1. Donor must have ~apacity to make the donation
at the time of the perfection of the contract;

NOTE: Donation is valid even if the person has

schizophrenia. A person suffering from such
sickness is presumed capable of attending to his
property rights. There is no total loss of control of
By itself cannot lead to May lead to ,mother form his mental facilities (Catalan v. Basa, G.R. No.
another form of which is prescription. 159567, July 31, 2007).
acquisition.
2. He must have donative !ntent (animus donandi);
(DE LEON, Property, supra at 603).
3. There must be Qelivery; and
RULES AS TO LOST MOVABLES:
1. Theft is committed by any person, having found 4. Donee must ~cc,;ept or consent to the donation.
lost property, shall fail to deliver the same to the
local authorities or to its owner (REVISED NOTE: In certain donations, the form prescribed
PENAL CODE, Art. 308(1 )); by law must be followed (CIVIL CODE, Arts. 748
and 749; DE LEON, Property, supra at 627).

ESSENTIAL FEATURES/ELEMENTS OF
A TRUE DONATION (INTER VIVOS): (Al-
AR)
1. Alienation of property by the donor during his
lifetime, which is accepted;
2. !rrevocability (except for legal causes);
3. ~nimus Oonandi (intent to benefit the donee);
and
4. Resultant decrease in the assets or patrimony of
the donor (2 PARAS, supra at 881-882).
PERFECTION OF DONATION
The donation is perfected from the moment the donor
knows of the acceptance by the donee (CIVIL CODE,
Art. 734).
NOTE: Acceptance must be made during the lifetime
of the donor and of the do nee (CIVIL CODE, Art. 746)
1. In case of donation inter vivos, acceptancetakes
effect during the lifetime of the d.onor arifl the
donee. ·. ' . . ··
2. In case of donation mortis causa, acc:eptarice is
made only after the donor's c!eatn because·
they partake of the nature of.a Will and thus
governed by the rules on successi9n (CIVIL
CODE, Art. 728). .
Acceptance is indispensaple because nobody is
obliged to receive a benefit ag§linst his will. Its
absence makes the donaiion '. 11~11 and . v.oid (DE
LEON, Property, supra at 65,3). ,
Prior to learning of the acceptance, there is as yet no
perfected donation, in which case the donor mc1ygive
the property to somebody else. ~nee a valid donattorr
is perfected, it {;an not be revoked wjthout the cqnsent
of the donee except on the grounds provide,d by'law
such as inofficiousness, failure of the. ·do.nee to
comply with the charges imposed in the donation or
by reason of ingratitude (Id. at 653-654).
ACCEPTANCE MAY BE IN:
1. Same instrument in which case there is already
knowledge of the acceptance, hence the
donation is already perfected (Laureta v. Mata,
G.R. No. L-19740, March 22, 1923); or
2. Separate instrument (Lagazo v. CA, G.R. No.
112796, March 5, 1998).
There must be proof that a formal notice of such
acceptance was received by the donor. If real
property is involved, it must be noted in both the deed
of donation and separate ~nstrument (Lagazo v. CA,
G.R. No. 112796, March 5, 1998).
In Sumipat v. Banga, this Court declared that title to
immovable property does not pass from the donor to
PROPERTY
Civil Law
the donec by virtue of a Deed of Donation until and
unless it has been ncccptcd in a public instrument
and the donor duly notified thereof. The acceptance
may be made in the very same instrument of
donation. If the acceptance does not appear in the
same document, it must be made in another. Where
the Deed of Donation fails to show the acceptance,
or where the formal notice of the acceptance, made
in a separate instrument, is either not given to the
donor or else not noted in the Deed of Donation and
in the separate acceptance, the donation is null and
void (Arangote v. Spouses Maglunob, G.R. No.
178906, February 18, 2009).
CLASSIFICATION:
1. As to effectivity:
a. Inter vivos;
b. Mortis causa; and
c. Propter nuptias - made by reason of
marriage and before its celebration, in
'·consideration of the same and in favor of one
0
· or 60th of the future spouses (DE LEON,
Property, supra at 635-636).
2: As.to perle~ib,n/ extinguishment:
a. Pure~.··" · ·
b. Conditional; and
.c. With a form (Id).
3. As to consideration:
a. Simple t 1he, cause of which is the pure
)liberalityiof_th~ donor in consideration of the
.· dohee's 'r'nerits;
. b: . Remuijeratory or Compensatory - that
which·is giver:rout of gratitude on account of
; thelserviceshendered by the donee to the
. idbnpr, provided they do not constitute a
. demandable debt;
c. .Mod~t 'or Conditional - imposes upon the
dofiee a burden which is lesq than the value
of the thing donated (DE LEON, Property,
supra at 629-632); and
d. Onerous - imposes upon the donee a
reciprocal obligation or, to be more precise,
this is the kind of donation made for a
v;:iluable consideration, the cost of which is
equal to or more than the thing donated
(Province of Camarines Sur v. Bodega
Glassware, G.R. No. 194199, March 22,
2017).
NOTE: Illegal or impossible conditions in simple
and remuneratory donations shall be considered
as not imposed (CIVIL CODE, Art. 727). Only
such conditions are disregarded, but the donation
itself remains valid'(RABUYA, Property, supra at
760).
Donations with an. onerous cause are governed
not by the law on donations but by the rules on
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San Beda University College of Law - RGCT Bar Operat>0ns Center
contracts. Hence, on the matter of prescription of
actions for the revocation of onerous donation, it
was held that the general rules on prescription
applies (Oe Luna v. Abrigo, G.R. No. L-57455,
January 18, 1990).
A stipulation in the donation that it was made for
and in consideration of the "love and affection
which the donee inspires in the donor, and as an
act of liberality and generosity" is sufficient cause
for a donation (Qui/ala v. Alcantara, G.R. No.
132681, December 3, 2001).
SIMPLE OR REMUNERATORY
DONATIONV.
ONEROUS DONATION
. .',«: ·": -, '. .' ' . ~:
vivas or mortis causa depends upon the nature of the
disposition made (Reyes v. Mosqueda, G.R. No.
45262, July 23, 1990).
That the document in question in this case was
captioned "Donation Mortis Causa" is not controlling.
This Court has held that, if a donation by its terms is
inter vivas, this character is not altered by the fact that
the donor styles it mortis causa (Del Rusariu v.
Ferrer, G.R. No. 187056, September 20, 2010).
DONATION INTER VIVOSV. DONATION
MORTIS CAUSA

Takes effect Takes effect only upon

independently of the the death of the donor
donor's death. (CIVIL CODE, Art.
Primarily, the law on The law on contracts 777).
donations governs; governs.
while the law on
contracts may apply NOTE: In modal
suppletorily. donations, the law. on
contracts governs up to
extent of the burden:
while the law on
donations on the portion
that exceeds the value
· of th·e _burden. .

The illegal or The obligation with

impossible conditions illegal or impossible
are considered as not conditions shall be Generally irrevocable Always revocable at
imposed but the -annulled under Art. during the donor's any time and for any
donation remains valid. 1183. lifetime except for reasor:i before the
(RABUYA, Property, supra at 760). grounds provided by law donor's death (CIVIL
(CIVIL CODE, Arts. 760, CODE, Art. 828).
and 765).
DONATION MORTIS CAUSA GOVERNED
BY RULES ON WILLS AND SUCCESSION The express
Donations which are to take effect upon the death of "irrevocability" of the
the donor partakes of the nature of testamentary donation is the
provisions and shall be governed by the rules "distinctive standard
established in the Titie on Succession (CiViL CODE, that identifies the
Art. 728). document as a donation
inter vivos." Here, the
The title given to a Deed of Donation is not the donors plainly said that
determinative factor which makes the donation "inter it is "our will that this
vivos" or "mortis causa." Whether a donation is inter Donation Mortis Causa
 PROPERTY
Civil Law

donation shall pertain to the donee (CIVIL CODE, Art.

729).

shall be irrevocable and Art. 729 speaks of donations in praesenti which take
shall be respected by effect during the lifetime of the donor but the property
the surviving spouse." shall be delivered only after the donor's death. Such
The intent to make the donations are inter vivas although the subject matter
donation irrevocable is not delivered at once, or the delivery is to be made
becomes even clearer post mortem, which is a simple matter of form and
by the proviso that a does not change the nature of the act (Vita v.
surviving donor shall Montanano G.R. No. L-50553, February 19, 1991).
respect the irrevocability
of the donation. Conditions beyond the natural expectation of life
Consequently, the of the donor
donation was in reality a The fixing of an event or the imposition of a
_donation inter vivos (Del suspensive condition, which may take place beyond
Rosario v. Ferrer, G.R. the natural expectation of life of the donor, does not
No. 187056, September destroy the nature of the act as a donation inter vivos,
20, 2010). unless a contrary intention appears (CIVIL CODE,
Art. 730).

REASON: Fulfillment of the suspensive condition is

n:itroactive to the making of the donation (CIVIL
CODE, Art. 1187).

When a person donates something, subject to the

resolutory coridltion of the donor's survival, there is a
donation Inter vivos·(CIVIL CODE, A_rt. 731).

The validity of automatic reversion upon the

Subject to donor's tax. Subject tOestate tax.
(2 PARAS, supra at 882-885).
In case of doubt, inter vivos
In case of doubt, the conveyance should be deemed
donation inter vivas rather than mortis causa, in order
to avoid uncertainty as to the ownership of the
property subject of the deed (Puig v. Peflaflorida,
G.R. No. L-15939, January 31, 1966).
The legal principle that in case of doubt as to
gratuitous contracts, construction must effect "the
least transmission of rights and interests" (CIVIL
CODE, Art. 1378).
DONATIONS IN PRAESENTI
When the donor intends that the donation shall take
effect during the lifetime of the donor, though the
property shall not be delivered till after the donor's
death, this shall be a donation inter vivas (CIVIL
CODE, Art. 729).
Unless the donor provides otherwise, the fruits of the
property from . the time of the acceptance of the
happening of the resolutory condition of non-
compliance is valid (De Luna v. Abrigo, G.R. No. L-
57455, January 18, 1990). However, where one of
the parties_ contests or denies the rescission, "only the
final word of ~tie court of competent jurisdiction can
conclusively settle whether resolutfon is proper or
nor (UP v. De los Angeles, G.R. No. L-28602,
September 2[;), 1[).70).
INSTANCES .OF DONATIONS INTER
VIVOS:'
1. A donation where the causes of revocation have
been specified (Zapanta v. Posadas, G.R. No. L-
29204, December 29, 1928);
2. A donation where the donor reserved for himself
a lifetime usufruct of the property, for if he were
still the owner, there would be no need of said
reservation (Balaqui v. Dongso, G.R. No. L-
31161, October 28, 1929);
3. A donation where the doncir warrants the title to
the thing which he is donating ( Ba/aqui v.
Dongso, G.R. No. L-31161, October 28, 1929)-
there would be no need of warranty were he not
be transferring the title;
4. Where the donor immediately transferred th(;)
ownership, possession, and administration of the
property to the donee, but stipulated that the right
of the donee. to harvest and alienate the fruits
would begin only after the donor's death (De
Guzman v. lbea, G.R. No. L-45724, April 27,
 @&i@M \ I
MEM-v~Y AID
San Beda University College of Law - RGCT Bar OperatiO<\.s Center
1939). However, if what had been transferred in
the meantime was only the administration of the
property, the donation is mortis causa (Carino v.
Abaya, G.R. No. 46706, June 26, 1940);
5. Where the donor stated that while he is alive he
would not dispose of the property or take away
the land "because I am reserving it to him (the
donee) upon my death" (Cuevas v. Cuevas, G.R.
No. L-8327, December 14, 1955); and
6. One where the donees "should not as yet get the
possession until our demise", the administration
remaining with the donor spouses, or either one
surviving (Guarin v. De Vera, G.R. No. L-8577,
February 28, 1957).
INSTANCES OF DONATIONS MORTIS
CAUSA:
1. One where the registration of the deed before the
donor's death is prohibited (Puig v. Penaflorida,
G.R. No. L-15939, January 31, 1966);
2. Donation which will take effect and pass title only
by and because of death (Howard v. Padilla, G.R.
No. L-7064, April 22, 1955);
3. If the donor retains full and naked ownership and
control over the property while he is still alive
(Heirs ofBonsato v. CA, G.R No. L-6600, July 30,
1954);
4. One where properties will be delivered after
donor's death (Carino v. Abaya, G.R. No. 46706,
June 26, 1940);
5. Where the right to dispose and enjoy is reserved
by the donor (Austria-Magat v. CA, f .R. No.
106755, February 1, 2002); and
6. Donation which makes no actual conveyance
before the donor's death (David v. Sison, G.R.
No. 49108, March 28, 1946).
DONORS
The donor must have both the capacity to contract
and to dispose (CIVIL CODE, Art. 735), and is not
specifically prohibited to make a donation ( CIVIL
CODE, Art. 739).
NOTE: Donor's capacity shall be determined as of
the time of the making of the donation (CIVIL CODE,
Art. 737).
"Making" means "perfection" of the donation,
otherwise if "making" means "giving," _Art. 737 would
in some cases be inconsistent with Art. 734 which
states that "the donation is perfected from the
moment the donor knows of the acceptance by the
donee." To avoid a contradiction, the rule may be
::;lc1led ti 1us. "al ti 1e lillle tile dui"1c1liun i:':i pe1 f8cl8d,
both the donor and the donee must be capacitated."
The subsequent incapacity of the donor does not
affect the validity of the donation (2 PARAS, supra at
902).
DONATION BETWEEN SPOUSES
Under Art. 85 of the Family Code, every donation
between spouses during the marriage shall be void
except moderate gifts on the occasion of family
rejoicing. The prohibition applies also to persons
living together as husband and wife without benefit of
marriage (Ching v. Goyanko, G.R. No. 165879,
November 10, 2006).
DIFFERENCES OF CAPACITIES
BETWEEN THE HUSBAND AND WIFE TO
DONATE CONJUGAL PROPERTY:
Husband: He is capacitated to enter into a valid
contract if he is sui Juris. He can donate conjugal
property without wife's consent if these are:
1. Moderate donations given for charity or for times
of family rejoicing or distress; or
2. Donations to common legitimate children for
purposes of commencing a professional or
vocational course or other activity for self-
improvement (2 PARAS, supra at 898-899).
Wife: Unless.she is the administratrix of the conjugal
partnership; she cannot donate conjugal property
without the consent of her husband (Id. at 899).
PROHIBIT1ON OF DONATION BY
CORPORATION TO POLITICAL PARTY
Under Sec. 36 the Corporation Code (now Sec. 35 of
the Revised' ,<Dotporation Code), every corporation
has the power and capacity, inter alia: to make
reasonable donations, including those for the public
. welfare or for hospital, charitable, cultural, scientific,
c1v1c, . or similar purposes. However, foreign
corporations cannot give donations in aid of any
political party or candidate or for purposes of partisan
political activity (REVISED CORPORATION CODE,
Sec. 35).
NOTE: Donations inter vivas made by incapacitated
donors are merely voidable. Same rule applies where
consent is vitiated (2 PARAS, supra at 899).
GUARDIANS AND TRUSTEES CANNOT
ALIENATE PROPERTY ENTRUSTED TO
THEM (CIVIL CODE, ART 736):
1. This prohibition is not absolute. It is applicable
only in case of simple donation, but not where the
donation is onerous and is beneficial to the
beneficiary (DE LEON, Property, supra at 661).
2. Trustees, who have repudiated the trust and
have acquired the properties by prescription, are
allowed to donate said properties (2 PARAS,
supra at 900).

DONEES
GENERAL RULE: All those who are not specially
disqualified by law may accept donation (CIVIL
CODE, Art. 738).
EXCEPTIONS: Donations may be made to
incapacitated persons such as:
1. Minors, and others who cannot enter into a
contract, but acceptance shall be done through
their parents or legal representatives {CIVIL
CODE, Art. 741); and
2. Conceived and unborn children, acceptance of
which may be made by those persons who would
legally represent them if they were already born
(CIVIL CODE, Art. 742), provided it be for
purposes that are favorable to it (CIVIL CODE,
Arts. 40 and 41). Otherwise, it is as if the
conceived child possessed no juridical
personality (2 PARAS, supra at 908).
NOTE: The donee must accept the donation·
personally, or through an authorized person with
a special power for the purpose, br with a general
and sufficient power; otherwise, the donation
shall be void (CIVIL CODE, Art. 745).
Concept of innocent purchaser for value does not
apply to gratuitous transfers . ·
Under Section 53 of Presidential Decree No. 1529,
known as the Property Registration Decree, iri all
cases of registration procured by fraud, fhf!. owner
may pursue all his legal c;1nd equitable remedies
against the parties to such fraud without prejudice,
however, to the rights of any innocent holder for value
of a certificate of title. Here, a donee is not-,an
innocent holder for value for the reason that he.
er
acquires property gratuitously by Deed .of Donation
and not by purchase. Hence, the concept of an
innocent purchaser for value cannot apply to him
(Gambito v. Bacena, GR. No. 225929, January ,24,
2018).
DONATION PROHIBITED BY LAW:
(ACOP-WIG-PUS)
1. Those made between persons who were guilty of
~dultery or concubinage at the time of the
donation (CIVIL CODE, Art. 739(1));
NOTE: Previous criminal conviction is not
necessary; the guilt may be proven in a civil
action for declaration of nullity _of donation
personality (2 PARAS, supra at 909).
2. Those made between persons found guilty of the
same f.riminati offense in consideration thereof
(CIVIL CODE, Art. 739(2));
PROPERTY
Civil Law
NOTE: Previous cnm,nal conv1ct1on is necessary
(2 PAHAS, supra at 912).
3. Those made to a public Qfficer or his/her. spouse,
descendants, or ascendants in consideration of
his/her office (CIVIL CODE, Art. 739(3));
4. Those made to the Priest who heard the
confession of the dono;:-during the latter's last
fllness, or the minister of the gospel who
extended spiritual aid to him during the same
period, or to the relatives of such priest or
minister of the gospel within the fourth (4 th ) civil
degree or the church to which such priest or
minister belongs (CIVIL CODE, Art. 1027-1032);
5. Those made to an attesting Witness to the
execution of donation, his spouse, parents, or
children, or anyone claiming under such witness,
spouse, parents, or children (CIVIL CODE, Art.
1027);
6. Those made to !ndividuals, associations or
corporations not permitted by law to inherit (CIVIL
CODE, Art. 1027);
.7. Those made by a ward to his or her Guardian
before the. approval of the final accounts of the
guardianship (CIVIL CODE, Art. 1027);
8. Those made: to .a fhysician. surgeon, nurse,
health officer or druggist who took care of the
donor during his/her l2st illness (CIVIL CODE,
· Art. 1027);
9. Donations void by reason of Unworthiness of
donee under Art. 740 in re Art. 1032. However, if
the donor had knowl~dge, or subsequently knew
of the act of unVvorthiness of donee and
condoned the same in writing, the donation is
valid (CIVIL CODE, Art. 1033); and
10. Made by .§.pouses to each other during the
marriage or to persons of whom the other spouse
is a presumptive heir (CIVIL CODE, Art. 1027).
FORMS OF DONATIONS (CIVIL CODE,
ARTS.·'748 AND 749)
1. Donations of movable property:
a. If value of property exceeds P5,000,
donation and acceptance must always be in
writing; otherwise, the same is void (2
PARAS, supra at 919-920).
NOTE: Simultaneous delivery of property
donated is not required (Id.).
b. If value of property is less than P5,000,
donation may be made orally or in writing
i. If orally, .simultaneous delivery is
required (actual or constructive) for
validity; or ·
ii. If in writing, donation is valid although no
simultaneous delivery (Id.).
 6fiWO \ 1
MEM✓Q-RY AID
San Beda University College of Law - RGCT Bar Operations Center
NOTE: Acceptance may be made orally or in
writing (DE LEON, Property, supra at 672-
673).
2. Donation of immovable property:
a. Must always be in a public instrument
specifying the property donated and the
burdens assumed by donee, regardless of
vcJlue.
b. Acceptance must be either:
i. In the same instrument; or
ii. In another public instrument, notified to
the donor in authentic form, and noted in
both deeds (CIVIL CODE, Art. 749).
NOTE: Article 749 does not apply to onerous
donations, which are governed by the rules on
obligations and contracts (CIVIL CODE, Art. 733).
Expression of gratitude to the donor without express
acceptance was held a sufficient acceptance
(Cuevas v. Cuevas G.R. No. L-8327, December 14,
1955).
A donation of immovable to be valid must be in a
public instrument. However, even if void, it can bElthe
basis of acquisitive prescription for as long as there
is adverse possession in the concept of.an owner
(Bautista v. Poblete, G.R. No. 141007; September
13, 2005).
It. is settled that a defective notarization will strip the
document of its public character and reduce it to a
private instrument. Article 749 of the Civil Code
requires that donation of real property n:n.ist tfo made
in a public instrument to be valid. Donation of real
property is void without the formalities specified in the
foregoing provision. Here, the purported. Deed of
Donation submitted by the City cannot be considered
a public document. While it contairn;. an
Acknowledgment before a notary public, the same is
manifestly defective as it was made neither by the
alleged donors and their respective spouses, or by
the done (Heirs of. Mariano v. City of Naga, G.R. No.
197743, March 12, 2018).
Although the non-registration of a deed of donation
shall not affect its validity, the necessity of registration
comes into play when the rights of third persons are
affected (Gonzales v. CA, G.R. No. 110335, June 18,
2001).
LIMITATIONS ON DONATION
PROPERTY:
1. Donation may comprehend all the
present property of the donor, provided
that
a. lf the donor has forced heirs: he cannot
give or receive by donation more than what
he can give or receive by will (CIVIL CODE,
Art. 752); and
b. if the donor has no forced heirs: donation
may include ail present property provided he
reserves in full ownership or in usufruct:
i. The amount sufficient to support him and
those relatives entitled to support from
him (CIVIL CODE, Art. 750); and
11. Property suft1c1ent to pay the donor's
debt contracted prior to the donation
(CIVIL CODE, Art. 759).
NOTE: Without such reservation, the
donation shall be reduced on petition of any
persons affected. Donation is still valid (DE
LEON, Property, supra at 685).
The limitation applies only to simple,
remunerative, and modal donations, but not to
onerous ones, which are governed by the law on
contracts {Id. at 686).
Donations propter nuptias cannot exceed more
than 115th of the present property of the future
spouses, under a regime other than the absolute
'.'tf ;::,~qrpmunjfyiof property (FAMILY CODE, Art. 84).
.,,, :· t"l,f J; ·; L; ·"~
2. Donations cannot comprehend future
propertf(CIVIL ,, CODE, Art. 751);
Future prQperfy
Anything which the donor cannot dispose of at
thelin,~pfjtJ~iQQnation (CIVIL CODE, Art. 751).
-"<Y,;~::~rtr:: ·,-.:J:t:x-.
· NOTE: Future inheritance cannot be the object of
donation, but present or accrued inheritance may
,. , fr"\~,,even if the properties have not yet been
.,q·, ,~~\'f00ft\fered (2 PARAS, supra at 929).
NOTE: Upon the death of his predecessor, the
share in an existing inheritance is present
property although the heir has not yet entered
into possession of the same (Osorio v. Osorio,
G.R. No. 16544, March 30, 1921). This is based
on the principle of law that nobody can dispose of
that which does not belong to him (DE LEON,
Property, supra at 687).
3.. Donatio·n should not prejudice creditors
(CIVIL CODE, Art. 759); and
4. Donee must reserve sufficient means for
OF his support and for his relatives which
are entitled to be supported by him (CIVIL
t..;VUt::, 1-\IT. I DU).

EFFECTS OF DONATION:
1. When the donation is made to several persons
jointly, it is understood to be in equal portions,
without accretion among them, unless the donor
has otherwise provided (CJVIL·CODE, Art. 753,
Par. 1),
Generally, there is no accretion. By virtue of
accretion, the share of the donee who dies ahead
of the donor before perfection, or who is
incapacitated, or who repudiates or refuses the
donation, goes to the co-donees, provided that
accretion is proper (CIVIL CODE, Art. 1015),
Thus, when a donation was given to A and 8, and
the former refuses to accept, B will not get A's
share unless the donor has provided otherwise.
NOTE: There is a right of accretion in donations
made between husband and wife jointly, if the
contrary has not been provided by the donor
(CIVIL CODE, Art. 753, Par. 2).
2. Donee may demand the delivery of the thing
donated;
3. Donee is subrogated to all the rights and actions
which in case of eviction would pertain to the
donor (CIVIL CODE, Art. 754); . .
4. Donor's warranty exists if (EPOB):
a. gxpressed
b. Donation is [!_ropter nuptias
c. Donation is Qnerous, thus if simple or
remunerative, the donor is· not liable fqr
eviction or hidden defects
d. Donor is in ~ad faith (CIVIL CODE; Art. 754).
5. In donations propter nuptias, the donor must
release the property from encumbrance_s, except
servitudes.
DONATION WITH RESERVATIONS ON
THE RIGHT TO DISPOSE
The right to dispose of some of the things donated, or
of some amount which shall be a charge thereon,
may be reserved by the donor. However, if he should
die without having made use of this right, the property
or amount reserved shall belonr:i to the done (CIVIL
CODE, Art. 755).
DONATION OF NAKED OWNERSHIP
(DOMIN/UM DIRECTUM) AND USUFRUCT
(DOMIN/UM UTILE)
The ownership of property may also be donated to
one person and the usufruct to another or others,
provided all the donees are living at the time of the
donation (CIVIL CODE, Art. 756)i.
PROPERTY
Civil Law
NOTE: In fidei commissary substitution, a similar
limitation is imposed (See CIVIL CODE, Art. 863).
If the property donated is immovable, the formalities
for donations of real property must be made in a
public instrument and complied with (CIVIL CODE,
Art. 749).
REASON: The naked ownership and usufruct over
real property are real properties themselves (CIVIL
CODE, Art. 749).
CONVENTIONAL REVERSION
Reversion may be validly established in favor of only
the donor for any case and circumstances, but not in
favor of other persons unless they are all living at the
time of the donation (CIVIL CODE, Art. 757).
· Any reversion stipulated by the donor in favor of third
person in violation of this provision shall be void, but
sh<1II not nullify the donation (CIVIL CODE, Art. 757).
. A reversion in favor of an unconceived child is void,
but such nullity shall not invalidate the donation (See
CIVIL CODE1 Art. 1230).
REA.SON: A reversion i$ merely an accessory clause
that may be disregarded. The nullity of tile donc1lio11
itself carries with it that of the reversion (OE LEON,
Property, supra at 692).
PAYMENT OF THE DONOR'S DEBT BY THE
DQNEE:
1. · If there i_s express stipulation: the donee is to
pay only debts contracted before the
donation, if not otherwise specified. He shall
answer only. for the debts up to the value of the
p'i:operty · donated unless the contrary is
stipulated (Id. at 693).
2. If there is no stipulation: the one is answerable
for the debts of the donor only in case of fraud
against creditors (Id.).
The donation is always presumed to be in fraud
of creditors, when c=it the timP. thP.rP.of, thP. donor
did not reserve sufficient property to pay his
debts prior to the donation. Presumption is
rebuttable (Id.).
Remedy of Creditors: Exercise subsidiary right
of rescission (CIVIL CODE, Art. 1381, Par. 1.).
 1 ~
ff@ M+ ' (~
MEM:Q~Y AID
Sen Beda University College of Law - RGCT Bar Operations Center
GROUNDS FOR REVOCATION OF
DONATION (BA 2NI)
1. !!irth, ~ppearance, or ~doption of a c'hild
(CIVIL CODE, Art. 760);
Every donation inter vivas, made by a person
having no children or descendants, legitimate or
legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced by the
happening of any of these events:
a. If the donor, after the d6nation, should have
legitimate or legitimated or illegitimate
children, even though they be posthumous;
b. If the child of the donor, whom the latter
believed to be dead when he made the
donation, should turn out to be living; and
c. If the donor subsequently adopts a minor
child(CIVIL CODE, Art. 760).
Applies to all donations inter vivas, and not to
donation mortis causa, onerous donations, and
donations propter nuptias (2 PARAS, supra at
945-946).
This contemplates a situation wherein the donor,
at the time he made the donation, did not have
any child or descendant or erroneously thought .
he had no more. If the donor had at least one
child already at the time he made ttie donation,
apply Arts. 771 and 752 (Id.).
The action for revocation under this ground
shall prescribe after four (4) years from:
a. The birth of the first child;
b. His legitimation, recognition or adoption;
c. The judicial declaration of filiation; or .
d. The time information was received regarding
the ex1stence of the child believed dead
(CIVIL CODE, Art. 763).
NOTE: The donee shall not return the fruits,
except from the filing of the complaint (CIVIL
CODE, Art.768).
"First child" in the first instance refers to first
legitimate child (2 PARAS, supra at 948).
NOTE: If the cause or ground disappears, such
as when the child dies before the action to reduce
is judicially commenced, the donation should
remain valid (3 Navarro Amandi 59 as cited in 2
PARAS, supra at 949).
2: ~on-fulfillment of a condition (CIVIL CODE,
Art. 764);
The donation shall be revoked at the instance of
the donor, when the donee fails to comply with
any of the conditions which the former imposed
upon the latter (CIVIL CODE, Art. 764).
; a "c;
✓ t ) ~ ' , )
' '
. -' , .", 273 ·; 'i 'I- : ~
, , ,' ' '\ ' 3: \},~;'~ -t
Condition shall refer to any obligation, charge, or
burden imposed by the donor in his favor or that
of another. It may be resolutory ( CIVIL CODE,
Art. 732), but not suspensive, for non-fulfillment
means the donation never became effective
(Parks v. Province of Tarlac, G.R. No. 24190,
July 13, 1926).
In the absence of affirmative proof to the
contrary, the presumption is that the donee has
complied with his obligation under the deed of
donation. The claim that the donee failed to do so
is a matter of defense which the donor is duty
bound to established by competent evidence (DE
LEON, Property, supra at 699).
Automatic Reversion/Revocation Clause
Judicial intervention is not necessary, except
where donee denies donor's right to rescind
(Roman Catholic Archbishop of Manila v. CA,
G.R. No. 77425, June 19, 1991).
As reiterated in Roman Catholic Archbishop of
Manila that where a donation has an automatic
revocation clause, the occurrence of the
.;.;,cpnditionagreed to by the parties as to cause the
fevocation; is sufficient for a party to consider the
donation revoked without need of any judicial
action. A fu9icial finding that the revocation is
proper is only necessary when the other party
actuall;y gdes to court for the specific purpose of
chall~nging the propriety of the revocation.
Neyert,hel~ss,;even in such a case, "x xx the
dectsi6litithe):ollrt will be merely declaratory of
the revocatro'~. but it is not in itself the revocatory
act." (Province of Camarines Sur v. Bodega
(?f<g;sware, G.R. No. 194199, March 22, 2017).
Necessity of court action
In absence of such automatic reversion/
revocation clause, judicial intervention is
necessary (De Luna v. Abrigo, G.R. No. L-57455,
January 18, 1990).
Revocation at the instance of the donor or his
heirs (CIVIL CODE. Art. 770).
Only the final word of the court of competerit
jurisdiction can conclusively settle whether
resolution is proper or not ( UP v. de las Angeles,
G.R. No. L-28602, September 29, 1970).
Rules:
a. The property donated shall be returned to
the donor (CIVIL CODE, Art. 764);
b. If the property is sold, donated or mortgaged,
the alienation •or encumbrance will be
considered void, unless the grantee be an
innocent third party (CIVIL CODE, Art. 764);

c. The actions shall prescribe after 4 years
from the non-compliance with the condition
(CIVIL CODE, Art. 764);
d. Said action may be transmitted to the heirs
of the donor, and may be exercised against
the donee's heirs (CIVIL CODE, Art. 764);
and
e. The donee shall return not only the property
but also the fruits thereof which he may have
received after having failed to fulfill the
condition (CIVIL CODE, Art. 768).
3. !ngratitude of the Donee;
Acts of Ingratitude:
a. If the donee should commit some offense
against the person, the honor or property
of the donor, or of his wife or childreri under
his parental authority;
NOTE: "Offense" includes both crimes and.
non-crimes; no criminal con1Jiction is
required. Mere preponderance of evidence
would be sufficient (2 PARAS, supra at 955).
b. He imputes to the donor any· criminal
offense, or any act involving moral
turpitude, even though he shoul1 prove it,
unless the crime or the, act has been
committed against the_ donee hirnself, his
wife or children underhis authority; and
c. He unduly refuses him support when the
donee is legally or: morally bound to give
support to the donor (CIVILCODE, Art 7$5).
NOTE: Art. 765 is exclusiye and rnust have been
committed by the donee personally (DE LEON,
Property, supra at 789).
All crimes which affect the donor show ingratitude
and are causes for revocation (Sps. l=duarte v.
CA, G.R. No. 105944, February 9, 1996r
Falsification of a deed of donation is an act of
ingratitude (Noceda v. CA, G.R. No. 119730,
September 2, 1999).
Whe~e the certificate of title was already
transferred from the name of the true owner to
the forger, and while it remained that way, the
land was subsequently sold to an innocent
purchaser. For then, the vendee had the right to
rely upon what appeared in the certificate (Sps.
Eduarte v. CA, G.R. No. 105944, February 9,
1996).
Although the donation is revoked on account of
ingratitude, the alienations and mortgages
effected before the notation of the complaint for
revocation in the Registry of Property shall
PROPERTY
Civil Law
subsist. Later ones shall be void (CIVIL CODE,
Art. 766).
Ingratitude of donee finds no application if the
donation is onerous (Calasan v. Donorito, G.R.
No. 171937, November 25, 2013).
For alienations and mortgages effected
before notation of the complaint, the donor
shall have a right to demand from the donee:
a. The value of the property alienated which he
cannot recover from third persons; or
b. The sum for which the same has been
mortgaged (CIVIL CODE, Art. 767).
The donee shall not return the fruits, except from
the filing of the complaint (CIVIL CODE, Art. 768).
The action granted to the donor by reason of
ingratitude cannot be renounced in advance.
Said action prescribes in 1 year, to be counted
.from tne t_ime the donor had knowledge of the fact
and it was possible for him to bring the action.
Thus, if immediately after knowledge of the fact,
the· donor becomes unconscious for 6 months,
the period of 6 months shall not be counted (DE
LEON, Property, supra at 712-713).
REVOC:ATION , ' OF ONEROUS
DONATIONS
The action .for .r?vocalion of an onerous donation
does nptpr~scripe in.1 years. It is governed by the
law on contractf It· pr~scribes in 10 years ( Sec. of
Edvc,~{io,n v. Hf)irs of Rpfino Dulay, G.R. No. 164748,
January 27, 2006). ·
GROUNQS FOR REDUCTION OF
DOtiATtON: (13A2 SDI)
1. · §irth, Appearance, or ,Adoption of a child (CIVIL
CODE, Art. 760); .
2. Failure of the donor to reserve sufficient means
for ~upport of himself or dependent relatives
(CIVIL CODE, Art. 750);
3. Failure of the donor to reserve sufficient property
to pay off his existing Qebts (CIVIL CODE, Art.
759); and
4. !nofficious, that is, the donation exceeds that
which the donor can give by will (CIVIL CODE,
Arts. '152 and 771).
a. For purposes of reduction, the value of the
estate is that which it had, at the time of
donor's death, and at the time of the
donation.
 r:rrM:Q~Y Al D
San Beda University College cf Law - RGCT Sar Operations Center

Formula: case of violation of a condition therein, a judicial

Net Hereditary Estate = property left minus
debts and charges plus the value of the
donation.
b. The donee shall not return the fruits, except
from the filing of the complaint (CIVIL CODE,
Art. 768).
NOTE: If a Deed of Donation expressly provides
for automatic reversion of the property donated in
declaration revoking the same is not necessary. ·
The rules on contracts and the. general rules on
prescription 10 years to recover in <;:ase of written
contracts should apply and not the 4-year
prescriptive period under Art. 764 of the Civil
Code (Roman Catholic Archbishop of Manila v.
CA, G.R. No. 77425, June 19, 1991).

SUMMARY ON RULES OF REVOCATION

Within four (4) years from birth of the Within four (4) years from non- Within one ( 1) year from the time
first child, or from his legitimation compliance. the donor had knowledge of the
(recognition), or adoption, or from fact and it was possibl~ for him to
judicial declaration of filiation, or from bring the action.
receipt of information on existence of
the child believed dead (CIVIL CODE,
Art. 763, Par. 1).

The property affected shall be: The property donated shall be: The property donated shall be:
1. Returned; 1. Returned to the tjonor; and 1. Returned but the alienations;
2. Its value if donee has sold the same; 2. The alienafioris ~f)OcfTJOrtgages and
or are void, subject t'ci'tfie'rtghts of 2~ Mortgages effected before
3. The donor may redeem the innocent third persons (CIVIL the notation of the complaint
mortgage on the property, 1vith a CODE, Art. 764 Par. 2). for revocation in the Registry
right to recover (CIVIL CODE, Art. of Property shall subsist
762, Par. 2). (CIVIL CODE, Art. 766)

The donee shall return the fruits The donee shall return the fruits Same in Art. 768, Par. 1.
accruing from the filing of the complaint which he may have received after
(CIVIL CODE, Art. 768, Par. 1). having failed to fulfill the condition
(CIVIL CODE,_ Art. 768, Par. 2).
 PROPERTY
Civil Law

SUMMARY ON RULES ON REDUCTION

Not transmissible for right to support is personal in Transmitted to the donor's Transmitted to the
nature (FAMILY CODE, Art. 195). heirs as the donation shall creditor's heirs or
be reduced as regards the successors-in-interest
excess ((;/VIL CODE, Art. (CIVIL CODE, Art. 1389).
77.1).

To the extent necessary to provide for support (CIVIL The donation takes effect
CODE, Art. 750). . dudng the lifetime of the
donor subject to reduction.
only upon his de 9th with;
regard to the excess
(CIVIL CODE, Art. ?71).
Property affected shall be
returned by the done for
the benefit of the creditor,
subject to the rights of
innocent third persons
(CIVIL CODE, Art. 1387).

Donee is entitled to the
fruits as owner of property
donated (CIVIL CODE,
Art 729).
. .
'Donee as owner; is not·. Donee appropriates fruits The fruits shall be
affected· by red.uction as owner (CIVIL CODE, returned if done in bad
(CIVIL CODE, Art. 441)' Art. 441). faith, and if it is impossible
but with regard to excess, to return the property, to
he shall be ,liable qnly for be held liable for damages
those ac.cruing from the (CIVIL CODE Art. 1388,
filing of the complaint • Par. 1).
(CIVIL CODE Art. 768,
Par. 1).
 r=rf
1
~o~v Alo
San Seda University College of Law - RGCT Bar· Operations Center

iv. Lapse of Iime provided by law (DE

PRESCRIPTION LEON, Property, supra at 723).

(ARTS. 1106-1155) 2. Extinctive prescription (Article 1106, Par.

2)
- rights and actions are lost through the lapse of
time in the manner and under the conditions laid
Concept: It is a means of acquiring ownership and
down by law. It is also called limitation of actions
other real rights or losing rights or actions to enforce
(DE LEON, Property, supra at 723).
such rights through the kipse of time (DE LEON,
Proµer ly. supra at. 721 }.
ACQUISITIVE V. EXTINCTIVE
TYPES OF PRESCRIPTION: PRESCRIPTION
1. Acquisitive prescription
- one acquires ownership and other real rights
through the lapse of time in the manner and
under the conditions laid down by law (CIVIL
CODE, Art. 1106).
Relationship between One does not look to
a. Ordinary acquisitive prescription: requires the occupant and the the act of the
possession of things in good faith and with land in terms of possessor but to the
just title for the time fixed by law (CIVIL possession is capable of neglect of the owner.
CODE, Art. 1117, Par. 2). producing legal
consequences; it is the
NOTE.: Just title here means merely possessor who is the
colorable title, i.e., although there was a actor.
mode of transferring ownership, the grantor
was not the owner (Doliendo v. Biarnesa,
G.R. No. 2765,Dec. 2~ 1906).

The Court accepted the opinion of a learned

Spanish law writer who holds that the "titulo
verdadero y valido" as used in this article of
the code prescribes a "titulo Colorado" and
not merely "putativo;" a "titulo Colorado"
being one 'which a person has when he buys
a thing, in good faith, from one whom he
believes to be the owner,' and a "titulo
putativo" "being one which is supposed to
have preceded the acquisition of a thing,
although in fact it did not, as might happen
Vests ownership or Produces the extinction
when one is in possession of a thing in the
other real rights in the of rights or bars a right
belief that it had been bequeathed to
occupant. of action. ·
him."(Aguirre v. Court of Appeals, G.R. No.
122249, January 29, 2004).
Results · in the Results in the loss of a
acquisition of ownership real or personal right,
b. Extraordinary acquisitive prescription:
or other real rights in a or bars the cause of
acquisition of ownership and other real rights
person as well as the action to enforce said
without need of title or of good faith or any
loss of said ownership or right.
other condition (CIVIL CODE, Art. 1137).
real rights in another.
Requisites (CTPT):
i. fapacity to acquire by prescription
(National Power Corporation v. Campos Can be proven under the Should be affirmatively
Jr., G.R. ,'Vo. 143643, June 27, 2003)"; general issue without its pleaded and proved to
ii.. A Ihing capable of acquisition by being affirmatively bar the action or claim
prescription; pleaded. of the adverse party.
iii. _Eossession of thing under certain
conditions; and (Id. at 724).
 PROPERTY
Civil Law

RATIONALE OF PRESCRIPTION: that led to the complaint and for which the
complaint seeks a remedy;
1. Prescription is of purely statutory origin and is
2. Delay in asserting the complainant's rights,
founded on ~round of public policy. Time limit is
I 1avi1 ,g I 1au k, ,uwleuge or notice of the
imposed for a party to enforce his claim so that
defendant's conduct and having been afforded an
titles to property and other rights .will be
stabilized. It protects the diligent and vigilant, not opportunity to institute a suit;
3. !:,ack of knowledge or notice on the part of the
the person who sleeps on his rights (Id. at 725).
defendant that the complainant would assert the
right on which he bnscs his suit; nnd
Without a time limit within which a party may
4. !njury or _Erejudice to the defendant in the event
enforce his claim, titles to property and other
rights will remain unst;::ihlA for ;::i long time ;mri relief is accorded to the complainant, or the suit
is not held barred (Espinas-Lanuza v. Luna, Jr.,
wasteful litigations will be fostered (Id. at 726).
G.R. No. 229775, March 11, 2019).
2. Prescription is rightly regarded as a statute of
NOTE: Lachesis recourse in equity. Equity, however,
repose whose object ls to suppress fraudulent
. and stale claims. Our laws favor not property is applied only in the absence, never in contravention,
of statutory law. Thus, !aches, cannot, as a rule, be
rights hanging in the air for an uncertain time
used to abate a collection suit filed within the
(Multi-Realty Dev. Corp v. Makati Tuscany, G.R.
prescriptive period mandated by the Civil Code (De
No. 146726, June 16, 2006).
Castro v. CA, G.R. No. 115838, July 18, 2002).

PRESCRIPTION AS A MATTER OF ltapplies even to imprescriptible actions (e.g., action

DEFENSE to annul a void contract may be barred by !aches). Its
Burden of proof: Rests on the party laying claim to elements must be proved positively. Laches is
it (Id. at 729). evidt:!ntiary in nature (Gochan v. Heirs of Baba, G.R.
No. 138945, August 13, 2005).
Effect of failure to plead prescription:
Failure to plead constitutes waive(of the defense Where the law provides the period within wt1ict1 to
and cannot be raised for th'e first tim.e at the trial or on assert a claim or file an action in court the assertion
appeal (Id.). · of the claim or the filing of the action i~ court at any
time within the prescriptive period is generally
GENERAL RULE: The issue of prescription is one deemed repsonable, and thus, does not call for the
involving evidentiary matters requiring a full-blown application of !aches. Unless reasons of inequitable
trial on the merits and cannot be determined in a proportions are adduced, any imputed delay within
mere motion to dismiss (Id. at 730). · the prescriptive period is not delay in law that would
bar rellef (PhH-Air Conditioning Center v. RCJ Lines,
EXCEPTIONS: G.R, No. 193821, November 23, 2015).
1. When the plaintiff's complaint on its face. or the .
evidence he presented shows clearly that ir;icfeed PRESCRIPTION V. LACHES
the action has prescribed at the tirr\e it Was filed.
2. If, before trial, a party has no means of kOQ)Ning
that opponent's claim has already lapsed,
prescription as a defense may be pleaded later
as soon as the true nature of the claim is
discovered (Id.).

LACHES
Failure or neglect for an unreasonable and A question or matter of A question of inequity of
unexplained length of time. to do that which, by time. permitting a claim to be
exercising due diligence, one could or should have enforced (this inequity
done earlier (Tijam v. Sibonghanoy, G.R. No. L- being founded on some
21450, April 15, 1968). It should be stressed that subsequentchangeinthe
laches is not concerned only with the mere lapse of condition or relation of the
time (Oropeza v. Allied Banking Corp., G.R. No. parties).
222078;AprH1, 2019).

The elements of !aches are (CoDeLIP):

1. Conduct on the part of the defendant, or one
under whom he claims, giving rise to the situation
 a4W#KI \ I

MEM✓Q-RY Al D
San Seda University College of Law - RGCT Bar Operations Center

required for prescription, it follows that things which

are not susceptible of being appropriated cannot be
the object of prescription (DE LEON, Property, supra
738).

Property of the State or any of its subdivisions not

Cannot be availed of Need not be specifically
unless it is especially pleaded; court
pleaded as an consider it in its own
affirmative allegation. initiative to
inequity.
(DE LEON, Property, supra 728-729; Espinas-
Lanuza v. Luna, Jr.,, G.R. No. 229775, March 11,
2019).
CAPACITY TO ACQUIRE BY
PRESCRIPTION (CIVIL CODE, ART. 1107).
Persons who are capable of acquiring property or
rights by the other legal modes may acquire the same
by means of prescription (CIVIL CODE, Art. 1107;.
Par. 1).
Minors and other incapacitated persons may acquire
property or rights by prescription, either per$pnally or
through their parents, guardians, or legal
representatives (CIVIL CODE, Art. 1107, Pat. 2).
GENERAL RULE: A person must have the legal
capacity to acquire property or rights by the otl')er . ·,, '. Ai:tiiiJ.t'Bjtf; 0
legal modes in order that he may acquire the .same
by means of prescription (DE LEON, Property/supra
at 730-731).
EXCEPTION: Minors and other incapacitated
persons may acquire property or rights by
prescription, either personally or through their
parents, guardians, or legal representatives (Id. at
731-732).
Unlike donation, prescription does not require
consent. It is not necessary that they have capacity
to act as long as they have juridical capacity (Id. at
732).
OBJECT OF PRESCRIPTION
GENERAL RULE: All things within the commerce of
men may be acquired by prescription, unless
otherwise provided (CIVIL CODE, Art. 1113).
NOTE: The objects of possessiory are things and
rights which are susceptible of being appropriated
under Art. 530 of the Civil Code. Since possession is
patrimonial in character shall not be the object of
prescription (CIVIL CODE, Art. 1113).
NOTE: Patrimonial property of the State may be
may
acquired as they are treated the same way as
property of private individuals (DE LEON, Property,
prevent
supra at 730).
Period of possession of public land before it became
patrimonial is not counted for the purposes of
completing the prescriptive period (Heirs of
Malabanan v. Republic, G.R. No. 179987, April 9,
2009).
Res nullius (property without an owner) is acquired by
occupation and not by prescription because
prescription presupposes a previous owner (Yu v. De
Lara, G.R. No. 16084, November 30, 1962).
; ,Ex~~ptions JlieSMo):
1. Li:lnds' Registered under the Torrens system
(P.O. No. 1,929, Sec. 47);
2. Propertiesol Spouses, parents and children and
guardians aridwards under certain conditions as
betwe~n themselves (CIVIL CODE, Art.1109);
and , · ..
3. .M_qy~bl~i PR.l?ie,ssed through a crime (CIVIL
cooE;)4/fli~1;. ·
Possession has to be in the concept of an owner,
pUl:ili~,peaceful, and uninterrupted (CIVIL CODE,
CHARACTERISTICS OF POSSESSION
TO BE THE BASIS OF PRESCRIPTION
(CIVIL CODE, ART. 1118): (OPPU)
1. Concept of Owner
Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring
dominion (CIVIL CODE, Art. 540).
Acts of a possessory character which are merely
tolerated by the possessor or which are due to his
license, do not constitute possession (DE LEON,
Property, supra at 743-745).
License
Positive act of the owner in favor of the holder of
the thing (Id.).
Tolerance
Passive acquiescence of the owner to acts being
performed by another which appear to be
 PROPERTY
Civil Law

contrary to the rights of the former (Id.).

Tenants cannot acquire tenanted lands by

prescription, nor can an antichretic creditor the
land of his debtor (Id.). appointed by the courts before their
(CIVIL CODE, Art. 1108). appearance or
2. fublic appointed by the
When the acts of enjoyment are executed in such courts (CIVIL CODE,
a manner as to be manifest or visible to all, Art. 1108).
especially to the person against whom the
possession is being adversely asserted (Id.). Persons living abroad, Persons living abroad,
who have managers or who do not. have
In order for possession to be public, it must be administrators (CIVIL managers or
known to the owner of the thing (Id.). CODE, Art. 1108). administrators (CIVIL
CODE, Art. 1108).
3. feaceful
It is acquired and maintained without any Juridical persons State and its
violence, physical, or moral (Id.). (including the State but subdivisions (only with
only with regard to regard to properties of
The possession continues to be peaceful even if .. patrimonial property) public dominion)
the possessor should use such force as is (CIVIL CODE, Art. 1108). (CIVIL CODE, An.
reasonably necessary to repel or prevent an 1108).
actual or physical invasion of the property (la,).
Married. woman (CIVIL Between husband and
CODE, An. 111'0). wife during the
4. !J.ninterrupted marriage even though
When the possessor has never ceased to there be a separation
manifest with external acts his intention to of property agreed
exercise a right over the thing, which upon in the marriage
presupposes that he has never in fact ceased to settlements or by
exercise the right (Id.). judicial decree (CIVIL.
CODE, An. 1109).
Continuity is not understood in an absolute
sense. Possession is uninterrupted if there have Between parents and
been no acts of deprivation of enjoyment of the children during the
things by a third person, or any other act which minority or insanity of
interrupts prescription (Id.). the latter (CIVIL
CODE, Art. 1109).
Interruption is distinct from discontinuity; the
former is a positive act of third person; whlle the Between guardian
latter is a negative act or abstention on the part and ward during the
of the possessor himself (Id.). ·· continuance of the
guardianship (CIVIL
CODE, Art. 1109).

In favor of a co-owner
or co-heir against his
co-owners or co-heirs
Minors and other Minors and other
as long as the co-
incapacitated persons incapacitated persons
ownership is
who have parents, who do not have
recognized (CIVIL
guardians, or other legal parents, guardians, or
CODE, Art. 494,
representatives (CIVIL other legal
Par.5).
CODE, Art. 1108). representatives
(CIVIL CODE, Art.
1108). NOTE: Under the Constitution, an alien cannot
acquire any land in the Philippines even by
Absentees who have Absentees who do prescription (CONST, An. XII, Sec. 3, Par. 1, and
administrators, either not have Sec.7).
appointed by them before administrators, either
their appearance or appointed by them
 M:MWU■ \ 1
MEM:Q~Y AID
San Beda University College of law - RGCT Bar Oparetions Ceoler
Prescription Does Not Run Against the State and
lts Subdivisions Regardless of the Nature of the
Government Property (whether Real or Personal)
Article 1108 (4) of the Civil Code expressly provides
that prescription does not run against the State and
its subdivisions. This rule has been consistently
adhered to in a long line of cases involving reversion
of public lands, where it is often repeated that when
the government is the real party in interest, and it is
proceeding mainly to assert its own right to recover
its own property, there can, as a rule, be no defense
grounded on !aches or prescription. We find that this
rule applies, regardless of the nature of the
government property. Article 1108 (4) does not
distinguish between real or personal properties of the
State (Ramsical Jr. v. Commission on Audit, G.R. No.
213716, October 10, 2017). · Where the party acknowledges the correctness of the
The rule that prescription does not run against the
State does not apply to corporations created by the
State for special purposes, it being said that when the
title of the Republic has been divested, its grantees,.
although artificial bodies of its own creation, are in the
same category as ordinary persons (Shipside Inc. v.
CA, G.R. No. 143377, February 20, 2001).
RENUNCIATION OF PRESCRIPTION
ALREADY ACQUIRED:
Persons with capacity to alienate property may
renounce prescription already obtained, but not the
right to prescribe in the future (CIVIL CODE, Art.
1112,Par.1). ·
Prescription is deemed to have been tacitly
renounced when the renunciation results from acts
. which imply the abandonment of the right acquired
(CIVIL CODE, Art. 1112, Par. 2).
Requisites (C-PORK):
1. The person renouncing must have £.apacity to
alienate property;
REASON: Renunciation involves the disposition
of property;
2. The renunciation must refer to frescription
already obtained;
REASON: Art. 6 of the Civil Code (rights may be
waived) but not the right to prescribe in the future
because it is contrary to public order or public
policy;
3. It must be made by the Qwner of the right;
REASON: An administrator, executor, agent, etc.
cannot renounce unless given Special Power of
Attorney (DE LEON, Property, supra at 736).
4. It must not prejudice the Rights of creditors (while
rights may be waived, it must not be prejudicial to
the rights of a third person with a right recognized
by law (CIVIL CODE, Art. 6); and
5. The person renouncing must have !SnowJedge of
the existence of the right (DE LEON, Property,
supra at 736-737).
Kinds:
1. Express; and
2. Implied/Tacit
- when renunciation results from acts which
imply the abandonment of the right acquired (Id.).
debt and promises to pay it after the same has
prescribed and with full knowledge of the prescription,
he thereby waives the benefit of prescription
(Development Bank of the Philippines v. Adil, G.R. L-
48889, May 11, 1989).
NOTE: But a simple promise which contains new and
•..· positive promise to pay the debt which has
· .pfE:1p~fibed, st1qh as a promise to pay only one-half or
eve·n· ii ,pgi{' payment, does not amount to a
renunciation of prescription (DE LEON, Property,
supra at 737). '
Advance Renunciation is Void
A renunciation of prescription in advance is void. An
agreen::ie~t,ttlaL the . • obligation arising from the
mibe
contract ·sn;:ilt .. subject to prescription is not
,, binding (Id. at736).
. "Re6uia5siations by Representatives
Only 1pei:sorts with capacity to alienate property can
renounce prescription already obtained, not
guardians, executors, administrators (Id.).
Effect of Renunciation to Creditors
Notwithstanding the express or tacit renunciation by
a person of a prescription already obtained, his
creditors and all other persons interested in making
the prescription effective, may still plead prescription
for themselves to the extent of their credit (CIVIL
CODE, Art. 1114).
INTERRUPTION OF POSSESSION (CIVIL
CODE, Arts. 1120 to 1124)
Possession is interrupted for the purposes of
prescription, naturally or civilly (CIVIL CODE, Art.
1120).

KINDS OF INTERRUPTION OF
POSSESSION:
1. Natural
- Possession is naturally interrupted when
through any cause it should cease for more than
one year (CIVIL CODE, Art. 1121).
NOTE: In case of natural interruption, the old
possession loses all its juridical effects, and even
if the possession if reacquired, the old
possession cannot be tacked .to the new
possession for the purpose of prescription (DE
LEON, Property, supra at 746-747).
2. Civil
- Civil interruption is produced by judicial
summons to the possessor (CIVIL CODE, Art.
1123).
NOTE: In the case of civil interruption, there Ts
unanimity between the law and the
commentators in the view that if the possession ·
is recovered, it can be connected to the time that
has elapsed as if it were in f~ct cont(nuous, the
period of interruption is to be. coµrited for the
prescription (DE LEON, Property/supra at 746-'
747). .
When judicial summons cfoJs not constitute
interruption: , ..• ' . the time )within wh)9h JHJ action may be brougtit or
a. If it should be . voicl for lack.· of legal
solemnities; .. ·
b. If the plaintiff should • desist fron::i the
complaint or should allow itie proceedings
to lapse; or
c. If the possessor shoul.d be absolved from
the complaint (CIVIL CODE, Art.: 11?4) ..
EFFECT OF INTERRUPTION
All the benefits acquired so far from the pdssession
cease. When the prescription runs again, it will be aYi
entirely new one (DE LEON, Properly, supra at 746-
747).
DISTINGUISH PRESCRIPTION FROM
SUSPENSION
If prescription is merely suspended, (as
distinguished from interruption), the old possession
will be added. This may happen when during war, the
civil courts are not open (CIVIL CODE, Art. 1136) or
when there is a moratorium on the payment of debts
(Ta/ens. v. Chuakayand Co., G.R. No. L-10127, June
30, 1958).
Possession de facto - lost if new possession of
another has lasted longer than 1 year.
PROPERTY
Civil Law
Real right ur µu!:>::;~::;::;iun - 11ul lu::;l u11lil arte1 II 11:;
lap::;e of 10 years.
RECOGNITION BY THE POSSESSOR
Rule: Any express or implied recognition or
acknowledgment which the possessor may make
with regard to the right of owner will also interrupt the
continuity of possession (CIVIL CODE, Art. 1125).
Requisites: (PT-VaB)
1. Recognition must be made by the E_ossessor
himself, or if made by a Ihird person, the
recognition must be authorized or ratified by the
possessor;
2. Recognition must be Valid and efficacious in law·
a~ - ,
NOTE: When the act of recognition was obtained
through violence, intimidation, fraud, or any other
cause which vitiates consent, it will not interrupt
possession.
3. Recognition must have been made _!;!efore
prescriptioh has already been obtained (DE
LEON, Property, 'supra at 747).
PRESCRIPTION OF ACTION
Concept: Prescription· of action/limitation of action is
some act done to. preserve the right (Id. at 761).
legal ,~nd not natural cause of the extinguishment of
obligations (Id.): ·
STATUTES OF L1MITATIONS
Acts_ limiting. the t1me within which actions shall be
brooght. St~Mes of limitation do not confer any right
of action, butare enacted to restrict the period within
which the right, otherwise limited, might be asserted
(fd.).
STATUTES OF REPOSE
The object of which is to suppress fraudulent and
stale claims from springing up at great distances of
time and surprising the parties of their
representatives when all the proper vouchers and
pieces of evidence are lost or the facts have become
obscure from the lapse of time of the defective
memory of death or removal of witnesses.
Not substantive right but only a matter of defense
(Id.).
PURPOSE: To protect the diligent and vigilant, not
those wtlo sleep on their rights (Tagarao v. Garcia, G.
R. No. L-40064, December 4, 1934).
 t#ffbtiti ' /
MEM:Q~YAID
San Bec!a Unsversity College of Law • RGCT Bar Opernttons Center
EFFECT OF LAPSE OF TIME
Actions prescribe by the mere lapse of time fixed by
law (CIVIL CODE, Art. 1139). It extinguishes the
action.
But there is no extinctive prescription unless the
period provided by law expires.
Mere delay in the enforcement of a claim does not
result in any reduction or loss ot nght, unless the full
period required by law for prescription has expired.
PRESCRIPTION TO BE PLEADED
Obligation subsists until he avails himself of
prescription, the courts of justice cannot supply the
defense if the debtor himself does not do so.
Right to prescription may be w;:iived or renounced. It
is deemed waived if not timely raised or pleaded
before or during the hearing of the case.
It has been held that even if not pleaded, if it is
apparent on the face of the complaint, it may be
favorably considered, even after evidence_ is
adduced.
PERIOD OF PRESCRIPTION
Eight (8) years (CIVIL Thirty (30) years (CIV]L
COD E), Art. 1132, CODE, Art. 1137).
P ar. 2 .
RULES ON COMPUTATION OF PERIOD:
1. The present possessor may complete the period
necessary for prescription by tacking his
possession to that of his grantor or predecessor;
NOTE: However, tacking of possession is
allowed only when there is a privity of contract
or relationship between the previous and
present possessors. In the absence of such
privity, the possession of the new occupant
should be counted only from the time it actually
began and cannot be lengthened by connecting
it with the possession of the former possessors
( South City Homes v. Republic of the Philippines,
G.R. 76564, May 25, 1990).
2. It is presumed that the present possessor who
was also the possessor at a previous time, has
continued to be in possession during the
intervening time, unless there is proof to the
contrary; and
3. The first day shall be excluded and the last day
included (CIVIL CODE, Art. 1138).
Computation of Period in Case Possession
Begins in Good Faith but is Later Converted to
Bad Faith
The prescription will be extraordi11wy l>ul lhe.
possession in good faith shall be computed in the
proportion that the period of extraordinary
prescription bears to that of ordinary prescription (DE
LEON, Property, supra at 758).
Illustration: If the possessor had possessed a
movable for three years in good faith, before his
possession was converted into bad faith, the 3 years
will be computed as double (6 years).
RIGHTS NOT EXTINGUISHED BY
PRESCRIPTION: (RAPE-IT-RIPS)
1 . To demand a Bight of way;
•· 2. To bring an ~ction to abate a public of private
.nuisance;.
3. · ·To demand f_artition of co-ownership;
4. To demand .!;_asement of light and view through
observance by servient owner of distances for
direct or oblique view;
5. To declare the !nexistence of contract or the
nullity of a void judgment;
6. To compel aJrustee to reconvey property
regi~t~ted in'his name for the benefit of the cestui
que trust; and
7. To compel Beconveyance of land registered in
l;lad faith provided it has not yet passed to an
irin.ocel'.lt purchaser for value;
1/ .. ,,,.
NOTE: An action for reconveyance can be barred
by prescription (DBT Mar-Bay Construction Inc.
v. Panes; G.R. No. 167232, July 31, 2009).
The prescriptive period applies only if there is an
actual need to reconvey the property as when the
plaintiff is not in possession of the property. If the
plaintiff, as the real owner of the property also
remains in possession of the property, the
prescriptive period to recover title and
possession of the property does not run against
him. In such a case, an action for reconveyance,
if nonetheless filed, should be in the nature of a
suit for quieting of title, an action that is
imprescriptible (Estate of Deceased Spouses
Francia . v. Tan, G.R. No. 225687 (Notice),
November 21, 2018).
When the action for reconveyance is based on a
void deed or contract, the action is imprescriptible
under Article 1410 of the New Civil Code. As long
as the land wrongfully registered under the
 PROPERTY
Civil Law

Torrens system is still in the name of the person

who caused such registration, an action in
personam will lie to compel him to reconvey the
property to the real owner (Spouses Yu Hwa Ping
v. Ayala Land, Inc., G.R. No. 173120, July 26, on the birth,
2017). appearance or
adoption of a
8. To seek !ssuance of a writ of possession; child (CIVIL
0. To erobotc o will; and CODE, Art. 763);
10. Recovery by the 2tate of non-registrable land 4. Revoke donation
(DE LEON, Property, supra at 767-768). based on non-
compliance with a
SUMMARY OF PRESCRIPTIVE PERIODS condition (CIVIL
CODE, Art. 764);
5. Rescission of
contracts (CIVIL
CODE, Art. 1389,
Action to recover 8 years 30 years Par. 1); and
(CIVIL CODE, Art. from the 6. Annul a contract
1140 and 1141). time (CIVIL CODE,
possession _Art. 1~91, Par. 1).
is lost.
. 1. Forcible entry and 1 year
Foreclosure of 10 years. - detainer (CJVIL
Mortgage (CIVIL CODE, Art.
CODE, Art. 1142). 1147): ·
'.2. Defamation
All other actions Within 5 years from the time (CIVIL CODE,
whose periods are the rightof action accrues. Art. 1147);
not fixed in the Code 3. Recover
(CIVIL CODE, Art. possession de
1149). fac{b .• (CIVIL
CODE, Aff,
1. Upon a written 1O years from the time the 1147);
contract; right of action accrues, 4. Revoke a.
2. Upon an don·ation on the
obligation created
by law; and
grou,nd . of
ingratitude (CIVIL
3. Upon a judgment CODE, Art. '169);
(CIVIL CODE, 5~ Rescind or
Art. 1144). recover damages
if immovable is
1. Upon an oral 6 years sold with non-
contract; and apparent burden
2. Upon a quasi- or servitude
contract (CIVIL (CIVIL CODE,
CODE, Art. Art. 1560); and
1145).
6. Enforce warranty
of solvency in
1. Upon an injury to 4 years
assignment of
the rights of the
plaintiff (CIVIL credits (CIVIL
CODE, Art.
CODE, Art.
1629).
1146);
2. Upon a quasi-
delict (CIVIL ACCRUAL OF CAUSE OF ACTION
CODE, Art.
Cause of action a•rises when that which should have
1146);
been done is not done or that which should not have
3. Revoke or reduce
been done is done (DE LEON, Property, supra at
donation based
762).
 1
lf#f/134 '
MEM,Q-RY Al D
San Beoo University Cof~ge of Law - RGCT Bar Operations Center

ESSENTIAL ELEMENTS OF A GOOD

CAUSEOF ACTION:
1. Existence of legal' right a plaintiff;
2. With a corresponding legal duty in the
defendant; and
3. Violation or breach of that right or duty with result was recognized by
consequential injury or damage to the plaintiff, for agreement of the
which he may maintain an action for appropriate interested parties (CIVIL
relief (China Banking Co,poration v. CA, G.R. CODE, Art "/154).
153267, June 23, 2005).
INTERRUPTION OF PRESCRIPTION OF
NOTE: The moment the breach of right or duty
ACTIONS:
occurs, then the right of action accrues, therefore,
period of prescription begins to run (Solid Homes Inc. 1. Filing of an action in court (DE LEON,
v. Tan, G.R. Nos. 145156-57, July 29, 2005). Property, supra at 783).

RIGHT OF ACTION DISTINGUISHED NOTE: Interrupts extinctive prescription as to the

parties-defendants therein (Id.).
FROM CAUSE OF ACTION
The former is the right to commence and maintain an Filing of a motion for reconsideration continues
action. It springs from the cause of action, but does._ the suspension of the running of prescription
not accrue until all facts which constitute the cause period, which runs again after the court
have occurred (Multi-Realty v. Makati Tuscany, G.R. proceedings have finally been terminated
No. 146726, June 16, 2006). (Caniza v. People, G.R. No. L-53776, March 18,
'f:9~{t ··.
DIFFERENT KINDS OF ACTION AND
CORRESPONDING RECKONING POINT When the prescription is interrupted by a judicial
OF COMPUTATION demand, the full period for the prescription must
be reckoned. from the cessation of the
OF PRESCRIPTION PERIOD interruption (Permanent Savings and Loan Bank
v. Velarde, G.Ff No. 140608, September 23,
2004)::

2. Written extrajudicial demand by the

creditor
From the day they may ,;,,TheQ(?nJand must be in writing and made before
be brought. (CIVIL the'. e°xpirntion of the period fixed by law (DE
CODE, Art. 1150). . LEON, Property, supra at 784).

Petitioner's action for collection of a sum of

From the last payment of
the annuity or of the
interest (CIVIL CODE,
Art. 1151).
From the time judgment
became final (CIVIL
CODE, Art. 1152).
the day the
peraons who shou~
render the same cease
in their functions (CIVIL
CODE, Art. 1153).
money was based on a written contract and
prescribes after ten years from the time its right
of action arose. The prescriptive period is
interrupted when there is a written extrajudicial
demand by the creditors. The interruption of the
prescriptive period by written extrajudicial
demand means that the said period would
commence anew from the receipt of the demand.
A written extrajudicial demand wipes out the
period that has already elapsed and starts anew
the prescriptive period (Permanent Savings and
Loan Bank v. Velarde, G.R. No. 140608,
September 23, 2004).
 PROPERTY
Civil Law

3. Written acknowledgment of the debt by

the debtor
NOTE: In extinctive prescription, the interruption
through the acknowledgment of debt of the
creditor's right can only take place when such
acknowledgment is in writing (DE LEON,
Property, supra at 784).
It can be implied therefrom, but it must be in
writing. If not coupled with a communication
signed by the payor, would not interrupt the
running of the period of prescription (PNB v.
Osete, G.R. No. L-24997, July 18, 1968).
The acknowledgment must be such as to apply
to a particular and specific debt to interrupt
prescription (DE LEON, Property, supra at 782-
785).
Acknowledgement can be made by a legal
representative (Id.).
The acknowledgment of debt before period of
prescription will interrupt the expiration of the
period of prescription, . but a mere
acknowledgment of the obligation after it has
already prescribed is nqt sufficient to renew the
period of prescription (Id.).
THE
CONDOMINIUM ACT
(R.A. NO. 4726)
CONDOMINIUM
An interest in real property consisting of a separate
interest in a unit in a residential, industrial, or
commercial building and an undivided interest in
common, directly or indirectly, in the land on which it
is located and in other common areas of the building
(R.A. No. 4726, Sec. 2).
UNIT
A part of the condominium project intended for any
type of independent use or ownership, including one
or more rooms or spaces located in one or more
floars (pr part/s offloors) in a building or buildings and
s.uch accessories as may be appended thereto (R.A.
No. 4726, Sec. 3).,
PROJECT
The entire parcel of real property divided or to be
divided in condominiums, including all structures
thereon (R.A. 4726,, Sec;3(c)).

If the period has already el<pired, there must _be a. CONDOMINIUM C()RPORATION
renunciation of the prescription already acquired,
A corporaUon which holds title to the common areas,
in order action may be acquired (Id.}.
including the lc1hd, or the appurtenant interests in
such areas, in which the holders of separate interest
Mere acknowledgment of debt does not
shall. automatically bE;l members or shareholders, to
constitute renunciation of prescription already
the exclusion of others, in proportion to the
acquired {Id.}.
appurtenant intere.st of their respective units in the
common areas (R.A. No. 4726, Sec. 2).
By acknowledgment of debt, the debtor may
renew the obligation and interrupt the
NOTE: Any transfer or conveyance of a unit or an
prescription so as to make it run only from the
apartment, office or store, or other space therein,
date of the acknowledgment {Id.}.
shall include transfer or conveyance of the undivided
interest in the common areas or, in a proper case, the
A mere offer to compromise a suit upon a
membership or shareholdings in the condominium
supposed debt is not an admission that anything
corporation: Provided, however, that where the
is due and cannot be used as evidence against
common areas in the condominium project are held
the defendant (Lichauco v. Limjuco, G.R. No.
by the owners of separate units as co-owners
6189, March 11, 1911 ).
thereof, no condominium unit therein shall be
conveyed or transferred to persons other than Filipino
This simply means that the period of prescription,
citizens or corporations at least 60% of the capital
when interrupted by such a written
stock of which belong to Filipino citizens, except in
acknowledgment, begins to run anew; and
cases of hereditary succession (R.A. No. 4726, Sec.
whatever time of limitation might have already
5).
elapsed from the accrual of the cause of action is
thereby negated and rendered inefficacious
Ownership over a condominium unit is ae;quired by
(Philippine National Railways v. NLRC, G.R.
the buyer only after he had fully paid the purchase
81231, September 19, 1989).
price (Sunset View Condominium Corp. v. Campos,
Jr., G.R. No. L-52361, Apri/.27, 1981).
 M!M:Q~Y AID
San Seda University College of law - RGCT Bar Operat10ns Center
DOCUMENTS TO CONSIDER:
1. Enabling or Master Deed
- Which shall contain, among others, the
following:
a. Description of the land on which the building
or buildings and improvements are or are to
be located;
b. Description of the building or buildings,
slating tho number of Glories ond basements
the number of units and their accessories,
any;
c. Description of the common areas and
facilities;
d. A statement of the exact nature of the interest
acquired or to be acquired by the purchaser
in the separate units and in the common
areas of the condominium project. Where title
to or the appurtenant interests in the common
areas is or is to be held by a condominium
corporation, a statement to this effect shall be
included;
e. Statement of the purposes for which the
building or buildings and each of the units are
intended or restricted as to use;
f. A certificate of the registered owner of the
property, if he is other than those executing
the master deed, as well as of all registered
holders of any lien or encumbrc1nce on the
property, that they consent to theregistration
of the deed; _ the master deed conta"ins a requirement that the
g. The following plans shall be appended to the
deed as integral parts thereof: · ·
i. A survey plan of the land included in the
project, unless a survey plan ofthe same
property had previously been filed in said
office; and · COMMON AREAS
ii. A diagrammatic floor plan ofthe building _
or buildings in the project, in sufficienl
detail to identify each unit, its relative
location and approximate dimensions;
h. Any reasonable restriction not contrary to
law, morals or public policy regarding the
right of any condominium owner to alienate
or dispose of his condominium (R.A. No.
4726, Sec. 4). · Where several persons own condominiums in a
2. Declaration of Restrictions (R.A. No. 4726,
Sec. 6); and
3. Articles and By-Laws
Condominium Corporation
association where appUcable.
RIGHTS AND OBLIGATIONS OF
CONDOMINIUM OWNERS/INCIDENTS OF
A CONDOMINIUM GRANT
1. The boundary of the unit granted are the interior
surfaces of the perimeter walls, floors, ceilings,
windows, and doors thereof;
2. There shall pass with the unit, as an
appurtenance thereof, an exclusive easement for
the use of the air space encompassed by the
boundaries of the unit as it exists at any particular
time and as the unit may lawfully be altered or
reconstructed from time to time. Such easement
shall be automatically terminated in any air space
upon destruction of the unit as to render it
untenantable;
3. Unless otherwise, provided, the common areas
if are held in common by the holders of units, in
equal shares, one for each unit;
4. A non-exclusive easement for ingress, egress
and support through the common areas is
appurtenant to each unit and the common areas
are subject to such easements;
5. Each condominium owner shall have the
exclusive right to paint, repaint, tile, wax, paper
or otherwise refinish and decorate the inner
surfaces of the walls, ceilings, floors, windows
and doors bounding his own unit;
6. Each condominium owner shall have the
exclusive right to mortgage, pledge, or encumber
his condominium and to have the _,same
appraised independently of the-/· other
- , < cordomini1,1ms but any obligatio11 "incurred by
such condominium owner is personal to him; and
7. Each con_dbrninium owner ha's also the absolute
right to silt or dispose qJ,his condominium unless
property be first offered to the condominium
owners within a:reasonable period of time before
the sa,~,i~9f(~r~d to outside parties (R.A. No.
47Z6;,$€ic.,(J);}fF
... l"pefenJjW project except all units separately granted
or held·orreserved (R.A. No. 4726, Sec. 3).
GENERAL RULE: Common areas shall remain
undivided, and there shall be no judicial partition
thereof (R.A. No. 4726, Sec 7).
EXCEPTIONS/GROUNDS FOR PARTITION:
condominium project, an action may be brought by
one or more such persons for partition thereof by sale
of the entire project, as if the owners of all of the
condominiums in such project were co-owners of the
of the entire project in the same proportion as their interests
or the in the common areas (R.A. No. 4726, Sec. 8) in the
following cases:
1. That three years after damage or destruction
to the project which renders material part thereof
unfit fo; its use prior thereto, the projeci has not
been rebuilt or repaired substantially to its state
prior to its damage or destruction;
2. That damage or destruction to the project has
rendered one-half or more of the units therein
untenantable and that condominium owners

holding in aggregate more than thirty percent
(30%) interest in the common areas are
opposed to repair or restoration of the project;
3. That the project has been in existence in excess
of fifty (50) years, that it is obsolete and
uneconomic, and that condominium owners
holding in aggregate more than fifty percent
(50%) interest in the common areas are
opposed to repair or restoration or remodeling or
modernizing of the project;
4. That the project or a material part. thereof has
been condemned or expropriated and that the
project is no longer viable, or that the
condominium owners holding in aggregate more
than seventy percent (70%) interest in the
common areas are opposed to continuation of
the condominium regime after expropriation or
condemnation of a material portion thereof; or
NOTE: If the Court finds that the conditions
provided for in this Act or in the declaration ·of
restrictions have not been met, the Court may
decree a reorganization of the projed,:declaring
which portion or portions of the project shall
continue as a condominium project, the owners;
and the respective rights of said remaining
owners and just compensation, if any, that a
condominium owner may be entitled to due to
deprivation of his property (R.A No. 4726, Se'c.
23).
5. That the conditions for such partition by, sale set
forth in the declaration of restrictions, duly
registered in accordance with the terms ·or this
Act, have been met (R.A. No. 4726, Sec. 8 (e)).
The owner of a project '_shall, prior to the
conveyance of any condominium thereln, register
a declaration of restrictions 'relating to such
project, which restrictions shall constitute a lien
upon each condominium in the project, an<,l shall
insure to and bind all condominium owners in the
project. Such liens, unless otherwise provided,
may be enforced by any condominium owner in
the project or by the management body of such
project (R.A. No. 4726, Sec. 9).
CONDOMINIUM CORPORATION
Whenever the common areas in a condominium
project are held by a condominium corporation, such
corporation shall constitute the management body
of the project.
The corporate purposes of such a corporation shall
be limited to the holding of the common areas, either
in ownership or any other interest in real property
recognized by law, to the management of the project;
and to such other purposes as may be necessary,
incidental or convenient to the accomplishment of
said purposes.
PROPERTY
Civil Law
Mernber!;hip in a w11Jorninium corporation,
regardless of whether it is a stock or non-stock
corporation, shall not be transferable separately from
the condominium unit of which it is an appurtenance.
When a member or stockholder ceases to own a unit
in the project in which the condominium corporation
owns or holds the common areas, he shall
automatically cease to be a member or stockholder
of the condominium corporation (R.A. No. 4726, Sec.
10).
The term of a condominium corporation shall be co-
terminus with the duration of the condominium
project, the provisions of the Corporation Law to the
contrary notwithstanding (R.A. No. 4726, Sec. 11 ).
In case of involuntary dissolution of a condominium
corporation for any of the causes provided by law, the
common areas owned or held by the corporation
shall, by way of liquidation, be transferred pro-indiviso
arid in proportion to their interest in the corporation to
the members or stockholders thereof, subject to the
superior rights of the corporation creditors.
Such transfer or conveyance shall be deemed to be
a full liquidation of the interest of such members or
stockholders in_ the corporation.
After such transfer or conveyance, the provisions of
this Act -governing undivided co-ownership of, or
undivided interest , iri,, the common areas in
condominium projects shall fully apply (R.A. No.
4726, Sec. 12).
UptiJthe enabling or the master deed of the project in
which the condominium corporation owns or holds
the common area is revoked, the corporation shall not
be volunt 9rily qissolved through an action for
dissolution under Rule 104 of the Rules of Court
a
except upon showing of the conditions provided in
Sec: B of R.A. 4726 (R.A. No. 4726, Sec. 13).
The condominium corporation may also be dissolved
by the affirmative vote of all the stockholders or
members thereof at a general or special meeting duly
called for the purpose; Provided, that all . the
requirements of Section sixty-two of the Corporation
Law are complied with (R.A. No. 4726, Sec. 14).
The corporation shall be deemed to hold a power of
attorney from all the members or stockholders to sell
and dispose of their separate interests in the project
and liquidation of the corporation shall be effected by
a sale of the entire project as if the corporation owned
the whole thereof, subject to the rights of the
corporate and of individual condominium creditors,
unless otherwise provided for in the declaration of
restrictions upon voluntary dissolution of a
condominium corporation (R.A. No. 4726, Sec. 15).
 &MM@ \/

MEM:Q~Y AID
San Beda Univeraity Colio;Je of Law - RGCT Bar Operations C_enler

A condominium corporation shall not, during its

existence, sell, exchange, lease, or otherwise
dispose of the common areas owned or held by it in
the condominium project unless authorized by the
affirmative vote of all the stockholders or members
(R.A. 4726, Sec_ 16).

The management body, unless otherwise

provided for by the declaration of restrictions,
may acquire and hold, for the benefit of the
condominium owners, tangible and intangible
personal property and may dispose of the same
by sale or otherwise; the beneficial interest in
such personal property shall be owned by the
condominium owners in the same proportion as
their respective interests in the common areas. A
transfer of a condominium· shall transfer to the
transferee ownership of the transferor's
beneficial interest in such personal property (R.A.
No. 4726, Sec. 22).
 SUCCESSION
Civil Law

L I
3. Ecledic Theory
SUCCESSION This theory tries to harmonize the two principles
- individual and social. In either of these
principles, the basis of succession is the
recognized necessity of perpetuating man's
GENERAL PROVISIONS patrimony beyond the limits of human existence
(Id. at 2-3).
(ARTS. 774-782)
SUCCESSION V. INHERITANCE

SUCCESSION Refers to the legal Refers to . the

A mode of acquisition by virtue of which the property, mode by which universality of all the
rights and obligations to the extent of the value of the inheritance is property, rights and
inheritance, of a person are transmitted through his transmitted to the obligations of a
death to another or others either by his will or by persons entitled to it decedent, which are not
operation of law (CIVIL CODE, Art. 774). (CIVIL CODE, Art. 774). extinguished by his
death (CIVIL CODE,
BASES OF SUCCESSION: Art. 776).
1. Right to dispose Private Property
If man has the right to own private property, he NOTE: Inheritance is
has the power to dispose of such prqperty freely, the objective element of
imposing such licit terms and conditions as he· succession. (JURADO,
may deem convenient. Conseqvently, he may Succession, supra at 5).
distribute them by means of a testament, since
a testament is nothing m9re thqn an instrument KINDS OF SUCCESSION:
of alienation conditiorted upon his death
(JURADO, Comments .and Jt,irisprudence on 1_. As to whether a/will exists or not:
Succession, (2009), p. 2 [hereinafter, JURADO, a. Testamentary or Testacy - by a will
Succession]). executed in the form prescribed by law
(CIVIL GODE, Art. 779);
NOTE: This is the basis of testa.mentary b. Legal or Intestacy - by operation of law
succession. based ori ·the.· decedent's presumed will
(CIVIL CODE, Art. 960); and
c. Mixed - part!Y testamentary and partly legal
2. Family Co-ownership·
(CIVIL CODE, Art. 780).
If the family is recognized as the he·art and soi:J1.
of society, the idea of successioh must,
therefore, revolve around it. Hence, the basis of .. 2 ... As to effectivity:
succession rests upon family co-ownership (Id.). a. Inter vivos - takes effect during the lifetime
pf the source of the property (e.g., donation)
NOTE: This is the basis of intestate succession. b. Mortis causa - takes effect after the death
of the source of the property

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad Hue Director for Bar Matters I MARIELLE CIELO B. BEi.GIRA, Vice Chairperson for Finance I JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit I CORINA TAMPUS, Vice Chairperson
for Secretariat I ARVY KEITH CHUNG, Vice Chairperson for Logistics I ANTONIO JUN-JUN C. l'vlANALIGOD IV, Vice Chairperson for

" ..
Membership IJORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing
~
NOSLEN ANGINEB E. MENDOZA, Subject Chair\ KING LAURENZ S. MASILUNGAN, Assistant Subject Chair I ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing I SUBJECT HEADS, JOAN V. LAGRADIU.A. Agency & Trnsts I QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATifALIE A. BERONA, Persons and Family Relations I KRISTOFFER MONICO S. NG, Property IJULEEN EVETfE
D. MALLARI, Land Titles and Deeds I MARISOL 0. SISON, Sales\ GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BULATAO, JESSlJ R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BAUSONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGEI.IlJS M. YOSJIIY, MARY JOY B. DELA CRUZ, JESSA A. YAlAO., KIEZLLE CAYNE D.

' .
MANALILI, ANNA ROCHELLE D. PAYONGAYONG,MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JOSEPH FERDINAND 01-:CHAVEZ

 e&&f#iMi+ \ I

MEM:Q~Y AID
San Beda University Coilege of Law - RGCT Sar Operations Cante,

3. As to extent: hereditary estate. They exist only in

a. Universal - covers all the property, rights, testamentary succession (JURADO,
and obligations of the decedent, that is all the Succession, supra at 185); and
relations in which the decedent was involved
b. Particular - limited to certain specific items NOTE: A person may be a compulsory
and voluntary heir at the same time, in
4. As to part of property transmitted: the same will (dual status as an heir).
a. Forced or compulsory - takes place with This happens when in a will, a
rAspect to the legitime compulsory heir is given more than his
b. Voluntary - takes place with respect to the legitime. Insofar as his legitime is
free portion concerned, he is a compulsory heir.
Insofar as the excess is concerned, he
5. Contractual is a voluntary heir (3 PARAS, supra at
- deducible from the provision of Art. 130 of the 35).
Civil Code which is contractual in character and
applicable only to donations of future property by (3) Legal/Intestate Those who
reason of marriage made by one spouse to the succeed by operation of law when
other (JURADO, Succession, supra at 14; DE legal or intestate succession takes
LEON, Comments and Cases on Succession, place. They are classified as:
(2017), p. 34-35 [hereinafter, DE LEON, (a) Those who inherit in their own
Succession]). right; and
(b) Those who inherit by right of
representation.
REQUISITES FOR TRANSMISSION OF
SUCCESSIONAL RIGHTS: (DAT) ii. Devisees - persons to whom gifts of real
1. That indeed there has been Qeath (actual or ... pro~.rty are given by virtue of a will ( CIVIL
presumed}; ·\:CODE, Art. 782).
2. That the rights or properties are indeed iii. Legate,es - persons to whom gifts of
Iransmissible or discernible; and person:!,\! property are given by virtue of a will
3. That the transferee is still ~live (no predecease), (CIVIL CODE, Art. 782).
is willing (no repudiation), and is capac.:itated to
inherit (3 PARAS, Civil Code of the Philippines HEIRS V;:DEVISEES OR LEGATEES,
Annotated, (2016), p. 12-13) [hereinafter, 3
PARAS].
. llt$JINGUISHED

ELEMENTS:
1. Subjective Elements: Decedent and
Successors
a. Decedent
The person whose property is transmitted
through succession, whether or not he left a
will (CIVIL CODE, Art. 775):
i. Testator - if he left a will.
ii. Decedent - if he left no will.

b. Successors (Transferees or Causa Succeed by means of a

Succeed by means of a
habientes) will or by operation of will only (CIVIL CODE.
i. Heirs - Those who are called to the law (CIVIL CODE, Art. Art. 782).
whole or to an aliquot portion of the 782).
inheritance either by will or by operation
of law (CIVIL CODE, Art. 782).
(1) Compulsory/Forced - Those who Distinction must be As a rule, the devises or
succeed by force of law to some made between heirs in legacies are chargeable
portion of the inheritance in an testate succession against the free portion.
amount predetermined by law known (compulsory and
as legitime (CIVIL CODE, Art. 886). voluntary) and heirs in
(2) Voluntary - Those who succeed by intestate succession
virtue of the will of the testator, to the (legal or intestate heirs)
whole or aliquot part of the -~------
disposable free portion of the
 SUCCESSION
Civil Law

Inherits an aliquot part Must be specified by the

of the indeterminate testator. Inherit ever,ything at the After-acquired
portion of the estate. time of the testator's properties shall only
death (JURADO, pass thereby, as if the
Succession, supra at testator had possessed
36). it at the time of the
making of the will,
Represents the juridical Does not represent the
should it expressly
personality of the personality of the
appear by the will that
deceased and acquires deceased regardless of
such was his intention.
his rights, properties, the quantity or value of
(CIVIL CODE, Art. 793).
and obligations not the devise or legacy.
extinguished by death
R_EASON: It does not
to the extent of the apply to the heirs
because the heirs
inherit ever,ything at the
time of the testator's
The heir who. succeeds The deyise(;}' or l!:!gatee death. The time of death
by operation of law must may be a r,elative or not. is the determining point
be a relative of the properties, which
the heirs will inherit, not
(JURADO, Succession, supra af2•7-28; DE LEON,
the making of the will
Succession, supra at 40-41). · ·
(See CIVIL CODE, Arts.
776 and 781).
NOTE: The distinction · betw~n · he,i~ and
devisees/legatees are significant 'i,n the. following
cases: (PIA) ·. •, · >· lllustrijti9n: X design#lted A to ½ of his estate. He
also designated to B his car with plate number GVG-
a. ereterition (CIVIL COQE, Art>854)> ..•. .
b. !mperfect disinheritance (CIVIL.,CODE, A_tt. 101. Who is the heir? Who is the legatee?
918); and · · • · ... ,
c. ~fter-acquired properties (CIV/L ·cQQE, Answer: A is.an heir because he will succeed to an
Art. 793). u11divi•ded portion of the estate (½ of X's estate). B is
a. legatei. b~cause he will succeed to a specified
VOLUNTARY HEIRS V. DEVISEES· OR properfy {a car with plate no. GVG-101).
LEGATEES, DISTINGUISHED lnustration: X executed a will in 2008. In his will, X
gave Y all of his cars. X died in 2021. At the time of
the execution of the will, X had only 2 cars.
Assuming that in 2021 X already has 20 cars, how
many cars will Y inherit?

Annul entirely the Valid insofar as they are Answer: Y, a legatee, will only get 2 cars because
institution of heirs not in officious (CIVIL the remaining cars are after-acquired properties. As
(CIVIL CODE, Art. 854). CODE, Art. 854). a rule, after-acquired properties shall only pass, as if
the testator had possessed at the time of the making
of the will, should it expressly appear by the will that
such was his intention. (CIVIL CODE, Art. 793).
Annul the institution of Valid insofar as they are Here, it does not expressly appear that it was X's
heirs to the extent that not inofficious (CIVIL intention to pass even his after-acquired properties.
ths legitime of the CODE, Art. 918). Hence, Y shall only get 2 cars.
disinherited heir is
 c,mtwns, ' 1
MEM:v~YAID
San Beda University College of Law - RGCT Bar Operations Cemer
2. Causal Element: Death
When right to succession is transmitted
The rights to the succession are transmitted
from the moment of the death of the decedent
(CIVIL CODE, Ari. 777). This rule applies to the
2 kinds of death:
a. Actual, Physical or Natural; and
b. Presumptive.
NOTE: It is not tradition (delivery) that transfers
ownership, but succession. The effects of the
acceptance of inheritance retroact to the
moment of death (3 PARAS, supra at 16).
Before Death
No heir may enter into a contract with respect to
his future share in the inheritance because at
this point the heirs have only a mere hope or
expectancy, absolutely inchoate in character, to
their share in the inheritance (JURADO.
Succession, supra at 9).
Any contract entered into with .respect to future
inheritance would have no object whatsoever,
and as a consequence, would be inexistent from
the beginning (Id.; read in connection with par. 2
of Art. 1347 of the Civil Code).
GENERAL RULE: No contract may be entered
into upon future inheritance except in cases
expressly authorized by law (CIVIL CODE, Art.
1347 par. 2).
EXCEPTIONS:
a. Donations propter nuptias by the future.
spouses to each other of future property
(JURADO, Succession, supra at 9); and
b. Partitions inter vivas made by _a person of·
his estate among his heirs (CIVIL CODE,
Art. 1080).
After Death
After death, the heirs own the property, subject
to the decedent's liabilities (3 PARAS, supra at
21). Hence, by virtue of their ownership, the
heirs may enter into a contract with respect to
his share in the inheritance eyen before partition
has been effected (JURADO, Succession, supra
a.t 8).
By virtue of succession, prior settlement of the
estate is not necessary for any of the heirs to
acquire legal capacity to sue. Heirs can
commen~e an action originally pertaining to the
decedent (Emnace v. CA; G ..R. No. 126334,
November 23, 2001).
The fact that the hereditary estate is placed
under administration will not affect the
application of Art. 777 (JURADO, Succession,
supra at 12). However, an heir cannot compel
the administrator to deliver to him his respective
portion without order of the court (Id. at 13).
No judicial declaration of heirship is necessary
in order that an heir may assert his or her right
to the property of the deceased. Under the Civil
Code and Code of Civil Procedure, the title to
the property owned by a person who dies
intestate passes at once to his heirs. Such
transmission is subject to the claims of
administration and the property may be taken
from the heirs for the purpose of paying debts
and expenses. Without some showing that a
judicial administrator had been appointed in
proceedings to settle the estate, the right of the
heirs to maintain such action is established
(Gloria-Payduan v. Builders Savings and Loan
Association, G.R. No. 202324, June 4, 2018).
Unless there is a pending special proceeding for
the settlement of the decedent's estate or for the
determination of heirship, the compulsory or
intestate heirs may commence an ordinary civil
action to declare the nullity of a deed or
in?trument, and for recovery of property, or any
other action in the enforcement of their
ownership rights acquired by virtue of
succession, without the necessity of a prior and
separate judicial declaration of their status as
such. The rullng of the trial court shall only be in
relation to,the cause of action of the ordinary civil
action;. j,e., the nullification of a deed or
instrtfrn'~)ity:-,:,and recovery or reconveyance of
property; which ruling is binding only between
and among the parties (Reyes v. Larlar, G.R.
·l'/9, 232579, September 8, 2020).
Determination of the Time of Death in Case
of Presumptive Death
General Rule: The time when the absentee
actually died must be proved in accordance with
the ordinary rules of evidence (JURADO,
Succession, supra at 11).
Exceptions:
a. Ordinary Absence
For purposes of opening one's succession,
an absentee is· presumed dead at the time
of the expiration of the period of absence
designated by law:
i. 10 years - if he disappeared at the age
of 75 or below.
ii. 5 years - if he disappeared after the age
of 75 (CIVIL CODE, Art. 390, par. 2).
NOTE: The death is presumed to have
occurred at the end of the 10-year or 5-
', .'::'' ~t'\,1, ;·,:~ ::i './:., ::~-'.
294; . ,·. ,.t,,~;:'.,'
I ,, ~ ' , ~ '~ .._1 t,;.,- JI'°
r' ' ., '
year period (JURADO, Succession, supra
at 11).
b. Qualified or Extraordinary Absence
A person shall be presumed dead for all
purposes, including the division of the
estate among. the heirs, under the
following circumstances: (VAD)
i. If he is on board a ~essel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
4 years since the loss of the vessel or
aeroplane;
ii. If he is in the ~rmed forces who has
taken part in war, and has been missing
for 4 years; or
iii. If he has been in Qanger of death under
other circumstances and his existence
has not been known for 4 years (CIVIL
CODE, Art. 391).
NOTE: The person is presumed to·have
died at the time of the disappearance, i:e.,
at the time the calamity took place, and not
at the end of four (4) years' (JURADO,
Succession, supra at 12).
The succession really took place four years,
before (on the day of the disappearance),
. but actual division will only be at the end of
four years. In other . words, from the
beginning of the said four years; the heir
shall be -considered the owner ahd
possessor of the property, and not only from
the end thereof (3 PARAS, supra at 18).
In both cases, the succession is only of
provisional character because there is
always the chance that the absentee may
still be alive (Id.).
Time of Death of Two or more Persons
who are called to succeed each other
If there is 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
(CIVIL CODE, Art. 43).
Effect of Absentee's Return or
Appearance
The absentee shall recover his property in
the condition in which it may be found, and
the price of any property that may have been
alienated or the property acquired therewith;
but he cannot claim either fruits or rents.
SUCCESSION
Civil Law
(CIVIL CODE, Art. 392)c If the heir had
already spent the money there is no
obligation to reimburse, in as much as the
consumption had been made in good faith
(3 PARAS, supra at 18-19).
3. Objective Element: Inheritance
Scope of lnherita·nce:
a. All properties of the decedent existing at the
time of his death to the extent of the value of
the inheritance (CIVIL CODE, Art. 776 and
Art. 1311).
Restricted Concept of Inheritance
Until a final liquidation is made and all debts
left by the decedent are fully paid, the right
of the heirs to inherit remains inchoate or is
a mere hope or expectancy. Liquidation is
necessary to determine whether the
decedent has left assets which may be
transmitted to his heirs (JURADO,
Succession, supra at 5).
NOTE: The mortal remains of the decedent
is not a property, hence, does not form part
of the inheritance. However, under R.A. 349,
as amended by R.A. 1056, a person may
validly grant to a licensed physician,
surgeon, scientist or any medical or
scientific institution, the authority to detach
.at any time after his death any organ of his
body (Id. at 17-18).
R.A. No. 7170 authorizes the legacy or
donation of a.ll or part of a human body after
death for specified purposes (DE LEON,
Succession, supra at 10).
b. All transmissible rights and obligations
existing at the time of decedent's death to
the extent of the value of inheritance (CIVIL
CODE, Art: 776 and Art. 1311).
PATRIMONIAL RIGHTS VS. PURELY
PERSONAL RIGHTS
GENERAL RULE: Extinguished by death
Not extinguished by because they are
death inseparable from their
holder or owner
 fflf'4'Jl'i?P \ /

MEM✓Q~Y
San Seda University College of
AID
l~w - RGCT Bar Operations Cehter

iv. Action to compel acknowledgment of a

nc:iluml child;
v. Action to obtain judicial declaration of
illegitimate filiation of an illegitimate
child who is not natural;
vi. Parental authority or patria potestas;
vii. Rights of a guardian;
viii. Right to receive. and the obligation to
give suppor l;
ix. Right to hold a public office as well as
Transmissible. Hence, lntransmissible by their the right to exercise a profession or
they may be included in nature and purpose (not vocation;
the inheritance. by contract). They are x. Right of usufruct;
not included in the xi. Right of personal easement;
inheritance. xii. Rights and obligations arising from a
contract of partnership or agency; and
(DE LEON, Succession, supra at 11-13).
xiii. Criminal responsibility (JURADO,
Succession, supra at 19).
Obligations not extinguished by death
which form part of the estate
GENERAL RULE: Obligations are by NOTE: The rights and obligations
extinguished by death are not transmissible
nature transmissible and may constitute part
of the inheritance. by t_heir nature, or by stipulation or by_
prov1s1on of law ( CIVIL CODE, Arl. 1311).
EXCEPTIONS:
i. Personal obligations; The rights and obligations the deceased had
ii. Those arising from a contr;:ict for a by virtue of the subject Codicil were
• :;transn;iitted to his forced heirs, at the time of
piece of work; and
his death (Rabadilla v. CA, G.R. No.113725
iii. Those that are made intransmissible
Jun~ 29, 2000). '
by express agreement or by .will of the
testator or by express provision of law
(Id. at 14). S,ection 5. of Rule 86 of the Rules of Court
¢xpressly ~llows the prosecution of money
Rights and Obligations NOT ;0l?Ams ~~ising from a contract against the
extinguished by death: ·estf\{1(~,t~deceased debtor. Hence, money
i. Right to bring or continue an action for claims are not actually extinguished.
forcible entry or unlawful detainer;
ii. Right to compel the execution of a Whatever monetary liabilities or obligations
document necessary for convenience, the deceased had under his contracts with
provided the contract is valid and creditors were not intransmissible by their
enforceable; nature, by stipulation, or by provision of law.
_iii. Right to continue a lease contract· Hence, his death did not result in the
iv. Property right in an insurance 'policy extinguishment of those obligations or
with an irrevocable designation ( 3 liabilities, which merely passed on to his
PARAS, supra at 7); estate ( Stronghold Insurance Co., Inc. v.
v. Civil liability arising from crime; Republic-Asahi Glass Corp., G.R. No.
147561, June 22, 2006 citing Pavia v. De La
vi. Obligation to deliver to the vendee
Rosa, GR. No. L-3083, March 18, 1907).
property sold by their parents; and
vii. Rights and obligations arising from
contract or negligence (DE LEON, With respect to obligations arising from
Succession, supra at 13-14). contracts, while the same is transmissible to
the heirs, the latter's liability shall, however,
Rights and Obligations extinguished by be limited only up to the value of the
death and are not transmissible: property they received from the decedent ( 1
i. Rights and obligations between RABUYA, Civil Law Reviewer, (2017), p.
husband and wife; 714 [hereinafter 1 RABUYA]).
ii. Property relations between husband
and wife; The right of action for the acknowledgement
iii. Action for legal separation or to annul a of a natural child is extinguished by his
marriage; death because no express provision like that
of Art. 118 of the then Civil Code on the

8Lknowledgement of legitimate children
exists. As such, the right of action cannot be
transmitted to and enforced by his mother
(Conde v. Abaya, G.R. No. 4275, March 23,
1909).
NOTE: It must be remembered, however,
that the Family Code limits the classification
of children only to legitimate and illegitimate
children (JURADO, Succession, supra at
292).
The action to claim legitimacy for both
legitimate and illegitimate children may be
brought by the child during his/her lifetime
and shall be transmitted to the heirs should
the child die during minority or in a state of
insanity. In these cases, the heirs shall have
a period of five (5) years within which to
institute the action (FAMILY. CODE, Art.
173).
c. Those which have accrued thereto since the
opening of the succession; such as alluvium
(CIVIL CODE, Art. 781).
NOTE: The accretions or accessions are not strictly
inherited for they form part of the estate only after
the heirs become the owners thereof; hence,
properly speaking they are acquired by accretioh (as
an incident of ownership under the LAW), not by
succession (3 PARAS, supra at.33).
TESTAMENfARY
SUCCESSION
(ARTS. 783-959)
It is one which results from the designation of an heir
made in a will executed in the form prescribed by law
(CIVIL CODE, Art. 779).
WILL
An act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect
after his death (CIVIL CODE, Art. 783).
The right to make a testamentary disposition of one's
property is purely of statutory creation, and is
available only upon the compliance with the
requirements of the..,statute. The formalities which
the Legislature has prescribed fo( the execution of a
will are essential to 1ts validity, and cannot be
disregarded. The mode so prescribed is the
measure for the exercise of the right, and the heir
SUCCESSION
Civil Law
can be deprived of his inheritance only by a
compliance with this mode (Herreros v. Gil, G.R. No.
L-3362, March 1, 1951).
KINDS:
1. Notarial or Ordinary; and
2. Holographic.
MODES:
1. By will; or
2. By codicil.
CHARACTERISTICS (PFV-DRUM):
1. Strictly fersonal Act
It cannot be left in whole or in part to the
discretion of a third person. or accomplished
through the instrumentality of an agent or
attorney (CIVIL CODE, Art. 784).
The mere act of drafting a will does not fall within
the purview of the prohibition because the
person doing the mechanical work of writing the
will is a matter of indifference. Thus. the fact that
the will was tyMwritten in the office of a lawyer
is of no consequence ( Castaneda V. Alemany,
G.R. No. 1439, March 19, 1904).
Acts which may riot be left to the discretion
of a.third person; tDEPO)
a. Q.uration of the designation of heirs,
devisees or legatees (CIVIL CODE, Art.
785); .
b, .§fficacy of the designation of heirs, devisees
or legatees (CIVIL CODE, Art. 785);
c. 0E;te.rminati9n of the _Eortions which they are
to take, when· referred to by name ( CIVIL
CODE, Art. 785); and
REASON: Those acts are testamentary in
character (JURADO, Succession, supra at
31).
d. Determination of whether or not the
testamentary disposition is to be Qperative
(CIVIL CODE, Art. 787).
REASON: While the act determining
whether a testamentary disposition is to be
operative or not is not exactly testamentary
in character, it is nonetheless prohibited
because it would be tantamount to allowing
a third person substitute the will of the
testator for his own (JURADO, Succession,
supra at 32).
Illustration: X declared in his will "I hereby
make A, B, and C, children of Hospicio de San
Jose, as my legal heirs and declare my lawyer
 @MJ#D \ I
MEM:Q~Y AID
San Beda University COllega of Law - RGCT Ba, Operations Center
to delerr11i110 lhe amount which they are to
receive." Is the provision v;:ilid?
Answer: No. Art. 785 will apply because the
heirs were referred to by I1ctrrIe. Furthermore,
lhe amount was not specified by the testator. It
is the lawyer who determines the amount.
Acts which may be entrusted to a third
person (CIVIL CODE, Art. 786):
a. Distribution of specific property or sums of
money that the decedent may leave in
general to specified classes or causes; and
b. Designation of the persons, institutions or
establishments to which such property or
sums are to be given or applied.
Illustration: What if X declared in his will: "I give
P10 million to the street children of Manila and
hereby designate my lawyer to take care of the
distribution of the said amount." Is the provision
valid?
Answer: Yes. Art. 786 applies. The beneficiary
is a specified class and the amount was in a
specified amount of money.
2. formal and Solemn Act
It must be executed in accordanG() with the
formalrties required by law (3 PARA$, supra at
44).
3. Free and ~oluntary Act
It must have been executed freely, knowingly, or
ambulatory; otherwise, it will be disallowed (Id.).
4. Qisposition of Property
Disposition can be done either:
a. Directly - by the institution of heirs or
designation of devisees or legatees and the
property or share they are to receive; or
b. Indirectly - by validly disinheriting those
who would otherwise inherit by operation ot
law (1 RABUYA, supra at 725).
A document which initially comes across as a
mere disinheritance is considered a will. An
intent to dispose mortis causa can be clearly
deduced from the terms of the instrument, and
while it doe~ 11ol 111ake all affirmative disposition
of the testator's property, the disinheritance of
an heir:, nonetheless, is an act of disposition in
Itsell. I he disinheritance results in tho
disposition of the property of the testator in favor
of those who would succeed in the absence of
the disinherited heir. (Seangio v. Hon. Reyes,
G.R. Nos. 140371-72, November 27, 2006).
5. Ambulatory and Revocable During the
Testator's Lifetime
The testator can alter, revise, or revoke it al arry
timfl hefom his rlP.:ith
6. !,!nilateral and Individual Act
- This means that no acceptance by the
transferee is needed while the testator is still
alive; any acceptance made .prematurely is
useless (3 PARAS, supra at 44).
Two or more persons cannot make a single joint
will, either for their reciprocal benefit or for
another person. However, separate or
individually executed wills, although containing
reciprocal provisions (mutual wills), are not
prohibited, subject to the rule on disposicion
captatoria (CIVIL CODE, Art. 875).
7. Act Mortis causa
It takes effect only after the death of the testator
(3 PARAS, supra at 44).
, \INTERPRETATION OF
WILLS
(ARTS. 787-795)
All rules of,coristrudtlon are designed to ascertain
and give effett ftd the intention of the testator. It is.
only when the intention of the testator is contrary to
_.lavy., morals, or public policy that it cannot be given
effect (JURADO, Succession, supra at 34).
DISPOSITIONS SUSCEPTIBLE OF
DIFFERENT INTERPRETATIONS
In case of doubt, that interpretation by which the
disposition is to be operative or will sustarn and
uphold the will in all its parts stiall be adopted,
provided that it can be done consistently with the
established rules of law ( CIVIL CODE, Ari. 788).
REASON: Testamentary succession is preferred
over intestacy. As much as possible, a testator's will
is treated and interp1·eted ir I a way lhal would render
all of its provisions operative. 14 Hence, there is no
basis to apply the provisions on intestacy when
testate succession evidently applres (Hacbang v.
Alo, GR No. 191031, October05, 2015).
RULE ON MISTAKES AND OMISSION
1. When there is an imperfect description or when
no person or property exactly answers the
description, mistakes and omissions must be
corrected by ascertaining the testator's intention

using either intrinsic or extrinsic evidence, or
both (JURADO, Succession, supra at 35).
2. When there is uncertainty on the face of the will,
as to the application of any of its provision, the
testator's intention is to be ascertained from the
words of the will, taking into consideration the
circumstances under which it was made (Id.).
In both instances, the oral declarations of the
testator as to his intentions are to be excluded
(CIVIL CODE, Art. 789).
KINDS OF AMBIGUITIES:
1. Patent or extrinsic ambiguities
- Those which appear on the face of the will
itself.
Example: "I hereby institute some of my seven
(7) brothers ... " It is evident that there is an
uncertainty as to how many brothers are being
instituted.
2. Latent or intrinsic ambiguities .•·
- those which do not appear on the face of the
will and are discovered only by .extrinsic
evidence.
Example: "I institute my b_rother-in-law .. ." It was
discovered that there are two (2) brothers-in°1aw
(3 PARAS, supra at 49-50).
WHEN AMBIGUITY ARISJ:S
1. When there is an imperfect description of the
heir, legatee, or devisee;
2. When there is an imperfect description of the gift
being given; and
3. When only one recipient is designated but it
turns out that there are two or more. who fit the
description (Gilmer v. Stone, 120 U.S. 586).
HOW AMBIGUITIES ARE CURED
GENERAL RULE: Intrinsic or extrinsic evidence
may be used to ascertain the intention of the
testator.
EXCEPTION: The oral declarations of the testator
as to his intentions must be excluded ( CIVIL CODE,
Art. 789).
REASON: The oral declarations of the testator are
merely HEARSAY. The testator can no longer refute
the testimonies of lying witnesses (JURADO,
Succession, supra at 35).
SUCCESSION
Civil Law
INVALIDITY OF A DISPOSITION IN A
WILL
The invalidity of one of several dispositions
contained in a will does not result in the invalidity of
the other dispositions, unless it is to be presumed
that the testator would not have made such other
dispositions if the first invalid disposition had not
been made (CIVIL CODE, Art. 792).
EXCEPTION: When various dispositions or
provisions are indivisible in nature and intent.
AFTER-ACQUIRED PROPERTY
Property acquired after the making of a will shall only
· pass thereby, as if the testator had po~sessed it at
the time of making the will, should it expressly
appear by the will that such was his intention (CIVIL
CODE, Art. 793).
NOTE: The rule applies only to devises and legacies
and not to institution of heirs. (JURADO,
Sifccessfon, supra at 36).
EXTENT OF INTEREST THAT THE
TESTATOR MAY DISPOSE OF
Every devise or legacy shall convey all the interest
which the testator cot.M devise or bequeath in the
property disposed of, unless it clearly appears from
the will that he· intended to convey a less interest
(CIVIL GODE, Art. 794).
lllustration:X and Y co-own a parcel of land. X then
instituted in his will that he made Z the devisee as to
the parcel of land. Up to what extent of the land could
he convey to Z?
Answer. X, as co0 owner of the property, may only
convey his share in the co-ownership no more, no
less.
LAW GOVERNING FORM OF WILLS
The validity of a will as to its form depends upon the
observance of the law in force at the time it is made
(CIVIL CODE, Art. 795) ..
KINDS OF VALIDITY
1. Extrinsic Validity
- Refers to the forms and solemnities needed.
2. Intrinsic Validity
- Refers to the legality of th~ provision in an
instrument, contract, or will.
EFFECTS OF A NEW LAW CHANGING
THE FORMALITIES OF A WILL
1. Before the death of the testator but after the
execution of the will, the new law has no
 MEM:Q~Y AID
Sao Bede Uruversity College of Law - RGCT Sar Operations Center

retroactive effect (JURADO, Succession, supra of the Philippines Annotated, (2003) p. 117
at 38). [hereinafter, 3 TOLENTINO]).

EXCEPTION: When a retroactive effect is: b. · Alien Testator

a. Expressly declared by the statute itself; or i. . Executing a will in the Philippines
b. Necessarily implied from the language used either (CIVIL CODE, Arts. 17 c;md 817):
therein (CIVIL CODE, Art. 4). (1) The law of the Philippines; or
(2) The law of the country of which he
2. After the death of the testator, the rules have no is a citizen or subject.
effect because the heirs already have a vested ii. Executing a . will outside of the
right (JURADO. Succession, supra at 38). Philippines - either (CIVIL CODE, Arts.
17 and 816):
NOTE: A will totally void at the time of its execution ( 1) The law of the place where it is
cannot be validated by a subsequent legislation executed;
(Severina A. Vda. De Enriquez v. Abadia, G.R. No. (2) The law of the place in which he
L-7188, August 9, 1954). resides;
(3) The law of his country; or
GOVERNING LAW ON FORMALITIES (4) The law of the Philippines.
1. As to Time:
a. Extrinsic validity - Depends upon the ASPECTS OF THE WILL GOVERNED BY
observance of the law in force at the time it NATIONAL LAW OF THE DECEDENT
is made (CIVIL CODE, Art. 795). (CIVIL CODE, Arts. 1039 and 16): (AICO)
b. Intrinsic validity - Judged at the time of the 1. ~mount of successional rights;
decedent's death by the law of his 2. !ntrinsic validity;
nationality (3 PARAS, supra at 62). 3 •... fapacityto succeed; and
if .. .Qrderofsuccession.
2. As to Place (CIVIL CODE, Arts. 815 - 817):
The formal validity of a will shall be governed by DOCTRINE OF PROCESSUAL
the law of the country in which it was executed
(CIVIL CODE, Art. 17). PRESUMPTION
a. Filipino testator If the foreign !_aw is not properly pleaded or proved,
i. Executing a will in the Philippines or our Courts wi.11 presume that the foreign law is the
before the diplomatic or consular same as.'01Jr'}pi::al .or domestic law (Del Socorro v.
officials of the Republic of the Wilsem:G.ffNo: 193707, December 10, 2014).
Philippines in a foreign country -
Philippine law.
ii. Executing a will outside of the
Philippines - either: < 'TESTAMENTARYCAPACITY
(1) The law of the country in which it is
executed or in which he may be (ARTS. 796-803)
(CIVIL CODE, Arts. 17 and 815); or
(2) The law of the Philippines.

Illustration: X, a Filipino citizen domiciled in TESTAMENTARY CAPACITY V.

Hong Kong, executed a will in Singapore. TEST AMENT ARY POWER
Can the will be governed by the laws of the
Philippines?

Answer: Yes. The Civil Code did not mean It refers to the ability as It refers to the privilege
to invalidate the will of a Filipino, executed well as the power to granted to the testator
in a foreign country, when it is made in make a will. to designate the person
conformity with our law and not in conformity or persons who are to
with the law of the place of execution. Arts. succeed him in his
816 and 817 permits an alien who executed inheritance.
a wiii in a foreign country other than his own
to follow his national law or the formalities
(JURADO, Succession, supra at 39).
prescribed by our law. It cannot be assumed
that the Civil Code places the Filipino citizen WHO CAN MAKE A WILL: (PS-18)
in a worse position than the alien in relation 1. All persons who are not expressly frohibited by
to our own law (3 TOLENTINO, Civil Code law may make a will (CIVIL CODE, Art. 796).
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These persons ·shall only refer to natural judicial order has been set aside (3 PARAS,
persons, not juridical ones (3 PARAS, supra at supra at 78);
74). 3. He was under Q.uardianship at the time of
making his will (Torres and Lopez de Bueno v.
A convict under civil interdiction is allowed to Lopez, G.R. No. L-25966, November 1, 1926).
make a will because civil interdiction prohibits a
disposition of property inter vivas, not mortis The following circumstances do NOT affect
causa (REVISED PENAL CODE, Art. 34). testamentary capacity: (CAPIFO)
1. ~ivil Interdiction;
Spendthrifts or prodigals, even if under 2. ~lienage;
guardianship, can make a will provided they are 3. £rodigality;
at least 18 years old and are of sound mind (3 4. !nsolvency; and
PARAS, supra at 74). 5. family Relations
6. Qthers of similar nature (JURADO, Succession,
2. At least 18 years of age {CIVIL CODE, Art. 797); supra at 39-40).

NOTE: A person is deemed to have reached the EFFECT OF CERTAIN INFIRMITIES

required age at the commencement of the day
1. Old Age
which is known as his birthday (CIVIL CODE,
Mere senility or infirmity of old age does not
Art. 13; DE LEON, Succession, supra at 67).,
. necessarily imply that a person lacks
testamentary capacity ( Ortega v. Valmonte,
3. Of Sound mind (CIVIL CODE, Art. 798);
G.R. No. 157451, December 16, 2005).
NOTE: It is not necessary that the testat9r be in
Senile De~entia
full possession of all his reasoning facunies, or
It is the .peculiar decay of the mental faculties
that his mind be wholly unbroken, unimpaired, or
whereby the person afflicted is reduced to
unshattered by disease, injury or other cause. It
second childhood. It is senile dementia and not
shall be sufficient if at the time of making the will,
senility that·. produces testamentary incapacity
he knows: (NOC)
(JURADO, Succession, supra at 46).
a. The Nature of the estate to be disposed of
(character, ownership ofwhat he is_giving);
To ·constitute complete senile dementia there
b. The proper Qbjects · of his boµnty (by
must be such failure of the mind as to deprive.
persons who for some reason expect to
the testator 'of intelligent action. In the first
inherit something from · him - like his
. stages of the diseases, a person may possess
children); and
reason and have will power. If the testator still
c. The Character of the testamentary act (that
possessed the spark of reason and of life, that
it is really a will, that it is.a disposition mortis .
strength of mirid to form a fixed intention and to
causa, that it is essentially revocable) ((;tVtL
summon-his enfeebled thoughts to enforce that
CODE, Art. 799; 3 PARAS, supra at 76).
intention, · he is considered to possess
"testamentary capacity" (Torres and Lopez de
PRESUMPTION OF SOUND MIND Bueno v. Lopez, G.R. No. L-24569, February 26,
The law presumes that the testator is of sound mind. 1926).
Thus, the burden of proof that the testator was not of
sound mind at the time of making his disposition is 2. Infirmity or Disease
on the person who opposes the probate of the will Physical infirmity or disease is not inconsistent
(CIVIL CODE, Art. 800). with testamentary capacity

No presumption of insanity arises from the presence EXCEPTION: In case the testator, at the time of
of mere delirium, since this is temporary, nor from the execution of the will, is already in comatose
intoxication, for the same reason (3 PARAS, supra or semi-comatose condition (JURADO,
at 78). Succession, supra at 47).

Exceptions to Presumption of Sanity 3. Mental Disease or Insanity

The burden of proving sanity is cast upon the There may be mental incapacity to make a will
proponents of the will when (1-IG): without actual insanity.
1. The testator, one ill month or less, before
making his will, was publicly known to be insane Persons suffering from idiocy (those
(CIVIL CODE, Art. 800 par. 2); congenitally deficient in intellect), and imbecility
2. If the testator made the will after he had been (those who are mentally deficient as a result of
judicially declared to be !nsane and before such
 i5Mi#W ' 1
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San Seda University College of Law - RGCT Bar Operations Cemer
disease) do not possess the necessary mental
capacity to make a will (Id. at 48).
4. Mental Delusion
An insane delusion, which will render one
incapable of making a will, may be defined as a
belief in things which do not exist, and which no
rational mind would believe to exist
To justify the setting aside of a will, it must be
shown that the will was the product or offspring
of the delusion, or at least, that it was influenced
by the delusion {Id. at 49).
5. Belief in the Supernatural
Belief in spiritualism is not in itself sufficient
evidence of testamentary incapacity.
However, a will executed by one under such an
extraordinary belief in spiritualism that he
follows, blindly and implicitly, supposed
directions of spirits in constructing the will is not
admissible to probate (Id. at 49-50).
6. Drunkenness
GENERAL RULE: The admission of a wilf to
probate will not be denied merely on proof that
the testator was addicted to the excessive use
of alcoholic liquors or drugs {Id. at 50).
EXCEPTION: If at the time of the making of the
will, the testator was so much under the
influence of the intoxicants or drugs as to be
unable to bring to the business at hand the calm
judgment which the law requires of a testator {Id.
at 50).
7. Deaf-mute and Blind Person can make a
will (CIVIL CODE, Arts. 807-808).
SUPERVENING INCAPACITY
Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated
by the supervening of capacity {CIVIL CODE, Art.
801).
FORMALITY OF WILLS AND
WITNESSES TO WILLS
(ARTS. 804-824)
KiNDS OF WiLLS
1. Ordinary or Notarial Will
That which requires, among other things, an
attestation clause, and an acknowledgment
before a notary public (3 PARAS, supra at 80).
Formal Requirements: (W 2-SAMPAL)
a. In Writing;
b. Executed in a _!::anguage or dialect known to
the testator;
c. §.ubscription - Subscribed at the end thereof
by the testator himself or by testator's name
written by some other person in his
presence and by his express direction;
d. Attested and subscribed by 3 or more
credible Witnesses in the presence of the
testator and of one another;
e. Marginal signature - All of the pages are
signed, except the last, on the left margin by:
i. The testator or the person requested by
him to write his name, in the presence
of the w·1tnesses; and
ii. The instrumental witness, in the
presence of the testator and of one
another;
f. e_age numbering - All the pages are
numbered correlatively in letters placed on
the upper part of each page;
g. 8ttestation clause executed by the
witnesses; and
h. 8cknowledgment - Properly acknowledged
befqre a notary public by the testator and the
· said,witnesses (CIVIL CODE, Arts. 804-
806~.,
2. Holog;aph or Holographic Will
That which is entirely written, dated, and signed
by the hand of the testator himself (CIVIL CODE,
ArtEt19l::
NOTE: Nuncaptive wills - wills orally made. by the
testator in contemplation of death, and before
cqr;ppe~ent witness. Our new Civil Code does not
recognize the validity of nuncaptive wills. Art. 804
does not recognize oral wills (3 PARAS, .supra at
81).
OBJECTS OF FORMALITIES OF WILLS:
(CAG)
1. To flose the door against bad faith and fraud;
2. To 8void substitution of wills and testaments;
and
3. To §uarantee their truth and authenticity
(JURADO, Succession, supra at 52).
So when an interpretation already given assures
such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of testator's
will, must be disregarded (Herreras v. Gil, G.R. No.
L-'3362, March 1, 1951)
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COMMON FORMALITIES BETWEEN A will is not invalidated by the

HOLOGRAPHIC AND NOTARIAL WILLS misspelling of the testator's name in the
signature, where it is clear that the
1. Will must be in writing (CIVIL CODE, Art. testator intended to execute the
804). instrument by the signature affixed (DE
If the will is ordinary, it does not matter on what LEON, Succession, supra at 98).
material it is written. It may be written by hand or ii. Signature by Mark
typewritten, or printed from plates or type Any mark or combination of marks
(JURADO, Succession, supra at 53). placed on a will by the testator is a
sufficient compliance, even if at the time
Article 810 provides that in the case of of placing it, the testator knew how to
holographic wills, it must be written entirely in the write and is able to do so (JURADO,
handwriting of the testator himself. It is only in Succession, supra at 56).
the case of ordinary wills that whoever performs
the mechanical act of writing or drafting the will If the signature is only a mere cross, it is
becomes a matter of indifference ( Castaneda v. acceptable as a valid signature,
Alemany, G.R. No. 1439, March 19, 1904). provided it can be properly established
that it is the testator's usual signature or
2. Executed in a language or dialect known at least one of the ways by which he had
to the testator (CIVIL CODE, Art. 804). signed his name before (Leano v.
Testator's knowledge or understanding of the Leana, G.R. No. L-9150, March 31,
language/dialed need not be expressly stated 1915).
either in the body of the will or in the attestation
clause (JURADO, Succession, supra at 53). The requirement of the statute that the
will shall be "signed" is satisfied not only
NOTE: Donations mortis causa partake..ofthe nature the.customary written signature but also
of testamentary provisions ( CIVIL CODE, Art. 728) by the testator's or testatrix' thumbmark.
and as such, said deeds must be executed in Expert te~timony as to the identity of
accordance with the requisites on solemnities ofwills thumbmarks or fingerprints is of course
and testaments under Arts. 805 and' 806 ( Maglasang admissible. However, where thumb
v. Heirs of Cabatingan, G.R. Np. 131953; June 5, impressions are blurred and many of the
2002). characteristic marks far from clear, thus
rendering it difficult to trace the features
NOTARIAL OR ORDINARY. WILL .(CIVIL enumerated by experts as showing the
CODE, AR-T. 805): (SAM-PAA) identity or lack of identity of the
impressions, the court is justified in
1. .§ubscription refusing to accept the opinions of
The manual act by the testator a.nd his
9 lleged experts and in substituting its
instrumental witnesses of affixihg their signatury
own opinion that a distinct similarity in
to the instrument (JURADO, Succession, supra
some respects between the admittedly
at 55). ·
genuine thumbmark and the questioned
thumbmarks, is evident (Dolor v.
PURPOSES:
Diancin, G.R. No. L-33365, December
a. To identify the testator; and
20, 1930).
b. To authenticate the document (Id. at 55).
If writing a mark is a sufficient indication
Forms:
of an intention to make a will then writing
a. Subscription by Testator a portion of all of her name is accepted
i. Manner of Signing
as a clear indication of her intention. In
A sufficient signature to a will depends
this case the decedent used her first
largely on the custom of the time and
name "Tomasa" (Yap Tua v. Yap
place, the habit of the individual, and the
CaKuan, G.R. No. 6845, September 1,
circumstances of each particular case,
1914).
but it should be manifest that whatever
is used is actually intended as a
b. Signature by another
signature (Id. at 55).
Requisites: (TPEAW)
i. It is the testator's name that must have
NOTE: A complete signature is not
been written by the Ihird ·person;
essential to the validity of a will (Id. at
ii. The testator's name must have been
56).
written in his ~resence;
Rd&4#M83 \ 1

MEM:Q~Y AID
San Seda Uni..,.ersity College of Law - RGCT Bar Operations Conter

iii. The third person must have affixed the
testator's name at his gxpress direction;
iv. This fact should be stated in the
~ttestation clause; and
v. It should take place in the presence of.
the instrumental Witnesses (JURADO,
Succession, supra at 57).
NOTE: Neither the notary nor any of the
attesting witnesses can sign in behalf of the
testator (3 PARAS, supra at 89).
The testator need not be physically
incapacitated, to ask a third person to sign the
will for him, provided, that the fact of the signing
by the third person in his presence and under his
express direction, shall be stated in the
attestation clause (Garcia v. Lacuesta, G.R. No.
L-4067; November 29, 1951).
Place of signature (either by the testator or by
another): End of the will, otherwise, void
(JURADO, Succession, supra at 59).
End of Will
Refers to the logical end, which is -the point
where the testamentary dispositions terminate·
(3 TOLENTINO, supra at 70).
When Article 805 of the Civil Code reqllires the
testator to subscribe at the end of the will, it
necessarily refers to the logical end thereof,
which is where the last testamentary disposition
ends. In this case, the last page of the will does
not contain any testamentary disposition; it is but
a mere continuation of the ·Acknowledgment
(Mitra v. Sablan-Guevarra, G.R. No. 213994,
April 18, 2018).
c. The position of the signature is an internal
evidence of finality or completion of intent
(JURADO, Succession, supra at 59).
2. ~ttestation and Subscription
Attestation is the act of three (3) or more
credible witnesses of witnessing the execution
of the will in the presence of the testator and of
one another in order to see and take note
mentally that such will has been executed in
accordance with the requirements prescribed by
law. Strictly speaking, it is the act of the
witnesses and not that of the testator.
Subscription consists in the manual act of the
instrumental witnesses in affixing their
signatures to the instrument for the purpose of
identification (Id. at 59-60).
Pu,poses of Requiring Witness to Attest and
to Subscribe to a Will: {PIPA)
a. _Erotection of the tesiator from fraud and
deception;
b. !dentification of the instrument;
c. To render available _Eroof during probate
proceedings that the will has been executed
lfft;accordance with the · requirements
prescribed by law and that the instrument
offeredfor probate is authentic; and
d. The Ascertainment of the testamentary
capaqity of the testator (Id. at 60-61 ).
A'J"Tf;SJ,Al]QN V. SUBSCRIPTION

Example: If a will starts on the first page,

continues on the third page, but is concluded on
the second page, the latter is the logical end (3
PARAS, supra at 87).

NOTE: If the testator's first name appears,

without the surname, the will is valid (Yap Tua v. Purpose is to render Purpose is for
available proof during identification.
Yap Ca Kuan, G.R. No. 6845, September 1,
probate of will, not only
1914). The will remains valid even though the
of the authenticity of the
testator's name is misspelled, abbreviated, or is
will, but also of its due
indicated only by nickname, or by "Father" or
"Mother," or in an assumed name, provided the execution.
testator intended the same to be his signature (3
PARAS, supra at 87-88).
Attestation clause may Subscription must
PURPOSES: be placed at the alv,ays be at the logical
a. To show that the testamentary purpose beginning of the will. end of the will.
therein expressed is completed; Placing it at the end is
b. To prevent any opportunity for fraud or only for convenience.
interpolations between the written matter
and signature; and (Id. at 60).

Order of Signing
As long as the signing is done within the
presence of one another, it really does not
matter much whether the witnesses signed
ahead of or after the testator as long as the
signing is sufficiently contemporaneous (Id. at
60-61).
"In the presence"
The execution of a will cannot be legally effective
if the various participants signed on various days
or occasions and in various combinations of
those present (Anda/is v. Pulgueras, G.R. No.
39209, March 10, 1934).
While it may be true that the attestation clause
is indeed subscribed at the end thereof and at
the left margin of each page by the three,
attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said
witnesses affixed their respective signatures in
the presence of the testator and of each other
since, as petitioners correctly observed, the
presence of said signatures only establishes the
fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe
to the will in the presence of the testator and of
each other. The execution of a will is supposed
to be one act so that where the testator and the
witnesses sign on various days or occasions
and in various combinations, tne will cannot be
stamped with the imprimatur of effectivity
(Caiieda v. Court of Appeal:;;, G.R. No. 103554,
May 28, 1993).
The phrase does not necessarily require actually
seeing, but the possibility of seeing without any
physical obstruction. When a person merely has
his back turned, the signing is done in his
presence since he could have cast l)is eyes in
the proper direction (Jaboneta v. Gustilo, G.R.
No. 1641, ·January 19, 1906).
The attaching of signatures was not done "in the
presence" of the witness if his line of vision to
the testator and the other subscribing witnesses
was impeded by a curtain separating them at the
moment of inscription of each signature (Nera v.
Rimando, G.R. No. L-5971, February 27, 1911).
In case the testator is blind, the presence may
be complied with if the signing or action is within
the range of the other senses like hearing, touch,
etc., of the testator (3 PARAS, supra at 89).
Test of Presence
The true test of vision is not whether the testator
actually saw the witness sign, but whether he
might have seen him sign, considering his
mental and physical condition and position at the
SUCCESSION
Civil Law
time of the subscription (Jaboneta v. Gusti/a
et.al., G.R. No. 1641, January 19, 1906 supra).
It 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 mental and physical condition and position
with relation to each other at the moment of
inscription of each signature (Neyra v. Neyra,
C.A. No. 8075, March 25, 1946).
Number of Witnesses
The will must be attested and subscribed by 3 (?r
more credible witnesses ( CIVIL CODE, Art.
805). This requirement is r:vandatory and if less
than 3 witnesses attested and subscribed
thereto, the will is void (A/aud v. A/aud, G.R. No.
176943, October 17, 2008).
If the attestation clause does not indicate the
number of witnesses, but the will clearly shows
four signatures: that of the testator and of the 3
other persons, it is reasonable to conclude that
there are 3 witnesses to the will (Testate Estate
of _the Late Alipio Abada v. Abaja, GR No.
147145, January 31, 2005).
If the third witness is the notary public himself
before whom the will was supposed to have
been acknowlecjged, the requirements of
Articles 805 and 806 of the Civil Code are not
satisfied. The notary public before whom the will
was acknowledged cannot be considered as the
third instrumental · witness since he cannot
acknowledge before himself his having signed
the will. He cannot split his personality into two
so that one will appear before the other to
acknowledge his participation in the making of
the will (Cruz' v. Vil/asor, G.R. No. L-32213,
November 26, 1973).
3. Marginal Signatures
GENERAL RULE: Each and every page of the
will, except the last, shall be signed on the left
margin:
a. By the testator or the person requested by
him to write his name in the presence of the
witnesses; and
b. By the instrumental witnesses in the
presence of the testator and of one another
(CIVIL CODE, Art. 805).
There is a mandatory and directory part to this
requirement ( 1 RA BUYA, supra at 762 and 764):
a. Mandatory part-the signing on every page
by the testator or the person requested by
him to write his name in the witnesses'
presence and the signing on every page by
the instrumental witnesses in the presence
of the testator and of one another
C♦JPO \ I
MEM:Q~Y AID
San Reda Un!versrty College of law - RGC7 Bar Operations Center
b. Directory part- the place of signing, i.e. the
left margin; can also be on the right margin,
provided, that the will contained the
necessary signatures on each page,
whereby each page of the will was
authenticated and safeguarded against any
possible alteration (Avera v. Garcia, G.R.
No. 15566, September 14, 1921).
EXCl::PTIONS:
a. The last page need not be signed on the left
margin because. being the page where the
end of the will is, it contains the testator's
signature (1 RABUYA, supra at 764);
b. When the will consists of only one page; and
c. When the will consists of two pages, the first
page contains all the testamentary
dispositions and is signed at the bottom by
the testator and the witnesses, and the
second contains only the attestation clause
signed at the bottom by the witnesses. As
the attestation clause appertains only to the
witnesses and not to the testator, it need be
signed only by them (Abangan v. Abangan,
GR. No. 13431, November 12, 1919).
Failure to have the marginal signatures of the
testator and of the witnesses, when needed, is a
fatal defect that constitutes an obstacle of its
probate (In re: Will of Prieto, G.R. No. L-17761,
April 28, 1922).
The inadvertent failure of one witness to affix his
signature on one page of a testament, due to the
simultaneous lifting of two pages in the course
of signing, is not per se sufficient to justify denial
of probate (/casiano v. lcasiano, G.R. No. L-
18979, June 30, 1964).
NOTE: This case must be applied only to cases
with similar facts. In lcasiano v. lcasiano, the
failure of the witness to sign one page was
entirely through oversight, as shown by his own
testimony as well as by the original duplicate
copy of the will, which was submitted to the court
and which bore a complete set of signatures in
every page (lcasiano v. lcasiaho, G.R. No. L-
18979, June 30, 1964).
Page of the Will
The law refers expressly to "page" and not to
sheet or leaf or folio. A sheet has two pages, the
front and revers. If both pages of the sheet or
leaf are used, it is therefore necessary that both
front and reverse sides should bear the
signatures of the testator and of each of the
witnesses (3 TOLENTINO, supra at 85).
4. fage Numberings
All the pages of the will shall be numbered
correlatively in letters placed on the upper part
of each page (CIVIL CODE, Art. 805).
There is a mandatory and directory part to this
requirement:
a. Mandatory part - Pagination by means of a
conventional system.
b. Directory part - Pagination whict1 shc:1II be
numbered correlatively in letters placed Ufl
the upper part of each page. Thus, the
pages may be numbered by mere
alphabetical letters, or by Arabic Numerals,
or by any form of identification. If the paging
be placed in the lower part, the testament is
not void for this sole reason (1 RABUYA,
supra at 769).
This is not necessary when the will is written on
one sheet only (Abangan v. Abangan, G.R. No.
L-13431, November 12, 1919).
Substantial compliance with the statutory
requirement is sufficient (JURADO, Succession,
.supra at]3).
PURPOSES: (FIDS)
a. To guard againstEraud;
b. To prevent any Increase or decrease in the
pages;
c. To afford means of Q.etecting the loss of any
ofits.pagesi and
d. To· .fpt~tall any attempt to ~uppress or
substitute any of the pages (DE LEON,
Succession, supra at 119).
NOTE: The law says "page" not sheet (a sheet
has two pages, the front and the reverse sides.
If both are used, both must be paged) ( 3
PARAS, supra at 87-88).
5. Attestation Clause (AC)
Memorandum or record of facts wherein the
witnesses certify that the will has been executed
before them, and that it has been executed in
accordance with the formalities prescribed by
law (JURADO, Succession, supra at 74).
NOTE: It must be signed by the witnesses, not
by the testator (Id.).
PURPOSE: It is made for the purpose of
preserving in· a permanent form a record of the
facts that attended the execution of a particular
will, so that in case of failure of the memory of
the attesting witnesses, or other casualty, such
facts may still be proved (Cafleda v. CA, G.R.
No. 103554, May 28, 1993).

Contents ( CIVIL CODE, Art. 805): (SAN)
a. The Number of pages used
GENERAL RULE: The failure to state the
number of pages on which the will was
written in the attestation clause is a fatal flaw
(Azuela v. CA, G.R. no. 122880, April 12,
2006).
EXCEPTION: There is substantial
compliance with the requirement if the will
states elsewhere in it, how many pages it is
comprised of, such as when the
acknowledgement itself states the same
(Mitra v. Sablan-Guevarra G.R. No. 213994,
April 18, 2018, citing Taboada v. Rosal, G.R.
No. L-36033 November 5, 1982).
There is no substantial compliance with Art.
809 if there is a. discrepancy between the
number of pages stated in the
acknowledgment and the actual number of
pages of the will as it cannot be explained
by mere examination of the will .itself but
through the presentation of. evidence
aliunde (Lopez v. Lopez, G.R. No. 189984
(Resolution), November, 12, 2012).
But if the number of pages is not stated in
any part of the will, and the will does not
contain any notarial acknowledgment
wherein the number of p;3ges of the will
should be stated, the doctrine set forth in
Taboada v. Rosal is not applicable (Azuela
v. CA G.R. no. 122880, April!2, 2006).
PURPOSE OF THE RULE: To safeguard
against possible interpolation or omissi.on of
one or some of its pages and to prevent any
increase or decrease in the pages (Azuela
v. CA, G.R. no. 122880, April 12, 2006).
NOTE: When the attestation clause
erroneously states the number of pages of
the will, the Court held that the error was not
material since the pagination in letters was
a sufficient safeguard of the will's integrity
(Celada v. Avena, G.R. No. 145545, June
30, 2008).
b. The fact that the testator §igned the will and
every page thereof, or caused some other
person to write his name, under his express
direction, in the presence of the
instrumental witnesses; and
c. The fact that the witnesses witnessed and
signed the will and all the pages thereof in
the presence of the testator and of one
~nother.
SUCCESSION
Civil Law
NOTE:
i. The attestation clause is the affair of the
witnesses; therefore, it need not be
signed by the testator (Fernandez v.
Verge/ de Dias, G.R. No. L-21151,
February 25, 1924),
ii. The attestation clause need not be
written in a language or dialect known to
the testator nor to the attesting
witnesses since it does not form part of
the testamentary disposition (JURADO,
Succession, supra at 91).
NOTE: If the attestation clause is in a
language not known to the witnesses, it
shall be interpretect to them ( CIVIL
CODE, Art. 805).
iii. The witnesses must sign at the bottom
of the attestation clause.
..t-JOTE: If the page containing the
att~station clause· is signed by the
witnesses on the left-hand margin but
their signatures do not appear at the
6otton;i of the attestation clause, the will
is fatally defective because the same
cannot bEt considered to have been
validly attei,ted to by the instrumental
witnesses, ';as they failed to sign the
attestation clause (Azuela v. CA, G.R.
no. 122880, April 12, 2006).
The signafures on the left-hand corner
of every page signify, among others,
, that thec'witriesses are aware that the
page they are signing forms part of the
wilLOh the other hand, the signatures
to the attestation clause establish that
the witnesses are referring to the
statements contained in the attestation
clause itself (1 RABUYA, supra at 758).
iv. The fact that the attestation clause was
written on. a separate page has been
held to be a matter of "minor
importance" and apparently will not
affect the validity of the will ( Villaflor v.
Tobias, G.R. No. 27440, December 24,
1927).
v. An attestation clause is mandatory for
attested wills. It is separate and distinct
from the acknowledgment clause
(certification of acknowledgment).
These two cannot be merged (Echavez
v. Dozen Construction, G.R. No.
192916, October 11,2010).
e&fJl#,)(fj \ I
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vi. Absence of this clause will render the
will a nullity (JURADO, Succession,
supra at 74).
Effects of Defects or Imperfections in the
Attestation Clause
GENERAL RULE: The will shall be invalidated
if the defect of the attestation clause is
substantial in character. The defect is
substantial when it:
a. Goes into the very essence of the clause
itself; or
b. Consists in the omission of one, some, or all
of the essential facts which must be stated
in such clause, and such omission cannot
be cured by an examination of the will itself
(Id. at 76).
EXCEPTION: Doctrine of Liberal
Interpretation
Omissions or non-compliance with statutory
provisions as to form would not be fatal provided
that it can be established or deduced from an
examination of the will itself that all of the
statutory requirements have been complied with
(Id. at 83-84).
Requisites to avail of the Doctrine of Liberal
Interpretation:
a. Defects and imperfections must be in the
form of the attestation or in the language
used therein; · a. Jo sa,teguard the testators wishes long after
b. There must be no bad faith, forgery, fraud,
or undue and _improper pressure and
influence, in the execution of the attestation
clause; and
c. It must be proved that the will was in fact
executed and attested in substantial
compliance with all the requirements of Art.
805 (Id. at 78; CI\/IL CODE, Art. 809).
It may thus be stated that the rule, as it ~ow
stands, is that omissions which can be supplied
by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct
the allowance to probate of the will being
assailed. However, those omissions which
cannot be supplied, except by evidence aliunde,
would result in the invalidation of the attestation
clause and ultimately, of the wilt itself (Cafieda
v. CA, G.R. No. 103554, May 28, 1993).
The rule must be limited to disregarding those
defects that can be supplied by an examination
of the will itself:
a. Whether all the pages are consecutively
numbered;
r ~;. ¢' "~ ~ ', ,17 ; fr, ~_,
-~'·.··: _:··) :;: :30i}
.:,·:-'····_::·· / ·.-·,_·., '
b. Whether the signatures appear in each and
every page; whether the subscribing
witnesses are three; and
c. Whether the will was notarized (Caneda v.
CA. G.R. No. 103554, May 28, 1993).
All these are facts that the will can reveal, and
defects or even omissions concerning them in
the attestation clause can be scifely disregarded.
But the total number of pages, and whether all
persons required to sign did so in the presence
of each other must substantially appear in the
attestation clause, being the only check against
,perjury in the probate proceedings (Caiieda v.
CA, G.R. No. 103554, May 28, 1993).
6. Notarial Acknowledgment
Done before a notary public by the testator and
the instrumental witnesses (CIVIL CODE, Art.
·806).
Acknowledgment is the act of one who has
executed a deed in going before some
competent officer or court and declaring it to be
his act or deed. It involves an extra step
. t1npertaMn whereby the signatory actually
. declares to the notary public that the same is his
or her owri free act and deed (Lee v. Tambago,
A.G. Nq. 9281, February 12, 2008).
The acknbwledgment in a notarial will has a two-
fold purpose:
,,, h.it? dE)mi{::e,;11=3nd
b. To assure that his estate is administered in
the manner that he intends it to be done
(Lee v. Tambago, A.G. No. 5281, February
12, 2008).
I
A notarial will that is not acknowledged before a
notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and
sworn to before the notary public (Azuela v. CA,
G.R. No. 122880, April 12, 2006).
A will which contains a mere jurat and does not
contain an acknowledgment is fatally defective
because Art. 806 requires that the will be
"acknowledged" and not merely subscribed and
sworn to (Azuela v. CA, G.R. no. 122880, April
12, 2006).
The notary public must be duly commissioned
for the locality where the acknowledgment is
made. Otherwise, the notarization - and the will
- will be void. An acknowledgement taken
outside the territorial limits of the officer's
jurisdiction is void as if the person taking it were
wholly without official character (Guerrero v.
Bihis, G.R. No. 174144, April 17, 2007).
 SUCCESSION
Civil Law

The Civil Code does not require that the signing of the testator, three (3) witnesses, and notary
of the testator, witnesses and notary should be public, the Court held that the formal
accomplished in one single act (Javellana v. imperfections should be brushed aside when the
Ledesma, G.R. No. L-7179, June 39, 1955). spirit behind the law was served though the letter
was not (Alvarado v. GcJviola, G.R. No. 74695,
Affixing of documentary stamp is not required for September 14, 1993).
validity (Gabucan v. Manta, -G.R. No. L-51546,
January 28, 1980). NOTE: The facts required in Articles 807 and
808 are not required to be stated in the
The requirement in Art. 806 does not apply to attestation clause. The same may be proved by
holographic wills because the latter are not extrinsic evidence ( 1 RABUYA, supra at 789).
required to be witnessed ( 1 RABUYA, supra at
785). 3:. Witness to Notarial Wills
Requisites: (D-CRABS)
ADDITIONAL POINTERS ON a. Any person of .§ound mind and
FORMALITIES OF NOTARIAL OR b. Al the ~ge of eighteen (18) years or more;
c. Not §.!ind, deaf or dumb;
ORDINARY WILL
d. Able to Bead and write, may be a witness to
1. Date of Will the execution of a will mentioned in Article
NOT an essential part (3 TOLENTINO, supra at 805 of the Civil Code (CIVIL CODE, Art.
100). 820).
e. Qomiciled in the Philippines; and
REASON: It would still be dated· i~ its. n;ofarial f. hlas not been fonvicted by final judgment of
acknowledgment. falsification of a document, perjury, or false
testimony {CIVIL CODE, Art. 821).
Conflict between the dates appearing on the will
does not invalidate the docume11fbecause the NOTE: A witness need not know the contents of
law does not even require that a notarfal will be the will, and need\not be shown to have had a
executed and acknowledged.: on tbe same good standing in the community where he lives
occasion (Ortega v. Valmonte, <3.R. No. 157451, (JURADO, Succession, supra at 110).
December 16, 2005). · ·
The requirement that the witnesses must be
2. Additional Requiremeots, for. Special domiciled i,li the Philippines applies only if a
Cases · ·· · · Filipino citizen executes his will in the
a. Deaf or Deaf-Mute Testato~ Philippines (1 RABUYA, supra at 797).
i. Personal reading of the will; ,if able to do
so; or .. . Interested Witness
ii. If not possible, desigqation of two (2) A person attesting the execution of a will to
persons to read the , will ·and whom orto whose spouse, parent, or child, a
communicate to him, if) some devise.or legacy is given (CIVIL CODE, Art.823).
practicable manner, the contents
thereof (CIVIL CODE, Art. 807). Effects of being an interested Witness:
a. He shall be admitted as a witness; but
b. Blind Testator b. The devise or legacy, so far only as
Double-reading requirement: concerns him, his spouse, parent or child, or
i. First, by one of the subscribing any one claiming under any of them, shall
witnesses; and be void, unless there are three other
ii. Second, by the notary public before competent witnesses to such wit! (CIVIL
whom the will is acknowledged (CIVIL CODE, Art. 823).
CODE, Art. 808).
NOTE: The persons named in Art. 823 are
Art. 808 of the Civil Code applies not only to incapacitated to inherit but not incapacitated as
blind testators, but also to those who for one witnesses (3 PARAS, supra at 130).
reason or another are incapable of reading their
wills (Alvarado v. Gaviola, G.R. No. 74695, The disqualification is not limited to the devisee
September 14, 1993). or legatee but extends to one succeeding by will
(3 TOLENTINO, supra at 125). Those who are
In a case where the testator did not read the final incapable of succeeding by will includes, among
draft of the will, but the lawyer who drafted the others, any attesting witness to the execution of
document read the same aloud in the presence a will, the-spouse, parents, or children, or any
 &i6Pi&4 \ 1

MEM,,(~\RY Al D
San Beda University College of Law - RGCT Bar Operations Center

one claiming under such witness, spouse, FORMALITIES: (WDSL)

parents, or children (CIVIL CODE, Art. 1027,
1. Entirely Written by the Hand of the
par. 4).
Testator;
Effects of Insertions or Interpolations by Third
Credible Witness
Persons (3 TOLENTINO, supra at 111-112):
It means competent witness, that is, such
a. If made after the execution of the will
person as are not legally disqualified from
without the consent of the testator, such
testifying in courts of justice by reason of mental
insertion is considered as not written.
incapacity, interest, or the commission of
crimes, or other causes excluding them from
REASON: The validity of the will cannot be
testifying generally (JURADO, Succession,
defeated by the malice or caprice of third
supra at 111).
persons.
Creditor Witness
A mere charge on the estate of the testator for
b. If made after the execution of the will with
the payment of debts due at the time of the
the consent of the testator, the will remains
testator's death does not prevent his creditors
valid but the insertion is void.
from being competent witnesses to his will
(CIVIL CODE, Art. 824).
c. If made after the execution of the will, and
the insertion is validated by the testator by
NOTE: A person who is qualified to make a will
is not necessarily qualified to be a witness to the his signature thereon, the insertion
becomes part of the will and the will is void.
will of another (JURADO, Succession, supra at
113).
REASON: Non-compliance with the
requirement that it must be entirely written
Effect of Subsequent Incompetency
If the witnesses attesting the execution of a will by tl:ll:l hand of the testator.
' >>!
are competent at the time of attesting, their
d. lf;;made contemporaneous to the execution
becoming subsequently incompetent shall not
of tl)e';\ivill, the will is void.
prevent the allowance of the will (CIVIL CODE,
Art. 822).
REASON: Will is not entirely written by the
The competency of a witness to a will is to be ~and ;of th~ testator.
' .
determined as of the time of the execution of the
instrument, and not as of the time when the will 2. EntJt:~lyt ;J2,~teii by the Hand of the
is presented for probate (JURADO, Succession, Testator; • -
supra at 113). ·. · Date Format
,f}JJJf) "date" in a holographic will should include
HOLOGRAPHIC WILL itl:ie, ga,y, month, and year of its execution.
However, when there is no appearance of fraud
A holographic will is one entirely written, dated; and
bad faith, undue influence and pressure, and th~
signed by the hand of the testator himself>lt is
authenticity of the will is established, and the
subject to no other form, and may be made i,n or out
only issue is whether or not the date "FEB. 1961"
of the Philippines, and need not be witnessed (CIVIL
appearing on the will is a valid compliance with
CODE, Art. 810).
Art. 810, probate of the holugraphic will should
be allowed under the principle of substantial
The Doctrines of - Liberal Interpretation and
compliance (Roxas v. De Jesus, Jr., G.R. No. L-
Subs~antial Compliance, as applied to ordinary or
38338, January 28, 1985). This is an essential
notarial wills, cannot be applied to holographic wills
part of a holographic will.
(JURADO, Succession, supra at 94). ·
Reason for the Date Requirement: So that in
REASON: The law exacts literal compliance with the
case of a revision of the will, that of the later date
requirements of Article 81 O (Id.).
should be preferred as expressing truly the last
will and testament (3 PARAS, supra at 110).
PURPOSES OF STRICT COMPLIANCE:
1. Safeguard the authenticity of the will, and
NOTE: Failure or error to state the olace of
2. Deter or prevent any possible insertion or
execution will not invalidate the 'will (3
interpolation by others or any possible forgery
TOLENTINO, supra at 101).
(Id.).
The law does not specify a particular location
where the date should be placed in the will. The
 SUCCESSION
Civil Law

only requirements are that the date be in the will
itself and executed in the hand of the testator
(Labrador v. CA, G.R. No. 83843-44, April 5,
1990).
3. Entirely §.igned by the Hand of the
Testator;
GENERAL RULE: Art. 810 does NOT require
that the testator must sign the will with his full
signature.
it is a matter that may be established by proof
aliunde (JURADO, Succession, supra at 53).
But where a will is drawn up in the dialect of a
certain locality and it is established that the
testator was living in or was a resident of that
locality, there arises a presumption that the will
is drawn up in a language or dialect known to the
testator, in the absence of evidence to the
contrary (Id.).

NOTE: Signing by means of thumbprint is not Rules in Cases of Subsequent Dispositions

allowed because the law requires that the will be 1. The dispositions of the testator written below his
"signed by the hand of the testator" ( 1 RA BUYA, signature must be dated and signed by him in
supra at 791). · order to make them valid as testamentary
dispositions (CIVIL CODE, Art. 812)
EXCEPTION: In case of any insertion, 2. When a number of dispositions appearing in a
cancellation, erasure or alteration in a holographic will are signed without being dates,
holographic will, the testator must authenticate and the last disposition has a signature and a
the same by his FULL SIGNATURE (CIVIL date, such date validates the dispositions
CODE, Art. 814). preceding it, whatever be the time of prior
dispositions (CIVIL CODE, Art. 813).
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic will has not been noted
under his signature, the wlll is not thereby
invalidated as a whole, but at most only as Several dispositions Valid
respects the particular words erased, corrected, were signed but NOT
or interlined (Ka/aw v.' Re/ova, G.R. No. L- dated, and the last REASON: The date of
40207, September 28, 1984). disposition is signed the last disposition cures
and dated. · the defect (CIVIL CODE,
However, when as in this case, the holographic Art. 813).
Will in dispute had · qnly one . substantial
provision, which was altered by substituting the Several. dispositions Void
original heir with another, but which alteration were NOT signed and
did not carry the requisite of full authentication NOT dated, but the last EXCEPTION: They were
by the full signature of the testator, the effect . disposition is signed written on the same date
must be that the entire Will is voided or revoked and dated. and occasion as the
in
for the simple reason that nothin'g remains the latter disposition
Will after that which could remain valid. To state
that the Will as first written should oe given Several dispositions Void
efficacy is to disregard the seeming change of were NOT signed but
mind of the testatrix. But that change of mind can dated, and the last REASON: They are
neither be given effect bec:ause she failed to disposition is signed considered independent
authenticate it in the manner required by law by and dated. of the wiil.
affixing her full signature (Ka/aw v. Re/ova, G.R.
No. L-40207, September 28, 1984).
The last· disposition is Void
Location of the Signature signed but NOT dated.
At the end of the will. This is evident from Article REASON: Art. 810
812 (DE LEON, Succession, supra at 152). requires the holographic
will to be dated.
4. Executed in a !:anguage or Dialect (OE LEON, Succession, supra at 160).
known to the Testator.
There is no statutory requirement that the .NIOTE: If the testator fails to sign and date some of
testator's knowledge or understanding of the the dispositions, the result is that these dispositions
language or dialect in which the will is executed cannot be effectuated. Such failure, however, does
should be expressed either in the body of the will not render the whole testament void (Ajero v. CA,
itself or in the attestation clause. Consequently, G.R. No. 106720, September 15, 1994).
 ►$§4¢)@ \ I
MEM✓Q~Y AID
San Beda University Colege of Law - RGCT Ba, Operations Center
ADDITIONAL POINTERS
HOLOGRAPHIC WILL
1. Probate of Holographic Will
CODE, Art. 811)
GENERAL RULE: The original of the·
holographic will should be presented to .the
probate court for visual examination. The law,
c~nsiderin\:] the special nature of holographic
wills as well as the special requirements for their
probate, regards the document itself as material
proof of authenticity (JURADO, Succession,
supra at 98).
EXCEPTION: A photostatic or xerox copy of a
lost or destroyed holographic will may be
admitted. The authenticity of the handwriting of
the deceased can be determined by the probate
court, as comparison can be made with the
standard writings of the testator ( Gan v. Yap,
G.R. No. L-12190, August 30, 1958; Rode/as v.
Aranza, G.R. No. L-58509, December 7, 1982).
2. Witnesses (CIVIL CODE, Art. 811)
a. If- uncontested, it shall be necessary that at
least one (1) witness who knows the
handwriting and signature of the testator
explicitly declare that the will and signature
are in the handwriting of the testator.
b. If contested, at least three (3) of such
witnesses shall be required.
c: In the absence 9f any competent witness,
and if the court deems it necessary, expert
testimor,y may be resorted to.
NOTE: In one case, the Supreme Court held that
the provisions of Art. 811 are manrJatory. Thus,
the production of three witnesses, in· case the
will is contested, cannot be dis~nsed with
(Godoy v. Calugay, G.R. No. 123486, August
12, 1999).
The opposition was filed by a mere stranger who
had no personality to contest the wills. Thus, his
opposition thereto did not have the legal effect
of requiring the three witnesses (Rivera v. /AC,
G.R. No. 75005, February 15, 1990).
Matters to be Proved by the Testimony of the
Witness
1. He knows the handwriting and signature of the
testator;
2. The will is in the handwriting of the testator; and
3. The signature is in the handwriting of the testator
(CIVIL CODE, Art. 811).
Governing Law on Formalities
(Please refer to p. 268 for full discussion on
Governing Law on Formalities).
ON JOINT WILLS
A single testamentary instrument which contains the
(CIVIL wills of two or more persons, jointly executed by
them, either for their reciprocal benefit or for the
benefit of a third person (JURADO, Succession,
supra at 106).
Joint wills executed by Filipino citizens. are void
whether executed in the Philippines or abroad and
even though authorized by the laws of the country
where they may have been executed ( CIVIL CODE,
Arts. 818 and 819).
NOTE: The prohibition does not apply to joint wills
executed by aliens (CIVIL CODE, Art. 819).
Kinds:
1. Mutual Wills
- Executed pursuant to an agreement between
two or more persons to dispose of their property .
in a particular manner, each in consideration of
the other (JURADO, Succession, supra at 106).
2. Reciprocal Wills
. - The. . testators name each other as
· '.b~~fid~rtes under similar testamentary plans
(Id.).' . ,.
NOTE: Mutual or reciprocal wills are NOT prohibited
provided tt:iey .are contained in separate instruments.
The prohibition under Art. 818 is the execution of a.
joint wilLor a Will cbntained in the SAME instrument,
either fot'recJpro,c.aJpehefit or for the benefit of a third
person (Id}· · · : · ·
. ~~~SONS (3 PARAS, supra at 124):
.··. ~J·l~:!~~fyat~~~~~:t~~~~~ ~~~r~~~~t~;a~ ~~~i'.
3. May expose the testator to undue influence, and
may even induce one of the testators to kill the
other.
CODICIL AND
INCORPORATION BY
REFERENCE
(ARTS. 825-827)
CODICIL
A suppiement or addition to a wiil, made after the
execution of a will and annexed to be taken as part
thereof, by which any disposition made in the original
will is explained, added to, or altered (CIVIL CODE,
Art. 825) ..

It always refers to the original will. If there is entirely
no reference at all, then it is considered as the new
will. If the later instrument makes dispositions
independent of those in the original will, without
explaining or modifying such original will, then it is a
new will, not a codicil. A codicil is always related to
some prior will (3 TOLENTINO, supra at 126).
Its execution has the effect of republishing the will as
modified by the codicil (CIVIL CODE, Art. 836).
In order to operate as a republication of the will, it is
sufficient if the codicil refers to the will in such a way
as to leave no doubt as to the identity of that
instrument (JURADO, Succession, supra at 115).
To be effective, it shall be executed as in the case of
a will (CIVIL CODE, Art. 826). The form of a codicil
need not follow the form of the prior will to which it
relates. A notarial codicil can modify a holographic
will and a holographic codicil can modify <:1 notarial
will. What is important is that it is executed with all
the formalities of a will (DE LEON, Succession,
supra at 178).
In case of conflict, the codicil prevails, it being the
later expression of the testator's will (3 :PARAS,
supra at 132).
NOTE: A notarial and a holographic will may be
revoked by either a notarial or holographic codicil (Id.
at 133). A valid will can never be revoked, expressly
or impliedly, by an invalid codicil (Id.).
CODICIL V. SUBSEQUENT WILL
Does not, as a rule, If it provides for a full
revoke entirely the prior disposition of the
will. testator's estate, it may
revoke the whole prior
will by substituting a
new and last disposition
for the same.
SUCCESSION
Civil Law
A will and codicil thereto A prior will and a
being regarded as a subsequent will, being
single instrument, are to two separate wills, may
be construed together. be construed
independently of each
other.
(DE LEON, Succession, supra at 177).
INCORPORATION BY REFERENCE
The incorporation of an extrinsic document or paper
into a will by reference therein so as to become a
part thereof and probated as such (Id. At 178).
If a will, executed as required by the Civil Code,
incorporates into itself by reference any document or
paper, such document or paper shall not be
cdnside_red a part of the will unless the requisites for
a valid incorporation by reference are present (CIVIL
CODE, Art. 827).
Requisites for a Valid Incorporation by
Reference: (EDIS or SIDE)
·1 . The document or paper referred to in the will
must be in !;_xistence at the time of the execution
of the will;
:Z. The will must clearly Q.escribe and identify the
same, stating among other things the number of
pages thereof;
3; · It must be Jdentified by clear and satisfactory
proof as the document or paper referred to
therein; and
4. It must · be §.igned by the testator and the
witnesses on each and every page, except in
case of voluminous books of account or
inventories (CIVIL CODE, Art. 827).
IREASON FOR PROVISION
This is allowed only with respect to provisions in a
will that are not in the nature of testamentary
dispositions and also provisions which may be
incorporated to the will merely for convenience or
reference (DE LEON, Succession, supra at 179).
NOTE: The exception in the fourth requisite refers
only to the signing of all pages; while not every page
l1as to be signed, there must be a signature on at
least several pages (3 PARAS, supra at 134).
When, in a will, reference is made to an inventory of
the properties of the testator, which has thus been
made part of the wil( and the will has an attestation
clause that meets the requirements of the law, no
attestation clause is necessary for the said inventory
( Unson v. Abella, G.R. No. 17857, June 12, 1922).
 9!4M&·D \ 1
MEM:Q~Y AID
San Beoa University College of Low - RGCT Bar Opfl.rations Center
Provisions which are in the nature of testamentary
dispositions must be contained in the will itself.
Parol evidence may be admitted to prove the identity
of the document as incorporated (3 TOLENTINO.
supra at 127).
From the fact that Art. 827 (4) of the Civil Code
::;µeuk::; of "witnesses," it is reasonable to believe that
as a rule, only notarial wills can have this
incorporation by reference. However, it is submitted
that:
1. If a holographic will happens to have at least
three credible and qualified witnesses, there can
be a proper incorporation by reference; or
2. If a holographic will (with NO witnesses) refers
to a document entirely written, dated, and signed
in the handwriting of the testator, there can also
be a proper incorporation by reference (3
PARAS, supra at 135).
REVOCATION OF WILLS
AND TESTAMENTARY
DISPOSITION
(ARTS. 828-834)
REVOCATION
It is an act of the mind, terminating
capacity of the will to operate at the
testator, manifested by some outward
or sign, symbolic thereof (JURADO,
supra at 116).
A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this
right is void (CIVIL CODE, Art. 828).
After a will has been probated dufing the lifetime of
the testator, it does not necessarily mean that he
cannot alter or revoke the same (Palacios v.
Palacios, GR. No. L-12207, December 24, 1959).
NATURE AND EFFECT
REVOCATION
Upon revocation, the will or testamentary disposition
intended to be revoked ceases to exist and is
inoperative as if it has never been written. A will
being a unilateral disposition of property, acquires
binding force only at the death of the testator, it
follows that no present rights are conferred at the
time of its execution, and no title vests in the
beneficiary during the life of the testator (JURADO,
Succession, supra at 117).
NOTE: The recognition of an illegitimate child does
not lose its legal effect, even though the will wherein
it was made should be revoked ( CIVIL CODE, Art.
834).
GOVERNING LAWS FOR REVOCATION
1. If revocation is made in the Philippines -
Philippine Law
2. If revocation is made outside the Philippines
a. If testator is not domiciled in the Philippines:
i. Law of the place where the will was
made or
ii. Law of the place where the testator was
domiciled at the time of the revocation
(CIVIL CODE, Art. 829).
b. If testator domiciled in the Philippines
i. Philippine law - the Philippines being
his domicile; or
ii. Law of the place of revocation (CIVIL
CODE, Art. 17)
iii. Follow the law of the place where the
will was made (by analogy with the rules
on revocation where the testator is a
non-Philippine domiciliary) (BALANE,
Jottings and Jurisprudence in Civil Law
(Succession), (2016), p. 184
[hweinafter, BALANE, Succession]).
MODES OF REVOCATION: (LIO)
1. By Implication of !:aw (CIVIL CODE, Art.
830),(PU4-BALAT)
The kind of.reyocation produced by operation of
the potential law Wtfen:c~,uiain acts or events take place after
death of the a will hJs been made, rendering void or useless
or visible act either the whole will or certain testamentary
Succession, '· dispositions therein (3 PARAS, supra at 138).
a. Ereterition shall annul the institution of heir
(CIVIL CODE, Art. 854);
b. Act of !:!_nworthiness by an heir,
devisee/legatee revokes testamentary
provisions in his favor (CIVIL CODE, Art.
1032);
c. Judicial action for recovery of debt revokes
a legacy of crediUremission of debt (CIVIL
CODE, Arts. 935 and 936);
d. If both spouses of the subsequent marriage
in Art. 41 (Family Code) acted in §ad faith,
OF said marriage shall be void ab initio and
testamentary dispositions made by one in
favor of the other are revoked by operation
of law (FAMILY CODE, Art. 44);
e. ~lienation, trnnsformation, or loss of
bequeathed property revokes a legacy of
such property (CIVIL CODE, Art. 957);
f. When there is a decree of !,egal separation
(FAMILY CODE, Art. 63, Par. 4);

NOTE: In legal separation, a spouse may still
inlleril from Hie olller spouse, unless found
guilty of the legal grounds of legal
separation (FAMILY CODE, Art. 63, Par. 4).
g. Annulled or void ab initio marriages revoke
testamentary dispositions made by one
spouse in favor of the other (FAMILY CODE,
Art. 50 in relation to Art. 43, par. 5);
h. The Iermination of the subsequent
marriage in Art. 41 (Family Code) revokes
testamentary dispositions made by the
innocent spouse in favor of the guilty spouse
(FAMILY CODE, Art. 43 Par. 5).
2. By Subsequent !nstrument (CIVIL CODE,
Art. 830)
Requisites for a Valid Revocation by a
Subsequent Instrument (DE LEON,
Succession, supra at 184-185): (FACE)
a. The subsequent instrument must comply
with the formal requirements of a will; (Molo
v. Malo, G.R. No. L-253.8, September 21,
1951, citing Samson v. Navai, GR. No. L-
11823, February 11, 1918);
b. The subsequent instrument must be
Admitted to probate;
c. The testator must. possess testamentary
f.apacity; and · 3.
d. The subsequent instrument must either
contain an ~xpress revocatory clause or be
incompatible with . the. prior will ( CIVIL
CODE, Art. 831; DE LEON, Succession,
supra at 184-185).
i. Express - there is a revocatory clause
expressly revoking the previouswill or a
part thereof. It may be effected by:
(1) Subsequent will · A will may still be proved as lost or
(2) Codicil
If the revocation is partial, it will
have the effect of republishing the
will as of the date of the codicil with
respect to all parts not revoked. If
the revocation is total, there is no
republication (JURADO,
Succession, supra at 121).
(3) Non-testamentary writing executed
as in case of wills - does not contain
an affirmative disposition of the
property, thus it cannot impliedly
revoke a will as it cannot be said to
be inconsistent with the dispositions
contained in the will (Id. at 122).
In all of the three ways of express
revocation, the revocatory clause must
SUCCESSION
Civil Law
de81ly cH1Ll ur1111islakcilJly r11a11ifesl llie
intention of the testator to revoke the
previous will (Id. at 121).
An inva!id revoking will cannot revoke,
but a valid though ineffective will can
revoke (3 PARAS, supra at 146).
ii. Implied - when the provisions thereof
are partially or absolutely inconsistent
with those of the previous wills. May be
effected only by:
(1) Subsequent will
(2) Codicil
Subsequent wills which do not revoke the
previous ones in an express manner, annul
only such dispositions in the prior wills as
are inconsistent with or contrary to those
contained in the later wills (CIVIL CODE,
Art. 831).
Two separate and distinct wills may be
, probated if one does not revoke the other
and provided that the statutory requirements
relative to the execution of wills have been
complied with (Merza v. Porras, G.R. No. L-
4888, May25, 1953).
By .Qestruction pf the Will (CIVIL CODE,
Art. 830)
Requisites (DE LEON, Succession, supra at
185): (TITO-C)
a. Performed by the Iestator himself or by
some other person in his presence, and by
his express direction;
Effect of Unauthorized Destruction
destroyed. However, this is possible only if
tt:le will is attested; if the will is holographic,
it cannot be probated if it is lost, even if the
loss or destruction was unauthorized ( Gan
v. Yap, G.R. No. L-12190, August 30, 1958),
unless a copy survives.
Ratification of an unauthorized destruction
is however permissible, provided sufficient
proof of this is presented (3 PARAS, supra
at 140).
NOTE: If burned, torn, cancelled, or
obliterated by some other person, without
the express direction of the testator, the will
may still be established, and the estate
distributed in accordance therewith,
provided the following · are established:
(CDF)
i. Contents;
 1
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RGCT Bar Operation$ Center
ii. Due execution; and
iii. Fact of unauthorized destruction (3
TOLENTINO, supra at 138)
b. Testator must have_Iestamentary capacity
at the time of . performing the act of
destruction;
c. !ntent to revoke (animus revocandl)
The intention to revoke must appear clearly
and unequivocally. An act of destruction
which is done accidentally, by mistake, or as
a result of fraud, undue influence, does not
operate as a revocation (JURADO,
Succession, supra at 123).
The intention to revoke must concur with an
overt act, manifesting the intention. Neither
destruction without intention nor intention
without destruction would result to
revocation of the will (Id.).
d. The act must be any of the Qvert acts
specified;
It must be a mental process demonstrated
by some outward and visible sign
(JURADO, Succession, supra at 123-124).
e. It must be a fompleted act
The act is still deemed to be in the
subjective phase if the testator intends to do
a further act. · the faW!l of i:he will or upon any part thereof
Burning
There must be at least a burning of a part of the
paper on which the will is written, although a very
slight burn wilt suffice (JURADO, Succession,
supra at 126). · ·
It is sufficient if a small part of the instrument
itself be burned even though the entire writing
itself be left untouched (3 PARAS, supra at 140).
If the document itself is not burned, even
partially, but only the envelope in which it was
placed was burned, there is no revocation of the
will. But where the maker of the will threw it upon
the fire with the intent to revoke, and it was
burned through in three · places, this was
considered a revocation, although the writing
remained intact, and although it was rescued
and preserved without the knowledge of the
testator (3 TOLENTINO, supra at 135).
Tearing
A slight act of tearing is generally held sufficient;
although the greater the degree of tearing the
stronger is the presumption that the instrument
was torn with animus revocandi (JURADO,
Succession, supra at 126).
The act of tearing must be a COMPLETE ACT.
Otherwise, if the testator desists voluntarily or
through the persuasion of others before the act
of destruction could be consummated, the act of
revocation has not also been consummated.
Hence, it produces no effect (Id.).
Tearing of even the signature alone constitutes
revocation, provided the other requisites are
present. This is because the signature goes to
the very heart of the will (3 PARAS, supra at
142).
Humpty Dumpty Rule
Once a will has been torn and revoked it can no
longer be revived by putting the pieces together
(Pier 66 Co. v. Poulos, 542 So. 2d 377).
NOTE: The mere act of "crumpling": or the
removal of the "fastener" binding the pages of a
will does not constitute revocation, even though
there be animus revocandi. However, in Roxas
v. Roxas, 48 O.G. 2177, the court impliedly
allowed crumpling as one of the overt acts,
provided.tt)ere is animo revocandi (3 PARAS,
supra af 142).
Canc.elling .
Effected qy diagonal or horizontal lines, or criss-
crpsses, orUw word "cancelled", written upon
(JURADO, Succession, supra at 127-128).
• ,M,;1rks made upon a will by the testator are
. eff~ctive as a revocation by cancellation,
regardless of their depth, faintness, or other
characteristics, if they were placed there for the
purpose of canceling the will (Id.).
The cancellation need not render the will illegible
(Id.).
Obliterating
Effected by erasing or scraping off any word or
disposition, which the testator intends to revoke.
Obliteration renders the will illegible (Id.).
NOTE: Revocation by cancellation or
obliteration may be partial or total as opposed to
Revocation by Burning or Tearing which is
always total. The revocation is partial if it is
directed against a nonessential part of the wiii
and total if it is directed against an essential part
thereof (Id.).
Illustration: X, the testator, asked his friend Y
to get his will and burn it for him. Y then burned

the will in a separate room and returned with
only the ashes. Is there a valid revocation?
Answer: The revocation was not valid. It was ·
not done in the presence of the testator as
provided for by Article 830(3) of the Civil Code.
DOCTRINE OF PRESUMED
REVOCATION
In the absence of other evidence, it shall be
presumed that the testator destroyed the will with
animus revocandi:
1. Where the will cannot be found following the
death of the testator and it is shown that it was
in the testator's possession when last seen;
2. Where the will cannot be found following the
death of the testator and it is shown that the
testator had ready access to it; and
3. Where it is shown that the will was in the custody
of the testator after its execution, and
subsequently, it was found among the testator's
effects after his death in such state·cif mutilatipn,
cancellation or obliteration as · represents a
sufficient act of revocation within the meaning of
the applicable statute (Id. at 128-12[)).
The efficacy of the revocatory clause does not
depend on the testamentary dispositions of the
revoking will, unless the testator so provides.
Revocation is, generally speaking, an ·absolute
provision, independent of the accept$nce or
capacity of the new heirs (BALANE, Succession,
supra at 193-194). ··
Example: X executes a will, namirig A as his.
universal heir. Two years later, X executes a second
will revoking the first and naming .B as his universal
heir. X then dies and B renounces the inheritance.
The first will remains revoked (Id.).
DOCTRINE OF DEPENDENT RELATIVE
REVOCATION
If a testator revokes a will with a present intention of
making a new one immediately and as a substitute,
and the new will is not made, or if made, fails to take
effect for any reason, it will be presumed that the
testator preferred the old will than intestacy, and the
old one will be admitted to probate in the absence of
t1vide11Gt1 uvt11Gurning the pmsumption, provided its
contents can be ascertained (JURADO, Succession,
supra at 129).
Being merely a presumed intention, it docs not
prevail as against actual evidence of the testator's
intention (Id. at 130).
NOTE: Where the act of destruction is connected
with the making of another will so as to fairly raise
the inference that the testator meant the revocation
SUCCESSION
Civil Law
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 intended to be made as a substitute is
inoperative, the revocation fails and the original will
remain in full force ( Vda. De Malo v. Malo, G.R. No.
L-2538, September 21, 1951).
The earlier will can still be admitted to probate under
the principle of "dependent relative revocation". The
theory on which this principle is predicated is that the
testator did not intend to die intestate. And this
intention is clearly manifest where he executed two
wills on two different occasions (Vda. de Mola v.
Mola, G.R. No. L-2538, September 21, 1951).
REVOCATION BY MISTAKE
A revocation of a will based on a false cause or an
illegal cause is null and void (CIVIL CODE, Alt. 833).
The false or illegal cause must appear upon the face
of the will.
However, where the facts alleged by the testator
were peculiarly within his knowledge, or the testator
m_ust have known the. truth of the facts alleged by
him, it does not matterwhether they are true or not;
the revocation 1s absolute (::3 I ULc:N I /NO, supra at
142).
NOTE: The recognition of an illegitimate child does
not lose its legal effect, even though the will wherein
it was made should be revoked (CIVIL CODE, Art.
834). The revoked will is still an "authenticated
writing" under Art. 278.
Illustration: X instituted Y, his friend, as heir for the
free portion of his estate. X then revoked the will.
May Y spbsequently contest the will?
"I revoke the will for Y"
"I revoke the will for Y as he is already dead"
"I revoke the will .for Y because we are not
friends anymore"
Answer: Yes, but only in so far as reason "B" (or for
the reason that he is dead) for being untrue. In such
case, the revocation is null and void, and will not take
effect.
 eawun ' 1
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REPUBLICATION AND
REVIVAL OF WILLS
(ARTS. 835-837)
REPUBLICATION
1t
---------------
is an act of the testator whereby he reproduces in
a subsequent will the dispositions contained in a
previous will which is void as to its form or executes
a codicil to his will (JURADO, Succession, supra at
132).
KINDS:
1. Express or Republication by Re-execution
{CIVIL CODE, Art. 835)
If the testator reproduces in a subsequent will
dispositions contained in a previous one which
is void as to its form. The purpose of
republication is to cure the will of its formal
defects.
2. Constructive or Republication by Reference
(CIVIL CODE, Art. 836)
If the testator for some reason or another
executes a codicil to his will.
NOTE: Art. 836 must be considered as the general
rule and Art. 835 as the exception. Reproduction in
the codicil is required only when the original will is
void as to its form; in all other cases, reference to the
original will suffice to republish it through the codicil.
Thus, a codicil may republish and validate a will
which was originally void for want of testamentary
capacity or on account of undue influence upon the
testator (3 TOLENTINO, supra at 144).
Illustration: X made a will in 2010 but only two
witnesses were present. In 2018, he modified the will
by a codicil. If he dies, should the will be allowed?
Answer: No. The 1985 will was void as to its form
because it only has two witnesses and therefore Art.
835 should apply. The testator must reproduce in a
subsequent will the dispositions contained in the
1985 will. He cannot merely use a codicil.
NOTE: The word "form" in Art. 837 refers to those
covered by Art. 805 like defect in the number of
witnesses, lack of or fatal defect in the attestation,
lack of acknowledgement etc., but not to vitiated
consent or to lack of testamentary capacity (3
PARAS, supra at 152).
EFFECTS OF REPUBLICATION BY
VIRTUE OF A CODICIL:
1. Codicil revives the previous will (DE LEON,
Succession, supra at 197); and
2. The old will is republished as of the date of the
codicil, and makes it effective, as it were, from
the new and later date (3 PARAS, supra at 210).
3. A will republished by a codicil is governed by a
statute enacted,subsequent to the execution of
the will, but which was operative wh1.c11 the codicil
was executed (Id.).
REVIVAL
Restoration to validity .of a previously revoked will by
operation of law (JURADO. Succession, supra at
133).
REPUBLICATION V. REVIVAL
(Id. at 13:f). ,
EXA1\.'le,LE~J1fi~EVIVAL
1. While"' bmissfon of a compulsory heir in the
institution of heirs annuls the institution, still if the
omitted heir dies ahead of the testator, the
.initltµtion is revived, without prejudice to the
right of representation (CIVIL CODE, Art. 854).
2. If after making a will, the testator makes c1
second will impliedly revoking the first, the
revocation of the second will revives the first will
as implied from Art. 837 (3 PARAS, supra at
153).
KINDS:
1. Express Revocation of the First Will
If after making a will, the testator makes a
second will expressly revoking the first, the
revocation of the second will does not revive the
first will, which can be revived only by another
will or codicil (CIVIL CODE, Art. 837).
2. Implied Revocation of the First Will
Where there is merely an inconsistency between
two wills, but there is no revocatory clause. upon
destruction of the second will, the first is
automatically revived, regardless of the
intention of the testator, provided that the first

will has been preserved undestroyed (JURADO,
Succession, supra at 133).
Illustration: Suppose, however, that instead of
an express revocatory clause, the dispositions
found in the second will are merely
INCONSISTENT with those found in the first -
shall the express revocation of the second will
by a third will or a codicil result in the revival of
the first will?
Answer: The Code does not provide for the
effect of the revocation of the second will in case
the second will merely impliedly revoked the first
will (Id.).
NOTE: If the revoking will be disallowed
because it is not valid, it cannot produce the
effect of annulling the previous will ( Samson v.
Naval, G.R. No. 11823; February 11, 1918).
Illustration: Assuming that Will No. 1 was '
expressly revoked by Will No. 2,Will No. 2 W?S
subsequently revoked by Will No. 3.What is the
effect of the revocation of Will No. 2 if Will No. 3
contains a revocatory clause but no
testamentary disposition and how'will the estate
be distributed? . .
Answer: The estate w6utd be distributed as if
the decedent died intestate. A will (Will No. 1)
expressly revoked by a 2 nd will (Will No. 2)
cannot be revived by the revocation of the will
(Will No. 3) revoking i.t (Will No. 2). (CIVIL
CODE, Arts. 837 in relaf;on to Arts. 830, Par. 2
and 960, par. 1).
PRINCIPLE OF INSTANTER
When there is an express revocation of the first will
by the second will, the third will cann6t revive the
first will. Express revocation is always final• and
executory.
The revoking clause in the second will is not
testamentary in character, but operates to revoke
the prior will upon the execution of the will
containing it; hence, the revocation of the second
will does not revive the first will which has already
become a nullity (3 TOLENTINO, supra at 144-
145).
SUCCESSION
Civil Law
ALLOWANCE AND
DISALLOWANCEOF
WILLS
(ARTS. 838-839)
PROBATE
A special proceeding mandatorily required for the
purpose of establishing the validity of a will. The
procedure to be followed is that which is provided for
in the New Rules of Court (JURADO, supra at 134-
,'35).
NOTE: Probate is one thing; the validity of the
testamentary provision is another. The first decides
the execution of the document and the testamentary
capacity of the testator; the second deals with
descent and distribution ( Sumilang v. Ramagosa,
G.R..No .. L-23135, December 26, 1967).
WHEN PROBATE IS COMMENCED
1. Ante Morie111; during the lifetime of the
testator
- The testator hin,self may, during his lifetime,
petition the court having jurisdiction for the
alloy,ance of hi!:i will (CIVIL CODE, Art. 838).
NpTE: Aftei a will has been probated during the
lifetime of the tE':lstator, it does not necessarily
me11.n thaJ he cannot alter or revoke the same
before his deatt1 (Ma/oles II v. De los Reyes,
G.R. Nos. 129505 & 133359, January 31, 2000).
2. • Post Mortem; after the death of the
testator·
- By any person interested in the estate.
NOTE: Formal validity is the only legal issue in
probate of a will (DE LEON, Succession, supra at
200).
It is not necessary that the original of the will be
attached to the petition [for probate]. That the
annexing of the original will to the petition is not a
jurisdictional requirement is clearly evident in
S,:Jction 1, Rule 76 of the Rules of Court which allows
the filing of a petition for. probate by the person
named therein regardless of whether or not he is in
possession of the will, or the same is lost or
dElstroyed (Heirs of Fran v. Salas, G.R. No. 53546,
June 25, 1992).
If the holographic will has been lost or destroyed and
no .other copy is available, the will cannot be
probated because the best and only evidence is the
handwriting of the testator in said will. However, a
 ~fEM~QllY AID
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photostatic copy or xerox copy of the holographic will
m;:iy be allowed becauso comparison can be made
with the standard writings of the testator(ln Re:
Bonilla v. Aranza, G.R. No. L-58509, December 7,
1982).
NECESSITY OF PROBATE
-1. The law expressly requires it. No will shall pass
either real or personal property unless it is
proved and allowed in accordance with the
Rules of Court (CIVIL CODE, Art. 838). Even if
only one heir has been instituted, there must still
be the judicial order of adjudication (Lopez v.
Gonzaga, G.R. No. L-18788, January 31, 1964).
2. Probate is a proceeding in rem and therefore
cannot be dispensed with or substituted by any
other proceeding, judicial or extrajudicial without
offending public policy (JURADO, Succession,
supra at 135).
3. The right of a person to dispose of his property
by virtue of a will may be rendered nugatory (In
the matter of the Testate Estate of the late
Agustin Del Valle, G. R. No. L-11609, September ·
24, 1959); and
4. Because absent legatees and devises, or such
of them as may have no knowledge of the will,
could be cheated of their inheritance thru the
conclusion of some of the heirs who might agree
to the partition of the estate among themselves
to the exclusion of others (In the matter of the
Testate Estate of the late Agustin Del Vafle, G.R.
No. L-11609, September 24, 1959) ..
VENUE:
1. Resident citizen or alien
- RTC in the province in which he resides at the
time of his death.
2. Non-resident citizen or alien
- RTC in which his estate is located (RULES OF
COURT, Rule 73, Sec. 1).
Residence
Actual or physical place of abode of the deceased as
distinguished from his legal residence or domicile
(Fule v. CA, G.R. no. L-40502, November 29, 1976).
NOTE: The first court taking cognizance of the
settlement of the estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts
(RULES OF COURT, Rule 73, Sec.1).
IMPRESCRIPTIBILITY OF PROBATE
The statute of limitations is not applicable to probate
of wills (JURADO, Succession, supra at 137).
RATIONALE: Probate proceedings are not
established in the interest of thP. surviving heirs, but
primarily for the protection of the expressed wishes
of the testator (Id).
It is true that the rights of the parties should not be
left hanging in uncertainty for periods in excess of
the maximum period of ten (10) years allowed by
law, but the remedy is for the other interested person
either:
1. To petition for the production of the will and for
its probate (Id.);
2. To inflict upon the guilty party the penalties
prescribed by Rule 75 of the Rules of Court (Id.);
or
3. To declare the unworthiness of the heir under
Art. 1032 of the Civil Code for concealing or
suppressing the will ( Guevara _v. Guevara, G.R.
No. L-5405, January 31, 1956).
The will and the codicil may or may not be probated
simultaneously.
One who has or can have no interest 1n succeeding
a decedent cannot oppose the probate of his alleged
will (Butiong v. Surigao Consolidated Mining, G.R.
No: L;-13938, ..July 31, 1968).
. ··, ~\ .·, '1 . •
ESrOPPEt NOT APPLICABLE TO
PROBATE '.PROCEEDINGS
~------
The rule of estoppel does not apply to probate
proceedi11gs ,for they are invested with public
interest, and If. estoppels would be applied, the
asc::ertaln'D'i~11fqfJfle truth may be blocked (Alsua-
Betts v. CodrlofAppea/s, G.R. No. L-46430, July 30,
1979).
EFf;f::C.T 0F ALLOWANCE OF WILL
1
A judgment or decree of a court with jurisdiction to
probate a will is:
1. Conclusive as to the validity of the will;
NOTE: Especially the testamentary capacity
and due execution of the will (3 PARAS, supra
at 164).
2. Not subject to collateral attack, but stands as
final, if not modified, set aside, or revoked by a
direct proceeding, or reversed on appeal to a
higher court; and
3. Conclusive to the whole world (JURADO,
Succession, supra at 142).
NOTE: Formal notice is an idle ceremony where the
adverse party had actual knowledge. ·
Fraud as a ground for relief must be based on
extrinsic fraud.
Where part of the estate is not distributed, recourse
is not to re-open probate proceedings, but motion for

execuli011 01 action for reconveyance (Heirs of tho
Late Jesus Fran v. Salas, GR. No. L-53546, June
25, 1992).
INSTANCES WHEN ALLOWANCE MAY
BE SET ASIDE
GENERAL RULE: Since a proceeding for the
probate of a will is essentially one in rem, a judgment
allowing a will shall be conclusive as to its due
execution (JURADO, Succession, supra at 144).
EXCEPTIONS: (ARSA)
1. By means of an ~ppeal (CIVIL CODE, Art. 838
par. 4); · bEi gained. On the contrary, this litigation would be
2. By means of a petition for Relief from judgment
by reason of fraud, accident, mistake, or
excusable negligence (RULES OF COURT,
Rule 38, Sec. 2);
3. By means of a petition to §,et aside the judgment
by reason of lack of jurisdiction or lack of
procedural due process; or
4. By means of an action to ~nnul judgment by
reason of extrinsic or collateral fraud (JURADO,
Succession, supra at 144).
SCOPE OF PROBATE PROCEEDINGS
GENERAL RULE: In probate proceedings, the
probate court cannot inquire into the intrinsic validity
of testamentary provisions. The Qnly questions that
may be determined by the probate court are the
following: (ICE)
1. !dentity of the will (whether the will presented is ·
the last will and testament of the testator);
2. Testamentary fapacity of the testator at the
time of the execution of the will; and
3. Due Execution of the will (whether there was
compliance with the requisites and solemnities
prescribed by law (Id. at 138-139).
NOTE: The probate or administration court may
decide prima facie the ownership of the property, but
such determination is not final an·d is without
prejudice to the right of interested parties to ventilate
the question of ownership in a proper action (Teng
. v. Ting, G.R. No. 184237, September 21, 2016).
The [probate} court had jurisdiction to act in the
intestate proceedings with the caveat that, due to its
limited jurisdiction, it could resolve questions of title
only provisionally. It is hornbook doctrine that "in a
special proceeding for the probate of a will, the
question of ownership is an extraneous matter which
the probate court cannot resolve with
finality (Sanchez v. Court of Appeals, G.R. No.
108947, September 29, 1997).
EXCEPTION: Practical considerations
In Reyes v. Court of Appeals (GR. No. 12099,
October 30, 1997), the Supreme Court held that,
SUCCESSION
Civil Law
when the defect of the will is apparnnt on its face and
the probate of the will may become a useless
ceremony if it is intrinsically invalid. The intrinsic
validity of a will may be passed upon because
"prnctical considerations" demanded it as when
there is preterition of heirs or the testamentary
provisions are of doubtful legality. Where the parties
agree that the intrinsic validity be first determined,
the probate court may also do so.
In Nuguid v. Nuguid (G.R. No. L-23445, June 23,
1966), the Supreme Court held that, if the case was
to be remanded for probate of the will, nothing will
protracted. And for aught that appears in the record,
in the event of probate or if the court rejects the will,
probability exists that the case will come up once
anain before us on the same issue of the· intrinsic
validity or nullity of the will - thus resulting to a waste
of time, effort, expense, plus added anxiety.
In Nepomuceno v. CA (G.R. No. L-62952, October
9, 1985), the Court ruled that "the court can inquire
as to the intrinsic validity of the will because there
was an express statement that the beneficiary was
a mistress. In Article Ill of the disp\,lted Will, the
testator stated that respondent was his legal wife
from whom he had b~en estranged "for so many
years." In Article IV, he stated that he had been living
as man and wife with the petitioner since 1952.
There is no question.about the fact of a prior existing
marriage when the testator ~xecuted his Will. There
is also no dispute thatthe petitioner and Mr. Jugo
lived together in an ostensible marital relationship for
22 years until his death.
Criminal action will not lie against the forger of a will
which had been duly admitted to probate by a court
of competent jurisdiction (Mercado v. Santos, GR.
No. 45629, September 22, 1938).
The fact that the will has been allowed without
opposition and the order allowing the same has
become final and executory is not a bar to the
presentation of a codicil provided it complies with all
t'ne formalities for executing a will. It is not
necessary that the will and codicil be probated
together as the codicil may be concealed by an
interested party. They may be probated one after the
other (Macam v. Gatmaitan, G.R. No. 40445, August
·/7, 1934).
The Probate Court may pass upon the title to a
property, but such determination is provisional, not
conclusive, and is subject to the final decision in a
separate action to resolve title ( Valero Vda. de
Rodriguez vs. Court of Appeals, GR. No. L-39532,
July 20, 1979).
 EiUM \ 1

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GROUNDS FOR DISALLOWANCE OF A depriving the latter of a reasonable freedom of

WILL: (F 2 UMIS) choice (CIVIL CODE, Art. 1337).
1. Formalitie-s-re~q-u.,...ir-ed~bc-y----:-la_w_ have not been
Fair arguments, persuasion, appeal to emotions,
complied with;
and entreaties which, without fraud or deceit or
2. Will was executed through Eorce or under
actual coercion, compulsion or restraint do not
duress, or the influence of fear, or threats;
constitute undue influence sufficient to invalidate a
3. Will was procured by !:!_ndue and improper
will (Barreto v. Reyes, GR. No. L-5830, January 31,
pressure and influence on the part of the
1956).
benefici3ry or of some other person;
4. Testator acted by _Mistake or did not intend that
To be sufficient to avoid a will, the influence exerted
the instrument he signed should be his will at the
must be of a kind that so overpowers and subjugates
time of affixing his signature thereto;
the mind of the testator as to destroy his free agency
5. Testator was Insane, or otherwise mentally
and make him express the will of another rather than
incapable of making a will, at the time of its
his own (Pascual v. De la Cruz, GR. No. L-24819,
execution; and
May 30, 1969).
6. §ignature of the testator was procured by fraud
(CIVIL CODE, Art. 839).
The contention that a will was obtained by undue
influence or improper pressure cannot be sustained
NOTE: The list is exclusive (Ajero v. CA, G.R. No.
on mere conjecture or mere suspicion, as it is not
106720 September 15, 1994).
enough that there was an opportunity or a possibility
to exercise undue influence, or that it might have
If any of the above grounds for disallowance is
been exercised (Pascual v. De la Cruz, G.R. No. L-
proved, the will shall be set aside as void. Even if the
24819, May 30, 1969).
grounds for disallowance is that the testator was not
of sound mind or below 18 at the time of the
Allegations Qf fraud and undue influence cannot co-
execution of the will, the will shall be void and not
exisfbecau'se they mutually oppose and exclude
merely voidable ( 1 RAB UYA, supra at 820).
each other that their joining as grounds for opposing
probate shows absence of definite evidence against
NOTE: Article 834 of the Civil Code which provides
the validity of the will (/casiano v. /casiano, G.R. No.
that the recognition of an illegitimate c_hild does not
L-18979, June 30, 1964}.
lose its legal effect, even though the will wherein it
was made should be revoked - shall likewise apply
to a disallowed will. REVOCATION V. DISALLOWANCE

Violence - there is violence when in order to wrest

consent, serious or irresistible force is employed
upon the testator (CIVIL CODE, Art. 1335).

Intimidation - when the testator is compelled by a

reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon
the person or property of his spouse, descendants
or ascendants, to execute the will (CIVIL CODE, Art.
1335).

Mistake -pertains to "Mistakes of Execution" which

may either be: .
1. A mistake as to identity or character of the May be partial or total. Always total except:
instrument which he signed; or when the ground of
2. A mistake as to the contents of the will itself fraud or influence for
(JURADO, Succession, supra at 158). exampfe affects only
certain portions of the
Fraud - if by misrepresentation and deception the will.
testator is led into making a will different from that he
would have made but for the misrepresentation and
deception (Id. at 157). Take place during the Disallowance is usually
lifetime of the testator. invoked after the
Undue Influence - when a person takes improper testator's death.
advantage of his power over the will of another,
(DE7-EON, Succession, supra at 232).

RATIFICATION
----~----------------~
1. Ratification is not possible
- With respect to a will which does not comply
with the formalities prescribed by law (CIVIL
CODE, Ari. 839 pars. 1-2; JURADO,
Succession, supra at 158). This is because a
void will cannot be ratified.
2. Ratification is possible
- With respect to a will which was executed
through violence, intimidation, undue influence,
fraud or mistake (CIVIL CODE, Ari. 839 pars. 3-
6 (Id.).
INSTITUTION OF HEIRS
(ARTS. 840-856)
INSTITUTION
An act by virtue of which a testator designates in his
will the person or persons who are to succee_d him in
his property and transmissible rights aod obligations
(CIVIL CODE, Ari. 840). .
NOTE: A child already conceived at the time of the
death of the decedent is .capable of succeeding
provided it be born later under the conditions
prescribed in Article 41 (CIVIL CODE, Ari. 1025,
par.2).
For civil purposes, the fetus is:considered born if ihs
alive at the time it is completely delivered from the
mother's womb. However, if thefotus had an intra-
uterine life of less than seven months, if is not
deemed born if it dies within twenty-four hours·,after
its complete delivery from the maternal Womb (QIVIL
CODE, Art. 41). ·.
FUNDAMENTAL BASIS OF THE LAW OF
TESTAMENT ARY SUCCESSION
The doctrine that the will of the testator, freely .
expressed in his last will and testament, is, as a
general rule, the supreme law which governs the
succession (JURADO, Succession, supra at 159).
ORDER OF PREFERENCE: (ISRAI)
1. !nstitution of heir (CIVIL CODE, Art. 840);
2. §.ubstitution of heir (CIVIL CODE, Art. 857);
3. Right of Representation (CIVIL CODE, Art. 970);
4. Right of ~ccretion (CIVIL CODE, Art. 1015); and
5. !ntestacy {CIVIL CODE, Art. 960)
SUCCESSION
Civil Law
REQUISITES FOR A VALID
IMSTITUTION:
1. The will must be extrinsically valid, meaning:
a. The testator must be capacitated;
b. The formalities must be observed;
c. There must be no vitiated consent; ·
d. The will must have been duly probated; and
e. The will must have been the personal act of
the testator.
2. The institution must be intrinsically valid,
meaning:
a. The legitime must not be impaired;
b. The heir must be certain or ascertainable;
and
c. There should be no preterition.
3. The institution must be effective, meaning:
a. There must be no predeceased heir;
b. There must be no repudiation by the heir;
and
c.. There_ must be no incapacity of the heir
(~ PARAS, supra at 197).
LACK OF INSTITUTION DOES NOT
INVALIDATE· A WILL
A will is valid, even though:
1. It does not contain an institution of an heir;
2. The institution does not comprise the entire
estate; or ·
3. The heir instituted does not accept the
inheritance or is incapacitated to succeed ( CIVIL
CODE, Art. 841).
The testamentary dispositions made in accordance
with .the law shall be complied with and the
remainder of the estate shall pass to the legal heirs
· (CIVIL CODE, Art. 841). In other words, there is
mixed succession.
FREEDOM OF DISPOSITION (CIVIL
CODE, ART. 842):
1. If the testator has no compulsory heirs, his
freedom of disposition is absolute in character.
The whole estate is disposable.
NOTE: The testator must still respect the
restriction imposed by special laws (Arayata v.
Joya, G.R. No. 28067; March 10, 1928).
2. If the testator has compulsory heirs, his freedom
of disposition shall extend only to the disposable
free portion of his estate, but not to the legal
portion or legitime (JURADO, Succession, supra
at 162).
REASON: Under our system of compl!llsory
succession, there is always a portion of the
testator's estate known as the legitime which is
reserved by operation of law for the benefit of certain
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heirs who are therefore called compulsory heirs, and
over which the testator as a general rule can have
no testamentary control (Id. at p. 161 ).
RESTRICTIONS ON DISPOSITION:
1. The estate of the testator shall be liable for the
latter's oblig 9tions; and
2. The testator cannot dispose of or encumber the
legitime of the compulsory heirs (DE LEON,
Succession, suµ,a c1l 235).
FORMS OF INSTITUTION:
The testator shall designate the heir by his name and
surname. However, this form is not mandatory. The
designation may be made in any other form, as long
as there will be no doubt as to the identity of the
heir/s instituted (CIVIL CODE, Art. 843).
Dispositions in favor of an unknown person (persona
incierta) shall be void, unless by some event or
circumstances his identity becomes certain (CIVIL
CODE, Art. 845).
NOTE: A persona incierta is one who is not
determined or individualized, thus making it
impossible to know who is meant by the decedent ( 3
TOLENTINO, supra at 176).
An "Unknown Person" means one who cannot be
identified from the will; not one who is a stranger to
the testator (Id.).
The institution of an unknown pBi:son will still be void.
even if by some future event he can be d,etermined
when the determination of the heir is delegated by
the testator to another. It is void under Art. 785 of the
Civil Code (3 TOLENTINO, supra at 177).
A disposition in favor of a definite class or group of
persons shall be valid ( CIVIL CODl=, Art. 845) . .
SPECIAL KINDS OF
INSTITUTIONS
1. Poor in General ( CIVIL CODE, Art. 1030)
2. Relatives of the Testator (CIVIL CODE, Art. 959)
3. A Person and his Children ( CIVIL CODE, Art.
849)
4. Brothers and Sisters of the Full and Half-Blood
(CIVIL CODE, Art. 848)
5. Institution of descendants and relatives of a
legatee
NOTE: The rule of nearest excludes the farther will
not apply here. Therefore, all the descendants and
relatives will inherit per capita (Belen v. BPI, G.R.
No. L-14474; October 31, 1960).
TEST TO DETERMINE THE VALIDITY OF
INSTITUTION
The proper test in order to determine the validity of
an institution of heir is the possibility of finally
ascertaining the identity of the instituted heir either
by intrinsic or extrinsic evidence (JURADO, supra at
163).
The test is specifically applicable to the following
cases:
1. If the name and surname of the instituted heir
has been omitted by the testator (CIVIL CODE,
Art. 843);
2. If there has been an error with respect to the
name, surname, or circumstances of the
instituted heirs (CIVIL CODE, Art. 844);
3. If the name, surname, and circumstances of the
instituted heir are the same as those of other
persons (CIVIL CODE, Art. 844); and
4. If an unknown or uncertain person has been
instituted. (CIVIL CODE, Art. 845).
NOTE: If the doubt as to who is instituted cannot be
resolved, then it is the same as if the testator has not
expressed h.is will (3 TOLENTINO, supra at 173).
PRESUMPTIONS ON INSTITUTION OF
HEIRS: (EIS)
1. Presumption of !;quality
When heirs were instituted without designation
of st:iares, they are deemed to inherit in equal
part~ (CIVIL,. CO[)E, Art. 846).
. ' ~ ,
NOTE: This applies only when all of the heirs are
of the same class or juridical condition. The
·. ;::.proper interpretation is that: if the testator has no
. . compulsory heirs, apply the provision literally;
however, if he has compulsory heirs, first satisfy
their .legitime, then apply the rule with respect to
the disposable free portion (JURADO,
Succession, supra at 165-166).
CLASS
Illustration: X stated in his will: "I give A, B, and
C as my heirs, my entire estate." The net value
of the estate is P120,000. How much is each
entitled?
Answer: A, B, and C shall equally divide the
P120,000. Hence, each shall be entitled to
P40,000 (CIVIL CODE, Art. 846).
2. Presumption of !ndividuality
When the testator institutes some heirs
individually and others collectively, those
collectively designated shall be considered as
individually instituted, unless it clearly appears
that the intention of the testator was otherwise
(CIVIL CODE, Art. 847).
 1
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Illustration: Testator said in his will: "I hereby
give my entire estate to A and Band the children
of C (D and E)." The net value of the estate is
P120,000. How much will each be entitled?
Answer: A, B, D, and E shall be entitled to
P30,00D each (CIVIL CODE, Art. 847).
3. Presumption of §imultaneity
When the testator calls to the succession a
person and his children, they are all deemed to
have been instituted simultaneously and not
successively (CIVIL CODE, Art. 849).
NOTE: "His children" refers not to the children
of the testator but to the children of the person
instituted as an heir (3 PARAS, supra at 210).
Illustration: Testator said in his will: ''I hereby
give my entire estate to C and his children, Q.
and E. The net value of the estate is Pt20,000.
How much will each be entitled?
Answer: C, D, and E shall each get p40;000
(CIVIL CODE, Art. 849). , .
INSTITUTION OF
SISTERS
In case some of full blood and others of half-blood:
1. Testate Succession
The inheritance shall be distributecj •equally,
unless a different intentioh appears (CIVIL
CODE, Art. 848). . .
2. Intestate Succession . .
Brothers and sisters of the full blood shall be
entitled to a share double that ofthe, brothers
and sisters of the half-blood (CIVIL CODE, Art..
1006). .
INSTITUTION BASED ON A'• FA,l.SE
CAUSE (CIVIL CODE, ART. 850)
GENERAL RULE: The statement of a false cause
for the institution of an heir shall be considered as
NOT written.
Illustration: "I hereby institute my student X as my
heir for having topped the bar examination of 2018."
If X was not the top-notcher, would he still inherit?
Answer: Yes, because the false cause or reason is
considered as not written.
REASON FOR THE LAW: The real cause is the
testator's liberality, the mention of the bar topping
being merely incidental, for even if had X topped the
bar, the testator would not have been bound to
reward him, were it not for the provision in the will.
SUCCESSION
Civil Law
EXCEPTION: When it appears from the will that the
testator would not have made the institution if he had
known the falsity of such cause (CIVIL CODE, Art.
860).
REQUISITES FOR THE ANNULMENT OF
INSTITUTION OF HEIRS: (SF 2 )
1. Cause of institution of the heirs must be §tated
in the will;
2. Cause must be shown to be .Ealse; and
3. It must appear from the Eace of the will that the
testator would not have made the institution had
he known the falsity of the cause (Austria v.
Reyes, G.R. No. L-23079, February 27, 1970).
INSTITUTION IN ALIQUOT PARTS:
1.. Rule if the entire inheritance is not
covered:
a. Testator has no intention to make heirs as
sole heirs- mixed succession (CIVIL CODE,
Art 851).
Example:
A= 2!5;'8=1/5; C= 1/5
' Tfie remainder of 115 shall pass to the legal
BROTHERS AND heirs.
b. Testator intends to make the heirs as sole
heirs- each :part shall be increased
proportionately '(CIVIL CODE, Art. 852).
It is, therefore, evident that the rule stated in
. Art. 852 constitutes an EXCEPTION to the
. rule stated it!the second paragraph of Art.
851. It enunciates the principle that when
there is a conflict between the intention of
'the testator and his mathematical
~ornp\Jtation, the former shall prevail
• (JUF?ADO, Succession, supra at 171).
2: · Rule if the parts together exceed the
inheritance
Each part shall be reduced proportionately.
(CIVIL CODE, Art. 853.)
Formula of Share:
(Aggregate Amount of the Estate x Amount of
Share)+ Total Amount of Share
ILLUSTRATION OF INSTITUTION OF
t-lEIRS UNDER ARTS. 852 AND 853
1. Testator X stated in his will, "I institute A and B
as my heir. A to½ and B to¼ of my estate. The
net value of the estate of Xis P120,000. How will
the estate be distributed, assuming that A and B
were intended to be the sole heirs of the whole
estate. (Article 852)
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First step: Compute the aggregate share of all Hence:

heirs (according lo the will):
A =60T - 12T =48T
A=½ of 120T = 60T B = 30T - 6T = 24T
B = ¼ of 120T = 30T C = 60T - 12T = 48T
TOTAL 90T TOTAL 120T

Second step: Compute the remaining free PRETERITION

portion: Omission in the testator's will of one, some, or all of
the compulsory heirs in the direct line, whether
Net estate = 120T living at the time of the execution of the will or born
Share (will) = (90T) after the death of the testator (CIVIL CODE, Art.
TOTAL 30T 854).

Third step: Distribute proportionately among the It is essential that the omission of the compulsory
heirs: heir must be complete and total in character so that
he receives nothing from the testator· at all.
A= 60T x 30T = 20 I Consequently, if the testator leaves any property to
90T the heir who is alleged to have been omitted by any
title whatsoever, there can be no preterition
B= 30T x 30T = 10T (JURADO, Succession, supra at 177).
90T
Requisites: (CTS) .
Hence: 1. The heir omitted must be a f_ompulsory heir in
the direct line, such as:
A= 60T + 20T·= 80T · -a., Legitim,ate children and descendants (LCD),
B = 30T +10T = 40T · \.vitl'h;espect to their legitimate parents and
TOTAL 120T ascefi,q13nts (LPA);
b. LPA, with respect to their LCD;
2. Testator X stated in his will, "I will give A½ of my c. 111$gitim~te children (IC);
estate, B ¼ and C ½. The net value of the estate d. Father aric;l mother of IC; and
of X is P120,000. How will the estate be e. Adop~ed child (AC).
distributed? (Article 853)
2. The· 6il'iiJsic1kii'iust be complete and Iotal in
First step: Compute the aggregate share of all character (that the omitted heir does not and has
heirs (according to the will): .not received anything at all from the testator by
whatsoever); and
A=½ of 120T = 60T
B = ¼ of 120T = 30T 3. The compulsory heir omitted must §urvive the
C = ½ of 120T = 60T testator (JURADO, Succession, supra at 174).
TOTAL 150T
Second step: Compute the excess: NOTE: The grandson born one year after the
decedent's death has no capacity to succeed,
Net estate = 120T because, at the time of the latter's death,· the
Share (will) = (150T) grandson was not yet born, nor was he even
EXCESS (30T) conceived (CIVIL CODE, Arts. 40 and 41).
Third step: Deduct the excess proportionately The law considers as preterition the omission of
among the heirs: a compulsory heir in the direct line, whether
living at the time of the execution of the will or
A= 60T x 30T =(12T) born after the death of the testator or those born
150T after the execution of the will and before the
death of the testator so long as they are alive at
B= 30T x 30T =(6T) the time of the death of the testator (DE LEON,
150T Succession, supra at 251).
C= 60T x 30T =(12T) There is NO Total Omission when:
150T 1. A devise/legacy has been given to the heir by
the testator;
 SUCCESSION
Civil Law

2. A donation Inter vivos hcis bee, 1 µreviously given
to the heir by the testator; or
3. Anything is left from the inheritance which the
heir may get by way of intestacy (DE LEON,
Succession, supra at 248-249).
preterition and when there is no preterition (3
PARAS, supra at 224).
PRETERITION V. DISINHERITANCE

NOTE: The remedy of the affected heir in these

circumstances is the completion of legitime
under Art. 906 of the Civil Code, in case the
value of the property received is less than the
value of the legitime (JURADO, Succession,
supra at 177).

Effects:
1. Preterition annuls the institution of heir;

NOTE: Preterition does not annul the institution

of heir ifthe omitted compulsory heir should die
before the testator. The institution shall be
effectual, without prejudice to the right of
representation (CIVIL CODE, Art. 854, par. 2).
2. The devises and legacies are valid insofar as
they are not inofficious (CIVIL CODE, Art. 854,
par. 1);
3. Intestate succession ensues (Id; 3 PARAS,
supra at 221-222).

Where a one-sentence will. institµtes the The omitted compulsory If disinheritance is valid,
petitioner as the sole, universal heir and preterits heirgets his share from the compulsory heir is
the parents of the testatrix, and it contains no the entire esti'lte, i.e., merely restored to his
specific legacies or bequests, such 1,miversal not only his share of the legitime, and
institution of petitioner, by itself, is voicj (Nuguid legitime but also of the testamentary
v. Nuguid, G.R. No. L-23445, June 23, 1966). free portion not dispositions which are
disposed of by way of inofficious are reduced.
NOTE: Omission of the surviving spouse (SS) does devises and_ legacies.
not constitute preterition. SS is not a compulsory heir
in the direct line. Therefore, the only effect of her
omission is a partial annulment of the institution of
heirs to the extent that her legitime is prejudiced; in Compulsory heir in the Compulsory heir may
other words, SS is still entitled to her legitime (DE direct line is omitted. be disinherited though
LEON, Succession, supra at 250). not in the direct line.
(DE LEON, Succession, supra at 254-255).
Omission of the adopted child in the testator's will
constitutes preterition since he is by legal fiction Illustration: A, B and C are the legitimate children
considered a compulsory heir in the direct line. This of X. When X executed his will, he instituted as heir
is clear from the provisions of Arts. 979 and 984 to his entire estate A, B and his friend F. He also
which speak of the share of the adopted child in legal gave G a legacy of 30T. The value of the net estate
or intestate succession (JURADO, supra at 176). iB 120T. (a) Is there preterition? (b) What is the effect
of preterition on the institution of heirs? (c) What
REASON: Adopted child has the same rights as that about the legacy given to G? {d) How will the estate
of a legitimate child (R.A. 8552, Sec. 18). be distributed?

NOTE: The share of the compulsory heir omitted in Answer:

a will must first be taken from the part of the estate
not disposed of by the will, if any; if that is not
sufficient, so much as may be necessary must be
taken proportionally from the shares of the other
heirs given to them by will (CIVIL CODE, Art. 855).
This article can apply both to cases when there is
1 . · There is preterition because C was not
mentioned in the will, nor was he given anything.
2. The institution of F will be annulled.
3. The legacy given to G is effective pecause it can
be contained within the free portion. In this case,
the free portion is (½ of 120T) 60T. The legacy
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given to G in the amount of 30T can be Step 2: Reduction of the heirs' shares.
contained therein.
4. The estate will be distributed as follows: Formula:
Voluntary share x Amount to be reduced .
Aggregate amount of voluntary share

A= (10,000 X 10,000)/ 70,000 = 1,428.57

F= (60,000 X 10,000)/ 70,000 = 8, 571.43
A 20,000 10,000 30,000
Therefore:
B 20,000 10,000 30,000

C 20,000 10,000 30,000

G 30,000 30,000 A 30,000 -1,428.57 28, 571.43

F Institution is annulled B 12,000 +8,000 20,000

Total 60,000 60,000 120,000 C +20,000 20,000

F 60,000 -8,571.43 51,428.57

Illustration: Testator has three (3) legitimate·
children, A, 8, and C. In his will, he provided: "I
hereby give¼ of my estate to A; 1/10 to B; and ½ of
my estate to my friend F. The net value of the estate
is P120T. (a) Is there preterition? {b) How should the
estate be distributed?
Answer:
1. There is no preterition because there is still a
· portion of the estate from which the. share of C
may be taken from.
2. The estate shall be distributed as follows:
Under Art. 8.55: "the share of a child or descendant
omitted in a will must first be taken from th~ part of
the estate not disposed of by the will, if any; if that is
not sufficient, so much as may be necessary must
be taken proportionally from the shares of the other
compulsory heirs," hence:
Step 1: Determination of the amount to be
reduced.
A 20,000 10,000
B 20,000
C 20,000
F 60,000
Total per 60,000 70,000
type of
share
130,000-120,000 = 10,000 (Amountto be reduced)
SURVIVAL OF OMITTED HEIR
It is also an essential condition that the compulsory
heir who is omitted in the testator's will should
survive the testator (JURADO, Succession, supra at
180) . . ·
If the Omittei:l Compulsory Heir Dies Before the
Testator
Concurring views
According to the second paragraph of Art. 854, the
institution sha,II be effectual, but without prejudice to
the rigi)LbfJgpresentation when it properly takes
place. Rene$;,< : When there is a surviving
representative of the deceased .compulsory heir who
has.been omitted in testator's will, such as a child,
.. the •effE;ict is that such child shall succeed to the
' legitiffie\which would have gone to the heir omitted
(JURADO, Succession, supra at 180).
If a compulsory heir who has been preterited dies
before the testator, it is the same as if there had been
no preterition. However, the right to representation
should not be lost sight of. If the preterited heir has
30,000 legitimate children and descendants entitled to
represent him, and they have been also left out of
20,000 the will, the institution shall be annulled just the
same, even if the preterited heir dies before the
20,000 testator (3 TOLENTINO, supra at 190).
60,000
EFFECTS OF PREDECEASE OR
130,000 INCAPACITY
1. Voluntary Heir: Transmits no right to his heirs.
2. Compulsory Heir: Transmits to his
representatives his right to the legitime but not
to the free portion ( CIVIL CODE, Art. 856).

EFFECT OF REPUDIATION
Whether voluntary or compulsory, the heir who
repudiates his inheritance cannot transmit any right
to his own heirs (CIVIL CODE, Art. 856).
NOTE: The rule is absolute.
In case of predecease, incapacity or repudiation, the
vacancy is filled up either by substitution,
representation, accretion, or intestate succession
(JURADO, Succession, supra at 187).
Illustration: Z has an estate amounting to
P500,000. X and Y are legitimate children of Z, while
A is the child of X. Z then instituted X and Y as his
heirs.
1. If X predeceased Z, how will the estate be
distributed?
2. If X repudiated his inheritance, how will the
estate be distributed?
3. In the same case as (1 ), what if A is an adopted
child?
Answer:
1. A would only be entitled to the amount of
P125,000 (or the amount of the legitime of X
from Z) by right of representation, Y on'the other
hand shall receive the amount of P375,000
(P125,000 (Y's legitime) and P250,000 (from the
free portion)) (in accordance with Articles 856
and 972 of the CIVIL CODE).
2. Y would inherit the whole P500,000 from Z. X
having repudiated his sharn may not be
represented (CIVIL CODE, Art.977).
3. A would not inherit from Z even by right of
representation. The relationship (by legal fiction)
between A and X does not extend to Z. Thus, Y
would inherit P500, 000 from Z.
SUBSTITUTION OF
HEIRS
(ARTS. 857-870)
SUBSTITUTION
It is the appointment of another heir so that he may
enter into the inheritance in default of or 3ub3cqucnt
to the heir originally instituted (CIVIL CODE, Art.
857).
There may also be substitution of legatees and
devisees (3 PARAS, supra at 228).
SUCCESSION
Civil Law
GENERAL LIMITATION
If the heir for whom a substitute is appointed is a
compulsory heir, the rule is that the substitution
cannot affect the legitime of such heir (JURADO,
Succession, supra at 189).
PURPOSES:
-
1. To avoid intestate succession;
2. To prevent the descent of the estate to those
persons to whom the testator does not want to
succeed him in his property; and
3. To give tl1e testator greater freedom to dispose
of his property (3 PARAS, supra at 229).
If there is no statement of the case or cases to which
the substitution refers, the presumption is that it shall
comprise all of the three (CIVIL CODE, Art. 859).
If the testator specifies the particular case when the
substitution shall take place, it is clear that it cannot
take place for any other cause not specified by the
testator. When however, he does not specify any of
these causes, but orders the substitution in general
terms, all of the three causes are deemed included,
i.e., any ofthe three instances may be a cause for
substitution (3 TOLENTINO, supra at 205).
Illustration: X said in his will "I hereby institute A as
heir and.Bas substitute in case A predeceased me.
A did not die, but was incapacitated, can B inherit?
P,nswer: No, since it was expressly stated that the
substitution shall tak(:l place only in case A
predeceased X.
EFFECT OF SUBSTITUTION
GENERAL RULE: The substitute shall not only take
over the share that would have passed to the
instituted tieir, but he shall be subject to the same
charges and conditions imposed upon such
instituted heir (CIVIL CODE, Art. 862).
REASON: We presume that the testator intended
the substitute to stand on ·the same footing as the
original heir (3 PARAS, supra at 238).
EXCEPTIONS: (EP)
1. When the testator has gxpressly provided the
contrary; and
2. When the charges or conditions are fersonally
r1ppli1:r1l1h-i 111ily l11 Iii!-! li!-!ir ir1slil11l!-!d (,/1/RAnO,
Succession,' supra at 193).
SOME INSTANCES WHEN THE
SUBSTITUTION IS RENDERED
INEFFECTIVE:
1. When the substitute predeceases the testator;
2. When the substitute is incapacitated;
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3. When the substitute renounces the inheritance; Answer:

4. When the institution of heir is annulled (e.g., Formula:
preterition ); Share of heir x Amount to be shared
5. When the institution or the substitution is Aggregate amount of institution
revoked by the testator; and
6. When a will is void or disallowed or revoked (3 A =½ of 600T = 300T
PARAS, supra at 233). B = ¼ of 600T = 150T
C = ¼ of 600T = 1 SOT
KINDS OF SUBSTITUTION:
A= 300T x 1SOT = 100T
1. Simple or Common or Vulgar (CIVIL
4SOT
CODE, Art. 859, par. 1)
That which takes place when the testator
C= 1SOT x 150T = SOT
designates one or more persons to substitute
4SOT
the heir/s instituted in case such heir/s should
die before him, or should not wish to accept the
inheritance, or should be incapacitated to accept
the inheritance.

2. Brief or Compendious (CIVIL CODE, Art. A 300T 100T 400T

860)
C 1SOT
Some commentators make a distinction
between brief and compendious, viz: Total
a. Brief - there are 2 or more persons
designated by the testator to substitute for
only one heir.
b. Compendious - one heir is designated to
take the place of two or more heirs.
1he majority of commentators, however, make
no such distinction, and certainly the law uses
the terms interchangeably.
If one of the two is preterited, renounced or
incapacitated, the inheritance accrues to the
original heir and not to the substitute UNLESS
the testator provides otherwise. Substitution will
take place only if all the original heirs are
disqualified (BALANE, Succession; suprEJ af
294).
SOT 200T
4S0T 150T 600T
4. Fideicommissary or Indirect
Substitution
SustitUcicin fideicomisoria; That which takes
place · when the fiduciary or first heir
instituted is entrusted with the obligation to
preserve and transmit to a second heir the
whole or part of the inheritance provided
.such substitution does not go beyond one
· d~re~ftornthe heir originally instituted, and
provided further, that the fiduciary or first
heir and the second heir are living at the
time of the death of the testator (CIVIL
.. J::QDE, Arts. 863-865).
fidlcicomissary inhermi from the Testator

Example: X makes the following provision in his

8
will: "I institute A and B to 1/3 of my estate and
nominate C as their substitute." If A
predeceases B, the 1/3 portion, upon X's death -----'l' elDUCIARY ----'l
goes to B; there is no substitution by C. one
Substitution occurs only if both A and B are degree
apart
disqualified.

3. Reciprocal (CIVIL CODE, Art. 861) Distinction from simple substitution

Sustitucion reciproca; When 2 or more
persons are not only instituted as heirs, but are
also designated mutually as substitute for each
other.
Illustration: X instituted A to ½ of his estate, B
to ¼ of his estate and C to the remaining ¼. X
designated all of them as reciprocal substitutes
of each other. B predeceased X. The valued of
the estate is 600T. Distribute.
In simple substitution only one inherits; in
fideicommissary, both heirs inherit the property
or right to it simultaneously, although the
enjoyment and possession are successive (3
PARAS, supra at 239).
Requisites of Fideicommissary Substitution:
(ESO)
a. There must be a first heir (fiduciary)
primarily called to the gnjoyment of the
estate.

He is recognized as an instituted heir, and
not a mere administrator of the property.
The first heir is indeed almost like a
usufructuary, with the right to enjoy the
property. Thus, like a usufructuary, he
cannot alienate the property. But unlike a
usufructuary, he is not required to furnish a
bond. Also, unlike a usufructuary, he is
entitled to a refund of useful improvements
(3 PARAS, supra at 242)
Pending the transmission or delivery, he
(fiduciary) possesses the beneficial
ownership of the property, although the
naked ownership is vested in the
fideicommissary (JURADO, Succession,
supra at 201 ).
Unless the testator provides otherwise, the ..
following are the deductions allowed: · ·
i. Legitimate expenses;
ii. Legitimate credits; and
iii. Legitimate improvements (DE. LEON,
Succession, supra a(279); .
. . . ,obvioysly followed the interpretation of the
b. There must be_ a"· ~econd heir
(fideicommissary) t9 wherry the property is
transmitted by the firstheir.
He is a sort of naked owner. Upon
transmission to him of the property, full
ownership is consolidated in hirrr (3_PARAS,
supra at 244).
The second heir inh~rits not rrom the first
heir but from the testator ·(Perez·. v.
Garchitorena, GR. No. t--:31703,.Fe/;Jruary.
13, 1930). As such, he shall 13cquire.a' right
to the succession from the time of. the
testator's death, even though he' (second
heir) should die before the fiduciary. His"
right shall pass to his heirs (CIVIL CODE,
Alt. 866). . b. Qualified - this requisite is governed by Art.
Said second heir must be capacitated to
succeed not the first heir but the testator ( 3
PARAS, supra at 244).
c. An Qbligation clearly and expressly
imposed by the testator (fideicomitente)
upon such first heir to preserve the estate
and to transmit it to the second heir.
The obligation to preserve and transmit
must be given clearly and expressly, either
by giving the substitution this name of
"fideicommissary substitution," or by
imposing upon the first heir the absolute
obligation to deliver the property to a second
SUCCESSION
Civil Law
heir (CIVIL CODE, Ar. 867, par 1). If the
obligation is· conditional, there is no
fideicommissa y substitution (3 PARAS,
supra at 242).
If a mere sug\ 1estion, advice, or request is
made instead of an obligation, there is no
fideicommissary substitution. In such case,
there will be a simple institution of the first
heir, and the second heir gets nothing (3
PARAS, supra at 242).
Without the obligation clearly imposing .upon
the first heir the preservation of the property
and its transmission to the second heir,
there is no fideicommissary substitution
(Rabadi//a v. CA, G.R. No. 113725, June 29,
2000).
The 1'1 and_2 nd heir must be only one degree
apart (CIVIL CODE, Art. 863)
By providing that the substitution shall not
go beyond one degree "from the heir
brigfhally instituted", the present Code has
word,"degreei',as generation. The Code thus
clearly: indicates that the second heir must
~e relat~d to arjd be one generation from the
first heir'.,(Ramiroz v. Vda. De Ramirez, G.R.
No. L-27952,.t=ebruary, 15, 1982).
Both the fiduciaty and fideicommissary must
· 'be living (or at' least conceived) at the time
of the death of the testator ( CIVIL CODE,
Art. . 863).
. Limi_tati'cms of. l=ideicommissary Substitution:
(LOBE) •
1. · F,iduciary and fideicommissary must be biving at
thetime of the death of the testator;
a. Living - this requisite is defined in Art. 40-41
of the Civil Code
1024-1034 of the Civil Code
2. Substitution must NOT go beyond Qne degree
from the heir originally instituted;
2 Views as to the meaning of "one degree"
a. Traditional view (degree of relationship)
- When the law says that the substitution
must not go beyond one degree from the
heir originally instituted, what is meant is
that the fideicommissary substitute must not
be beyond one degree of relationship from
the fiduciary heir. Consequently, only the
cfilild or parent of the latter can be appointed
as fideicommissary heir.
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b. Modern view (designation or
transmission/ llamamiento) - When the
law says that the substitution must not go
beyond one degree from the heir originally
instituted, what is meant is that the
substitution must not extend beyond one
degree of designation from the heir originally
instituted. Consequently, any person,
whether natural or juridical, or any entity not
disqualified by law to inherit from the testator
can be appointed as fideicomissary heir
(JURADO, Succession, supra at 197-198).
By providing that the substitution shall not
go beyond one degree "from the heir
originally instrtuted", the present Code has
obviously followed the interpretation of the
word "degree" as generation. The Code thus
clearly indicates that the second heir must
be related to and be one generation from the
first heir (Ramirez v. Vda. De Ramirez, G. R.
No. L-27952, February, 15, 1982).
One degree means one generation (3
PARAS, supra at 244).
A fideicommissary substitution is void if the
first heir is not related in the 1"1 degree to the
second heir (Ramirez v. Vda. De Ramirez,
supra). · 1. · No. Thea law requires that both the fiduciary and
3. Substitution must not ~urden the legltime of
compulsory heirs; and
The legitime is expressly reserved .for the
compulsory heirs (CIVIL CODE, Art. 886).
4. Substitution must be made !;xpressly (JURADO,
Succession, supra at 197):
a. By giving it the name of a fideicommissary
substitution; or
b. By imposing upon the fiduciary the absolute
obligation to preserve and to 'deliver the
property to the fideicommissary.
1. Who has a right over the house and lot?
2. What if H and I clairn their legitime alleging that
the house and lot belongs to their father's
estate?
Answer:
1. J and K. Upon the death of the testator A, G
acquired a right to succession even though he
predeceased F, the fiduciary. The right of the
second heirs shall pass to his heirs (CIVIL
CODE, Art..866). J and K being the heirs of G
are entitled to the house and lot.
2. H and I cannot claim their right to legitime over
the house and lot because they do not form part
of the estate of F (their father), the latter being a
fiduciary who merely has usufructuary rights
over the subject property. It is G
(fideicommissary) who holds naked ownership
of the house and lot.
Illustration: T instituted his friend A as fiduciary and
Bas fideicommissary. A has 2 sons, Band C. B also
has 2 sons, D and E. B died in 2015, while T died in
2020.
1. Is there a valid fideicommissary substitution?
~f<\f¥jll,;,:,}ttt from T?
Answer: , .,
fideico.mmissary must be living at the time of the
testatpr's,death (CIVIL CODE, Art. 863). Here,
B, .the fideic,ommissary, predeceased . the
te{>t~tor,_: ;,•····.,co' :,,, ,
2. Yesrr,,I,h~;'•'i;u)llity of the fideicommissary
substitution does not prejudice the validity of the
institution of the heirs first designated; the
'· '.'://hc!,yicommissary clause shall simply be
'f,.,,iJonsidered as not written (CIVIL CODE, Art.
868).
A

Time When Inheritance Shall be Transmitted to

the Fideicomissary
1. Time chosen by testator; or
2. If testator does not fix a period, discretion of
fiduciary; or (Fideicommissary)
3. In case of doubt, after the death of fiduciary (Id.
at 202).

Jand K
Illustration: A, who died in 2006, devised a house (G's Heirs)
and lot to his friend, F, as fiduciary heir and to G, the
eldest son of F, as fideicommissary substitute or
second heir (F has 3 sons - G, Hand I). In 2013, G When the substitution is conditionai, the
died; he was survived by his two legitimate children, fideicommissary has only a mere hope or
J and K. In 2018, F died intestate survived by his two expectancy pending the fulfillment of the condition,
remaining sons, H and I, and his two grandchildren but once the condition is fulfilled, the obligation to
J and K.

transmit or deliver the property mises (.II /RADO,
Succession, supra at 202).
Fideicomiso
There is really one heir. Between the testator and the
heir was a mid.die man or agent whose function was
in many cases, to intervene only in order that an
incapacitated person (the heir) could succeed from
the testator (3 PARAS, supra at 249).
VOID SUBSTITUTIONS: (EPIC)
1. Fideicommissary substitutions which are not
made in an §xpress manner.
2. Provisions which contain a ,Eerpetual prohibition
to alienate, and even a temporary one beyond
the limit fixed in Art. 863.
The prohibition to alienate is good only for 20
years, beyond that is void {CIVIL CODE, Art.
870).
REASONS:
a. To give more impetus to the socialization of
the ownership of property; and
b. To prevent the perpetuation of large
holdings, which give rise to agrarian troubles
(JURADO, Succession, supra at 208).
NOTE: If the period fixed is the lifetime of the
heir, e.g., "as long as he'lives:" there would really
be 2 period limitations, whichever comE;,s first:
(1) 20 years, if the heir lives for more than that
period, or (2) the period before the expitatiori of
20 years, if he dies earlier (DE LEON,
Succession, supra at .285).
Illustration: A was given his legitime in the form
of a house. In the will, A was prohibited to sen
the house within a period of 20 years, Can A sell
the house even before the expiration of sa_id
period?
Answer: Yes. This prohibition, even if 'ess than
20 years, cannot be applied to the legit\me
(CIVIL CODE, Art. 904 par. 2; 3 PARAS, supra
at 260).
NOTE: Article 870 does not apply if there is a
fideicommissary substitution, for this must be
governed by Art. 867(2) (Id.).
Article 870 is limited to the free portion, for the
legitime, as a general rule, cannot be burdened
by the testator with any charge, condition or
substitution (DE LEON, Succession, supra at
284). . Illustration: X said in his will: "I give my property in
If it so happens that in addition to the prohibition
to alienate there is a fideicomissary substitution
expressly made, such prohibition shall not only
SUCCESSION
Civil Law
be limiteu lu lwerity years but It shall have to be
complemented by another mandate of the
testator - the obligation of the first heir to
preserve the property for the· benefit of the
second heir. Consequently, there can be no
conflict between the provision of this article and
that of No. 2 of Art. 867 (JURADO, Succession,
supra at 208).
3. Those which leave to a person the whole or part
of the hereditary property in order that he may
apply or !nvest the same according to secret
instructions communicated to him by the testator
(also called "tacit fideicommissum"); and
4. Those which impose upon the heir the fharge
of paying to various persons successively,
beyond the limit fixed in Art. 863, a certain
income or pension (CIVIL CODE, Art. 867).
Illustration: X instituted F to the free portion of
his estate. X also provided that the land shall be
inalienable for a period of 20 years after his
death. X died in 2008. 10 years after F died
leaving the property to his son, A. After 2 years,
A died, le 9 ving the property to his son B. May B
alienate. the property?
Answer: B may alienate the property. While it is
true that ·only 1i years have passed since the
death of X · (the .prohibition to alienate is 20
years), B can now alienate the property because
he ·. no longer falls within the "one-degree
limitation" (Art. 807; par.2 in relation to Art. 863).
B is already two degrees away from the heir (F)
originally instituted and is thus not covered by
the same charges and conditions of the
fideicommissary substitution.
NOTE: The nullity of the fideicommissary
· substitution does not prejudice the validity of the
institution of the heirs first designated; the
fideicommissary clause shall simply be
considered as not written (CIVIL CODE, Art.
868). .
DIISPOSITION OF USUFRUCT TO
VARIOUS PERSONS
A provision whereby the testator leaves to a person
the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to
various pers_ons, not simultaneously, but
successively, the provisions of Art. 863 shall apply
(CIVIL CODE, Art. 869).
Manila to my friend A, but F will have the usufruct for
10 years; F's son 8 for two (2) years; and B's son C
for two (2) years. Is this valid?
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Answer: The usufruct is valid only from F to B. When

it comes to C., the usufruct is no longer valid because CONDITIONAL, MODAL
C is already two degrees away from F. Therefore,
after B's death, the ownership of the property will TESTAMENTARY
now be consolidated to A. C will no longer enjoy the
usufruct.
DISPOSITIONS AND
TESTAMENTARY
RIGHTS OF FIDUCIARY: (APO) DISPOSITIONS WITH A
1. To A'cquire the rights of a usufructuary until
delivery to the fideicommissary; TERM
2. To fossess beneficial ownership pending the
delivery while naked ownership is vested in the
(ARTS. 871-885)
fideicommissary (JURADO, Succession, supra
at 201); and
3. To .Qeduct the amount of legitimate expenses,
FREEDOM OF DISPOSITION
credits, and improvements, save in the case
where the testator has provided otherwise Art. 871 is a restatement of the testator's freedom of
disposition.
(CIVIL CODE, Art. 865, par. 2).

"Legitimate expenses" as used in the second
paragraph of Art. 865, refer to those which were
made for the acquisition and preservation of the
property or inheritance.
"Improvements," on the other hand, refer to
necessary as well as to useful expenses.
Other expenses, such as those for pure luxury
or mere pleasure, are excluded.
NOTE: The amount of the deductions to which
the fiduciary is entitled, however,. is ·not the
actual amount of the expenses, but the increase.
in value of the property or inheritance.
Consequently, the property is rea)ly preserved
(JURADO, Succession, supra af202).
NOTE: More can be deducted if so provided by the
testator (Id.). Deterioration caused by the fiduciary's
malice or negligence must of course be shouldered
by him.
If the property is destroyed by a fortuitous event, the
obligation is generally extinguished (3 PARAS,
supra at 253).
Obligations of Fiduciary: (PDI)
1. To preserve the inheritance;
2. To Deliver the inheritance;
3. To make an !nventory of the inheritance (DE
LEON, Succession, supra at 278-279).
NOTE: Although the article speaks only of institution
of heirs, there is no reason why the provision cannot
be applied to any kind of testamentary disposition.
The institution of an heir may be:
1. Pure or simple;
2; .Conditional;
3. FciiaJerrn; or
4. For a certain purpose or cause (modal)
NOTE: Conditions, terms, and modes are not
presumed; they must be clearly expressed in the will.
Otherwise, they sh,;1II be considered pure (3 PARAS,
supraat2p5}
LIMITATIONS: (UIM)
.1. Principle of !,!ntouchability of the
·;t,.egiti!'Jle
· GENERAL RULE: The testator cannot impose
any charge, burden, encumbrance, condition, or
substitution whatsoever upon the legitime of the
compulsory heirs. Should he do so, the same
shall be considered as not imposed ( CIVIL
CODc, Art. 872).
EXCEPTION:
The testator can validly impose a prohibition
against the partition of the legitime for a period
not exceeding twenty (20) years (CIVIL CODE,
Art. 1083, par. 1).
There is only one instance under our law wh·ere
the testator is allowed to impose a charge upon
the legitime of compulsory heirs and that is when
the testator declares that the hereditary estate
shall not be partitioned for a period which shail
not exceed twenty years. According to Art. 1083
of the Code, this power of the testator to prohibit
the division of the estate applies even to the
legitime of compulsory heirs. (JURADO,
Succession supra at 210).
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2. !mpossible Conditions
Impossible conditions c111d those contrary to law
or good customs are considered as not imposed
(CIVIL CODE, Art. 873). It is presumed that the
condition is due to a mistake or oversight, or
merely a whim or caprice of the testator. Such
impossibility is to be determined at the time
when the condition is to be fulfilled (JURADO,
Succession, supra at 211).
Here, the condition is considered void and
unwritten but the institution and testamentary
disposition will be considered as valid ( 3
PARAS, supra at 266).
A condition is considered impossible if it is not
possible of realization because it is contrary to
either physical, juridical or moral laws
(JURADO, Succession, supra at 211).
Article 1183 provides for the annulment, of the
obligation which depends upon -- impOS$ible
conditions. Article 873 only makes the condition
void, but the disposition remairisvalid.(/d; ).
A condition prohibiting the c6ntest of ttJ°e will is
void (3 TOLENTINO, supra af229). . Relative Conditions Regarding Marriage
3. Prohibitions on Marriage
Rules on Prohibitions·on Marriage:
a. Absolute Prohibition
i. To contract first marriage ~ void
(contrary to good morals· and' public
policy) (CIVIL CODE, Alt. 874).
NOTE: There is no exception here (3
PARAS, ~uµIa al 268). . 219-221 ). . .
ii. To remarry
GENERAL RULE: .. ' . :t.:bsqlute
prohibitions to marry as a conditiontp be
instituted as an heir are void (CIVIL
CODE, Art. 874, par. 1).
EXCEPTIONS: ·
(1) When imposed on the widow or
widower by the deceased person; or
(2) When imposed on the widow or
widower by the ascendants or
descendants of the deceased spouse
(CIVIL CODE, Art. 874, par. 1).
An absolute condition not to contract
marriage when - validly imposed is
resolutory in character. Even so,
however, the legitime of the surviving
spouse cannot be impaired (BALANE,
Succession, supra at 322).
SUCCESSION
Civil Law
b. Relative Prohibition
Relative prohibitions on the following are
considered valid unless it becomes so
onerous or burdensome, or the prohibition
really amounts to an absolute one:
i. To contract first marriage; or
ii. To remarry.
If the prohibition is relative with respect to
persons, time or place, the rule does NOT
apply; hence, the prohibition is valid. The
following relative conditions regarding
marriage have been considered as valid and
binding:
i. Generic condition to contract marriage;
ii. Specific condition to contract marriage
with a determinate person; and
iii. Specific condition not to contract
marriage with a determinate person.
. Nature of condition when validly
imp_osed
The absolute condition not to contract
marriage when validly imposed is
res~lutory _in character.
IJ must. oe noted that the general rule stated
in Art. 874 _. is'. applicable only when the
prohibition to contract a first or subsequent
marriage js. absolute in character.
Consequently,,/ the prohibition is relative
\vith respect to persons, time or place, the
. rule does not apply; in other words, the
proh'ibition 'or condition is valid (Id. at
c. A 'stopping of a usufruct, allowance, or
personal prestation the moment the heir
·legatee, or devisee marries or remarries i~
justified since the law allows their giving for
the time during which the person remains
unmarried or in widowhood (CIVIL CODE,
Art. 874).
d. Disposicion Captatoria
Any disposition made upon the condition
that the heir shall make some provisions in
his will in favor of the testator or of any other
person shall be void (CIVIL CODE, Art. 875,
µw. 2).
REASON: It impairs freedom of
testamentary disposition (JURADO,
Succession, supra at 221).
REASONS FOR THE PROHIBITION:
i. The captatoria converts testamentary
grants into contractual transactions;
 ilii!\iid!tWtii \ /
MEM✓Q~Y AID
San Beda Un,;ersity College of Law • RGCT Bar Opeiations Center
ii. It deprives the heir testamentary
freedom;
iii. It gives the testator the power to dispose
mortis causa not only of his property, but
also. that of his heir's (BALANE,
Succession, supra at 322).
NOTE: In Art. 875 (disposicion captatoria),
the testa111erilc1ry disposition itself is void,
while in Arts. 873 and 874 the condition is
void but the testamentary disposition is valid
because testamentary succession is an act
of liberality and not a contractual agreement
(JURADO, Succession, supra at 221).
e. Conditions imposed by the testator upon the
heirs shall be governed by the rules
established for conditional obligations in all
matters not provided for by the law on
succession (CIVIL CODE, Art. 884).
CONDITION
Any future and uncertain fact or past event unknown
to the parties, upon which the performance of an
obligation depends (CIVIL CODE, Art. 1179).
KINDS OF CONDITION:
1. As to the cause upon which
fulfillment depends:
a. Potestative fulfillment depends
exclusively upon the will of.the h'eir, devisee,
or legatee, and must bf? perfprmed. by him
personally. It may either be:
i. Positive - when it consists of the doing
or giving of something. · Resolutory or In Diem - a condition upon
ii. Negative - when it consists of not doing
or giving anything.
GENERAL RULE: It must be fJJJfiUed as
soon as the heir learns of the testator's
death.
EXCEPTIONS:
i. If the condition was already complied
with at the time the heir learns of the
testator's death; and
ii. Constructive compliance - the condition
is deemed fulfilled (CIVIL CODE, Art.
883 par. 2)
Heir must give security to guarantee
(caucion muciana) the return of the value of
property, fruits, and interest, in case of
contravention (BALANE, Succession, supra
at 324).
b. Casual - fulfillment depends exclusively
upon chance and/or upon the will of a third
person.
GENERAL RULE: It may be ,fulfilled at any
time (before or after the testator's death),
unless testator provides otherwise.
Qualifications:
If already fulfilled at the time of execution of
will:
i. If testator is unaware of the fact of
fulfillment it is deemed fulfilled
ii. If testator is aware thereof-
1.) it can no longer be fulfilled again -
deemed fulfilled
2.) if it can be fulfilled again - must be
fulfilled against
c. Mixed - fulfillment depends jointly upon the
will of the heir, devisee, or legatee and upon
chance and/or will of a third person.
2. As to the effects:
a. Suspensive or Ex Die - a condition upon
the fulfillment of which successional rights
are acquired.
The heir should be living and qualified to
suc¢eed both at the time of testator's death
ahd:iilthe time of the happening of the event
(CIVlL.CODE, Art. 1034 par. 3)
the
Pending its fulfillment, the estate shall be
placed wnder administration until the
c;ondition is fulfilled, or it become's certain
. tl)atAttef:lrnJ?tbe fulfilled ( CIVIL CODE, Art.
,·trao;:pa,J ::,:f·
, the fulfillment of which rights already
::acquired are extinguished.
If the suspensive condition is not fulfilled or
if the resolutory condition is fulfilled, as the
case may be, the estate shall pass to the
legal heirs (JURADO, Succession, supra at
227).
TERM
It is the day or time when a testamentary disposition
either becomes demand able or terminates ( CIVIL
CODE, Art. 1193).
KINDS OF TERM:
1. Suspensive
Rights are suspended until the arrival of the date
or time designated by the testator.
The legal heir shall be considered as called to
the succession until the arrival of the period. But
he shall not enter into possession of property
until after having given sufficient security, with
the. intervention of the instituted heir. In the
 SUCCESSION
Civil Law

absence of a bond, said property shall be under
administrntion (CIVIL CODE, Art. 885, par. 2).
NOTE: The words "or term" in line 2, and "or until
the arrival of the term" in lines 4 and 5 at the end
of 1st par. of Art. 880 must be eliminated as it
conflicts with Art. 885. In the protoype, Art. 805
(Now Art. 880) was limited to suspensive
conditions only since periods were governed by
Art. 885. However, some unknown person
inserted "or term" in Art. 880 which created a
contradiction (JURADO, Succession, supra at
231).
Other instances where caucion muciana is
1e4ui1ed:
a. Art. 885 par. 2, Civil Code; and
b. Art. 882, Civil Code
NOTE: This must not be confused with caucion
juratoria, a bond required in usufruct.
:2. If the Condition is Casual or Mixed
It shall be sufficient if it happens or be fulfilled at
any time before or after the death of the testator,
UNLESS he has provided otherwise (CIVIL
CODE, Art. 877, par. 1).

If the heir, devisee or legatee should have died Two Secondary Rules
after the death Qf the testator, but before the a. If the condition had already been fulfilled at
expiration of the term, his right shall be the time of the execution of the will and the
transmitted to his own heirs ( CIVIL CODE, Art. testator was unaware thereof. it shall be
878). deemed to have been complied with.
b. If the condition has already been fulfilled at
2. Resolutory Term the time of the execution of the will and the
Rights are immediately demandable but subject testator had knowledge thereof, the
to extinguishment upon the arrival of the date or condition shall, as a rule, still have to be
time designated by the testator (CIVIL CODE, complied with, unless it is of such a nature
Art. 1193). . that it can .no longer exist or be eomplied
with again (JURADO, Succession. supra at
TIME OF FULFILLMENT 223-224).
1. If the Condition is Purely Potestative .
a. Positive Potestative Condition TERM V~ CONDITION
The heir must fulfill it as 'soon as he learns
of the testator's death; unless the condition
is already complied with ·. and cannot be
fulfilled again (CIVIL CODE; Art. 876).
An uncert~iin ev~nt Sure to happen or to
which may 'or may not arrive, even if the exact
b. Negative Potestative Condition happen. · date .of such happening
The right of the heir, devisee or legatee does or arrival may be
not have to be held in suspense. ·· uncertain.
He acquires his right as a m'atter of course
without any limitation other than that of not
doing or not giving something (CIVIL CODE,
Art. 879). The acquisition of the The right is already
right depends upon the transmitted to the heir
Caucion Muciana happening of the upon the death of the
The bond or security referred to in Art. 879 is condition, such that if testator; the term
called a caucion muciana (6 Manresa, 6th ed., p. the condition does not merely serves to
201). The bond or security should be given in happen, the heir does determine the
favor of those who would get the property IF the not succeed. demandability of such
condition be not complied with (like the intestate right already acquired.
heirs of the substitute, etc.). The favored (3 TOLENTINO, supra at 236).
persons are naturally the ones who can demand
the constitution of the security ( 6 Sanchez MODAL INSTITUTION (INST/TUC/ON
Roman, p. 616).
SUBMODO)
It may be demanded in favor of those to whom Attachment by the testator to an institution of heir, or
the property would pass if not complied (3 to a devise or legacy, of a statement of the:
TOLENTINO, supra at 239). 1. Object of the institution;
1. Application of the property left by testator; or
2. Charge imposed by him (JURADO, Succession,
supra at 228).
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That which has been left in this manner may be
claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes
of the testator and for the return of anything he or
they may receive, together with its fruits and
interests, if he or they should· disregard this
obligation ( CIVIL CODE, Art. 882, par. 2).
Illustration: X makes a legacy of P1 ,000,000 to Y
who was instructed to build a house and to deliver
the same to Z. Is there a modal institution?
Answer: Yes, there is a modal institution. There is a
direction to build a house. The answer would be
different however if Y was instructed to use the
money to buy a particular thing as the statement
turns into a condition.
NOTE: In case of doubt, the institution should be
considered modal and not conditional; and where
there is doubt whether a statement is a mode or it is
a mere suggestion, observation. or expression of
certain desires by the testator, it should be
understood in the latter sense (DE LEON,
Succession, supra at 308).
A mode obligates but does not suspend, while a
condition suspends but does not obligate (JURADO,
supra at 228).
. of his estate as long as there are compulsory
DOCTRINE OF CONSTRUCTIVE
FULFILLMENT
When without the fault of the heir, an institu,cion sub
modo cannot take effect in the exact manner stated
by the testator; it shall be complied with in a manner
most analogous to and in conformitywith·his wishes
( CIVIL CODE, Art. 883, par. 1).
If the condition is casual, the doctrine is not
applicable since the fulfillment of the event which
constitutes the condition is independent of the will of
the heir, devisee/legatee. If the condition is
potestative or mixed, the doctrine is applicable
(JURADO, Succession, supra at 229).
LEGITIME
(ARTS. 886~914)
LEGITIME
That part of the testator's property which he cannot
dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory
heirs (CIVIL CODE, Art. 886).
The Civil Code adheres to the System of Partial
Reservation wherein. the inheritance is divided into
the free portion and the legitime. The distribution
may be by law, or by the testator's will or by both (3
PARAS. supra at 296-297).
PURPOSE OF LEGITIME
To protect the compulsory heirs for whom the
testator is presumed to have a parental, filial or
conjugal obligation to reserve portions of his estate
for the benefit of such heirs from his anger or neglect
(JURADO, Succession, supra at 233).
The cause of action to enforce a legitime accrues
upon the death of the donor-decedent since it is only
then that the net estate may be ascertained and on
which basis, the legit1me may be determined
(Imperial v. CA, G.R. No. 112483, October 8, 1999).
PRINCIPAL SYSTEMS OF
DISTRlBUTION OF HEREDITARY
PROPERTY
1. System of Absolute Freedom of
Disposition
The testator may freely dispose of his property
without any limitation imposed by law;
2.< ;Sy~te,n of Total Revocation
-The testator cannot freely dispose of any portion
heirs for whom the law reserves his estate. He
has fme .. disposition only when he has no
compulsory hE!irs; and
3. Sy~fei:t!/Of'P~~fal Reservation
This it tn~'sysfem of legitime. A certain portion
of the estate is reserved by law for compulsory
,heirs and the rest is the free portion over which
· ··::toe testator has absolute freedom of disposition
·(DEL'EON, Succession, supra at 317).
KINDS OF LEGITIME:
1. Fixed
The aliquot part of the testator's estate to which
a certain class of compulsory heirs is entitled by
operation of law is always the same whether
they survive alone or with other classes of
compulsory heirs.
2. Variable
The aliquot part changes depending upon
whether they survive alone or with other classes
of compulsory heirs (JURADO, Succession,
supra at 234).
COMPULSORY HEIRS (CH)
Those heirs for whom the law has reserved that part
of the testator's estate known as legitime. As such,
testator cannot deprive them of their legitime except
by disinheritance properly effected (JURADO,
Succession, supra at 234-235).
 SUCCESSION
Civil Law

The birth of a compulsory heir gives a vP.stP.rl rioht to COMPULSORY HEIRS

the heir to acquire the inheritance which is inherent 'I. If Testator is a Legitimate Person
from his legitimate filiation (Rocha v. Tuason, G.R.
a. Legitimate Children and Descendants
No. 14254, August 5, 1919).
(LCD);
b. In default of tfte foregoing, Legitimate
NOTE: The fact of being a compulsory heir imposes
Parents and Ascendants (LPA);
no obligation to accept or receive the legitime. The
c. Surviving Spouse (SS);
law on legitime is a restriction, not on the freedom of
d. Illegitimate Children and Descendants (ICD)
the heir to accept or repudiate the inheritance, but
on the freedom of the testator to dispose of his
NOTE: (c) and (d) are NOT excluded by (a) &
property (3 TOLENTINO, supra at 252). They are
(b) neither do they exclude one another
called compulsory, only because the testator cannot
(JURADO, Succession, supra at 234).
disregard them (3 PARAS, supra at 301).
2. If Testator is an Illegitimate Person
KINDS OF COMPULSORY HEIRS: a. Legitimate Children and Descendants
1. Primary (LCD);
Those who are always entitled to their legitime b. Illegitimate Children and Descendants
regardless of the class of compulsory heirs with (ICD);
which they may concur (e.g., LCD). c. In default of the foregoing, Illegitimate
Parents (IP) only;
2. Secondary _ _- _ d.· Surviving Spouse (SS) (CIVIL CODE, Art.
Those who may be excluded by other_ CH and 887J-...
succeed only in the absence of.'the primary CH
(e.g., LPA or IP). SUIVIMARY or= GENERAL RULES
3. Concurring 1. Dir~ct des_qending line
Those who succeed together with the primary or a. RL!le of preference between lines
secondary CH (e.g., !CD and SS). b. Rule of proximity
c. Right of re'presentation ad infinitum in case
NOTE: For illegitimate childrert to be compulsory of pred~cease, incapacity, or disinheritance
heirs, they must be recognized (3 PARAS, supra at (If testator is a legitimate person: LCD only
301 ). Mere proof of filiation is not enough, what is can represent; )f testator is an illegitimate
important is recognition of that_ filiation (Noble v. person: both.LCD and ICD can represent)
Noble, G.R. No. 17742, December 17, 1966). d~ If all the LCD'repudiate their legitime, the
next generation of LCD succeeds in their
own right.
2. Direct ascending line
a. Rule of division by lines
b. - Rule 'qfequal division
3. Non-impairment of legitime
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TABLE OF LEGITIMES

Legends:
LCD = Legitimate Children and Descendants
ICD = Illegitimate Children and Descendants
SS = Surviving Spouse
LPA = Legitimate Parents or Ascendants
IP = Illegitimate Parents
AC = Adopted Child
FP/RFP = Free Portion/Rernaini11y Free Portion

1. Divide by the # of LCD, whether they survive a. 4 legitimate children -

1/2
alone or with concurring CH. 2.5 million each
LCD (CIVIL CODE,
2 The remaining 1/2 shall be at the free disposal b. FP - 10 million
Art. 888). ·
of the testator.
1/2; 1. The legitime of the SS shall be taken only from a. Legitimate daughter -
1/4 the free portion (CIVIL CODE, Art. 892). 10 million
1 LCD;
(CIVIL CODE, 2. In case of legal separation, the surviving spouse b. Wife - 5 million
ss Art. 892, par. may inherit if it was thex,leceased who had given c. RFP - 5 million
1). cause for the same (CIVIL CODE, Art. 892).
1. Divide 1/2 of the estate by:tli~ numoE!t6f LCD a. 2 legitimate daughters -
1/2; 2. If there are two or more LCD, the fogitime of SS 5 million each
Same as that is the same as that pf each LCD and ft shall be b. Husband - 5 million
2 or more
of each LCD taken from the free portion ( CIVIL CODE, Art. c. RFP - 5 million
LCD; 892): .
(CIVIL CODE,
ss Art. 892, par. 3, After deducting the ;legitime of the, ss;_ the
2). . remaining shall be at the free q1sposal of the
testator. ·- · ·· · ··
0

1. The legitime of the ICD shall be take n. from the a. Legitimate son - 10
1/2; free portion (CIVIL CODE, Art. 888). million
1/2 of 1 LCD 2. In case of several IC:"::;,; _ , ,• b. 5 illegitimate children -
LCD;
(CIVIL CODE, a. If free portion is sufficient; each IC gets 1/2 of 2 million each
ICD
Art. 895, share of 1LCD.
par.1). b. If free portion is insufficient, divide it among
the ICD equally.
1. If there are 2 or more LCD, the legitirne of the SS a. 1 legitimate daughter -
is the same as that of each LCD and it shall be 10 million
taken from the free portion ( CIVIL CODE, Art. b. Spouse - 5 million
892). c. 4 illegitimate children -
1/2; 2. The legitime of the ICD shall be taken .from the 1 .25 million each
1/4; free portion provided that the total legitime of
LCD;
1/2 of such ICD shall not exceed the free portion and
SS;
LC(CIVIL that the legitime of the SS ml.1st first be fully
ICD
CODE, Art. satisfied (CIVIL CODE, Art. 895, par. 3).
895, Par. 1). 3. In case of several ICD:
a. If free portion is sufficient, each IC gets 1/2 of
1LC.
b. If free portion is insufficient, divide it among
the ICD equally.
1. This rule applies whether they survive alone or If there is no LCD,
1/2
with other classes of CH. a. Legitimate father - 10
LPA (CIVIL CODE,
2 They inherit in default of LCD of testator, million
Art. 889). ·
otherwise they are excluded.
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Civil Law
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If there is LCD,
a. Legitimate father - none
b. Legitimate son - 10
million
The 1/4 to which ICD is entitled is tal1en from thA i1 Leyili111ulu mother - ·10
1/2; free portion (CIVIL CODE, Art. 896). million
LPA; 1/4 2. The 1/4 shall be divided m equal shares among b. 8 Illegitimate children -
ICD (CIVIL CODE, several ICD. 625,000 each
Att 896), 3. The remaining 1/4 shall be at the free disposal c. RFP-5 million
of the testator.
1/2; 1. The legitime of the SS shall be taken from the a. Legitimate mother - 10
LPA; 114 free portion. million
ss (CIVIL CODE, 2. The remaining 1/4 shall be at the free disposal b. Spouse - 5 million
Art. 893). of the testator. c. RFP - 5 million
1. The legitime of the 8S and ICD shall be taken a. Legitimate father - 10
1/2; from the · free portion provided· that the total million
LPA; 1/8; legitirne. of such ICD shall not exceed the free b. Spouse - 2.5 million
SS; 1/4 portio(), antLthatthe legitime of th~ SS mu.st first c. 5 illegitimate children -
ICD (CIVIL CODE, be fully satisfied (CI\/JL C()DE, Art. 89q par. 3). 1 million each
Art. 899). 2 .. The remaining 1/8 may be freely disposed of by d. FP - 2.5 million
the festator (CIVIL CODE, Art. 899).
1. If there are more than ·1 IC:D divide, equally. a. 10 illegitimate children -
1/2
among them'. , . 1 million each
ICD (CML CODE,
2, 1he remaininq 1/2 stiall hH Flt the free di5-posal . b. FP 10 million
Art. 901).
of the testator.
1/3; Th~ remaining 1/3 shal_l be at the free disposal of. a. Husband - 6.67 million
SS; 1/3 the testator {CIVIL CODE, Art. 894/ b. 3 illegitimate children -
ICD (CIVIL CODE, 2.22 million each
Art. 894). C. FP - 6.67 million
1. One third (1/3) if marriagEi is· in .articulo mortis If marriage is in
and the testafbr· spouse died within 3 months articu/o mortis and
after the r:narriage. NOTE: Applies only' if it was testator dies within 3
the decease.ti who was the party iri danger of months,
death at the time of rriarriaqe; ana if the cause of a. Spouse - 6.67 million
death is the SAME ;:1s th;i sickness, illness or
injury existing at the time of marriage - the If living together as
1/3;
purpose of the law being to avoid a marriage husband and wife for
1/2;
purely for financial gain. This rule applies only to more than 5 years
ss 1/2
a case of testamentary succession (3 PARAS, before marriage in
(CIVIL CODE,
supra at 350). articu/o mortis,
Art. 900).
2. One half (1/2) when they have been living as a. Spouse - 10 million
husband and wife for more than 5 years before b. FP - 10 million
marriage in articu/o mortis
3. If marriage is not in articulo mortis, SS shall If marriage is not in
inherit 1/2 of the estate articulo mortis,
4. The remaining one half 1/2 in (b) and (c) herein a. Spouse - 10 million
shall be at the free disposal of the testator b. FP - 10 million
1/2 The remaining 1/2 shall be at the free disposal of a. Illegitimate father - 10
IP (CIVIL CODE, the testator. million
Art. 903). b. FP - 10 million
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Children inherit in the amounts established in the a. Illegitimate mother -

Excluded; foregoing rules. none
IP;
It depends b. Legitimate son - 10
Any child
(CIVIL CODE, million
(LCD/ICD)
Art. 903), c. Illegitimate daughter - 5
million

IP; Only the parents of IC are included. Grandparents a. Illegitimate father - 5

1/4;
ss 1/4
and other ascendants are excluded. million
b. Wife - 5 million
(CIVIL CODE,
c. Illegitimate grandfather
Art. 903).
- none

of 1/2; When parents (legitimate or illegitimate), or the a. Legitimate parents - 10

LPA/IP
1/2 legitimate ascendants of the adopted concur with million or 5 million each
the
(FAMILY the adopters, 1/2 shall be inherited by the parents b. Adopters - 10 million
adopted;
CODE, Art. or ascendants and the remaining half by the
Adopters
190, Par. 3), adopters.
Same share As a rule, adopted.chiJdrEln are entitled to the same a. Adopted daughter - 2.5
AC; as LCD successional rightas legitimate children. million
LCD (CIVIL CODE, b. 3 legitimate sons - 2.5
Art. 979). million each
(JURADO, Succession, supra at 324-325).
Rule of. proximity applies where the relative
NOTE: There are conflicting views as to the nearest/in degree excludes the more distant
applicability of Art. 190 of the Family Code to ones, i>aving the right of representation when it
instances where both the adopters and the LP/IP properly takes place (i.e., grandchildren are
concur after the death of the adopted child. excluded by thEJ presence of their parents in the
' . e$la,(e of their grandparents) ( CIVIL CODE, Art.
One view is that the Sec. 18 of RA 8552 ,amended 962; p~,:1 :1):"'/'
the provisions of Art. 190 of the Family Code. Under
Sec. 18, the adopted and his/her parents by nature Rule in case of Adopted Child
may only succeed from each other by way of The, adopted shall be deemed to be a legitimate
testamentary succession. The Domestic Adoption i'¢hili;Lotthe adopters (R.A. No. 8552, Sec. 17).

Act extinguished the reciprocal rights of su,c:cession
that exist between the two, including the right to the
legitime and rights arising from legal or intestate
succession (RABUYA, The Law on Persons and
Family Relations (2006), p. 616).
Another view is that Art. 190 of the Family Code
continues to apply, and that the adopter and the
LP/IP shall divide the entire estate, that is, one-half
to be inherited by the parents or ascendants and the
other half by the adopters (JURADO, Succession,
supra at 241).
1. LEGITIME OF LEGITIMATE
DESCENDANTS
Consists of 1/2 of the hereditar; estate of Uieir
legitimate parents or ascendants, while the other
half is at the latter's free disposal ( CIVIL CODE,
Art. 888).
A ward (ampon), without the benefit of formal
Uudicial) adoption, is neither a compulsory nor a
legal heir (Manuel v. Ferrer, GR. No. 117246,
August 21, 1995).
EXCEPTIONS:
a. When the adoptee and his/her biological
parent(s) had left a will, the law on
testamentary succession shall govern
(FAMILY CODE, Art. ,189 in rel. to Secs. 17
and 18 of R.A. No. 8552 or the Domestic
Adoption Act of 1998).
b. When the adopter dies before his LPA, or is
incapacitated to inherit from said LPA, or is
disinherited by his LPA, the adopted cannot
inherit by right of representation (JURADO,
Succession, supra at 236).
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Actio Ad Supplendam Legitimam (Right of
Completion of Legitime) · equal degree of the paternal and matern3I
If some heirs are genuinely interested in
securing that part of their late father's property
which has been reserved for them in their
capacity as compulsory heirs, then they should
simply exercise their right of completion of
legitime ( Gala v. El/ice Agro-Industrial Corp.,
G.R. No. 156819, December 11, 2003).
2. LEGITIME OF LEGITIMATE
ASCENDANTS
Consists of 1/2 of the hereditary estate of their
children and descendants ( CIVIL CODE, Art.
889, par. 1).
They are excluded from the succession if they
concur with legitimate children or descendants.
(JURADO, Succession,·supra at 244}.
Rules of Division for Legitimate Parents and
Ascendants: · Entitled to a legitime the amount of which is
a. The legitime shall be divided between the
LPA equally. . .
b. If one of the LPA dies before the testator; the
whole shall pass to the survivor.
c. If both LP dies before the testator but:
i. Survived by ascendants of equal
degree, legitime shall be divided equally
between the paternal cfnd maternal line.
ii. Survived by ascendants of ,different
degrees, legitirrie · sh~f! pertain 'entirely
to the nearest degree (CfVIL c;bDE, Art.
890; JURADO, $ucceS$iOn, supra at
245-246).
Illustration: X, the testator. has an estate
amounting to P240,000. X w~s survived by his
father F, mother M, paternal grandfather PGF,
paterf!al grandmother PGM, maternal
grandfather MGF, and maternal grandmother
MGM.
a. How shall his estate be divided?
b. If F predeceased X?
C. If F, M, and PGM predeceased X?
A·nswer:
a. F and M shall both be entitled to P120,000
each. The legitime reserved for the
legitimate parents shall be divided between
them equally (CIVIL CODE, Art. 890}.
b. M shall be entitled to P240,000 in
accordance with the rule of proximity. M
shall exclude those farther in degree. Also
Art. 890 of the Civil Code provides that "if
one of the parents should have died, the
whole shall pass to the survivor."
C. PGF shall be entitled to P120,000 while
MGF and MGM shall be entitled to P60,000
each. If the testator leaves neither father or
SUCCESSION
Civil.Law
mother, but is survived by ascendants of
lines, the legitime shall be divided equally
between both lines (CIVIL CODE, Art.890
par. 2).
Right to Receive Benefits from the Adoptee
in Case of Death of the Adopter
Adoption, without more, does not deprive the
biological parent of the right to receive the
benefits stemming from the adoptee's death as
a dependent parent given the adopter's untimely
demise during the adoptee's minority. Since the
parent by adoption already died, then the death
benefits under the Employee's Compensation
Program shall accrue solely to the biological
parent, the adoptee's sole remaining beneficiary
(Bartolome v. SSS, G.R. No. 192531, November
12, 2014).
~L LEGITIME OF SURVIVING SPOUSE
variable depending upon whether he or she
survives alone or concurrently with other
compulsory heirs (JURADO, Succession, supra
at 285):
The condition of· being a surviving spouse
requjres th~t there. should have been a valid
marriage b_etween the deceased and the
survivor (DE LEON; Succession, supra at 326).
Amiulment of voidable marriage
·Voidable rrtai-riages are valid until they are set
aside by· final judgment of a competent court in
ari actioh for annulment (Dino v. Difio, G.R. No.
178044, January 19, 2011).
In c9se. of death of a party during the
anm1lment proceedings, the survivor is
entitled to a legitime, because marriage can no
longer be annulled after the death of one of the
parties (Nifial v. Bayadog, G.R. No. 133778,
March 14, 2000).
If the party dies after the entry of judgment of
nullity or annulment, the judgment shall be
binding upon the parties and their successors-
in-interest in the settlement of the estate in the
regular courts (AM. No. 02-11-10-SC, Sec.
24(b)) The survivor is no longer the spouse
entitled to a legitime.
Legal Separation
The widow or widower will be entitled to succeed
only when he or she is the innocent spouse
(FAMILY CODE, Art. 63, par. 4).
If death occurred during the pendency of the
legal separation proceedings, the effect shall
depend on which spouse died.
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a. If it was the plaintiff (innocent spouse) who A: No, because of the barrier between the
died, the proceeding shall continue to legitimate family ( CIVIL CODE, Art. 992).
determine whether or not there is ground for
legal separation which shall justify the When representatives are of different classes
exclusion of the surviving spouse from (legitimate or illegitimate), they inherit naturally
inheritance (DE LEON, Succession, supra in the same proportions as in Art. Art. 895 since
at 327). this is also the rule in legal succession ( 3
b. If it w,is the defendant (guilty spouse) who PARAS, supra at 353-354).
died, the legal separation proceedings
should be terminated (FAMILY CODE, Art. Illustration: T has an illegitimate child A, who in
63; JURADO, Succession, supra at 236). turn has a legitimate child B, and an illegitimate
child C. If A predeceases T, both B and C will
In case of reconciliation under Art. 66(1) of the inherit by representation in the proportion of 2 is
Family Code, when one of the spouses should to 1 (/d. ).
die, the legal separation proceedings which is
still pending shall be terminated at whatever 5. LEGITIME OF ILLEGITIMATE
stage (FAMILY CODE, Arts. 63 and 66). The PARENTS
survivor gets his or her legitime, regardless of
The illegitimate parents are entitled to 1/2 of the
whether he or she is the guilty party.
illegitimate child's hereditary estatEJ when he is
survived by neither legitimate descendant, nor
Legacy or devise to surviving spouse
surviving spouse, nor illegitimate children.
Any devise or legacy given to the surviving
(CIVIL CODE, Art. 903).
spouse should be considered as being in
addition to his or her legitime, and must
If the illegitimate child leaves a descendant,
therefore be charged to the free portion. Such.
, Iegitimat~ or illegitimate, the parents have no
devise or· legacy should be considered in the
·· 4egiWne(DE LEON, Succession, supra at 386).
same footing as those given to strangers ( 3
PARAS, supra at 343). ··
NOTE: Bro\h~r13 and sisters are not compulsory
heirs but tMy may be instituted as voluntary heirs ( 3
4. LEGITIME OF ILLE.GITIMATE PARAS, supra at}07).
DESCENDANTS
The amount of their legitime is variable RES~RY~: .TBJ)NCAL (OR RESERVA
depending upon whether they inherit alone or as EXTRA\'f:):8CfJN/A~IAJ LINEAL)
a class or concurrently with other classes of
The reservation by virtue of which an ascendant who
compulsory heirs (JURADO, Succession, supra
inherits from his descendant any property which the
at 290).
, faft,~f... may have acquired by gratuitous title from
ahotheh:iscendant or a brother or sister, is obliged
Under the Family Code, there is. no more
to reserve such property as he may have acquired
distinction between acknowledged nci.tural
by operation of law for the benefit of relatives who
children and illegitimate children. They are all
are within the 3rd degree and who belong to the line
considered as illegitimate. Thus, the 5:4 ratio
from which such property came (CIVIL CODE, Art.
no longer applies (Id. at 292).
891).
When an illegitimate child dies before the
PURPOSES:
testator, his rights to the legitime are transmitted
1. To prevent persons who are strangers to the
to his own heirs. Representatives may either be
family from acquiring, by some chance or
legitimate or illegitimate descendants .(CIVIL
accident, property which otherwise would have
CODE, Art. 902; JURADO, Succession, supra at
remained with the said family (JURADO,
301).·
Succession, supra at 247); and
2. To maintain a separation between the paternal
Reason: Illegitimate children are considered
and maternal lines (3 TOLENTINO, supra at
innocent, and therefore despite the moral lapse
270).
of their parents, they are still given a legitime,
but precisely because they are born outside
Nature: !t is an exception to both the system of
marriage, their iegitime are iess than those given
legitime and the order of intestate succession
to legitimate children (6 MANRESA, supra &t
(JURADO, Succession, supra at 247).
570).

Q: Can illegitimate descendants of legitimate

children inherit by right of representation?

The reserva creates a double resolutory condition
to which· the right of ownership of the person obliged
to reserve is subjected (Id. at 276).
The Resolutory Conditions are:
1. The death of the ascendant obliged to reserve;
and
2. Survival of relatives of the descendant-
propositus who are within the third degree, and
who belong to the line from which the property
came (Id.).
If the conditions are fulfilled: the property passes
in accordance with this special order of succession
to such relatives; automatic conversion into an
absolute right of ownership of the reservatario
(JURADO, Succession, supra at 250).
If the conditions are NOT fulfilled: property is
released and will be adjudicated in accordance with
the regular order of succession (Id.). . The reservable character will terminate upon the
Requisites: (GOLD)
1. The property should have been previously
acquired by §_ratuitous title by the descendant
from another ascendant or from a · brother or
sister (CIVIL CODE, Art. 891); ..
2. The property should have been acquired by
Qperation of law by an ascendant from his
descendant upon the death of the latter ( CIVIL
CODE, Art. 891);
3. The descendant should hav(;) pied without any
!:egitimate issue in the dir(;)ctdesceriding line
who could inherit from him; and
4. There are relatives of the Descendant-
propositus who are within the 3 rd degree and
who belongs to the line from which the property
came (Id.).
NOTE: The fourth requisite is sometimes added but
it is submitted to be merely a resolutory condition,
not a requisite (Id.).
NOTE: Reserva troncal contemplates legitimate
relationship. Illegitimate relationship and relationship
by affinity are excluded ( Gonzalez v. Court of First
Instance of Manila, GR. No. L-34395, May 19,
1981). Preference is given to the direct line as
against the collateral line, and the -rule of "nearer
excludes the farther" also applies (Florentino v.
Florentino, G.R No. 14856, November 15, 1919).
Illustration: Before GF's death in 2003, he donated
a parcel of land to his grandson, P, the only child of
his deceased son F. P died intestate in 2020 without
any heir in the direct descending line. As a
consequence of which, the land passed to his
mother M in accordance with intestate succession.
SUCCESSION
Civil Law
0 ORIGIN
RESERVATARIOS RESERVISTA
PROPOS/TUS
It is reservable. M, upon P's death, is obliged to
reserve it for the benefit of P's relatives who are
within the third degree and who belong to the line
from which the property came.
death of. M. Therefore, B and S can claim the
property as their own (JURADO, Succession, supra
at 249). •·
PERSONAL ELEMENTS:
'I. Origin/Origin of the Property
The tscendant, or :!;!rother or §ister (ABS) from
whom the propositus had acquired the property
by gratuitous title (e.g. donation, remission,
testate or intestate succession) (Id. at 252).
The property should have belonged to the
originator at the time of its acquisition by the
propositus. The source of the property prior to
the acquisition by the originator is immaterial ( 3
TOLENTINO, supra at 276).
T~e transmission from the origin to the
propositus must be by gratuitous title (3 PARAS,
'Supra at 321).
While the origin owns the property, there is no
reserva yet, and therefore, the origin has the
perfect right to dispose of it, in any way he
wants, subject, however, to the rule on
inofficious donations (3 PARAS, supra at 322).
If the origin of the property is a brother or sister
of the full-blood, the question of line is
unimportant. However, if the origin is a brother
or sister of the half-blood, the common parent or
ascendant must always be considered. If the
common ascendant is the father, the property is
reserved only for the relatives on the father's
side; if the common ascendant is the mother, the
property is reserved only for the relatives on the
mother's side (JURADO, Succession, supra at
264-265). .

f1%&ifoffll
MEM✓Q:RY AID
\ 1
San Seda University College of Law • RGCT Bar Operations Center
2: Propositus
The descendant (brother or sister) who died,
and from whose death the ascendant-rese,vista
in turn had acquired the property by operation of
law (JURADO, Succession, supra at 253, 3
PARAS, supra at 324).
The propositus should have died without any
legitimate issue in the direct descending line
who could inherit from him. Othe,wise, it would
not be possible for the property to pass by
operation of law to an ascendant-reservista
(JURADO, Succession, supra at 260).
The term "by operation of law" applies to the
transmission of the legitime in case of
testamentary, and to the entire inheritance in
case of intestate ·succession (3 TOLENTINO,
supra at 282).
The property should be acquired by gratuitous
title from an ascendant, brother or sister (CIVIL
CODE, Art. 891 ).
Prior charges on the property do not negate the
gratuitous character of the transmission ( Chua
v. Court of First Instance of Negros Occidental,
GR No. L-29901, August 31, 1977).
If the property is acquired by _Virtue of a
compromise involving hereditary properties, it
can be truthfully said that the property was
acquired, not by document of compromise but
by inheritance. Hence, the acquisition is by
gratuitous title (Cabardo v. Villanueva, G.R. No.
19003, December 13, 1922).
Propositus as "arbiter of the fate of reserva
tronca/"
As long as the propositus is still alive, therE1 is no
reserve yet, therefore he is the absolute owner
of the property acquired by him gratuitously from
the origin, with full freedom to alienate or
encumber (3 PARAS, supra at 323).
In case he sells the property and because of
such sale he receives cash, there is no reserva
even if the cash is later on inherited by the
ascendant by operation of law since the cash is
not the same property that he had acquired
gratuitously (Id.).
A will may prevent the constitution of a rese,va.
In case of testate succession, only the legitime
passes by operation of law. The propositus may,
by will, opt to give the legitime of his ascendant
without giving to the latter properties he had
acquired by gratuitous title from another
ascendant, or brother or sister. In such case, a
rese,va troncal is avoided (Id. at 288).
~, ~ ' ~ ' ~, f
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3. Reservista
The other ascendant who is obliged to reserve
the property for the benefit of the relatives of the
descendant-propositus who are within the 3rd
degree and who belong to the line from which
said property came (JURADO, Succession,
supra at 253).
He must have acquired the property by
opc18ti011 of l.:iw (/u. al 260). If he inherited the
property from the descendant not by legal
succession nor by virtue of the legitime, there is
no obligation to reserve. This happens when he
inherits the free portion by virtue of a will ( 3
PARAS, supra at 324).
The person obliged to reserve the property
should be an ascendant of the descendant-
propositus (Mendoza v. Delos Santos, GR. No.
176422, March 20, 2013). A collateral relative
cannot be a reservista.
Rights of Reservista
Upon the death of the descendant-propositus,
the rese,vista acquires all of the attributes of the
right of ownership, such as enjoyment, disposal,
and, recovery, although conditional and
revocable. Thus, he can alienate or encumber
the property. However, the acquirer will only
receive a.limited and revocable title which the
reservatariosmay then rescind after the death of
the reservista (JURADO, Succession, supra at
27,~).
Reservatario cannot, as long as the reservista is
alive, impugn or annul any alienation or
encumbrance effected by the reservista,
< wtfothet the same be on personal or real
property (Edroso v. Sablan, G.R. No. 6878,
September 13, 1913).
If the property subject to reserva is personal
property, the reservista, being the full owner
thereof, may donate, sell, or pledge them, and
the donee-purchaser becomes full owner of the
property. This is without prejudice to the right to
reimbursement of the reservatario (should they
survive the reservista) from the estate of the
reservista for whatever they have lost by virtue
of such donation, sale or pledge (3 PARAS,
supra at 326).
If it is a reservable real property, the reservista
may alienate it subject to reserva troncal i.e.,
reservatario can recover the real property from
the transferee as soon as ownership is
transferred to such reservatario, without
prejudice of course to the Land Registration Act.
Thus, if reservable land is registered under the
Torrens System as free, an innocent purchaser
 SUCCESSION
Civil Law

for value will be preferred over a reservatario: to the line from which the
However, the estate of the reservista will have to
reservable property came.
indemnify the reservatario (Id.).
3rd degree 1. Great grandparents;
Obligations of Reservista/Rights of r,alatives 2. Uncles or aunts (brothers
Reservatario: (ASIA) or sisters of the full or half-
a. To ~nnotate in the Registry of Property the blood of the prospositus'
reservable character of all· reservable father or mother); and
immovable property; 3. Nephews or nieces
b. Io §ecure by mortgage: (a) restitution of (children of propositus'
movables not alienated, (b) payment of brothers or sisters of the
damages caused by his fault or negligence, full or half-blood)
(c) return of price received for movables
alienated or pay its value if made (lei. at 263).
gratuitously, and (d) payment of value of
immovable alienated; NOTE: The origin may be a reservatario.
c. To make an !nventory of all reservable
property; and Under Art. 189, par. 1 of the Family Code,
the adopted shall be deemed to be a,
NOTE: Reservista has a period of 90 days, legitimate child of the adopters and both
from the time the reserve arises, in which to shall acquire the reciprocal rights _and
register the reservable character of. the obligations arising from the relationship of
property, if he does not voluntarily cause the parent and child. So, adopted children may
registration, reservatarios may judicially now claim the benefit of reserva tronca/ in
demand that he be compelled to make it (3 their favor (DE LEON, Succession, supra at
TOLENTINO, supra at 294). 358):

d. To ~ppraise value of all reservable movable First cousins ot the propositus are 4th degree
property (JURADO, Sqccession, supra at relatives · ahd are not reservatarios
274). .. (Mendoza v. :.oelos Santos, G.R. No.
176422, fv1.ar9[120, 2013).
4. Reservatarios
b. They miistbelong to the line from which the
The relatives of the •.· desc~fr,dant-propositus
reserv 9ble · property came (JURADO,
within the 3r.d degree and who belong to the line
Succession, supra at 262); and
from which the property' came ~nd for whose
benefit the r<;1servation is constituted, (Id. at 253).
"Line from which the property came"
refers lo .the paternal line as opposed to the
Conditions:
. matern;::ll line, or vice versa and not to that
a. They must be legitimate relattves of the
wh19h is constituted by a series of degrees
descendant-propositus within the 3rd degree
which may be either direct or collateral (Id.
(Id. at 262);
at 263).
The degree of relationship must be counted
Illustration:
from the descendant-propositus, because it
Origin: Paternal grandfather
is only upon his death that the property
Reservista: Mother
becomes reservable (Id.).
Reservatario: Paternal grandmother

PERSONS WHO CAN QUALIFY AS Considering the case, does the

RESERVA TAR/OS grandmother come from the line from which
the property came?

Two views:
1st degree Legitimate father or mother First view: It is advocated by Manresa that
relatives since the law merely states that the
reservatario should belong to the line from
2nd degree 1. Grandparents; and which the reservable property came without
relatives 2. Brothers or sisters (of the any qualification whatsoever, it is clear that
full or half-blood) belonging she would be entitled to the property (Id. at
264).
 MmEM:Q~Y Al D
San Beda Urwersity College of Law - RGCT Bar Operations Center
Second view: Sanchez Roman, with whose
view Justice Jurodo agreed, advor.ntP.rl thc1t
since the grandmot1101 is not rel3tcd by
consanquinity to the origin of the propP.rty
but only by affinity, she cannot be
considered as belonging to the line from
which the property came (Id.).
Otherwise stated, the reservatario must not
only be a relative by consanguinity of the
descendant-propositus within the 3rd
degree, but he must also be a relative by
consanguinity of the source or origin of the
property (Id.).
i. If the origin is a brother or sister of
the full blood - the question of line is
unimportant because there is no way by
which we would be able to determine
the "line from which the property came"
(Id.).
ii. If the origin is a brother or sister of
the half-blood - the common parent or
ascendant must always be considered
(Id. at 265).
c. They must survive the ascendant-reservista
(Id. at 262).
If the ascendan!-rese,vista is survived by
several relatives of the descendant-
propositus and all of them are wifhih the 3 rd
degree belonging to the tine fromwbich the
reservable property came, the rules of legal
or intestate succession shall applr(ld. at
267).
.l
A 3rd degree reservatario was still alive at
the time the reservista died. Said
reservatario, even if he dies, before claiming
the property nevertheless transmits rights to
his own heirs fu, after all, he survived the
reservista (3 PARAS, supra at 338).
TWO TESTS TO DETERMINE WHO CAN
QUALIFY AS RESERVATARIO:
If there are several claimants:
1. Is the claimant a relative of the descendant-
proposltus within the 3"J degree?
2. Does he belong to the line from which the
reservable propP.rty came? (JURADO,
Succession, supra at 265).
During the whole period between the constitution of
the reserva and the extinction thereof, the
reservatarios only have an expectation to the
property, an expectation which cannot be
transmitted to their own heir, unless these heirs are
also within the 3 rd degree (Id. at 250).
The reserve instituted by law 111 favor of the heirs
within the third degree belonging to tho lino from
which the reservable property came, constitute::; cl
n";:il rioht which the reservee may alienate and
dispose of, albeit conditionally, the condition being
that the alienation shall transfer ownership to the
vendee only if and when the reservee survives the
person obliged tu reseIve (S1&11es v. Esparcia, G.R.
No. L-12957, March 24, 1961).
Even during the reservista's lifetime, the
reservatarios who are ultimate acquirers of the
property can already assert the right to prevent the
rese,vista from doing anything that might frustrate
their reversionary right. They may compel the
annotation of their right in the Registry of Property
(Gonzalez v. Court of First Instance of Manila, G.R.
No. L-34395, May 19, 1981).
NOTE: The person obliged to reserve is a legitimate
ascendant who inherits from a descendant property
which proceeds from the same legitimate family
(Nieva v. Alcala, G.R. No. 13386, October 27, 1920)(
JURADO, Succession, supra at 253).
SQNIMARY OF RULES:
1. Reseiva tr;oncal merely determines the group of
relatives (reservatarios) to whom the property
should be returned; and
2. Within that group, the individual right to the
property should be decided by the applicable
rulefof ordinary intestate succession (Padura v.
Ba/dpyfnQ1 'G,.R.o.No. L-11960, December 27,
19!Jsf }.· ·c,v: ·
1?8:OPERTY SUBJECT TO
~f;~;R.YA TION
GENERAL RULE: It must be the same property
which the reservista had acquired by operation of
law from propositus upon the death of the latter and
which the latter in turn had acquired by gratuitous
title during his lifetime from another ascendant,
brother or sister (3 TOLENTINO, supra at 282).
EXCEPTION: Substitution of the reservable
property through unavoidable necessity: (CLAD)
1. Property is fonsumable;
2 host/dostroyod through the fault of the
msArvista;
3. Qeterioratod through the same cause; and
4. It has been Alienated (JURADO, Suucession,
supra at 273).
:', /:'',,'~\ s"'\?'.':::' :':i, \~,\'a
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REMEDIES OF RESERVATAR/OS WHEN
THERE IS SUBSTITUTION OF THE
RESERVABLE PROPERTY THROUGH
UNAVOIDABLE NECESSITY:
1. To recover the value of the property;
2. To seek the ownership or return thereof; and
3, If the reservable property is a sum of money -
the ordinary rules for the collection of credit
apply (Id.).
If the reservable property consists of sum of
money and the reservista died with no cash, the
reservatarios can either, select equivalent
property from the estate or demand the sale of
sufficient property in order to raise the
necessary amount {Id.).
THEOruES ON
RESERVA
1. Reserva Maxima
The reserve should apply to the prQpE!rty that
has been gratuitously acquired from · some
ascendant, brother or sister that can be included
within the legitime of the reservista, or 1/2 of the
estate (3 TOLENTINO, supra at 284).
This is based on generalprinciples of law and is
more equitable. It is rnore in line . with the
philosophy of the pres~ht cod~ of socialization
of property (Id. at 284-285).
2. Reserva Minima (PrQpoi:tional Reserva)
All the property passing. to the, resetvWa must
be considered as passing partly by operation of
law and partly by will of the descendant, and
therefore, one-half of the properties acquired
gratuitously by the descendant from, a~other
ascendant, or brother or sister, shquld b,l;l,
reservable, and the other half should be free
(Id.). .
Illustration: The descendant-propositus died
with a will wherein his mother is instituted as
universal heir. The net value of his hereditary
estate is P40,000. One-half of this estate (20T)
had been acquired gratuitously from his
deceased father, while the other half (20T} had
been acquired through his own efforts or
industry.
a. Reserva maxima - all of the properties
acquired from the father are reservable
because they can be contained · in the
mother's legitime. Therefore, the entire 20T
is reservable.
b. Reserva minima - one-half of said
properties acquired from the deceased
father shall be included in the legitime of the
mother which shall be considered as
SUCCESSION
,:
Civil Law
reservable, while the other half shall be
included in the free portion. Therefore, only
half of 20T (10T) is reservable (JURADO,
Succession, supra at 261-262).
EIFFECTS WHEN RESERVA TAR/O
ACQUIRES RIGHT
Upon the death of the reservista, the reservatario
nearest in degree to the descendant-propositus
bEicomes, automatically and by operation of law, the
absolute owner of the reservable property.
Consequently, the property is withdrawn
automatically from the estate of the reservista. It
cannot be sold for the payment of his debts (Id. at
276-277).
THE VALUE OF CAUSES FOR EXTINGUISHMENT OF
RESERVA TRONCAL: (RP 2 -LAW)
1. ,Registration by the reservista of the property as
free property under the Land Registration Act;
2. ,Erescription of the right of the reservatarios,
when the reservista holds the property adversely
against , them in the concept . of an absolute
pwner '(10 years from the death of the
·
proposffus);
3. Death of all relatives of fropositus within the
third 3rd degr~e who belong to the line from
which the property came; · .
4. ,boss of the reservable property for causes not
due-to the fault or:negligence of the reservista;
5. Death· of Ascendant reservista- and
6. Waiver o~renunciation by the 'reservatarios (Id.
at 277-283).
TRANSMISSIBILITY OF RIGHTS
· 1.. The rights of illegitimate children are transmitted
upon their death to their descendants, whether
legitimate or illegitimate (CIVIL CODE, Art. 902).
NOTE: 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, ( CIVIL CODE, Art. 992
or the Rule of Barrier between the Legitimate
and Illegitimate Family a.k.a. "Iron Curtain or Iron
Clad Rule"),
2. In the case of legitimate children, the person/s to
whom the right is transmitted must be legitimate
descendants (JURADO, Succession, supra at
301),
Thus:
1. Illegitimate children have no right of
representation with respect to their legitimate
parents.
 E¼M@ \ I
MEM✓Q~Y AID
San fleda University College of l..iw - RGCT Bar Operations Center
2. lllegitim8te children of illegitimate parents can
represent the latter in the inheritance of their
grandparents' estate (CIVIL CODE. Art. 992).
PRINCIPLE OF UNTOUCHABILITY OF
LEGITIME
GENERAL RULE: The testator cannot deprive his
compulsory heirs of their legitime. Neither can he
impose any burden, encumbrance, condition, or
substitution of any kind whatsoever (CIVIL CODE,
Art. 904).
Should there be any charge, condition, substitution
or encumbrance upon the legitime, said charge, etc.
shall be considered as not imposed ( CIVIL CODE,
Art. 872).
EXCEPTIONS:
1. Valid disinheritance (CIVIL CODE, Art. 915);
2. Reserva Troncal (CIVIL CODE, Art. 891);
3. Family Home (FAMILY CODE, Art. 159); and
4. When the testator expressly forbids the division
of the estate but not to exceed 20 years (CIVIL
CODE, Art. 1083).
If the testator has compulsory heirs, he·can dispose
of his property provided he does not impair their
legitimes (Hacbang v. Alo, G.R. No. 191031,
October 5, 2015).
Renunciation or compromise as regards future
legitime between the person owning it and his
compulsory heir is void (CIVIL CODE, Art. 905).
REASONS:
1. The rights of the heirs are merely inchoate
because it is only perfected upon the testator's
death. Hence, there is still nothing to renounce
or compromise (JURADO, Succession, supra at
306).
2. No contract maybe entered into with respect to
future inheritance except in cases expressly
authorized by law {CIVIL CODE, Art. 1347, Par.
2).
WHO MAY CLAIM NULLITY
RENUNCIATION OR COMPROMISE
1. Compulsory heir who renounced or
compromised his legitime; or
2. Any co-heir who may be prejudiced by such
renunciation or compromise (JURADO,
Succession, supra at 307).
However, if the claim for nullity is made only after the
death of the testator, it is required that the heir who
is filing the claim must bring to collation whatever he
might receive by virtue of the renunciation or
compromise (Id.}.
INCOMPLETE LEGITIME V.
PRETERITION
Remedy is to demand Effect is the total
for completion of annulment of the
legitime. institution of heirs.
(Id. at 306).
.. Any compulsory heir to whom the testator has left by
· ·. any title less than the legitime belonging to him may
de~~rid thah the same be fully satisfied ( CIVIL
CODE/Art: 906). This is their action ad supplendam
legitimam, of their right of completion of legitime.
Such relief/nu$! be sought during the distribution
and partition stage of a case for settlement of the
estate of their deceased parent (Ga/a v. El/ice Agro-
Industrial Corp., G.R. No. 156819, December 11,
2003y. /:,,;.,,' ,;·\ •·
NOTE: "Any title" means, for example, donation,
int,~state succession, remission, since a donation or
ii' i:emi~ion is merely an advance of the legitime. If
fnEfreis'a:real preterition, as when absolutely nothing
is given, the heir concerned is entitled not only to a
completion of his legitime, but also to the annulment
of the institution (3 PARAS, supra at 357).
REDUCTION OF INOFFICIOUS
TESTAMENT ARY DISPOSITIONS
Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be reduced
OF on petition of the same, insofar as they may be
inofficious or excessive (CIVIL CODE, Art. 907).
EFFECT OF INOFFICIOUS DONATIONS:
Donations inter vivas are to be reduced if found
inofficious (i.e. if they exceed the free portion) for no
person may give by way of donation more than he
may give by will (CIVIL CODE, Art. 752). The
donation is considered inofficious in all that it may
exceed this limitation (3 PARAS, supra at 300).
An alienation, however, which is for an onerous or
valuable consideration (as a sale) would be proper

since in this case, there merely is the substitution of
one kind of property for another (id.).
STEPS IN DISTRIBUTION OF ESTATE IF
THERE ARE DONATIONS:
1. Determination of the gross value of the
estate at the time of the death of the
testator (CIVIL CODE, Art. 908);
Gross value
a. If there is an administration proceeding:
it is the executor or administrator who, within
3 months after his appointment, shall return
to the court a true inventory or appraisal of
all the real and personal estate of the
deceased which have come to his
pOS$ession or knowledge.
b. If there is no administration proceeding:
it is the actual value of the estate
c. The valuation or appraisal may be made by
common agreement (JURADO,
Succession, supra at 314).
2. Determination of all depts and ch~rges
which are chargeable against the estate
(CIVIL CODE, Art. 908);
NOTE: Refers to the pre:existing obligations of
the testator during his lifetime, and riot to the
charges or burdens which are created by the
testamentary dispositions found_ in the will
because the latter are chargec3ble against the
portion at the testator's free disposal (JURADO,
Succession, supra at 314).
3. Determination of the net value of tt,e
estate by deducting all the debts _arid
charges from the gross value of the
estate (CIVIL CODE, Art. 908, par. ·1); ·
4. Collation or addition of the value of all
donations inter vivos to the net value of
the estate (CIVIL CODE, Art. 908, par. 2);
Value to be collated is the value of the donation
at the time the donation was made. Any loss,
deterioration, or improvement of the thing from
the time when the donation was made up to the
time of the settlement of the estate shall be for
the account or benefit of the donee (JURADO,
Succession, supra at 315).
Proceeds of an insurance policy where the
beneficiary is a third person or even a
compulsory heir belongs exclusively to the
beneficiary and not to the estate of the insured.
Hence, not subject to collation (Del Val v. Del
Val, G.R No. 9374, February 16, 1915).
SUCCESSION
Civil Law
In case of premiums, although they partake of
the nature of donations, it is submitted that so
long as they are paid from the income of the
insured and are not excessive, they are not
subject to collation (JURADO, Succession,
supra at 316).
!5. Determination of the amount of the
legitime from the total thus found (CIVIL
CODE, Art. 908); -
15. Imputation of the value of all donations
inter vivos made to compulsory heirs
against their legitime and of the value of
all donations inter vivos made to
strangers against the disposable free
portion and restoration to the hereditary
estate if the donation is inofficious (CIVIL
CODE, Art. 909); and
Imputation is merely a mathematical process of
determining whether the value of donation can
be contained in the legitime or disposable
portion, as the case may be, or not (JURADO,
Succession, supra at 317).
7. Distribution of the residue of the estat~
in accordance with the will of the testator
(Id. at 310-311). - -
MEANING OF COLLATION
1. Fictitious niatheniatical process of adding the
value of the thing c:fonated to the net value of the
hereditary estate (CIVIL CODE, Art. 908 and
Arts. 1061-1077).
,PURPOSE; To compute the legitime of
compulsory heirs (JURADO, Succession, supra
at 315).
2. Act of charging or imputing such value against
the legitime of the compulsory heir to whom the
thing was donated (CIVIL CODE, Arts. 1061-
1077).
PURPOSE: To take the donations in : the
account of partition in order to equalize the
shares -of the compulsory heirs as much as
possible (JURADO, Succession, supra at 315).
3. Actual act of restoring to the hereditary estate
that part of the donation which is inofficious in
order not to impair the legitime of compulsory
heirs (Id.). ·
 f#1MH·@ \ 1

MEM:Q~Y AID
San Seda University College of Law - RGCT Sru Operations Center

REDUCTION OF TESTAMENTARY 4. However, the amount left out of the disposable

portion will only be 15T which is less than the
DISPOSITIONS AND DONATIONS
amount of legacies made in favor of Y and Z.
The order of preference is:
Hence, pro rata reduction is necessary.
1. Legitime of compulsory heirs 5. Thus, to determine the legacy in favor of Y,
2. Donations inter vivos
Let: X = reduced legacy
In case of two or more donations where the
a. 15T = disposable free portion left out
disposable portion is not sufficient to satisfy
b. 1OT =: legacy to Y to be reduced
them, those of the recent date shall be reduced
c. 20T = total of all legacies in favor of Y and Z
( CIVIL CODE, Art. 773).
10T(15 150
3. Preferential legacies or devises X 10T
X T) T = P7,5
4. All other legacies and devises (CIVIL CODE, =
15 20T 00
Art. 911). 20T 20T
T
NOTE: The reverse order of the foregoing shall be
6. Hence, Y is entitled to 7,500. Using the same
followed in case reduction shall be necessary (3
formula, Z is also entitled to 7,500 for a total of
PARA, supra at 369).
15T (JURADO, Succession, supra at 322).
If after satisfying ·the legitime of compulsory heirs,
NOTE: Article 911 applies when aside from the
the disposable portion is sufficient to cover
various legacies and devises, there are legitimes to
donations inter vivas, but not the legacies and
be preserved (Id. at 363).
devises, the rule is that such legacies and devises
will be reduced pro rata, after satisfying those
Article 950 applies when there are no comp_ulsory
preferential ones (JURADO, Succession, supra at
h_eln, pr wh~pthere are no inofficious donations inter
321).
vivas (1dc)'.
Donations inter vivas are preferred over dispositions
mortis causa because the former are irrevocable by
their very nature. They have been perfected upon
the knowledge of the donor that the donee has DISINHERITANCE
accepted the donation (Id.).
-. _;.~~:i:s-
915-923)
On the other hand, testamentary dispositions are
unilateral in character and produce Juridical effects
only after the testator's death (Id.). · ·•J)l~INHERITANCE
.. ltis'tfietachof the testator in depriving a compulsory
Formula for Pro Rata Reduction:
heir of his legitime for causes expressly stated by
Reduced Legacy Legacy to be Reduced law (Id. at 327).

Disposable Portion Total of all Legacies It is the only instance recognized by the Civil Code
by which a compulsory heir may be deprived of his
Illustration: The net value of the testator's estate is legitime by the testator (Id.).
40T. During his lifetime, he donated to X 1OT. In his
will, he bequeathed 1OT each to Y and Z. He has a
son S. Distribute his estate.
PURPOSE:
To punish the ungrateful, the culpable, the cruel, the
Answer: unnatural heir or an unfaithful spouse. The purpose
The estate shall be distributed as follows: of disinheritance is not vengeance but retribution ( 3
1. Collate or add the donation in favor of X -to the PARAS, supra at 378).
estate. [10T + 40T = 50T]
2. Determine the legitime of his compulsory heir, REQUISITES: (LV-CUTS-RED}
and subtract it to the net value. In this case, S 1. For a cause exp"ressly stated by !:aw;
as the son is entitled to ½ of the estate. [50T x 2. Effected only through a yalid will;
½ = 25T]. Leaving a disposable free portion of 3. Cause must be f.ertain and true;
25T. [50T - 25T (legitime) 25T]. = 4. !:!_nconditional;
3. Since the 1OT donation in favor of X can be 5. Iotal or complete;
imputed to the disposable free portion, it will not 6. Cause must be §_tated in the will itself;
be reduced. 7. The will must not have been Revoked;

8. For an !;xisting cause; and
9. The heir disinherited must be designated in such
a manner that there can be no Qoubt as to his
identity (Id. at 381 ).
The last will of the testator may be embodied in
several documents. Taken together, they constitute
his last will and testament (JURADO, Succession,
supra at 328).
Tl1us, if.a compulsory heir is disinherited in one will
without a specification or l11e l.;ause, the same may
be cured if ll1e cause thereof shall be specified in
another will (Id.).
Since compulsory heirs may be disinherited only for
lawful causes, the courts may properly inquire into
the validity of a disinheritance (3 PARAS, supra at
379).
EFFECTS OF DISINHERITANCE:
1. Deprivation of the compulsory heir who is
disinherited of any participation in the
inheritance including the 'tegitime and free
portion;
2. The children/descendants of the person
disinherited shall take his or h~r place and shall
preserve the rights of compulsory heirs with
respect to the legitime; and
3. The disinherited parent shall not have the
usufruct or administration of the property which
constitutes the legitime (JURADO, Succession,
supra at 343). ··
Illustration: T has a son A. In his will, T said, "If A
tries to kill me, I will disinherit him". Later A rnally
tried to kill T and was duly cohvicted therefor. T,
however, never made any other Will.
1. Has A been validly disinherited?
2. Will A inherit anything?
Answer:
1. No, A has not been validly disinherited, because
the disjnheritance was conditional, and for a
cause that had not yet occurred at the time the
will was executed.
2. No, A will not inherit, not because of
disinheritance, but because he is incapacitated
to succeed, by virtue of Art. 1032(2), which
provides that any person who has been
convicted of an attempt against the life of the
testator is incapable of succeeding by reason of
unworthiness (3 PARAS, supra at 381)
Revocation of the disinheritance may be conditional
(Id.).
SUCCESSION
Civil Law
INSTANCES OF IMPERFECT
DISINHERITANCE
1. Disinheritance has no specification as to the
cause;
2. Disinheritance for a cause, the truth of which, if
contradicted is not proved;
3. Cause is not one of those set forth in the Civil
Code; and
4. When one or more of the requisites for a valid
ac:t of disinheritance is/are lacking (CIVIL
COD~, Art. 918).
EFFECTS OF IMPERFECT
DISINHERITANCE:
11. If testator had made a disposition of the
entire estate:
The institution of heirs is annulled insofar as it
may prejudice the person disinherited; does not
affect the dispositions of the testator. with
·respect to the free portion.
Devises, .legacies and other testamentary
dispositi9ns shall be valid to such extent as will
not impair the legitime ( 3 PARAS, supra at 385).
Illustration: A disinherited 8, and instituted C
and D as his heir$. 8, C, and D are all A's
legitimate cbildren.,The disinheritance of 8 was
invalid beca1,Jse it was for a cause not provided
by law. The heredit~ry estate is P900,000. How
much will each of ttie children receive?
Answer: .
B's legitim~ is P150,000 (he gets. this)
Cgets P:3'75,ooo.·
D gets P375,000
P900.000
The institution of heirs remains valid, but the
shares of the instituted heirs will be decreased
to·give 8 his legitime (Id.).
2. If testator did not dispose of the free
portion:
The compulsory heir is given all that he is
entitled to receive as if the disinheritance has
not been made, without prejudice to lawful
dispositions made by the testator in favor of
others (Id. at 386).
Illustration: T has two legitimate children, A
and-8. His estate is 1 million. In his will, T gave
A his legitime of¼ and ineffectively disinherited
8. How much will 8 get?
Answer: B gets P250,000 as legitime, and a
half share as intestate share in the free portion
of P500,000 (or P250,000). Thus, he gets a total
of P500,000 (Id at 385).
 1
t&&IMM '
MEM:Q~RY AID
San Bedn University College of law - .RGCT Bar Operations Center

IMPERFECT DISINHFRITANCF V.
PRETERITION
A will is always May exist with or
required. without a will (as when
everything is given to
only one of the
compulsory heirs by
way of donation inter
vivas).

May be VALID when all The institution is always

of the requirements of VOID, except when the
the law are met. preterited heir
predeceased the
testator.
(Id. at 327-328; 343-344).

Illustration: X died leaving his instituted heirs

namely: his wife W, and his 2 daughters A & B
without designating their respective shares. His 3 rd
daughter, C, however, was omitted entirely without
being disinherited. In the will, X also bequeathed a
legacy of P20,000 to A. The net value of the estate
is P240,000~ ·How shall such estate be distributed?
Institution remains Institution is completely
valid, but must be annulled. Answer: There was preterition in this case. Thus,
reduced insofar as the the rules of intestacy shall be applied. The P20,000
legitime has been was not lnofficious because it can easily be
impaired. containecj in. the disposable free portion. The
distribution shall be as follows:
(JURADO, Succession, supra at 329).

VALID DISINHERITANCEV.
PRETERITION

A 40,000 15;000 20,000 75,000

B 40,000 15,000 55,000
C 40,000 15,000 55,000
w 40,000 15,000 55,000

However, if there was imperfect disinheritance in the

abovementioned problem such that there was
The cause must always May be with or without a disinheritance without any specification of the cause,
be stated in the will and cause. the estate shall be distributed as follows:
it must be true and
legal.

The disinherited heir Preterition annuls the

inherits nolliir,y. institution, therefore the B 40,000 20,000 60,000
omitted heir inheritr..
C 40,000 40,000
w 40,000 20,000 60,000

The disinheritance of C was defective for failure to
state the cause or ground of disinheritance. C will not
get a part of the free portion because the effect of
imperfect disinheritance is only to annul. the
institution of heirs insofar as it prejudices the legitime
of the disinherited. The effect differs from preterition
where the annulment of the institution of heirs is total
(Id. at 330-331).
A document, entitled "Kasulatan ng Pag-Alis ng
Mana;'' although it may initially come across as a
mere disinheritance document, is considered a will if
it conforms to the formalities prescribed by law.
While it does not make an affirmative disposition of
the testator's property, the disinheritance of an heir,
nonetheless, is an act of disposition in itself (Dy
Yieng Seangio v. Reyes, G.R. Nos. 140371-72,
November 27, 2006).
There is no preterition when the document merely
mentions the name of one of the heirs, and does not
operate to institute him as the universgJ.Jieir. In this
case, there is no institution of an - heir, "to the_
exclusion of other compulsory heirs" (Dy Yieng
Seangio v. Reyes, G.R. Nos. 140371~72,Nov~mber
27, 2006).
COMMON CAUSES FOR
DISINHERITANCE OF CHiLDREN OR
DESCENDANTS, PARENTS OR
ASCENDANTS, AND SPOUSE; (AFAR)
1. When the heir has beep fQuricf guilty Of .
an Attempt against the;_ life pf the
testator, his/her desce"ndalits, or ·
ascendants, and spOµse ih. case ··01
children and parents;
Requisites:
a. The disinherited heir must have committed
either attempted or frustrated par'ricidEl
against the testator; and
b. He must have been convicted by final
judgment of said criminal offense.
Applicable whether as principal, accessory
or accomplice (Id. at 333).
NOTE: If the attempt is made by the spouse,
conviction is not necessary (Id. at 342).
Even if there is no previous criminal
conviction, the attempt, if it is made against
the life of the testator, will constitute a valid
ground for disinheritance under Art. 919(6)
(maltreatment of the testator by word or
deed) of the Civil Code; provided all the
requisites for said ground are present (Id. at
333).
SUCCESSION
Civil Law
If after conviction there is pardon,
disinheritance is still proper, unless, the
pardon be based on the heir's complete
innocence (3 PARAS, supra at 30).
Conviction for "homicide thru reckless
imprudence" is not a ground under par. (1)
in view of the absence of intent to kill (Id.).
2. When the heir by Eraud, violence,
intimidation, or undue influence causes
the testator to make a will or to change
one already made;
3. When the heir has Accused the testator
of a crime for which the law prescribes
imprisonment for 6 years or more, if the
accusation has been found groundless;
and
'Requ•sites:
a. Heir accused the testator of a crime;
b. Penalty for the crime is imprisonment for 6
years or mpre; and
c: Accusation must have been found to be
groundl!:!SS (JURADO, Succession, supra at
333-334). .
The .heir shall mak~ the accusation either in the
capacity of a complainant or of a witness (id. at
334).
There must be. a judicial declaration that the
accusation has been found groundless (3
TOLENnNO, supra at 362).
Acquittal of tht::1 testator on the ground of lack of
proof of guilt beyond reasonable doubt, or lack
-· oforiminaf intent does not necessarily mean that
.the accusation was groundless (Javier v.
Lucero, G.R. No. L-6706, March 29, 1954). In
'other words, the testator would not have the right
to disinherit the accusing heir (3 PARAS, supra
at 390.
4. Refusal without justifiable cause to
support the testator who disinherits
such heir
Judicial demand for support is not necessary (3
TOLENTINO, supra at 362). However, the
refusal must be without justifiable cause (Id. at
363). If with justifiable cause, the disinheritance
is imperfect or ineffectual (JURADO,
Succession, supra at 334).
Examples of justifiable reasons include: reduced
resources resulting in the neglect even of his
own needs, and the testator's fortune improved
that he no longer needs support (Id.).
 +&Si#@ \ 1

MEM:Q~Y AID
San Beda University Coliege of Law ~ RGCT Sar Operations Center

PECULIAR CAUSES FOR or refusal to perform the natural and legal

DISINHERITANCE obligations of care and support which
parents owe · to their children (Santos v.
1. Children/Descendants: (C-MAD) Aranzanso, G.R. No. L-23828, February 28,
a. Conviction of a crime which carries with it a 1966)
penalty of civil interdiction;
b. Maltreatment of the testator by word or deed Inducing their daughters to live a corrupt
by the child/descendant; and immoral life comprehends the act of
the· parents in inducing their daughters or
NOTE: Must be intentional or voluntary (Id. granddaughters, by advice, force,
at 335). intimidation or any other positive act, to live
a life of corruption and immorality (JURADO,
· NOTE: Maltreatment by an ascendant of a Succession, supra at 337).
descendant does not constitute a ground for
disinheritance as it is generally in the Attempt against their virtue includes any
exercise of a power. The reverse is, criminal act against the child's chastity by
however, repugnant to natural law and the parent/s either as principals, co-
therefore a ground for disinheritance ( 3 principals or accomplices (Id.).
PARAS, supra at 393).
c. Loss of parental authority for causes
c. When the child/descendant has been specified in the Code; and
convicted of ~dultery or concubinage with
the spouse of the testator; and NOTE: There must be an actual loss
effected by final judgment (Id. at 338).
NOTE: Final judgment of conviction is an
essential requisite (JURADO, Succession, TwQ :Views on the Effect of Restoration of
supra at 334).
Pafe-~tal Authority
1st View: No effect on the disinheritance
d. When the child/descendant · leads a bec,adse the ground or basis for the
Dishonorable or disgraceful life (it includes disinheritance is not the loss of parental
both male and female descendants) (CIVIL
authority but the offense committed by the
CODE, Art. 919, par. 7).
offender (f<J. at 339).
NOTE: In this ground, final conviction is not
necessary (DE LEON, Sue.cession, supra at
, '.~oct)Jtiw/rtie testator would be deprived
of his , right to disinherit his parent or
427). It may cover adultery or concubinage ascendant, or it would render the
without conviction (JURADO, Succession,
disinheritance ineffectual because the legal
supra at 334).
· basis for disinheritance would no longer
exist (Id.).
NOTE: The Code Commission broadened
the scope of Art. 853 of the Old Civil Code
Reconciliation of the Two Views:
which only covered the act of prostitution by Even if there is a restoration of the parental
a daughter (3 PARAS, supra at 393).
authority brought about by absolute pardon
A single act is not ordinarily sufficient, for
or by the spouses or reconciliation, it cannot
"leading a life" implies continuity to be a
erase the existence of the offense against
sufficient cause for disinheritance (Id.). the testator. The law allows the testator to
punish not the consequence of the offense
2. Parents/Ascendants: (CALA) but the offense itself (Id. at 340).
a. When the parent/ascendant has been
convicted of adultery or foncubinage with Grounds for Loss of Parental Authority in
the spouse of the testator; Relation to Disinheritance: (CLEB)
b. When the parents have ~bandoned their i. Treats the child with gxcessive
children or induced their daughters to live a harshness or cruelty;
corrupt or immoral life, or attempted against ii. Gives the child forrupting orders,
their virtue; counsel, or example;
iii. Compels the child to ~eg; or
Abandonment - refers to the failure of the iv. Subjects the child or allows him to be
parents to give their children due care, subjected to acts of _basciviousness.
instruction and support (JURADO,
Succession, supra at 337). It means neglect

The grounds enumerated above are
deemed to include cases which have
resulted from culpable negligence of the
parent or the person exercising parental
authority (Id. at 338-339; FAMILY CODE,
Art. 231).
d. ~ttempt by one of the parents against the
life of the other, unless there has been
reconciliation between them (CIVIL CODE,
Art. 920, Par.2).
NOTE: Final judgment of conviction is not
necessary (JURADO, Succession, supra at
340).
3. Spouse: (LP)
a. When the spouse has given cause for hegal
separation (FAMILY CODE, Art.55); and
NOTE: Criminal conviction is not a condition
sine qua non (JURADO, Succession, supra
at 342), Neither is a decree· 'of legal
separation (3 PARAS, supra at 399).
b. When the spouse has given grounds for the
loss of ~arental authority (CIVIL CODE, Art.
921).
GROUNDS FOR REVOCATION OF
DISINHERITANCE: (RIN)
1. Reconciliation;
2. Making of new will making the disinherited heir
an Instituted heir.; and
3. Nuliity of the will which contains the
disinheritance (3 PARAS, supra at 402).
The fact that a void will containing a disinheritance
is denied probate cannot be said to revoke a
disinheritance for there never was fl valid
disinheritance. Hence, there is nothing to revoke
(Id.).
Once disinheritance has been revoked or rendE:red
ineffectual, it cannot be renewed except for causes
subsequent to the revocation or based on new
grounds (3 TOLENTINO, supra at 373).
RECONCILIATION
It is either an express pardon extended by the
testator to-the offending heir or unequivocal conduct
of the testator towards the offending heir which
reveals the testator's intent to forgive the offense
(BALANE, Succession, supra at 402).
It implies mutual restoration of feelings to the status
quo, that is, to the relationship existing prior to the
commission of the act which strained said
relationship (3 PARAS, supra at 399).
SUCCESSION
Civil Law
If the parents should again live together in the same
l10use, reconciliation between them is thereby
presumed (/d. at 399).
F?econciliation = Pardon + Acceptance of Pardon
Pardon by the testator must have been accepted by
the offender. thus resulting in a reconciliation
between the two (JURADO, Succession, supra at
343).
·1. If express pardon - A general pardon extended
by the testator on his deathbed to all who have
offended him will not suffice; it must be a pardon
expressly and concretely extended to the
offender, who accepts it (BALANE, Succession,
supra at 402 citing 6 Manresa, Op. Cit., p. 567).
2. If conduct - the intent to forgive must be clear.
This is ultimately "a question of fact (which) will
be resolved, in case of controversy, by the
court_s" (Id.).
Nb particular form is required. It may be made
expressly or tacitly (3 PARAS, supra at 401).
Effects of Sllbsequent Reconciliation:
·1. Deprives the offended party of the right to
disinherit; and
2. Renders ineffectual any disinheritance that may
have been 'made (CIVIL CODE, Art. 922).
Effect of Subse~uent Reconciliation if ground for
DisinheritanceJs Unwprthiness to Succeed
·1. If disinheritance has been made: Rule on
reconciliation ·applies. The disinheritance
becomes)neffective (CIVIL CODE, Art. 922).
NOTE: If the cause of unworthiness was made
a groupd for disinheritance and there is
reconciliation, the mere fact of reconciliation
€lxtinguishes the unworthiness and no written
docu·ment is needed for a condonation ( 3
PARAS, supra at 402).
2. If disinheritance has not been made: Rule on
reconciliation does not apply. If the cause of the
disinheritance is also a cause of unworthiness,
the heir continues to be incapacitated to
succeed unless pardoned by the testator under
Art. 1033 of the Civil Code (Id.).
RIGHT OF REPRESENTATION IN
DISINHERITANCE
The children and descendants of the person
disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect
to the legitime only (CIVIL CODE, Art. 923).
NOTE: The right of representation extends only to
the legitime. If the disinherited person had been
9iven any legacy, devise, or part of the free disposal,
 ME~Q~Y AID
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same will go to the substitutes, if any; if none, to the Compulsory heirs charged with a sub-legacy are
other heirs, leQatees, or devisees by r1c:cretion if liable in proportion not to how much each actually
proper; if accretion is not proper, same should go to inherits, but only in proportion to their institution to
the legal heirs by intestacy ( 3 PARAS, supra at 404). the free disposal (3 PARAS, supra at 407).

In testamentary succession, the right of Illustration: T has an estate of P1 million. A and B,

representation can take place only in the direct Ts legitimate children, were instituted in this way: A
descending line, but never in the ascending to 3/5 and B to 2/5. However, they were required to
(JURADO, Succession, supra at 344). give Fa legacy of P50,000. How much should each
contribute?

A: A was given P600,000 (250,000 as legitime and

LEGACIES AND DEVISES P350,000 as free portion); B was given P400,000
(P250,000 as legitime and P150,000 as free
(ARTS. 924-959) portion). Since their institution to the free portion is
in proportion of P350,000 to P150,000 (or 35 to 15),
it follows that of the PS0,000 sub-legacy, A must give
P35,000 and B must give P15,000 (Id.).
PERSONS CHARGED WITH LEGACIES
AND DEVISES: Example of Sub-legacy or Sub-devises
1. Compulsory heir; The testator said, "I give my car to L, but I want L to
2. Voluntary heir; give P500,000 to X".
3. Legatee or devisee; and NOTE: The legacy of the car to L is an ordinary
4. Estate (JURADO, Succession, supra at 345) . . legacy; but the legacy of P500,000 to X is a sub-
legacy having been imposed upon L (Id.).
If the will is silent as to who shall pay or deliver the
legacy/devise: LJJ\BILITY,FOR EVICTION
1. If there is an administration proceeding, it 1. If devise or ·legacy is indeterminate or
constitutes a charge upon the estate. generic: .The heir who is charged with the
2. If there are no administration proceedings, it is a payment or delivery of the devise or legacy shall
charge upon the heirs (Id.). be liqble in case of eviction.

NOTE: A legacy is "bequeathed"; while a devise is 2. lfdeVi!;e or J~~y is determinate or specific:

"devised" (3 PARAS, supra at 404).
EXTENT OF LIABILITY
LEGATEES/DEVISES
The legatees/devisees shall be liable for the charge
to the extent of the value of the legacy/devise
received (JURADO, Succession, supra at 345-346).
LIABILITY WHEN NO ONE IS CHARGED
Should the testator not charge any legc1tee or
devisee in particular, all shall be liable in the same
proportion in which they may inherit (Id at 346).
The payment of a legacy provided for in a will cannot
be ordered by the court unless the estate of the
deceased has first been liquidated, i.e., the assets
determined and all debts, taxes and expenses have
been paid (Pastor, Jr. v. Court of Appeals, G.R. No.
L-56340, June 24, 1983).
The hefo.wM•is charged cannot be held liable in
case of eviction (JURADO, Succession, supra
OF . at 346-347).
•' NOTE: If the legacy or devise is a burden not on the
heir but on the estate itself, there is no warranty
against eviction, whether the legacy be specific or
generic, if there were court proceedings which
ordered the givfng of such legacy or device. In this
case, there was court approval (3 PARAS, supra at
409). .
SOLIDARY LIABILITY OF HEIRS WHO
TAKE POSSESSION
If two or more heirs take possession of the estate,
they shall be solidarily liable for the loss or
destruction of a thing devised or bequeathed, even
though only one of them sh0uld have been negligent
(CIVIL CODE, Art. 927).

PRINCIPLE OF UNTOUCHABILITY OF
THE LEGITIME OF COMPULSORY HEIR
The compulsory heir shall not be liable for the charge
beyond the disposable portion given to him ( CIVIL
CODE, Art. 925, par. 2). It should not affect his
legitime.
\ ~ : ',; , • \ )~ 1 :,,'' ~·· e;, ! \. y ,:: ' '" -~~ -:,,";; ~
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SUCCESSION
I>: I \ : ';;\. / : I' •-' {i ';:._,
Civil Law

LEGACY/DEVISE 0~ THINGS An order to acquire the unowned p3rt is not essential

BELONGING TO ANOTHER for it is sufficient for the declaration to be express
(Id.).
1. If there was an erroneous belief on the
part of the testator that the property or EFFECTS OF PARTITIOM
thing bequeathed was his:
In case of subsequent division or partition between
The legacy or devise shall be void because you
the owners in common:
cannot give what you do not possess or own
1. If the thing is physically divisible or
(JURADO, Succession, supra at 349).
convenient of division: Art. 929 of the Civil
Code applies.
NOTE: But if the thing bequeathed, though not
belonging to the testator when he made the will,
2. If the thing is physically indivisible or
afterwards becomes his, by whatever title, the
inconvenient of division: the rules applicable
disposition shall take effect ( CIVIL CODE, Art.
shall depend upon whether the thing is finally
930). The acquisition by subsequent title is an
adjudicated to the testator or to the other owner
example of an acquisition between the time of
applying the provisions of Arts. 929 and 930 of
the making of the will, and the testator's death.
the Civil Code {JURADO, Succession, supra at
This would be justified since after all, the will
347-348).
becomes effective only at the time the testator ·
dies (3 PARAS, supra at 412).
EIFFECTS OF PARTITION WHEN THE
2. If the testator knew that the property or PIROPERTY IS NOT DIVISIBLE:
thing belonged to another: 1. Adjudication to the testator
The legacy or devise shall be valid. a.. If testator .did not bequeath the entire
Consequently, there shall bea presumption.that property:· the legacy or devise shall be
the thing must be acquired by the .executor or effective ·onjy as to the part formerly
administrator or by an heir expressly charged belongin'g to tl)e testator before tne partition;
with such obligation (JURADO, Sur;cession, b. If testat9r . bequeathed the entire
supra at 349-350). · property: t~e yvhole property shall pass to
the heir, devisee or legatee (JURADO,
LEGACY/DEVISE OF THINGS Succession, suprnat 348).
BELONGING PARTLY TO ANOTHER
;l,, Adjudication to a third person
GENERAL RULE: The legacy of devise s/1all be
a. If testator did not bequeath the entire
understood to be limited to. the testator, heir, or
property: the legacy or devise shall be
legatee's part or interest (CIVIL CODE, Art. 929).
wittiout effect (CIVIL CODE, Art. 957).
b. If . testator bequeathed the entire
EXCEPTION: Testator may expressly decl9 re that
property: the legacy or devise shall be
he bequeaths or devises the thing in its entirety
without effect only as to the part formerly
(JURADO, Succession, supra at 347).
· belonging to the testator but shall still be
· effective with respect to the part of the third
Requ~sites: (EK)
person {JURADO, Succession, supra at
1. Ah !;xpress declaration to that effect appearing
348).
inl the will itself; and
2. .!S_nowledge on the part of the testator that the
In Art. 929, the stranger PARTIALLY owns the
thing belongs partly to a third person (can be
property. In Art. 930, the stranger WHOLLY owns
proven from the context of the will or from
the property (3 PARAS,' supra at 412).
extrinsic evidence) {/d. ).

NOTE: For the exception to apply, the testator must WHEN TEST ATOR ORDERS
"expressly declare that he gives the thing in its ACQUISITION
entirety." This clause has been interpreted to mean The heir upon whom the obligation is imposed or the
that the whole is being given despite the testator's E,state must acquire it and give the same to the
knowledge that he does not own the entire thing. If h::lgatee or devisee; but if the owner refuses, or
the testator thought he owned the whole thing, and clemands an excessive price, the heir or estate shall
he says that he gives the whole thing, only the part only be obliged to give the just value to the
that he owns should be given, the rest being a void legatee/devisee (CIVIL CODE, Art. 931).
legacy, unless of course, subsequent to the making
of the will, he becomes the owner of said remainder NOTE: In Art. 931, the testator knows that he is not
- "by whatever title" (3 PARAS, supra at 410). the owner of the thing being given (3 PARAS supra
at 413).
 fAfiiiihffi \ 1
MEM:Q-RY Al D
San Seda University College of Lew - RGCT Bar Operations Center
LEGACY OF THINGS BELONGING TO
LEGATEE
The legacy or devise of a thing which at the time of
the execution of the will already belonged to the
legatee or devisee shall be ineffective even though
another person may have some interest therein
(CIVIL CODE, Art. 932, par. 1).
EFFECT OF ACQUISITION BY LEGATEE
(JURADO, SUCCESSION, SUPRA AT
351-352):
1. If the thing belonged to a third person at
the time of the execution of the will;
a. If the testator erroneously believed that
it was his: the legacy or devise shall be void
and the subsequent acquisition shall have
no effect.
b. If the testator had knowledge that it was
not his: the second paragraph of Art. 933 is
applicable. ·
i. If the legatee or devisee acquires it
gratuitously, he can claim nothing by
virtue of the legacy or devise.
ii. If the legatee or devisee acquires it by
onerous title, he can demand -
reimbursement.
2. If the thing belonged to the testator at the
time of the execution of the will; a11d
a. If thing is alienated in favor of a third
person: legacy or devisEJ is rev()ked by Art.
957 and the subsequent acq\Jisiti6riicannot
revive the legacy or devise. · ·
b. If the thing is alienated in favor of the
devisee or legatee: there is rio revocation.
3. If the thing belonged to the ben~ficiaryat
the time of the execution of the wjll:_ the
legacy or devise shall be without effect,
even though it may have been
subsequently alienated by him (CIVIL
CODE, Art. 933, par. 1).
a. If the legatee or devisee acquires it
gratuitously after the execution of the will, he
can claim nothing by virtue of the legacy or
devise;
b. If it has been acquired by onerous title after
the execution of the will, he can demand
reimbursement from the heir or the estate
(CIVIL CODE, Art. 933, par. 2).
DISPOSITIONS IN GENERAL TERMS
A disposition made in general terms in favor of the
testator's relatives shall be understood to be in favor
of those nearest in degree ( CIVIL CODE, Art. 959).
PLEDGED OR MORTGAGED
LEGACIES/DEVISES
When the thing bequeathed has been given as a
security for a recoverable debt, the estate shall be
obliged to pay the debt, unless a contrary intention
of the testator appears (CIVIL CODE, Art. 934, pars.
1-2). The legatee/devisee should receive it free from
the encumbrance (3 PARAS, supra at 418).
Any other charge, perpetual or temporary with which
the leyw..:y/uevise is uurdened, passes to the
legatee/devisee (e.g. usufructs, easements, leases
which are real rights) (CiVIL CODE, Art. 934, par. 3).
LEGACY OF CREDIT AND REMISSION
OF DEBT
Legacy of Credit - takes place when the testator
bequeaths to the legatee a credit which he has
against a third person (CIVIL CODE, Arts. 935-937;
3 PARAS, supra at 421).
There is, in effect, a novation of the credit by
• subrogating the legatee in the rights of the original
creditor (JURADO, Succession, supra at 354). If the
third person pays to the testator, the legacy or devise
sha!Fbedeemed to have been extinguished.
Example: tis b's creditor for P1 Million. In his will,
T gave this credit to L (3 PARAS, supra at 421).
Legacy _of Rimis~ion of Debt - waiver of a debt
existi119- 9 tJl)e, time the will was made and in the
amounfi oiitst~(i~ibg at the time of the death of the
testator (CiVJL CODE, Arts. 935-937; 3 PARAS,
_ supra at 422).
' ,· : -i'-.';'"
Exa~pte:'T is D's creditor for Pt Million.
In his will,
was remitted this debt of D (3 PARAS, supra at 421).
NOTE: Effective only as regards to credit or debt
existing at the time of the death of the testator (CIVIL
CODE, Art. 935, par. 1).
Kinds of Legacy of Remission of Debt
1. Generic - comprises all debts existing at the
time of the execution of the will but not
subsequent ones.
2. Specific - comprises only the debt which is
specifically mentioned in the will.
3. Legacy to the debtor of the thing pledged by him
(JURADO, Succession, supra at 354).
Revocation of Legacy
It takes place when the testator, after having made
the legacy of credit or remission of debt, brings a
judicial action against the debtor even if payment
should not have been effected at the time of death
(CIVIL CODE, Art. 936, par.1).

The legacy of credit shall be considered revoked
if the testator shall:
1. Bring an action against the debtor for payment
of his debt; and
2. There must be a judicial demand, hence an
extrajudicial demand shall not be sufficient to
revoke the legacy (JURADO, Succession, supra
at 355).
LEGACY TO CREDITORS
Legacy/devise made to creditor shall not be applied
to his credit, unless the testator provides otherwise
( CIVIL CODE, Art. 938).
ALTERNATIVE LEGACIES/DEVISES
Those where the testator bequeaths or devises two
or more things but which can be complied with by the
delivery of only one of them to the beneficiary
(JURADO, Succession, supra at 356).
To Whom Choice is Given:
1. The heir, upon whom the obligation to give the
legacy or devise is imposed; or · · ...
2. The executor or administrator, if n,o heir is
obliged (CIVIL CODE, Art. 940,par, 1) ..
NOTE: Choice will have to bemade:upon the death
of the testator. Once the choice is made, it is
irrevocable, and the leg;:icy becomes simple
(JURADO, Succession, supra af 356).
If the heir, legatee or devisee dies oefore making the
choice, this right shall pass to theif respedive heirs
(Id. at 357). . .
The choice must be communicated to the recipient,
after which the communication the alte~native legacy
becomes a simple one (3 PARAS.supra at 427).
GENERIC LEGACIES AND GENERIC
DEVISES
Generic Legacy - legacy consisting of personal
property designated merely by its class or genus
without any particular or physical segregation from
all others of the same class (JURADO, Succession,
supra at 357-358).
Example: The testator bequeaths "10 horses" to A.
A legacy of generic personal property is valid even if
there be no such things of the same kind in the
estate (CIVIL CODE, Art. 941, par. 1).
Generic Devise - refers to a devise consisting of
real property designated merely by its class or genus
without any particular designation or physical
segregation from all others of the same class
(JURADO, Succ.ession, supra at 358).
SUCCESSION
Civil Law
Example: The testator bequeaths 5 hectares of "rice
lands"toA ·
A devise of indeterminate real property is valid only
if there be immovable property of its kind in the
estate (CIVIL CODE, Art. 941, par. 2).
WHEN RIGHT TO DEVISE OR LEGACY IS
TRANSMITTED
1. If specific - from the testator's death
2. If generic - from the time a selection has been
made, so as to make the property specific
3. If alternative - from the time the choice has been
made
4. If acquired from a stranger by virtue of an order
by the testat9r - from the moment of such
acquisition (JURADO, Succession,· supra at
360-362).
LEGACY FOR EDUCATION AND
SUPPORT (CIVIL CODE, ART. 944)
,IA legacy for education lasts until the legatee is of
age, or beyond the age of majority in order that the
legatee may finish some professional, vocational or
9eneral course, provided he pursues his course
diligently.
A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such
legacies, it shall be fixed in accordance with the
social standing and the circumstances of the legatee
and the value of the estate.
Wthe testator or during his lifetime us.ed to give the
legatee a certain sc1m of money or other things by
way of support, the same amount shall be deemed
IJequeathed, unless it be markedly disproportionate
to the value of the estate.
ILEGACY/DEVISE SUBJECTED TO
SUSPENSIVE TERM
What is suspended by the term or period is not the
acquisition of the right but merely the demandability
of the right (JURADO, supra at 360).
!LEGACY/DEVISE SUBJECTED TO A
SUSPENSIVE CONDITION
What is acquired upon the death of the testator by
the legatee/devisee is only a mere hope or
expectancy. Such hope or expectancy is converted
into a pertected right only from the moment of the
fulfillment of the condition (Id.).
If the legatee/devisee, after the death of the testator,
dies before the fulfillment of the condition, he cannot
transmit his expectancy to his own heirs (Id.).
 awm» ' '
MEM:Q~Y AID
San Seda University College ot Law RGqT Bar Operations Cente1

CLASSIFICATION OF LEGACIES
1. As to effect

a third person and the by virtue of the

legatee/devisee acquired the legacy/devise
property gratuitously after the
Belonging to the testator at the Effective
execution of the will {CIVIL
time of thA execution of the will
until his rleath.
cone, Art. 933).
Testator had knowledge that the Legatee/devisee
Belonging to the testator at the Revoked
thing bequeathed belonged to a can demand
time of the execution of the will
third person arid the reimbursement
but alienated in favor of a third
legatee/devisee acquired the from the heir or
person (CIVIL CODE, Art. 957).
property by onerous title (CIVIL estate
Belonging to the testator at the No revocation. CODE, Art. 9'33).
time of the execution of the will There is a clear
but alienated in favor of the intention to comply
legatee/devisee gratuitously with legacy or
(JURADO, Succession, supra devise.
at 352).
Within the commerce of man
Belonging to the testator at the Legatee/devisee Owned by testator
time of the execution of the will can demand Owned by stranger if there is an order, express
but alienated in favor of the reimbursement or implied, to acquire it fr6m him
legatee or devisee onerously from the heir or Given because of moral obligation
(Id). estate 5·. ,Given a$llatural obligation
6. Geni}nb'personal property - even if there be
Not belonging to the testator at Effective
none in thE; estate
the time the will is executed but
he has ordered that the thing be
acquired in order that it be given
to the legatee/devisee (CIVIL 1. Outside the commerce of man
CODE, Art. 931). 2. ·Qw:m1.9 by str;;inger but mistakenly believed by
Not belonging to the testator at Void testator:tq.J)e:owned by the latter (unless later
the time the will is executed and owned by the latter)
the testator erroneously 3. Legacy in a void will
believed that the thing pertained +. Generic real property if there be none of its kind
to him {CIVIL CODE, Art. 930). . ih ,the estate
5. If totally inofficious
Not belonging to the testator at Effective
the time the will is executed but
afterwards becomes his by
whatever title (CIVIL CODE, Art. 1. Those revoked expressly
930). 2. Those revoked impliedly as when same
(legacy) is given to another by a subsequent
Already belonged to the Ineffective will
legatee/devisee at the time of 3. Those revoked by implication of law -
the execution of the will even transformation, alienation by testator except
though another person may when reacquired by right of repurchase or
have interest therein {CIVIL judicial demand
CODE, Art. 932). 4. Destruction or loss thru a fortuitous event
5. Intentional destruction by testator
Already belonged to the legatee Ineffective
6. Predecease, repudiation, incapacity of legatee·
or devisee at the time of the
7. Disinheritance if legatee is compulsory heir
execution of the will even
though it may have been (3 PARAS, supra at 455-456).
subsequently alienated by him
(CIVIL CODE, Art. 933).
Testator had knowledge that the Legatee/devisee
thing bequeathed belonged to can claim nothing
 SUCCESSION
Civil Law

RULES ON PREFERENCE Form is the external appearance while

denomination is the name by which it is known
by all (JURADO, Succession, supra at 373).

The transformation must be both with respect

(LIPO) (RPSESO) to the form and denomination (Id.).
1. !,egitime of 1. Remuneratory L/0
compulsory heirs 1. freferential L/0 When the testator donates or sells the property
2. Donations lnter 2. L for ~upport bequeathed, there is implied revocation of the
vivos 3. L for gducation disposition. The presumption under the law is
3. _Ereferential legacies 4. L/0 of a ~pecific, that there has been a change of intention ( 3
or devices determinate thing PARAS, supra at 450-451).
4. All Qther legacies or which forms a part
devices pro rata of the estate There arises a presumption that the testator's·
5. All Qthers pro rata. intention has changed (Id.).

2. Revocation by Alienation
When the testator by any title or for any cause
1. When the reduction 1. When there are no alienates the thing bequeathed, or any part
is necessary to compulsory heirs thereof, it being understood that in the latter
preserve the and the entire estate case the legacy or devise shall be without effect
legitime of is distributed by the only With, respect to the part alienated (CIVIL
compulsory heirs testator as ·legacies CODE, Art. 957, par.2).
from impairment or devises; or . .
whether there are 2. When . there .are GENERAL RU\..E: If the thing alienated should
donations inter vivas compulsory heirs but again belong to the testator even it be due to the
or not; or their tegitime has nullity of the contract, there can be no revival of
2. When, although the already been the legacy/devise (CJ/VIL CODE, Art. 957, par.2).
legitime has been . provided fo~ by the
preserved by the · testator and there EXCEPTION: The reacquisition was effected by
testator himself, are· · no donations the exercise · , of the right of
there are donations inteh,rivos (Id.). repurchase/fodemption (CIVIL CODE, Art. 957,
inter vivas par.2).
(JURADO,
Succession, supra 3.· Revocation byLoss or Destruction
at 363). Thing bequeathed is totally lost during the
Hfetime of the testator, or after his death without
NOTE: In case of reduction in the· above cases, the thefaLlltofthe heir/s (CIVIL CODE, Art. 957, par.
inverse order of payment should be folJpwed. 3);

EFFECT OF INEFFECTIVE '.'Loss" refers both to both physical loss and legal
or juridical loss, as in expropriation proceedings
LEGACIES/DEVISES (3 PARAS supra at 453).
GENERAL RULE: In case of repudiation, revocation
or incapacity of the legatee or devisee, the 4(. Revocation by bringing an action
legacy/devise shall be merged with the mass of the
against the debtor for payment of debt
hereditary estate.
(CIVIL CODE, Art. 936, par. 1).
EXCEPTION: In cases of substitution or accretion
(CIVIL CODE, Art. 956).
!>. Other causes:
a. Nullity of the will;
b. Noncompliance with suspensive conditions
GROUNDS FOR REVOCATION OF affecting the bequests;
LEGACIES AND DEVISES c. Sale of the thing to pay the debts of the
1. Revocation by Transformation · deceased during the settlement of his
When the testator or his agent transforms the estate; or
thing bequeathed in such a manner that it does d. Revocation of legacy of credit/remission of
not retain either the form or the denomination it debt (CIVIL CODE, Art. 957 in relation to Art.
had (CIVIL CODE, Art. 957, par.1). 830, par. 1).
 M EM✓O~Y AID
1

San Beda Urnveraily College of Law ROCT 6or Operations Center

NOTE: T.he list is NOT exclusive (3 INTESTATE SUCCESSION VS.

TOLENTINO, supra at 428). COMPULSORY OR FORCED
A mjstake in the name of the thing bequeathed
SUCCl;SSION
or devised, is of no consequence, if it is possible
to identify the thing intended by the testator
(CIVIL CODE, Art. 958).

A disµusition made in general terms in favor of

the testator's relatives shall be understood to be Founded on provisions Obligatory, regardless of
in favor of those nearest in degree ( CIVIL of law as expressing the decedent's desires or
CODE, Art. 959). the presumed will of wishes
the decedent
"Relatives" must be within the 5th degree, since
persons farther than this are no longer Suppletory to testate Takes place whether the
considered relatives. It is evident that relatives succession and takes deceased has left a will
by affinity are excluded (3 PARAS supra at 453). place only in default of or not and is therefore
the latter superior to and
independent of
testamentary succession
LEGAL OR INTESTATE Suppletory to and Superior to and
SUCCESSION takes place only in independent of testate
.. default of testate succession
(ARTS. 960-1014)" succession

The. heirs\are called Heirs are called

legal orihtestate heirs, compulsory heirs and
LEGAL OR INTESTATE SUCCESSION but they :are not they are all legal ·heirs
A mode of transmission mortis causa which takes necessarily
place in the absence of the expressed will of the compulsory rieirs (e.g.,
decedent embodied in a testament (3 TOLENTINO, brothers·and·
; .,
sisters)
,~

supra at431). (DE L/;QN,.\: qucc,e;,sion, supra at 488-489;

CHARACTERISTICS:
1. Legal
- because it takes effect by operation of law.
2. Intestate
- because it takes place in the absence,or in
default of a last will of a decedent (JURADO,
Succession, supra at 377).
BASIS: The law has put itself in the place of the
deceased and made what it presumes he would
have done if he had been able to express his will. It
has made the presumed will of the deceased the
basis of intestate succession, taking into
consideration human affection or love and blood
relationship (3 TOLENTINO, supra at 431-432).
CAGiJ/OA_r;eomnj/infs and Cases on Civil Law, p.
346 [hereiriafter CAGUIOA, Civil Law]).
· Cau1:>es of Intestacy: (SWIPER-P 2 AIR)
'-1:,.?'Npn+f,ulfillment of .§uspensive condition
attached to the institution of heir;
2. If a person dies without a Will, or with a void will,
or one which has subsequently lost its validity;
3. !ncapacity of instituted heir;
4. J:redecease of the instituted heir;
5. ~xpiration of term or period of institution;
6. _Repudiation by the instituted heir;
7. !:artial institution of heir, in which case, intestacy
takes place as to the undisposed portion (mixed
succession);
8. e_reterition, in which case intestacy may be total
or partial depending on whether or not there are
legacies/devises;
9. ~bsence of an instituted of heir;
10. Non-compliance or !mpossibility of compliance
with the will; and
11. Fulfillment of [!esolutory condition ( CIVIL
CODE, Art. 960; JURADO, Succession, supra at
378-379).

In all cases, where there has been an institution ot
heirs, follow the (1.S.R.A.1.) order:
1. If the !nstitution fails, .§ubstitution occurs.
2. 1f there is no §>ubstitute, · the right of
Bepresentation applies in the direct descending
line to the legitime if the vacancy is caused by
predecease, incapacity, or disinheritance.
3. The right of ~ccretion applies to the free portion
when the requisites in Art. 1016 are present.
4. If there is no substitute, and the right of
representation or accretion does not apply, the
rules on !ntestate succession shall take over.
RULES ON INTESTATE SUCCESSION:
1. Rule of Preference Between Lines
Those in the direct descending line shall exclude
those in the direct ascending and collateral
lines, and those in the direct ascending line
shall, in turn, exclude those in the collateral line
(Id. at 380).
2. Rule of Proximity
The relative nearest in degree excludes ,the
more distant ones, saving the _right of
representation when it properly takes place
( CIVIL CODE, Art. 962, par. -1).
This rule presupposes that.all of the.• relatives
belong to the same line. ltis subordinated to the
rule of preference between lines (e.g., :although
the son and the father of the decedent are both
one (1) degree removed froni the latter, (he.son
shall exclude the father) (JURADO, Succession,
supra at 381). · ·
3. Rule of Representation. _
It modifies the Rule of Proximity. the more
distant relatives belonging to the sar:ne qforss as
the person represented are raised fo the p(ace
and degree of such person and acqu1re · the
rights which the latter would have acquired if he
were living or if he could have inherited (Id. at
389).
It is the means by which the descendants of a
child, in default of the latter because of prior
death, disinheritance, or incapacity, can take his
degree or place. It is superior to right of accretion
(Id.).
Illustration: If the decedent is survived by his
son, A, and by his grandchildren, C and D,
children of a deceased, or incapacitated, or
disinherited child, B, under the law, C and D are
not excluded by A in the succession in spite of
the rule of proximity, because, by right of
representation, they are raised to the place and
degree of their deceased or incapacitated, or
disinherited father.
SUCCESSION
Civil Law
As a general rule, nephews ancJ 11ie<.:e:; c11 e
excluded by a brother, but such exclusion is
nullified by representation. Thus if the decedent
is survived by his brother, X, and his nephews,
A and B, children of a deceased brother, Y, such
nephews shall still participate in the succession
by right of representation (Id. at 381).
4.. Rule of Equal Division
Relatives in the same degree shall inherit in
equal shares (CIVIL CODE, Art. 962).
EXCEPTIONS:
a. Division in the ascending line (between
paternal and ma·ternal grandparents);
b. Division among brothers and sisters, some
of whom are of the full and others of half-
blood;
c. Division in cases where the right of
representation takes place; and
d. pivision between legitimate and illegitimate
children (DE LEON, Succession, supra at
497). ·
NOTE:· 'This 'rule is subject to the rule of
preferehce .between lines (JURADO,
Succession, supra at 381).
Illustration,:
C
A
E F
X is. · survived by his son, A, and his
grnnctc~ildren, D, E and F. D is the child of a
deceased son of X (B); E and Fare the children
of another deceased son of (C).
It is clear that A shall inherit in his own right,
while the grandchildren shall inherit by right of
representation. D shall receive the share that
would have gone to his father if the latter were
alive; E and F shall also receive the share that
would have gone to their father if the latter were
also alive. Hence, although they are all two
degrees removed from the decedent, D shall
receive twice as much as either E or F (Id. at
382-383).
 MEM✓Q~Y Al D
San Beda University College of Law - RGCT Bar Operations Center

5. Rule of Barrier between the Legitimate
Family and the Illegitimate Family (Iron
Curtain Rule)
The illegitimate family cannot inherit by intestate
succession from the legitimate family and vice-
versa (CIVIL CODE, Art. 992).
6. Rule of Double Share for Full Blood
Collaterals ·
Should brothers and sisters of the full blood
survive together with brothers and sisters of the
half blood, the former shall be entitled to a share
double that of the latter (CIVIL CODE, Art.
1006).
Children of brothers and sisters of the half-blood
shall succeed per capita or per stirpes, in
accordance with the rules laid down for brothers
and sisters of the full blood (CIVIL CODE, Art.
1008).
7. Rule of Division of Line
Decedent is survived by two (2) grandparents
(GP) in the paternal line and one (1) GP in
maternal, the inheritance shall be divided one
half (½) to GPs in the paternal line, while one
half(½) to GP in the maternal line (CIVIL CODE,
Art. 987).
RULES ON RELATIONSHIP:
1. Number of generations determines proximity;
2. Each generation forms a degree;
3. A series of degrees forms a line;
4. A line may be direct or collateral;
incapacitated heir or heirs by right of accretion
(CIVIL CODE, Art. 968).
EXCEPTION: If the incapacitated heir happens to be
a child or descendant of the decedent and he has
children or descendants of his own, then the share
which is rendered vacant by reason of incapacity
shall pass to such children or descendants by right
of reprcscntrition (JUR/\DO, Succession, supra at
386).
REPUDIATION
1. If by one or some of the relatives: his/their
portion shall accrue to the others of the same
degree, save the right of representation when it
should take place (CIVIL CODE, Art. 968).
2. If by all of the relatives: those of the following
degree shall inherit in their own right. The
inheritance shall be distributed among them per
capita (CIVIL CODE, Art. 969).
NOTE: In both instances, the right of representation
cannot be applied (JURADO, Succession, supra at
386).
,,RJ;ibN: ¼ii heir who repudiates his inheritance
may not b'1 'r~presented (JURADO, Succession,
supra at 3B6f ·
lllustrati9n (D,E LI;ON, Succession, supra at 505):
D
C

•
a. Direct Line
Constituted by the series of degrees among
ascendants and descendants (ascending z
and descending).
b. Collateral Line .
A, B, and C are the legitimate children of D. X and y
Constituted by the series of degrees among
are the legitimate children of A; W, the legitimate
persons who are not ascendants or
child of B; and Z, the legitimate child of C. The value
descendants, but who come from a common
of the hereditary estate is P120,000.
ancestor.
1. If only B repudiates: A and C will get P60,000
5. Full blood (same father and mother) and half-
each.Wis excluded because there is no right of
blood (only one of either parent is the same);
representation in case of repudiation ( CIVIL
and ( CIVIL CODE, Arts. 963 - 967).
CODE, Art. 977). X and Y are excluded by A,
6. In legal and intestate succession, the adopter(s)
- and Z by C, because the nearer in degree
and the adoptee shall have reciprocal rights of
exclude . the more distant ( CIVIL CODE, Art.
succession without distinction from legitimate
962).
filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on
2. If A, B, and C repudiate the inheritance: There
testamentary succession shall govern (R.A.
being no right of representation, the estate will
8552, Sec. 18).
be divided among the four grandchildren
P30,000 each in their own right ( CIVIL CODE,
INCAPACITY Art. 977).
GENERAL RULE: The share or shares which are
rendered vacant shall pass to the co-heirs of the
 "· •,
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SUCCESSION
~ , > ' ,, y Civil Law
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3. If A, B, and C are all incapacitated or de.cedent by right of representation (JURADO,

predeceased: The grandchildren will inherit by Succession, supra at 390).
right of representation and not in their own right
Hence, X and Y will each get P20,000. W gets INOTE: The subrogation or the representation
P40,000 and Z gets P40,000. ( CIVIL CODE, Art. obtains degree by degree, the inferior one
974 and Art. 982). representing the relative immediately higher in
degree. No jump is made.
RIGHT OF ACCRETION
If there are several relatives of the same degree.and There is transmission only with respect to
one or some of them are unwilling or incapacitated inheritance conferred by law.
to succeed, his portion shall accrue to the others of
the same degree, save the right' of representation In testamentary succession, it takes place only with
when it should take place (CIVIL CODE, Art. 968). respect to the legitime (JURADO, Succession, supra
at 395).
Illustration (OE LEON, Succession, supra at 503):
WHEN REPRESENTATION TAKES
D
_PLACE: (PIO)
-1.Eredecease (testate and intestate);
A !ncapacity (testate and intestate); and
3. Qisinheritance (testate succession) (JURADO,
Succession, supra at 390).

A, B, and Care legitimate children of D. X and Y <'ire
A's legitimate children. The value the hereditclry
estate is P60,000.
If A is incapacitated: A's share of P20,000 shall
accrue to B and C unless -a substitute has been
appointed by D in which case, the si;ibstitute shall get
P10,000, A's share of the fr~e portion. Hence, Band
C will each get P20,000 in his own';right and P5,000
by virtue of accretion. · ,
A right created by fiction of l13w, by°virtue of which
the representative is raised to the plac~ and demee
of the person represented, and acquiresJhe rights -
which the latter would have if he were living Qi" if.he
could have inherited (CIVIL CODE, Art. 970).
By virtue of this right, the relative neareshn degree
does not always exclude. the more remote ·ones .
(JURADO, Succession, supra at 389).
The representative does not succeed the person
represented but the one whom the person
represented would have succeeded (JURADO,
Succession, supra at 390).
CONSEQUENCES:
1. Representative must be capable of succeeding
the decedent;
2. Even if the representative is incapable of
succeeding the person represented, he can still
inherit by right of representation so long as he is
capable of succeeding the decedent; and
3. Even if the representative had repudiated his
inheritance coming from the person
represented, he can still inherit ftom the
In testamentary succession, since a vacancy in the
of inheritance occur&, the children or descendants of
the person reprl3sented are called to succeed by
right of representation. The person represented
must be a compulsory tieir of the testator in the direct
descending line. (JURADO, Succession, supra at
390) .
l11 legal or intestate st,1ccession, the basis, like that
of other rights of suc;c~ssion which take effect by
operation bf law, \,•the presumed will of the
clecedent(JURADO, Succession, supra at p. 391)
CHARACTERISTICS:
1, a
lt)s right of subrogation;
2'.. It is an e·xception to the rule on proximity and
~qua! division among relatives of the same class
and degree;
3-. The representative is called to the succession by
the law and not by the person represented;
4, The representative succeeds the decedent not
the person represented;
5. The representative must himself be capable of
inheriting from the deceased (3 PARAS, supra
at 477)
6. It can only take place when there is a vacancy in
the inheritance brought about by either
predecease, or incapacity, or disinheritance of
an heir; and
7. The right can be exercised only by the
grandchildren or descendants of the decedent
(JURADO, Succession, supra at 389~390).
FtEPRESENTA TION IN
DESCENDING LINE
It takes place in the direct descending line, but never
in the ascending line (CIVIL CODE, Art. 972).
 ibWk414t1§ \ 1
MEM✓Q-RY Al D
San Seda University College of Law - RGCT Bar Operations Center
· Occurs in the Following Cases:
1. Children concur with grandchildren, the latter
being the children. of other children who died
before the decedent or who are incapable of
succeeding the decedent;
2. All children are dead or are all incapable of
succeeding the decedent and grandchildren
concur with great-grandchildren, the latter being
the children of other grandchildren who died
before. the decedent or who are incnpablc of
succeeding the decedent; and
3. All children are dead or are all incapable of
succeeding the decedent leaving children or
descendants of the same degree (JURADO,
Succession, supra at 392).
NOTE: In the descending line, the right of
representation is unlimited with regard to the
descendants .who may succeed (3 TOLENTINO,
supra at 450).
REPRESENTATION IN COLLATERAL
LINE
An exceptional case where the right does not take
place in the direct descending line but in the
collateral line in favor of children of brothers .and
sisters of the decedent, whether they may be of full
blood or half-blood (JURADO, Succession, supra at
392).
LIMITATIONS:
1. The right can be exercised only by nep~ews and
nieces of the decedent, whether they of the
full blood or half-blood;
2. The right can be exercised by the· nephews or
nieces of the decedent if they will concur with at
least one brother or sister of the decedent (CIVIL
CODE, Art. 975);
3. If the n(;)phews and nieces are the only survivors,
they shall inherit in their own right and not by
right of representation (CIVIL CODE, Art. 972);
and
4. The right is possible only in intestate sµccession
(JURADO, Succession, supra at 392-393).
5. The right cannot be exercised by grandnephews
and grandnieces (Delgado Vda. De Dela Rosa
vs. Heirs of Marciana Rustia, G.R. No. 155733,
January 27, 2006).
Illustration: A and B are C's brothers. D is the child
of A, and E
of B, while F is the child of D. C died without leaving
a will. A, B and D are likewise dead. May F inherit
from C? ·
Answer: F cannot inherit from C. True, he is a fourth
degree relative by blood of the decedent, but he is
excluded by E, a nephew, and therefore, a third
degree relative by blood of said decedent.
The right of representation does not take place in the
instant case. In the coltateral line, representation
takes place only in favor of the children of brothers
and sisters, whether they be of the full or half blood
( CIVIL CODE, Art. 972), and only if they survive with
at least one uncle or aunt who is a brother or sister
of the decedent (CIVIL CODE, Art. 975). Both
conditions are not present here.
F is a grandnephew of the d1::H.;1:;der1l C, not a
nephew. He concurs with a nephew of the decedent,
not with a brother or sister. Therefore, the only way
by which he can inherit would be in his own right.
Unfortunately for him, under the principle of
proximity recognized in Art. 962, he is excluded by E
(JURADO, Succession supra at p. 393).
REPRESENTATION BY ILLEGITIMATES
By virtue of Arts. 989 and 990, illegitimate child can
represent only when the parent represented is an
illegitimate child of the decedent (the representative,
the person represented, and the decedent are all
related to each other by illegitimate filiation
(JURADO, Succession, supra at 417).
.••. An: illegitimate
descendant of a legitimate child
cann6h~present the latter for Article 992 prevents
intestate sugcession between an illegitimate child
and the legitimate relatives of his father or mother
(DE LEON, SUCCf::SSion, supra at 971).
REPRESENTATION
.s ,, IN ADOPTION
be GENl:~~r;;g~J.;J;fAdopted child succeeds to the
property c:i'f1the'.adopter in the same manner as a
legitimate child.
.. 'tKea(JQpting parent should die before the adopted
child, thi:i'Jatter cannot represent the former in the
inheritance from the parents or ascendants of the
adopter
The adopted child is not related to the parents or
ascendants of the adopter. Because the filiation
created by fiction of law is exclusively between the
adopter and the adopted ( 3 TOLENTINO, supra at
448).
The legitimate children and descendants of the
adopted child cannot represent him in the
succession to the estate of the adopting parent (Id.
at 448-449).
EXCEPTIONS (CIVIL CODE, Arts. 971 And 973):
1. An adopted cannot inherit from the legitimate
parents or ascendants of the adopter either by
representation or in his own right; and
2. The legitimate children or descendants of the
adopted cannot also inherit from the adopter
either by representation or in their own right (Id.
at 449).
 SUCCESSION
Civil Law

The relationship established by adoption is limited when subsequently his grandfather dies (JURADO,
solely to the adopter and the adopted and does not Succession, supra 399-400).
extend to the relatives of the adopting parents or of
the adopted child except only as expressly provided REGULAruNORMAL ORDER OF
for by law (Teotico v. Del Val, G.R. No. L-18753, SUCCESSION (DECEDENT IS A
March 26, 1965).
LEGITIMATE PERSON):
EFFECT UPON DIVISION OF ESTATE 1. Legitimate children 6r descendants (LCD);
2. Legitimate parents or ascendants (LPA);
Whenever there is succession by representation, the 3. Illegitimate children or descendants (ICD);
division of the estate shall be made per stirpes, in 4. Surviving spouse (SS);
such manner that the representatives shall not 5. Brothers and sisters, nephews and nieces
inherit more than what the person they represent (BS/NN);
would inherit, if he were living or could inherit ( CIVIL 6. Other collateral relatives within the 5th degree
CODE, An. 974).
(C5); and
7. State (JURADO, Succession, supra at401).

The representative He acquires all of the
acquires all of the rights rights which the person
which the person represented had with
represented had with respect to his entire
respect to his legitime. legal portfon.
(JURADO, Succession. supra at 395)
SUCCESSION BY NEPHEWS ANO
NIECES
When chrldren of one or more brothers or sisters of
the deceased survive, they shall inherit from the
latter by representation, if they survive w)th their
uncles or aunts. But if they alone survive, they shall
inherit in equal portions ( CIVIL CODE, Art, 975).
Where nephews or nieces concur with thei_r uncles
or aunt, the former inherit by right of representation
(per stirpes), while the latter in their own right (per
capita) (DE LEON, Succession at 512).
Where nephews or nieces alone survive, without any
uncle or aunt, they inherit in their own· right; and
therefore, the division among them is per capita (Id,).
Succession is by group, Succession is by head
with all those in the or one's own rights, with
same degree within the descendants in the
group inheriting in equal same degree inheriting
shares. equally.
(Id. at 511)
REPUDIATION BY REPRESENTATIVE
A person may represent him whose inheritance he
has renounced (CIVIL CODE, Art. 976).
IRREGULAruABNORMAL ORDER OF
SUCCESSION (DECEDENT IS AN
ILLEGITIMATE PERSON):
1. Legitimate children or descendants (LCD);
2.- Illegitimate children or descendants (ICD);
3. Illegitimate parents (IP);
4. SuD1ivingspouse (SS);
E>. Brothers and · •sisters, nephews and nieces
(BS/NN); and
ti. State (Id. at 401-402).
The order of intestate succession is based both on
the principle of exclusion and the principle of
concurrence (Id.· at 403).
PRINCIPLE OF EXCLUSION
The heirs higher in the order of succession exclude
those who were lower in that order of succession,
except thatwhen the latter are compulsory heirs they
preserve their rights to legitime (3 TOLENTINO,
supra at 457).
The principle of exclusion is still applied literally to
the case of parents or ascendants, collateral
relatives, and the State. In the case of others, the
principle of concurrence applies (JURADO,
Succession, supra at 403).
!PRINCIPLE OF CONCURRENCE
Under the principle of concurrence, the illegitimate
children and the surviving spouse, who are not only
legal or intestate heirs but are also primary
compulsory heirs, even when they concur with
legitimate children and descendants or with
legitimate parents and ascendants, . are not only
entitled to their legitime, but are also given a share
in the disposable free portion (Id.).
1llustration: X is the testator: He has A & Bas his
1

If a child renounces or repudiates his inheritance legitimate children and C as an illegitimate child. His
when his father died, he may stiff represent the latter, net estate is P80,000.
 f:fEM✓Q~Y AID
San Bede University Co!lege of Law - RGCT Bar Operations Center

Following the rules on intestate succession, A & B

shall jointly receive half of the estate which is
P40,000 so each will get P20,000. C, on the other
hand, being an illegitimate child shall only receive insufficient,
P10,000. There shall be an excess of P30,000 How reduction must
shall the P30, 000 be divided? be made
according to
1. Exclusion theory: The P30,000 shall be divided the rules on
by A & B 011ly. legltlme. The
2. Concurrence theory: The P30,000 shall be legitime of LCD
divided among A, B & C. and SS shall
always be first
TABLE OF INTESTATE SHARES satisfied in
preference to
that of the !CD.

Any class Entire estate Rule of Proximity NOTE: The

alone (Art. 962 of the legitime of each
Civil ~ode) illegitimate
child shall
LCD; Entire estate; Rule of Proximity consist of 1/2 of
LPA Excluded (Art. 962 of the the legitime of
Civil Code) a legitimate
child (Art. 176,
1 LCD; 1/2; (Arcenas v. Cinco, Family Code)
ss 1/2 G.R. No. L-29288,
November 29, 2 br ·:more First, satisfy the Concurrence or
1976) LCD; · 1egitime. In Exclusion Theory
SS; case of excess
2 or more Consider SS as Concurrence ICD in; the estate,
LCD; 1 LCD, and Theory distribute such
ss then divide excess in the
estate by total :Pf9PBi:tion
number. ;gi?11';. in
accordance
LPA; 1/2; Art. 997 of. the
with the
ss 1/2 Civil Code
concurrence
LPA; 1/2; Art. 991 of the theory.
!CD 1/2 Civil Code
1. DESCENDING DIRECT LINE
ICD; 1/2; Art. 998 of the
ss 1/2 Civil Code Includes Legitimate CD, Legitimated CD and
adopted children (JURADO, Succession, supra
LPA; 1/2; Art. 1000 of the at 404).
SS; 1/4; Civil Code
ICD 1/4 Legitimate children from the first and second
marriages are entitled to inherit, and failure to
IP; 1/2; The law is silent. include anyone of them makes the extrajudicial
ss 1/2 Apply settlement void (Neri v. Heirs of Uy, G.R. No.
concurrence 194366; October 10, 2012).
theory (JURADO,
Succession, Rules of Division
supra at 410). If the decedent is survived by legitimate children
or descendants, the rules ,are as follows:
SS; · 1/2; Art. 1001 of the a. If all of the survivors are legitimate children,
BS/NN 1/2 Civil Code such children shall inherit in their own right.
Consequently, the inheritance shall be
1 LCD; First, satisfy the Concurrence or
divided among them per capita or in equal
SS; legitime. If Exclusion Theory
shares.
ICD estate would be
 SUCCESSION
Civil Law

b. If some of the survivors are legitimate TABLE OF INTESTATE SHARES IN THE

children and the others are legitimate
ESTATE OF AN ADOPTED
descendants of other legitimate children
who died before the decedent, the former
shall inherit in their own right and the latter
shall inherit by right of representation. LCD; Ordinary rules of
Consequently, the inheritance shall be ICD; intestate succession.
divided among them per stirpes. ss 2:2:1
c. If all of the survivors are legitimate
grandchildren, such grandchildren shall
LPNIP; 1/2;
inherit by right of representation. Similarly, if
Adopter 1/2
some of the survivors are legitimate SS; 1/2;
grandchildren and the others are legitimate Adopters 1/2
children or descendants of other legitimate
grandchildren who died before or who are ICD; 1/2;
incapable of succeeding the decedent, such J\dopters 1/2
grandchildren and descendants shall inherit
by right of representation (JURADO, ICD; 1/3;
Succession, supra at 405-406). SS; 1/3;
,l\,dopters 1/3
Illustration (DE LEON, Succession, supra at 521):
Adopters alone Entire
A
Ordinary rules of
Collateral alone
intestate succession.

~
D

E F G
A
J K
(FAMILY CODE, Art: 190).

NOTE: Art 984 of the Civil Code has been

'A
L M
A is the decedent. B, C, D are his children. E, F. G,
H and J are the grandchildren: K and L are J's
children. Estate is P900,000. B;'_C, D, and J
predeceased A. Divide the property.
Answer: E, F and G will divide B's share of
P300,000 equally. Each will get P1Q0,ooo~
superseded by Art.' 190 of the Family Code. Art.
190 .of the Family_ Code applies only in legal or
intestate su!:;cession (DE LEON, Succession,
supra at 523~524): •
2. A~CEN01NGDIRECT LINE
In default.of legitimate children and descendants
of the .deceased, his parents and ascendants
shc1U inherit from him, to the exclusion of
.coll.atefal relatives (CIVIL CODE, Art. 985).

H will get C's share of P300,000.
. subject to reserva troncal in cases where the
K, L, and M will divide D's share of P300,000, as
follows: K - P150,000, and Land M - P75,000 each.
a. Adopted Children
An adopted child succeeds to the property of the
adopting parents in the same manner as a
legitimate child (CIVIL CODE, Art. 979).
An adopted child is entitled to all the rights and
obligations provided by law to a legitimat~
sons/daughters born to the adopters without
discrimi_nation of any kind (R.A. No. 8552 or the
Domestic Adoption Act of 1998, Sec. 17).
The adopter(s) and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation in legal and
intest-ate succession (R.A. No. 8552 or the
Domestic Adoption Act of 1998, Sec. 18).
The $hare of the parents or ascendants may be
requisites are present.
Rules of Division
a. In default of the mother and father, the rule
of proximity shall be applied. In other words,
the ascendants nearest in degree shall
inherit. .
b. Should there be more than one equal
degree belonging to the same line, they
shall divide the inheritance per capita
(JURADO, Succession, supra at 415).
Illustration: If descendant is survived only by A,
paternal grandfather, and B and C, maternal
grandparents, ½ of the entire inheritance is
given to A, while the other half shall be given to
B and C, which they shall divide per capita (Id.).
 . ' ,
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ME~Q,RY AID
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San Beda University Co/1ege of Law - RGCT ·ear Opecations Center ~•,·":_,:~ ~ -" , : ::', - - ' ':
3. ILLEGITIMATE CHILDREN b. E cannot represent B in the succession from
Illegitimate children exclude collaterals, in this A's estate (CIVIL CODE, Art. 992).
sense, they are superior to the surviving spouse c. Both F and G can represent C who is
(Id. at 416). illegitimate (CIVIL CODE, Art. 990).

Principle of Absolute Separation Between 4. SURVIVING SPOUSE

the Legitimate Family and the Illegitimate
Family (Barrier or Iron Curtain Rule)
A11 illegitimate child has no right to inherit ab
intestato from the legitimate children and
relatives of his father or mother; neither shall
such legitimate children or relatives inherit in the
same manner from the illegitimate child (CIVIL
CODE, Art. 992).
An impassable barrier exists separating or
dividing the members of legitimate family from
those of the illegitimate family (JURADO,
Succession, supra at 419).
He or she shall always inherit. The universal rule
is that a legal heir who is also a prim3ry
compulsory heir (surviving spouse) at the same
time is always entitled to the legitime which the
law has reserved (JURADO, Succession, supra
at 426).
Surviving spouse is placed in the same category
as each of the legitimate children state {Id.).
TABLE OF SHARES (SURVIVING
SPOUSE/SS

REASON: Intervening antagonism and

incompatibility between members of the SS gets the same share
legitimate family and those of the illegitimate LCD as that of each child
family (Id). ( CIVIL CODE, Art. 996).

1. SS: ½
NOTE: Succession to the estate does not go
LPA. 2. Parents/ascendants:
beyond the parents by nature (Id. at 422).
½ (CIVIL CODE, Art.
997).
When the law speaks of brothers and sisters,
nephews and nieces, as legal heirs of an 1. SS: ½
illegitimate child, it refers to illegitimate brothers
ICD or I.CD's 2. Illegitimate children
and sisters as well as the child whether or illegitimate
legitimate or illegitimate of such brothers and desce11dants,;(whe,ther children's
sisters legitimate; -..... '. . . or descendants: ½
illegitimate)
(CIVIL CODE, Art.
In default of brothers and sisters, nephews and 998).
nieces, the law does not go any farther, other
collaterals are not allowed to inherit by intestate 1. LCD/s: ½
succession from the illegitimate child, the entire LCD/s and ICD/s or 2. SS:1 LCD;
estate shall pass to the state (J/JRADO, their descendants 3. ICD: ½ of 1 LCD
Succession, supra at 425). (whether legitimate or
illegitimate) If only 1 LCD: 2:2:1
Illustration (DE LEON, Succession, supra at ( CIVIL CODE, Art. 999).
533):
1. LPA:½
2. SS: ¼
A LPA and IC
3. ICD: ¼ (CIVIL
CODE, Art. 1000).
' B(leg.).,-~C(illeg.)
1. SS: ½

I\
D(leg.) E(illeg.) F(leg.}
I\ G(illeg.)
BS/NN 2. BS/NN: ½ (CIVIL
CODE, Art. 1001).

In case of a legal separation, if the surviving

Band C predecease A, decedent. D, E, F, and
G are the four grandchildren who survived.
a. D can represent his father B in the
succession from X's estate.
spouse gave cause for the legal separation, he
or she shall not have any of the rights granted in
the preceding articles (CIVIL CODE, Art. 1002).
Illustration: If the decedent, for instance, is
survived by his widow and four legitimate

children, and the inheritance is P60,000, the
method of distribution would be merely to divide
the P60,000 by five. The result would be
P12,000 for each, of the survivors (JURADO,
Succession, supra at 426).
5. COLLATERAL RELATIVES
They can only refer to those within the fifth
degree (CIVIL CODE, Art. 1010).
Role of Proximity (CIVIL CODE, Art. 962).
GENERAL RULE: Where two (2) or more
collaterals concur in the succession, the nearest
in degree shall exclude the more ren:iote one.
EXCEPTION: Right of Representation in the
collateral line is recognized but extended only to
nephews and nieces.
Rule of Preference
Where survivors are of the same degree, the
Rule of Preference by reason of r_elationship by
the whole blood is also recognized but can be
applied only to brothers and sisters ornephews
and nieces and not to other collaterals
(JURADO, Succession, supra aJ' 445). This
means that should brothers and sisters of the full
blood survive together with brott,ers and sisters
of the half blood the former shall be entitled to a
share double th~t of the latter (CIVIL CODE; Art.
1006).
Should brothers and sisters . survive together
with nephew and nieces/who are children 6f the
decedent's brothers and sisters of the full blood,
the former shall inherit per c;apita, and the latter
per stirpes (CIVIL CODE, Art 1005).
If the only survivors are nephews and nieces of
the full or of the half blood, they shait sqcceed to
the entire inheritance in their own right. The rule
of preference by reason of blood relationship
may be applied (JURADO, Succession, supra at
449). Which also means that nephews and
nieces of the full blood shall be entitled to a
share double that of the half-blood (CIVIL
CODE, Art. 1008).
6. STATE
SUCCESSION
Civil Law
Illustration (JURADO, Succession, supra at
448):
D E F G
X is the decedent who is survived by:
a. A, a brother of the full blood;
b. D and E, nephews of the full blood, children of
B, another brother of the full blood who had
predeceased X; and
c. F and G, nephews of the half blood, children
of C, a brother of half-blood, who also had
predeceased X.
The decedent's estate is P25,000. How shall it
be distributed?
' .
Answer: The P25,000 shall be divided into three
shares in the proportion of 2:2:1 (CIVIL CODE,
Arts. 975, 1005, and 1006).
A shall be entitled to 2/5 of P25,000, or P10,000;
D and E shall also ~e entitled to 2/5 of P25,000
0
or P10,000, by right of representation; while F.
and G shall be entitled to only 1/5, or P5,000, by
right of representation.
Consequently, the distribution shall be as
·follows:
A==P10,000, in his own right
D = P5,000, by right of representation
E = P5,000, by right of representation
F = P2,500, by right of representation
G = P2,500, by right of representation
P25,000
Should there be neither brothers and sisters, nor
children of brothers and sisters, the other
collateral relatives shall succeed to the estate.
They shall succeed without distinction of lines or
preference among them by reason of
relationship by the whole blood (CIVIL CODE,
Art. 1009).
In default of LCD., PA, ICD, SS and collateral
relatives within the 5th degree (CIVIL CODE, Art.
1003).
In order that the State may take possession of
the property of the decedent, the procedure for
 M*EM✓Q~Y Al D
San Beda University College of law - RGCT Bar Operauons Cente,

Escheat (RULES OF COURT, Rule 91) must be Within five years from the date of the judgment
observed. (RULES OF COURT. Rule 91, Sec. 4).

Escheat CARDINAL PRJNCIPLES OF INTESTATE

A proceeding, unlike that of succession or SUCCESSION
assignment, whereby the state, by virtue of its
1. Even if there is an order of intestate succession,
sovereignty, steps in and claims the real or
the Compulsory Heirs (CH) are never excluded.
personal property of a person who dies intestate
2. Right of Representation (RR) in the collateral
leaving no heir (Republic v. CA and Solano, G.R.
line occurs only in intestate succession; never in
No. 143483, January 31, 2002).
testamentary succession because a voluntary
heir cannot be represented as provided in Art.
Requisites for Escheat: (IP-No)
856 (1).
a. The decedent died Intestate;
3. The intestate shares are either equal to or
b. He dies seized of real and/or personal
greater than the legitime. _ .
property located in the r_hilippines; and
4. GENERAL RULE: Grandchildren always mhent
c. He leaves no heir or person entitled to such
by RR, provided representation is proper.
real and personal property (JURADO,
EXCEPTION: Whenever all the children
Succession, supra at 453-454).
repudiate, the grandchildren inherit in their own
right because RR would not be proper.
PURPOSE: In the absence of a lawful owner, a
property is claimed by the state to forestall an
open "invitation to self-service by the first
5: Nephews and nieces inherit either by RR or in
their Own Right (OR).
comers" (RCBC v. Hi-Tri Development
a. RR: when they concur with aunts and uncles
Corporation, G.R. No. 192413, June 13, 2012!-'
(provided that RR is proper).
b. OR: :,vhen they do not concur with aunts and
Assignment of Property .
uncJ_e,s.
If personal property, it is the city or municipal•':/
where the deceased last resided in the Philippines
6. ICD of legitimates cannot represent because of
(CIVIL CODE, Art. 1013).
the barrier, but both the ICD and LCD of
illegitimates can.
If real property, it is the city or municipality in which
7. There can be reserva troncal in intestate
the property is situated (CIVIL CODE, Art. 1013).
succession.
EXCEPTION: If the deceased never resided in the
8. A c rknoUncer
.c~n represent, but cannot be
repre'S'e~ted'{CIVIL CODE, Art. 976).
Philippines - respective cities or municipalities
9. A person who cannot represent a near relative
where the real or personal property is located (CIVIL
CODE, Art. 1013). .{'. ,_,cannot also represent a relative farther in degree
•. :t, (;,.f:J,,4~S,
, y ':•v
supra at 531-533).
; , • ' •• •/• y

NOTE: Such estate shall be for the benefit of public

schools and public charitable institutions and
centers in such municipalities or cities. The court
shall distribute the estate as the respective needs of MIXED SUCCESSION
each beneficiary may warrant (CIVIL CODE, Art.
1013).
ANDPARTIAL
INTESTACY
The court, at the instance of an interested party, or
on its own motion, may order the establishment of a
permanent trust, so that only the income from the
property shall be used (CIVIL CODE, Art. 1013). MIXED SUCCESSION
Succession that is effected partly by will and partly
When to File a Claim by operation of law ( CIVIL CODE, Art. 780).
A person who is legally entitled to the estate of the
deceased may, within five years from thl:3 date the In other words, if the testator makes a will which
property was delivered to the State, file a claim for does not dispose all of his property, the result is what
the possession of the same, or if sold. the city or is known as mixed succession (JURADO,
municipality shall be accountable to him for such part Succession, supra at 16).
of the proceeds as may not have been lawfully spent
(CIVIL CODE, Art. 1014). The rules of legal intestate succession shall be
applied with respect to those properties not disposed
of (Id. at 378).
 SUCCESSION
Civil Law

Rules: devise, or to the same portion thereof, pro

1. The legitimes of compulsory heirs shall be
applied even in mixed succession. One who has
compulsory heirs may dispose of his estate
provided he does not contravene the provisions
of this code with regard to the legitime of said
heirs (CIVIL CODE, Art. 842, par. 2).
2. In case the testamentary disposition reduces the
legitime, the reduction shall be borne pro rata by
all intestate heirs from their shares in the
disposable portion but never from the legitimes
(3 PARAS, supra at 479).
Illustration:
If among the concurring intestate heirs there are
compulsory heirs whose legal or intestate
portions exceed their respective legitimes, then
the amount of the testamentary disposition must be
deducted from the disposable free portion to be
borne by all the intestate heirs in the proportions that_
they are entitled to receive from such disposable free
portion as intestate heirs. '
If the intestate share of a conipulsOfY heir is
equal to his legitime, then the' amount of the
testamentary disposition must be deduc~ed only
from the intestate shares of the others, in the
proportions stated above.
indiviso; and
b. There must be a ~acancy in the inheritance,
legacy or devise (caused by predecease,
incapacity, repudiation, non-fulfillment of
suspensive condition, or void .or ineffective
testamentary dispositions) (CIVIL CODE,
Art. 1016; JURADO, Succession, supra-at
464).
Requisites of Art. 1016, No. 1 (Pro lndiviso):
(UPA)
a. !lnity in the object, that is, a single thing
whether it be an inheritance, a portion of an
inheritance, or a specific thing;
b. flurality in the subject matter, that is,
several persons, heirs or legatees called to
that single thing; and
c. ~bsence of any designation as to the share
of each in the thing (CAGUIOA, Civil Law,
supra at 413)
How_ to.Avoid Accretion:
a. By expressly designating a substitute; and
b. By expressly providing that although
accretion may take place, decedent does
not want accretion to occur (3 PARAS, ·
supra F:Jt537).;

If the testamentary dispositions consume• the NOTE: Accretion is a right ( CIVIL CODE, Art.
entire disposable free portion, then the jntestate 1015), not anobligation, and may therefore be
heirs who are compulsory heirs will get only their accepted or repudiated by those entitled. This is
legitime, and those who are not compulsory heirs will true. in both testate,and legal succession (Ynza
get nothing. · · · · v. Rodriguez, eta/., G.R. No. L-6395, June 30,
1954).

Effects of Predecease, Incapacity,

PROVISIONS COMMON Disinheritan,ce, or Repudiation in both
Testamentary ,:ind Intestate Succession
TO INTESTATE A!S'D
TESTATE SUCCESSION Legend:
RF! - Right of Representation
(ARTS. 1015-1105) A -- Right of Accretion
IS -.Intestate Succession
S -- Substitution

1. RIGHT OF ACCRETION
When two (2) or more persons are called to the
same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot
receive his share, or who died before the
testator, is added or incorporated to that of his
co-heirs, co-devisees, or co-legatees (CIVIL
CODE, Art. 1015).

Requisites of Right of Accretion: (2V)

a. Two gl._or more persons must have been
called to the same inheritance, legacy or
 @#Ai@ \ I

MEM✓Q,RY Al D
San Seda University Coliege of Law - RGCT Bar Operations Ce-ntor

Illustration:
Testate Succession

PGF MGM

l
F---M
l
l
GF- --r--/1\
-D

(JURADO, Succession, supra at 470). IC A B C

Summary of the Effects

a. Testamentary Succession
i. Legitime
(1) In case of predecease of an heir,
Alt\
E F G H I

there is representation if there are

children or descendants; if none, the
others inherit in their own right. Decedent D who has an estate of P3,000,000 is
(2) In case of incapacity, results are the survived by:
same as in predecease. a. wife W;
(3) In case of disinheritance, results are b. children A, B, C;
the same as in predecease. c. par~~Js, F and M;
(4) In case of repudiation by an heir, the i:l. iilegifii:nate child IC, his child with girlfriend;
others inherit in their own right. and,.:.
ii. Disposable free portion e. paternal grandfather and maternal
Accretion takes place when requisites in grc:1ndtnother.
Art. 1016, Civil Code are present; if not, A hm{chilc:lren, E and F while Chas children, G,
the others inherit in their own right. H, and I. D instituted A to 1/2, B to 1/4 and C to
114;{tq;t~~;lf~~;t?9rtion).
b. Intestate Succession
i. In case of predecease, there is Assuming that C died, in case of predecease, his
representation if there are children or share in the legitime will be given to G, H, I by
descendants; if none, the others inherit ;r,ight of representation.
. ·: ¾.'.·~·
in their own right. ··'1f"

ii. In case of incapacity, results are the
same as in predecensc.
iii. In case of repudiation, there is always
accretion (Id.).
NOTE: Whether the succession is testamentary
or intestate, if the right of accretion takes place,
the heirs to whom the vacant share or portion is
assigned shall divide it in the same portion that
they inherit (Id. at 468).
In testamentary succession, where the share
rendered vacant is the share of a compulsory
heirs, only that part of the share which is taken
from the disposable free portion shall pass to the
co-heirs by right to accretion.
In intestate succession, the entire share which is
rendered vacant shall pass to the co-heirs by
right of accretion (Id. at 468-469).
Will C's share in the free portion be given to A
and B b_y right of accretion?
Answer: No. Art. 1016 requires that 2 or more
heirs must be called in the same inheritance pro
indiviso Uointly instituted). C's share in the free
portion will go to D's legal heirs pursuant to Art.
1022 of the Civil Code, which provides that in
testamentary succession, when the right of
accretion does not take place, the vacant portion
of the instituted heirs, if no substitute has been
designated, shall pass to the legal heirs of the
testator, who shall receive it with the same
charges _and obligations.
If C is incapacitated to succeed under Art. 1028
or 1027, to whom shall you give the 500k
legitime? Will it be give:1 to G, H, I?
Answer: No. C will still receive his legitime, if he
is incapacitated under Art. 1027 or 1028; he will
only be rendered incapacitated as to the free
, ' ., .,_ , ', ' 1 ~-/ ( ~( \ ' '~ ) '- ✓,:\,­
'

. 376\ ' ·· ·, : · , ,. ' , .

4
SUCCESSION
' 'ff ' ,
Civil Law
~. ' ' ';fi " '~ < : { ~ ' • ~,"'(" '

portion. The free portion shall be distributed (1) Testamentary disposition In favor of
pursuant to Art. 1022. associations for religious, scientific,
cultural, educational, or charitable
If the incapacity is under Art. 1032, his share will purposes (CIVIL CODE, Art. 1026).
now be ·given to G, H, I because unworthiness (2) Testamentary disposition in favor of
now affects both the legitime and free portion. a church or denomination to which
the testator may belong for prayers
Intestate Succession or pious works (CIVIL CODE. Art.
1029).
F M (3) Testamentary dispositi9n in favor of

D l w
the poor in general (CIVIL CODE,
Art. 1030).
(4) When the child although not yet born

~
is already conceived at the time of
the death of the decedent and it is
born later under the conditions
prescribed in the Civil Code, Art. 41.
A B C
ii. Those who cannot be identified -

E
I\ ll\ F G H 1
uncertain persons (Persona lncierta)
(CIVIL CODE, Art. 845).
iii. Those who are not permitted by law to
inherit (CIVIL CODE, Art. 1027, par. C,
No.6).
Decedent D who has an estate of P3,000,000 is·
survived by his wife W, children A, ·s, C, and .
b. R~lative Incapacity- by reason of special
parents·, F and M. A has children: E ahd F while
reiation,··
C has children, G, H, and I.
l. Based on Undue Influence or
lnteresb (PR-GAP)
If C repudiates, A and B will get 1.5M each by
1. Priest who heard the confession of
right of accretion. C, who repudiated, cannot be
· ,;the 'te'st~tor during his last illness, or
represented ( CIVIL CODE, Arts.. 687 ar:,d 977).
th~, tjli!)ister of the gospel who
extended spiritual aid to him during
If C predeceases, his share will go to G, H, I by
the,sarrie period (CIVIL CODE Art.
right of representation ( Cl\(IL CODE, Art. 968
1027, par. 1).
ood9~. .
Requisites: (EDI)
If I predeceases, his share will go to G and H by
a. ·• The will must have been
right of accretion (CIVIL CObE, Art. 96~).
gxecuted during the last illness
and after the confession
Now for the ascending line, assL.lming this time
because if it were before, the
that there is also paternal grandfathec GF and
reason for the incapacity does
maternal grandmother MGM. If F predeceases,
not exist;
by right of accretion,
b. That the testator Qied of the
illness wherein the confession
2. CAPACITY TO SUCCEED BY WILL was made even though there
OR INTESTACY should exist an interval
Requisites: (LE-Not-ID) between the confession and the .
a. The heir, legatee/devisee must be !:,iving or death or that the death proceed
in gxistence at the moment the succession from an accident which may or
opens;and may not proceed from said
b. He must not be !ncapacitated_ . or illness;and
Qisqualified by law to succeed (JURADO, c. That the disposition in the will
Succession, supra. at 481). should be !n favor of said priest
or minister, his relative within
Kinds of Incapacity to Succeed: the fourth (4 th ) degree or his
a. Absolute Incapacity- incapacitated to church (CAGUIOA, Civil Law,
succeed in any form .. supra at 425).
i. Those not living at the time of death,
except The basis of disqualification is
the presumption that at tfne
fWSMM \ /
MEM:Q~Y AID
San Seda University College of Law - RGCT Bar Operations Center
threshold of death the testator
becomes an easy prey to the
scheming priest or minister
(JURADO, ,Succession, supra
at 484).
According to Sanchez Roman,
should the testator recover from
his last illness and does not
revoke the disposition, the
disposition is still inva'lid. The
only way to make it valid is to
reproduce the invalid
disposition to a new will.
Contrary views, however, state
that if the testator fully
recovered from his last illness
and there is sufficient time for
him to revoke the will and yet he
did not do so, the same shall be
considered as valid (CAGUIOA,
Civil Law, supra at 424).
2. Relatives of such priest or minister of
the gospel within the 4th degree, the
church, order, chapter, community,
organization or institution to which such
priest or minister may belong (CIVIL
CODE, Art. 1027, par. 2).
The law does not include among the
persons disqualified the spoµse of the ·.
priest or minjster (JURADO,
Succession, supra at 485).
3. Quardian with respect to testamentary
dispositions given by a ward in his favor
before the final a,ccounts of the
guardianship have been approved,
even if the testator should die after the
approval thereof; nevertheless, any
provision made by the ward in favor of
the guardian when the latter is his
ascendant, descendant, brother, sister,
or spouse, shall be valid (CIVIL CODE,
Art. 1027, par. 3).
Not applicable if the guardian is an
ascendant, descendant, brother, sister,
or spouse of the testator (JURADO,
Succession, supra at 485).
Requisites:
a. The will was executed by the ward
in favor of the guardian; and · provisions (CIVIL CODE, Art. 1028).
b. It was executed before the final
accounts of the guardianship have
been approved; even if the testator
should die after the approval thereof
(3 PARAS, supra at 573).
Characteristics:
a. Possible only in testamentary
succession;
b. Relative in character; and
c. Partial, in the sense that if the heir
who is incapacitated or disqualified
is a compulsory heir, only the free
portion given to him is affected, but
not his legitime (JURADO,
Succession, supra at 483-484).
NOTE: The incapacity of the guardian
only exists prior to the rendition of final
accounts and the approval thereof since
the law wants to prevent the guardian
from aspiring to the inheritance to cover
up any mismanagement during his
guardianship. Therefore, the
determining factor is the final approval
of the final accounts. If there is such
approval, the guardian is not
incapacitated but if there is no such
approval, the .guardian is incapacitated
(CAGUOIA, Civil Law, supra at 425).
•4. 8ttesting witness to the execution of a will,
·thesiJ'ous€l, parents or children, or any one
claiming under suoh witness, spouse,
par\:inls; or children (CIVIL CODE, Art. 1027,
par. 4). •.
Such disqualification does not apply "if there
are. three other competent witness" to the
~k~cuti~n;ofthe will (CIVIL CODE, Art. 823).
5. J:hysician, surgeon, nurse, health officer or
druggist who took care of the testator during
• his last illness (CIVIL CODE, Art. 1027, par.
5).
The disqualification does not extend to the
relatives of the physician or nurse, or to the
organization or institution to which such
physician or nurse may belong (JURADO,
Succession, supra at 486).
Not applicable if the one who took care of
the testator is his spouse, ascendant or
descendant (Id.).
ii. Based on Morality or Public Policy
The provisions mentioned in Art. 739 of
the Civil Code, concerning donation
inter vivos shall apply to testamentary
The following donations are VOID:
(ACP)
(1) Those made in favor of a person
with whom the testator was guilty of
:,;: " i;, : \'.
.378 - ,',
' '' ' ',i
~dultery or concubinage at the time
of the making of the will
(Nepomuceno v. CA, G.R. No. L-
62952, October 9, 1985; Joaquina
v. Reyes, G.R. No. 154645, July
13, 2004);
NOTE: Previous criminal conviction
is NOT necessary (JURADO,
Succession, supra at 487).
(2} Those made in consideration of a
frime of which both the testator
and the beneficiary have been
found guilty; and
NOTE: Previous criminal conviction
is necessary (Id.).
(3) Those made in favor of a _Eublic
officer or his spouse, descendants
and ascendants, by reason of his
public office (CIVIL CODE, 'Art.
739). . .
Characteristics:
1.) Possible only in testamentary
succession;
2.) Relative in character; and
3.) Partial, in the sense that if the heir
who is incapacitated or disqualified
is a compulsory h~ir, only the free
portion given to hirn is affected, but
not his ' legitfrne (JURADO,
Succession, supra at484t
iii. Based on Acts of Unw.orthiness
(A 4 F3 P)
(1) Parents who have Abandoned their
children or induced their daughters
to lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted
of an Attempt against the life of the
testator, his/her spouse,
descendants or ascendants;
(3) Any person who has Accused the
testator of a crime for which the law
prescribes imprisonment for 6 years
or more, if the accusation has been
found groundless;
(4) Any heir of full age who, having
knowledge of the v_iolent death of the
testator, should Eail to report it to an
officer of the law within a month,
unless the authont1es have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obtigation to make an
accusation;
SUCCESSION
Civil Law
Deaths occasioned by crime
(violent deaths) are prosecuted de
oficio or at the instance of the
government, and thus no one is
required to make any accusation (3
TOLENTINO, supra at 529).
In this jurisdiction, there is no
obligation imposed by the law to
make an accusation in such cases
(JURADO, Succession, supra at
492).
(5) Any person convicted of Adultery or
concubinage with the spouse of the
testator;
The spouse is not included. The
only time the guilty spouse shall not
inherit is when the offended spouse
act positively either by securing a
decree of legal separation or by
disinheriting him or her (Id.).
·(6) Any person who by !:,raud, violence,
jn'l;ir'nidation, or undue influence
should cause the testator to make a
will or to change one already made;
(7) .Any person who by the same
means Prevents another from
making:a will, or from revoking one
already,: made, or who supplants,
conceals, or alters the latter's will;
·and·
(8) Any person who Ealsifies or forges
a supposed will of the decedent
(CIVIL CODE, Art. 1032).
Characteristics:
· (1) Based on offenses committed by
the disqualified person against
the decedent which renders him
unworthy to succeed;
(2) Applicable BOTH in testamentary
and legal succession; and
(3) Although relative in character, it is
total in the sense that it extends
not only to the free portion but
also to the legitime (JURADO,
Succession, supra at 491).
iv. By Operation of Law (UP)
( 1) .Incapacity of the guilty spouse to
inherit from the innoc~nt spouse if
there is a decree of b,egal
separation (FAMILY CODE, Art.
63, par.4);
(2) Incapacity of !!legitimate children ~
and legitimate relatives of the
 &&WMN \ 1 .~J :;- \f. ~
> <

'
I

MEM✓Q~Y AID
San 800a Urwerslty College of Law - RGCT Bar Operations Center .!, . . ;
- .. , . .. . ' . 37'g,'"'•
'. ., ':- ; ""

decedent to inherit from each

other (CIVIL CODE, Art. 992);
(3) Individuals, associations and
corporations not.fermitted by law
to inherit (CIVIL CODE, Art. 1027,
par. 6).

Pardon of Acts of Unworthiness

Reconciliation betweon the testator and the when
offender will renrlAr the disinheritance 1
testator revokes the will
ineffective, and the heir will be restored to his I or the institution.
inheritance. But if the testator has not made an (JURADO, Succession, supra at 493-494).
express disinheritance, then the laws on
disinheritance cannot operate; the rules on Effect of Pardon
unworthiness must apply, and the capacity of The· heir is restored to full capacity to succeed
the heir can be restored only by the means of the decedent, as if the cause of unworthiness
pardon (3 TOLENTINO, supra at 538). had never existed (DE LEON, Succession,
supra at 594).
Only the decedent himself can erase the effects
of acts of unworthiness (JURADO, Succession, Time to Qetermine the Capacity
supra at 493). GENERAL RULE: At the moment Qf the death
of the decedent.
The act of the decedent in pardoning an act of
unworthiness must not be confused with
reconciliation. The first is a unilateral act, while
the second is a bilateral act requiring the
concurrence of the offender. Under the Civil
Code, a subsequent reconciliation ~tween the Under Art. 1'032 of the. Necessary to wait until
offender and the offended person deprives the Civil Code:· final judgment is
latter of the right to disinherit, and renders
1. Par. (2) -,Any person rendered.
ineffectual any disinheritance that m,;1Y have who has been
been made. It cannot, however, erase the
con\/kted ot an
effects of an act of unworthiness (Id. at494).
altel'_l)pt a,~ai~~t the
life of theqestator,
Executive clemency, or pardon by the Pr~sident
his or her spouse,
does not erase the unworthiness or incapacity of
.. descendants,
the heir (3 TOLENTINO, supra at 537,• 5 · asc.endants.
Valverde 450; 2 Camus 124).
Par. (3) -Any person
who has accused the
EXPRESS V. IMPLIED PARDON testator of a crime for
which the !aw
prescribes
imprisonment for 6
years or more, if the
accusation has been
Made by the execution Effected when testator found groundless
of a document or any makes a will instituting 3. Par. (5) -Any person
writing in which the the unworthy heir with convicted of adultery
decedent condones the knowledge of the cause and concubinage
cause of incapacity. of incapacity. with the spouse of
the testator.

Under Art. 1032 of the Necessary to wait for 1

Civil Code: month.

Par. (4) Any heir of full

age who, having
knowledge of the violent
death of the testator,
should fail to report it to
 ''
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, 380 · , SUCCESSION
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Civil Law
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3. ACCEPTANCE AND REPUDIATION

an officer of the law
within a month.
If the institution of the Time of the compliance
heirs, legacy or devise is with the condition shall
conditional. be considered.
(JURADO, Succession, supra at 495-496).
Prescription: The action for a declaration of
incapacity and recovery of the inheritance,
devise or legacy shall be five (5) years from the
time the disqualified person took possession
thereof. It may be brought by anyone who may
have an interest in the succession (CIVIL
CODE, Art. 1040).
Effect of Incapacity upon Compulsory Heirs
a. Incapacity based on Undue Jnfh.,1ence
(CIVIL CODE, Art. 1027) and Morality or
Public Policy (CIVIL CODE, Art 739)
Only the free portion given to the tieir is
affected, but not his legitime ,(JURADO,
Succession, supra at 496),
b. Incapacity based on act of unworthiness
(CIVIL CODE, Art. 1032)
Disqualifies a compulsory heir from
succeeding even to his leg/time.
i. In Testamentary ·. Succession:
Children or descendants •Of the
unworthy child or descendant shall
acquire his right to the legitime.
ii. In Intestate Succession:· Children or
descendants of the unworthy child or
descendant shall succeed to the entire
share which is rendered vacant.
OF INHERITANCE
ACCEPTANCE
The act by virtue of which an heir, legatee or
devisee manifests his desire in accordance with
the formalities prescribed by law to succeed to
the inheritance, legacy or devise (JURADO,
Succession, supra at 501).
REPUDIATION
The act by virtue of which an heir, legatee or
devisee manifests his desire in accordance with
the formalities prescribed by law NOT to
succeed to the inheritance, legacy or devise
(Id.).
Characteristics: (VIR)
a. Yoluntary and free (CIVIL CODE, Art. 1041);
b. Irrevocable, except if there is vitiation of
consent or an unknown will appears (CIVIL
CODE, Art. 1056); and
c. Retroactive (CIVIL CODE, Art. 1042).
Requisites:
a. :Certainty of tl:)e Death of the decedent; and
b. Certainty of the Right to the inheritance
(CIVIL CODE, Art. 1043).
ACCEPTANCE V. REPUDIATION

NOTE: Both (i) and (ii) applies only if the

compulsory heir is a child or descendant of
the decedent.

Remedies Against Disqualified Heir

In case the disqualified heir, devisee or legatee
has -already taken possession of the property,
the remedy is an action for:
a. Declaration of incapacity; As it is more usual to Repudiation being, in
b. Recovery of the inheritance,· devise or accept than to reject an effect, an act or
legacy (CIVIL CODE, Art. 1040); advantage or benefit, disposition, requires
c. The disqualified heir shall be considered as acceptance may be greater capacity and
possessor in bad faith; hence, he is obliged presumed. more formalities than
to return the hereditary property together acceptance.
with its accessions; and (JURADO, Succession, supra at 506-507).
d. Being in bad faith the disqualified heir shall
always be liable for damages (3 PARAS, Similarities between Acceptance and
supra at 574). Repudiation
a. Being free and voluntary acts, the presence
of any of the causes which vitiate consent
 1
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(i.e. mistake, violence, intimidation, undue

influence, or fraud) will render them without
effect;
b. Roth we subsequent to the death of the
decedent but the1r ettect retroacts to the
moment of said death; and
c. There can be partial acceptance and consent
repudiation, since the law does not prohibit
this. If the devisee or legatee may accept or If literate, by If literate, by
repudiate partially, then an heir may also do themselves or themselves or
so provided only that he may not accept the through an through an
gratuitous part and repudiate the onerous agent. agent.
part (3 PARAS, supra at 579). If illiterate, by If illiterate, by
their guardian their guardian
WHO MAY ACCEPT OR REPUDIATE WITH judicial
INHERITANCE approval

the heir Creditors may

repudiates the not repudiate
inheritance,
Any person Any person creditor may
having the free having the free the
disposal of his disposal of his to
property property authorize them
to accept it in
or Guardian or
the name of the
legal
heir only to the
representative
extent
WITH judicial
sufficient to
authorization
the

Manner 'Sf At.~ptance

1 . Express Acceptance
- One made in a public or private document.
Person Beneficiaries
designated by themselves TEf6itAcceptance
the testator to once they are - One resulting from acts by which the intention
determine the determined to accept is necessarily implied or which one
(CIVIL CODE, would have no right to do except in the capacity
Art. 1044) of an heir (CIVIL CODE, Art. 1049).

Tacit acceptance is presumed from certain acts

the of the heir as: (SR 2-DAP-C 2E 2F)
1. If he Sells, donates, or assigns his right;
2. If he Renounces it, even though gratuitously, for
Logo\ the benefit of one or more his co-heirs;
rnprcscntcitive 3. If he Ronounces it for a prir:P. in fovor of 3\1 hi$
WITH judicial co-heirs indiscriminately; and
authorization
NOTE: These are acts of disposition, acts which
only the owner is empowered to perform.
(JURADO, Succuuuiu11, wpra at GOG).
the IWith the 4. Other acts of tacit acceptance:
' government's
a. Heir Qemands partition of the inheritance;
approval
b. Heir ~lienates some objects of the
inheritance;
~--; 'f~~"{•~:~,~'"{,,, \' \,::;r:~r ~'"
I• 382, ~> ,' ; . ,• '1
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c. Acts of ~rnsP.rw:itinn or administration if,
through such acts, the title or capacity of heir
has been assumed;
d. Filing of a £omplaint for the partition of
inheritance;
e. fompromises regarding objects and rights
included in the inheritance;
f. gxercise of any action which pertained to
the decedent during his lifetime and which
survives;
g. _!;njoyment of the inheritance itself; and
h. Under Art. 1057, failure to signify
acceptance or repudiation within thirty (30)
days after an order of distribution by the
probate court (Id).
Manner of Repudiation (PAB-JA)
a. e_ublic instrument (acknowledged before a
notary public).
b .. ~uthentic document (equivalent of a_i:,
indubitable writing; or a writing whose
authenticity is admitted or proved}; or ·,
c. ~Y petition presented to the qourt having
jurisdiction over the testani'?ntary' · or
intestate proceeding (Id.). '
d. In case of inheritance left to' minors or
incapacitated persons: parentl or guardians
may repudiate the inheritance left to their
wards only by Judiclal Authorization (CIVIL
CODE, Art. 1044):
Heir in Two Capacities . .
An heir who is such by will and by law, ah_d who
repudiates the inheritance as ·,,i testamentary
heir, will be considered to have 'repudiated the
inheritance in both capacities. But~hen an heir·
repudiates as a legal heir without knowledge of
his being a testamentary heir, he m'?y lat~r 6n
accept as a testamentary heir (C/V/LCQQE,"Art.
1055; JURADO, Succession, supraaf509).
Effect of Acceptance and Repudiation
GENERAL RULE: Irrevocable
EXCEPTIONS:
a. If made through any of the causes that
vitiates consent (e.g. mistake, violence,
intimidation, undue influence and fraud);
and
b. When an unknown will appears, provided
that such will substantially changes the
rights of a person who has repudiated or
accepted (CAGUIOA, Civil Law, supra at
449).
4. COLLATION
An act of returning or restoring to the common
mass of the estate, either actually or fictitiously,
any property which a person may have received
from the decedent during the latter's lifetime, but
SUCCESSION
Civil Law
which is understood for legal purpOSt:;S as ar1
advance from the inheritance (JURADO.
Succession, supra at 511 ).
Operatior,s Related to Collation: (CIR 2 )
a. .foliation - adding to the mass of the
hereditary estate the value of the donation
or gratuitous disposition;
b. !mputing or Charging- crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion (if the donee is a stranger).
c. Reduction - determining to what extent the
donation will remain and to what extent it is
excessive or inofficious.
d. Bestifution - return or payment o( the
excess to the mass of hereditary estate.
Concepts of Collation (FIR)
a. Eictitious mathematical process of adding
the value of the thing donated to the net
value of the hereditary estate;
PURPOSE: To compute the legitime of
compulsory heirs.
b. Act of charging or !mputing such value
against the legitime of the compulsory heir
to whom the thing was donated; and
PURPOSE: To take the donations in the
ac:count of partition in order to equalize the
shares ofthe compulsory heirs as much as
possible.
c. Actual act of Restoring to the hereditary
estate tha.t part of the donation which is
· ]noffjdous in order not to impair the legitime
of compulsory heirs (JURADO, Succession,
Sllpfa at 315).
Obligation to Coll~te
Every compulsory heir, who succeeds with other
compulsory heirs must bring into the mass of the
estate any property or right which he may
receive from the decedent, during the lifetime of
the latter, by way of donation, or any other
gratuitous title, in order that it may be computed
in the determination of the legitime of each heir,
and in the account of partition (CIVIL CODE, Art.
1061).
NOTE: Express prov1s1on by the testator
exempting an heir from collation does not mean
no collation at all. The heir is merely considered
as a stranger and what he has received from the
testator must be charged from the free portion (3
TOLENTINO, supra at 572-573).

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Persons Obliged to Collate:
a. GENERAL RULE: Compulsory heirs
EXCEPTIONS:
i. When the testator should have so
expressly provided; and
ii. When the compulsory heir should have
repudiated · his inheritance (CIVIL
CODE, Art. 1062).
In these cases, the donation shall be
charged to the free portion and not to the
legitime (3 PARAS, supra at 612).
REASON: The legitime of compulsory heirs
must never be impaired (JURADO,
Succession, supra at 516).
When the law says that "collation shall not
take place," what it actually meant is that the
value of the thing donated shall not be
imputed against the legitime of the
beneficiary; instead, it shall be imputed
against the disposable free portion (Id. at
514).
b. Grandchildren who survive with their uncles,
aunts, or first cousins, and inherit by right of
representation.
What to Collate:
a. Any property or right received by way of
donation or any other gratuitous title during
the testator's lifetime (CIVIL. CODE, Art.
1061).
b. In case of grandchildren: ..
i. All that they may have received from the
decedent during his lifetime,
ii. All that their parents, if alive.would have
brought to collation (CIVIL CODE; Art.
1064).
c. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses,
fines, and similar expenses (CIVIL CODE,
Art. 1069).
NOTE: Only the value of the thing donated shall
be brought to collation. This value must be the
value of the thing at the time of the donation,
even though its just value may not then have
been assessed (JURADO, Succession, supra at
523).
The subsequent increase or deterioration and
even the total loss or destruction of the thing, be
it accidental or culpabJe, shall be for the benefit
or account and risk of the donee ( CIVIL CODE,
Art. 1071).
. . ~
1 ' " i i,• , .,
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--'' ,· , ::· . ,:,'_ . ;383 .
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Properties NOT Subject to Collation:
a. 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 ( CIVIL COD£', Art.
1065);
b. Donations to the spouse of the child (CIVIL
CODE, Art. 1066);
c. Expenses for support, education
(elementary and secondary only), medical
attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts (CIVIL CODE, Art. 1067);
d. Expenses incurred by parents in giving their
children professional, vocational or other
career unless the parents so provide, or
unless they impair the legitime ( CIVIL
CODE, Art. 1068); and
e. · Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit
except when they exceed 1/10 of the sum
disposable by will (CIVIL CODE, Art. 1070).
Illustration:
A
-------r----- '
•
L.,._B,.._-
E
C ------.,0 {children)
(a) During A's'lifetime, A gave Ba house. That house
was l,;1je:r p11:,~~J_1~te,d by B to L, a friend. If B
predeceas~sAftheri E will represent B, and together
with C and O wiil inherit from A. E will be obliged to
collate the value of the house, even if E himself has
pqt\inhE:rited said property. This is so because, had
. B;beerii°alive, he would have been obliged to bring to
collation the value of said house. Since E merely
takes his (B's) place, it naturally follows that collation
by him (E) is in order.
In the example given in (a), if A had given Ea house
during A's lifetime, the value of said house should
also be collated (considered an advance of his
inheritance) unless of course the testator has
provided otherwise.
However, even if there is such a contrary provision,
the legitime of the co-heirs must not be prejudiced.
Hence, even if the testator has stated that the house
should not be considered as an advance of the
legitime of E (meaning that aside from the legitime,
E would get also the house), still this will not be the
case if by such means, the legitime of the co-heirs is
impaired.

5. EQUALIZATION OF SHARES
GENERAL RULE: Co-heirs shall receive an
equivalent, as much as possible, in property of
the same nature, class and quality (CIVIL
CODE, Art. 1073).
EXCEPTIONS:
If it would be impracticable to give the co-heirs
on equivalent in property and:
1. If the property donated was immovable, give
the co-heirs its equivalent in cash or
securities at the rate of quotation; and if
impossible and impracticable, sell at public
auction. as much of the other property as
may be necessary (CIVIL CODE, Art. 1074,
Par. 1); or
2. If the property donated was movable, co-
heirs shall only have a right to select an
equivalent of other personal property of the
inheritance at its just price ( CIVIL CODE,
Ari. 1074, Par. 2).
6. PARTITION AND DISTRIBUTION OF
THE ESTATE PARTITION
It is the separation, division and assignment of ;:i
thing held in common among those to whom it
may belong. It includes every act which is
intended to put an end to ihd.i"'.ision among co-
heirs and legatees or devisees, although it
should purport to be ..a sal1q, an exchange,
compromise, or any other transacti.on. It is not
subject to any form (CIVIL .CObf, Ari. 1079, and
1082).
Nature of Property Before Partition
There is co-ownership between or among heirs.
(CIVIL CODE, Ari. 1079).
Kinds of Partition Under the Rules of.Court:
a. Ordinary or Judicial Action for Partition
(RULES OF COURT, Rule 69); and
b. Extrajudicial Settlement (RULES OF
COURT, Rule 74, Sec. 1)
Requisites: (IDAP 2 )
i. The decedent died Intestate;
ii. Tho ostuto has no outstanding Q.ebts at the
time of the settlement;
iii. Decedent's heirs are all of ~ge or the
minors are represented by their judicial or
legal representatives;
iv. The settlement was made by means of a
fublic instrument or affidavit filed with the
Register of Deeds; and
NOTE: There is no law that requires
p;:irtition ;:imong hAirs tn be in writing to be
valid. There is nothing in Section 1 of Rule
SUCCESSION
Civil Law
74 of the Rules of Court from which it can
be inferred that a writing or other fonmility
is an essential requisite to the validity of
the partition. Accordingly, an oral partition
is valid (Vda. De Reyes vs. CA (GR No.
92436, July 26, 1991).
REASON: The requirement that a partition
be put in a public document and registered
has for its purpose the protection of
creditors and at the same time the
protectiori...of the heirs themselves against
tardy claims. The object of registration is to
serve as constructive notice to othP.rs. It
follows then that the intrinsic validity of
partition not executed with the prescribed
formalities does not come into play when
there are no creditors or the rights of
creditors are not affected (Hernandez vs.
Anda{, GR No. L-273, March 29,1947)
v. The fact of such judicial settlement must
be. :Eublished in a newspaper of general
circulation in the province once a week for
· three (3) consecutive weeks (FEST/N,
Special Proceedings, (2020), p. 31)
[horoinDfter, FEST/N, Special
Proceedings]); and
vi. Filing of a bond equivalent to the value of
personal prop~rty posted with Register of
Deeds (DE LEON & WILWAYCO, Special
_Proceedings: Essential for Bench and Bar,
(2020), p. 32 [hereinafter, DE LEON &
WILWA YCO, Special Proceedings]).
The fact . that the document was not
, notarized is no hindrance to its effectivity.
The partition of inherited property need not
be. embodied in a public document
(Alejandrina v. CA, G.R. No. 114151,
September 17, 1998). Partition among co-
owners may thus be evidenced even by the
overt act of a co-owner of renouncing his
right over the property regardless of the form
it takes." The Court based this assertion on
Article 1082 of the Civil Code (Heirs of
Momlos v. Agustin, G.R. No. 224849, June
6, 2018).
Extrajudicial partition .ca.nnot constitute a
partition of the property during the lifetime of
its owner. Partition of future inheritance rs
prohibited by Art. 1347 of the New Civil Code
(JURADO, Succession, supra at 528).
 tESiibfoO \ 1
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MODES OF SETTLEMENT OF EST ATE
1. Extrajudicial Settlement
Where the decedent left no will and no debts
a. Deed of Extrajudicial Settlement;
b. Partition; or
c. Affidavit of Self-adjudication (ROG, RULE
74, Sec. 1)
2. Judicial Settlement
a. Partition - Ordinary action of partition (ROG,
RULE 69);
b. Summary of Settlement of Estate of Small
Value (ROG, RULE 74, Sec. 2);
c. Probate of Will (ROG, RULES 75-59); or
d. Petition for Letters of Administration (ROC,
RULE 79)
WHO MAY EFFECT PARTITION:
1. Decedent himself during his lifetime by an act
inter vivas or by will;
2. Third person designated by the decedent;
3. Heirs themselves; or
4. Competent court (JURADO, Succession, supra
at 528).
PARTITION BY DECEDENT
Under Art. 1080. there are two ways by which a
person may affect the partition of his own property
or estate - by an act inter vivas or by will.-ln both
cases, the legitime of compulsory heirs must not be
prejudiced (Id. at 529).
Two Ways of Partition by the Decedent:
1. By an Act inter vivos (Partition Inter Vivos)
(CIVIL CODE, Art. 1080)
It may be oral or written and need not be in the
form of a will, provided that the partition does not
prejudice the legitime of compulsory heirs. This
constitutes an exception to the rule declared in
Art. 1347, par. 2 of the Code that no person can
enter into a contract with respect to future
inheritance (Id. at 529-530).
In partition inter vivas, the rules regarding
ordinary conveyance of personal and real
properties must be followed such as when
conveyance through a public instrument is
required (Id. at 530).
NOTE: The testator may still revoke the partition
done by his own act inter vivas because during
such time, that is, before his death, he is still the
owner of the property (3 TOLENTINO, supra at
598-599).
Rationale: The rights to the succession are
transmitted from the moment of death of the
decedent (CIVIL CODE, Art. 777).
2. By Will (Partition Mortis Causa) (CIVIL
CODE, Art. 1080) It must be effected by a valid
will duly executed in accordance with the
formalities prescribed by law (JURADO,
Succession, supra at 529).
A partition agreement which was executed
pursuant to a will that was not probated cannot
be given effect Before any will can have any
force or validity it must be probated - this cannot
be dispensfd with and is a matter.of public policy
(Rodriguez v. Rodriguez, G.R. No. 175720,
September 11, 2007).
PARTITION BY THIRD PERSON -~~
A person may, by an act inter vivas or mortis causa,
intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs
(CIVIL CODE, Art. 1081, par. 1).
What is entrusted is the mere power of partition, not
the power to distribute the hereditary estate. Hence,
the act of the person delegated with such power is
that of a mere agent or mandatory (JURADO,
Succession, supra at 530).
WHO CAN DEMAND PARTITION: (CLAV)
1. ~ompulsory heir; -----
2. !:egatee or devisee;
3. ~ny person who has acquired an interest in the
estate; and
4. Yoluntary heir (Id. at 531).
WHEN PARTITION CANNOT BE
DEMANDED: (PAPUF)
1. When expressly _!:rohibited by the testator
himself for a period not exceeding 20 years;
2. When the co-heirs ~greed that the estate shall
not be divided for a period not exceeding 1O
years, renewable for another 10 years;
3. When _!:rohibited by law (i.e party wall);
4. When to partition the estate would render it
!J_nserviceable for the use for which it is
intended; and
5. When the property owned in common by co-
heirs is a f_ amily home and the testator has not
ordered its dissolution (Id.).
PROVISIONAL PARTITION
Voluntary heir upon whom some condition has been
imposed cannot demand partition until the condition
has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights
which the former may have in case the condition
should be complied with, and until it is known that
the condition has not been fulfilled or can never be
complied with, the partition shall be understood to be
provisional (CIVIL CODE, Art. 1084).
 ,- , ; c, ~ ~:,,,.'!,\ .,:' ,\
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386.
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' ' ~,.,. ' Civil Law
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The partition will become permanent after:
1. The condition was fulfilled; and
2. It is known that the condition has not been
fulfilled or can never be complied with (CIVIL
CODE, Art.. 1084).
CONSTRUCTIVE PARTITION
Where thing owned in common is indivisible or a
division thereof would impair its value or render it
unserviceable for the use for which it is intended, it
may be adjudicated to one of the heirs who shall pay
the others the excess in cash. Nevertheless, if any
of the heirs should demand that the thing be sold at
public auction and strangers be al towed to bid, this
must be done (CIVIL CODE, Art. 1086).
RULE WHEN A CO-OWNER SELLS HIS
SHARE BEFORE PARTITION
Before the property is partitioned, the heirs are co- .
owners of the property and they cannot alienatethi:i' ·
shares that do not belong to them (CIVIL COD~, Art..
493). . . ,· .·
Should any of the heirs sell his hefedfia~'r-ig'hts to a• ·
stranger before the partition, ar1ypr,,atl~Jthe;:co-heirs
may be subrogated to the riggls tiftp~'purc;haser by
reimbursing him for the price of th~<sale,;provided
they do so within the period 6f9n~·mont~ from the
time they were notified in vyritiiig, Qf the sale by tile
vendor (CIVIL CODE, Art.. 1088)., ' . Art. 1095, par. 3).
Any sale by one heir of the;resfbf;_,the prgpe[lY will
not affect the rights of the ~th~r MJrs wng>dkj not
consent to the sale. Such sale is void wittr'.r~st:>Elct
to the shares of the other heir,s (Hei~.,of Gi:.(!_f}Qrk>
Lopez vs. DBP, GR. No. 193!j51, NoVf;)mb(H JfJ;
2014J. " ~ '~:~~~L
REQUISITES OF LEGAL REDE~PtroN:
(S 2 -BO-1R)
1. There must be §.everal co-heirs;
2. One of them §.ells his right to a stranger;
3. The sale is made _!:!efore the partition;
4. The right of redemption must be exercised by
only Qne or more of the co-heirs;
5. It must be 1 month from the time they were
notified in writing by the co-heir vendor; and
6. The vendee is Reimbursed for the price of the
sale (3 PARAS, supra at 649).
NOTE: The redemption can be exercised only by a
co-heir (Id.).
EFFECTS OF PARTITION:
1 . A partition legally made confers upon each heir
the exclusive ownership of the property
adjudicated (CIVIL CODE, Art.. 1091); and
>f \
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SUCCESSION
/\, \
2. Obligation of Warranty - After the partition, the
co-heirs shall be reciprocally bound to warrant
the title to (warranty against eviction) and the
· quality of (warranty against hidden defects) each
property adjudicated (CIVIL CODE, Art.. 1092).
RULE ON OBLIGATION OF WARRANTY
The obligation is proportionate to the respective
hereditary shares of the co-heir but if any of them
becomes insolvent, the others shall be liable also for
his part in the same proportion, deducting the part
corresponding to the one to be indemnified, without
prejudice to their right of reimbursement should the
financial condition of the insolvent heir improve
(CIVIL C(!DE, Art. 1093).
RULE WHEN WARRANTY OF CREDIT
ASSIGNED
When a creditis assigned to a co-heir as good or
· · collectible, the other co-heir is liable in case of
)tts,olvenqy- ,_of the debtor of the estate if such
, Jnsolvenqy existed at the time the partition was made
(CJVll,GODE, A#. 1095, par. 1).
NOTE:, Ttle,rejs ,n9 warranty as to bad debts
assignetJ to a,\::o-heii\if so known and accepted by
the latter. If fl]El: baq :c!ebts which have not been
ailotted to a 'co0heir •· are paid, all shall share
piroportionately the aITlount collected ( CIVIL CODE,
'., ,.
- ➔)· i
·,,?, ii
Presdi~tive Pe,rioJUcl Enforce Warranty Among
Co-Jl~ir:)b y~ars from the date the right of action
a1:X:r1Je's (CIVIL: CODE; Art. 1094)
;>
.
Prl;!S~riptjve Peri9d of Warranty for Solvency of
-.. , Debtor/· . . . ·· ·
~Q- '! y • ,'\ .,, ,,, 5 ye"?~Si.frotr1'·paftition (CIVIL CODE, Art. 1095, par.
2) \ \ .• ..
Tli'e 'Obligation of Warranty shall cease in the
following Cases: (PSE)
1. When the testator himself has made the
r_artition unless his intention was otherwise, but
the legitime shall always remain unimpaired;
2. When it has been expressly §.tipulated in the
agreement of partition, unless there has been
bad faith; and
3. When the _!;viction is due to a cause subsequent
to the partition, or has been caused by the fault
of the distributee of the property (CIVIL CODE,
Art. 1096).
RESCISSION AND ANNULMENT OF
PARTITION
Partition, once made, may be rescinded or annulled
for the same causes as in contracts ( CIVIL CODE,
Att. 1097).
 @AMi \ 1 ·t,,'•, ~ &~ ~/-,"~~'ts,,-

MEM✓Q-RY Al D ', ;· ~< , · : 387' ·'

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San Seda Ur,versity College of Law • RGCT Bar Operatk>n,; Cente,
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EFFECTS OF INCLUSION OF INTRUDER

IN PARTITION
~-------------- any other manner
1. Between a true heir and several mistaken collect the claims due
heirs (CIVIL CODE, Art. 1105): them;
a. The partition is void; and 4. Those which refer
b. The declaration of nullity shall result in the to things under
delivery of everything that had been litigation if they have
adjudicated to the true heir. been entered into by
the defendant without
2. Between several true heirs and a the knowledge and
mistaken heir (CIVIL CODE, Art. 1105): The approval of the
transmission to a mistaken heir is void. litigants or of
competent judicial
3. Through error or mistake, share of true authority;
heir is allotted to mistaken heir (CIVIL 5. All other contracts
CODE, Arts. 1104 and 1105): specially declared by
a. The partition shall not be rescinded unless law to be subject to
there is bad faith or fraud on the part of the rescission; and
other persons interested, but the latter shall 6. Payments made in a
be proportionately obliged to pay the true state of insolvency for
heir of his share; and obligations to whose
b. The partition with respect to the mistaken fulfillment the debtor
heir is void (JURADO, Succession, supra at could not be
537). compelled at the
..... tii;ne they'
·•·. wei:e;~ffedied (CIVIL
RESCISSION V. ANNULMENT OF
CODE, )Art. 1380-
PARTITION 1382).

PARTll'ION WITH PRETERtTION

Rescissible contracts are
valid contracts without
any defect whatsoever
but the law grants the
remedy of rescission.
GENERAL. RJ_JLE:'j\ partition made with preterition
Annulment is a remedy
cannof~e r~?'.ot1;1gi;i'g•(CIVIL CODE, Art. 1104).
granted by law b,ecause
of vices or detects in
EXCEPTION: When it can be proved that there was
consent or because of
bc;1Q. faith or fraud on the part of the other persons
the incapacity of one of
the contracting parties.
int~t~~tecl
·,·,,.,·,,··:,,.> •',.,,
(CIVIL CODE, Art. 1104).

REMEDY OF PRETERITED HEIR

1. Those which 1. Party incapable of Demand that the persons interested be
are entered into by giving consent; and proportionally liable for his share in the inheritance
guardians whenever 2. Vitiated consent (CIVIL CODE, Art. 1104).
the wards a. Mistake;
whom they b. Violence; RESCISSION OF PARTITION DUE TO
represent suffer lesion c. Intimidation; LESION
by more than 1/tl of d. Undue Influence; If in the partition, anyone o( the co-heirs should
the value of the things and receive a share whose value is less, by at least 1/4
which are the object e. Fraud (CIVIL than the share to which he is entitled, considering
thereof; CODE, Art. 1390). the value of the things at the time they were
2. Those agreed upon in adjudicated, the partition, whether judicial or
representation of extrajudicial, may be rescinded on account of the
absentees, if the lesion (CIVIL CODE, Art. 1098).
latter suffer the lesion
stated in the If ihe lesion is less than 1/4 rescission will not lie; the
preceding number; proper action is one for damages (3 PARAS, supra
3. Those undertaken in at 664).
fraud of
creditors when the GENERAL RULE: If the partition was effected by the
latter cannot in decedent himself either by an act inter vivas or by
 SUCCESSION
Civil Law

will, it cannot be impugned on the ground of lesion

(JURADO, Succession, supra at 536).

EXCEPTIONS:
1. When the legitime of the compulsory heir is
prejudiced; and
2. When it appears or may reasonably be
presumed that the intention of the testator was
otherwise (3 PARAS, supra at 664).

NOTE: In both cases, the lesion may be less than

1/4 (Id.).

Options for the Sued Heir:

1. Indemnify the plaintiff in cash or by the delivery
of the thing in same kind and quality as that
awarded to the plaintiff; or
2. Consent to a new partition. If a new partition is
made, it shall affect neither those who have not
been prejudiced noJ those who have not
received more than their just share (CIVIL
CODE, Art. 1101).

Prescriptive Period of Partition Due to Lesion:

4 years from the date of judicial partition ( CIVIL
CODE, Art. 1100).

DISTRIBUTION OF ESTATE
GENERAL RULE: No distribution shall be allowed
until the payment of the debts, funeral charges, and
expenses of administration, the allowance to the
widow, and inheritance tax, if any, <::hargeable to the
estate in accordance with law.

EXCEPTION,: The distributees, or any of them, give

a bond, in a sum to be fixed by the court1 conditioned
for the payment of said obligatieins within s.u,ch.time ·
as the court directs (RULES OF COURT; Rule. 90,
Sec. 1). ·

R~ading Article 777 of the Civil Code together with

the perttnent provisions of PD 1529 (Property
Registratio[J Decree) and the Rules of Court, while
an heir may dispose and transferhis/her hereqitary
share to another person, before the transferee may
compel the issuance of a new certificate of title
covering specific property in his/her name, a final
order of distribution of the estate or the order in
anticipation of the final distribution issued by the
testate or intestate court must first be had (Salitico
vs. Heirs of Resurreccion Martinez Felix, G.R. No.
240199, April 10, 2019).
 M*EM✓Q~Y Al D
San Beda University Coll~e of 'law - RGCT Sar Operotions Center

I OBLIGATIONS I The vinculum juris or juridical tie is that which

GENERAL PROVISIONS
(ARTS. 1156-1162)
OBLIGATION
A juridical necessity to give, to do, or not to do (CIVIL
CODE, Art. 1156).
An obligation is a juridical relation wh_ereby a person
(called the creditor) may demand from another (called
the debtor) the observance of a determinative
conduct (the giving, doing or not doing), and in case
of breach, may demand satisfaction from the assets
of the latter (Makati Stock Exchange, Inc. v. Campos,
G.R. No. 138814, April 16, 2009).
JURIDICAL NECESSITY
Obligation is a juridical necessity because in case of
non-compliance, the courts of justice may be called
upon to enforce its fulfillment or, in default thereof, the
economic value that it represents (DE LEON,
Comments and Cases on Obligations ahd Contracts
(2014), pp. 1-2 [hereinafter DE LEON, Obligations
and Contracts]).
Elements of an Obligation: (JAPO)
1. The Vinculum juris or Juridical tie
2. The ~ctive Subject or obligee/creditor
3. The ,eassive Subject or obligor/debtor
4. The Qbject or Prestation
A. JURIDICAL TIE OR RELATION
The efficient cause established by the various
sources of obligations (law, contracts, quasi-
contracts, delicts and quasi-delicts).
essentially binds -the parties to the obligation. This
linkage between the parties is a binding relation that
is the result of their bilateral actions, which gave rise
to the existence of the contract (The Wei/ex Group.
Inc. v. U-Land Airlines, Co., Ltd., G.R. No. 167519,
January 14, 2015).
B. ACTIVE SUBJECT
The obligee or creditor, who can demand the
fulfillment of the obligation.
He is the possessor of a right; he in whose favor the
obligation is constituted (PARAS, Civil Code of The
Philippines Annotated, Vol. IV (2016). pp. 78
[hereinafter, 4 PARAS). ·
C. PASSIVE SUBJECT
The ob/igor or debtor, against whom the obligation is
juridically demandable.
D. OBJECT / PREST ATION
A prestation is the object of an obligation, and it is the
• conduct required by the parties to do or not to do, or
· to give (The Wei/ex Group, Inc. v. U-Land Airlines,
supra, citing Ang Yu Asuncion v. CA, G.R. No.
109125, December 2, 1994).
Not the thing or object, but the particular conduct of
the debtor Which may consist in giving, doing, or not
giving, or not doing something (4 TOLENTINO,
Commentaries and Jurisprudence on the Civil Code
of the Philippines, , (2002), p. 57 [hereinafter 4
TOLENTINO]),
KlNDS OF PRESTATION:
:)rT<>:give
- a prestation which consists in the delivery of a
movable or an immovable thing in order to create
a real right, or for the use of the recipient, or for
its simple possession, or in order to return it to its
owner (e.g., sale, deposit, donation) (f/oi/o Jar

DOHN ALFRED E. AQUILIZAN; Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad Hoc Director for Bar Matters I MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance I JUAN INIGO S. MIGlffL.
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit I CORINA TAMJ>US, Vice Chairperson
for Secretariat I ARVY KEITH CHUNG, Vice Chairperson for Logistics J ANTONIO JUN-JUN C. MANAUGOD IV, Vice Chairperson far
i'v!embership IJORDAN N. CHAVEZ,_ Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEII E. MENDOZA, Subject Chair I KING LAURENZ S. MASILUNGAN, Assistant Subject Chair/ ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing I ~OBJECT HEADS: JOAN V. LAGRADILLA, Agency & Tnists. QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Relations I KRISTOFFER MONICO S. NG, Property J ]lJLEEN EVETTE
D. MALLARI, Land Titles and Deeds I MARISOL 0. SISON, Sales I GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BAUSONG, ROSEIJ£JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DHA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALiI.I, ANNA ROCHEUE D. PA YONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KtAUDINE A. ROSALES

Atty. JlJN MARR M. DENILA and Dean UI,PIANO P. SARMIENTO III

 ' 4. , 'A, , ' ,_
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Corporation v. Comglasco Corporation/ Aguila
Glass, G.R No. 219509, January 18, 2017);
2. To do
- includes all kinds of work or service (lloilo Jar
Corporation v. Comglasco Corporation/ Aguila
Glass, G.R. No. 219509, January 18, 2017); and
3. Not to do
- consist:; i11 uu:;lui11i11g from doing some act.
This ·obligation includes the obligation "not to
give" (4 TOLENTINO, supra at 57- 58).
FORMS OF OBLIGATION
It is settled that once perfected, a contract
[obligations arising from contracts] is generally
binding in whatever form, whether written or oral, it
may have been entered into,· provided the essential
requisites for its validity are present (Kabisig Real
Wealth Dev., Inc. v. Young Builders Corporation,
G.R. No. 212375, January 25, 2017). · ·
Obligations arising from other sources cio not have
any form at all (DE LEON, Obligations and Contracts;
p. 3).
KINDS OF OBLIGATIONS:·
Obligations may be classified as:
1. Viewpoint of Sanction· .·
a. Civil Obligations-an obligation, whic:h if not
fulfilled when it becomes due and
demandable, may be epforced in court
through an action (4 TQLENTINO, supra at
59); .•. .
b. Natural Obligations- not based on positive
law but on equity and natural law; .do not
grant a right of action to enforce their
performance, but after voluntary fulfillment by
the obligor, they authorize retention of what
has been delivered or rendered by reason
thereof (CIVIL CODE, Art. 1423); and
c. Moral Obligations - those that are hot
demandable in law, but only in conscience,
over which human judges have no
. jurisdiction (Fisher v. Robb, G.R. No. 46274,
November 2, 1939).
2. Viewpoint of Performance
a. Positive Obligation - the obligation to give
or to do (PARAS, Obligations and Contracts
supra at 80); and
b. Negative Obligation - when the obligor
must refrain from giving or doing something
(JURADO, Comments and Jurisprudence on
Obligations and Contracts, (2010), p. 5)
{hereinafter JURADO, Obligations and
Contracts).
• ~-:;-
OBLIOATIONS AND CONTRACTS
Civil Law
3. Viewpoint of Subject Matter
a. Personal Obligation (obligation to do or
not to do) - that in which the subject matter
is an act to be done or not to be done; and
b. Real Obligation (obligation to give) - that
in which the subject matter is a thing which
the obligor must deliver to the obligee (DE
LEON, supra at 9).
i. Determinate or Specific - one that is
µmlicularly designated or pt·1y:;icc1lly
segregated from all others of the same
class (CIVIL CODE, Art. 1460);
ii. Indeterminate or Generic - indicated
merely by its class or genus without
being designated or distinguished from
others of the same kind; its loss does not
extinguish the obligation for genus never
perishes (genus nunquam perit); and
iii. Limited generic thing - when the generic
objects are confined to a particular class,
e.g., an obligation to deliver one of my
horses (JURADO, Obligations and
Contracts, supra at 91).
4. Viewpoint of ~erson Obliged
a. Unilateral ~ vyhere only one party is bound;
and
b. Si lateral pr Mutual - where both parties are
mutually or reciprocally bound (JURADO,
Obligatiors and Contracts, supra at 5)
i. Reciprocal (CIVIL CODE, Arts. 1169-
1191).
RECIPROCAL OBLIGATIONS V.
BILATERAL OBLIGATIONS
Parties may be mutually obliged to each other, but the
prE,stations of these obligations are not necessarily
reciprocal. The reciprocal prestations must
necessarily emanate from the same cause that gave
rise to the existence of the contract (4 TOLENTINO,
supra at p. 174).
SOURCES OF OBLIGATIONS:
1. Law;
2. Contracts;
3. Quasi-contracts; ·
4. Acts or omissions punished by law (Delicts); and
5. Quasi-delicts (CIVIL CODE, Art. 1157).
NOTE: The list of sources is exclusive (Sagrado
Orckn v. Nacoco, G.R. No. L-3756, June 30, 1952).
A. OBLIGATION ARISING FROM LAW
(EX-LEGE)
Obligations derived from law are not presumed. Only
those expressly determined in the CIVIL CODE or in
spE,cial laws are demandable, and shall be regulated
by the precepts of the law which establishes them;
and as to what has not been foreseen, by the
 ~ V • V

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San Beoa University College of Law - RGCT Sar Operations Center ~
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provisions of Book IV of the CIVIL CODE (CIVIL one shall be unjustly enriched or benefited at the
CODE, Art. 1158), expense of another (CIVIL CODE, Art. 2142).

Every person who, contrary to law, willfully or
negligently causes damage to another, shall
indemnify the latter for the same (CIVIL CODE, Art.
20).
B. OBLIGATIONS ARISING
CONTRACTS (EX-CONTRACTU)
Obligations arising from contracts have the force of
law between the contracting parties and should be
complied with in good faith (CIVIL CODE, Art. 1159).
Hence, a contracting party's failure, without legal
reason to comply with contract stipulations breaches
their contract and can be the basis for the award of
damages to the other contracting party (Angel V.
Talampas, Jr. v. Moldex Realty, Inc., GR. No.
170134, June 17, 2015).
Meaning of Contract
A contract is a meeting of the minds between
).,,without any power from the latter, is obliged to
persons whereby one binds himself, with respect to: ;;:;";:continue the same until the termination of the affair
the other, to give something or to render some : !:tLarn~\ijs incidetits or to require the person concerned
service (CIVIL CODE, Art. 1305)'
Binding Force of a Contract _
Contracts are perfected by mere consept, c:1nd from
that moment the parties are bound to -·
1, · the fulfillment of what has. been expressly
stipulated ; i; _ _
2, to all of the consequences·vyhich, according tq
the nature of the obligations, may be in keeping
with good faith, usage, and la\JV;. (CIVIL CODE,
Art. 1315). .
NOTE: Where the law requires that a'contract be
made in some form, it shall only bind the Pflrties upon
compliance with the prescribed formalities (see CIVIL
CODE, Art. 1356).
Breach of Contract (Culpa Contractual)
In culpa contractual, the mere proof of the existence
of the contract and the failure of its compliance justify,
prima facie, a corresponding right of relief. Th~ law,
recognizing the obligatory force of contracts, will not
permit a party to be set free from liability for an~ kind
of misperformance of the contractual undertaking or
a contravention of the tenor thereof (Gilat Satellite
Networks, Ltd. v, United Coconut Planters Bank
General Insurance Co., Inc., G.R. No. 189563, April
7, 2014),
C. QUASI-CONTRACTS (QUASI
CONTRACTUAL)
Juridical relations arising from lawful, voluntary, and
unilateral acts by virtue of which the parties become
bound to each other, based on the principle that no
Quasi-contracts are based on the principles that:
1. No one must unjustly enrich himself at another's
expense;
2. If one benefits, he must reimburse; and
3. Justice and equity (PARAS, Civil Code of the
FROM Philippines Annotated, (2016), Vol. 5, p. 1157
[hereinafter 5 PARAS]).
In other words, the law considers the parties as
having entered into a contract, irrespective of their
intention, to prevent injustice (DE LEON, Obligations
and Contracts, supra at 21).
Two Main Kinds Quasi-Contract:
1. Negotiorum Gestio
2. Solutia lndebiti.
NEGOTIORUM GESTIO (OFFICIOUS
MANAGEMENT)
Whoever voluntarily takes charge of the agency or
t management of the business or property of another,
tw9
';i'-'.'Tfr~tbi,ui..iwJi1rn:
if the owner is in a position to do so
- (CIVIL CODE/'flrt. 2144).
Requisites bftN'egotiorum Gestio
The essential [eq'~isites of negotiorum gestio are as
follows (No-CAN-V~):
1. No,n:l~tj ' · .minds;
2. Takiii '""' another's business or property;
3. Property or business must have been
Abandoned or neglected;
- e. officious manager must Not have been
~sly or implicitly authorized; and
5. The officious manager (gestor) must have
Voluntarily taken charge - there must be no
vitiated consent, such as error in thinking that he
owned the property or the business (PARAS,
Civil Code of the Philippines Annotated, 2016,
Vol. 5, p, 1159 [hereinafter 4 PARAS]).
When Negotiorum Gestio Not Present
Negotiorum Gestio does not arise in either of these
instances:
1. When the property or business is not neglect\3d
or abandoned (in such a case provisions of Arts.
1317, 1403[1], and 1404 regarding unauthorized
contracts shall govern); and
2. If in fact the manager has been tacitly (implied
from actions or statements) authorized by the
owne·r (in such a case rules on agency in Title X,
EX- Book IV, shall apply) (CIVIL CODE, Art. 2144).
SOLUTIO /NDEBITI (PAYMENT NOT DUE)
If something is received when there is no right to
demand it, and it was unduly delivered through
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mistake, the obligation to return it arises ( CIVIL
CODE, Art. 2·/54).
Elements of Solutia lndebiti
The principle of solutio indebiti applies where:
1. A payment is made when there exists no binding
relation between the payor, who has no duty to
pay, and the person who received the payment;
and
2. The payment is made through mistake, and not
through liberality or some other cause (Spouses
Abella v. Spouses Abella, G.R. No. 195166, July
8, 2015).
ACCION IN REM VERSO V. SOLUTIO
INDEBITI
It is not necessary that
the payment was made
by mistake; payment-
could have been made
knowingly and
voluntarily.
Nevertheless, there
would be recovery of
what has been paid.
(1 TOLENTINO, supra at 83-84).
Obligation to Pay Interest on Payment Unduly
Received Until Returned
Whoever in bad faith accepts undue payment, shall
pay legal interest if a sum of money is involved, or
shall be liable for fruits received or which should have
been received if the thing produces fruits. He shall
furthermore be answerable for any loss or impairment
of the thing from any cause, and for damages to the
person who delivered the thing until it is recovered
(CIVIL CODE, Art. 2159).
Other Quasi-Contracts Recognized Under the
Civil Code
1. Right to claim support given by a stranger, from
the person obliged to give support (CIVIL CODE,
Art. 2164).
2. Right to reimburse the funeral expenses, borne
by a third person, from the relatives obliged to
give support to the deceased (CIVIL CODE, Art.
2165).
3. Right of reimbursement of stranger who furnishes
support to an orphan.an insane person, or other
indigent person, from the person obliged to give
support to the latter (CIVIL CODE, Art. 2166).
4. Obligation of the person injured or seriously ill to
pay for the services of the physician or other
person, who treated or helped him while he is not
in a condition to give consent (CIVIL CODE, Art.
2167).
OBLIGATIONS AND CONTRACTS
Civil Law
5. Obligation of the owner of the property to pay a
just compensation to the person who saved it
from destruction (CIVIL CODE, Art. 2168).
6. Obligation of the person who failed to comply with
health or safety regulations to pay the expenses
of the government in undertaking to do the
necessary work (CIVIL CODE, Art. 2189).
7. Co-ownership of movables commingled or
confused by accident or other fortuitous event
(CIVIL CODE, Art. 2170).
8. Rights and obligations of the finder of lost
personal property (CIVIL CODE, Art. 2171).
9, Right of every possessor in good faith to
reimbursement for necessary and useful
expenses ( CIVIL CODE, Art. 2172),
10. Right to beneficial reimbursement by a third
person who pays the debt of another without his
knowledge (CIVIL CODE, A,t. 2173).
11. Obligation of a person benefited by measure for
protection against lawlessness, fire, flood, storm
Payment made by or other calamity to pay his share of expenses
mistake is an essential (CIVIL CODE, Art. 2174).
element to maintain the 1~'.. Right of reimbursement by a person constrained
action for recovery. to pay the taxes of another from the latter (CIVIL
CODE, Art, 2175).
NOTE: Enumeration of Quasi-Contracts in the CIVIL
CODE is NOT exhaustive nor exclusive (CIVIL
CODE, Art. 2143).
D. DELICT (EX-DELICTO OR CULPA
CRIMINAL)
Civil obligations arising from criminal offense shall be
governed by the penal laws (CIVIL CODE, Art. 1161).
Every person criminally liable for a felony is also
. civilly liable (REVISED PENAL CODE, Art. 100)
Every crime gives rise to:
1. A criminal action for the punishment of the guilty
party; and
2. A civil action for the restitution of the thing, repair
of the damage, and indemnification for the losses
(Romero v. People of the Philippines, GR. No.
167546, July 17, 2009).
Reason of Civil Liability Ex Delicto
A crime has dual character:
1. As an offense against the state because of the
disturbance of the social order; and
2. As an offense against the private person
injured by the crime (Occena v. lcamina, GR No.
82146, January 22, 1990).
Scope of Civil liability Ex Delicto
1. Restitution of Property taken;
2. Reparation of damage caused; or
3. Indemnification for consequential damages
(REVISED PENAL CODE, Art. 104).

™ \I
MEM:Q~Y AID
San Bed<.1 Uriiversfly College ot Law •· RGGT Bar Operations Center
No Civil Liability for "Victimless Crimes"
No civil liability arises on the part of the offender in
some crimes such as Treason, Gambling, or Illegal
Possession of Firearms, because there are no
damages to be compensated or there is no private
person injured by the crime (JURAbO, Obligations
and Contracts, supra at 11),
Effect of Exempting Circumstances to Civil
Liability Ex Delicto
Under Article 12 of the Revised Penal Code, persons
exempted from criminal liability are not necessarily
exempted from civil liability except under Article 12,
par. 4. (See REVISED PENAL CODE, Art 101),
Effect of Extinguishment of Criminal Liability on
Civil Liability
If criminal liability was extinguished on the ground
that the accused was not the author of the acts
complained of as a felony or offense, no civil liability
arises in relation thereto (see CIVIL CODE, Art. 29;
Dayap v. Sendiong, G.R No. 177960, January 29,
2009). , No. L-12219, March 15, 1918)
If criminal liability is extinguished by some other
manner, but where it is clear that the accused was the
author of the act or omission complained of as having
caused damage or injury to a private complainant, the
civil liability is not extinguished and can be enforced
in the same action or a separate action (see CIVIL
CODE, Art. 29).
E. QUASI-DELICT
Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between
the parties, is called a quasi-delict (CIVIL CODE, Art.
2176).
Requisites of Quasi-delict: (DFC)
1. Qamage suffered by the plaintiff;
2. E_ault or negligence of the defendant; and
3. fausal connection between the fault or
negligence of defendant and the damage
incurred by the plaintiff ( Gui/fang v. Bedania, GR.
No. 162987, May 21 2009).
Negligence
Negligence is the omission of that diligence which is
required by the circumstances of person, place, and
time (CIVIL CODE, Art 1173). Thus, the finding of
negligence is a question of fact (Philippine National
Railways Corporation v. Vizcara, GR. No. 190022,
February 15, 2012).
Negligence is defined as the failure to observe for the
protection of the interest of another person that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
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person suffers injury (Gui/fang v. Bedania, GR. No.
162987, May 21, 2009):
Test of Negligence: The test of negligence is
objective. It is measured by the act or omission of the
tortfeasor with a perspective as that of an ordinary
reasonable person who is similarly situated. The test
is whether or not the tortfeasor, under the attendant
circumstances, used that reasonable care and
caution which an ordinary reasonable person would
have used in the same situation (Makati Shangri-La
Hotel and Resort, Inc. v. Harper, .G.R. No. 189998,
August 29, 2012).
Rather, did the defendant in doing the alleged
negligent act use that reasonable care and caution
which an ordinary person would have used in the
same situation? What an ordinary prudent person will
do under the circumstance can be determined by
asking the following: could a prudent man, in the case
under consideration, foresee harm as a result of the
course actually pursued? (Picart v. Smith, Jr., GR.
'.'Proximate Cause
ThE;i qeghgent act or omission must be the proximate
· cause of the., injury (Josefa v. Manila Electric
Company, GR. No. 182705, July 18, 2014).
Proximate cause \s defined as that cause, which, in
natural and continuous sequence, unbroken by any
·· efficient intervening cause, produces the injury, and
without .v/)i,ch tbe}~pult would not have occurred
(Mendoza·v, · Spouses Gomez, G.R. No. 160110,
June 18, 2014).
Necessity of Proving Negligence
In ordei' for liability from negligence to arise, there
must be not only proof of damage and negligence, but
also proof that the damage was the consequence of
the negligence (Abrogar v, Cosmos Bottling
Company, G.R. No. 164749, March 15, 2017),
However, since negligence may in some cases be
hard to prove, the doctrine of res ipsa loquitor (the
thing speaks for itself) may be applied. It
recognizes that parties may establish prima facie
negligence without direct proof, thus, it follows the
principle to substitute-for specific proof of negligence,
It permits the plaintiff to present along with proof of
the accident, enough of the attending circumstances
to invoke the doctrine, create an inference or
presumption of negligence and thereby place on the
defendant the burden of proving that there was no
negligence on his part (Del Carmen, Jr. v. Bacoy,
GR No. 173870, April 25, 2012).
The requisites of res ipsa loquitor are as follows:
1. The event is of a kind which does not ordinarily
occur unless someone is negligent;
 OBLIGATIONS AND CONTRACTS
Civil Law

2. The cause of the injury was under the exclusive

control of the person in charge; and
3. The injury suffered must not have been due to
any voluntary action or contribution on the part of
the person injured (Geromo v. La Paz Housing Employer's liability is Employer's liability is
and Dev Corp, G.R. No. 211175, January 18, subsidiary. The primary; can be sued
2017). employee must have first directly by the injured
been convicted and party and may recover
DELICT V. QUASI-DELICT sentenced to pay civil from his employee.
indemnity and it must be
shown that he is
insolvent.

Public Interest: Wrong Private Interest: wrong

against the individual and against the individual.
Employer is liable only All employers whether
the State.
when he is engaged in they are engaged in
some kind of business or some enterprise or not
industry. are liable, this includes
There is criminal house helpers.
malicious intent (OELEQJ;J, Obligations and Contracts, supra at 30;
criminal negligence. JtJRAOO,; Ob)igaiions and Contracts, supra at 21;
:ElckJno v. Hill; G,f?. No. L-24803, May 26, 1977).

S~vera1:o~tlgation~ Arising from Single Act or

Not as broad as quasi-
delict; can be punished
only when there is a
penal law clearly
penalizing it.
Form of redress is either Either
fine or imprisonment or compensation
both. indemnification.
. '
' As to Proof Required
' - _,
Omission ·c,.. . • ·.·.
The enui\leratiori [in,/Xrticle 1157] does not preclude
a
the possibility that si~gle action may serve as the
. source of sever13IJ)bligations to pay damages in
accordance with. the CIVIL CODE (Tankeh V.
Development B;Jnk'· of the Philippines, G.R. No.
17_111~s/6/ov(:Jmtlp 11, 4013).
E,xa,rripf-;;:'.. Ejeffing a{passenger already seated
.CIO inside• 'tft'e plii}he for /ho reason other than racial
o'r, omis· "d_istnrrlinati9n' - (1) consequences arising from
fault or ·• ;breas:h gf' contrac,( and (2) payment of damages
interv~ne · arising fi-om)awJ1S a result of morally reprehensible
, m'ii'nnet ',,of /:)reach of contract (Air France v.
0arra1co~o;G.R. No. L-21438, September 28, 1966).
Prohibition from Double Recovery
Although a single- act or omission may give rise to two
by
different causes of action, the plaintiff cannot recover
or
damages twice for the same act or omission of the
defendant (CIVIL CODE, Art. 2177).
. :. ,
, ~ ~ -

Must be proven beyond Requires

. reasonable doubt. preponderance of
evidence.

- As to Compromise_ : ; __ -_

Can never be Can be compromised

compromised. as any other civil
liability.
 mt'ifl\'BP \ / ' : ; '~' J / ' ~ _., '• ) );~

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San Seda University College of Law - RGCT Bar Operations Center
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2. Constructive delivery
NATURE AND EFFECT OF Where although physical possession is not
placed in the hands of the obligee, it is
OBLIGATIONS nevertheless irrevocably placed in his effective
(ARTS. 1163-1178) control
a. Traditio symbo/ica (symbolic tradition) -
as when the keys of a bodega are given

I OBLIGATION TO GIVE I NOTE: Delivery of the key to the car garage

where a car and its key are kept is symbolic
delivery, Delivery of the car keys themselves
- is actual delivery.
WHEN OBLIGATION TO DELIVER
b. Traditio longa manu - delivery by mere
ARISES consent or the pointing out of the object);
GENERAL RULE: The obligation to deliver arises
from the time of the perfection of the contract. c. Traditio brevi manu- whereby the
possessor of a thing is constituted as owner
EXCEPTIONS: _ thereof;
1. If the obligation is subject to a
suspensive condition or period. Example: The lessee who had been living in
It arises upon fulfillment of the condition or arrival a house for 10 years becomes absolute
of the period (CIVIL CODE, Arts. 1179, 1189, and owner upon payment of the last installment of
1193). - a rent-to-own contract.

NOTE: The parties may make a stipulation to the_ '.'fa/'1fA;!t; Cons~tutum possessorium - the opposite
contrary as regards the right of the creditor to the ofrfi,ifv1 manu wher.e the
owner is made into
fruits of the thing. a mer,fpossessor thereof

2, If obligation is based on a source other Ex~l'np,1~\ Where the original owner sells a
than contract buildirig toa vendee but the former continues
The specific provisions of applicable law shall to' pobess, the property in some other
determine when the delivery of the things hall tie ( ~i~r.w1r:~-!i~llf1S
a lessee.
effected (DE LEON, Obligations and_ Cpntracts, · ,,"''""
supra at 37). .- - e. Delivery of Instrument or Document of
Title - The delivery of a document
DELIVERY . t/S::'"t!?_ evidencing title to the thing, such as a
· '·' :;:?:; fiegotiable warehouse receipt.
Delivery is an act by which one party parts with the
title to and the possession of the property, and the
other acquires the right to and possession of the
OBJECT OF THE PRESTATION
same (NFF Industrial Corporation v, G&L Associated The object of an obligation is not a thing but a
Brokerage, G.R. No. 178169, January 12, 2015). particular conduct of the debtor. The object of an
obligation is thus always a prestation, which may
PURPOSE OF DELIVERY consist in giving or doing or not doing something (4
TOLENTINO, supra at-57-58).
The purpose of delivery is not only for the enjoyment
of the thing but also ~ mode of acquiring dominion The obligation to deliver may be an obligation to
and determines the transmission of ownership, the deliver: ·
birth of the real right (Cebu Winland Development 1, Specific or Determinate Thing
Corporation v. Ong Siao Hua, G.R. No. 173215, May 2. Generic Thing
21, 2009). 3. Limited Generic (Id. at 91)

KINDS OF DELIVERY SPECIFIC OR DETERMINATE THING

1. Actual delivery (tradition) A thing is determinate when it is particularly
In sale, for example, actual delivery of the thing designated or physically segregated from all others of
sold occurs when it is placed under the control the same class (CIVIL CODE, Art. 1460, par.1).
and possession of the vendee (The Roman
Catholic Church v. Pante, G.R. No. 174118, April
11, 2012).
 OBLIGATIONS AND CONTRACTS
Civil Law

Thing Deemed Specific, Determination Does Not SPECIFIC V. GENERIC OBLIGATION

Require Subsequent Agreement
The requisite that a thing be determinate is satisfied
if at the time the contract is entered into, the thing is
capable of being made determinate without the
necessity of a new or further agreement between the The obliger must deliver The obliger may deliver
parties (CIVIL CODE, Art. 1460, par. 2). the very thing promised any thing from the same
(CIVIL CODE, Art. class which is neither
GENERIC OR INDETERMINATE THING 1165; 1244). superior nor inferior in
A thing is generiG 01 i11ude1111i11ale i11 tile ::;en::;e ll tal il quality (CIVIL CODE,
is desi!=jnated merely by its class or genus without c1ny Art. 1246).
particular designation or physical segregation from all
others of the same class, the loss or destruction of
c1riylt1i11g of the same kind even without the debtor's
fault and before he has incurred in delay will not have Loss of the thing Can never be affected
the effect of extinguishing an obligation. extinguishes the by loss because things
obligation to deliver, of the same class, kind,
The rule is based on the principle that the genus of a without prejudice to and quality can be
thing can never perish. Genus nunquam peril. Article 1170. delivered.
(Gaisano Cagayan, Inc. v. Insurance Company of
North America, G.R. No. 147839, June 8, 2006, see
also CIVIL CODE, Art. 1263). Right to comp,~! delivery Right to compel delivery
of the thing. itself or right to charge the
LIMITED GENERIC THING (Specific Performance) expense of compliance
When the generic objects are confined to ·a particular (CIVIL CODE, Art. by another (CIVIL
class. The class is considered in itself'a determinate 1165, par. 2). · CODE, Art. 1165, par.
object. 2).

Example: An obligation to deliver one of my horses,

because the thing is limited to the. horses owned by
LIMITED GENERIC V. GENERIC
the debtor and he cannot deliver any horse riot owned OBLIGATION
by him (4 TOLENTINO, supra at 91).
·,
NOTE: Loss of a generic thi(lg does not extinguish
the obligation, except in case of limited generic
things, where .the kind itself, and the whole class The obligor must The obligor may deliver
perishes. · deliver the generic any thing from the same
object frorri a particular class which is neither
SPECIFIC V. GENERIC OBJECT class (4 TOLENTINO, superior nor inferior in
: _.,,_,..: "'"' t-,-~,,, J; i\f y~,_y.,_ '"'~ y, ~\t "*'~-!j ~y,i;;,°":,-t~"'/F';;-· vv,lf:7~tt?:-~,~i«ii~t..::1-w.frr supra at 91). quality (CIVIL CODE,
.t · • ,,<~- SF!ECt~Ulf '""~ ,.,:;.r~_.,._;;;:v·,GIRS.Bifl'ff,7'Jf'"'' Art. 1246)_.
~._, <: ~ i-2 ,~c,~,"--'tJ~-v" '",-,~,;}l1~l~li1iJ.,f}~~~l~1\"(JA,:; r~1Pi£liiii%tii
"X's blue car" a car

"The P100 bill bearing P100.00

the autograph of
celebrity pop star X"

"A healthy male horse A horse ACCESSORY OBLIGATIONS TO

from X's stable" OBLIGATION TO DELIVER SPECIFIC
THING
"The harvest of this rice 100 sacks of jasmine
1. Obligation to Take Care of the Thing ki be
land in the next harvest rice
Delivered (CIVIL CODE, Art. 1163);
season"
2. Obligation to Deliver the Fruits of the Thing
(CIVIL CODE, Art. 1164); and
3. Obligation to Deliver Accessions and
Accessories (CIVIL CODE, Art. 1166).
 tFF/1 '/ l A"< •~ "t ~/~ ' t , .( t ~ ,
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San Beda University College of Law - RGCT Bai Operati0/1S Center
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NOTE: An express stipulation to the contrary
between the parties shall prevail over these statutory
provisions.
OBUGATION TO TAKE CARE OF THE
THING TO BE DELIVERED
Every person obliged to give something is also
obliged to take care of it with thP. rrnrP.r diligenr:e of
a good father of a family (CIVIL CODE, Alt. 1163).
NOTE: The accessory obligation to take care ends
upon delivery of the thing itself.
REASON: The obligor must deliver the thing itself
and cannot compel the obligee to receive a different
one, although the latter may be of the same value as,
or more valuable than that which is due (CIVIL
CODE, Alt. 1244).
The debtor must exercise diligence to insure that the
thing to be delivered would subsist in the same
condition as it was when the obligation was
contracted. Otherwise, the debtor would be able to
afford being negligent and he would not be liable
even if the property is lost or destroyed, thus
rendering illusory the obligation to give (OE LEON,
Obligations and Contracts, supra at 35).
DILIGENCE OF A GOOD FATHER OF A
FAMILY
The diligence of a good father of a family requires
only that diligence which an ordinary prqdent man
would exercise with regard to his own property
(Wildval/ey Shipping, Co. Ltd. v. The Court of
Appeals, G.R. No. 119602, October 6, 2000).
HIERARCHY OF STANDARDS
DILIGENCE
1. Extraordinary Diligence
- That extreme measure of care and caution
which persons of unusual prudence and
circumspection use for securing and preserving
their own property or rights(applies to banks and
common carriers)
2. Ordinary Diligence or Bonus Pater
Familias
- The reasonable care a prudent man can be
expected to exert to protect his own property
3. Simple Diligence
- that reasonable care a prudent man can be
expected to exert to protect another person's
property
A different standard of care may be stipulated by
the parties
Every person obliged to give something is also
obliged to take care of it with the proper diligence of
a good father of a family, unless the law or the
stipulation of the parties requires another standard of
care (CIVIL CODE, Art. 1163), The Civil Code
provides that if the law or contract does not state the
diligence which is to be observed in the performance
of an obligation that which is expected of a good
father of the family shall only be required (Orient
Freight International Inc. v. Keihin-Everett
Forwarding Company Inc., G.R. No. 191937, August
9, 2017).
OBLIGATION TO DELIVER THE FRUITS
OF THE THING
The creditor has a right to the fruits of a thing from the
time the obligation to deliver arises (CIVIL CODE, Art.
1164).
In case of law, quasi-contracts, delicts and quasi-
delicts, the obligation to deliver arises from the time
, designated by the provisions of the CIVIL CODE,
· P~ncll Laws, or Special Laws creating or regulating
them: ··· ·
In case of contr:,acts, the obligation arises from the
time of the perfection of the contract or stipulation of
the parties unless it is subject to a suspensive
condition, ·suspensive term or period, or if there is a
· contrary stipt]lation b.f \he parties.
' ". :•>\\'.~·-<
FRUITS
1. Natural Fruits
a_. spontaneous products of the soil, and
OF b. the young and other products of animals
produced (CIVIL CODE, Art. 442, par. 1)
2. Industrial
Those produced by lands of any kind through
cultivation or labor ( CIVIL CODE, Art. 442, par 2)
3. Civil
Those derived by virtue of juridical relation ( CIVIL
CODE, Art. 442, par. 3).
Example: Rents from lease contract; interest on
bank deposits assigned.
RIGHT TO FRUITS ACCRUES UPON
DELIVERY
The 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 ( CIVIL CODE, Art. 1164, par.
1).
 OBLIGATIONS AND CONTRACTS
Civil Law

Illustration: SPECIFIC V. GENERIC OBLIGATION

On May 25, 202·1 X and Y entered into a contract
· wherein X would deliver her only eleven month old
Dalmatian named BB on Valentine's Day 2022.
Pending the delivery, BB gave birth to 101 Dalmatian
puppies on December 2021. Who is the owner of the The obligor must deliver The obligor may deliver
puppies? the very thing promised any thing from the same
(CIVIL CODE, Art. class which is neither
X is the owner of the puppies. Art. 1164 provides that 1165; 1244). superior nor inferior in
the creditor (Y) has the right to the fruits of the thing quality (CIVIL CODE,
from the time the obligation to deliver it arises. In this Art. 1246).
case, BB gave birth to the 101 Dalmatians before the
obligation to deliver it on February 14, 2022. Hence,
X has the right to own the fruits (puppies} of BB.
1. Obligation to Take N/A.
REAL RIGHT V. PERSONAL RIGHT Care of the Thing to
Real right over a thing pertains to all direct rights to be Delivered (CIVIL
ownership of a res (thing). It is also called jus in re or CODE, Art. 1163)
"legal title" over something. 2. Obligation to Deliver
the Fruits of the
Personal right is merely the right to the performance Thing (CIVIL CODE,
of an obligation, that is to the prestation itself and not Art. 1164)
to the object of the prestation. In ti,e context qf the 3 Obligation to Deliver
obligation to give, it is the right to«b,e givenJhe thing" Accessions and
and not the right to "the thing itS§:lf." It i~ also called Accessories (CIVIL
jus ad rem or a "beneficial rig~f· over s6mething. CODE; ~rt,, 1 !.66)

OBLIGATION TO DELIVER ACCESSIONS

AND ACCESSORIES GENERAL RULE: Loss, regardless of
The obligation to give a deterrpin~te thing includes Borne ,by Debto.r ...u.ntil cause, does not relieve
that of delivering all of· its : accessions and delivered (CIVIL CODE; debtor of primary
accessories, even though they :may nbt have been Art. 1165, par. 1, in wt. obligation to deliver
to Art. 1r10) . ..
mentioned (CIVIL CODE, Art. 1166)\ ·.· . •.
E:XCEPTJQN: Loss due
ACCESSIONS
to fortuitous event
The ownership of property gives the righf by, (CIVIL CODE, Art.
accession to everything: 1174) . .
1. which is produced thereby; or
2. which is incorporated or attached thereto, either EXCEPTION TO
naturally or artificially (CIVIL CODE, Art. ·440) EXCEPTION:
1. If the obligor is in
Examples: Fruits of a land still attached to the soil or delay;
plant from which they grow; Water in the swimming 2. If obligor has
pool; spoilers on a car. promised to deliver
the same thing to
ACCESSORIES. two or more persons
Signifies all of those things which have for their object who do not have the
the embellishment, use or preservation of another same interest {CIVIL
thing which is more important and to which they are CODE, Art. 1165,
not incorporated or attached (JURADO, Obligations Par. 3)
and Contracts, supra at 48).

Examples: Paint on a house; Air Freshener inside a

car.
 6&86¥411 \ I

ME~Q,RY AID
Sa0 Beda University College of law ~ RGCT Bar Operations Center

CORRELATIVE RIGHTS OF THE

CREDITOR
CODE,
par 3)
Art. 1165, I
_

Right to demand payment of damages if debtor is OBLIGATION TO DO

guilty of fraud, negligence, or delay in the ORNOTTODO
performance of their obligation, and those in any
manner contravene the tenor thereof (CIVIL
CODE, Art. 1170).
THREE SITUATIONS CONTEMPLATED
UNDER ARTICLE 1167 WHICH REFERS
TO AN OBLIGATION TO DO:
1. Specific 1. Right to compel 1. The debtor fails to perform an obligation to do;
Performance (CIVIL delivery of a thing 2. The debtor performs an obligation to do, but
CODE, Art. 1165) which is neither of contrary to the terms thereof; or
2. Rescission of a superior nor inferior 3. The debtor performs an obligation to do but in a
Reciprocal quality (CIVIL poor manner (CIVIL CODE, Art.1167).
Obligation to Debtor CODE, Art. 1246)
in case of breach 2. Right to have the PERFORMANCE BY A THIRD PERSON
(CIVIL CODE, ·Art. obligation performed
1191) by another at the
<pA personal obligation to do, like a real obligation to
.):t-0eliver a generic thing, can be performed by a third
expense of the ·
debtor (CIVIL CODE,••
~;}~r~qp (See.,QIVIL CODE, Art. 1165).
Art. 1165)
-,:•;;~~6~s;•~F SPECIFIC PERFORMANCE
NOT A'1AILABLE IN PERSONAL
OBLIGAi1dNS
Unless otherwise N/A While thfl' deotor can be compelled to make the
agreed: ecif\c thing, a specific performance
1. The right to compel • a personal obligation to do
delivery of fruits because · amount to involuntary servitude
accrued from which, as a rule, is prohibited under Section 18[2},
perfection of ,Ill of the 1987 Constitution (DE LEON,
contract (CIVIL lG.O/;.,and Contracts, supra at 43).
,:::.:~,,,-<,,",¾;·;;,
CODE, Art. 1164)
2. The right to compel NOTE: Where the personal qualifications of the
delivery of debtor are the determining motive for the obligation
accessions and contracted (e.g., to sing in a nightclub), the
accessories present performance of the same by another would be
at perfection of impossible or would result to be so different that the
contract even if not obligation could not be considered performed.
specific in the Hence, the only remedy of the creditor is
contract (CIVIL indemnification (Id.).
CODE, Art. 1166)
3. The right to hold REMEDY IN CASE ·oF BREACH OF
debtor liable for loss POSITIVE PERSONAL OBLIGATION
even if resulting If a person obliged to do something fails to do it, the
from fortuitous event same shall be executed at his cost. This same rule
when loss occurred shall be observed if he does it in contravention of the
during delay or tenor of the obligation. Furthermore, it may be
when thing was decreed that what has been done poorly be undone
promised to two (CIVIL CODE, Art. 1167).
creditors with
different interests
prior to loss (CIVIL
 OBLIGATIONS AND CONTRACTS
Civil Law

REMEDY IN CASE OF BREACH OF

NEGATIVE PERSONAL OBLIGATION
When the obligation consists in not doing, and the
obligor does what has been forbidden him, what has
been done may be undone at his expense (CIVIL (CIVIL CODE, Ari. been done in breach
CODE, Ari. 1168). 1167) of obligation, if
2. To shoulder the cost possible ( CIVIL
NOTE: In obligations not to do, the duty of the obliger when some else - CODE, Art. 1168);
is to abstain from an act. Here, there is no specific a. does or 2. To pay Damages
performance. The very obligation is fulfilled in not accomplishes (CIVIL CODE, Arts.
doing what is forbidden. Hence, in this kind of what was 1170-1172, 2201-
obligation the debtor cannot be guilty of delay (DE promised 2202).
LEON, Obligations and Contracts, supra at 44). b. undoes what was
done
poorly(CIVIL
WHEN REMEDY TO COMPEL UNDOING CODE, Art.
NOT AVAILABLE: 1167);
1. Where the effects of the act which is 3. To pay Damages
forbidden are definite in character (CIVIL CODE, Arts.
Even if it is possible for the obligee to ask that the 1170-1172, 2201-
act be undone at the expense of the obliger, 2202).
consequences permanent in c:;haracter . and
contrary to the object of the oblig<:Jtion will be
DUTIES OF THE DEBTOR V. DUTIES OF
produced (JURADO, Obligations and Contracts,
supra at 55). THE CREDITOR

Illustration: For instance, should a TV star be

absolutely prohibited by his contract with his 1. To Qo it (CIVIL 1. To have the
home station to appear in programs of other T\/ CODE, Art. obligation· gxecuted
stations, the effects of the breach thereof can no 1167); at the cost of the
longer be undone. 2. To §.houlder the debtor (CIVIL
f.OSt of execution CODE, Art. 1167);
2. Where it is physically or . legally should he fail to do 2. To recover
impossible to undo what has been done· it (Id); Qamages in case of
because of the very nature ofthe act itself 3. To !,!ndo what has breach ( CIVIL
or of a provision of law, or because of been poorly done CODE, Art. 1170).
(Id);
conflicting rights of third persons (Id.}.
4. To pay Qamages in
case of breach·
Note: In obligations to do or not to do, an act or
(CIVIL CODE, Art.
forbearance cannot be substituted by another act
1170).
or forbearance against the obligee's will ( CIVIL
CODE, Art. 1244, par. 2). . .

SUMMARY OF PERSONAL
OBLIGATIONS (NSD) (UR)
1. Not to do what 1. To ask to !J.ndo what
should not be should not be done,
done; at the debtor's
2. To §houlder the expense (CIVIL
cost of undoing CODE, Art. 1168);
(CIVIL CODE, Art. 2. To Becover
1168); damages, where it
3. To pay Qamages in would be physically
case of breach or legally impossible
(CIVIL CODE, Art. to undo what should
1170). not have been done
because of the very
1. To shoulder the costs · nature of the act
of undoing what has itself, rights
 MEM:Q,RY AID
SM Beda University College of law - RGCT Bar Operations Center

acquired by third ARTICLE 1170 OF THE CIVIL CODE

persons who acted APPLIES WHEN A BREACH OF DUTY IS
in good faith, when NEITHER PART OF A CONTRACT OR A
the effects of the QUASI-DEUCT
acts prohibited are
Those liable under Art. 1170 should pay damages,
definite in character
but generally only if aside from the breach of contract,
and will not cease
prejudice or damage was caused (Berg v. Teus, G.R.
even if the thing
No. L-6453, October 30, 1964).
prohibited be
undone.
VOLUNTARY BREACH THROUGH
FRAUD OR DOLO
Fraud or dolo consists in the conscious and
intentional proposition to evade the normal fulfillment
BREACHOF of an obligation. This type of fraud, which is present
OBLIGATIONS during the performance of an obligation, must not be
confused with the causal or incidental fraud, which is
present at the time of the birth of an obligation. Under
our legalsystem, fraud in general may be classified
BREACH OF OBLIGATION/CONTRACT into civil and criminal fraud. Civil fraud, in turn, may
be classified into the following: first, the fraud or dolo
The failure without legal reason to comply with the
. in the performance of an obligation; and second, the
terms of the contract. It is also defined as the failure
·. fraud or dolo in the constitution or establishment of an
without legal excuse, to perform any promise which
obligation (JURADO, Obligations and Contracts,
forms the whole or part of the contract (Philippine
National Bank v. Spouses Tajonera, G.R. No.
supr,a. at 63).
195889, September 24, 2014).
CRIMINAL. FRAUD V. CIVIL FRAUD
BREACH OF OBLIGATION MAY BE:
1. As to lmputability of Liability
a. Voluntary - arises either by fraud,
.,, , '

negligence, delay. and in any manner

Criminal fr,;1ud exists Civil Fraud exists when
contravene the tenor of the obligation ( CIVIL when c;1n': sd'· .,
is there is a deliberate
CODE, Art. 1170); performed with malicious intent to
b. lnv_oluntary - arises due to fortuitous events deliberate intent cause inj1,.Jry to another
{CIVIL CODE, Art. 1174); (REVISED PENAL person through acts or
GODE, Art. 3). omissions which are not
2. As to Magnitude normally punishable by
a. Substantial - fundamental breaches that NOTE: Criminal fraud law.
defeat the object of the parties in. entering pertains to the essential
into agreement (Maglasang v. Northwestern element of malicious Civil Fraud is
Inc., G.R. No. 188986, March 20, 2013); and intent necessary to contractual where it
b. Casual - breaches which do not amount to a commit an act or relates to the creation or
fundamental injury to the contractual intent omission punishable by performance of
such as delay in payment where time is not law. contractual duty.
of the essence.

DIFFERENT MODES OF BREACH

Those who in the performance of their obligations are
guilty of: (FNDC)
1. fraud (dolo)
2. ~egligence (culpa)
3. _Qelay (mora) Intent to kill or intent to
4. Contravention of the tenor thereof (violatio) gain by taking property
(CIVIL CODE, Art. 1170). with clear, chargeable
knowledge that it
belongs to another
(RPG, Arts. 249 & 308).
Contractual Fraud
Intent to use
substandard materials
to cut costs and obtain
more profit under a
construction agreement
(Sps. David v. CIAC,
 OBLIGATIONS AND CONTRACTS
Civil Law

b. Waiver of future fraud gives lir.P.nsP. to ;:i

G. R. 15f)795, July 30,
2004).
Tortious Fraud
Deliberate invasion of
privacy of another (Sps.
Hing v. Choachuys,
G.R. No. 179736, June
26, 2013).
FRAUD IN THE CONSTITUTION OF AN
OBLIGATION V. FRAUD IN THE
PERFORMANCE OF AN OBLIGATION
contracting party to breach the contract
without consequence. Such a waiver
severely undermines the stability of
contracts. It is void for being contrary to good
customs, morals, and public policy (CIVIL
CODE, Art. 6)
2. Waiver of Past Fraud generally not invalid
Rights may be waived, unless the waiver is
cu, 1l1 c11 y lo law, moral5, or good customs (CIVIL
CODE, Art. 6).
A past fraud can be the subject of a vulid wnivcr.
Here, what is renounced is the effects of fraud,
that is, the right to indemnity of the party entitled
thereto (DE LEON, Obligations and Contracts,
supra at 63-64).

Waiver can be considered as an act of generosity

· 'aha-magnanimity on the part.of the party who is
Present only at the time Present only durfng the
the vfcliTQ of the fraud (Id. at 63-64).
of the birth of the performa11cf of a· pre-
obligation. existin9,.qblig,;itidn;J.
\~ONl"ffACTUAL NEGLIGENCE

Employed for the EJhployM fQr the

The faulFor ne·g(igerfce of the obligor consists in the
purpose of securing the QLrpose.caf evading the
omission lof the\diligent,e which is required by the
consent of the other rio.rrnal fulfillment of an
nature of the obligatiori. and corresponds with the
party to enter into ~bligati~n ;_ already .
circumstances of1the persons, of the time and place
contract. ~stabfi$_hed.. .
(CIVIL C:QDE, Ari.
, •• ; j£
<
1173,'par. 1).

In cu1i:>i~ntraJ~;1:·1~e mere proof of the existence

Results in the vitiation Results "ill
0
thEi. -•non~ of. t6e contract; and the failure of its compliance,
of his consent. fulfillment hr breach of justify prima facie a cofresponding right of relief (FGU
the bpligatiorr: )osµrance Corp. V. BP Sarmiento Trucking Corp.,
~- GJ?.~,,No: 14.1910./..ugust 6, 2002).
,_; ._ ,>-,.. '

· Negli~qi::e'.Js conduct that creates an undue risk of

Gives rise to a right of Gives rise t; a, i,ight of harm fo,others. It is the failure to observe that degree
the innocent party to the creditor or obligee,te-. of"· tare, precaution and vigilance that the
ask for the annulment of recover damages from circumstances justly demand. It is the omission to do
the contract if the fraud the debtor or obligor something which a reasonable man, guided by
is causal or to recover (CIVIL CODE, Art. considerations that ordinarily regulate the conduct of
damages if it is 1170). human affairs, would do, or doing something that a
incidental (CIVIL prudent and reasonable man would not do (Gang v.
CODE, Art. 1390). Cullen, G.R. No. 163078, November 25, 2009).
{Id. at 63).
NOTE: The effect of every infraction is to create a
new duty, that is, to make recompense to the one who
WAIVER OF FRAUD
has been injured by the failure of another to observe
1. Any waiver of action for future fraud is his contractual obligation unless he can show
void (CIVIL CODE, Art. 1171). extenuating circumstances, like proof of his exercise
of due diligence (normally that of the diligence of a
REASONS: good father of a family or, exceptionally by stipulation
a. Responsibility arising from fraud is or by law such as in the case of common carriers, that
demaAdable in all obligations (CIVIL CODE, of extraordinary diligence) or of the attendance of
Art. 1171). fortuitous event, to excuse him from his ensuing
 f#W#P9 \ /

MEM:v-RY Al D
San Be<la \Jniversity College of Law - RGCT Bar Operations Center

liability. (Radio of the Philippines Communications, a pre-existing contract(JURADO, Obligations and

Inc. V. Verchez, G.R. No. 164349, January 31, 2006). Contracts, supra at 65);

Test of Negligence 2. Civil negligence(Cu/pa aquiliana; also

Did the defendant in doing the alleged negligent act called tort or quasi-delictj
use that reasonable care and caution which an - fault or negligence -of a person which causes
ordinary prudent person would have used in the same damage to another where there is no pre-existing
·situation? The law considers what would be reckless, contractual relation between the parties (CIVIL
blameworthy, or negligent in the man of ordinary CODE, Art. 2176);
intelligence and prudence and determines liab11!ty by
that (Philippine National Railways Corporation v. 3. Criminal Negligence (Culpa Criminal)
Vizcara, G.R. No. 190022, February 15, 2012). - fault or negligence which had it been
intentional, would constitute a felony (REVISED
PENAL CODE, Art. 365).
Factors to be considered
Negligence is a question of fact, its existence being
CULPA CONTRACTUAL V. CULPA
dependent upon the particular circumstances of each
case. The following factors must be considered: AQUILIANA V. CULPA CRIMINAL
(NaP-TiP)
1. Nature of the obligation;
2. Circumstances of the _Eerson;
3. Circumstances of Time; and
4. Circumstances of the Place (CIVIL CODE, Arlr ·
1173).
Negligence is Negligence is Negligence is
Standard of Diligence Required •.... .ll)fil(ely inci§!~rital direct, direct,
If law or contract do_es not state the diligence vyhich is ... 'to .:: . ./ the substantive, substantive,
to be observed in the performance, that which is performance . of and and
expected of a good father of a family is required an obligation independent. independent.
(CIVIL CODE, Art. 1173, par. 2). already existiri!;J
because · of a
If the obligor acted in good faith, he shaU be liable contract.
only for natural and probable consequences of the
breach of obligation and which the parties have
foreseen· or could have reasonably fores'eep at the
time the obligation was constituted (CIVIL CODE,
Art. 2201, par. 1; Continental Cement Corporation v.
Asea Brown Boveri, Inc., G.R. No. 171660, October
17, 2011).

Kinds of Diligence Required under Art. 1173:

(ARF)
1. The Agreed upon by the parties, orally or in Oreach or non- Injury Defendant's
writing; fulfillment of proximately criminal act.
2. In the absence of stipulation, that Required by contract. caused by the
law in the particular case (e.g., extraordinary negligent act or.
diligence for commofl carriers); and omission.
3. If both contract and law are silent, then the
diligence expected of a good .Eather of a family
(bonus pater familia) (CIVIL CODE, Art. 1173).
Requires proof Requires proof Requires
CONTRACTUAL NEGLIGENCE by by proof beyond
preponderance preponderance reasonable
DISTINGUISHED FROM OTHER TYPES of evidence. of evidence. doubt.
OF NEGLIGENCE IN LAW
1. Contractual negligence (Culpa
contractual)
- fault or negligence of obligor by virtue of which Exercise of Due Exercise of Due Diligence
he is unable to perform his obligation arising from diligence is a Due diligence is not a
valid defense is a valid defense
 OBLIGATIONS AND CONTRACTS
Civil Law

WHEN NEGLIGENCE EQUIVALENT TO

FRAUD
Where the negligence shows bad faith or is so gross
except where law defense except unless it that it amounts to malice or wanton attitude on the
or contract where law or constitutes a part of the defendant, the rules on fraud shall apply
imposes strict contract justifying or (CIVIL CODE, Art. 1173).
liability. imposes strict exempting
liability. circumstance.
FRAUD (DOLO) V. NEGLIGENCE

Proof of Plaintiff has to Accused is

existence of a prove presumed
contract and negligence of innocent, until
breach thereof the defendant. the contrary is
gives rise to a proved.
presumption of
fault.
PRESUMPTION OF CONTRACTUAL
NEGLIGENCE
Proof that the contract (1) exists and (2)has been
breached gives rise to the presumption of negligencEcl
on the part of the obligor such that he mus.t show with
clear and convincing proof that he exe,rcised due
diligence or that he was not respoi:isibl~ for the
breach. ·
Waiver \for future fraud Waiver for future
is void. negligence:
EFFECTS OF NEGLIGE~CE: 1. Valid if simple
1. Damages are demandable which the court may 2. Void if gross
regulate according to circumstances (CIVIL
CODE, Art. 1172); and
2. Invalidates defense of fortuitous event (4
TOLENTINO, supra at 130). Presumed from the Must be clearly proved.
breach of a contractual
obligation.
EFFECT IF OTHER PARTY ALSO GU1LTY
OF CONTRACTUAL NEGLIGENCE (4PARAS, supra at 140).
Both parties are liable for damages to each· other,
resulting from their own negligence. Such mutual GROSS INEXCUSABLE NEGLIGENCE
liability may be set off against each other in ft 'is negligence characterized by the want of even
accordance with the rules on Compensation under slight care-acting or omitting to act in a situation
Articles 1278-1290 of the CIVIL CODE. where there is a duty to act, not inadvertently but
willfully and intentionally, with a conscious
NOTE: Some authors use as basis Article 2179 of the indifference to consequences insofar as other
CIVIL CODE. It must be noted however that persons may be affected (Jaca v. People, G.R. No.
contractual negligence and negligence as an element 166967, January 28, 2013).
of quasi-delict gives rise to separate liabilities and do
not have the same effects. BREACH BY DELAY
WAIVER OF ACTION FOR FUTURE ORDINARY DELAY
NEGLIGENCE It refers to the non-fulfillment of an obligation with
An action for future negligence (not fraud) may be respect to time (J Plus Asia Development Corporation
renounced except where the nature of the obligation v. Utility Assurance Corporation, G.R. No. 199650,
requires the exercise of extraordinary diligence as in June 26, 2013).
the case of common carrier (CIVIL CODE, Art. 1173;
DE LEON, Obligations and Contracts, supra at 63). NOTE: Mere delay does not result in breach.
 f¥WANM ' 1
MEM/Q~Y AID
San Beda University Co!lege of Law ~ RGCT Bar Operations Center
LEGAL DELAY OR DEFAULT OR MORA
Those obliged to deliver or to do something incur in
delay from the time the obligee judicially or extra-
judicially demands from them the fulfillment of their
obligation ( CIVIL CODE, Art. 1169, par. 1). . Corp., G.R. No. 160758, January 15, 2014).
The law contemplates legal delay. Those obliged to
th1liver or to do something incur in dclny from the time
the obligee judicially or extrcijut.licially demand from
them the fulfillment of their obligation. In reciprocal
obligations, from the moment one of the parties fulfills
his obligation, delay by the other begins (Solar
Harvest, Inc. v. Davao Corrugated Carton
Corporation, G.R. No. 176868, July 26, 2010).
Delay in the performance of the obligation, however,
must be either malicious or negligent. If delay is only
due to inadvertence without any malice or
negligence, the obligor cannot be liable under Art.
1170 of the CIVIL CODE (RCBC v. CA, G.R. No.
133107, March 25, 1999).
KINDS OF DEFAULT:
.. : unnecessary
1. Mora Solvendi
- default of obligor
2. Mora Accipiendi
- default of oblige
3. Compensatio Morae
- default on the part of both debtor/obligor and
the creditor/obligee which arises in reciprocal
obligations.
A. MORA SOL VEND/
Delay on the part of the debtor by not performing his
obligation after a demand/specified time and may
either be:
1. Ex Re- obligations to give; and
2. Ex Persona- obligations to do (JURADO,
Obligations and Contracts, supra at 57).
Requisites of Mora Solvendi: (D 2 P)
1. The obligation is Demandable and already
liquidated; - November 19, 2004).
2. The debtor Qelays performance; and
3. The creditor requires ,Eerformance, judicially or
extra-judicially (Polo S. Pantaleon v. American
Express International, Inc., G.R. No. 174269,
May 8, 2009).
Where Mora Solvend1 Impossible
1. In obligations not to do, non-fulfillment may take
place but delay is impossible for the debtor fulfills
by not doing what has been forbidden him (DE
LEON, Obligations and Contracts, p. 46).
2. There is also no mora in natural obligations (4
PARAS, supra at 125).
Necessity of Demand
Without demand, judicial or extra-judicial, the effect
of default will not arise (Development Bank of the
Philippines v. Guarina Agricultural and Realty Dev.
Exceptions: (OLTUA)
1. When the Qbligation expressly so declares;
2. When the Law expressly so provides;
3. When !ime is of the essence of the contract;
4. When demand would be !J.seless because of
a. some act or fault of the debtor; or
b. impossibility of performance caused by
fortuitous event (CIVIL CODE, Art. 1169)
5. When the obligor has expressly ~cknowledged
that he really is in default (see Estoppel, CIVIL
CODE, Art. 1431)
NOTE: Mere asking for extension of time is not
an express acknowledgment of the existence of
default on his part.
Instance Where the Law Declares demand to be
· ·A partner is liable for the fruits of the thing he may
hav1;i;prnmised to contribute to the partnership from
···•. the timelhe;tshould have been delivered without the
need of any demand (CIVIL CODE, Art. 1786; see
also Art. 178.8).
Instances where.Time is of the Essence
1. The delivery ot souvenirs on a particular date
when,~ Yv~Q9tr:19Feremony will be held.
2. The ri)i!ikiog; 1of dress where the debut is
scheduled· at a certain time.
3. The delivery of perishable goods.
. Pi-esfonption that Time is NOT of the Essence
When the time of delivery is not fixed or is stated in
general and indefinite terms, time is not of the
essence of the contract. In such cases, the delivery
must be made within a reasonable time. What is
reasonable time will depend upon the circumstances
of the particular case (Lorenzo Shipping Corp. v. BJ
Marthe/ International Inc., G.R. No. 145483,
Valid Demand
1. Judicial demand
-as when a complaint for specific performance
is filed (Pa/mares v. CA, G.R. No. 126490, March
31, 1998).
2. Extra.judicial demand
- as when a demand letter is served without court
proceedings.
NOTE: A mere reminder cannot be considered a
demand for performance, because it must appear
that the tolerance or benevolence of the creditor must
 OBLIGATIONS AND CONTRACTS
have ended (Vazquez v. Ayala Corporation, G.R. No.
149734, November 19, 2004).
Grace Period
A grace period is not an obligation of the debtor, but
a right. It must not be likened to an obligation, the
non-payment of which under Art. 1169 of the CIVIL
CODE would generally still require judicial or
extrajudicial demand before default can arise. When
unconditionally conferred, it is effective without need
of demand, either for the payment of the obligation or
for the honoring of the right (Optimum Development
Bank v. Spouses Jovellanos, G.R .. No. 189145,
December 4, 2013, citing Bricktown Dev't. Corp. v.
Amor Tierra Dev't. Corp., G.R. No. 112182,
December 12, 1994).
Effects of Mora Solvendi
1. The debtor is guilty of breach of the obligation
(CIVIL CODE, Art 1170);
2. He is liable for loss or delay even)f caused by
fortuitous event when the obligation ls to deliver
a determinate thing (CIVIL CODE, Aris. 1165and
1170);and ·.
3. He is liable for interest in case .of obligations to
pay money (CIVIL CODE, Art. 2299), or:damages
in other obligations (CIV(L CODE, Art. 1170).
NOTE: When the demand .is" established with
reasonable certainty, the intetest shall begin to
run from the time the claim is 'made judicially or
extrajudicially but when <SuctH:;ertaihty cannot be
so reasonably established 'atthe time_ the
demand is made, the inte_rest sh,;ill begin to run
only from the date the judgment bf the court, is
made (Federal Builders, Inc, v. Foundat{on
Specialists, Inc., G.R. No. 194!j07, Sep"fembei 8;
2014). . .
B. MORA ACC/P/END/
The delay on the part of the creditor without justifiable'
reason to accept the performance of the obligation
(DE LEON, Obligations and Contracts, supra at 45).
NOTE: Read in relatio11. to Arts. 1256-1261 (Tender
of Payment and Consignation).
Requisites of Mora Accipiendi: (PCR)
1 . Offer of _Eerformance by the debtor who has the
required capacity;
2. Offer must be to ~omply with the prestation, as it
should be performed; and
3. Creditor _f!efuses the performance without just
cause (Polo S. Pantaleon v. American Express
International, Inc., G.R. No. 174269, May 8,
2009).
Civil Law
Remedy of Debtor in case of Mora Accipiendi
He must either:
1. Consign it in court (expenses chargeable to
creditor); or
2. Keep it himself, here he should still exercise
diligence and care, but this time, he would not be
liable for loss due to a fortuitous event (2
MANRESA 361).
Effects of Mora Accipiendi:
1. The creditor is guilty of breach of obligation;
2. Responsibility of the debtor for the thing is
reduced and limited to fraud and gross
negligence;
3. Debtor is exempted from the risks of loss of the
thing, which automatically passes to the creditor
(CIVIL CODE, Art. 1162);
4. All expenses incurred by the debtor for the
preservation of the thing after the delay shall be
chargeable to the creditor; ·
5. The creditor becomes liable for damages;
6. The debtor may relieve -himself of the obligation
by consignation of the thing or sum due {CIVIL
CODE, Art.1256); and
7. If _the obligation bears interest, the debtor does
not have to p(;ly from the moment of the creditor's
delay (4 TOLENTINO, supra at 108).
C. COMPENSAT/0 MORAE
" "
In reciprocal obligations, neither party incurs delay if
the other does nip! comply or is not ready to comply
in a proper manner with what is incumbent upon him.
From the moment<one of the parties fulfills his
obligation, del 9 y by the other begins (CIVIL CODE,
Arl.1169, par. 3).
In reciprocal obligations, no demand is generally
nec_essary. But when different dates for performance
of the obligations are fixed, the default for each
obligation must be determined by the rules given in
the first paragraph of Art. 1169, that is, the other parry
would incur in delay only from the moment the other
party demands fulfillment of the former's obligation
(Solar Harvest, Inc. v. Davao Corrugated Carton
Corporation, G.R. No. 176868, July 26, 2010).
Effects of Compensatio Morae:
1. Delay of the obligor cancels delay of the obligee
and vice versa;
2. No actionable default on the part of both parties;
and
3. If delay of one party is followed by that of the
other, the liability of the first infractor shall be
equitably balanced by the courts. If it cannot be
determined which of the parties is guilty of delay,
the contract shall be deemed extinguished and
each shall bear his own damages ( CIVIL CODE,
Art. 1192).
 \ I
M EM:v~Y Al D ,
San Seda Universrty College of Law - RGCT Bar Operations Center
BREACH BY DEFECTIVE
PERFORMANCE
CONTRAVENTION OF TENOR
The phrase "in any manner contravene the tenor" of
the obligation includes any illicit act or omission which
impairs the strict and faithful fulfillment of the
obligation and every kind of defective perform,mcc
(Victorino D. Magat v. Hon. Leo D. Medialdea, G.R.
No. L-37120, April 20, 1983).
Examples:
1. The taxi company is duty-bound to pay the
damages to the passenger if the driver kills the former
since the taxi company has the duty to protect the
passengers with utmost care (Maranan v. Perez,
G.R. No. L-22272, June 26, 1967);
2. If a person enters into a contract where he has to
meet certain bank requirements, but is unable to
nieet said requirements, he is liable for breach of
contract, if he knew from the beginning that said ,
requirements could not be complied by him (Arrietav, ·
NARIC, G.R. No. L-15645, January 31, 1964).
[ FORTUITOUS EVENTS
FORTUITOUS EVENT
Fortuitous events by definition are extraordinary
events not foreseeable or avoidable. It is• therefore,
not enoL,Jgh that the event should hot have been
foreseen or anticipated, as is commonly belie,ved but
it must be one impossible to foresee or to _avoid. The
mere difficulty to foresee the happening is .. not
impossibility to foresee the same (Sica(fl v. Jorge,
G.R. No. 159617, August 8, 2007). · For defense of force majeure to prosper, it is
REQUISITES OF FORTUITOUS EVENT:
(IFIF)
1. The event must be !ndependent of the human will
or at least of the obligor's will;
2. The event could not be .Eoreseen, or if it could be
foreseen, it must have been impossible to avoid;
3. The event must be of such a character as to
render it !mpossible for the obligor to fulfill his
obligation in a normal manner; and
4. The obligor must be .E.ree from any participation
in the aggravation of the injury resulting to the
obligee (Philippine Realty and Holdings Corp.,
G.R. No. 165548, June 13, 2011).
:",,!: . : , ' : . :t: , '.- ·, ':,t
,
, ·,, ·_,
~ :{
'
~07
'
\ '
CLASSIFICATION OF FORTUITOUS
EVENT
1. By Nature or Acts of God
- they are those events which are totally
independent of the will of every human being
(e.g., earthquake, flood, rain, shipwreck, lighting,
eruption of volcano, etc.) and which are also
, called force majeure; and
2. By Act of Man
- fortuitous event independent of the will of the
obligor but not of other human wills (e.g., armed
invasion, attack by bandits, robbery etc.) (DE
LEON, Obligations and Contracts, supra at 77-
78).
NOTE: In law, fortuitous events and force majeure
are identical in so far as they exempt an obligor from
liability. Both are independent of the will of the obligor
(Republic of the Philippines v. Luzon Stevedoring
Corporation, G.R. No. L-21749, September 29,
1967).
. NT AND PREVIOUS
E OF OBLIGOR
The principlef;!§mbodied in the act of God doctrine
strictly requ,ifes \that the act must be occasioned
solely by t~ vjol¾ice of nature. Human intervention
is to be E)~;C::LljDEQ from creating or entering into the
cause ofJhe rri\schi~J. When the effect is found to be
in parM. · ' ''participation of man, whether
due to h1 ervention or neglect or failure to
the whole occurrence. is then humanized and
ved from the rules applicable to the acts of God
· · J,{r:ies, Inc. v. Napoleon Sesante, G.R. No.
, 'J6/y 27, 2016).
necessary that one has ~ommitted no negligence or
misconduct that may have occasioned the loss. An
act of God cannot be invoked to protect a person who
has failed to take steps to forestall the possible
adverse consequences of such a loss. Once
negligence may have concurred with an act of God in
producing damage and injury to another;
nonetheless, showing that the immediate or
proximate cause of the damage or injury was a
fortuitous event would not exempt one from liability
(RCPJ v. Alfonso Verchez, G.R. No. 164349, January
31, 2006).
NOTE: It is based on the doctrine of volenti non fit
injuria - no wrong is done to one who consents
(JURADO, Obligations and Contracts, supra at 96).
 OBLIGATIONS AND ·coNTRACTS
EXAMPLES OF EVENTS NOT
FORTUITOUS
1. The fluctuating movement of the Philippine peso
in the foreign exchange market is an everyday
occurrence, and the fluctuations in currency
exchange rates happen every day, thus, not an
instance of caso fortuito (Fil-Estate Properties,
Inc. v. Sps. Ronquillo, G.R. No. 185798, January
13, 2014);
2. Increase in cost of performance (U.S. v.
Varadero de la Quinta. G.R. No. 14370,
September 1, 1919);
3. Poverty (Repide v. Alzelius, G.R. No. L-13438,
November 20, 1918); ·
4. War between the subjects of a neutral country
and the subject of a country at war, as long as
substantial compliance can still be done (Int.
Harvester Co. v. Hamburg-American Line, G.R.
No. L-11515. July 29, 1918); and
5. Mechanical defects in vehicles used for common
carriage (Necesito v. Paras, G.R. No. L-10605,
June 30, 1958).·
EXTINGUISHMENT OF LIABILITY IN
CASE OF BREACH DUE TO
FORTUITOUS EVENT
Except in cases expressly specified by law, or when
it is otherwise declared by stipulation, or when the
nature of the obligation requires the assumptio·n of
risk, no person shall be responsible for those events
which could not be foreseen or which, though
foreseen, were inevitable (CIVIL CODE, Art. 1174).
EXCEPTIONS TO DOCTRINE OF
FORTUITOUS EVENT: (LSA)
1. When expressly declared by !:aw;
2. When expressly declared by §tipulation or
contract; or
3. When the nature of the obligation requires the
~ssumption of risk (CIVIL CODE, Art. 1174).
SOME LAWS WHICH STIPULATE
LIABILITY DESPITE FORTUITOUS
EVENT
1. The debtor is guilty of fraud, negligence, or delay,
or contravention of the tenor of the obligation
(CIVIL CODE, Art. 1170);
2. The debtor has promised to deliver the same
(specific) thing to two or more persons who do
not have the same interest tor it would be
impossible for the debtor to comply with his
obligation to two or more creditors even without
any fortuitous event taking place (CIVIL CODE,
Art. 1165);
3. The debt of a thing certain and determinate
proceeds from a criminal offense (CIVIL CODE,
Art. 1268);
Civil Law
4. The thing to be delivered is generic in accordance
with the principle that genus never perishes
(CIVIL CODE, Art. 1263); and
5. Others (e.g. Arts. 552[2], 1942, 2147, 2148,
2000, 2001, 1198 and 2159 of the CIVIL CODE).
ASSUMPTION OF RISK
Assumption of the risk in its primary sense arises by
assuming through contract, which may be implied,
the risk of a known danger. The defense of
assumption of risk presupposes:
1. That the plaintiff had actual knowledge of the
danger;
2. That he understood and appreciated the risk from
the danger; and
3. That he voluntarily exposed himself to such risk
(Abrogar v. Cosmos Bottling Company, G.R. No.
164749, March 15, 2017).
EFFECTS OF LOSS BY FORTUITOUS
EVENT IN REAL OBLIGATIONS
1. On determinate obligation
- the obligation is extinguished (CIVIL CODE,
Art. 1174);
2. On generic obligation
- the obligation is not extinguished (genus nun
quam peruit - genus never perishes) (CIVIL
CODE, Art. 1263);and
3. On limited generic
- the obligation will extinguish when the whole of
the class perishes.
EF_FECT OF FORTUITOUS EVENT ON
PERIOD PROVIDED
Where the contract stipulated that in case of a
fortuitous event, the period provided in the contract
for delivery shall be suspended, the period of time
when the contract was suspended cannot be
deducted from the term of the contract because to
add the said years _upon the resumption of the
contract would in effect be an extension of the
contract (Victorias Planters Association Inc., v.
Victorias Milling Co, G.R. No. L-6648, July 25, 1955).
 r::fEM✓Q~Y Al D
San Beda University Colleg" of Law - RGCT Bar Oparabons Center
REMEDIES AGAINST
BREACH OF CONTRACT
PRIMARY REMEDIES OF CREDITORS:
(PDR)
1. Action for p_erformance (Specific Performance or
Substituted Performance);
2. Action for Qamages (exclusively or in addition to
action for performance); and
3. Action for Rescission.
SUBSIDIARY REMEDIES
CREDITORS: (SPO)
1. Accion §.ubrogatoria;
2. Accion f!.auliana; and
3. Qther specific remedies.
ACTIONS FOR PERFORMANCE
1. Action for Specific Performance
When what is to be delivered is a determinate
thing, the creditor, in addition. to his right for
indemnification of damages, may compel the
debtor to make the delivery (CIVIL CODE, Art.
1165, par. 1).
NOTE: The debtor of a thing cannot compel the
creditor to receive a different one, although the
latter may be of the same value as, _or more
valuable than that which is due (CIVIL CODE, Art.
1244).
2. Action for Substituted Performance (in
obligation to give an indeterminate thing)
If the thing is indeterminate or generic, he may
ask that the obligation be complied with at the
expense of the debtor (CIVIL CODE, Art. 1165,
par. 2).
3. Action for Substituted Performance or
Undoing of Poor Work (in obligation to
do)
-If a person obliged to do something fails to do it,
the same shall be executed at his cost. This same
rule shall be observed if he does it in
· contravention of the tenor of the obligation.
F-urthermore, It may de decreed that what has
been done poorly be undone (CIVIL CODE, Art.
1167).
4. Action for Undoing (in obligation not to
do)
GENERAL RULE: When the obligation consists
in not doing, and the obligor does what has been
forbidden him, it shall be undone at his expense
(CIVIL CODE_, Ari. 1168).
EXCEPTION: When the only feasible remedy is
indemnification for the damages caused by
reason that:
a. It has become impossible to undo the thing
physically or legally; or
b. If the act is definite and will not cease even if
undone.
ACTION FOR DAMAGES
Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in
any manner contravene the tenor thereof, are liable
OF for damages (CIVIL CODE, Art. 1170).
One injured by a breach of a contract, or by a
wrongful or negligent act or omission shall have a fair
and just compensation commensurate to the loss
sustained as a consequence of the defendant's act
(Llorente, Jr. v. Sandiganbayan, G.R. No. 122166,
March 11, 1998).
ACTION FOR RESCISSION
Tt,e power fo
rescind obligations is implied in
reciprocal obligations, in case one of the obligors
should not comply with what is incumbent upon him
(CIVIL CODE, Art. 1191, par. 1).
NOTE: This applies in case of a tacit resolutory
condition.
· The injured party may choose between fulfillment and
rescission of the obligation, with the payment of
damages in either case.
. .
Should he choose fulfillment and the same should
become impossible, the injured party may still sP.ek
for rescission.
The court shnll decroo tho rescission claimed unless
there be a just cause authorizing the fixing of the
period {CIVIL CODE, Art. 1191).
Requisites of Action for Rescission under Art.
1191; (ReF-SuC)
1. The parties are Reciprocally obligated;
2. One of the parties _Eailed to comply with what is
incumbent upon him;
3. The breach is Substantial so as to defeat the
object of the parties in making the agreement;
4. The injured party Qhose the remedy of rescission
instead of enforcement, or had no other remedy
because enforcement became impossible.
NOTE: Art. 1191 is taken from Art. 1124 of the Old
Civil Code, but the present Code uses the term
 OBLIGATIONS AND CONTRACTS
rescission instead of resolution. Nevertheless, the
Code uses the term synonymously.
SUBSIDIARY REMEDY
The term "subsidiary remedy" has been defined as
"the exhaustion of all remedies by the prejudiced
creditor to collect claims due him before rescission is
resorted to" (Siguan v. Lim, G.R. No. 134685,
November 19, 1999).
Rescission is not a principal remedy, but a subsidiary
one. It can only be availed of only if the injured party
proves that he has no other legal means to obtain
redress for the damage caused. ( CIVIL CODE, Art.
1191, par. 1)
REMEDIES OF CREDITOR UNDER
ARTICLE 1177: (SPA2)
1. Primary Remedies
a. §_pecific performance, or the exact fulfillment
of the obligation with the right tp damages;
b. ~ursue the leviable, or to pµrs·e: the, pfo~~,r:ty .
in possession of the debfbr whtch are not
exempt from attachme11turfde.i)he·faw;
,e.li ,~, /."' -
2. Subsidiary Remedies!
a. B_ccion Subrogatoria,'
b. B_ccion Pau/iana
Pursuing the Levi able P~operty or Prqperty
Possession of the Debtor( · ; .... : ... ·: '····~···-····
To exhaust the property in ·pos~ession of t,ne debtor
generally by attachment, ~ubject\ to · ex~):qptions
provided by law (4 PARAS, supra a(183). ': '..
NOTE: The debtor is liable 0ith all his. prbpe(iy,_ ·
present and future, for the fulfillmentof his obligations
subject to exemptions provided by l~w,(GivtL qb'DE;
Art. 2236). .. . . . ' .·
The exemptions referred to are found ;n:
1: Sec. 13 Rule 39 of the New Rules of Court,
2. Sec. 118 and 13 of the Public Land Law (Com.
Act No. 141 ), and
3. Arts. 152, 153, 154, 155, and 205 of the Family
Code.
ACCION SUBROGA TOR/A
(SUBROGATORY ACTION)
Action which the creditor may exercise all rights and
actions in place of the negligent debtor, except those
inherent in the person (like parental authority, right to
revoke donations on ground of ingratitude, hold
office, carry out an agency), in order to preserve or
recover for the patrimony of the debtor the product of
such action, and then obtain therefrom the
satisfaction of his own credit (4 PARAS, supra at
183).
Civil Law
Requisites: (IPE)
1. Debtor to whom a right of action properly pertains
must be !ndebted to the creditor;
2. Creditor must be frejudiced by the inaction or
failure of the debtor to proceed against the third
person; and
3. Creditor must have first pursued or £Xhausted all
the properties of the debtor which are not
exempted for execution.
Illustration:
D is indebted to C for a sum of money in the amount
of P1 M. After demand failed and a determination that
D no longer has sufficient leviable properties, C may
see if any third person may be indebted to D. If C
should find that T is indebted to D for P50, 000, and
that the debt is due and demandable, C has the right
of action to compel T to pay the P50,000 to him.
.
Exceptipns to Accion Subrogatoria: (EP-HAS)
1. ,lnh,ereht,rights of the debtor, like:
' .·, a/ R,ighf"tt>J~xistence;
or
•·. b. •. Right~.. {elations of a fublic character (like
~itions in{he government);
c. Rights of an t!,onorary character {like a
doctol".s ,degrf:!e, honoris causa);
d. ~ights '~~rtfi~i~g to the ~ffairs of the home
and the fpmily(~uch as the personal rights of
husband'at{i:f wifo ); and
in e. The rightto,appear in court proceedings; like
_;tb~,§ettl$mentof an estate (4 PARAS, supra
l iii/BO). i · ,/ ;
2'. Ohly"those .~ho at the time of the donor's death
·hav"e'.a right to the.fegitime and their successors-
in~interesf may ayk for the reduction or inofficious
donaJions ( CIVIL CODE, Art. 772).
., ACCiQN PAriLIANA
Cre~itoIB, have the right to impugn the acts which the
d~ptor may have done to defraud them {CIVIL CODE,
Art. 1177).
This provision must be read in relation to Article
1381 (3) which provides that contracts executed in
fraud of creditors are rescissib!e.
It refers to the right available to the creditor by virtue
of which he can secure the rescission of any act of
the debtor which is in fraud and to the prejudice of his
· rights as a creditor (JURADO, Obligations and
Contracts, supra at 105).
NOTE: Accion Pau/iana is different from the
"rescission" contemplated under Art. 1191 of the
CIVIL CODE. The latter is a primary action and not
subsidiart (JURADO, Obligations and Contracts,
2010, supra at 105).
 GI WW \ I
MEM✓Q-RY Al D
San Beda Universrty College of Law • RGCT Bar Operat,ons Center
Requisites: (C-SOFA)
1. Plaintiff asking for rescission has fredit prior to
the alienation, i!lthough demandable later;
2. Debtor has made a .§ubsequent contract
conveying a patrimonii:1I benefit to a third person;
3. Creditor has no Qther legal remedy to satisfy its
claim, but would benefit by rescission of the
conveyance to the third person;
4. Act being impugned is _!:raudulent; and
5. Third person who received the property
conveyed, if by onerous title, has been an
Accomplice in the fraud (Holcim Phils., Inc. v.
Losloso, G.R. No. 203871, January 15, 2014).
Accion Pauliana as Remedy of Last Resort
The action for rescission is but a subsidiary remedy
which cannot be instituted except when the party
suffering damage has no other legal means to obtain
reparation for the same (CIVIL CODE, Art. 1383).
An accion pauliana must be of last resort, availed of
only after the creditor has exhausted all the properties
of the debtor not exempt from execution or after all·
other legal remedies have been exhausted and have __ :·::;;+_~ sublessee shall be deemed NOT to have been
been proven futile (Metropolitan Bank and Tru~t /
Company v. International Exchange Bank, G.R. No.i,•+i;~,:1k\Y~\J"til~s~.,i~i~ payments were effected in virtue of
176008, August 10, 2011).
Presumptions of Fraud . .
The following are presumptions of fraud ofcreditors
provided under Art. 1387 of the CIVIL °CO[)E:
1. Alienation of property by gratuitous title without
reserving sufficient propertytp pay d~bts prior to
donation; and · · · rep~t'cN'~tt
2. Alienation by onerous title when there is
judgment or attachment.
ACC/ON SUBROGATORl/fV.
ACCION PAUL/ANA ..
No period of Action prescribes within
prescription. four (4) years from the
discovery of the fraud.
(JURADO, Obligations and Contracts, supra at 104-
105).
NOTE: New debts contracted by an insolvent debtor
are not included within the scope of accion pauliana
because only acts which impair the assets of the
debtor are covered by the provision and those which
merely increase his liabilities are not (4 TOLENTINO,
supra at 140).
ACCION DIRECTA
A person may directly sue another even if there is no
privily of contract between them (CIVIL CODE, Arts.
1652, 1608, 1729, 1893).
Specific cases include the following:
1. In case of SUBLEASE, the sublessee is
subsidiarily liable to the lessor for any rent due
from the lessee. However, the sublessee shall
not be responsibie beyond the amount of rent due
from him, in accordance with the terms of the
sublease, at the time of the extrajudicial demand
by the lessor.
NOTE: Payments of rent in advance by the
"jf~:'.,
made, sq.Jar as the lessor's claim is concerned,
the'cu§tb~;ofthe place (CIVIL CODE, Art. 1652).
~-~'\
2. In case of
CONVENTIONAL REDEMPTION, the
vendor. ·· m~/,bring his action against every
posseisor'; whose right is· derived from the
vendee, mien ifip the second contract no mention
shouk:L,,ba .. en made of the right to
liout prejudice to the provisions of
the Mortgage Law and the Land Registration Law
. \Nith respect to third persons (CIVIL CODE, Art.
-:_\}·-~ :J}l§f!Fgl_~
3. In case of a CONTRACT FOR A PIECE OF
WORK, subject to the provisions of special laws,
those who put their labor upon or furnish
materials for a piece of work undertaken by the
contractor have an action against the owner up to
the amount owing from the latter to the contractor
at the time the claim is made. However, the
following shall not prejudice the laborers,
employees and furnishers of materials:
a. Payments made by the owner to the
contractor before they are due;
b. Renunciation by the contractor of any
amount due him from the owner (CIVIL
CODE, Art. 1729); and
4. !n case of SUB-AGENCY under Art. 1892, the
principal may bring an action against the
substitute with respect to the obligations which
the latter has contracted under the substitution
(CIVIL CODE, Art. 1893).
 OBLIGATIONS AND CONTRACTS
TRANSMISSIBILITY OF CREDITS
GENERAL RULE: Rights acquired by virtue of an
obligation are transmissible in character (CIVIL
CODE, Art. 1178):
Consequently, they may be alienated or assigned to
third persons (JURADO, Obligations and Contracts,
supra at 105).
EXCEPTIONS: (LaNS)
1. Where they are not transmissible by operation of
Law;
2. Where they are not transmissible by their very
~ature, such as in the case of a purely personal
right; and
3. Where there is a ~tipulation of the parties that
they are not transmissible (CIVIL CODE, Arts.
1178 & 1311).
OTHER PRINCIPLES o·-F
OBLIGATI<,)NS
USURIOUS INTEREST$
USURY
Contracting for or receiving· interest in excess of the
amount allowed by law for the loan' or forb€larance of
money - the taking of more, interest for. the \ise of
money than the law allows (Tolentino v. SyChiam,
G.R. No. 26085, August 12, 1927). · 4.. In payment of taxes; and
USURIOUS TRANSACTIONS
Usurious transactions shall be govE'irned by special
laws (CIVIL CODE, Art. 1175).
The special law governing usury.is Act No. 2655, as
amended, or the Usury Law. However, there is
currently no "legally usurious rate." This is because
pursuant to Section 1 of the Usury Law, the Monetary
Board of the Bangko Sentral has the power to
prescribe the ceiling interest rates. Then under C.B.
Circular No. 905, the BSP lifted the ceiling rates.
Be that as it may, the Supreme Court has struck down
"usurious" rates for being unconscionable and
contrary to morals (Medel v. Court of Appeals, GR.
No. 131622, November 27, 1998).
(See Discussion on Simple Loan or Mutuum under
Loan and Deposit)
Civil Law
PRESUMPTIONS OF PAYMENT
1. Presumption when there is a receipt of
the principal by the creditor
The receipt of the principal by the creditor,
without reservation with respect to the interest,
shall give rise to the presumption that said
interest has been paid (CIVIL CODE, A1t. 1176,
par. 1).
2. Presumption when there is a receipt of a
later installment of a debt
The receipt of a later installment of a debt without
reservation as to prior installments, shall likewise
raise the presumption that such installment has
been paid (CIVIL CODE, Art. 1176, par. 2).
NOTE: The presumption established in this
article is prima facie. The presumption that the
interest has been paid is based on the
oonsideration that as payments are first applied
Jo the Interest (CIVIL CODE, Art. 1253), the
receipt of the principal must have taken place
because the interest had already been paid.
INSTANCES WHEN PRESUMPTIONS IN
ART. 1176 QF THE CIVIL CODE DO NOT
APPLY:
1. When there is a -reservation as to interest or prior
installments, mad~ orally or in writing;
2. Recejpt for a:part of principal
3: If the: rec,eipt aoes not recite that it was issued for
a p!'3rticular installment due as when the receipt
js onjy dated;
5. . Where non-payment of the prior obligations has
been proven (DE LEON, Obligations and
-. Contracts, supra at 97).
DIFFERENT KINDS OF.
OBLIGATIONS
(ARTS. 1179-1230)
CLASSIFICATION OF OBLIGATION
1. As to the primary classification under the
CIVIL CODE:
a. Pure and conditional (CIVIL CODE, Arts.
1179-1192);
b. Obligations with a period (CIVIL CODE, Arts.
1193-1198);
c. Alternative and facultative (CIVIL CODE,
Arts. 1199-120~);
d. Joint and solidary (CIVIL CODE, Arts. 1207-
1222);
 - \ J )

MEK✓Q~YAID
San Beoa University College of Law - RGCT Bar Operations Center

e. Oivisihle and indivisible (CIVIL CODE, Arts. PURE OBLIGATIONS

1223-1225); and Obligations whose performance do not depend upon
f. With a penal clause (CIVIL CODE, Arts. a future or uncertain event or upon a past event
_1226-1230). unknown to the parties are demandable at once
(CIVIL CODE, Art. 1179, par. 1).
2. Classification of a secondary character
under the CIVIL CODE: Obligations which contain no terms or conditions
a. Legal, conventional, and penal (CIVIi whatever upon which depends the fulfillment of the
CODE, Arts. 1158-1162); obligation contracted by the obligor (4 TOLENTINO,
b. Real and personal (CIVIL CODE, Arts. 1163- supra at 143).
1168);
c. Determinate and generic (CIVIL CODE, Arts. WHEN IS AN OBLIGATION
1163-1166);
DEMANDABLE AT ONCE:
d. Positive and negative (CIVIL CODE, Arts.
1167-1168); An obligation is demandable at once
e. Unilateral and bilateral (CIVIL CODE, Arts. 1. When it is pure (CIVIL CODE, Art. 1179, par. 1);
1169-1191); 2. When it is subject to a resolutory condition (CIVIL
f. Individual and collective (CIVIL CODE, Arts. CODE, Art.. 1179 par. 2); or
1207, 1223); and 3. When it is subject to a resolutory period (CIVIL
g. Accessory and principal (CIVIL CODE, Arts. CODE, Art. 1193, par. 2).
1166, 1226).
Examples:
3. Other Classifications 1. I promise to pay you P1 million.
a. By their juridical quality and efficaciousness, ·· 2. I'll pay you P1million on demand.
i. Natural - the obligation is based· on
equity and natural law;
ii. Civil - the obligaticn is in accordance Obligatii5ns ifl/)IVhich the acquisition of rights as well
with positive law; and as the extin~Ulshment or loss of those already
iii Mixed - the obligation is in accordance acquired, snail; depend upon the happening of the
with both natural and positive law. event which ccmstitutes the condition (CIVIL CODE,
b. By its relation to other obligations Art. 1181), ·"
i. Principal - when it is the main
undertaking; or ,' COND0}1Jl~ll\3'g;ii:i}~'''
ii. Accessory - when it is merely an
A conditiori'rria'ytle defined as a future and uncertain
undertaking to guarantee the fulfillment
fact or event upon which an obligation is subordinated
of the principal obligation.
c. By the object of the obligation to deliver
or rnad_e to depend (JURADO, Obligations and
C9t,ti'{jcts,st1pra at 108).
i. Specific
ii. Generic
d. By the Number of Prestations CONDITION MUST BE A FUTURE OR
i. Simple - when there is only one UNCERTAIN FACT
undertaking; GENERAL RULE: In order- to constitute an event a
ii. Compound - when there are several condition, it is not enough that it be future; it must also
undertakings. be uncertain (DE LEON, Obligations and Contracts,
1.) Conjunctive when all the supra at 106).
undertakings are demandable at the
same time; or A future but certain fact or event is merely a term
2.) Distributive - when only one rather than a condition.
undertaking out of several is
demand able. EXCEPTION: When the debtor binds himself to pay
a.) May be Alternative or Facultative when his means permit him to do so, the obligation
shall be deemed to be one with a period (CIVIL
CODE, Art. 1180).
PUREAND
NOTE: Past but Unknown Event
CONDITIONAL A condition may refer to a past event provided that
OBLIGATIONS the happening of such fact is unknown to the parties.

(ARTS. 1179-1192) The element of uncertainty, however is wanting when

the event is past or present, hence it cannot properly
 OBLIGATIONS AND CONTRACTS
be coiled El condition. It is more accurate lu Lle~iyr1c1le
it as a basis of a contract. It cannot have the quality
of suspending the effects of a juridical act. The
uncertainty exists only in the minds of the parties, but
not the event itself. What can be a condition is the
future knowledge or proof of an unknown to the
parties, but not the event itself. Thus, the PROOF of
an unknown past event may, by the will of the parties,
be established as a condition (4 TOLENTINO, supra
at 145).
A condition is really "a future AND uncertain event,"
not a "future OR uncertain event." (J.B.L. Reyes,
Observation on the New Civil Code, Lawyer's
Journal, January 31, 1951, pp. 47).
Example: A person promises to deliver P5,000 "if the
number of enemy soldiers ki(fed during the World War
If exceeds 1,000.
In the above example, it is not the fact stated Which
serves as a condition, but the proof of sut:h facJ, the
contract or obligation arises, not :wh~n the event
happened or the fact came intq 'existence,-· which
would be in the past, but when the proof of such fact
or event is presented, which would. be '-i_n'the future.
·" ~ which mostall be realized; and
CLASSIFICATIONS OF CONDITldNS:
1. As to the Effect of Obligation
a. Suspensive - when thet fulfillm~nt of the
condition results in the- ac;quisition of rights
arising out of the oblrgatiqn (CIVIL .CODE,
Art. 1181); i ·.·._ . ·....
b. Resolutory - when.the folfillnierit Of the
condition results in e.xtinguishment of rights
arising out of the obligation (CIVIL· CODE,
Art. 1181).
2. As to the Dependence on thEtWill ot ttie
Parties
a. Potestative - one which depends upon the
will of one of the contracting parties; it is in
the power of one of the parties to realize or
to prevent; , are acquired.
b. Casual - depends exclusively upon chance,
will of a third person, or partially by chance
and partially by will of a third person, or other
factors and not upon the will of the
contracting parties; and
c. Mixed - depends upon the will of one of the
contracting parties and other circumstances,
including the will of third persons or chance.
3. As to Possibility
a. Possible - when the condition is capable of
realization according to nature, law, 'public
policy or good customs; and
b. Impossible - when the condition is not
capable of realization according to nature
Civil Law
(physical) law, public policy, morals or good
customs (legal).
4. As to Mode
a. Positive - condition that some event happen
at a determinate time shall extinguish the
obligatio·n as soon as the time expires or
become indubitable that the event will not
take place (CIVIL CODE, Art. 1184); and
b. Negative - the condition that some ev{;nt will
not happen at a determinate time shall render
the obligation effective from the moment- the
time has elapsed of it has become evident
that the event cannot occur (CIVIL CODE,
Art. 1185, par. 1).
5. As to Divisibility
a. Divisible - when the condition is susceptible
of partial realization; and
b. Indivisible - when the condition is not
sµsceptible of partial realization (CIVIL
· CODE., Art. 1225, par. 1).
6. As t,o Ph.1rality of Conditions
a. . Conjunctive - there are several conditions,
b. Alternative,--:-: there are several, but only one
must be realize~.
7. As to Form'
a. Express;_; cb'ridition is stated expressly
b, Implied ·_ - · cohdition is stated tacitly
(JURADO, Ob'ligations and Contracts, supra
•at110).
S4SPENSIVE OR RESOLUTORY
CONDITIO_NS
SUSPENSIVE CONDITION
A suspensive condition (condition precedent) is a
future and uncertain event upon the happening or
fulfillment of which rights arising out of the obligation
If the suspensive condition does not take place, the
parties would stand as if the conditional obligation
had never existed (The Insular Life Assurance Co.,
Ltd. v. Toyota Bel-Air, Inc., G.R. No. 137884, March
28, 2008).
Where an obligation is subject to a suspensive
condition, upon constitution of obligation, and before
fulfillment of the condition, the obligee acquires a
mere · hope or expectancy, protected by law
(JURADO, Obligations and Contracts, supra at 111).
 Viii \ /
M Et1✓Q~Y Al D
San Seda University College of Law - RGCT Bar Op-e1ations Genter
EFFECT OF FULFILMENT
SUSPENSIVE CONDITION
1. Before fulfillment
- Demandability and the acquisIt1on of the rights
arising from Lile u!Jliyaliun is suspended.
Obligation of obligor to comply with the prestation
is suspended until fulfillment uf cundition.
Anything paid by mistake during such time may
be recovered.
2. After the fulfillment
- The obligation arises or becomes effective;
obligor can be compelled to comply with what is
incumbent upon him.
Hence, an obligation dependent upon a suspensive
condition cannot be demanded until after the
condition takes place because it is only after the
fulfillment of the condition that the obligation arises
(Catungal v. Rodriguez, G.R. No. 146839, March 23,
2011).
NATURE OF CREDITOR'S
BEFORE FULFILLMENT
SUSPENSIVE CONDITION
The creditor merely has an interest in the ot?ject of the
obligation under a suspensive condi~ion. It is an
inchoate right (mere expectancy). How~ver,. the
creditor may, before the fulfilment of the condition,
bring the appropriate actions for the· preservation of
his right (CIVILCODE, Art. 1188).
Illustration:
D owes C a sum of money in the amount,of P1 M
under the condition that D will pay it only when C
passes the 2021 Bar Examinations. However, on
September 2021, it became clear th.at D was
alienating all of his properties in the Philippines and
was preparing to abscond. C may bring an action in
court to enjoin D from alienating his property to the
extent of P1 M and that it be held under a trustP.P.shir,
until it becomes certain that C will or will not pass the
bar in May 2022.
RESOLUTORY CONDITION
A resolutory condition (condition subsequent) is a
future and uncertain event upon the happening or
fulfillment of which rights which are already acquired
by virtue of the obligation are extinguished or lost
(JURADO. Obligations and Contracts, supra at 111).
Parties may validly provide for resolutory conditions
and unilateral rescIssIon 'in their contract
(Multinational Village Homeowners Association Inc.
v. Ara Security & Surveillance Agency, Inc., G.R. No.
154852, October 21, 2004).
Thus, when a person donates land to another on the
condition that the latter would build upon the land a
OF school, the condition imposed was not a condition
precedent or a suspensive condition but a resolutory
one (Central Philippines University v. Court of
Appeals, G.R. No. 112127, July 17, 1995).
EFFECT OF FULFILMENT OF
RESOLUTORY CONDITION
1. Before fulfillment
- all rights under the obligation are acquired as if
it were a pure obligation except that such rights
are always subject to the threat or danger of
extinction.
2. After fulfillment
- The obligation is extinguished and is as if it
never existed.
Whatever may have been paid or delivered
by one or both of the parties (in case of real
obligations) shall have to be returned upon
the fulfillment of the condition (CIVIL CODE,
Art. 1190).
RIGHT ·-·••POTESTATIVE CONDITIONS
OF•·· ~, '
:'te,~,~~I : VE CONDITION
A potestfi tpndition is a condition suspensive in
nature and which depends upon the will of one of the
contracting 6~rtl~s (Virginia A. Perez v. Court of
Appeals, ~;R. [Jo:_ 112329, January 28, 2000).
POTESTATIVE
1. In suspensive conditions, if fulfillment of the
. condition depends exclusively upon the will of the
. if);~[ernditor - Condition and Obligation are VALID.
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REASON: The creditor is naturally interested in
the fulfillment of the condition since it is only by
such fulfillment that the obligation can be
effective.
2. In suspensive conditions, if fulfillment of the
condition depends exclusively upon the will of the
debtor - Condition and Obligation are VOID.
REASON: Prohibition against potestative
conditions inferred from Art. 1182 extends only to
those which are potestative to the debtor. To
allow this is equivalent to sanctioning obligations
whir.h me illusory. It would also be in
contravention with Art. 1308 which provides. that
the validity and fulfillment of contracts cannot be
left to the will of one of the contracting parties.
EXCEPTIONS:
a. In resolutory conditions, if fulfillment of the
condition depends exclusively upon the will
 OBLIGATIONS AND CONTRACTS
of the debtor- Condition and Obligation are
VALID.
REASON: The debtor is interested in the
fulfillment of the resolutory condition since it
is only by such fulfillment that he can
reacquire the right which have already been
vested in the obligee or creditor upon the
constitution of the obligation.
b. Potestative conditions in pre-existing
obligations, Obligation is still VALID
(JURADO, Obligations and Contracts, supra
at 115-122).
If the obligation is a pre-existing one, and,
therefore, does not depend for its existence
upon the fulfillment by the debtor of the
potestative condition, only the condition is
void leaving unaffected the obligation itself.
Here, the condition is imposed not on the
birth of the obligation but on its fulfillment
(Catungal v. Rodriguez, GR. No. 146839,
March 23, 2011).
Example: D borrowed P10,000 from C
payable within two (2) months.
Subsequently, D promised to pay C "after D
sells his car" to which C agreed. In this case,
only the condition 1s void but not the pre-
existing obligation of D to pay C (DE LEON,
Obligations and Contracts, supra at127).
..
Examples of Void Potestative,Con.ditions:
1. "I will pay you if I want." .
2. "I will pay you after I recover what D owes me/'
3. The contract of lease provides that the lease shall
continue "for as long as the lessee needed the
premises and can meet and pay the 20%
increase every three years" (Lao Lim v. CA, G.R.
No. 87047, October 31, 1990; DE LEON,
Obligations and Contracts, supra at 121-122).
CASUAL CONDITION
One whose fulfillment depends exclusively upon
chance and/or will upon the will of a third person (Id.
at 115).
Effect of Casual conditions
The obligation including such condition shall take
effect (Id. at 118).
MIXED CONDITION
One whose fulfillment depends jointly upon the will of
either one of the parties to the- obligation and upon
chance and/or wil! of a third person (Id. at 115).
Effect of Mixed conditions
The obligation including such condition shall take
effect (Id. at 118).
Civil Law
Example: Where the debtor promises to pay his
debts to the creditor as soon as he shall have
received funds derived from the sale of his house, it
was held that the fulfillment of the condition depends
partly upon the will of the debtor and partly upon the
will of third persons, as a consequence of which it is
perfectly valid and enforceable (Hermosa v.
Longara, G.R. No. L-5267, October 27, 1953).
Constructive Fulfillment of a MIXED Conditional
Obligation
The existing rule in mixed conditional obligation is
that when the condition was not fulfilled but the
obligor did all in his power to comply with the
obligation, the condition should be deemed satisfied
(International Hotel Corporation .v. Francisco B.
Joaquin Jr., G.R. No. 158361, April 10, 2013).
IMPOSSIBLE CONDITIONS
IMPOSIBILITY
It is impossible when it is not capable of realization
either according to its nature or according to law,
good customs or public policy (JURADO, Obligations
and Contracts, supra at 122-123).
Impossible Conditions are Void
The condition not to do'an impossible thing shall be
considered as not having been agreed upon (CIVIL
CODE, Art. 1183; H~irs of Severina San Miguel v.
The Honorable Court ofAppeals, G.R. No. 136054.
September 5, 2001) .
Impossible conditions; those contrary to good
customs or public policy and those prohibited by law
shall annul the obligation which depends upon them.
If the obligation is divisible, that part thereof which is
not affected by the impossible or unlawful condition
shall be valid (CIVIL CODE, Art. 1183).
EFFECTS OF IMPOSSIBLE CONDITIONS:
1. If. the condition is to do an impossible or illegal
thing, both obligation and condition are void (4
PARAS, supra at 204).
REASON: Obligor knows his obligation cannot
be fulfilled; he has no intention to comply with his
obligation (DE LEON, Obligations and Contracts,
supra at 135).
2. If the condition is negative, that is, not to do the
impossible, it is disregarded and obligation· is
rendered pure and valid (Id. at 135; CIVIL CODE,
Art. 1183).
3. Only the affected obligation is void - if the
obligation is divisible, the part not affected by the
impossible condition shall be valid (Luneta Motor
Co. v. Abad, G.R. No. L-45273, April 10; 1939).
 ft&St&JD \ 1 '.N -~~.. ~,,~,,__~,,,..~~... •..,.'~~ ;;:,:'..,,

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4. Only the condition is void - if obligation is pre- a. Before July 1, 2022, the Filipino people
existing, not depending on fulfillment of the ratifies an amendment to the constitution, or
condition which is impossible for its existence, ratifies a new constitution.
only the condition is void (JURADO, Obligations Note: It is certain that the negative condition
and Contracts, supra at 123). will never be fulfilled.
5. Condition considered not imposed - if
impossible/unlawful condition is attached to a CONSTRUCTIVE FULFILLMENT
simple or remuneratory donation as well as to a
testamentary disposition, condition is considered
DOCTRINE OF CONSTRUCTIVE
not imposed while the obligation is valid ( CIVIL
CODE, Art. 1183). FULFILLMENT OF SUSPENSIVE
CONDITIONS
MODE OF CONDITIONS The condition shall be deemed fulfilled when the
obligor voluntarily prevents its fulfillment (CIVIL
POSITIVE VS. NEGATIVE CONDITION CODE, Art. 1186).

REASON: The debtor should not be allowed to profit

from his own fault or bad faith to the prejudice of the
obligee (DE LEON, Obligations and Contracts, supra
at138).
Involves the Involves the
performance of an act nonperformance of an
Requisites:
or the fulfillment of an act or the nonfulfillment
1. The intent of the obligor to prevent the fulfillment
event. of an event up within a
of the condition; and
certain period of time.
2. The actual prevention of the fulfillment
(lnternatio[lal Hotel Corporation v. Francisco B.
Joaquin; GR. No. 158361, April 10, 2013).
Fulfilled upon the Fulfilled from the moment
happening of the act or 1. the time indicated Mere intention .of the debtor to prevent the happening
event. haslapsed;or of the condition, or to place ineffective obstacles to its
2. it has become compliance, without actually preventing the
evident that the fulfillment; is in~ufficient (International Hotel
event cannot occur, Corporatfqn y. Jo;1qyjn, Jr., G.R. No. 158361, April
although the time 10, 2013). · ·< . . ·.
indicated has. not yet
lapsed (CIVIL Applicable to Suspensive Conditions Only
CODE, Art. 1185). Doctrine applies only to suspensive condition, not to
res6Iufory'conditions. It can have no application to an
external contingency which is lawfully within the
control of the obligor ( Taylor v. Uy Tieng Piao, G.R.
Extinguished when the Extinguished when the No. L-16109, October 2, 1922).
impossibility of the act act or event occurs at
or event ever any time before the time Article 1186 of the New Civil Code provides that "[t]he
happening becomes indicated has lapsed. condition shall be deemed fulfilled when the obligor
absolutely certain voluntarily prevents its fulfillment." Here, the Court of
(CIVIL CODE, Art. Appeals detailed the efforts made by respondent
1184). Luwalhati nnd consignee Sison. It also noted
petitioner's ambiguous and evasive responses,
Illustration of Negative Condition nonchalant handling of respondents' concerns, and
"If the Philippine Constitution is not amended by the how these bogged down respondents' actions and
end of President Duterte's term." impaired their compliance with the required 45-day
1. It is fulfilled when: period (Federal Express Corp. v. Antonino, G.R. No.
a. On July 1, 2022, the Philippines has not 199455, June 27, 2018).
ratified any amendment to the constitution or
a new constitution. RETROACTIVE EFFECT OF
b. It has become certain that it is impossible to FULFILLMENT OF SWSPENSIVE
hold a ratification plebiscite to ratify any CONDITION
submitted amendments or a new constitution
before July 1, 2022.
2. It is extinguished when:
",,- ~~'<-J' .•,'c;~·t',~\:'t"''
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PRINCIPLE OF RETROACTIVITY OF
EFFECT IN SUSPENSIVE CONDITION
The effects of a conditional obligation to give, once
the condition has been fulfilled, shall retroact to the
day of the constitution of the obligation (CIVIL CODE,
Art 1187).
RULE ON RETROACTIVITY HAS NO
APPLICATION TO: (RS)
1. Beal contracts (e.g. deposit or commodatum)
because they are perfected only by delivery of the
object of the obligation. The principle only applies
to consensual contracts; and
2. Contracts in which the obligation arising
therefrom can only be realized within Successive
periods or intervals (e.g. lease, hire of service, life
annuity) (JURADO, Obligations and Contracts,
supra at 129).
RETROACTIVE EFFECT AS TO · THE,
FRUITS AND INTERESTS
1. Obligations to Give: , . "'
a. In Reciprocal Obligatiqns! ilbJ~!r6a~tjyity =· · ·
deemed mutually corp,pen::jat~d d,uting th_e
pendency of the COJidltion ,{fruit~' may 'be
natural, industrial or cjvil) (Cf,VIL CODE, Arts.
441-442and1187).;' . ' .
b. In Unilateral Obligation~{ no retroactivity -
debtor shall appropriqte!l the fl;uits c:1nd
interests received t,mfel:;s ithe intention was
1
otherwise, as infJrred;: /rom',ru:iture and
circumstances (JU~Aoo, ·0oblfgatlons and
Contracts, supra at 1?9-130)> · ·.\ '
2. Obligations to Do or Not to D~ \..
The courts will have to det~nr,iine in case •
the retroactive effect of the conditibn that"·has
been complied with. This duty'a{thJ .cpurts
includes the power to determine whetl;J1r the
effects of the fulfillment of the condition· ''shall
retroact to the very moment of the constitution of
the obligation or only to a specified date before
fulfillment. It can even include the power to
determine whether or not there will be any
retroactivity of effects (8 MANRESA, 5th Ed., Bk.
1, p. 335).
NOTE: This rule also applies to an obligation with
a resolutory condition (CIVIL CODE, Art. 1190,
par. 3).
RIGHTS OF THE CREDITOR BEFORE
THE FULFILLMENT OF THE CONDITION
The creditor, may, before the fulfillment of the
obligation,· bring the appropriate action Jor the
preservation of his tight ( CIVIL CODE, Art. 1188).
OBLIGATIONS AND CONTRACTS
Civil Law
NOTE: The law says "preservation," not "preference"
over other creditor (Jacinto v. de Leon, G.R. No. L-
26635, May 3, 1927).
RIGHTS PENDING FULFILLMENT OF
SUSPENSIVE CONDITION:
1. Rights of creditor
- The right of the creditor, which, before the
fulfillment of the condition, was a mere hope or
expectancy, is perfected, becomes effective and
demandable. The creditor may compel the debtor
to comply with what is incumbent upon him (DE
LEON, Obligations and Contracts, supra at 144).
2. Rights of debtor
- He is entitled to recover what he has paid by
mistake prior to the happening of the suspensive
condition.
· '•,R(;ASON: This is a case of so/utio indebitiwhere
,th~je•is payment before any legal right to receive
" P?lfment exists.
~- I.
..,,
NdTE: Payment before the fulfillment of the
.. ccYnd,itk,rj my.st, Qe "by mistake;" otherwise, the
debtor is,2eemed;,to have impliedly waived the
benefit of th~ sus~~nsive condition.
LOSS, .DETERIORATION OR
IMPRQVEMENT DURING THE
. PENDENCY OF THE CONDITION
.R~quJiif~s,for Appli~ation of Art. 1189: (RSS-FP)
1. .:flle obligayon is a fleal obligation;
l: Th,e obje9fis a §.pecific or determinate thing;
, , 3.> The o,bligation •ls subject to a .§.uspensive
;~ac;:fa ·condition· •
4.,",,J;h'El ,con'ctitiq!'li~ fulfilled; and
5. \,Tt;iere)s)dss, deterioration, or improvement of
the li,ing during the _eendency of the happening
,on one condition (DE LEON, Obligations and
Contracts, supra at 147).
LOSS
A thing is lost when it: (DPG)
1. Qisappears in such a way that its existence is
unknown or it cannot be recovered (i.e., a thing is
stolen by unknown persons);
2. ferishes (i.e., a house is destroyed completely
by fire); and
3. §oes out of the commerce of men (i.e. a thing is
declared by law as contraband) (CIVIL CODE,
Art. 1189, par. 2). ·
DETERIORATION
Any reduction or impairment in the substance or
value of a thing which does not amount to loss; the
thing is less than its value when the obligation was
constituted (4 TOLENTINO, supra at 170 -171).
 \ I

MEM✓Q-RY Al D
San Seda University College of Law - RGCT Bar Operations Center

IMPROVEMENT
A thing is improved when its value is increased or
enhanced by nature or by time or at the expense of
the debtor or creditor (DE LEON, Obligations and
Contracts, supra at 148).
RULES ON LOSS OR CHANGE IN VALUE
OF OBJECT OF REAL OBLIGATION
BEFORE FULFILLMENT OF
SUSPENSIVE CONDITION
1. Loss
a. Debtor at fault - debtor liable to pay
Damages.
b. Debtor without fault - obligation to deliver
extinguished (CIVIL CODE, Art. 1189(1)-(2)).
2. Deterioration
a.
Debtor at fault - creditor may enforce:
i. Payment of damages; and
ii. Either:
1.) Rescission of contract
2.) Specific Performance
b. Debtor without fault - obligation to deliver.
extinguished (CIVIL CODE, Art. 1189(3)-(4)}'.' · ·•
3. Improvements
a. Expense of Debtor - debtor has,rights of
usufructuary with respect to improvements.
b. Without Debtor's Expense - any increase in
value inures to the creditor (CIVILCODE, Art.
1189(5)-(6)). . .
RECIPROCAL OBLIGATIONS
Those which arise from the same cause and in which
each party is a debtor and creditor of the other, such
that the performance of one is designed to be the
equivalent and the condition for the performance of
the other (DE LEON, Obligations and Contracts,
supra at 152).
Example: Contract of Absolute Sale where Seller is
bound to deliver thP. thing sold in consideration of the
price while the Buyer is bound to deliver the price in
consideration of the thing sold.
Not All Bilateral Obligations are Reciprocal
X, Y's aging mother, undertakes to deliver a gift to Y
in consideration of her love and affection: Y
undertakes to continue supporting X in consideration
of Y's duty to support X. In such case, although X and
Y are mutually bound to each other, their obligations
are not reciprocal as they do not arise from the same
causes.
,'i;i, CONCEPT OF TACIT RESOLUTORY
'' >,~J;CONDITION
- - - .r_p_a_rt_Y:_lnc-.,-u-rs_d_e_l_ay-if-th_e_o_t_h-er_d_o_e_s_n_o_t-co_m_p_ly
Sf~/'il:JyJfo comply in a proper manner with what
is incumbent upon him (CIVIL CODE, Art. 1169, par.
3). Until eitM~ 'one fulfills his obligation, neither is
deemed in defay. To avoid delay on any of the two
parties, thi:;y imuiit comply with their obligations
simultaneously. Effectively, the performance of each
party i~.a..§YJ~ · \condition to the obligation of the
other. · ' ·' ..,... ,. ,··

RIGHTS OF USUFRUCTUARY • ON It is tacit because it is implied in all reciprocal

IMPROVEMENTS
·•· perfor:riftne obligation incumbent upon the party is
1. No right to reimbursement of value; .. ·
2. Right to remove said improvements<i.f r,emoval is
possible without damage to the property ; .
3. Right to set off improvements with any damage
caused to the property without his fault (CIVIL
CODE, Arts. 579 & 580).
RULES ON LOSS APPLIES TO
OBLIGATION TO DELIVER AFTER
RESOLUTORY CONDITION
When the conditions have for their purpose the
extinguishment of an obligation to give, the parties,
upon the fulfillment of said conditions, shall return to
each other what they have received.
In case of the loss, deterioration or improvement of
the thing, the provisions which, with respect to the
debtor, are laid down in the preceding article shall be
applied to the party who is bound to return (CIVIL
CODE. Art. 1190).
;,QRIJ9,-9\i9p; conditional because not being able to
the event; and resolutory because it results to the
extinguishment of the obligation of the debtor and
creditor.
Conversely, the non-performance of one party is a
tacit resolutory condition as to the obligation of the
other. In other words, if X does not fulfill his obli.gation,
such non-performance may be treated as
extinguishing Y's obligation, as if it were a resolutory
condition on Y's obligation.
EFFECT OF FULFILLMENT OF TACIT
RESOLUTORY CONDITION
If one of the parties fails to comply with what is
incumbent upon him, there is a right on the part of the
other to rescind (or resolve) the obligation (CIVIL
CODE, Art. 1191).
The injured party may choose between the fulfillment
and the rescission of the obligation, with the payment
of damages in either case. He may also seek
rescission, even after he has chosen fulfillment, if the
 OBLIGATIONS AND CONTRACTS
latter should become impossible ((;/_VIL GUUc, Art.
1191).
ACTION FOR "RESCISSION" OF
CONTRACT
More accurately referred to as resolution, the right of
rescission under Article 1191 is predicated on a
breach of faith that violates the reciprocity between
parties to the contract. This retaliatory remedy is
given to the contracting party who suffers the
injurious breach on the premise that it is "unjust that
a party be held bound to fulfill his promises when the
other violates his" (Golden Valley Exploration, Inc. v.
Pinkian Mining Company, G.R. No. 190080, June 11,
2014).
It can be demanded only if the plaintiff is ready,
willing, and able to comply with his own obligation and
the other is not (Seva v. Berwin, G.R. No. L-24321,
January 11. 1926), and the party who has not
performed his part of the agreement is not entitled to
sue or rescind (Sps. Cannu v. Sps. Galang, G.R. No.
139523, May 26, 2005).
It is a right which belongs to the injurep party alone
(Mateos v. Lopez, G.R. No. 239,1, /J,pril 28, 1906;
Universal Food Corporation v. Cam G.R. No. L-
29155, May 13, 1970). Under the ru)e of exceptio non
adimpleti contractus, the party who has not
performed his part of the agreement is not entitled to
sue (Marin v. Adil, GR. No.L-47986, July 1{3, 1984).
REQUISITES OF ACTION OF
RESCISSION UNDER ART. 1191:
(ReF-SuC)
1. The parties are Reciprocally obligated.
2. One of the parties !:ailed to comply with what is
incumbent upon him;
3. The breach is Substantial so as to defeat the
object of the parties in making the agreement;
and
4. The injured party ~hose the remedy of rescission
instead of enforcement, or had no other remedy
because enforcement became impossible.
SUBSTANTIAL BREACH REQUIRED
For a contracting party to be entitled to rescission (or
resolution) in accordance with Artic;le 1191 of the
CIVIL CODE, the other contracting party must be in
substantial breach of the terms and conditions of their
contract. A substantial breach of a contract, unlike
slight and casual breaches thereof, is a fundamental
breach that defeats the object of the parties in
entering into an agreement (Maglasang v.
Nol1hwestern University, Inc., GR. No. 188986,
March 20, 2013).
Civil Law
It will not be permitted for a slight or casual breach,
but only for such substantial and fundamental
violations as would defeat the very object of the
parties in making the agreement (Golden Valley
Exploration Inc. v. Pinkian Mining Company and
Copper VaUey Inc., G.R. No. 190080, June 11, 2014;
Buenviaje v. Spouses Salonga, GR. No. 216023,
October 5, 2016).
Mere failure of a party to comply with what is
incumbent upon him does not ipso Jure produce the
rescission or resolution of the obligation (JURADO,
Obligations and Contracts, supra at 137).
DECLARATION OF RESCISSION
1. If the obligation has not yet been performed,
extrajudicial declaration by the party who is ready
and willing to perform is allowed.
2. If the obligation has already been performed by
t_he injured party:
a. If the other party does not oppose or
impugn the extrajudicial declaration, such
will produce legal effect.
b: If the-ot/]er party opposes the rescission,
the ini!-!i'~d party cannot by his own
declaration. rescind the contract. Court
action, in 'this case, is necessary (4
TOLENTINO, supra at 178).
JUDICIAL PERMISSION TO RESOLVE
NECESSARY
GENERJJ:L RULE: The power to rescind an obligation
must be invokep judicially and cannot be exercised
solely on a party's own judgment that the other has
committed a, breach of the obligation (Golden Valley
Exploration Inc. v. Pinkian Mining Company and
CopperValleylnc.," G.R. No .. 190080, June 11, 2014).
EXCEPTION~ Where parties agree to a stipulation
allowing extra-judicial rescission, no judicial decree is
·necessary for rescission to take place; the extra-
judicial rescission immediately releases the party
from its obligation under the contract, subject only to
court reversal if found improper. On the other hand,
without a stipulation allowing extra-judicial rescission,
it is the judicial decree that rescinds, and not the will
of the rescinding party. This notwithstanding,
jurisprudence still indicates that an extra-judicial
rescission based on grounds not specified in the
contract would not preclude a party to treat the same
as rescinded. The rescinding party, however, by such
course of action, subjects himself to the risk of being
held liable -for damages when the extra-judicial
rescission is questioned by the opposing party in
court (Golden Valley Exploration, Inc. v. Pinkian
Mining Co., G.R. No. 190080; June 11, 2014).
 fkiii#I& \ I ' :'.' ,;. '. :, -. ' '' ': / '~ ! ,''

ME~v~Y AID
San Beda Univmsrty College of Law • RGCT Bar Operations Center ~
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RESCISSION NOT A MATTER OF RIGHT extinguished, and each shall bear his own
The court shall decree the rescission claimed, unless damages (CIVIL CODE, Art. 1192).
there be just cause authorizing the fixing of a period
(CIVIL CODE, Art. 1191, par. 3).

ARTICLE 1191 DOES NOT PROHIBIT OBLIGATIONS WITH A

STIPULATION FOR EXTRA-JUDICIAL
RESCISSION
Article 1191 of the CIVIL CODE did not prohibit the
parlie~ r,u,11
entering into an agreement whereby a
violation of the terms of the contract would result to
its cancellation (Cali/ap-Asmeron v. Development
Bank of the Philippines, G.R. No. 157330, November
23, 2011).
EFFECTS OF EXTRAJUDICIAL
RESCISSION
1. If there is a stipulation granting the right of
rescission on the part of the aggrieved party and
he validly rescinds the contract pursuant to such
express grant, any court decision adjudging the
propriety of the rescission extra-judicially made is
not the revocatory act of rescission but merely·
declaratory or an affirmation of the revocation
(De Luna v. Abrigo, G.R. No. 57455, January 18,
1990).
2. The decree of rescission shall be without
prejudice to the rights of third persons who have
acquired the thing in accordance with Art. 1385
and 1388 and Mortgage Law (CIVIL CODE, Art
1191, par. 4).
EFFECT OF RESCISSION
It requires restitution or bringing parties back to
original status prior to the contract (Un/ad Resources
Dev. Corp., v. Dragon, G.R: No. 149338, July 28,
2008).
Mutual restitution, which entails the return of the
benefits that each party may have received as a
result of the contract, is thus required. To be sure, it
has been settled that the effects of rescission as
provided for in Article 1385 of the Code are equally
applicable to cases under Article 1191 (Gotesco
Properties v. Spouses Eugenio, G.R. No. 201167,
February 27, 2013).
NOTE: There can be partial rescission or fulfillment
under Art. 1191 of the CIVIL CODE (Central Bank of
the Philippines v. CA, G.R. No. L-45710, October 3,
1985).
EFFECTS OF BREACH BY
PARTIES:
1. The liability of the first infractor shall be equitably
tempered by the courts; and
2. If it cannot be determined which of the parties first
violated the contract, the same shall be deemed
PERIOD ORA TERM
(ARTS. 1193-1198)
OBLIGATIONS 'WITH A PERIOD
Obligations whose fulfillment a day certain has been
fixed, shall be demandable only when that day
comes. Obligations with a resolutory period take
effect at once but terminate upon the arrival of the day
certain,
A day certain is understood to be that which must
necessarily come, although it may not be known
when. If the uncertainty consists in whether the day
will come or not, the obligation is a conditional one
(CIVIL CODE, Art. 1193).
.. VVHEN:DEEMED TO BE WITH A PERIOD
When the debtor binds himself to pay when his
means permit him, the obligation shall be deemed to
be one wit.h <;1 period subject to the provisions of
Article 1197 which provides that the court shall also
fix the period· when it depends upon the will of the
debtor (CIV/4 CQQl=, Art. 1197 par. 2, CIVIL CODE
in relation t0:'4a{11fBO).
Tl:RM/PERIOD
Interval pftjme, which, exerting an influence on an
ooligation asa consequence of a juridical act, either
suspends its demandability or produces its
extinguishment (8 MANRESA, 5th Ed., Bk. 1, p. 370).
REQUISITES: (FCP}
1. future;
2. fertain; and
3. _Eossible, legally and physically (JURADO, supra
at 149).
NOTE: When the period is too short for the
prestation, as when Atay is to build a ten-stor/
building in twenty-four (24) hours, the obligation
is void (4 TOLENTINO, supra at 188).
KINDS OF PERIOD/TERM: {EFEX-DESO)
BOTH 1. As to Effect
a. Suspensive (Ex Die) - Obligations whose
fulfillment a day certain has been fixed, shall
be demandable only when that day comes
(CIVIL CODE, Art. 1193, par. 1),
 OBLIGATION·S AND CONTRACTS
Civil Law

b. Resolutory (In Diem) - Obligations with cl agreed to set the time of payment at another time
resolutory period take effect at once but (JURADO, Obligations and Contracts, supra at 160).
terminate upon arrival of the day certain
(CIVIL CODE, Art. 1193, par 2). TERM/PERIOD V. CONDITION
2. As to Expression
a. Express - when specifically stated; and
b. Implied - when it can be deduced that the
parties intended a period, such as in the case
of Art. 1180 of the CIVIL CODE when one
promises to pay when able.

3. As to Definiteness
a. Definite - refers to a fixed known date or
time(CIV/L CODE, Art. 1193, par 3);and
b. Indefinite - event which will necessarily
happen but the date of its happening is
unknown. Where the period is not fixed but a
period is intended, the courts are empowered
Exerts an influence Exerts an influence upon
by Jaw to fix the same (CIVIL CODE1 .!Jrt.
upon . the time of the very existence of the
1197). .
qemancfability or obligation itself.
,:,·\· ,)_
extinguishment of an
NOTE: The uncertainty of the dat~ of o~urrence oblig 9tioh.
does not convert into a conditioi:rs9 long.as there
is no uncertainty whether the evenLwillhappeh
or not (JURADO, Oblig?tiqns arid Contracts,
supra at 147). ·

4. As to Source
a. co'iwentional - stipulated by parties (CIVIL
CODE, Art. 1196); •. _ . _ .
b. Legal - period fixed by. f~w such· as Arts.
1682 and 1687; and . . · · ._
c. Judicial - fixed by cpur'ts, in cas~. ofirnplied When · it ; is 1~h When it is left exclusively
and indefinite period ''(JURADO, Obligations ~xdusively to'the wil['.of to the will of the debtor,
and Contracts, supra at147-148). ,- , the de.btor, -the the very existence of the
existence of the obligation is affected.
EFFECT OF SUSPENSIVE TERM . obligation is not
affected; empowers the
It is only from that date that it is due a·nd. deman·dable ·
court to ftx the duration
(Ullman v. Hemaez, G.R. No. L-9816, 'March 10,
1915). .. of the obligation.
(JURADO, Obligations and Contracts, supra at 147).
What is suspended by the term is not the acquisition
of the right or the effectivity of the obligation but its EFFECT OF LOSS, DETERIORATION, OR
demandability (JURADO, Obligations and Contracts, IMPROVEMENT BEFORE ARRIVAL OF
supra at 149).
PERIOD
In case of loss, deterioration or improvement of the
WHERE DURATION OF PERIOD
thing before the arrival of the day certain, the same
DEPENDS UPON THE WILL OF DEBTOR rules under Art. 1189 of the CIVIL CODE shall be
Where the debtor promises to pay when his means observed (CIVIL CODE, Art.1194).
permit him to do so, the obligation shall be deemed
to be one with a period (CIVIL CODE, Art. 1180). If a fortuitous event supervenes, the obligor is merely
relieved o.f the obligation to fulfill at that time and does
NOTE: What depends upon the debtor's will is not not stop the running of the period because in effect
whether he should pay or not. What is left only to his that would be an extension of the term of the contract
will is the duration of the period. The term only (Victorias Planters Association; Inc., v. Victorias
suspends the demandability of the obligation and not Milling Co., G.R. No. L-6648, July 25, 1955).
its existence. It is a situation where the parties merely
 fflPIIP \/
MEM:Q~Y AID
San Seda University College of Law - RGCT Sar Op$ratJOns Center
EFFECT OF ADVANCE PAYMENT OR
DELIVERY
In obligations to give, the obligor can recover what he
has paid or delivered with fruits and interests ( CIVIL
CODE, Art. 1195).
There can be no right of recovery if the obligor
delivers the thing voluntarily or with the knowledge of
the µe, iod or term or the fact that the obligation has
not yet become due and demandable ( 4
TOLENTINO, supra at 193).
NOTE: Article 1195 applies only to obligations to
give. It is similar to Article 1188, paragraph 2, which
allows the recovery of what has been paid by mistake
before the fulfillment of a suspensive condition. It has
no application to obligations to do or not to do (Id. At
196).
PARTIES PRESUMED AWARE
PERIOD
Whenever in an obligation a period is designateci/it
is presumed to have been established for the benefit , ;tf'
of both the creditor and the debtor, unless it should\ ,ti,
appear that the period has been established in favdj::
of one or of the other (CIVfL CODE, Art. 1196). · ·
It is important -to bear in mind that in a reciprocal
contract like a lease, the period of the I.ease must be
deemed to have been agreed upol) fbfthe benefit of
both parties, absent language showing that the term
was deliberately set for the benefit of the lessee or
lessor alone (LL and Company DevelopIJJent and
Agro-Industrial Corporation v. Huang Chao Chun;
G.R. No. 142378, March 7, 2002). · ·
EFFECT OF PERFORMANCE BEFQRE
TERM
Payment before the term and the acceptance of
payment by a creditor amounts to a waiver of the
period agreed upon during which payment should not
be made.
PERIOD FOR THE BENEFIT ONLY OF
THE CREDITOR
Creditor may demand the fulfillment of the obligation
at any time but the obligor cannot compel him to
accept payment before the expiration of period (OE
LEON, Obligations and Contracts, supra at 201).
PERIOD FOR THE BENEFIT ONLY OF
THE DEBTOR
Debtor cannot be compelled to perform obligation
prematurely, but he can do so if he desires (Id. at
200).
WHEN COURT MAY FIX DURATION OF
TERM
GENERAL RULE: Courts are without power to fix
period:
REASON: Freedom to Contract (CIVIL CODE, Art
1306)
EXCEPTIONS:
1. If the obligation does not fix o period, but from its
nature and circumstances it can be inferred that
a pfriod was intended ( CIVIL CODE, Art. 1197,
par. 1);
Effect of Lack of Definite Duration of Term
The fulfillment of the obligation cannot be
demanded until after the court has fixed the
period and such period has arrived. Such
technicality [of filing a separate action in court for
OF fixing of the period] need not be adhered to when
a prior and separate action would be a mere
formality and would serve no other purpose than
to delay (Borromeo v. CA, G.R. No. L-22962,
September 28, 1972).
':~&•::;1:~ut er the duration has been fixed by a
prop ... rt that ony action involving the
fulfillmenf 1?!:,performance of the obligation can be
maintained ~Eleizegui v. Manila Lawn Tennis
Club, cj.R.JNot 967, May 19, 1903).
,. . '
} ._' i
Thusdhere can.'be no possibility of any breach of
cohtr. · . ·· perform the obligation unless
the pe d by the courts (Pages v. Basilan
Lumber Co., G.R. No. L-10679, November 29,
958).
'}}r;,i~ ·:-: ; ·;,
,v
TE:·1he rule presupposes that there is clear
stipulation that the obligation is subject to a term
and that only the duration is not fixed.
2. If the duration of the period depends upon the will
of the debtor ( CIVIL CODE, Art. 1197, par. 2);
3. If under the circumstances the parties have
contemplated a period (CIVIL CODE, 'Art. 1197,
par. 3); and
4. If the debtor binds himself to pay when his means
permit him to do so (CIVIL CODE, Art. 1180).
The remedy cannot be applied to a contract of
services and pure obligations. The period of
employment is understood to be implicitly fixed, in
default of express stipulation, by the period for the
payment of the salary of .the employee in accordance
with customs (Barreto v. Santa Maria, G.R. No. L-
8169, December 29, 1913).
)d; \ ,," ,'•,: ~•: •,·• ,_',:f •·:,::
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r',) OBLIGATIONS AND CONTRACTS
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COMPUTATION - ~OF
1. The Civil Code
- -TERM
- - - OR
- - PERIOD
------ ,.
3. When by his own acts he has !mpaired said
guaranties or .securities after their establishment,
and when through a E,ortuitous event they
When the law speaks of years, months, days or
disappear, unless he immediately gives new
nights, it shall be understood that years are of
ones equally satisfactory;
three hundred sixty-five (365) days each; months
of thirty (30) days; days of twenty-four (24) hours;
NOTE: Should the loss of the securities be by
and nights from sunset to sunrise.
reason of a FORTUITOUS EVENT; there must
If months are designated by their name, they
be a total disappearance in order to deprive the
shall be computed by the number of days which
debtor of the benefit of the term.
they respectively have.
4. When the debtor Y,iolates any undertaking, in
In computing a period, the first day shall be
consideration of which the creditor agreed to the
excluded, and the last day included." (CIVIL
period; or
CODE, Att. 13).
5. When the debtor ~ttempts to abscond (CIVIL
If the last day of the period, as computed, falls on
CODE, Art. 1198).
a Saturday, Sunday or a legal holiday, the time
shall not run until the next working day (RULES
OF COURT, Rule 22, Sec. 1). . EFFECT IF THE DEBTOR LOSES THE
RIGHT TO MAKE USE OF THE PERIOD
A year is equivalent to 365 days regardless of The term is extinguished, and the obligation is
whether it is a year or a leap year. (National demandable at once (4 PARAS, supra at 263).
Marketing Corporation v. Tecson, G.R. L-2Q131,
August 27, 1969).

2. The Administrative Code ALTERNATIVE OR

The SC defined a calendar month as a month
designated in the calendar_ disregarding the
number of days it may contai_n; A year shall be
understood to be 12 calendar months. The SC
held that Administrative Code <;>f 1987
impliedly repealed Art. 13 of, CIVIL CODE as
the provisions are irreconcilable (CIR v
Primetown, GR. No. 162155, August2B, 2007).
Under the Civil Code, a year is equivalent to 365
days whether it be a regularyear or a leap year.
Under the Administrative Code of 1987, however,
a year is composed of 12 calendar months.
Needless to state, under the Administrative Code
of 1987, the number of days is irrelevant (CIR v.
Aichi Forging Co. G.R. No. 184823, October 6,
2010).
WHEN THE DEBTOR LOSES
BENEFIT OF THE PERIOD
The debtor shall lose every right to make use of the
period: (IF-IF-VA}
1. When AFTER the obligation has been
contracted, he becomes !nsolvent, unless he
gives a guaranty or security for the debt;
NOTE: The insolvency need not be judicially
declared in an insolvency proceeding (JURADO,
Obligations and Contracts, supra at 164).
FACULTATIVE
OBLIGATIONS
(ARTS 1199-1206)
ALTERNATIVE OBLIGATION
A person alternatively bound by different prestations
shall completely perform one of them (CIVIL CODE,
Att.1199,par. 1).
In an alternative obligation, there is more than one
object, and the fulfillment of one is sufficient,
determined by the choice of the debtor who generally
has the right of election (Arco Pulp and Paper Co.,
Inc. v. Dan T, Lim, GR. No. 206806, June 25, 2014).
THE
Limitation: The creditor cannot be compel_led to
receive part of one, and part of the othe·r undertaking
(CIVIL CODE, Art. 1199, par. 2).
Example
"A will give B this car or this ring or this fountain pen."
A does not have to give B all three things
enumerated. The giving of one is sufficient to satisfy
the obligation (4 PARAS, supra at 264).

2. When he does not ,Eurnish to the creditor the

guaranties or securities which he has promised;
 Rffll\PND \ 1
MEM✓Q~Y AID
San Becta University Co!l~e- of Law RGCT Bar Operatioris Canter
RIGHT OF CHOICE IN ALTERNATIVE
OB.LIGATIONS
GENERAL RULE: Right of choice belongs to the
debtor (CIVIL CODE, Art. 1200, par. 1).
EXCEPTIONS:
1. Expressly granted to the creditor; and
2. Expressly y,anted to third person (JURADO,
Obligations and Contracts, supra at 168; 4
TOLENTINO, supra at 205).
NOTE: Although the CIVIL CODE does not
expressly recognize the second, there is no
reason why it cannot be allowed, since it is not
contrary to law, morals, good customs, public
order, or public policy (JURADO, Obligations and
Contracts, supra at 739).
REQUISITES FOR THE MAKING OF THE
CHOICE (PFV-DP-WW)
1. Made Properly so that the creditor or his agent
will actually know;
2. Made with Eull knowledge that a selection is
indeed being made;
3._ Made Y:oluntarily and freely;
4. Made in ·Que time, that is, before or upon
maturity;
5. Made to all the ,Eroper persons;
6. Made Without conditions, unless agreed to by
the creditor; and
7. May be Waived, expressly or impliedly (4
PARAS, supra at 268-269).
LIMITATIONS UPON THE. RIGHT OF
CHOICE OF THE DEBTOR
The debtor shall have no right to choose those
prestations which are: (IU-Not)
1. !mpossible;
2. !,!nlawful; or
3. Which could Not have been the object of the
obligation (CIVIL CODE, Art. 1200, par. 2), which
refers to: (ADU)
a. Those by reason of ~ccident or some other
cause, have acquired a new character
distinct or different from that contemplated by
the parties when the obligation was
constituted;
b. Those which are not yet Q_ue or demandable
at the time the selection is made; or
c. !,!ndertakings that are not included among
others from those which the obligor may
select (JURADO, Obligations and Contracts,
supra at 168-169).
WHEN NOTICE PRODUCES EFFECT
The choice shall produce effect only upon
communication of the choice to the other party ( CIVIL
CODE, Art. 1201).
FORMS OF NOTICE
Notice may be made:
1. Orally;
2. In writing;
3. Expressly/Unequivocal (4 PARAS, supra at 268;
4 TOLENTINO, supra at 206); or
4. Impliedly
a. Performance by the debtor who has the right
to choose or in the acceptance of a prestation
PY the creditor when he has a right of
selection (8 MANRESA 181); or
b. When the creditor sues the debtor for the
performance of one of the prestations (4
TOLENTINO, supra at 268).
CAN THE CREDITOR TO WHOM THE
SELECTION HAD BEEN DULY
COMMUNICATED IMPUGN SUCH
SELECTION?
1st view
- In an obiter dictum in Ong Guan Con v.
Century, Inc, Co., G.R. No. L-21196, February 6.
1924, it was stated by the Supreme Court that the
'.'object of the notice is to give the creditor or
dbli,g~e opportunity to express his consent. or to
impugh'ttie election made by the debtor and only
after said, notice shall the election take legal effect
when consented to by the creditor, or if impugned
by the' latter, when declared proper by a
competent court that it shall take effect"
(JURADO; Obligations and Contracts, supra at
169): ·
2 nd View
- It is, however, submitted that the above doctrine
is not. sound. Consent or concurrence of the
. creditor to the choice or selection made by the
debtor is not necessary before the choice or
selection can produce effect. A mere declaration
of the choice, communicated to the other party, is
sufficient; it is a unilateral declaration of will (4
TOLENTINO, supra at 206).
To hold otherwise would destroy the .very nature
of the right to select and the alternative character
of the obligation for that matter. Thus, according
to Dean Capistrano: "The law does not require
the creditor's concurrence to the choice; if it did,
it would have destroyed the very nature of
alternative obligations, which empowers the
debtor to perform completely one of them"
(JURADO, Obligations and Contracts, supra at
170).
.Thus, the 2 nd view is more sound because
requiring the creditor's consent would destroy the
very essence of the right to choose and the
alternative character of the obligation itself. The
only possible exception to this rule is when the
 OBLIGATIONS AND CONTRACTS
Civil Law

debtor has chosen a prestation wllicti could not
have been the object of the obligation; the
creditor's consent would bring about a novation
of the obligation (4 TOLENTINO, supra at 206).
Correlate: Consent or concurrence of the creditor to
the choice or selection made by the debtor is not
necessary before the choice or selection can produce
effect (4 TOLENTINO, supra at 206).
EFFECT OF NOTICE OF CHOICE: (ASIL)
1. Until the choice is made and communicated, the
obligation remains ~lternative.
2. Once the notice of the election has been given to
the creditor. the obligation ceases to be
alternative and becomes §imple obligation to
perform the prestation chosen;
3. Such choice once properly made and
communicated is Irrevocable and cannot,
therefore. be renou-nced. An election, . gnce
made, is binding on the person who makeslt. and
he will not, therefore, be permitted lorenounce
his choice and take an alternati,ve_Wl:licli wa{first
open to him (Reyes v. Martin,tt"i., GR'-fVpi':32226,,
December 29, 1930). To c}ifow··ti,cl}ahge in ffle
selection after it has been" oortfrounlcated to the
other party is to expos~fthe."fa1tir to/damages
arising from preparatio11s. he r1}'i:ly make__ori tile ..
assumption that the Pt:ettatfon selecJed is the
one to be performed (& TOliff.NTINO) supra at
207); • -·> ; s ·
4. Where the choice has .,been ,~xpr~s~y''given Jo
the creditor, such choice st)'aU 'Jikew_iS~:-?(Oduce
_begal effects upon being tommunicat~ lo
the
debtor (CIVIL CODE, Art. 1205, f)<Jr. 1). '
2. The German Theory
- The right to choose passes automatically to the
other party when there is delay on the part of the party
entitled to choose (2 Gasperi 326-327). According to
Tolentino, the German Theory is the one acceptable
under our law on the ground that although the right to
choose pertains to the debtor, he cannot paralyze the
remedy of the creditor by refusing to make a
selection. If the debtor does not exercise his right to
choose, the debtor should be deemed to have waived
his right to choose in favor of the creditor who may
then exercise such right (TOLENTINO, supra at 208).
EFFECT WHEN ONLY ONE PRESTATION
IS PRACTICABLE
The debtor shall lose the right of choice when among
the prestations whereby he is alternatively bound,
only one is practicable ( CIVIL CODE, Art. 1202). If all
the prestations, except one, are impossible or
· ·· ontav.,ful, it follows that the debtor cannot choose and
p~rfprrn.'only that one. The obligation ceases to be
althln~tivfi arid is converted into a simple obligation
'fcf'perfor111 onlt fE!asible or practicable prestation (4
,TQLEN'FINQ/sup(a at 209).
,, ,;~ , "" ,\
NOTE: Article\J~P2 or'!Jy applies when the debtor has
the righl;to cl19qse. !~ case where the creditor is
. granted. tpe righlt0 choose, Article 1205 will apply
w~el) only one prestat/ob remains practicable, either
due to fortuitous event or'due to the fault of the debtor
(lei. at 210). . . ... . . .. . .
/1\:RJ. 1202 ,:,.' ART.1200, PAR. 2

DELAY IN MAKING CHOl~.E "·

The right to choose is not lost by the m_ereJJct •that_.· · The~e. , is\ ,.only one There are still two or
the party entitled to choose delays in, making his prest;;itioh~which can be more which can be
selection. But if the debtor who has ths.,.[ight to ~~rfprmed. performed.
choose makes no selection before the creditor files
his action, what prestation shall be enforced?

There are two theories in foreign jurisprudence in this The obligation is The obligation is still
case: converted into a simple alternative because the
one because the debtor debtor can still exercise
1. The French Theory loses his right of election his right of election.
- The Court should give the party entitled to choose (JURADO, Obligations and Contracts, supra at 171)
a period in which to make the choice, with the
intimation that if he does not choose within that WHEN DEBTOR MAY RESCIND
period, the Court will make the choice cir will give the
right to choose to the other party (4 TOLENTINO,
CONTRACT
supra at 208). A different solution is offered by Perez If the debtor cannot make a choice according to the
Gonzales and Alguer who believe that the judge may terms of the obligation through the creditor's act, the
make the selection for the debtor who refuses to do former may rescind the contract with damages ( CIVIL
so, but this is in the light of the Spanish law of CODE, Ari. 1203).
procedure (Perez Gonzales & Alguer; 2-I
Enneccerus, Kipp & W0lf 110 cited by TOLENTINO,
supra at 208).
 1
fP!FfflFD '
MEM:-v~Y AID
San 6eda University College of Law · RGCT ea, Operations Center
WHEN CREDITOR IS ENTITLED
INDEMNITY FOR DAMAGES
When through the fault of the debtor:
1. All the things which are alternatively the object of
the obligation have been lost; or ·
2. Compliance of the obligation has become
impossible (CIVIL CODE, Art. 1204).
DAMAGES HOW DETERMINED
The indemnity shall be fixed based on the value of the
last thing which disappeared or that of the service
which last became impossible ( CIVIL CODE, Art.
1204, par. 2).
Damages other than the above-mentioned may also
be awarded (CIVIL CODE, Art. 1204, par. 3).
Art. 1204 of the Civil Code is applicable only to a case
where the right of choice belongs to the debtor
(JURADO, Obligations and Contracts, supra at 172)
and the loss or impossibility happened. before
selection was made (4 PARAS, supra at 270).
WHEN THE CREDITOR'S RIGHT TO-
CHOOSE IN AN ALTERNATIVE
OBLIGATION CEASES
When the choice has been expressly given to the
creditor, the obligation shall cease to be alternative
from the day when the selection has been
communicated to the debtor ( CIVIL. CODE, Art. 1205,
par. 1).
EFFECTS OF LOSS OF OBJECTS OF
ALTERNATIVE OBLIGATION
1. When Choice Belongs to Debtor:
a. Due to Fortuitous Event (CIVIL CODE, Arts.
1174, 1262 and 1266 are applicable)
i. All are lost - debtor is released from the
obligation;
ii. Some but not all are lost - the debtor
shall deliver that which he shall choose
from among the remainder. Note that if
some, but not all are lost, the obligation
still subsists and retains its alternative
character
iii. Only one remains - deliver that which
remains. Note that if only one remains,
the obligation still subsists, but it ceases
to be alternative since the obligation has
become a simple obligation to deliver the
remaining object (JURADO, Obligations
and Contracts, supra at 740).
b. Debtor's fault (CIVIL CODE, Art. 1204 is
applicable)
i. All are lost - creditor shall have a right to
indemnity for damages based on the
value of the last thing which disappeared
TO or service which became impossible plus
consequential damages;
ii. Some but not all are lost - the debtor
shall deliver that which he shall choose
from among the · remainder without
damages since the debtor can still
comply with his obligation. Note that if
some, but not all, are lost, the obligation
still subsists retaining its alternative
character; or
iii. Only one subsists- deliver that which
remains. Note that if only one remains,
the obligation still subsists, but it ceases
to be alternative (Id. at 740-741).
2. When Choice Belongs to Creditor:
a. Due to Fortuitous Event (CIVIL CODE, Arts.
1174, 1262 and 1266 are applicable)
i. All are lost - debtor is released from the
obligation;
ii. Some but not all are lost - deliver that
which he shall choose from among the
remainder; or
iii. Only one subsists - deliver that which
remains
·beb~6h fault (CIVIL CODE, Art. 1205, pars.
2 and$.are applicable)
i. All are lost - creditor may claim the
,price/value of any of them plus
· consequential damages; or
ii. Some out not all are lost - creditor may
·. ·. claim.• anyc of those subsisting without a
· >'fkftiJ)B"damages OR price/value of the
thing lost with right to damages; or
iii. Only one subsists - the obligation still
subsists, but it ceases to be alternative.
If the creditor chooses the object
remaining, the debtor cannot be held
liable for damages; however, if he
chooses any of those which were .lost,
the debtor is liable for the value of the
object plus damages (JURADO,
Obligations and Contracts, supra at.173).
FACULTATIVE OBLIGATION
An obligation wherein only one· object or prestation
has been agreed upon by the parties to the obligation,
but which may be complied with by the delivery of
another or the performance of another prestation in
substitution (CIVIL CODE, Art. 1206, par. 1).
Communication is necessary to effect the substitution
of the other prestation. Therefore, Art. 1201 of the
Civil Code can be applied by analogy with respect to
the time/moment when the substitution will take effect
(JURADO, Obligations and Contracts, supra at 175).
 OBLIGATIONS AND CONTRACTS
Civil Law

EFFECT OF LOSS OF SUBSTITUTE IN ALTERNATIVE V. LIMITED GENERIC

FACULTATIVE OBLIGATION OBLIGATIONS
1. Before substitution is made:
a. If due to the bad faith or fraud of obligor -
obligor is liable.
b. If due to the negligence of the obligor -
obliger is not liable for damages ( CIVIL
CODE. Art. 1206, par. 2).

2. After substitution is made:

Regardless if caused by fraud or negligence,
obliger is liable for damages ( CIVIL CODE, /\rt.
1206, par. 2).

ALTERNATIVE V. FACULTATIVE
OBLIGATIONS

Only the impossibility of Impossibility of the

all the prestations due principal prestation is
without the fault of the sufficient to extinguish
debtor extinguishes the the obligation, even if the
obligation. substitute is possible.

Loss of substitute merely Loss of 1 or more, but Loss of prestation

extinguishes the not all µreslalions extinguishes the
facultative aspect. before choice is obligation .
communicated does hot
extinguish the
obligation

Choice · made and Not applicable as no

communicated, need to communicate
Various prestations all Only the principal alternative qbligations choice
of which constitute parts prestation cqnstitutes the become simple
of the obligation. obligation, the accessory
being only a means to
facilitate payment.

JOINT AND SOLIDARY

Nullity of one of the Nullity of the principal OBLIGATIONS
prestation does not prestation invalidates the
invalid;:itP. thP. ohlior1tion obligation
(ARTS.1207-1222)
which is still in force
with tesµe<.:l to those
which have no vice.
JOINT OBLIGATION (OBLIGACION
(JURADO, Obligations and Contracts, supra at 174- MANCOMUNADA)
175). The whole obligation is to be pclid or fulfilled
proportionately by different debtors or demanded
proportionately by different creditors (CIVIL CODE, ·
Art. 1208).

Each debtor is liable only for a proportionate part of

the debt, and the creditor is entitled to demand only a
 fi❖M@ffi \ 1
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proportionate part of the credit from each debtor (AFP
Retirement and Separation Benefits System
(AFPRSBS) v. Eduardo Sanvictores, G.R. No.
207586, August 17, 2016).
SOLIDARY OBLIGATION (OBLIGACION
SOL/DARIA)
Eoch one of the debtors is bound to render, and/or
each one of the creditors has a right to demand entire
compliance with the prestation (CIVIL CODE, Art.
1207).
Each of the debtors is liable for the entire obligation,
and each of the creditors is entitled to demand the
satisfaction of the whole obligation from any or all of
the debtors (AFPRSBS v. Eduardo Sanvictores, .R.
No. 207586, August 17, 2016).
SOLIDARY DEBTORSHIP
PRESUMED
GENERAL RULE: Obligation is presumed joint if
there is concurrence of several creditors or of several
debtors or of several creditors and debtors in one and
the same obligation ( CIVIL CODE, Art. 1207).
There. is a solidary liability only when the obligation
expressly so states, or when the law or the nature of
the obligation requires solidarity ( CIVIL CODE, Art.
1207).
It becomes incumbent upon the party alleging that the
obligation is indeed solidary in character. to prove
such fact with a preponderance of evidenc.e
(Salvador P. Escafio v. Rafael Ortigas Jr., G.R No.
151953, June 29, 2007).
In the absence of any fact or law which would make
defendants solidarily liable, the presumption is that
they are jointly liable (Un Pak Leung v. Juan Nigorra
et al., G.R. No. L-3128, December 19, 1907).
EXCEPTIONS: (LON-Final~Test)
1 The b_aw requires solidarity;
Examples: Tort, quasi-contracts, liability of
principals, accomplices and accessories of a
felony, obligations of devisees and legatees,
bailees in commodatum (CIVIL CODE, Arts. 927,
1824, 1911, 2146, 2157, 2194).
2. The Qbligation expressly states that there is
solidarity;
3. Nature of the obligation requires solidarity (CIVIL
CODE, Art: 1207) e.g. criminal offenses and
torts;
4. When a solidary responsibility is imputed by a
Final judgment upon several defendants; and
5. When a charge or condition is imposed upon
heirs or legatees, and the Testar11ent expressly
makes the charge or condition in solidum
(JURADO, Obligations and Contracts, supra at
179-180). '
PRINCIPAL EFFECTS OF JOINl
LIABILITY:
1. Vices of each obligation arising from the personal
defect of a particular debtor or r.rerlitor rloes not
riffer.t the obligntion or right of the others;
Example: A and B are joint debtors of C for
P1 ,000,000. A's consent was obtained by C
through fraud. B would still be liable for P500,000,
while A will not be liable, since the 2 debts are
considered distinct from each other.
2. Insolvency of one debtor does not make others
responsible for his share;
NOT
Example: A, B, and C are joint debtors of D for
P3,000,000. If A is insolvent, B should pay D only
P1 ,000,000, his own proportionate share.
3. Demand by the creditor on one joint debtor puts
him in default, but not the others since the debts
are disti11ct
4. When the crediior interrupts the running of the
prescriptive period by demanding judicially from
one, the others are not affected;
5. Defenses of one debtor are not necessarily
available to the.others (4 PARAS, supra at 286-
287; See~ Manr.esa 200-201).
FACT OF INDIVISIBILITY DOES NOT
CREATE SOLIDARITY
Jhe, indivisibility of an obligation does not necessarily
give rise to solidarity. Nor does solidarity of itself
imply indivisibility (CIVIL CODE, Art. 1210).
JOINT DIVISIBLE OBLIGATION
' Credits or debts shall be presumed to be divided into
as many equal shares as there are creditors or
debtors, the credits or debts considered distinct from
one another subject to the Rules of Court governing
multiplicity of suits (CIVIL CODE, Art. 1208).
NOTE: Each creditor can demand only for the
payment of his proportionate share of the credit, while
each debtor can be held liable only for the payment
of his proportionate share of the debt (CIVIL CODE,
Arts. 1207, 1208; JURADO, Obligations and
Contracts, supra at 181).
In case of breach of obligation by one of the debtors,
damages due must be borne by him alone; if there is
any defense purely persona!,to one of the debtors, he
alone can avail himself of such defense (Id. at 181-
182).
 ,, ' 'fc,; ~' I •<' ~ :, ,' ;' '
430'" .. '., , 1 · . , . :,-_:, OBLIGATIONS AND CONTRACTS
~ ;I( ~, I Civil Law
I ! >, I'

JOINT tNDIVISIBLE OBLIGATION INDIVISIBILITY V. SOLIDARITY

Where the obligation is merely joint, but since the
object is indivisible, the creditor must proceed against
ALL of the joint debtors (CIVIL CODE, Art. 1209), for
compliance is possible only if all the joint debtors
would act together (4 PARAS, supra at 290; see also Refers to the prestation Refer~ to the legal tie or
CIVIL CODE, Art. 1224). which constitutes the vinculum Juris, and
object of the obligation, consequently to the
Example: Performance by a musical band; where a is not capable of partial subjects or parties of the
lessor is entitled to absolute possession of a building performance. obligation.
with several lessors in possession of distinct rooms.
The obligation is joint because the parties are merely
proportionately liable. It is indivisible because the
object or subject matter is not physically divisible into Exists even if there is Exists only if there is more
different parts (see CIVIL CODE, Art. 1225, par. 1). only one creditor and than one creditor or more
one debtor. Thus, than one debtor. Thus,
In other words, it is joint as to liabilities of the debtors plurality of subject is plurality of subject is
or rights of the creditors but indivisible as to not required. indispensable.
compliance (see CIVIL CODE, Art. 1224; DE LEON,
Obligations and Con"tracts, supra at 243).
Each creditor cannot Each creditor may
CHARACTERISTICS OF,· JOINT demahd more than his demand the entire
INDIVISIBLE OBLIGATIONS share and each debtor prestation and each
1. No creditor can act in representation ofihe other: is not bound topay debtor is bound to pay the
2. No debtor can be compelled to answer for the more than his share. entire prestation.
liability of others; ··
3. If there are two or more debtors/the fulfillment of
or compliance with· the obligation requires the Obligati6n is c6nve.rted When the obligation is
concurrence of all the d~bfors, '.although each for into indemnity for converted into indemnity
his own share; · damages; indivisibility for damages because of
4. If there are two or rngre crE!ditors, the is terminated. breach, the solidarity
concurrence or collective acf dt all the creditors, character of the
although each for his . own. share, . is also
obligation remains.
necessary for the enforcement of
the obligation
(JURADO, Obligations and Contracts, supra at
184-185);
5. Demand must, therefore, be made on A.LL the
joint debtors;
6. If any one of the debtors does not comply with his
obligations, it is converted into one of indemnity
for damages (CIVIL CODE, Art. 1224);
7. If any of the joint debtors be insolvent, the others
shall not be liable for his share (CIVIL CODE, Art.
1209);
8. If there be joint creditors, delivery must be made Other debtors are not All debtors are
to all, and not merely to one, unless that one be liable if one debtor is proportionately liable for
specifically authorized by the others; and insolvent. the insolvency of one
9. Each joint creditor is allowed to renounce his debtor.
proportionate credit (4 PARAS, supra at 290). (JURADO, Obligations and Contracts, supra at 187;
DE LEON, Obligations and Contracts, supra at 244)

SOLIDARITY
Solidarity may exist although the creditors and the
debtors may not be bound in the same man_ner and
by the same periods and conditions ( CIVIL CODE,
Art. 1211).

The essence of solidarity consists in the right of each

creditor to enforce the rights of all and the liability of
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ME~v~Y AID
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each debtor to answer for the liabilities of all. 2. As to Uniformity

Therefore, there may be a solidary obligation a. Uniform - parties are bound by the same
although the parties may not be bound in the same stipulations; and
manner and by the same periods and conditions (DE b. Non-uniform or Varied - where the obligors
LEON, Obligations and Contracts, supra at 243). though liable for the same prestation, are
nevertheless not subject to the same
NOTE: Every solidary obligation has these secondary stipulations and clauses (DE
characteristics: unity of object and plurality of ties. LEON, Obligations and Contracts, supm at
The prestation due, or to which a right exists, is one 226; 4 PARAS, supra at 293).
and the same thing (DE LEON, Obligations and
Contracts, supra at 234). 3. As to §_ource
a. Legal - imposed by law
KINDS OF SOLIDARITY: (PUS) b. Conventional - agreed _upon by the
1. As to _e arties bound parties (4 PARAS, supra at 291).
a. Active - Solidarity of creditors; a tie or
vinculum existing among several creditors of Effect: Creditor can commence an action against
one and the same obligation by virtue of anyone of the debtors for compliance with the
which each of them, in relation to his co- entire obligation minus the portion or share which
creditors, possesses the character of creditor corresponds to the debtor affected by the
only with respect to his share in the condition or period.
obligation, but in relation to the common
debtor or debtors, represents all of the ot~e( ,, JOINT OBLIGATION ON ONE SIDE,
creditors; · · ·,';; __________________
SOLIDARY ON THE OTHER
;,,.,,_.:__
· ":;;~;;jSolidarity may exist although the creditors and the
Effect: Mutual agency among the solid~ry ,/¥ff1\ieQ\prs mat t be bound in the same manner and
creditors by virtue of which each creditor r(:,; :(".(;'.;;'.t>y~ffie_:,.~ riods and conditions (CIVIL CODE,
empowered to exercise against the debtor or · ' Art. 1211)':
debtors not only the rights whic~ corresponq , . /~k
to him, but also all the tights which An obligation'~ay be joint on the side of the creditors
correspond to the other creditors, _with the and solid a~ o~ th~ side of the debtors, or vice versa.
consequent obligation to render an >!_, In such casesJhe r-µles applicable to each subject of
accounting of his acts to s~ch creditors. I:'.'the obli · • · e applied, the character of the
{7 credito , determining their respective
b. Passive - Solidarity of debtq~; tie or ~(,; rights an s (DE LEON, Obligations and
vinculum existing among se)leral 'deb.tors of '' Contracts, supra at 247).
one and the same obligation ,by virtue of
which each of them, in rela'tion to the _...- ·~~t of effect of varied conditions or
common creditor or creditors, r~presents all periods:'ffA, B, and C borrowed P60,000 from X
of the other debtors, and in relafi◊n.to hisco- binding themselves jointly and severally to pay the
debtors, possesses the character Of debtor entire obligation, but in the promissory note executed
only with respect to his share in the by them there is a stipulation that in the case of A, the
obligation, but in relation to the common obligation shall become due and demandable on
creditor or creditors, represents all of the June 15, 2022. In the case of B, it shall become due
other debtors; and and demandable on June 15, 2024; and in the case
of C, it shall become due and demandable on June
Effect: Mutual Guarantee. Each solidary 15, 2026.
debtor, insofar as the creditor or creditors are
concerned, is the debtor of the entire amount; Immediately after June 15, 2012, X brought an .action
however, with respect to his co-debtors, he is for collection of the entire obligation against A alone
a debtor only to tl)e extent of his share in the because of the latter's failure to pay despite repeated
obligation demands, will the action prosper?

c. Mixed - solidarity on the part of the debtors
and creditors, where each one of the debtors
is liable to render, and each one of the
creditors has a right to demand, entire
compliance with the obligation
(JURADO, Obligations and Contracts, supra
at 187-188).
Answer: YES. The obligation here is solipary.
However, in solidary obligations of this type, the right
of the creditor is limited to the recovery of the share
owed by the debtor whose obligation has already
matured leaving in suspense his right to recover the
shares corresponding to the other debtors whose
obligations have not yet matured. Therefore, in the
instant case, X can collect only P20,000 from A,
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4,32 - , ' ·- ,' · .. OBLIGATIONS AND CONTRACTS

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which is the latter's share in the obligation. He shall EFFECTS OF PREJUDICIAL AND
have to wait for June 15, 2024, when B's obligation BENEFICIAL ACTS
shall have matured, and for-June 15, 2026, when C's
Each one of the solidary creditors may do whatever
obligation shall have also matured.
may be useful or beneficial to the others, but not
anything which may be prejudicial to the latter (CIVIL
On June 15, 2024, he can collect P20,000 from either
CODE, Art. 1212)
A or B. On June 15, 2026, he can again collect
another P20,000 from either A or B or C.
NOTES:
1. As far as the debtor/s is/are concerned, an act
performed by a solidary creditor whether
beneficial or prejudiciai to the creditors is valid
and binding.
2. If the act is prejudicial to the creditors, the creditor
who performed such act shall incur the obligation
of indemnifying the others for damages.
3. In the case of remission or condonation (which is
prejudicial), the solidary creditor is allowed to
remit, and the obligation is extinguished, without
prejudice to his liability to the other creditors (4
Liable not only for the liable only for the.share PARAS, supra at 295).
payment of the debt of of the principal debtor.
another, but also for the EFFECTS OF ASSIGNMENT OF RIGHTS
payment of a debt IN SOLIDARY OBLIGATIONS
which is properly his GENERAL RULE: A solidary creditor cannot assign
own. his rights without the consent of others (CIVIL CODE,
Art. 1213).

REASON: Solidary creditorship is predicated upon

Has a right to demand Acquires a right of
mutual agency and mutual confidence, i.e., personal
reimbursement from his reimbursement from the
qualification of each creditor had been taken into
co-debtors of the principal debtor of the
consideration.
shares which entire <;\mount he has
correspond to them in paid,
EXCEPTIONS: (CC}
the obligation, if he pays
1. Assignment to a ~a-creditor (JURADO,
the entire amount of the Thus, the surety can be
Obligations and Contracts, supra at 196); and
obligation. reimbursed for
2. Assignment is with ~onsent of co-creditors (4
everything he paid.
PARA.s, supra at 296).
Thus, the solidary
debtor. can be
reimbursed what he has EFFECT OF UNAUTHORIZED
paid minus his own ASSIGNMENT
share. 151 View:
Article 1213 seems to imply that such assignment
is invalid.
In passive solidarity, an An extension of time
NOTE: This rule is unjustifiable and places an
extension of time granted by the creditor .
unnecessary restriction on the rights of the
granted by the creditor to the principal debtor
solidary co-creditor upon his share. The reason
to one of the solidary would release the surety
behind it seems to be that each creditor
debtors without the from the obligation.
represents the others and, therefore, must have
knowledge of the other
the confidence of the latter.
solidary debtors would
not have the effect of
releasing the latter from
2"d View (Manresa):
A solidary creditor who assigns·his rights without
obligation.
the consent of his co-creditors· shall answer
(JURADO, Obligations and Contracts, supra at 189; subsidiarily for any prejudice caused to the latter
4 PARAS, supra at 303-304). by the assignee in connection with the credit.
 &4Si#M \ I
MEM:v~Y AID
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NOTE: The representation (by each creditor) of
the solidary creditors is created by law and not by
consent or agreement of the parties. If danger is
seen in the possible misfeasance of the
assignee, the ·remedy is not the paralyzation of
the proprietary rights of the solidary creditor, but
to impose upon him a subsidiary responsibility for
the acts of the assignee, similar to that of the
agent for the acts of the sub-agent under Art.
1892 (DE LEON, Obligations and Contracts,
supra at 249).
TO WHOM PAYMENT MADE
SOLIDARY OBLIGATION
GENERAL RULE: Payment may be made to any of
the solidary creditors (CIVIL CODE, Art. 1214).
EXCEPTION: If demand, judicial or extra-judicial, has
been made by one of them, payment should be made
to him (CIVIL CODE, Art. 1214).
REASON: When one creditor makes an extrajudicial
or judicial demand for payment, the tacit
representation by the other creditors is considered
revoked and during the pendency of the action, lhe,
creditors who did not sue lose their representation of
the others (DE LEON, Obligations and Contracts,
supra at 230).
AS TO THE EFFECT OF RES JUD/CATA
TO THE OTHER CREDITORS
Under Art. 1214 of the CIVIL CODE, once an action
is filed by a solidary creditor, he represents all the
others and payment can be made only to him. If the
filing of the action consolidates in the plaintiff creditor
all the rights of the other co-creditors, the latter must
benefit from the favorable results and suffer from the
adverse consequences of such action. However, ·the
other creditors will not be adversely. affected, if the
judgment is based on a cause personal to the plaintiff
in the first action (4 TOLENTINO, supra at 242).
NOT~: In case of mixed solidarity, a judicial or
extrajudicial demand would prohibit the debtor upon
whom the demand is made from making a payment
to any creditor other than to the one who made the
demand. This prohibition, however, does not extend
to the other debtors upon whom no demand has been
made and so each of such debtors can still validly
tender payment to a creditor other than to the creditor
who made the demand (JURADO, Obligations and
Contracts, supra at 197).
EFFECT OF DEMAND UPON
SOLIDARY DEBTOR
The demand made against one of them shall not be
an obstacle to those which may subsequently be
_;' ., .,:·~ ·,,_1,, j
,'
,·
'
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433 .·,,
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,{
directed against the others so long as the debt has
not been fully collected (CIVIL CODE, Art. 1216).
The creditor may proceed against any one of the
solidary debtors or against all of them simultaneously
(CIVIL CODE, Art. 1216).
A creditor's right to proceed against the surety exists
independently of his right to proceed against the
principal (Pa/mares v. CA, G.R. No. 126490, Marci)
31, 1998).
IN NOTE: If a claim from one of the solidary debtors has
been dismissed by a court on grounds other than the
extinguishment of the whole obligation or that the
claim has prescribed, it does not necessarily mean
that the solidary indebtedness cannot be claimed
against the other solidary debtors who were not
impleaded in the case or against those who were
impleaded but whose liability was found by the court
as proper (Inciong v. CA, GR. No. 96405, June 26,
1996),
.EFFECT OF PAYMENT TO A CREDITOR
,.-hf cine of the solidary creditors is able to collect the
/ent\r~,~P\.!~!•Pf the debt from one or some or all of
~he solidary ,debtors, the obligation is totally
extinguished,, although there arises a consequent
obligation or:ihis,part to render an .account to his co-
creditors (CIVIL CODE, Art.1215, par. 2).
NOTE: Solidarity does not make a solidary obligor an
. indispensa!Jle p('lrty jn a suit filed by the creditor
(Operations incorporated v. American Biscuit Co.
Inc., G.R. No. L-34767, October 23, 1987). Likewise,
the nature of the solidary obligation under the surety
does not. make one an indispensable party (Living @
Sense, the. v. Malayan Insurance Company, Inc.,
GR No. 193753, September 26, 2012).
EFFECT OF PAYMENT BY A DEBTOR
Payment made by one of the solidary debtors, either
totally or partially, extinguishes the obligation
depending upon whether the entire amount of debt is
paid or only a part thereof (CIVIL CODE, Art. 1217,
par. 1).
If two or more solidary debtors offer to pay, the
creditor may choose which offer to accept (CIVIL
CODE, Art. 1217, par. 1).
SQlidary debtor who made the payment merely
entitles him to claim from his co-debtors the share
which corresponds to them with interest from the time
A of payment; it does not create a real case of
subrogation; if payment was made before the debt is
due, no interest for the intervening period may be
demanded (CIVIL CODE, Art. 1217, par. 2).
 ' ~~'►"'::(~~;,,' "; ,'~
434 : . . \ '; .
•'
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REASON: The right of the paying co-debtor to be
reimbursed is not based on the original obligation but
upon the payment made by him (DE LEON,
Obligations and Contracts, supra at 254}.
NO RIGHT OF REIMBURSEMENT WHERE
PAYMENT IS ILLEGAL
Payment by a solidary debtor shall not entitle him to
reimbursement from his co-debtors if such payment
is made aftP.r the obligation has prescribed or become
illegal (CIVIL CODE, Art. 1218).
INSOLVENCY OF A SOLIDARY DEBTOR
BORNE BY CO-DEBTORS
When one of the solidary debtors cannot, because of
his insolvency, reimburse his share to the debtor
paying the obligation, such share shall be borne by
all his co-debtors, in proportion to the debt of each
(CIVIL CODE, Art. 1217).
EFFECT OF DEATH
DEBTOR
Under the law and jurispruden¢: U;ie ~redlfor rnay
sue, separately or together, th,flpr!IJC,P~ dt;nJfbr and
the surety, in view of the splitlari 11atur!3 of their
liability. The death of the principal de,l1tor wiJI not work
to convert, decrease or nullify the,.slibstantjve right of
the solidary creditor. Evide~tly/a,effipite the_ deau,, of
the principal debtor, the cfeditqf 1l-nay stil_l sue the
surety alone in accordance ¥Yitt:Efh~solidaf\Y'pature of.
the latter's liability under 'tthe ,p~rformai)~· borrd · ·
( Stronghold Insurance Co. f;?qp116Jic ~A's'afi~"<} lass
Corp., G.R. No. 147561, June, 22, 2006). '··
In case of death of one of the''§olida~ qebtcir;;: th~·
creditor may proceed againsl·t/1e est~te,:of ·tbe .'
deceased solidary debtor alone or'agail)st; an c!l!
of the surviving solidary debtors who~e lfabil!tY is
independent of and separate from the de~eased
debtor, instead of instituting a proceeding for the.-
settlement of the estate of the deceased debtor
wherein his claim could be filed {Imperial Insurance,
Inc. v. David, GR. No. L-32425, November 21, 1984).
EFFECT OF NOVATION,
COMPENSATION, CONFUSION, AND
REMISSION IN SOLIDARY OBLIGATIONS
NOVATION
Novation is the change or substitution of an obligation
by another, resulting in its extinguishment or
modification, either by changing its object or principal
condition, or by substituting another in place of the
debtor, or by subrogating a third person in the rights
of the creditor(CIVIL CODE, Art. 1291).
",.,'"'~'
OBLIGATIONS AND CONTRACTS
J Civil Law
COMPENSATION
Compensation shall take place when two persons, in
their own right, are creditors and debtors of each
other (CIVIL CODE, Art. 1278) such that the amount
of their respective debts are set off against each
other.
CONFUSION
Confusion or merger is the extinguishment of an
obligation from the time the characters of creditor and
debtor are merged in the same person (CIVIL CODE,
Art. 1275).
REMISSION
Condonation or remission is a gratuitous renunciation
by the creditor of his right to enforce the obligation·
against the debtor which necessarily results in the
extinguishment of the obligation, whether wholly or in
part. Being gratuitous, it is a form of donation
.. reqµjring the acceptance of the debtor (CIVIL CODE,
Art.}270).
OF PRINCIPAL. 0
" E~i.Ec70? f40DES OF EXTINGUISHING
OE3Li'GATION$,, NOT CONSTITUTING
PAYMENT'.
Novation', compehsatibn, confusion or remission of
the debt, tnade't>y any of the solidary creditors or with
any of the solidafy pe,btors, sh;:ill extinguish the
ob!1gatio~. The credifor, who may have executed any
ofthese acts asi welhtas he who collects the debt,
shall be· ./iabie tp thff tjthers for the share in the
o61igaJibn c;;o'rre~on~Mg to them (CIVIL CODE, Art.
v\ 1219)./> . . . i
.'•
, "l
NOTES: >
1.· . Jn' o:th'~r woros, novation, compensation,
... ' confDsion, or remission e_ntered into by one of the
tor '"~olid9 ry\creditors will have the same effect as if
the'cr~ditbr was the only creditor. To the debtors,
the obligation are extinguished to the extent
"novated, compensated, confused, or remitted.
2. As novation is. the only act of extinguishment
which may result to a beneficial outcome to t/1e
solidary co-creditors, Article 1212 may also come
into operation as to allow any benefit secured by
the co-creditor to inure to them in proportion with
their interest.
3. . The solldary creditor who grants a novation
prejudicial to his co-creditors, or who
compensates or confuses his own liabilities with
that of fhe debtors, or remits the debtor's debt,
shall be liable to reimburse his co-creditors to the
extent that each of ti 1~m shall be proportionally
prejudiced by such act (DE LEON, Obligations
and Contracts, supra at 254).
 f&&§@ \ I
MEM:0-RY Al D
Sar; Oeda University College of Law ·· RGCT Bar Operations Center
GRANT OF GRACE PERIOD
AFFECTS THE GRANTOR
GENERAL RULE: An extension of time granted by
the creditor to a solidary debtor does not amount to a
novation that will discharge the
debtors. The latter shall be liable for the whole debt
less the share of the debtor to whom the extension
was granted CIVIL CODE
EXCEPTION: In ccises of suretyship, where the
sureties are bound in solidum, a different rule applies.
A material alteration of the principal contract, ei'.fected
by the creditor and the principal debtor, without the
· knowledge and consent of the sureties, completely
discharges the sureties from all liabilities ( 4
TOLENTINO, supra at 237-238).
EFFECTS OF COMPENSATION
CONFUSION
Suppose that A and B are solidary debtors of X and
Y, solidary creditors, in the amount of P1000.
1. Total Compensation/Confusion
X also owes A P1000 so compensation/confus101i
may occur.
a. Debtor's Side
i. P1000 solidary debt is extinguished.
ii. Since A was only liable solidarily for
P500, but A's credit of P1000 was used
to compensate/confused; it is as ifApaid
B's portion. Thus B, m,ust reimburse A,
P500. , .
b. Creditor's Side
i. Since X only had P500 of credit but
P1000 of his debts were extinguished, it
is as if X receive P500 on behalf of Y,
thus, X must reimburse Y P500.
2. Partial Compensation/Confusion
X also owes A P700 so compensation/confusion
may occur partially
a. Debtor's Side
i. P700 solidary debt is extinguished
(divisible obligation). P300 still
outstanding.
ii. Since A was only liable solidarily for
P500, but A's credit of P700 was used to
compensate/confused, it is as if A paid
B's portion for up to P200. Thus B must
reimburse A, P200.
iii. Since P300 is still outstanding, A may still
be asked to pay, without prejudice to
being reimbursed fully for the P300 if he
pays,
b. Creditor's Side
i. Since X only had P500 of credit but P700
of his debts were extinguished. it is as if
X receive P200 on behalf of Y, thus, X
must reimburse Y P200.
, ' '\ ) \ ".,,
' ',, ,..
,
.. · ·.' 435 ,
'
.
'\ "
'
A
ONLY ii. Since P300 is still outstanding, X may still
demand P300 without prejudice to any
duty on his part to remit the entire P300
which is ultimately Y's share.
other solidary
REMISSION GRANTED TO SOLIDARY
DEBTORS
The remission made by the creditor of the share
whir.h nffects one of the solidary debtors does not
release the latter from his responsibility towards the
co-debtors, in case the debt had been totally paid by
anyone of them· before the remission was effected
(CIVIL CODE, Art. 1219).
EFFECTS OF REMISSION
Suppose that A and B are solidary debtors of X and
Y, solidary creditors, in the amount of P1000.
OR
1. . Total Remission
X forgives all P1000 debt
a. Debtor's Side
i. P1000 solidary debt is extinguished.
ii. Even if A was the one who secured it, it
is as· if it was granted to each and every
(CIVIL CODE, Art 1220)
no right to demand P500 from B
be09use A did not pay anything to X/Y.
b. Crec;lftor's Side
i. i$i(lce X only had P500 of credit, his act
prevented Y from getting paid for his
shpre. '[hus, X must pay P500 to Y if Y
· . , ,g· ,~psent to the remission.
,:,:,;;t;,t~, :i;?;,
2. Partial Remission
X forgives a portion of A's debt worth P500
·a, Debtor's Side
i; If the remissio_n is intended to benefit A
only
1.) Then A's share is extinguished.
2.) A however.is still a solidary debtor to
the P500 share of B still outstanding,
except that if A pays any amount, B
must reimburse since only B is
ultimately liable.
ii. If the remission is intended to benefit
both A and B
1.) It is as if A and B are now just
solidarily indebted for P500 (or P250
each)
2.) The normal rules of sofidary
debtorship apply but only for P500
debt instead of P1000
b. Creditor's Side
i. Since X remitted P500, he did not impair
the share of Y. No oblig1:1tion to
reimburse.
ii. If X remitted an amount less than P500,
then only X's right is affected such that
he can only enforce payment on the
 ; ~,- , ~ ' !·> ,< '}{i~ ~ '
436 ',::-· : · ,'.-
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,)' <
difference of PS00 and the amount he
remitted.
iii. If X remitted an amount exceeding P500,
then he must reimburse the amount in
excess of P500, and any future
payments received must be remitted to Y
entirely.
EFFECT OF REMISSION OF
AFTER PAYMENT
1. If payment is made first, the remission or waiver
is of no effect. There is no more obligation to
remit. · responsible
2. If remission is made previous to the payment and
payment is made; so/utio indebiti arises. It is
incumbent upon the debtor whose debt is
remitted, to prove the priority of the remission to
the payment to release him from responsibility
towards his co-debtors (DE LEON, Obligations
and Contracts, supra at 259).
EFFECT OF LOSS OR IMPOSSIBILITY OF
PERFORMANCE IN . SOLIDARY
OBLIGATION
1. If the thing has been lost or
iftneJ5restation has
become impossible without · the fault of the
solidary debtors, the, oblig;:Jtion shall be
extinguished (CIVIL COPE, ·1221 par. 1).
2. is
_If the loss or impossibility due to the fault of one
of the solidary debtors {CIVIL CODE, 1221, 'par.
2) or due to a fortuitou,s event after on~ of the
solidary debtors had afready lncurreo in. delay,
the obligation is converted into ,an obHgaflon of
indemnity for damages bti{ the solidary character
of the obligation remains (CIVIL CODE; 1221,
par. 3).
DEFENSES AVAILABLE TO ASOUDARY
DEBTOR: (NP-ShOt)
1. Defenses derived from the ~ature of the
obligation
- total defense; all the solidary co-debtors are
benefited.
Example: Payment or performance, res judicata,
prescription, those which invalidate the contract
such as mistake, violence, and others of similar
nature.
2. Defenses Personal to the debtor
- constitutestotal defense and partial defense.
Examples of Total Defense: Minority, insanity,
and other defenses which are purely personal to
the debtor.
Examples of Partial Defense: Special terms or
conditions affecting his part of the obligation.
OBLIGATIONS AND CONTRACTS
Civil Law
3. Defenses pertaining to the debtor's own
Share
- constitutes a partial defense; only the debtor is
benefited
Example: Share of debtor is not yet due, the
creditor can only compel the share of other co-
debtors.
SHARE
4. Defenses personal to the Other solidary
debtors, but only as regards that part of
the debt for which the latter are
- constitutes partial defense only for the debtor-
defendant (CIVIL CODE, Art. 1222).
Example: The co-debtor's share is not yet due,
so the creditor can only compel the debtor to give
his share. (4 TOLENTINO, supra at 250-251;
"JURADO, Obligation_s and Contracts, supra at
210~212).
DIVISIBLE OBLIGATIONS
cARts·.1223-1225)
DIVISIBLE OBLIGATIONS
Those which have as their object a prestation which
is sus<;;eptibleofpartial performance without the
essence of opligation being changed (JURADO,
Obligations and Contracts, supra at 212).
In determining the divisibility of an obligation, the
following factors may be considered, to wit
1. The will ·or intention of the parties, which· may be
expressed or presumed; .
2. The objective or purpose of the stipulated
prestation;
3. The nature of the thing; and
4. Provisions of law affecting .the prestation
(Spouses Lam v. Kodak Philippines, Ltd., G.R.
No. 167615, January 11, 2016).
INDIVISIBLE OBLIGATIONS
Those which have as their object a prestation which
is not susceptible of partial performance, otherwise,
the essence of the obligation will be changed or its
value will be decreased (JURADO, Obligations and
Contracts, supra at 212).
NOl:E: The divisibility of an obligation should not be
confused with the divisibility of the thing which is the
object thereof (DE LEON, Obligations a[)d Contracts,
supra at 265). ·
 ff+eMi \ 1

MEM:Q-RY Al D
San Seda Univ6fsity Coll,,go of Law - RGCT Bar Operations Center

THREE KINDS OF DIVISION: 2. Obligations which are Not susceptible of partial

1. Quantitative performance;
3. Obligations !ntended by the parties to be
- the thing can be materially divided into parts
indivisible even if the thing or service is physically
and such parts are homogenous to each other;
divisible;
a. Movable- parts are actually separated from
4. Obligations provided by !::aw to be indivisible
each other.
even if the thing or service is physically divisible
b. Immovable-the limits of the parts are fixed
(CIVIL CODE, Art. 1225, pars. 1 and 3).
by metes and bounds.

2. Qualitative PRINCIPLE OF INDIVISIBILITY OF

- the thing can be materially divided but the parts OBLIGATIONS
are not exactly homogenous e.g., division of Creditor cannot be compelled partially to receive the
inheritance; and prestation in which the obligation consists; neither
may the debtor be required to make partial payments
3. Ideal/Intellectual (CIVIL CODE, Art. 1248).
- the thing cannot be separated into material
parts e.g., co-ownership (JURADO, Obligations EXCEPTIONS:
and Contracts, supra at 213). 1. When the obligation expressly stipulates the
contrary (CIVIL CODE, Art. 1248, par. 1);
TEST OF DIVISIBILITY 2. When the obligation is in part liquidated and in
part unliquidated (CIVIL CODE, Art. 1248, par.
Whether the prestation is susceptible of partial -
2);
performance or not (CIVIL CODE; Art. 1225, par. 1).
. .·. 3. When the different prestations constituting the
objects of the obligation are subject to different
The susceptibility of partial compliance should be
.terms af;9:conditions.
understood in the sense of the possibility of realizing
the end or purpose which the obligation seeks to
NOTE: ··wr,~·~, there is plurality of debtors and
attain. Hence, the purpose of the obligation is the
creditors, the;effect of divisible or indivisible character
controlling circumstance. This applies not only to
of the obligation depends on whether the obligation is
obligations to give, but also to obligations to do or not
joint or solipary: ·
to do (JURADO, Obligations and Contracts, supra at
1. If soHdary,
215).
- Arts. 1211 to Art. 1222 of the CIVIL CODE
In obligations to give, even though the object may be
physically divisible, the obligation is still indivisible if it ·. apRMt,.t?l
is provided by law or it is so intended by the parties
2. If joint divisible
(CIVIL CODE, Art. 1225, par. 2).
Art. 1208 .of the CIVIL CODE is applicable;
INSTANCES WHEN PERSONAL :r~~fL
OBLIGATION IS DEEMED DIVISIBLE 3. If joint indivisible
In obligations to do, the obligation shall be considered - Arts. 1209 and 1224 of the CIVIL CODE apply
divisible when it has for its object ( CIVIL CODE, Art. (JURADO, Obligations and Contracts, supra at
1225, par. 3): (EAN) 214).
1. The §xecution of a certain number of days of
work; BREACH OF JOINT INDIVISIBLE
2. The ~ccomplishment of work by metrical units; or OBLIGATION
3. The accomplishment of analogous things which
A joint indivisible obligation gives rise to indemnity for
by their Nature are susceptible of partial
damages from the time anyone of the debtors does
performance.
not comply with his undertaking. The debtors who
may have been ready to fulfill their promises shall not
In obligations not to do, it depends upon the character
contribute to the indemnity beyond the corresponding
of the prestation in each particular case ( CIVIL
portion of the price of the thing or of the value of the
CODE, Art. 1225, par. 4).
service in which the obligation consists (CIVIL CODE,
Art. 1224).
IN SUMMARY, THE INSTANCES WHEN
THE OBLIGATION IS DEEMED
INDIVISIBLE
An obligation is deemed indivisible in the following:
(D-NIL)
1. Obligations to give Qefinite things;
 OBLIGATIONS AND CONTRACTS
Civil Law

OBLIGATIONS WITH 2. Funci6n liquidatoria

- to liquidate the amount of damages to be
PENAL CLAUSE awarded to the injured party in case of breach of
(ARTS. 1226-1230) the principal. obligation (compensatory); and

3. Funci6n estrictamente penal

OBLIGATIONS WITH A PENAL CLAUSE
An obligation to which an accessory undertaking
(penal clause or penalty) is attached for the purpose
I'
of insuring its performance by virtue of which the
obligor is bound to pay a stipulated indemnity or
perform a stipulated prestation in case of breach
(JURADO, Obligations and Contracts, supra at 217).
PRINCIPAL OBLIGATION
- is one which can stand by itself and does not
depend for its validity and existence upon anothe_r
obligation.
ACCESSORY OBLIGATION
- is one which is attached to a principal obligation
and, therefore, cannot stand alQnEl. · ·
PENAL CLAUSE
- is an accessory undertaki11g ,attached to an
obligation to assume greater liability on the:part of the
obligor in case of breach of the.obligation, i.e., the
obligation is not fulfilled, or is partly or frregularly
complied with (DE LEON, Obligat1011s and Cbntracts,
supra at 272). · :, ·
PENAL CLAUSE V .. CONDJTION
- in certain exceptional cases, to punish the
obligor in case of breach of the principal
obligation (punitive). Does not resolve the
question of damages (JURADO, Obligations and
Contracts, supra at 217-218).
A penal clause has a double function: (1) to provide
for liquidated damages; and (2) to strengthen the
coercive force of the obligation by threat of greater
responsibility in the event of breach (Fi/invest Land,
Inc., v. CA, G.R. No. 138980, September 20, 2005).
KINDS OF PENALTY:
1: As to Origin
a. · Legal- constituted by law
b. Conventiqnal--' constituted by agreement of
· the parties
2. As to Pur,pose .
a. Compensatory - indemnity for damages
sµffered, by"the ·:creditor in case of breach of
obligation
b. Punitive - pupii,hing the obligor in case of
b.reach of obligation
3. Asto Effect
a. .Subsidiary- only penalty may be demanded
b .. Joint or Complementary- both penalty and
principal obligation may be demanded
(JURADO, Obligations and Contracts, supra
at 218).

· OBLJG.ATIONS WITH A PENAL CLAUSE

V. CONDITIONAL OBLIGATION

May become Never demandable

demand able upon
default of the
unperformed obligation No obligation before the
and sometimes jointly suspensive condition
There is .already an happens. It is the
with it. exiSt ing obligation from fulfillment of the condition
(8 MANRESA, p. 244, as cited in 4PARAS, supra at th e very beginning. that gives rise to the
325). obligation.

PURPOSE OF PENALTY:
1. Funci6n coercitiva o de garantia
Penalty (an accessory Principal obligation itself
- to insure the performance of the obligation;
obligation) is dependent is dependent upon the
upon the non- uncertain event.
 &¥&¥# \ I ~\~~. 'l;{v •, <{{ 'i' '::: ~"

MEM:v-RY Al D "!:>:· ··.· -~~9 ':·

,1 , ,>

San Bwa Un:ve,sity College of Law - RGCT Bar Operations Center 't ~ ' .. \ ~ ' ' ' ,\

OBLIGATIONS WITH A PENAL CLAUSE

V.GUARANTY

(4 TOLENTINO, supra at 262-263).

OBLIGATIONS WITH A PENAL CLAUSE Obligation to pay the Object of the obligations
penalty is different from of the principal debtor
V. ALTERNATIVE OBLIGATION the principal obligation. and the guarantor is the
same.

Impossibility of the The impossibility of one

principal extinguishes of the · obligations,
also the penalty. without the fault of the. As a rule, penalty is Guaranty subsists even
debtor, leaves the othet extinguished by the when the principal
subsisting. ·· nullity of the principal obligation is voidable,
9R!igJ,1tion. cept when unenforceable or a
·the'•: 'Piln~ ause is natural one.
assumed· bi\ a third
person.
obligor cannot Debtor can ..choose
choose to pay the which pre~tation to fulfill.
penalty to relieve
himself ot the principal, assu
unless this right is perso ,
expressly granted to principle w, ply as in
him. the case of a guaranty.
(Id.at 263).
c.'"
.; '
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OBLIGATIONS WITH A PENAL~CLAUSE
EFFECT OF PENALTY
V. FACULTATIVE OBLIGATION·
GENERAL RULE: The penalty shall substitute the
indemnity for damages and payment of interest in
case of noncompliance (CIVIL CODE, Art. 1226, par.
1).

NOTE: Proof of actual damages suffered by the

Payment of the penalty Power of the debtor to creditor is not necessary in order that the penalty may
in lieu of the principal make the substitution is be demanded. (CIVIL <;ODE, Art. 1228).
obligation can be made absolute.
only by express EXCEPTIONS: (SRF)
stipulation.
1. When there is a §.tipulation to the
contrary;

The creditor can The creditor can never NOTE; The law permits an agreement upon a
demand both demand both penalty apart from the interest. Should there be
prestations as may be prestations. such an agreement, the penalty does not include
granted to him. the interest and as such, the two are different and
distinct things which may be demanded
(Id.at 263).
separately. A stipulation about payment of
additional rate of interest partakes of the nature
 OBLIGATIONS AND CONTRACTS
of a penalty clause which Is sanctioned by law
(DE LEON, Obligations and Contracts, supra at
277).
2. When the obligor Refuses to pay the
penalty;
3. When the obligor is guilty of Eraud (Id. at
277).
REASON: There can be no renunciation of an
action to enforce liability for future fraud because
this is against public policy and against the
express provisions of the law (CIVIL CODE, Art.
1171).
NOTE: Breach of the obligation WITHOUT fraud
cannot constitute one of the exceptions
(Cabarroguis, et al. v. Vicente, L-14304, March
23, 1960).
ENFORCEABILITY OF PENAL.TY
Penalty, as a stipulation in a contract, is demandable
only if there is a breach of the obligation ( CIVIL
CODE, Art. 1226, par. 2).
Like all contractual stipulations, it should not be
contrary to law, morals, good customs, public order
or public policy (CIVIL CODE, Art. 1306).
Where both of the contracting parties are unable to
comply with their respective obligations, although the
breach is not willful or culpable, the penal clause
cannot be invoked by anyone of them to the prejudice
of the other (JURADO, Obligations and Contracts,
supra at 224):
WHEN PENAL CLAUSE CANNOT BE
ENFORCED:
1. The breach is the fault of the creditor;
2. A fortuitous event intervened, unless the debtor
expressly agreed on his liability in case of
fortuitous events (where he acts as "insurer"); or
3. The debtor is not yet in default (4 PARAS, supra
at 339).
LIMITATION UPON THE RIGHT OF THE
DEBTOR IN OBLIGATIONS WITH A
PENAL CLAUSE
GENERAL RULE: Debtor cannot exempt himself
from the performance of the principal obligation by
paying the stipulated penalty ( CIVIL CODE, Art.
1227).
EXCEPTION: Unless this right has been expressly
reserved for him (CI_VIL CODE, Art. 1227).
REASON: If the debtor is allowed to pay the penalty
in lieu of the principal obligation, this would make the
Civil Law
obligation an alternative one (Ul:: Lt.:.ON, supra at
258).
LIMITATIONS ON THE RIGHT OF THE
CREDITOR IN OBLIGATIONS WITH A
PENAL CLAUSE
GENERAL RULE: Creditor cannot demand the
fulfillment of the principal obligation and the
satisfaction of the penalty at the same time ( CIVIL
CODE, Art. 1227).
EXCEPTIONS:
1. Where the right to demand both the principal
obligation and the penalty has been clearly
granted to him ( CIVIL CODE, Art. 1227).
2. Where the creditor has demanded fulfillment of
the principal obligation but it cannot be
performed, thus in such a case, he may demand
the penalty (CIVIL CODE, Art. 1227; 4
TOLENTINO, supra at 265).
NOTE: The clause "performance thereof should
become impossible without his (creditor's) fault" of
Art. 1227 could refer to impossibility due to fortuitous
events, in wllich. case the principal obligation would
be extinguished, i:tnd so will the penal clause (Id. At
266).
PROOF OF ACTUAL DAMAGES
Proof of actual damages suffered by the creditor is
not necessary in order that penalty may be
demanded (CIVIL GODE, Art. 1228).
NOTE: This is applicable only to the general rule
stated in Art. 1226 ofthe Civil Code, and not to the
exceptions (JURADO, Obligations and Contracts,
supra at 225).
Consequently, if the penalty is fixed by the
contracting parties for the purpose of compensating
or substituting the indemnity for damages and the
payment of interests, proof of actual damages
suffered by the obligee or creditor is not necessary in
order that the penalty may be demanded. In this
sense, penalty is exactly identical with what is known
as "liquidated damages" under Art. 2226 of the Civil
Code (Id. at 225).
However, if there is stipulation to the contrary, or if the
obliger or debtor is sued for refusal to pay the agreed
penalty, or if the obligor or debtor is guilty of fraud,
then the obligee or credit0r can demand not only the
satisfaction ofthe agreed penalty, but even damages.
In such case, in order to be able to recover such
damages in addition to the penalty, he must prove the
amount of damages which he had actually suffered
(Id. at 225):
 fPWifrG \ 1 ,. ',:, ': ~?X }\r1;: / '~\.~-,~,~,
MEM:Q~Y AID
San Bed& University CoHege of Law - RGCT Bar Operations Center (<
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WHEN PENAL TY MAY BE REDUCED: 2. The Will of one of the contracting parties in
(PIU) rnrta~contracts (JURADO, supra at 230);
3. gxpiration of the resolutory term or period (CIVIL
1. If the principal obligation has been ,Eartly CODE, Art. 1193, par. 2, JURADO, supra at 230);
complied with;
4. Renunciation or waiver by the obligee or credito.r
2. If the principal obligation has been !rregularly (JURADO, supra at 230);
complied with; and 5. fompromise (CIVIL CODE, Art. 2028; JURADO,
3. If the penalty is iniquitous or !J_nconscionable
supra at 230);
even if there has been no rerformance {CIVIL 6. ,Eortuitous event (CIVIL CODE, Art. 1174);
conF. Art. 1229). 7. Mutual dcsisfrrncA or withdrawal;
8. Impossibility of fulfillment of condition (CIVIL
The power of a judge to reduce the penalty refers only CODE, Art. 1266);
to penalties prescribed in contracts.

EFFECT OF NULLITY OF OBLIGATION

OR PENALTY
If principal obligation is void, penal clause shall also
be void because the penalty is merely an accessory
obligation. But if the penal clause is void, principal
obligation is not affected (CIVIL CODE, Art. 1230).
I PAYMENTOR
PERFORMANCE

HOW PAYMENT MADE

l
EXTINGUISHMENT OF PAYMENT OR PERFORMANCE
· ·Not . only the delivery of money but also the
OBLIGATIONS peii'orm.1:1r:i.c:~(in any other manner, of an obligation
(ARTS. 1231-1304) (CIVIL cobf=,;~rt. 1232).

[Delivery of .a sun:i of money] made as consideration

for a reserved (ight, option or privilege is not
EXTINGUISHMENT OF OBLIGATIONS: governed by Arts. 1232 to 1262, because such
(PLR-MCN-FRAP) "payment carinot be- demanded by the creditor
(Asturias $UQ?fCentral v. Pure Cane Molasses Co.,
1. By fayment or performance (CIVIL CODE, Arts. G.R No. L-40709;August 1, 1934).
1232-1261); ...
2. By the 1,oss of the thing due (CIVIL CODE, Arts.
NOTE: "Payment" is a technical term in law used
1262-1269);
specifipaJly _to refer to the performance of an
3. By the condonation or ,Remission of the debt . obiigatron. Not all delivery of a sum of money is
(CIVIL CODE, Arts. 1270-1274);
considered "payment" in law.
4. By the confusion or Merger of the rights of the
creditor and debtor (CIVIL CODE, Arts. 1275-
1277);' AMOUNT CREDITED TO THE ACCOUNT
5. By fompensation (CIVIL CODE, Arts. 1278- OF THE PAYEE EXTINGUISHES A
1290); CONTRACTUAL OBLIGATION
6. By Novation (CIVIL CODE, Arts. 1291-1304); As the transaction is for the establishment of a
7. fulfillment of a resolutory condition; telegraphic or cable transfer, the agreement to remit
8. ,Rescission; creates a contractual obligation and has been termed
9. Annulment; . a purchase and sale. The purchaser of a telegraphic
10. ~rescription (CIVIL CODE, Art. 1231, par. 2); transfer upon making payment completes the
transaction insofar as he is concerned, though insofar
NOTE: Enumeration under Art. 1231 is NOT as the remitting bank is concerned the contract is
exclusive (JURADO, Obligations and Contracts, executory until the credit is established. Thus, once
supra at 230). the amount represented by the telegraphic transfer
order is credited to the account of the payee or
OTHER FORMS OF EXTINGUISHMENT appears in the name of the payee in the books of the
NOT UNDER ART.1231: (DWERC-FMI) receiving bank, the ownership of the telegraphic
1. Death of one of the contracting parties in purely transfer order is deemed to have been transmitted to
personal obligations (CIVIL CODE, Art. 1311, the receiving bank. Chinatrust is, thus, deemed to
par. 1; JURADO, Obligations and Contracts, have fully executed the telegraphic transfer
supra at 230); agreement and its obligation to respondent was
 OBLIGATIONS AND CONTRACTS
Civil Law
I

extinguished. Hence, respondent could no longer ask 3. !ndivisibility

for rescission of the agreement (Chinatrust (P/Jils.) - payment or performance must be indivisible
Commercial Bank v. Turner, G.R. No. 191458, July 3, (JURADO, Obligations and Contracts, supra at
2017). 247).

BURDEN OF PROVING PAYMENT PRINCIPLE OF

When the existence of a debt is fully established by INTEGRITY/COMPLETENESS OF
the evidence, the settled rule is that the burden of PAYMENT
proving extinguishment by payment devolves upon
A debt to deliver a thing (including money) or 'ro
the debtor who. pleads payment or offers such a
render service is not understood to have been paid
defense to the claim of the creditor rather than on the
unless the thing or service has been completely
latter to prove non-payment. The debtor has the
delivered or rendered, as the case may be. Partial or
burden of showing with legal certainty that the
irregular performance will not produce the
obligation has been discharged by payment. Only
extinguishment of an obligation as a general rule.
when the debtor introduces evidence that the
Neither a late partial payment forestalls a _long-
obligation has been extinguished does the burden
expired maturity date (Selegna Management & Dev.
shift to the creditor (Cham v. Paita-Moya, A.G. No.
Corp. v. United Coconut Planters Bank, G.R. No.
7494, June 27, 2008).
165662, May 3, 2006).
There is a disputable presumption that money paidby
one to another was due to the latter (BULl;S OF: EXCEPTIONS TO PRINCIPLE OF
COURT, Rule 131, Sec. 3 (f)). • ' INJEGRtT¥:
' "'.., ,> ,, ½-.,

'h )Mherf the~\<:;ibligation has been substantially

REQUISITES OF PAY~~J:,··,JPf~PeI::-, perfoJine\'..l'.'in gqod faith, the obliger may recover
CMES) / '""'.j' i/. . as,tpou(Jb ther,e:tiad been a strict and complete
1. eayor or the person who .pays;, '/' :" •·.. fulfilli;nen1, , test
\damages suffered by the
obligee (~/VIL_.G~DE, Art. 1234); and
2. eaye,!! or the person to whom p1;1yment is made;
3. !hing or object in which,Jpar!)'lebt mus~,consist;
2, Wheci the otiiig~eadcepts performance, knowing
4. The fause thereof; : .-·"' .. { 1 its iricompleleness ior irregularity and without
5. _Manner, time, and plac~ of payment; : _ .
exp~~ssjng ai;i}'prc5jt'ist or objection; based on the
6. The imputation of gxpen"se~ 'pccaslo,n{=ld by it;
and ': . ,.-/:. \_ · :t, \ · pril)tjpie,of e};toppet"(C/VIL CODE, Art. 1235).
t,_ '

7. The ~pecial parts whic~ 1rr(ay tpodffylJi¢\~ame

.,~~l~~Thi,s'pro~isjpn may be read alongside the
and the effects th~y \;ienera1ly pr<:t~~~·j 4
presomp~i6ns unqer Article 1176.
TOLENTINO, supra at. 274; \PE -,~EQN?
Obligations and Contracts, sµpra af2~8-299): ·
"'"'..,,-,, "t-:,, ', .EL.EM~NTS , OF SUBSTANTIAL
KINDS OF PAYMENT: COM{>l,.IJ\NCtl IN GOOD FAITH:
1. Normal 1. ·, l]'te;ofj}igbr has made substantial performance,
·.. , \v~iefl is determinable by the unique
- when the. debtor voluntarily performs Jhe. ·
prestation as agreed upofl. circumstances of each case.
2. The obligor is in good faith (CIVIL CODE, Art.
1234)
2. Abnormal
- when debtor is forced by means of a judicial
proceeding either to comply with the prestation or INDIVISIBILITY OF PRESTATION
pay indemnity (4 TOLENTINO at 274-275). Creditor cannot be compelled partially to receive the
prestation in which the obligation consists; neither
CHARACTERISTICS OF A VALID may the debtor be required to make partial payments
(CIVIL CODE, Art. 1248). •
PAYMENT: (13)
1. !dentity EXCEPTIONS:
- only the prestation agreed upon and no other 1. When the obligation expressly stipulates the
must be complied with contrary (CIVIL CODE, Art. 1248, par. 1);
2. When the obligation is in part liquidated and in
2. !ntegritJ. part unliquidated ( CIVIL CODE, Art. 1248, par.
- the thing or service must be completely 2);
delivereoor rendered 3. When the nature of the obligation is susceptible
to partial fulfilment as when:
 f5 #& \ I
MEM:v-RY Al D
San Bede University College of Law - RGCT Bar Operations Center
a. There are different prestations which are
subject to different terms or conditione; or
IJ. Both parties know ttmt lilot obligation cannot
IJe rec1~u11c1l.ily 8xpected to be performed at
one time.
4. In case of partial compensation.
INDIVISIBILITY V. INTEGRITY
There is an obligation to pay P5000.
1. Integrity refers to the extinguishment of the
obligation only upon payment of P5,000 in total.
It does not however consider if the PS,000 is
delivered in one or 2 installments.
2. The presumption of law is that any obligation is
deemed indivisible. Thus, in general, all PS,000
must be delivered in one instance of payment to
satisfy both integrity-and indivisibility.
IDENTITY OF PRESTATION
"The very same thing or act must be delivered or
done"
1. Real Obligations . . <<;~';- automobile as the object and the loan of P5, 000 as
a. Specific Obligations · :t;;}:Zicthe purchase price (JURADO, Obligations and
The debtor of a thing cannot compel the >:1~VCqntracts, supra at 246).
creditor to receive a different one, although · '~}'~!f;;:;:fr:
the latter may be of the sam~ value as, or · '
more valuable than that which is due (CIVIL
CODE, Art. 1244, par.1)
_1__..,__T_h_e~re,...._rri_u_s.... -_-P_e_rf_o-rm_a_n_c_e-of-th_e_p-re-s-ta-t-io_n_i_n
b. Generic Obligations
When the obligation consists in the delivery
of an indeterminate or g~neric ihipg, whpse
quality and circumstances have not bee11
stated, the creditor cannot den:iand thing cif
superior quality. Neither can the;. debtor
deliver a thing of inferior ·quality (CIVIL
CODE, Art. 1246).
2. Personal Obligations
In obligations to do or not to do, an act or
fur IJear a nee cannot be substituted by another cl Ct
or forbearance against the obligee's will (CIVIL
CODE, Art. 1244, par. 2)
EXCEPTIONS TO THE RULE
IDENTITY OF PAYMENTS:
1. In case of dac/on en pago, where ;:i µrope1iy is
alienated to the creditor in satisfaction of a debt
in money (CIVIL CODE, Art. 1?45).
2. In case of Fac11ltr1tivP. ohlig;:itions, where only one
thino is r!11P. but the debtor has reserved the right
to substitute it with another (CIVIL CODE, Art.
1206).
NOTE: In its modern concept, what actually takes
place in dacion en pago is an objective novation of
the obligation where the thing offered as an accepted
equivalent uf the performance of an obligation is
considered as the object of the contract of sale, while
the debt is considered as the purchase price
(Mamerta vda. De .lnymP. v r-A, GR. No. 128669,
October I/, 2002). Nov.:ition is nnt m1 1-m:Hption to the
rules on poymont because it is a different modA nf
extinguishing obligations. Novation does not amount
to payment (See CIVIL CODE, Art. 1231).
DATION IN PAYMENT (DAG/ON EN
PAGO)
Dation in payment, whereby property is alienated to
the creditor in satisfaction of a debt in money, shall
be governed by the law of sales (CIVIL CODE, Art
1245).
Example: If D executed a promissory note in 2021
promising to pay to C P5,000 within 4 years from the
execution of the note, and in 2024, when the
obligation became demandable, the two entered into
an agreement by virtue of which D shall deliver his
automobile to C as the equivalent of the performance
of the obligation, the effect is the transformation of the
previous contract into a contract of sale with the
)t;
REQLJIStTes OF DAG/ON EN PAGO:
(PDA)
t_be
__
lieu of payment (animo solvendi) which may
consist in the d!31ivery of a corporeal thing or a
rea!,fif:Jl)h~r,:~~I~Jlit against a third person;
2. There? must.,:pe"some Difference between the
a prestation due and that which is given in
substitution (aliud pro alio); and
· t, ~:: · ;there must be an ~greement between the
•cH'ftllfor and debtor that the obligation is
immediately extinguished by reason of the
performance of a prestation different from that
due (Aquintey v. Tibong, G.R. No. 166704,
December 20, 2006).
DATION IS NOT A SALE
The undertaking really partakes in one sense of the
ON nature of sale, thal is, l11e c1eLlitor is really buying the
thing or property of-the debtor, payment for which is
to be charged against the debtor's debt. /\s such, the
vendor in go,ml faith shall be responsible, for the
existence and legality of the credit at the time of the
sale but not for the solvency of the debtor, in specified
circumstances (Lo v. KJS Eco-Formwork System
Phil., G.R. No. 149420, October 8, 2003).
NOTE: Dalio11 i11 µay1mc:11t is NOT a sale (only
partakes of the "nature of sale") as it is a special mode
of payment.
 OBLIGATIONS AND CONTRACTS
SALE V. DAC/ON EN PAGO
Obligations are created Obligations
are
1. The buyer has to extinguished
pay the price 1. The "buyer" (creditor)
2. The seller has to does not undertake
deliver the object any obligation
2. The "seller" (debtor)
delivers payment.
PAYMENT OF MONETARY
OBLIGATIONS
The payment of debts in.money shall be made in the
currency stipulated, and if it is not possible to deliver
· such currency, then in the currency which is legal
tender in the Philippines (CIVIL CODE, Art. "1249, par.
2).
All monetary obligations shall be settled in the
Philippine currency which is legal tender in the
Philippines. However, the parties may agree that the
obligation or transaction shall be settled in any other
currency at the time of payment (R.A. No. fJ183, Sec.
1).
There is no longer any legal impediment to having
obligations or transactions paid in a foreign currency
as long as the parties agree to such arrangement
(DBP. v. CA, G.R. No. 138703, June 30, 2006).
NOTE: Money is a generic object An obligation to
deliver P100 can be paid by delivering any validly
circulating Philippine legal tender with total face value
of P100 such as one 100-peso bill, or 2 50-peso bills,
or 10 10-peso coins.
LEGAL TENDER
All notes and coins issued by the BSP are fully
guaranteed by the Republic and shall be legal tender
in the Philippines for all debts, both public and private
(R.A. No. 7653, as amended, Sec. 52).
COINS CONSIDERED AS LEGAL
TENDER
Maximum amount of coins to be considered as legal
tender:
1. 1-Peso, 5-Peso and,10-Peso coins:
In amounts not exceeding P1 ,000.00; and
Civil Law
2. 25-centavo coin or less:
In amounts not exceeding P100.00 (Circular 537,
Series of 2006).
NOTE: Notes of the Bangko Sentral, regardless of
denomination, are legal tender up to whatever
amount (See R.A. No. 7653, as amended, Sec. 52).
INSTRUMENTS OF CREDIT ARE NOT
MONEY
Delivery of promissory notes payable to order or bills
of exchange or other mercantile documents shall not
produce the effect of payment (CIVIL CODE, Art.
1249, par. 2).
Checks representing demand deposits do not have
legal tender power and their acceptance in the
payment of public and private debts is at the creditor's
option (R.A. No. 7653, as amended, Sec. 60).
EFFECT OF DELIVERY OF CREDIT
INSTRUMENTS
In the meantime, the action derived from the original
obligation shall be held in the abeyance (CIVIL
CODE, Art. 1249, par, 2).
Illustration: D owes C P1 M due on January 1, 2021.
On dematid, D writes a check in the amount of P1 M
dated February 1, 2021, delivering it on January 1,
2021. C accepted the check. Until February 1, 2021,
C cannot file an action on the ground that D is in delay
becaus~,action on the debt was held in abeyance by
the delivery and acceptance of the check dated
February 1, 2021.
WHEN DELIVERY OF CREDIT
INSTRUMENTS DEEMED PAYMENT OF
MONEY
1. When they have been cashed or credited
(collected)
a. Instruments executed by third persons and
delivered by the debtor to the creditor.
b. Note executed by the debtor himself and
delivered by the debtor to the creditor (4
TOLENTINO, supra at 301 ).
2. When through the fault of the creditor
they have been impaired
Credit Instruments are impaired when they are
validly discharged by some act of the creditor.
Example: By current banking practice, a check
becomes stale after more than six (6) months. In
fact a check long overdue for more than two and
one-half. years is considered stale (Pacheco v.
CA, G.R. No. 1266270, December 2, 1999). Stale
check is valueless and, therefore, should not be
paid (International Corporate Bank v. Spouses
 MAEM:Q~Y Al D
San Seda Unil/f/rsity College of Law RGCT 081 Operations Center
Gueco, G.R. No. 141968, February 12. 2001).
The payee may request the drawer to issue a
new and current check in his favor to replace the
stale check or, if the drawer refuses and there
has been no prescription, the payee can pursue
a legal action to collect on the obligation of the
drawer.
EFFECT OF EXTRAORDINARY
INFLATION OR DEFLATION
In case an extraordinary inflation or deflation of the
currency stipulated should supervene, the value of
the currency at the time of the establishment of the
obligation shall be the basis of payment, unless there
is an agreement to the contrary {CIVIL CODE. Art.
1250)
INFLATION OR DEFLATION
There is inflation when there is an increase in the
volume of money and credit relative to available
goods resulting in a substantial ;:ind continuing rise in
the general price level (Huibonhoa v. CA, G.R. No.
95897, December 14, 1999).
Deflation is the reduction in volume and circulation of
the available money or credit, resulting in a decline of
the general price level; it is the opposite of inflation
(DE LEON, Obligations and Contracts, supra at 338).
REQUISITES OF EXTRAORDINARY
FLUCTUATION: (DCE)
1. There is an official Qeclarati_on of extraordinary
inflation or deflation from the Bangko Sentral ng
Pilipinas (BSP);
2. The obligation is fontractual in nature; and
3. The parties fxpressly agreed to consider the
effects of the extraordinary inflation or deflation
(Equitable PC/ Bank v. Sheung Ngor, G.R. No.
171545, December 19, 2007).
Even if the price index of the goods and services may
have risen during lhe intervening period (Sangrador
v. Valderrama, G.R. No. 79552, November 29, 1988),
this increase, without more, cannot be considered as
resulting in "extraordinary inflation" as to justify the
application of Article 1250 (Telengtan & Sons, Inc. v.
United States Lines, Inc., G.R. No. 132284, February
28, 2006). ·
There must be a declaration of such extraordinary
inflation or deflation by the Bangko Sentral. Without
such declaration, the creditors cannot demand an
increase, and debtors a decrease, of what is due to
or from them (Ramos v. CA, G.R. No. 119872, July 7,
1997).
WHO MAY MAKE PAYMENT
WHO MAY PAY THE OBLIGATION
The following may pay or perform the obligation:
1. The debtor himself or his legal representative;
and
2. Any third person (JURADO, Obligations and
Contracts, supra at 233; CIVIL CODE, Arts.
1236-1238).
PAYMENT MADE BY A THIRD PERSON
WHO IS AN INTERESTED PARTY
One who has an interest in the extinguishment of the
obligation, such as:
1. Co-debtors;
2. Sureties;
3. Guarantors; and
4. Owners of mortgages property (4 PARAS, supra
at 352).
NOTE: Even without the knowledge of the debtor, a
person interested in the fulfillment of the obligation
can pay (CIVIL CODE, Art. 1302, par. 3).
. NOTE: The. creditor cannot refuse valid tender of
payment' frotn the abovementioned individuals
(Monte de Piedad v. Rodrigo, G.R. No. L-42928,
August 18, 1936).
EFFECTS OF PAYMENT BY INTERESTED
THIRD PERSQt:,I:
1. The·. otjijgp~o11 is extinguished (JURADO,
Obligations 'and Contracts, supra at 233);
2. The debtor is to fully reimburse the third person
who is an interested party; and
, 3. · The third person interested is subrogated to the
rights of the creditor (4 PARAS, supra at 353).
PAYMENT MADE BY A THIRD PERSON
WHO IS NOT AN INTERESTED PARTY
BUT WITH DEBTOR'S CONSENT
GENERAL RULE: The creditor is not bound to
accept payment or performance by a third person
who has no interest in the fulfillment of the obligation
(CIVIL CODE, Art. 1236, par. 1).
EXCEPTION: Unless there is a stipulation to the
contrary (CIVIL CODE, Art. 1236).
EFFECTS OF- AUTHORIZED PAYMENT
OF DISINTERESTED THIRD PERSON:
1. Third person is entitled to full reimbursement.
2. Third person is entitled to legal subrogation, or
the right to bring actions against the debtor as
mortgagee or against third persons, i.e. third
person steps into the shoes of the creditor (4
PARAS, supra at 360).
:'):·,/· -.~· <: './I''::.~ .
OBLIGATIONS AND CONTRACTS
, . '446 · · •, ·;\ .,
a;; \ ' rl
~ '· f \ • ~ ' ? ,
PAYMENT MADE BY A THIRD PERSON
WHO IS NOT AN INTERESTED PARTY
AND WITHOUT KNOWLEDGE OR
AGAINST THE WILL OF THE DEBTOR
GENERAL RULE: Whoever pays for another may
demand from the debtor what he has paid (CIVIL
CODE, Art 1236, par. 2).
EXCEPTION: If payment was made without the
knowledge or against the will of the debtor. In such
case, he can only recover insofar as the payment has
been beneficial to the debtor, also known as
beneficial reimbursement (CIVIL CODE, Art. 1236,
par 2; 4 PARAS, supra at 353).
EFFECT OF UNAUTHORIZED PAYMENT
BY DISINTERESTED THIRD PERSON
1. Third person can only be reimbursed insofar as
payment has been beneficial to the debtor (4
PARAS, supra at 353).
If debt or obligation has been previously
extinguished TOTALLY then the third person wh9
pays without knowledge/consent Qfthe debtor
would not be able to recover,anything from the
latter (JURADO, Obligations and Contracts,
supra at 236). · of a donee ln'.ordinary donations;
Remedy: Third person may proceed against the
creditor who was unduly pl'lid, · applying the
principle of unjust enrichmentqd. at 236): .
If debt or obligation has been previously
extinguished PARTIALLY then thir,c:l person who
pays would be able to recqver onfy ,that parfof
the amount which he has paid.which corresponds
·to the part of the obligation not yet extinguished
(beneficial reimbursement (Id, at 236). · FREE DISPOSAL OF THING DUE AND
NOTE: From the viewpoint of the debtor, the
provision of the law that the third person or payor
"can recover only insofar as the payment has
been beneficial to the debtor," when made
against his express will, and is a defense
personal to the debtor. In order to be subjectto
the said limitation, debtor must oppose payment
before or at the time the same was made (Id. at
236).
2. Third person cannot compel the creditor to
subrogate him in his rights, such as those arising
from a mortgage, guaranty, or penalty paid
(CIVIL CODE, Art. 1237).
SUBROGATION
The person who pays for the debtor is put into the
shoes of the creditor. The payer acquires not only the
right to be reimbursed for what he has paid but also
Civil Law
all other rights which the creditor could have
exercised pertaining to the credit either against the
debtor or against third persons, be they guarantors or
possessors of mortgages subject to stipulation in a
conventional subrogation (CIVIL CODE, Art. 1303).
In subrogation, however, there is no real extinction of
the obligation, but only a change of creditor (DE
LEON, Obligations and Contracts, supra at 310).
REIMBURSEMENT
The third person entitled by reason of payment has
merely the bare right to be refunded to the extent
provided in the second paragraph of Art. 1236 without
the right to the guarantees and securities of the
original obligation. In subrogation, however, there is
no real extinction of the obligation, but only a change
of creditor (DE LEON, Obligations and Contracts,
supra at 310).
PAYMENT MADE BY A THIRD PERSON
WHO DOES NOT INTEND TO BE
REIMBURSED BY THE DEBTOR
(GRATUITOUS PAYMENTS)
1, Presumed -to be a donation. Therefore, the
consent ofthe deb'tor is necessary, as in the case
2. Once the consent of the debtor is secured, the
rules,"on ordiqary donations will apply;
3. lftheconsenf;is not'secured, Arts. 1236 and 1237
will apply; and
4, As' f~r as tM cf(')qltor who has accepted the
payment is concerned, the debtor's consent is
immaterial; the payment is valid in any case
(JURADO, Obligations and Contracts supra at
238)., . ..
CAPACITY TO ALIENATE REQUIRED
In obligations to give, payment by one who does not
have the free disposal of the thing due and capacity
to alienate it is not valid (CIVIL CODE, Art. 1239).
TO WHOM PAYMENT MADE
TO WHOM PAYMENT MUST BE MADE
1. The person in whose favor the obligation has
been constituted;
2. His successor in interest; or
NOTE: The debtor who, before having
knowledge of the assignment of a credit to a third
person, pays the original creditor, shall be
released from the obligation (CIVIL CODE, Art.
1626),
3. Any person authorized to receive it (CIVIL CODE,
Art. 1240).
 +MM% \/

MEM:v~YAID
San Seda University Collega of law - RGCT Bar Operations Center

NOTE: Person authorized to receive payment
refers not only to a person authorized by the
creditor, but also to a person authorized by law to
do so (JURADO, Obligations and Contracts
supra at 240).
EFFECT OF PAYMENT TO THE WRONG
PERSON
When payment is made to the wrong party, the
obligation is not extinguished as to the creditor who
is without fault or negligence even if the debtor acted
in utmost good faith and by mistake as to the person
of the creditor or through error induced by fraud of a
third person (Allied Banking Corp. v. Lim Sia Wan,
G.R. No. 133179, May 27, 2008).
Payment made to a third person shall also be valid
insofar as it has redounded to the benefit of the
creditor (CIVIL CODE, Ari. 1241).
PAYMENT AFTER JUDICIAL ORDER OF
RETENTION
Payment made to the creditor by the debtor after the
latter has been judicially ordered to retain the debt
shall not be valid (CIVIL CODE, Art. 1243).
Such payment must be made to the proper officer of
the court issuing the writ of attachment or
garnishment in conformity with the provisions of the
Rules of Court (JURADO, Obligations and Contracts,
supra at 244).

EXCEPTIONS: GARNISHMENT
1. Payment made to a third person but which has The proceeding for the purpose of subjecting a
redounded to the benefit of the creditor (CIVIL debtor's credit to the payment of his debt to another.
CODE, Art. 1241, par. 2); and It is an attachment by means of which the plaintiff
2. Payment rnade in good faith to any person in seeks to subject to his claim the property of the
possession of the credit shail release the debtor defendant in the hands of a third person or money
(CIVIL CODE, Art. 1242). . \i{:owed by such. third person or garnishee to the
Ntdefendant (Manila Remnant Co., Inc. v. CA, G.R. No.
NOTE: The "possession" referred to in Articl(f;; · .J,(112.82, May~p, 1994).
1242 is possession of the credit itself and not .. i <:~::J:,';;{••;::;:~~
merely of the document or instrument~yiclencing OTHER E~l;fJIENTS OF PAYMENT
the credit. Hence, mere possession of the
instrument (unless transferable by detiv~ry) does
not entitle the holder to payrnent r\Oi" does EXPENSEs,!df PAYMENT
payment release the debtor (DE LEON, ·• Unless it.•is qtherwise .stipulated, the extrajudicial
1
Obligations and Contracts, ~'!wa at 317). :i expens. •-· re uired the payment shall be for the
· • accoun ., . With regard to judicial costs,
THE DEBTOR IS RELIEVED FROM · the Rules shall govern (CIVIL CODE, Art.
PROVING BENEFIT TO THE"C.RE't>JTOR 1247).
IN CASE OF:.
,;1,J,t;ie debtor is the one principally benefitted
1. Subrogation of the payer in the cred1for's rights as e IS freed from the obligation by reason of the
after the payment; payment (PINEDA, Obligations and Contracts,
2. Ratification by the creditor of the payment to the (2009), p. 278 [hereinafter PINEDA, Obligations and
third person; or Contracts]).
3. Estoppel on the part of the creditor (CIVIL CODE,
Art. 1241 par. 2). If the debtor changes his domicile in bad faith or after
he has incurred in delay, the additional expenses
NOTE: In such cases, the benefit to the creditor is to shall be borne by him (CIVIL CODE, Art. 1251).
be presumed. Through estoppel, an admission or
representation is rendered conclusive upon the JUDICIAL COSTS
person making it and cannot be denied or disproved
Judicial costs are the statutory amounts allowed to a
as against the person relying thereon (CIVIL CODE,
party to an action for his expenses incurred in the
Art. 1431).
action.
PAYMENT TO INCAPACITATED The costs of an action shall, as a rule, be paid by the
PERSONS losing party (RULES OF COURT, Rule 142, Sec. 1).
Payment to a person \.Vho is incapacitated_ to The court may, however, for special reasons, adjudge
administer his property shall be valid if he has kept that either party shall pay the costs, or that the same
the thing delive1ed, ur im;ufa:11 c1s Lile µc1y1r1e11l hc1s be divided, as may be equitable.
been beneficial to him.
No costs are allowed against the Government, unless
otherwise provided by law (DE LEON, Obligations
and Contracts, supra at 325).
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PLACE OF PAYMENT
1. Place stipulated by the parties;
2. If there is no stipulation and the obligation is to
deliver a determinate thing, payment shall be
made at the place wherever the thing might be at
the time the obligation was constituted; or
3. In any other case, the payment shall be made at
the domicile of the debtor (CIVIL CODE, Art.
1251).
NOTE: The order as above enumerated is
successive and exclusive as may be gleaned from
the provision itself (DE LEON, Obligations and
Contracts, supra at 347).
Art. 1251 governs unilateral obligations. Reciprocal
obligations are governed by special rules (JURADO,
Obligations and Contracts, supra at 267),
APPLICATION OF PAYMENTS
Designation of the debt to which thf.¼ payment must
be applied when the debtor has several obligations of
the same kind in favor of the same creditor ( CIVIL
CODE, Art. 1252).
NOTE: "Application of payments" is not a "special
mode of payment" but a set of_ rules as to how a
specific tender of payment shalf be applied in cases
where a debtor is indebted under_ several obligations
to the same creditor.
Example: D borrowed P500 from C on January 1,
2021. He borrowed another P300 from Con February
1, 2021. These two loans are distinct obligations.
Thus, following the general rules, if D pays P300 to C
on March 1, 2021, the tender of payment must apply
to partially extinguish the first loan and not to totally
extinguish the second 'loan.
REQUISITES: (OSOi)
1. There must be only Qne debtor and only one
creditor
NOTE: This requisite does not exclude solidary
debts.
2. There. must be two or more debts of the §ame
kind;
3. All the debts must be Que; and
EXCEPTIONS:
a. When there is a stipulation to the contrary
b. The application of payment is made by the
party for whose benefit the term or period has
been constituted (CIVIL CODE, Art. 1196).
4. Amount paid by the debtor is !nsufficient to cover
the total amount of all the debts (JURADO,
Civil Law
Obligations and Contracts, supra at 268).
NOTE: Otherwise, there would be no necessity
of designating the debts to which payment shall
be applied (Id. at 268).
RULES ON APPLICATION OF PAYMENT
1. The debtor has the first choice; he must indicate
at the time of making payment, and not
afterwards, which particular debt is being paid. If,
in making use of his right, the debtor applied the
payment to a debt; he cannot later claim that. it
should be applied to another debt (DE LEON,
Obligations and Contracts, supra at 349);
NOTE: The right is available to him only at the
time when payment is made. If he does not
exercise such right, the same is extinguished and
the application would then be governed by the
provisions of Art. 1254, unless the creditor, in the
meantime, makes the application by giving to the
debtor, who accepts it, a receipt in which
application of the payment is made (JURADO.
Obligations and Contracts, supra at 271).
2. The right once exercised is irrevocable unless the
creditor consents (JURADO, Obligations and
Contracts, supra at 270);
3. If the creditor has not also made the application,
or if the application is not valid, the debt, which is
most onerous to thE? debtor among those due,
shall be deemed to_ have been satisfied (CIVIL
CODE, Art. 1254, par. 1);
4. If the debts due are of the same nature and
burden, the payment shall be applied to all of
them proportionately (CIVIL CODE, Art. 1254,
par. 2); and
5. If neither party has exercised its option and there
is disagreement as to debts to which payment
must be applied, the court will apply the payment
according to the justice and equity of the case,
taking into consideration all its circumstances
(Premiere Development Bank v. Central Surety &
Insurance Co., GR. No. 176246, February 13,
2009).
NOTE: If the debtor does not apply, the creditor may
designate which debt is paid by specifying in the
receipt. Thus, the creditor has the right to propose
subject to the express or tacit approval of the debtor
(JURADO, Obligations and Contracts, supra at 271).
Limitations:
1. Creditor cannot be compelled to accept partial
payments (CIVIL CODE, Art. 1248, par'. 1);
2. Generally, application of payment should be on
the interest first (CIVIL CODE, Art. 1253);
3. Debtor cannot apply payment to a debt that is not
yet liquidated (CIVIL CODE, Art. 1248, par. 2);
 " ' \,< ( > \ C <.- ~ L ~

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4. Debtor cannot choose a debt with a period for the
benefit the creditor when the period has not yet
arrived (CIVIL CODE, Art. 1252);
5. When there is an agreement as to the debts
which should be paid first, debtor cannot vary the
agreement (CIVIL CODE, Art. 1252).
INTEREST EARNED PAID AHEAD OF
PRINCIPAL
If the debt produces interest, payment of the principal
shall not be deemed to have been made until the
interests have been covered (CIVIL CODE, Art.
1253).
Art. 1253 applies only in the absence of a verbal or
written agreement to the contrary; in other words, it is
merely directory, and not mandatory. It means that
the benefits of Art. 1253 may be waived by way of
stipulation (Baltazar v. Lingayen Gulf Elec. Power
Co., G.R. No. L-16236, June 30, 1965).
NOTE: The rule under Article 1253 that payments -·
shall first be applied to the interest and not to the,
principal shall govern if two facts exist: (1) the debt-
produces interest (e.g., the payment of interest is· i''"~NOTE: No hard and fast rule, however, can be put up
expressly stipulated) and (2) the principal remains
unpaid. The exception is a situation covered under
Article 1176, i.e., when the creditor waiy~s payment
of the interest despite the presence of (1} and (2)
above. In such case, the payments shall obviously be
credited to the principal (Marquez V. Elisan Credit
Corp. GR. No. 194642, April 6, 2015).
LEGAL APPLICATION OF PAYMENT
The debt which is most onerous to the debtor;-among
those due, shall be deemed to have been satisfied
(CIVIL CODE, Art. 1254).
THE RULE APPLIES:
1. When the payment cannot be applied in
accordance with the preceding rules; or
2. If the application cannot be inferred from the
circumstances (JURADO, Obligations
Contracts, supra at 272).
REASON FOR RULE ON THE MOST
ONEROUS DEBT IN APPLICATION OF
PAYMENTS
In making the application of payments, the law
considers particularly the interest of the debtor. It is
assumed that if the debtor had chosen the debt to be
paid, he would have relieved himself first of t_he most
burdensome debt.
WHICH ;IS MORE ONEROUS:
1. Oldest debts are more onerous than more recent
ones;
2. Interest bearing debts are more onerous than
those which do not, even if the latter were
incurred at an earlier date;
3. Between interest bearing debts, the debt With a
higher rate of interest is more onerous;
4. A secured debt is more onerous than that which
is not;
5. A debt in which the debtor is principally bound is
more onerous than that which he is merely a
guarantor or surety;
6. A debt in which he is solidarity bound is more.
onerous than that which he is only a sole debtor;
7. Within a solidary obligation, the share which
corresponds to a solidary debtor would be most
onerous;
8. An obligation for indemnity is more onerous than
that which is by way of penalty; or
9. Liquidated debts are more onerous than
unliquidated ones (JURADO, Obligations and
Contracts, supra at 273-274).
· (4.PP.Bf.S,,, $UPrn at 415).
REMEDY IF ONEROUSNESS NOT
. CLEARL DETERMINABLE y
When it is fairly impossible to determine which of the
debts due is the most onerous or burdensome to the
debtor, or wh~n tl)~A1ebts due are of the same nature
. and burden, paymenfshall be applied proportionately
(JURADO, Obligations and Contracts, supra at 274).
ll!U~*~tion: Applying both rules, should a debtor
· have 'two debts of the same nature and burden
amounting to P100 and P200 and he pays only P100,
the same shall not be applied proportionately as the
creditor cannot be compelled to accept partial
payment. Consequently, his payment shall be fully
applied to the debt amounting to P100.
and
SPECIAL FORMS OF PAYMENT
There are three special forms of payment under the
CIVIL CODE, namely:
1. Dation in payment (CIVIL CODE, Art. 1245);
2. Payment by cession (CIVIL CODE, Art. 1255);
3. Tender of payment and consignation (CIVIL
CODE, Arts. 1256-1261).
PAYMENT BY CESSION
It is the process by which a debtor transfers all the
properties not subject to execution in favor of his
creditors so that the latter may sell them, and thus
apply the proceeds to their credits ( 4 PARAS citing
Manresp and Castan, supra at 417).
 OBLIGATIONS AND CONTRACTS
Civil Law

The debtor may cede OJ assign his property to his

creditors in payment of his debts. This cession,
unless there is stipulation to the contrary, shall only
release the debtor from responsibility for the net Debtor is not Debtor must be partially
proceeds of the thing assigned. The agreements necessarily in state of or relatively insolvent.
which, on the effect of the cession, are made between financial difficulty.
the debtor and his creditors shall be governed by
special laws (CIVIL CODE, Art. 1255).

Requisites: (PMIAA) Thing delivered is Universality of property

1. _elurality of debts; considered as of debtor is what is
2. _More than one creditor; equivalent of ceded.
3. Partial or relative !nsolvency of the debtor performance.
4. ~bandonment of all debtor's property not exempt
from execution (unless exemption is validly
waived by debtor) in favor of creditors; and
5. ~cceptance of the cession by the creditors Extinguishes obligation Merely releases debtor
(JURADO, Obligations and Contracts, supra at to the extent of the for net proceeds of things
275). - value of the thing ceded or assigned,
delivered as agreed unless there is contrary
upon, __ or as may be intention.
REMEDY IN CASE CREDITORS B,Et=USE. h{rovef:I: <. unless the
CESSION :sllfn¢e pf ttte parties
In case the creditors do not accepf the d~s~jon or , ·signi.fies,' tha\. they
assignment, a similar result may(be ;db,tained by . conside(. ttul thfng as
proceeding in accordance .;11,ti\h ''ttje' _Firta'i,'cial the· ·equiVcilent , of ,, the
Rehabilitation and lnsolvencytAct (f~1A) JR:A. No. perform~nc"e,. · of the
10142). - ·.• .. obligatict,n. • '

NOTE: Under the FRIA, !{cit' the assets of an

insolvent debtor are pool~d. ancl :then scild fcir .the
benefit of the creditors in g1nen;if ~ ,·,

EFFECT OF ASSIGNMJ?:f,Jl\1~ Ci;S,SION

Unless there is a stipulation to the cohtrqry>,,the
assignment does not make th'e_ creditbrf the ormers Crec;litor becomes Creditor does not
of the property of the debtoh: and tne._
de9tor: is... · owner of' property of become the owner.
released from his obligation ohly up td· ttie ··ne( ' ' debt_pr:· · · Possession is only
proceeds of the sale of the property•assigni<;l (CIVIL transmitted.
CODE, Art. 1255).. . .
(JfJRAlX),, Obligations and Contracts, supra at 275-
276). ·•··
NOTE: Cession only authorizes the creditors to"sell
the properties ceded for their benefit in a public sale.
It is not a transfer of ownership to their name. If the TENDER OF PAYMENT
property is transferred to them, it is dation, not Consists in the manifestation made by the debtor to
cession (JURADO, Obligations and Contracts, supra the creditor of his decision to comply immediately with
at 275). his obligation (Id. at 277).

DATION IN PAYMENT V. PAYMENT BY Tender of payment, even if valid, does not by itself
produce legal payment, unless it is completed by
CESSION consignation (Phil. National Bank v. Relativo, G.R.
No. L-5298, October 29, 1952).

Requisites of a Valid Tender of Payment

1. Tender of payment must comply with the rules on
payment (CIVIL CODE, Arts. 1256-1258).
2. It must be unconditional and for the whole
amount.
3. It must be actually made (DE LEON, Obligations
and Contracts, supra at 362-363).
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TWIN ACTS TO PRODUCE EFFECT OF

CONSIGNATION PAYMENT
It is the act of depositing the thing due with the court Both tender of payment and consignation must be
or judicial authorities whenever the creditor cannot validly done in order to effect the extinguishment of
accept or refuses to accept payment and it generally an obligation. Substantial compliance is not enough
requires a prior tender of payment (PINEDA, for that would render only a directory construction of
Obligations and Contracts, supra at 266; Insular Life the law (DE LEON, Obligations and Contracts, supra
A.c;s1mmr;e Company, Ltd. v. Toyota Bel-Air, Inc., at 360).
G.R. No. 137884, March 28, 2008).
INSTANCES WHERE CONSIGNATION
Requisites of Consignation (CIVIL CODE, Arts.
SHALL PRODUCE THE EFFECTS OF
1256-1258)
The requisites of consignation are the following: (DT- PAYMENT WITHOUT PRIOR TENDER OF
NDN) PAYMENT: (AIR-CL)
1. A Debt is due; 1. Creditor is 8_bsent or unknown, or does not
2. The creditor to whom Jender of payment was appear at the place of payment.
made refused without just cause to accept the 2. Creditor is !ncapacitated to receive the payment
payment, or the creditor was absent, unknown or at the time it is due.
incapacitated, or several persons claimed the 3. When without just cause, the creditor Refuses to
same right to collect, or the title of the obligation give a receipt (tender was actually made)
was lost; 4. When two or more persons _glaim the same right
3. The person interested in the performance of the to collect (as in the case of interpleader).
obligation was given Notice before consignation 5. When the title of the obligation has been !:_ost
was made [Prior or First Notice]; ·_ · ·•:": (CIVIL CODE, Art. 1256, par. 2).
4. The amount was placed at the Qisposal of !he
court; and ;(.' PR'ltPAMiORY ACTS FOR
5. The person interested in the performance of the
obligation was given Notice after the
CONSIGNATION
consignation was made [Final Notice] (Dalton v. 1. First or Pribr notice of intent to consign the thing
FGR Realty and Development Corporation, G.R. due.
No. 172577, January 19, 2011). , 2. The rules on payment must be complied with
(integrity, : indi\l;isibility, identity, etc.) (CIVIL
TENDER OF PAYMENT CQ.{Ji:,ilrtr: ~¥'
V.,CONSIGNATION
EFFECT IF NOTICE OF CON SIG NATION
·.N✓OT MADE
·•· ;fn:,:cth'_e:i<•a,bs~nce of prior notice to the persons
interE)Sted iri the fulfillment of the obligation (such as
guarantors, mortgagees, solidary debtors, solidary
Manifestation of the
Deposit of the object of creditors), the consignation, as payment, shaU be
debtor to the creditor of the obligation in a void (Va/de/Ion v. Tengco, G.R. No. L-52326,
his decision to comply competent court in February 23, 1986).
immediately with his accordance with the rules "All interested _parties are to be notified of the
obligation. prescribed by law, after consignation. Compliance with this requisite is
refusal or inability of the mandatory." ·
creditor to accept the
tender of payment. In Va/de/Ion v. Tengco, the Court held that: Under Art.
1257 of our CIVIL CODE, in order that consignation
of the thing due may release the obligor, it must first
be announced to the · persons interested in the
fulfillment of the obligation. The consignation shall be
ineffectual if it is not made strictly in consonance with
the provisions which regulate payment. In said Article
Extraiudicial in Judicial in character. 1258, it is further stated that the consignation having
Ichar~cter. I been made, the interested party shall also be notified
thereof (Dalton v. FGR Realty and Development
(JURADO, Obligations and Contracts, supra at 277- Corporation, G.R. No. 172577, January 19, 2011).
278).
Tender of payment and notice of consignation may
be done in the same act, e.g., sending a letter that
 OBLIGATIONS AND CONTRACTS
should the creditor fail to accept the payment
tendered, the debtor would consign the amount in
court (Ramos v. Sarao, G.R. No. 149756, February
11, 2005).
CONSIGNATION WITH PROPER
JUDICIAL AUTHORITY
Consignation shall be made by depositing the things
due at the disposal of judicial authority, before whom
the tender of payment shall be proved, in a proper
case, and the announcement of the consignation in
other cases (CIVIL CODE, Art. 1258).
Consignation, by depositing the thing or sum due with
the proper judicial authority (i.e., court), is necessary
to effect payment. It cannot be elsewhere (e.g., bank)
unless otherwise prescribed by special law (e.g., P.D.
No. 25, re rental). · thing?
FINAL NOTICE
The consignation having been made, tl;le interested•
parties shall also be notified thereof (CIVIL CODE,
M1~~- --
NOTE: There is completed cgn:signatipn· 9nfy upc>n
notice. However, the effect of payment r~roacts 1 to
the time the thing due is plac;,ed in the disposal of the
court ( 4 TOLENTINO, supra,_ al:331i332). -
LIABILITY OF CREdlTOR, FOR
EXPENSES OF CONSIGNATION ..._
The expenses of consignatiop, wt:ien properlyrnade,
shall be charged against the credit6r, (CIV{t CODE,
M1~~- . - - d, The ,,obligation is revived, but without
NOTE: The expenses are chargeable to the .debtor if
the consignation is not properly r'il?de (DE.LEON,
Obligations and Contracts, supra at 371). ·_· ·
EFFECTS OF CONSIGNATION:
1. If the creditor accepts the thing or amount
deposited without contesting the validity or
efficacy of the consignation, the obligation is
cancelled/extinguished (CIVIL CODE, Art. 1261).
2. If the creditor contests the validity of the
consignation or if the creditor is not interested or
unknown or is absent, the result is litigation. If
during the trial, the plaintiff-debtor is able to
establish that all the requisites of consignation
have been complied with, the obligation is
extinguished (JURADO,
Contracts, supra at 287).
Obligations and
EXERCISE OF RIGHT OF REPURCHASE
In case of exercise of right of repurchase by tender of
check, such tender is valid because it is an exercise
of a right and not made as a mode of payment of an
obligation. Article 1249 is not applicable (Ade/fa
Civil Law
Properties, Inc., v. CA, GR. No. 111238, January 25,
1995).
NOTE: Consignation is not required.
EFFECTS OF WITHDRAWAL OF THE
OBJECT/AMOUNT DEPOSITED:
1. Before creditor has accepted consignation or
before a judicial declaration of consignation:
a: Obligation remains in force.
b. - Withdrawal by the debtor at this stage is a
matter of right because he still owns the thing
(CIVIL CODE, Article 1260, par. 2).
Q: Should the debtor opt not to withdraw the thing
at this stage, can another creditor attach the
same property since the debtor still owns the
•,,,A;, No. Property deposited with court is exempt
train a.ttachment and not subject to execution; it
\ is said to be in custodia /egis and cannot be
withdiawn wi.thout an express order from the
cdur( (QE, ·LEON, Obligations and Contracts,
supra af370),. ·
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2. With tonsent of the creditor:
a. Creditor loses every preference which he
rriay have over tt,e thing;
b. Solidary co~debtors, guarantors and sureties
;:ire.r<;eleased; ·
c.. So!ldary d~btqrs are released only from their
.. spl_idary,,liaotlity•but not from their shares of
·their obligation,; and
. \ prejudice to other interested parties (CIVIL
· GC>pE, Arf,''1261).
. 4-'
!-JOJ!z:•l,{\/ithdrawal by the debtor at this stage is
a m;:itter of privilege (4 PARAS, supra at 434).
NOTE: To have the effect of payment, the law
requires the twin acts of tender of payment and
consignation. Tender of payment without
consignation only frees the debtor from the
obligation to pay interest on the outstanding
amount from the time the unjustified refusal takes
place (Go Cinco v. CA, G.R. No. 151903, October
9, 2009).
I LOSSOFTHETHINGDUE I
LOSS OF THE THING DUE
It is understood that the thing is lost when it perishes,
or goes out of commerce or disappears in such a way
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that its existence. is unknown or it cannot be EXCEPTIONS:

recovered (CIVIL CODE, Art. 1189, par. 2),
EFFECT OF LOSS IN DETERMINATE
OBLIGATION TO GIVE
GENERAL RULE: Loss of a determinate thing
through fortuitous event shall extinguish the
obligation (CIVIL CODE, Art. 1262).
REQUISITES: (DFD)
1. The thing which is lost must be Qeterminate;
2. The thing is lost without any Ea ult of the debtor;
and
3. The thing is lost before the debtor has incurred in
Qelay (JURADO, Obligations and Contracts,
supra at 288).
EXCEPTIONS:
1. When the law so provides;
2. When the stipulation so provides;
3. When the nature of the obligation requires an
assumption of risk;
4. Loss of the thing occurs after the debtor incurred
in delay (CIVIL CODE, Art. 1262);
5. Loss of the thing is partly due to the fault of the
debtor (Limpangco V. Yangco Steamship, G.R.
No. L-10283, July 25, 1916); .
6. When the debtor promised to deliver the same
thing to two persons who do not have the same
interest (CIVIL CODE, Art. 1165, par. 3);
7. When the obligation to deliver arises from a
criminal offense (CIVIL CODE, Art. 1268); and
8. When the obligation is generic (CIVIL CQDE, Art.
1263).
1. Limited Generic Thing
- When there is a limitation of the generic object
to a particular existing mass or a particular group
of things, the obligation is extinguished by the
loss of the particular mass or group or limited
quantity from which the prestation has to be
taken, or by the impossibility of getting from it the
things for prestation ( 4 TOLENTINO, supra at
340-341).
Example: Cattle or horses of a certain ranch or
the sugar in a certain warehouse (JURADO.
Obligations and Contracts, supra at 290). If all are
lost, the obligation is extinguished.
2. Case of the Genus "goes out of
commerce"
- The obligation to deliver that generic object is
extinguished.
Example: Before the delivery of truckloads of
tobacco as an obligation, a legislation is passed
prohibiting selling of tobacco. Obligation to
supply Qr deliver such tobacco is thus
._·• · • •:i•'r·~~!{Qfi¾h~~td.
EFFECT Qf'i;>ARTIAL LOSS
There is part1~1 lo~s when only a portion of the thing
is lost or destr$ye'i:l or when it suffers depreciation or
deterioration. Rartfal loss is the equivalent of difficulty
of perfqftn ' · :, .. ligations to do (See CIVIL
' CODE/'./j/ . DE LEON, Obligations and
· Contracts:saprir 345).

If the loss is through theft, the debtor is considered
negligent having placed the,thing within Jhe reach of
thieves and not in a secure and safe place. Hence,
the debtor will be liable for damages. In theft, taking
is accomplished without the use of violence or force
(4 TOLENTINO, supra at 337).
LOSS OF GENERIC THINGS
The obligation is generic if the object thereof is
designated merely by its class or genus without any
particular designation or physical segregation from all
others of the same class (JURADO, Obligations and
Contracts, supra at 290).
GENERAL RULE: Loss of generic thing does not
extinguish obligation ( CIVIL CODE, Art. 1263). Thus,
the debtor can still be compelled to deliver a thin!'.!
which must be neither of superior nor inferior quality
(CJV/1 CODF, Art f?,16).
REASON: Based upon the principle that the genus of
a thing can never perish (genus nunquam perit)
(JURADO, Obligations and Contracts, supra at 290).
:?.~~J=RAL RULE: Partial loss does not extinguish
. ,,lJii,t:tp~li~,l::l~9P (CIVIL CODE, Art.
1264).
EXCEPTION: When the partial loss or destruction of
the thing is of such importance that would be
tantamount to a complete loss or destruction
(JURADO, Obligations and Contracts, supra at 291).
NOTE: In case of partial loss, the court is given the
discretion, in case of disagreement between the
parties, to determine whether under the
circumstances it is so important in relation to the
whole as to extinguish the obligation. In other words,
the court will decide whether the partial loss is such
cis lo l>e e4uivc1le11l Lu a complete or total loss (DE
LEON, Obligations and Contracts, supra at 345).
RULE IF THE THING IS IN DEBTOR'S
POSSESSION
GENERAL RULE: If the thing is lost while in the
possession of the debtor, it shall be presumed that
the loss was due to his fault, unless there is proof to
the contrary and without prejudice to the provisions of
 OBLIGATIONS AND CONTRACTS
Civil Law

Art. 1165 of the CIVIL CODE (CIVIL CODE, Art.
1265).
EXCEPTION: No such presumption in case of
earthquake, flood, storm or other natural calamity.
EFFECT OF IMPOSSIBILITY OF
PERFORMANCE IN OBLIGATION TO DO
When the obligation becomes legally or physically
impossible without the fault of the debtor. obliger is
released from the obligation (CIVIL CODE, Art.
1266).
WHEN IMPOSSIBILITY SHOULD OCCUR
TO HAVE EFFECT OF EXTINGUISHMENT
The impossibility must have occurred after the
constitution of the obligation in order lhat it may be
extinguished. ff impossibility was present before the
obligation was constituted, there would be an
obligation which would be ineffective from its
inception (CIVIL CODE, Art. 1348).
.
NATURAL IMPOSSIBILITY V. . . .
IMPOSSIBILITY IN FACT
contemplated by the parties; otherwise, the same
may extinguish the obligation under Art. 1267. In the
latter case, the fact that the prestation later becomes
possible does not revive the obligation (Id. at 346).
DOCTRINE OF UNFORESEEN EVENTS/
DOCTRINE OF FRUSTRATION OF
ENTERPRISE/ THEORY OF
IMPREVISIBILITY
When the service has become so difficult as to be
manifestly beyond the contemplation of the parties,
the court should be authorized to release the obligor
in whole or in part (CIVIL CODE, Art. 1267).
The parties stipulate in the light of certain prevailing
. conditions and once these oonditioris cease to exist,
the contract also ceases to exist. Considering
practical needs and the demands of equity and good
faith, the disappearance of the basis of the contract
gives rise to a right to relief in favor of the party
prejudiced (Naga Telephone Co., et al. v. CA, GR.
No._ 107112, February 24, 1994).
NOTE: Article 1267 is similar to the common law
conc~pt of rebus sfc stantibus (Things thus standing).

INTENTION OF PARTIES
DETERMINATIVE
The intention of the parties should govern and if it
Must consist in the· fn the absence of appears that the service turns out to be so difficult as
nature of the thing to be inherent impossibjlity in to have been beyond their contemplation, it would be
done and not the the nature of the thing doing violence to the intention to hold the obligor still
inability of the party to stipulated· to be responsible (JURADO, Obligations and Contracts,
do so. performed, which is only supra at 295-296).
improbable or out of tlie
power of the obligor. "SERVICE" REFERS TO A PRESTATION
The law speaks of "service." This term should be
understood as referring to the performance of an
Renders the contract Does not render the obligation·or a prestation ( Sps. Poon v. Prime savings
void. contract void. Bank, GR. No. 183794, June 13, 2016).

(Jose De Leon v. Asuncion Soriano, G.R. No. L-2724,
August 24, 1950)
Natural impossibility is reckoned from the time of
constitution of the obligation. Thus, the obligation
remains void even if the prestation subsequently
becomes possible.
In case of subsequent partial impossibility, the rule in
Art.1264 of the CIVIL CODE may be applied ( 4
TOLENTINO, supra at 345).
IS ARTICLE 1267 LIMITED TO
PERSONAL OBLIGATIONS?
Yes. Article 1267 is limited only to personal
obligations. It speaks of a "service,"- a personal
obligation. Thus, real obligations are not within its
scope (4 PARAS, supra at 439). Justice Jurado
however is of the opinion that the word "service"
should be understood as referring to the
"performance" of the obligation · (JURADO,
Obligations and Contracts, supra at296).

Temporary impossibility does not extinguish the
obligation but merely delays its fulfillment, unless by
its nature or by the will of the parties it has to be
pe!lformed at a determinate time. This presupposes
that the duration of impossibility has been
It is not a requirement under Art. 1267 that the
contract be for future service with future unusual
change (Naga Telephone Co., et al. v. CA, G.R. No.
107112, February 24, 1994).
 f § \ /
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PRINCIPLf:: OF SUBJECTIVE
IMPOSSIBILITY
When there is no physical or legal loss but the object
of the obligation belongs to another, the performance
by the debtor of the obligation undoubtedly becomes
impossible. Failure of performance is imputable to the
debtor. Thus, the debtor must indemnify the creditor
for the damages suffered by the latter (4
TOLENTINO, supra at 336).
EFFECT OF LOSS IN RECIPROCAL
OBLIGATIONS
1. First view: Res Perit Domino
If an obligation is extinguished by the loss of the
thing or impossibility of performance through
fortuitous events, the counter-prestation is also
extinguished. The debtor is released from liability
but he cannot demand the prestation which has
been stipulated for his benefit. He who gives
nothing has no reason to demand (Id. at 337-
338).
2. Second view: Res Perit Creditori
~~~,l~s~~!~i,~!~t~~t~~:~~:~=~:~: . ~;~!~~~#
1191 plus damages. If the loss or)rnpossibility.
was due to a fortuitous event, the qftJer party is
still obliged to give the prestation due to.the other
(J.8.L. Reyes). · ·
NOTE: The better view is Res Perit Domino
RULE IF OBLIGATION ARISES FROM
CRIMINAL OFFENSE
GENERAL RULE: Debtor shall not be exem(?teg
from the payment of the price whatever inay l;)e the
cause for the loss (CIVIL CODE, Art. 1268).
NOTE: The rule is applicable not only to the persons
who are principally liable, but also to those who are
subsidiarily liable (JURADO, Obligations and
Contracts, supra at 297).
EXCEPTION: When the thing having been offered by
the debtor to the person who should receive it, the
latter refused without justification to accept it ( CIVIL
CODE, Art. 1268; JURADO, Obligations and
Contracts, supra at 297).
NOTE: The offer referred in Article 1268 should not
be confused with consignation; the latter refers only
to the payment of the obligation, the former refers to
the extinguishment of the obligation through loss by
fortuitous event (JURADO, Obligations and
Contracts, supra at 296-297).
NOTE: When the offer is made by the debtor and the
creditor refuses to accept it without justification, he
may choose either of two courses:
1. He may make a consignation of the thing and
thereby completely relieve himself of further
liability, or
2. He may keep the thing in his possession, in which
case, the obligation shall still subsist but with this
difference - that if the thing is lost through a
fortuitous event, Arts. 1262 and 1265, and not
Art. 1268, shall govern.
It must, of course, be noted that this Article 1268 can
have no application to those cases where an offer is
not possible, since such offer by the debtor is .an
essential requisite (JURADO, Obligations and
Contracts, supra at 297).
EFFECT OF EXTINGUISHMENT BY LOSS
OR IMPOSSIBILITY
The obligation having been extinguished by the loss
of the thing, the creditor shall have all the rights of
t action which the debtor may have against the third
rr:::persons by reason of the loss (CIVIL CODE, Art.
no need an ass;gnment the
Im
debtor. The,', ghts of action of the debtor are
by
transferred toi: tl\e creditor from the moment the
. obligation _is extirilguished, by operation of law to
: protect thf int~rest'.fJf the latter by reason of the loss
(DE LEON, Obli atiQns and Contracts, supra at 399).
· ._.,.-~ .:S;jf:~-5-·:
CONDONATION OR
it::t;:7~.ii,\-,,?.;," REMISSION
CONDONATION OR REMISSION OF
·DEBT
An act of liberality by virtue of which the obligee,
without receiving any price or equivalent, renounces
the enforcement of the obligation, as a result of which
it is extinguished in its entirety or in that part or aspect
of the same to which the remission refers.
It is the gratuitous abandonment by the creditor of his
right; a form of donation (JURADO, Obligations and
Contracts, supra at 298).
REQUISITES OF REMISSION: (GADCIF)
1. It must be ~ratuitous;
2. It must be ~ccepted by the obligor (bilateral act);
3. The obligation must be .Qemandable;
4. Parties must have the £apacity;
5. Not !nofficious (DE LEON, Obligations and
Contracts, supra at 367); and
 OBLIGATIONS AND CONTRACTS
6. Must comply with the Eorms of donation should it
be express (CIVIL CODE, Arts. 748 and 749).
KINDS OF REMISSION OR
CON DONATION
1. As to Form
a. Express - when it is made in accordance
with the formalities prescribed by law for
donations.
b. Implied - when, although it is not made in
accordance with the formalities prescribed by
law for donations, it can be deduced from the
acts of the obligee or creditor.
2. As to Extent
a. Total - when the entire obligation is
extinguished.
b. Partial - when it refers only to the principal
or to the accessory obligation or to an aspect
thereof which affects the debtor (as· for
instance solidarity).
3. As to Constitution
a. Inter Vivos - when it is constituted by
agreement of the obligee and the obligor
which shall be effective during their lifetime.
b. Mortis Causa - when it is constituted by last
will and testament (JURADO, Obligations
and Contracts, supra at 29f-299).
REMISSION IS A FORM OF DONATION
Whether express or implied, th1;1 extent of remission
or condonation shall be govern89 by· the rules
regarding inofficious donation (CIVIL CODE, Art.
1270, par. 2).
It is an essential characteristic of reimission that it be
gratuitous -- there is no equivalent received for the
benefit given because from the moment it exists, the
nature of the act is changed, and becomes some
other form of extinguishment such as:
1. Dation in payment(CIVIL CODE, Art. 1245);
2. Cession(CIVIL CODE, Art. 1255);
3. Novation(C/VIL CODE, Art. 1291); or
4. Compromise (CIVIL CODE, Art. 2028).
APPLICATION OF · THE RULES ON
DONATION.
Condonation or remission is essentially a donation of
credit to the debtor. It must be subject to the rule on
donations with respect to acceptance (CIVIL CODE,
Art. 745 and 746), <1mount ( CIVIL CODE, Art. 750 and
752) and revocation (CIVIL CODE, Art. 760, 761,764
and 765); (4 TOLENTINO, supra at 364).
EFFECT OF LACK OF CONSENT OF
DEBTOR IN REMISSION
Civil Law
The creditor renounces his credit even against the will
of the debtor because Article 6 of the CIVIL CODE
provides that "Rights may be waived, unless the
waiver is contrary to law, public order, public policy,
morals or good customs, or prejudicial to a third
person with a right recognized by law."
However, since the debtor did not accept the
remission, the creditor merely waived his right to
demand the obligation. In which case, the debt will
remain outstanding until it prescribes or unless it is
extinguished in some other manner. The creditor will
merely be in mora accipiendi and "suffer" the legal
consequences of his refusal to receive payment.
WHEN RENUNCIATION OF ACTION
AGAINST THE DEBTOR IS PRESUMED
If the creditor voluntarily delivers the private
document evidencing the credit to the debtor, there is
a presumption that he renounces his right of action
against the latter for the collection of the said credit
(CIVIL CODE, Art. 1271 ). When such private
document is found in possession of the debtor, it shall
be presumed that the creditor delivered it voluntarily,
unless the contrary is proved (CIVIL CODE, Art.
1272).
REQUISITES. OF IMPLIED
CONDONATION OR REMISSION OF
DEBT: (DPV).
1. That· the document. evidencing the credit must
have been Qelivered by the creditor to the debtor;
2. That the document must be a ~rivate document;
and
3, That the. delivery• must be ~oluntary (CIVIL
CODE, Art. 1271; JURADO, Obligations and
Contracts, supra at 307).
When the obligation is joint, and the private document
evidencing a debt is found in the possession of one
of the debtors, the presumption of remission can refer
only to the portion of the debtor who is in the
possession of the instrument. If the obligation is
solidary, Arts. 1215, 1219 and 1220 shall apply (DE
LEON, Obligations and Contracts, supra at 404).
RULES WHEN ACCESSORY
OBLIGATIONS ARE INVOLVED
If the remission refers to the principal obligation, all
the · accessory obligations are extinguished.
However, if remission refers only to the accessory
obligation, the principal obligation continues to
subsist (CIVIL CODE, Art. 1273).
 . '['.'
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San Beda Univers~y Colloge of Law - RGGT Bar Operations Center
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- extinguishment of entire obligation; or

I CONFUSION OR 2. If confusion takes place in the person of

MERGER
J a subsidiary creditor or subsidiary debtor
(e.g. guarantor)
- no extinguishment of principal obligation; only
substitution of creditor or debtor; or

CONFUSION 3. If confusion takes place in one of th~ joint

It is the merger of thr-i r.h;:m:ictflrs of the creditor anci tfolllur ~ principal obligation is
the debtor in one and the same person by virtue of
extinguished up to the share whict1
which the obligation is extinguished (CIVIL CODE,
corresponds to him; or
Ari. 1275).

Illustration of Confusion/Merger
Atoy makes a check payable to bearer, and hands it
to Joey, who hands it to Kaye who finally hands it to
Aloy. Here Atay owes himself and thus, his obligation
is extinguished. · reimbursement from co-debtors for the shares
If, however, the reason for the confusion ceases, the
obligation is revived. Thus, should Kaye deliver the
note to Atay in the performance of a void obligation,
Atoy's obligation is recreated. But the time
intervening between the merger and its revocation is·
not to be computed in the determination of the period
for prescription.
REQUISITES OF MERGER: (MPC)
1. Merger of the characters of the creditor· and
debtor must be in the same person (CIVIL
CODE, Art. 1275);
2. Must take place in the person of either the
~rincipal creditor or the principal debtor (CIVIL
CODE, Art. 1276); and
3. Whether the merger refers to the entire obligation
or only part thereof, there must be ~omplete and
definite meeting of all qualities of Creditor and
debtor in the obligation or in the part thereof
affected by the merger (JURADO, Obligations
and Contracts, supra at 307; Testate Estate of
Mora v. Serra, G.R. No. L-34581, March 31,
1932; Valmonte v. CA, G.R. No. L-41621,
February 18, 1990).
4. If confusion takes place in one of the
solidary debtors
- entire obligation is extinguished. However, the
debtor in whom confusion took place may claim
which correspond to them (CIVIL CODE, Art.
,1276-1277; JURADO, Obligations and Contracts,
supra at 308-309).
C9MPENSATION
I
. COMPENSATION
. Mode of extingµishing in the concurrent amount of the
obligation of thos~ persons who are reciprocally
. debtors. i:lnd·J}(~itors of each other (JURADO,
Obligatioiis)'.iiiicP'. Contracts, supra at 309, citing
CASTAN).
·inustration:
A oWes"Efthe amount of P1 ,000.00; B owes A the
amount of P700.00; Both debts are due and payable
today. Here compensation takes place partially, that
is, to the concurrent amount of P700.00. So, A shall
be liable to B for only P300.00. If the two debts are of
the same amount, there is total compensation (See
CIVIL CODE, Art. 1281).

NOTE: The requisite that the merger of rights of
creditor and debtor must be complete and definite
means that whether the merger refers to the entire
obligation or only a part thereof, it must be of such a
character that there will be a complete and definite
meeting of all of the qualities of creditor and debtor in
the obligation or in the part or aspect thereof which is
affected by the merger (JURADO, Obligations and
Contracts, supra at 307). ·
EFFECTS OF CONFUSION/MERGER:
1. · If confusion takes place in the person of
either the principal creditor or principal
debtor
The two debts are extinguished without actual
transfer of money between the parties (DE LEON,
Obligations and Contracts, supra at 380).
COMPENSATION V. CONFUSION
0, 1ly VI It:: J,Jt:1 ~u, 1 ;, 1 vvhv, 11
Two persons who, in
their own right, are the qualities of debtor
creditors and debtors of and creditor are merged
each other
 OBLIGATIONS AND CONTRACTS
Civil Law

REQUISITES OF COMPENSATION:
(PS-DL-NoNo)
1. There must be two (2) farties, who, in their own
right. are principal creditors and principal debtors
of each other (CIVIL CODE, Art. 1279) except in
case of a guarantor {CIVIL CODE, Art. 1280);

2. Both debts must consist in §_um of money, or if

indirect There is impossibility of the things due are fungibles (consumables), they
payment must be of the same kind and quality (CIVIL
CODE, Art. 1279);
(DE LEON, Obligations and Contracts, supra at 416-
417). GENERAL RULE: Compensation is not possible
in obligations to do because of the difference in
COMPENSATION V. PAYMENT the respective capacities of the obligors (Id. at
317).

3. Both debts must be Que (CIVIL CODE, Art.

1279);

EXCEJ:>TION: Voluntary compensation or the

, parties ·•· ·mpy nevertheless agree upon the
-c6mpensatfo11 of the obligations (CIVIL CODE,
Art. 1282f
4. B~th debt~ must be _!::iquidated and demandable
(CIVI!- CODE, Ari. 1279);

Liquidated Debts _; those amount of which may

be determined by a simple arithmetical operation
(Id.). . ..

5. There .must tie -No retention or controversy

As a rule, law permits As a. rule, complete and.
partial extinguishment indivisible "
of obligation
(JURADO, Obligations and Contracts, supra ai 310).
KINDS OF COMPENSATION:
1. As to Cause
a. Legal - takes effect by operation of law from
the moment all of the requisites are present;
b. Voluntary - when parties who are mutually
creditors and debtors agree to compensate
their respective obligations, even though all
of the requisites for compensation may not
be present;
c. Judicial - takes effect by judicial decree; or
d. Facultative - when it can be set up only by
one of the parties.
2. As to Effect
a. Total - debts to be compensated are equal -
in amount; or
b. Partial - debts to be compensated are not
equal in amount (Id. at 311 ).
comrnenced by third persons over either of the
debts a11d' communicated in due time to the
debtor (CIVIL CODE, Art. 1279); and
,NqT.E:' Reterltion consists in the application of
the crfditof one of the parties to the satisfaction
of the-claims of third persons while controversy
a
, refers to a case in which third person claims to
be the creditor (Id. at 318).
6. The compensation must Not be prohibited by law
(CIVIL CODE, Art. 1279).
Legal compensation takes effect by operation of law
only when all the requisites mentioned in article 1279
have concurred (Union Bank of the Philippines v.
Development Bank of the Philippines, G.R. No.
191555, January 20, 2014).
RIGHT OF GUARANTOR TO SET-UP
COMPENSATION
The guarantor, in case the payment of the debt is
demanded from him, may set up compensation, not
only for what the creditor owes him, but also for what
the creditor owes the principal debtor (CIVIL CODE,
Art. 1280).
 ~ K•
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NOTE: This article is an exception to the general rule
that only the principal debtor can set up against his
creditor what the latter owes him (DE LEON,
Obligations and Contracts, supra at 394).
TOTAL COMPENSATION
- results when the two debts are of the same amount.
If they are of different amounts, compensation is total
as regards the smaller debt, and partial only with
respect to the larger debt (CIVIL CODE, Art. 1281).
VOLUNTARY COMPENSATION
The parties may agree upon the compensation of
debts which are not yet due.
Example: If the obligation of A is pure, while the
obligation of B is with a term or period which has not
yet expired, the general rule is that.there can be no
compensation because B's obligation is not yet due.
However, the parties may nevertheless agree upon
the compensation of the two obligations ( JURADO,
Obligations and Contracts, supra at 319).
RULE IN CASE OF RESCISSIBLE OR
VOIDABLE DEBTS
When one or both debts are rescissible or voidable
obligations may be compensated against each other
before they are judicially rescinded or avoided (CIVIL
CODE, Art. 1284).
REASON: Rescissible and voidable obligations are
valid until they are judicially rescinded or avoided.
Prior to rescission or annulment, the debts may be
compensated against each other (DE LEON,
Obligations and Contracts, supra at 433).
EFFECTS OF ASSIGNMENT OF RIGHTS:
1. If with consent of debtor
- debtor cannot set-up compensation unless he
reserved his right to compensation;
2. If with knowledge but without consent of
debtor
- debtor may set-up compensation prior to the
assignment but not subsequent ones; or

REQUISITES OF VOLUNTARY OR 3. If withou.t knowledge of the debtor

CONVENTIONAL COMPENSATION: . --- may set1up compensation of all credits which
1. Each of the parties has the right to dispose of the he may'have against the assignor and which may
credit he seeks to compensate; and have become demandable, before he was
2. They agree to the mutual extinguishinent of their notified of: the assignment (CIVIL CODE, Art.
credits (CKH Industrial & Development Corp. v. 1285).
CA, G.R. No. 111890, May 7, 1997).
DEBTS •WHI.CH CANNOT BE
JUDICIAL COMPENSATION COM PEt."§AJ:~ff.
If one of the parties to a suit over an obligation has a 1. Debts arising from contracts of
claim for damages against the other, the former may
depositum;
set it off by proving his right to said damages and the
A deposit is constituted from the moment a
amount thereof (CIVIL CODE, Art. 1283).
'person receives a thing belonging to another with
the obligation of safely keeping it and of returning
"Judicial Compensation" is Not Contemplated by
the same (CIVIL CODE, Art. 1962).
CIVIL CODE
In reality, what is set off against the other party is a
NOTE: Article 1287 uses the word depositum
counterclaim. "A counterclaim must be pleaded to be
instead of ''deposit" which is used for an ordinary
effectual; whereas, a compensation takes place by
bank deposit. A bank deposit is not a depositum.
mere operation of law." Hence, the counterclaim
It is really a loan which creates the relationship of
defined by the Rules of Court is not the legal
debtor and creditor (OE LEON, Obligations and
compensation contemplated by the Code. This is so,
Contracts, supra at 400).
because by its very nature, a set off or counterclaim
can have no effect unless it is pleaded.
2. Debts arising from contracts of
In addition, the claim is not liquidated; consequently, commodatum;
compensation cannot take place. It is converted into Commodatum is a gratuitous contract whereby
a liquidated claim by court decree, in which case one of the parties delivers to another something
compensation shall take effect from the moment the not consumable so that the latter may use the
judgment liquidating the claim has become final same for a certain time and return it ( CIVIL
(RULES OF COURT, Rule 6, Sec. 6 ;JURADO, CODE, Art. 1933).
Obligations and Contracts, supra at 319).
3. Claims for support due by gratuitous title;
Support comprises everything that is
indispensable for sustenance, dwelling, clothing,
medical attendance, education and
 OBLIGATIONS AND CONTRACTS
Civil Law

transportation, in keeping with the financial EFFECT OF COMPENSATION

capacity of the family" (FC, Art. 194) When all the requisites mentioned in Article 1279 are
present, compensation takes effect by operation of
4. Obligations arising from criminal law, and extinguishes both debts to the concurrent
offenses (CIVIL CODE, Art. 1288); and amount, even though the creditors and debtors are
not aware of the compensation (CIVIL CODE, Art.
5. Certain obligations in favor · of 1290).
government (e.g., taxes, fees, duties, and
others of a similar nature (CIVIL CODE, Art. NOTE: As it takes place by mere operation of law,
1286-1287). and without any act of the parties, it is not required
that the parties have full legal capacity (CIVIL CODE,
WHEN COMPENSATION TAKES Art. 37) to give or to receive, as the case may be. On
EFFECT: the other hand, in order that there may be a valid
payment. the parties must have the free disposal of
1. Legal Compensation the thing due and capacity to alienate it (CIVIL
- from the moment all the essential requisites CODE, Art. 1239) and to receive payment (CIVIL
prescribed by law are present (CIVIL CODE, Art. CODE, Arts. 1240-1241), as the case may be (DE
1290); LEON, Obligations and Contracts, supra at 440-441).

2. Voluntary Compensation FACULTATIVE COMPENSATION

- from the moment agreed upon by the parties
(C/Vf L CODE, Art. 1282); or
3. Judicial Compensation .
- from the moment the judgment b~comes final
and executor (CIVIL CODE; Art. 1283); or
4. Facultative Compensation .
- from the moment when- legal compensation
cannot take place (4 TOLENrtNO, supra at367)
Compensation which can be set up on1y at the option
of the .credito"r when legal compensation cannot take
place because ofwant of some legal requisites for the
benefit of the'creditor. The latter can renounce his
right to oppose tb~ yompensation and he himself can
set it up, It differs from conventional compensation
because h is unitateral ''while the latter depends upon
the agreement of both parties (4 TOLENTINO, supra
at 367).

COMPENSATION WHERE . DEBTS

PAYABLE AT DIFFERENTPJ_.ACES
Compensation takes place by. operation of law, even
though the debts may be payaple at dif{erent places,
but there shall be an indemnity for expenses of
exchange or transportation to the place of pa:yment
(CIVIL CODE, Art. 1286).
The indemnity contemplated above does 'not refer to
the difference in the value of the things in their
respective places but to the expenses of monetary
exchange (in case of money debts) and expenses of
transportation (in case of things to be delivered).
Once these expenses are liquidated, the debts also
become compensable (DE LEON, Obligations and
Contracts, supra at 436).
RULES ON APPLICATION OF
PAYMENTS APPLICABLE TO ORDER OF
COMPENSATION
If a debtor has various debts which are susceptible of
compensation·, he must inform the creditor which of
them shall be the object of compensation. In case he
fails to do so, then the compensation shall be applied
to the most onerous obligation (CIVIL CODE, Arts.
1252 & 1254).
I NOVATION
I
NOVATION
ltis the substitution or change of an obligation by
another; ' resulting in its extinguishment or
modification, either by changing its object or principal
conditions, or by substituting another in place of the
debtor, or by subrogating a third person in the rights
of the creditor (CIVIL CODE, Art. 1291).
REQUISITES OF NOVATION: (PCASV)
1. .e_revious valid and existing obligation;
2. fapacity of the contracting parties (to the new
contract);
3. Animus novandi or intent to novate (especially for
implied novation and substitution of debtors);
4. Substantial difference between the old obligation
ind the new obligation (especially for implied
novation), consequently, extinguishment of the
obligation; and
5. Validity of the new obligation (JURADO,
Obligations and Contracts, supra at 326).
 f&N#\tffi \ I
MEM✓Q~Y AID
San Boda University College of Law - RGCT Bar Operations Center
There can be no novation unless two distinct and
successive binding contracts take place, between the
same parties with the second designed to replace the
preceding convention. Modifications introduced
before a bargain becomes obligatory can in no sense
constitute novation in law. A loan application, before
bank approval, cannot be subsequently novated
because the first requisite, a pre-existing obligation,
is lacking (A?Olla Farms v. CA, GR No. 138085.
November 11, 2004)
A CONTRACT "REVIVING"
PRESCRIBED DEBT
A new contract, recognizing and assuming a
prescribed debt is a valid novation. The defense of
prescription of the right to demand payment may be
waived by the debtor. Even after the obligation has
prescribed, it subsists as a moral obligation (CCC
Insurance Corp. v. Kawasaki Steel Corp., GR. No.
156162, June 22, 2015).
TWO-FOLD PURPOSE OF NOVATION:
1. Original obligation is extinguished; and
2. A new obligation is created (JURADO,
Obligations and Contracts, supra at 326).
KINDS OF NOVATION:
1. As to its Essence
a. Objective/Real -when the object (or cause)
or principal conditions of -the obligation are
changed (CIVIL CODE, Art. 1291,par. 1);
b. Subjective/Personal - substitution of debtor
or by subrogation (CIVIL CODE, Art. 1291,
par. 2 & 3);
c. Mixed - change in the object or principal
condition and change in the persqns of either
creditor and debtor of an existing obligation
(CIVIL CODE, Art. 1291).
2. As to its Form/Constitution
a. Express - when it is declared in unequivocal
terms that the old obligation is extinguished
by a new one which substitutes the same.
b. Implied - when the old and new are
incompatible with each other on every point
(JURADO, Obligations and Contracts, supra
at 327).
3. As to Extent/Effect
a, Total
b. Partial (JURADO, Obligations
Contracts, supra at 327).
4. As to its Origin
a. Legal - that which takes place by operation
of law (CIVIL CODE, Ads. 1300, 1302); or
b. Conventional - that which takes place by
agreement of the parties (CIVIL CODE, Arts.
4 ' \). ~','. ' , , ,.;' ' ; , ~,,
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1300, 1301: DE LEON, Obligations and
Contracts, supra at 408).
WAYS OF EFFECTING CONVENTIONAL
NOVATION: (El)
1. New obligation expressly declares that the old is
gxtinguished; or
2. New obligation is on every point !ncompatible
with the old one (Ajax Morkoting & Dovc/opmont
Corp. v. CA, G.R. No. 118585, September 14,
1995).
A
NOVATION IS NEVER PRESUMED
Novation is never presumed. Unless it is clearly
shown either by express agreement of the parties or
by acts of equivalent import, this defense will never
be allowed (Ong v. Bognalbal, G.R. No. 149140,
September 12, 2006 citing Aboitiz v. De Silva, G.R.
No. 21036, April 5, 1924).
Thus, to effect an objective novation, it is imperative
that the new obligation expressly declares that the old
obligation is thereby extinguished, or that the new
_obligation be on every point incompatible with the
, naw _one. ln:ihe same vein, to effect a subjective
. nov\:itiotfby1:l·cihange in th·e person of the debtor, it is
necessary that the old debtor be released expressly
from the obligation and the third person or new debtor
assumes his place in the relation. There is no
novation without such release as the third person who
assumed the debto(s obligation becomes merely a
· · co-debtor; pr,Sl:irf3b/.J~jax Marketing & Dev't. Corp. v.
CA, G.~.f.l.cf::0tJ"?5iJ5, September 14, 1995).
NOTE: "Implicit" Novation does not mean that the
. ; r,ar,tle.s .did not expressly agree to novate. It means
· that tne:patties expressly agreed to a new obligation
which is incompatible with the old obligation such that
even if the parties did not "expressly" state that the
new obligation was intended to novate the old
obligation,_novation exists.
IMPLIED CONSENT BY THE CREDITOR
ALLOWED
The aforecited article 1205 of the Old Civil Code (now
Art. 1293} does not state that the creditor's consent
to the substitution of the new debtor for the old be
express, or given at the time of the substitution, and
the Supreme Court of Spain, in its judgment of June
16, 1908, construing said article, laid down the
and doctrine that "article 1205 of the Old Civil Code does
not mean or require that the creditor's consent to the
change of debtors must be given simultaneously with
1
the debtoi S consent to the substitution; its evident
purpose being to preserve the creditor's full right, it is
sufficient that the latter's consent be given at any time
and in any form whatever, while the agreement of the
debtors subsists." The rule that this kind of novation,
like all others, must be express, is not absolute; for
 OBLIGATIONS AND CONTRACTS
the existence of the consent may well be inferred
from the acts of the creditor, since volition may as well
be expressed by deeds as by words. The creditor's
express consent is necessary in order that there may
be a novation of a contract by the substitution of
debtors, the impression of the word "express" does
not convey to be given an unqualified meaning (Asia
Banking Corporation v. Elser, G8. No. 30266, March
25, 1929).
TEST OF INCOMPATIBILITY
Whether or not the old and new obligations can stand
together, each having its own independent existence.
If they can stand together, there is no incompatibility
hence, no novation. If they cannot stand together,
there is incompatibility; consequently, there is
novation (JURADO, Obligations and Contracts, supra
at 333).
NOTE: The incompatibility must affect any of the
essential elements of the obligation, such _as its
object, cause or principal conditions thereof;
otherwise, the change is merely , modificatory. in
nature and insufficient to extinguish the original
obligation (Heirs of Servando Franco v. · Sps.
Gonzales, G.R. No. 159709, June 27, 2012).
OBJECTIVE NOVATION
According to Castan, objective novation is effected
by: .
1. Changing the cause of the obli'gation;
2. Changing the object of the obligation; or
Changing the principal or essentialconditions .of the
obligation (CIVIL CODE, Art. 1291, par.1).
EFFECT OF MODIFICATIONS OF
ORIGINAL OBLIGATION . ·
1. Slight modifications and variations
- When made with the consent of the parties,
they do not abrogate the entire contract and the
rights and obligations of the parties thereto, but
the original contract continues in force except as
the altered terms and conditions of the obligation
are considered to be the essence of the
obligation _itself (DE LEON, Obligations and
Contracts, supra at 418).
NOTE: The change must involve the "principal"
conditions of the obligation (CIVIL CODE, Art.
1291,par. 1).
Examples:
a. The acceptance of a partial payment by a
creditor before the maturity of the obligation
is not a novation of the contract but a waiver
of the period agreed upon during which
payment should not be made (DE LEON,
Obligations and Contracts, supra at 419).
Civil Law
b. The obligation to pay a sum of money is not
novated by an instrument that expressly
recognizes the old, changes only the terms of
the payment, adds other obligations not
incompatible with the old ones or the new
contract merely supplements the old contract
(Sps. Reyes v. BPI Family Savings Bank, GR
No. 149841-41, March 31, 2006).
c. The grant of a 45-day credit extension does
not novate the contract as it merely modifies
the contract by extending the time for
payment (Foundation Specialists, Inc., v.
Betonval Ready Concrete, Inc., G.R. No.
170674, August 24, 2009).
d. A change in the rate of interest is merely a
collateral agreement between the creditor
and principal debtor that did not affect the
surety. The agreement to pay the additional
interest was an additional burden upon the
debtor only. It did not in any way affect the
original . contract. Thus, despite the
_· compounding of the interest, the liability of
· the surety remains only up to the original
uncompounded interest (Garcia, Jr. v. CA,
G.R. No. L-80201, November 20, 1990).
2. Materialdeviations or changes.
- Where the original contract is deviated from in
material respects so that the object or principal
condition cannot reasonably be recognized as
that originally contracted for, the original contract
should be treated as abandoned (DE LEON,
Obligations and Coqtracts, supra at 421 ).
Examples:
a. Debt · restructuring such that the former
principal and accrued interests are
established as a new principal amount of
debt over which a new interest rate is
applied.
b. A contract of mortgage over a parcel of land
to secure a loan is converted into a contract
of antichresis.
-EFFECTS OF NOVATION UPON
ACCESSORY OBLIGATIONS
GENERAL RULE: When the principal obligation is
extinguished in consequence of a novation,
accessory obligation may subsist only insofar as they
may benefit third persons who did not give consent
(CIVIL CODE, Art. 1296).
EXCEPTION: Art. 1296 has no application to
novation effected by subrogating a third person to the
rights of the creditor. Such novation is regulated by
Arts. 1303-1304 of the CIVIL CODE (8 MANRESA,
5th Ed., Bk. 1, p. 792).
The exception refers to a case in which there- is a
stipulation constituted in favor of a third person, which
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may be demanded separately from the principal fulfillment/non-fulfillmE)nt of the condition

obligation, although subordinated to the latter (e.g. affecting it (JURADO, Obligations and
stipulation pour autrui) (JURADO, Obligations and Contracts, supra at 348-349).
Contracts, supra at 346).

EFFECT WHERE THE NEW OBLIGATION SUBJECTIVE NOVATION

VOID
If the new obligation is void, the original one shall
subsist, unless the parties intended that the former
relation should be extinguished in any event (CIVIL
CODE, Arts. 1297).
If the. new obligation is only voidable, novation can
take place. But the moment it is annulled, the
novation must be considered as not having taken
place, and the original one can be enforced, unless
the intention of the parties is otherwise (DE LEON,
Obligations and Contracts, supra at 474).
EFFECT WHERE THE OLD OBLIGATION
VOID OR VOIDABLE
If the original obligation was subject to a suspensive
or resolutory condition, the new obligation shall be
under the same condition, unless it is otherwise
stipulated (CIVIL CODE, Arts. 1298).
NOTE: If the condition is suspensive, and it is not
complied with, no obligation arises; and if it is
resolutory and it is complied with, the old obligation is
extinguished. In either case, . one requisite of
novation, i.e., a previous valid obligation, would be
wanting (DE LEON, Obligations and Contracts, supra
at 474).
EFFECTS OF CONDITION fN NOVATION:
1. If the original obligation was subject to
suspensive or resolutory condition, the new
obligation shall be under the same condition,
unless otherwise stipulated {CIVIL CODE, Art.
1299).
2. If the new obligation and the old obligation are
subject to different conditions:
a. If the conditions can stand together:
i. If both are fulfilled - the new obligation
becomes demandable
ii. If only the condition affecting the old
obligation is fulfilled - old obligation is
revived while the new obligation loses its
force.
iii. If only the condition affecting the new
obligation is fulfilled - there is no
novation since the requisite of a previous
valid and effective obligation would be
lacking.
b. If the conditions are incompatible - the effect
is to extinguish the old obligation so that only
the new obligation remains and whose
demandability/effectivity depend upon the
NOVATION BY SUBSTITUTION OF
DEBTORS
A subjective/personal novation consists in the
substitution of a new debtor in place of the original
debtor, which may be made even without the
knowledge or against the will of the latter, but not
without the consent of the creditor (CIVIL CODE, Art.
1293).
FORMS OF NOVATION BY
SUBSTITUTION OF DEBTORS:
1. Expromisi6n
- effected with the consent of the creditor at the
instance of the new debtor even without the
conserit or even against the will of the old debtor
(beneficial reimbursement).
, R~~is,ilit:
a. · 1nitit1tiy~ for substitution must emanate from
the new.debtor;
b. Cons~nt ,of the creditor to the substitution;
and
c. Old debtor must be released from obligation
(JURADO Ob_ligations and Contracts, supra
'a.ti ">'.
Illustration: Atoy owes Eugene P1 ,000. Joey, a
riend of Atoy approaches Eugene and tells him:
,,,,-,,,,y H~Y you what Aloy owes you. From now on,
'consicfei'me your debtor. Atoy is to be excused."
Take note that in this example, there is an
agreement that Atoy will be released from the
obligation. Sans such agreement. there is no
novation and the creditor (Eugene) can still
enforce the obligation against the original debt0r
(Atoy).
Note: Implied consent by the creditor is allowed
(Asia Banking Corporation v. Elser, G.R. No. L-
30266, March 25, 1929).
Kinds of Substitution by Expromisi6n:
a. Substitution with the knowledge and consent
of the old debtor; and
b. Substitution without the knowledge or
against the will of the old debtor (JURADO,
Obligations and Contracts, supra at 339j.
2. Delegaci6n
- effected with the consent of the creditor
(delegatario) at the instance of the old debtor
 OBLIGATIONS AND CONTRACTS
(dclcgantc), with the concurrence of the new
debtor (delegado) (reimbursement and
subrogation).
Requisites:
a. Initiative for substitution must emanate from
the old debtor;
b. Consent of the new debtor;
c. Acceptance by the creditor; and
d. Old debtor must be released from his
obligation (Id.).
Illustration: Atoy owes Eugene P1 ,000. Atoy
texted Eugene that his friend Joey will pay the
debt, and he wishes to be released from the
obligation. Both Joey and Eugene agreed to such
terms. Take note again that the substitution must
be made with the intention to release the original
debtor.
Parties in delegacion:
a. Delegante - original debtor (Atay);
b. Delegatario.:.. the creditor (Eug.ene); and
c. Delegado - the new debtor (Joey) · knowledge and consent of the original debtor, it
NOTE: In either of the two modes of substitution, the
consent of the creditor is an indispensable
requirement (Quinto v. People, GR No. 126712,
April 14, 1999).
RIGHTS OF NEW DEBTOR:
1. Expromisi6n . knowledge 0t the time when the original
a. Substitution with knowledge and consent of
original debtor and payment made by new
debtor with or without knowledge and
consent of original debtor: . debt (JURADO, Obligations and Contracts,
i. Reimbursement from the original debtor
of the entire amount paid
ii. Subrogation in all the .rights of the
creditor
b. Substitution without the knowledge and
consent of the original debtor, and payment
is made by the new debtor without the
knowledge and consent of the original
debtor:
i. Reimbursement from the original debtor
only insofar as the payment has been
beneficial to such debtor
ii. No subrogation
2. De/egaci6n
- Since substitution was effected with the
consent of all the parties, the new debtor can
demand reimbursement from the original debtor
of the entire amount which he has paid as well as
compel the creditor to subrogate him to all of his
rights (JURADO, Obligations and Contracts,
supra at 343-344).
Civil Law
NOTE: The me1e fcicl ll1cil lite c1euilor receives a
guaranty or c1ccepts payment from a third person
who agrees to assume the obligation, when there
is no agreement that the first debtor shall be
released from responsibility, does not constitute
novation, and the creditor can still enforce the
obligation against the original debtor. If the older
debtor is not released, there is no novation; the
third person becomes merely a co-debtor, surety
or co-surety (Mercantile Insurance Co., Inc. v.
CA, GR No. 85647, April 22, 1991).
EFFECT OF INSOLVENCY OR NON-
FULFILLMENT BY THE NEW DEBTOR
1. Expromisi6n
- If the substitution was effected without the
knowledge and against the will of the original
debtor, the new debtor's insolvency or
nonfulfillment shall not revive the original debtor's
liability to the creditor.
If the substitution was effected with the
shall revive the original debtor's liability to the
creditor (JURADO, Obligations and Contracts,
supra at 345).
,
2. Delegaci6n
- The right of the . creditor can no longer · be
revived except in the following cases:
a. Insolvency already existing and of public
debtor delegated his debt .
b. Insolvency was already existing and known
· to th\:) originaJ debtor when he delegated his
supra at 345).
· It is submitted that actual knowledge of the
creditor that new debtor was insolvent at the
time of delegation, will bar him from
recovering from the old debtor. He must bear
the consequences of his acts knowingly done
(CIVIL CODE, Arts. 1294-1295).
NOVATION BY SUBROGATION
A personal novation effected by subrogating a third
person in the rights of the creditor either legal or
conventional. (CIVIL CODE, Art. 1300).
Subrogation is the substitution of one person in the
place of another with reference to a lawful claim or
right, so that he who is substituted succeeds to the
right of the other in relation to a debt or claim,
including its remedies and securities. It contemplates
full substitution such that it places the party
subrogated in the shoes of the creditor, and he may
use all means which the creditor could employ to
enforce payment. (Lorenzo Shipping Corp. v. Chubb
and Sons, G.R. No. 147724, June 8, 2004).
 ' '-"1 '
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FORMS OF NOVATION BY
SUBROGATION:
1. Conventional
- takes place by agreement of the original
creditor, the third person substituting the original
qeditor, and the debtor (CIVIL CODE, Art. 1301).
moment concerned, arises
novation/ subrog·ation. the moment
2. Legal notification.
- takes place by operation of law (CIVIL CODE,
Art. 1302). (JURADO, Obligations and Contracts, supra at 350).

CONSENT OF ALL PARTIES REQUIRED IN LEGAL SUBROGATION

CONVENTIONAL SUBROGATION GENERAL RULE: Legal subrogation is not
1. The debtor presumed (CIVIL CODE, Art. 1302).
- because he becomes liable under the new
obligation to a new creditor. EXCEPTIONS: (PAI)
1. When a creditor pays another creditor who is
2. The old or original creditor ereferred, without debtor's knowledge;
- because his right against the debtor is
extinguished. Illustration: Atoy has two creditors, Mhik who is
a mortgage creditor for P15,000 and Jerome who
3. The new creditor is an ordinary creditor for P6,000. Jerome paid
- because he may dislike or distrust the debtor Atoy's debt of P15,000 to Mhik. Jerome will be
(DE LEON, Obligations and Contracts, supra at subrogated to the rights of Mhik. This means that
434). Jerome Wijl now be a mortgage creditor for
"p:f5,000 and an ordinary creditor for P6,000.
CONVENTIONAL SUBROGATION V. 2. When a• third person, not interested in the
ASSIGNMENT OF RIGHTS obligation,- pays with the express or tacit
~pproval of the debtor; or

lllustratio_n: Atoy qwes Joey P10,000 secured by

mortgage[ l;:l.!lfaetie, a classmate of Atoy, and
having no connection with the contract paid Joey
with Atoy's approval. Subrogation takes place
·· ,,agd Eugene becomes a mortgage creditor.

If Eugene pays without the knowledge or against

the will of Atoy, he is only entitled to demand
reimbursement as to the extent that Atoy has
been benefited by the payment. There is no
subrogation in this case.

3. When, even without knowledge of the debtor, a

Has the effect of Has the effect of person !nterested in the fulfillment of the
extinguishing the transmitting the rights of obligation pays, without prejudice to the effects of .
obligation and giving the creditor to another confusion as to the latter's share ( CIVIL CODE,
rise to a new one. person without modifying/ Art. 1302).
extinguishing the
obligation. Illustration: Joey owes Gath P10,000 secured
by a mortgage and by a guaranty of Atoy. If Atoy
even without Joey's knowledge pays Cath, Atoy
will be subrogated in Cath's place. By reason of
confusion, or by reason of the fact that Atoy
Defects/ vices in the Defects/ vices in the old became a guarantor and a creditor at the same
old obligation are obligation are not cured. time, the guaranty is extinguished.
cured.
Strictly speaking, there is no legal subrogation
when a solidary debtor pays the entire obligation.
 OBLIGATIONS AND CONTRACTS
· Civil Law

Soliderity terminates upon the payrnenl ur lite after a contract has been entered into. Hence, there
whole obligation. Thus, the paying debtor does can be no contract if there is no obligation. But an
not completely step into the shoes of the creditor, obligation may exist without a contract (DE LEON,
as he cannot demand from any of his co-debtors Obligations and Contracts, supra at
the compliance of the entire obligation but only 444).
the proportion which pertains to each (JURADO,
Obligations and Contracts, supra at 352).

EFFECTS OF SUBROGATION GENERAL PROVISIONS

(CIVIL CODE, ART. 1303-1304)
(ARTS. 1305-1355)
1. Total subrogation
- Transfers to the person subrogated the credit
with all the rights the original creditor had, either
against the debtor or third persons be they ELEMENTS OF CONTRACTS:
guarantors or possessors of mortgages.
1. Essential
- those without which there can be no contract
Accessory obligations are not extinguished; the
a. Common elements - present in all contracts
person subrogated acquires all the rights the
i. Consent
original creditor had against third persons and the
ii. Object or Subject Matter
rule is absolute with respect to legal subrqgation.
· iii. Cause or Consideration
In conventional subrogation, •· acet;ssory
obligations may be increased or
reduc;:ei:f upon
b. · Special elements - present only in certain
cdntracts (e.g., delivery in ieal contracts or
agreement of the parties (JURADO; Obligations
form in solemn ones).
and Contracts, supra at 353r .
C. Extraord'inar-y elements - peculiar to specific
contracts (e.g., price in a contract of sale)
2. Partial subrogation .
- A creditor, to whom partial payment has been 2. Natural
made, may exercise hi$ right for the remainder;
- those which are,derived from the nature of the
and he shall be preferred t() \he perso11 who has
contract and ordirJclfily accompany the same;
been subrogated in his place in virtue of the
they are pres,utnect' by law, although they can be
partial payment of the samij credit.
excJLbec:.f by; the cohtracting parties if they so
desJre '(e.g,f ·w;;1frq(nty against eviction in a
Illustration: Atoy owes E~genJp4,000'.
With the cbnfract of sale) .. ..
consent of both, Joey pays Eugene P2,0QO. Now / ~ ' '"'

Eugene and Joey are the creditors-of Atoy to the

ot
amDunt of P2K. By reason the preferential right
3: Accidental
. - tl]ose whicjl exist only when the parties
to the remainder, Eugene i~ to be preferred in
case Atoy has only P2,000 .. · The.pre,ference, .,expfessly provide for them for the purpose of
limiting ·or. ·modifying the normal effects of the
however, enjoyed by Eugene is onlyjn the p$Sets
contr~mt (e.g. conditions, terms or modes)
remaining with the debtor (Atoy) and no,t those
.(JURADO, Obligations and Contracts, supra at
already transferred to others.
357).
..
NOTE: Contracts must not be confused with other

I CONTRACTS
I juridical conventions such as marriage, adoption and
succession. The principal source of the rights and
obligations of the parties in contracts is their
agreement, while in the other juridical conventions, it
is the law itself (Id. at 354).
CONTRACT
A contract is a meeting of minds hetwP.1:m two ESSENTIAL ELEMENTS OF A VALID
persons whereby one binds himself, with respect to
CONTRACT
the other, to give something or to render some
service (CIVIL CODE, Art. 1305). There is no contract unless the following requisites
concur: (COC) ·
1. fonsent of the contracting parties;
CONTRACT AND OBLIGATION
2. Qbject certain which is the subject matter of the
DISTINGUISHED contract; and
While a contract is one of the sources of obligations, 3. ~ause of the obligation which is established
an obligation is the legal tie or relation itself that exists (CIVIL CODE, Art. 1J18).
 &Wi?$15 \ I

MEM:Q~Y AID
San Seda University College of Law - RGCT Bat Operatior1S Cente,

STAGES OF CONTRACTS: (GPC) 6. According to their form

a. Common or informal requires no
1. Generation
particular form
- comprehends the preparation or conception. It
b. Special/formal/Solemn - requires some
is the period of negotiation and bargaining,
particular form
ending at the moment of agreement of the
parties.
7. According to their cause
a. Onerous - in which each of the parties
2. _Eerfection
aspires to procure for himself a benefit
- the moment when the parties come ro agree
through the giving of an equivalent or
on the terms of the contract
compensation.
b. Gratuitous - in which one of the parties
3. ~onsummation proposes to give to the other a benefit without
- it is the fulfillment or performance of the terms any equivalent or compensation.
agreed upon in the contract (ABS-CBN
Broadcasting Corporation v. CA, G.R. No.
8. According to their subject matter
128690, January 21, 1999).
a. Things - e.g., sale, deposit
b. Services - e.g., agency, lease of services
CLASSIFICATION OF CONTRACTS
1. According to their relation to other 9. According to their names
contracts a. Nominate - have their own individuality;
a. Preparatory- preliminary step towards the regulated by special provisions of law
celebration of another subsequent contract, b. lnnominate - contracts which do not have a
b. Principal - can subsist independently from specific name; not regulated by special
other contracts provisions of law (Id. at 359-361 ).
c. Accessory :... can exist only as a
consequence of, or in relation with, another KINC>'S OF lNNOMINATE CONTRACTS:
prior contract (JURADO, Obligations and 1. Do ut des - I give that you give
Contracts, supra at 359). ·· ·
2. Do ut facias - I give that you do
3. Facio tlt des:.. I do that you give
2. According to the risk inv9lved 4. Facio ut facias " I do that you do (DE LEON,
a. Commutative - each otthe party acquires Obligations andContracts, supra at 463).
an equivalent of his prestation. . :·~., . );.'; ·.•',."._"!< ,°:':(;;)-:;:,e;'··-
. ..·... , . '. , ~,' "

b. Aleatory - each of the parties has to his NOTE: AccBfdl~i{io some authorities, do ut des is no
account the acquisition of an equivalent of his longer an innominate contract. It has already been
prestation upon the happening of an event giyen a name of its own, i.e., barter or exchange
which is uncertain - e.g., insurance (OIJI/L CODE, Art. 1638).

3. According to their perfection HOW INNOMINATE CONTRACTS

a. Consensual - perfected by mere consent of
the parties
REGULATED
b. Real - requires not only consent of the lnnominate contracts shall be regulated,
parties but also delivery of the object for their successively, by:
perfection - e.g., commodatum, deposit, 1. The stipulations of the parties,
mutuum (simple loan). 2. The general provisions of the CIVIL CODE on
obligations and contracts,
4. According to their purpose . 3. The rules governing the most analogous
a. Transfer of ownership - e.g., sale nominate contracts and
b. Conveyance of use - e.g., commodatum 4. The customs of the place (CIVIL CODE, Art.
c. Rendition of service - e.g., agency 1307).

5. According to the nature of the vinculum CHARACTERISTICS OF CONTRACTS:

which they produce (MAOR)
a. Unilateral - give rise to an obligation for only 1. Mutuality (CIVIL CODE, Art. 1308);
one of the parties 2. ~utonomy (CIVIL CODE, Art. 1306);
b. Bilateral - give rise to reciprocal obligations 3. Qbligatory Force (CIVIL CODE, Art. 1159 and Art
for both parties 1315); and
4. B_elativity (CIVIL CODE, Art 1311 ).
 OBLIGATIONS AND CONTRACTS
A. MUTUALITY OF CONTRACTS
The contract must bind both contracting parties; its
validity or compliance cannot be left to the will of one
of them (CIVIL CODE, Art. 1308).
EXCEPTION:
Validity or fulfillment may be left to:
1. The will of a third person, whose decision shall
not be binding until made known to both the
contracting parties (CIVIL CODE, Art. 1309); or
2. Chance (As sensucontrario from CIVIL CODE,
Art. 1308)
The determination shall not be obligatory if it is
evidently inequitable. In such case, the courts shall
decide what is equitable under the circumstances
(CIVIL CODE, Art. 1310).
Contract changes must be made with the consent of
the contracting parties. The minds of all the parties ·
must meet as to the proposed modification, especially
when it affects an important asp~ct of the
agreement Thus, any change IT1ust 'be· mutl)ally
agreed upon; otherwise, it produces no binding effect
(Philippine Savings Bank v. Sps. Castillo, G. R. No.
193178, May 30, 2011). . CODE, Art. f,306). '
Contract of Adhesion
a
One wherein one party imposes ieady-made form
of contract on the other. It is a contract whereby
almost all of its provisions ar~ dra~ed by .one party;
I
with the participation of the other, party being limited
to affixing his or her signature or "adhesion'\. to the
contract. However, contracts of adJ1esion-are not
invalid per se as they are binding as prdifrary
contracts (Encarnacion Construction v. Pho_enix
Ready Mix Concrete Development and Conr,truction,
G.R. No. 225402, September4, 2017).
NOTE: Contracts of adhesion do not violate mutciality
of contracts because the adhering party has. \ht)
freedom to reject it in its entirety. However, in case of
controversy, the contract is interpreted liberally in
favor of the adhering party (JURADO, Obligations
and Contracts, supra at 455). Condition in a contrpct
of adhesion if contrary to public policy should be
declared void and unenforceable to make the courts
accessible to all who may have need of their services
(Sweet Lines v. Teves, G.R. L-37750, May 19, 1978).
Contracts Cannot Be Unilaterally Cancelled
GENERAL RULE: No party can renounce the
contract unilaterally or without the consent of the
other (Landoil Resources v. Tensuan, G.R. No.
77733, December 20, 1988) just as nobody can be
forced to enter into a contract.
EXCEPTION: An agreement that a party may
terminate the contract upon reasonable period of
notice or when cancellation is by reason of breach
Civil Law
(CIVIL CODE, Art. 1191; Palay, Inc. v. Clave, G.R.
No. L-56076, September 21, 1983).
B. AUTONOMY
(FREEDOM TO CONTRACT)
The contracting parties may establish such
stipulations, clauses, terms and conditions as they
may deem convenient (CIVIL CODE, Art. 1306).
Freedom to contract is both a CONSTITUTIONAL
and STATUTORY right (CONST., Art. Ill, Sec 10;
CIVIL CODE, Art. 1306).
In contractual relations, the law allows the parties
leeway and considers their agreement as the law
between them. Contractual stipulations that are not
contrary to law, moral, good customs, public order or
public policy shall be binding and should be complied
with in good faith (Spouses Chung v. Ulanday
· Construction, Inc., G.R. No. 156038, October 11,
2010).
Limitatio.n to the Principle of Autonomy
Stipulations shouid. not be contrary to law, morals,
good custbms, p\,,JbHc order, or public policy (CIVIL
1. Contrary to-Law··._
Acts executed against the provisions of
mandatory or prq_hibitory laws shall be void,
except when the lawhself authorizes their validity
(CIVIL CODE, /lrt. 5).
2. Contrary,to Morals
The morals referred to are those principles which
are incdntrovertible and are universally admitted
and ~hich have · received social and practical
recognition. (JURADO, Obligations and
Cqh(facts, supra at 363).
Example: Interest rate so high that it is so
unconscionable and shocking to the senses
(Anda/ v. PNB, G.R. No. 194201, November 27,
2013) and an agreement on a trial marriage is
void for being contrary to morals.
3. Contrary to Good Customs
Customs consist of habits and practices which
through long usage have been followed and
enforced by society or some part of it as binding
rules of conduct. It has the force of law when
recognized and enforced by law. A custom mu$t.
be proved as a fact, according to the rules of
evidence (CIVIL CODE, Arts. 12 & 1376).
Example: A contract providing for a penalty if one
of the parties would back out from his/her
promise to marry is against good customs
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(PINEDA. Obligations and Contracts, supra at
339).
4. Contrary to Public Order
Refers to the safety, as well as to the peace and
order, of the country or of any particular
community (JURADO, Obligations
Contracts, supra at 364).
Example: A contract to commit ffJhellinn.
All Contracts Are Essentially Consensual
While most contracts are perfected by mere consent, -
others require acts in addition to consent in order to.
obtain obligatory force. These are:
1. Real contracts are not perfected until the
delivery of the object of the obligation (CIVIL
and CODE, Art. 1316).
Examples. Deposit, commodatum and mutuum
(simple loan).

5. Contrary to Public Policy NOTE: This list is exclusive.

By public policy is intended that principle of law
which holds that no subject or citizen can lawfully
do that which has a tendency to be injurious to
the public or against the public good which may
be termed the "policy of the law," or "public policy
in relation to the administration of the law"
(Rivera v. Solidbank Corp., G.R. No. 163269,
April 19, 2006).
2. Solemn contracts or Formal contracts require
compliance with certain formalities prescribed by
law such prescribed form being· thereby an
essential element thereof (DE LEON, Obligations
and Contracts, supra at 542).
Example: Donation of real property; Notarial Will

Examples: A quitclaim where a dismissed
employee waives action against his formei
employer for any cause.
Autonomy of Contracts Submits to Fundamental
Human Rights and General Welfare
Non-impairment clause is inferior to:
1. The Police Power of the State (BF United
Homeowner's Association, Inc. v. The City Mayor
of Paranaque, G.R. No 141010, February 7,
2007) . Unaccepted offers and proposals remain as such and
2. Freedom of Religion (Victoriano v. Elizalde Rope
Workers' Union, G.R. No. L-25246, September
12, 1974).
NOTE: In both real and solemn contracts, contractual
consent is impliedly included.
1[Effect of Perfection of the Contract
:JJ.ri.til:JbE! c9i:ttract is perfected, it cannot, as an
. ihtfopendef:ifi~urce of obligation, serve as a binding
juridical relation (Asuncion v. CA, G.R. No. 109125,
December 2, 1994; Amado v. Salvador, G.R. No.
171401, Decetnb'i;;r 13, 2007).
cannot.1.,~~, · ·. <?O as binding commitments;
hence, no{\\ .ble (Luxuria Homes, Inc. v. CA,
. •. G.R. No. 12 9 , January 28, 1999).

C. OBLIGATORY FORCE i':fi=,rqd:iJh~ moment the parties come to an agreement

Obligations arising from contracts have.'the force of
.' i'·bif3.frteflntte subject matter and valid consideration,
law between the contracting parties arid should be
complied with in good faith (CIVIL CODE, Art; 1159).
Contracts are perfected by mere consent, and from
that moment the parties are bound to the fulfillment of
what has been expressly stipulated and to all
consequences which, according to their nature, may
be in keeping with good faith, usage and law (CIVIL
CODE, Art. 1315).
NOTE: The binding force of contracts comes from the
consent of a free and unimpaired mind. Pacta sunt
servanda, "agreements must be kept"
A party cannot be allowed to renege on his obligation
under a contract simply because he changed his mind
(Morla v. Belmonte, G.R. No. 171146, December 7,
2011).
they are bound not only:
1. To the fulfillment of what has been expressly
stipulated; but also,
2. To all the consequences which according to their
nature, may be in keeping with good faith, usage,
and law {CIVIL CODE, Art. 1315).
D. RELATIVITY
GENERAL RULE: Contracts take effect only
between the parties, their assigns and heirs (CIVIL
CODE, Art. 1311 ).
When a person assigns his credit to another person,
the latter is deemed subrogated to the rights as well
as to the obligations of the former (Fort Bonifacio
Development Corp. v. Fong, G.R. No. 209370, March
25, 2015).
When there is no privity of contract, there is likewise
no obligation or liability to speak about (Asian
Terminal, Inc. v. Padodon Stainless Steel
Corporation G:R. No. 211876, June 25, 2018).
 OBL.IQATIONS AND CONTRACTS
Stipulations Pour Autrui
If a contract should contain some stipulation in favor
of a third person, 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 (CIVIL CODE, Art. 1311, par. 2)
A beneficial stipulation or stipulation pour autrui ("for
another") is a stipulation in a contract, clearly and
deliberately conferred by the contracting parties as a
favor upon a third person, who must have accepted it
before it could be revoked (JURADO, Obligations and
Contracts, supra at 382).
Example: A stipulation in a contract of sublease that
the sublessee's rent shall be paid directly to the
principal lessor is a stipulation pour autrui (Limitless
Potentials, Inc. v. Qui/ala, G.R. No. 157391. July 15,
2005).
Test of Beneficial Stipulation _ 1314).
To constitute a valid stipulation pour autrui it must be
the purpose and intent of the parti~s t_o benefit the,
third person. The test is whether or not the parties
deliberately inserted terms in their agreement with the
avowed purpose of conferring a favor upon such third
person (JURADO, Obligations and Contracts, at 383
citing Florentino v. Encarnacion, G.R. No, L-27696.
September 30, 1977).
Requisites of Valid and Binding Stipulation Pour
Autrui: (FP-CUAR) _ Corporation
1. There is a stipulation in !:_av9r of a third person;
2. The stipulation is a fart, notthe whble, of the
contract;
3. The contracting parties ~learly and deliberately
conferred a favor to the third person - the favor.
is not an incidental benefit; . NOT~.: Only personal obligations or those identified
4. The favor is !,!nconditional and Oncon7pensated;
5. The third person communicated. his · or her
~cceptance of the favor before its revocation;
and
6. The contracting parties do not ,Bepresent, or are
not authorized by, the third party (Republic of the
Philippines v. Legal Heirs of Jose L. Africa, G.R.
No. 205722; August 19, 2015).
Acceptance of Benefit by Third Party Required
If a contract should contain some stipulation in favor
of a third person, he may demand its fulfillment
provided he communicated his acceptance to the
obligor before its revocation (CIVIL CODE, Art. 1311,
par. 2).
REASON: Relativity of Contracts
Form of Acceptance of Beneficiary
The acceptance may be made at any time before the
favorable stipulation is revoked and that the
acceptance may be in any form it does not have to be
Civil Law
formal or express but 111ay l.Je irnµliell (Sps. Narvaez
v. Sps. Alciso, G.R. No. 165907, July 27, 2009).
Exceptions to Relativity of Contracts:
1. Exceptionally, a contract may confer benefits to a
third person or what are otherwise known as
"stipulation pour autrui" (CIVIL CODE, Art. 1311,
par. 2);
2. In contracts creating real right, third pefSons who
come into possession of the object of the contract
may be bound thereby under the provisions of
mortgage laws and land registration law (CIVIL
CODE, Art. 1312);
3. Creditors are protected in cases of contracts
intended to defraud the {CIVIL CODE, Art. 1313);
4. Accion directa is allowed by law in certain cases
(CIVIL CODE, Art. 1729); and
5. Any third person who induces another to violate
his contract can be made liable for damages to
the other contracting party (CIVIL CODE, Art.
lntransmisslbl~ Contractual Rights Do Not Bind
Heirs, Assigns, and Successors-in-interest
Contractual Rights which are by law, nature, or
stipulation intransmissible cannot bind persons other
than the parties thereto.
Example$:
1. Membership in a non-stock corporation . is
generally personal and intransmissible under the
Code (see REVISED
CORPORATION CODE, Sec. 89).
2. Personal obligations are intransmissible by
nature.
. with the persons themselves are extinguished by
death (Stronghold Insurance Co. v. Republic-Asahi
Glass Corp., G.R. No. 147561, June 22, 2006).
3. Right to vote. ,
Real Rights as to those Charged with Notice
A real right is a right belonging to a person over a
specific thing, without a passive subject individually
determined, against whom such right may be
personally enforced.· Such a right, therefore, is
enforceable against the whole world (JURADO,
Obligations and Contracts, supra at 388).
A real right is binding upon third persons who are
chargeable with notice of the same.
A recorded real estate mortgage is a right in rem
(Paderes v. CA, G.R. No. 147074, July 15, 2005).
 ~ ~..·i."''f '
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Transferees of Property Alienated In Fraud
Contracts entered into in order to defraud a creditor CONSENT
are rescissible (CIVIL CODE, Art 1381(3))_

The transferees are effectively bound to the contract

between the transferor and the charging creditor such CONSENT
that any transfer of title to them are rescissible_
Consent is manifested by the meeting of the offer and
the acceptance upon the thing and the cause which
Tortious Interference
are to constitute the contract. The offer must be
There is tortious interference where the ·third person
certain and the acceptance absolute. A qualified
induces a contracting party to violate his contract
acceptance constitutes a counter-offer (CIVIL CODE,
Such third person can be held liable for damages
Art. 1319).
(CIVIL CODE, Art. 1314).

NOTE: The rule on tortious interference implies that
any person aware that a binding contract exists
between parties is bound to respect such juridical tie.
Requisites of Tortious Interference: (MIKE)
1. Existence of Malice;
2. !nterference -by third person without legal
justification or excuse;
3. The Existence of a valid contract; and
4. Kno;ledge on the part of the third person of the
existence of the contract (JURADO, Obligations
and Contracts, supra at 390).
Contracts by Agent without A4tl}ority are,
Unenforceable
As a general rule, a person is not bound by the
contract of another of which he has no knowledge or
to which he has not given his consent (CIVIL CODE;
Art. 1311, par. 1).
A contract entered into in the name ofanoth~r, by one
who has no authority is unenforceable against the
former unless it is ratified by him before;it is revoked
by the other contracting party (CIVIL CODE, Art. 1_317
& 1403 (1)).
REQUISITES OF VALID CONSENT: (CCI)
1. Must be manifested by the foncurrence of the
offer and acceptance (CIVIL CODE, Arts_ 1319-
1326);
2. Parties must possess the necessary legal
fapacity (CIVIL CODE, Arts. 1327-1329); and
3. Must be !ntelligent, free, spontaneous, and real
(CIVIL CODE, Arts. 1330-1346).
. ,"PARTIES" NOT SAME AS "PERSONS"
\::A contract must have at least two parties. However,
\,:;,J~ill~~J9 a 4~fitract need not be a single person, nor
r is it nece~s;3ry;}hat there are two or more persons to
constitute a P!"rtY.
1. Auto-corltr~cts
- a contract :which is executee only by one
persqn exqept that the same person is executing
th~_ everal capacities for several
partie
, \ . ·. , J;xample: X is the agent of Y. X purchases a
'.l,~'C72e!f!.Wrtxtrom Y. In the deed, x signs in his own
·..·· · · hame as buyer. He then signs m a representative
capacity as agent of Y, signing for the Seller.

A contract entered into by an agent in excess of his 2. Collective contracts

authority is unenforceable against the principal, but
- Contracts entered into by several persons as a
the agent is personally liable to the party with whom
singl~ part)'
he contracted where such party was not given
sufficient notice of the limits of the powers granted by Example: Collective bargaining contracts where
the principal (CIVIL CODE, Art. 1897). the collective bargaining unit, composed of many
persons who are employees of the same
When a Person Bound by the Contract of Another employer is bound as a single party.
In order that a person may be bound by the contract
of another, there are two requisites:
1. The person entering into the contract must be CONCURRENCE OF OFFER AND
duly authorized, expressly or impliedly, by the ACCEPTANCE
person in whose name he contracts or he must
have, by law, a right to represent him (like a OFFER
guardian or an administrator); and The proposal to make a contract (JU~Auu,
Obligations and Contracts, at 401).
2. He must act within his power.
In order to constitute a binding proposal, the offer
must be certain or definite {CIVIL CODE, Art. 1319).
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REQUISITES OF VALID OFFER: (DICD)
1. It must be Q_efinite; · c1bsoluteJy in order that there will be a contract (DE
2. It IJ]ust be !ntentional;
3. It must be ~omplete; and
4. It must be Q_irected to a person or persons with
whom the offeror intends to enter into a contract,
except definite offers which are not directed to a
particular person but to the public in general (i.e ..
public auction).
DEFINITE OFFER
An offer is definite if it is clearly stated. It must not be
vague or doubtful in its terms as to put to inquiry what
is to be accepted ( 4 TOLENTINO, supra at 448).
INTENTIONAL OFFER
An offer is intentional if it is seriously made with clear
intent and purpose to enter into a contract. There
must be a view of entering into an agreement.
NOTE: An offer clearly made in jest without intent to
be bound if accepted is not a valid offer (Id.at 449).
COMPLETE OFFER
An offer is complete if it is not lacking in its terms as
to require the parties to enter into subsequent
agreements. Any terms and conditions,· and other
1::1cc~ssury slipulc1lions must be comrnunicat8d (Id.at
449).
DIRECTED OFFER
For the offer to be valid, it must be effectively
communicated to the person with whom the offerer
intends to contract with (Id.at 449).
NOTE: A written offer not delivered to the intended
recipient, but remained in a sealed envelope on the
person's desk cannot be accepted.
WITHDRAWAL OF OFFER
Offer or proposal may be withdrawn so long as the
offeror has no knowledge of acceptance by offeree
(JURADO, Obligations and Contracts, supra at 401).
Pending the acceptance of an offer, the offeror can
perfect a contract over the same thing with another
persu11 (4 TOLENTINO, supra at 458).
EXCEPTION: Option Contract if it is founded upon
a consideration, as something paid or promised
(CIVIL CODE, Art. 1324).
COUNTER-OFFER
This refers to qualified acceptance; involves a new
proposal; a rejection of the original otter (JUHALJU,
Obligations and Contracts, supra at 401 ).
Civil Law
A qualified acceptance must, in turn, be accepted
LEON, Obligations and Contracts, supra at 516).
COMPLEX OFFERS
When a single offer involves two or more contracts,
the perfection, where there is only partial acceptance,
will depend upon the relation of the contracts
between themselves, whether due to their nature or
due to the intent of the offerer (4 TOLENTINO, supra
at 452).
RULE ON COMPLEX OFFERS:
1. Offers are interrelated
- contract is perfected if all the offers are
accepted.
2. Offers are not interrelated
- single acceptance of each offer results in a
perfected contract unless the offeror has made it
clear that one is dependent upon the other and
acceptance of both is necessary (JURADO,
Obligations and Contracts, supra at 401).
ACCEPTANCE
The acceptance must also be certain or definite and
must be absolute in character. A qualified acceptance
co11slilutes c1 cuunler-offer (CIVIL CODE, Ari. 1319).
It may be express or implied (CIVIL CODE, Art.
1320).
REQUISITES OF ACCEPTANCE:
(ADI-PC)
1. 8bsolute (no vitiation);
2. Qirected to the offeror;
3. Made with the !ntention to be bound (animus
contrahendi);
4. Made within the froper time; and
5. fommunicated to the offeror and learned by him·.
unless the offeror knows of the acceptance.
AMPLIFIED ACCEPTANCE
Under certain circumstances, a mere amplification on
the offer must be understood as an acceptance of the
original offer, plus a new offer which is contained in
the amplification. The intent of the offeree, however,
controls (4 TOLENTINO, supra at 452).
SUCCESSIVE AGREEMENTS
If the intention of one or both parties is that there be
concurrence on all points, the contract is not
perfected if there is a point of disagreement, even if
there is already agreement on the essential elements
of the contract (4 TOLENTINO, supra at 452).
!Example: Either or both parties have declared that
there must be agreement on who should bear the

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expenses of transportation of the thing upon delivery,
the contract is not yet perfected (4 TOLENTINO,
supra at 453).
IMPLIED ACCEPTANCE
Implied acceptance may arise from acts or facts
which reveal the intent to accept, such as the
consumption of the things sent to the otferee, or the
fact of immediately carrying out the contract offered
(4 TOLENTINO, supra at 4oU).
RIGHT OF THE OFFEROR
MANNER OF ACCEPTANCE
The otferor may fix the time, place, and manner of
acceptance, all of which must be complied with
(CIVIL CODE, Art. 1321).
NOTE: An acceptance which is not made in the
manner prescribed by the otferor is not effective, but
constitutes a counter-offer which the offeror may
accept (4 TOLENTINO, supra at 462).
OFFER MADE THROUGH AN AGENT
An offer made through an agent (not mere
messenger) is accepted from the time acceptance is
communicated to him (CIVIL CODE, Art. 1322).
NOTE: Art. 1322 is not applicable 'when an
intermediary has no power to bind either the offeror
or the offeree. Thus, the communication of the
acceptance to him does not perfect the contract (4
TOLENTINO, supra at 462).
Both the offer and acceptance are made through an
agent. If acceptance is through an agent, offer must
be authorized (DE LEON, Obligations and Contracts,
supra at 575).
THEORIES THAT DETERMINE THE
EXACT MOMENT OF PERFECTION
WHEN ACCEPTANCE IS MADE BY
LETTER OR TELEGRAM: (MERC)
1. Manifestation Theory
- perfected from the moment the acceptance is
declared or made.
Note: This is adhered to by the Code of
Commerce.
2. :£Xpedition Theory
- perfected from the moment the offeree
transmits the notification of acceptance to the
offeror.
3. Reception Theory
- perfected from the moment that the notification
is in the hands of the offeror in such a manner
that he can, under ordinary conditions, procure
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the knowledge of its contents, even if he is not
able to actually acquire such knowledge.
NOTE: This is adhered to by the E-Commerce
Act in some cases.
4. fognition Theory
- perfected from the moment the acceptance
comes to the knowledge of the offeror. This is
adhered to by the CIVIL C00E (JURADO,
Obligations and Contracts, supra at 402).
TO SET
SILENCE CONSTRUED AS CONSENT
Requisites: (DCC)
1. There is a .Quty or possibility to express oneself;
2. The manifestation of the will Cannot be
interpreted in any other way; and -
3. There is a flear identity in the effect ofthe silence
and the undisclosed will (4 TOLENTINO, supra at
455).
OPTION CONTRACT
A preparatory contract giving a person for a
;consideration a certain period and under specified
· c~mditions within which to accept the offer of the
dfferor. It is separate and distinct from the projected
main agreemeht or principal contract itself (subject
matter of the, opti,on) which the parties may enter into
upon the consummation of the option or which will be·
perfected upon the acceptance of the offer (DE
LEON, at 527); ,_
. NOTE: Tneic;o!l.~i~eiation need not be monetary; it
may consistof'other things or undertaking but they
must be of value, in view of the onerous nature of the
contr:a~t of option (Navotas Industrial Corporation v.
Gruz, G.R,. No. 159212, September 12, 2005)
Requisites:
1. It is supported by an independent consideration;
and
NOTE: If the option is without a consideration it
is a mere offer to sell which is not binding u~til
accepted. If, however, acceptance is made
before a withdrawal, it constitutes a binding
contract (Sanchez v. Rigas, G.R. No. L-25494,
June 14, 1972).
2. It is exclusive (4 TOLENTINO, supra at 466).
ARTICLES 1324 AND 1479 COMPARED
Article 1324 lays down the general. rule regarding
offei and acceptance. It has been interpreted as
modified by the provision of Article 1479 of the CIVIL
CODE which applies specifically to "a promise to buy
or sell" (DE LEON, Obligations and Contracts, supra
at 582).
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An unconditional mutual promise to buy and sell as
long as the object Is made determinate and the price
is fixed can be obligatory on the parties, and
compliance therewith may accordingly be exacted
(Asuncion v. CA, GR. No. 109125, December 2,
1994),
A unilateral promise to buy or sell a determinate thing
not supported by any consideration distinct from the
price for which that thing was intended to be sold by
or to the promisee (offeree) does not bind the
promissor (offeror), even if accepted, and may be
withdraw,n at any time (Asuncion v. CA, G.R. No.
109125, December 2, 1994).
NOTE: The optionee (holder of option) has the right,
but not the obligation, to buy or sell. Once the option
is exercised timely, i.e., the offer is accepted before a
breach of the option, a bilateral promise to buy and
sell ensues and both parties are then reciprocally
bound to comply with their respective unqE:Jrtakings ·
(Asuncion v. CA, G.R. No. 109125, December 2,
1994). In other words, a perfected contract of o~tigp
does not result in the perfection orcons'i.11J1n:iation of
the sale. Only when the optionils e:icercjsed rnay a·
sale be perfected (Abalos V. Macatpriµ'ay,,Jr., G.R.
No. 155043, September 30, 2D04): .. ,l •
BUSINESS ADVERTISEI\IJEr,iTS
GENERAL RULE: They are mer~ invitations to make
an offer, and not definite pf(E:Jt;S; unless )t appears
otherwise (CIVIL CODE, Arf. 1325jt . 2., lnsaA~ bf Demented·
EXCEPTION: However, cidve~if;eril~nt is
complete in all the particularshecessary in acbritr~ct, ,
it may amount to a definite offer which; if accepted:
will produce · a perfected contract (bl;,, LEON,
Obligations and Contracts, supra ~t 539). ·.
Example: For sale: 1,000 square meters 1qt ~t dreen
Plains Village, Quezon City located at the cbrnerof
Geronimo and Magallanes Streets for P5,000,000
cash. - Tel. No, 817-12-84." This is a definite offer
(Id. at 539).
.ADVERTISEMENTS FOR BIDDERS
They are simply invitations to make proposals. The
advertiser is not bound to accept the highest or lowest
bidder, unless the contrary appears (CIVIL CODE,
Art. 1326).
An advertisement to possible bidders is simply an
invitation to make proposals, and that an advertiser is
not bound to accept the lowest bidder unless the
contrary appears; respondent had the right to reject
bids, and it cannot be compelled to accept a bidder's
proposal and execute a contract in its favor. Indeed,
under Article 1326 of the Civil Code, which
specifically tackles offer and acceptance of bids,
OBLIGATIONS AND CONTRACTS
Civil Law
provides that advertisements for bidders are simply
i11vilalions lo 111ake µ1 uµusc1ls, arnJ ll 1al a11 c1dvertiser
is not bound to accept the highest bidder unless the
contrary appears (Northern Mindanao Industrial Port
and Services Corporation v. 1/igan Cement
Corporation, G.R. No. 215387, April 23, 2018).
NOTE: It is not applicable to judjcial sales because
the highest bid must necessarily be accepted (4
TOLENTINO, supra at 469).
LEGAL CAPACITY TO CONSENT
LEGAL CAPACITY
It refers not only to natural persons, but also to
artificial as well. The absence of legal capacity results.
in legal incapacity, the causes of which are based on
positive provisions of law, and exist in opposition to,
or as limitations of, natural capacity, as in the case of
persons under civil interdiction (DE LEON,
O~ligat1'ons,,and Contracts, supra at 543).
Th; {ap~city . of the contracting parties is an
. indispens_able' 'requisite of consent (JURADO,
Obligations and
\,
Contracts,
.. ;,
,,,, .,'
supra at 417).
PERsqNs"' lNOJ.\,RACITATED To ·GIVE
CONSENT ACCORDING TO THE CIVIL
CODE: (MID)·... .,
1. ,Minors. ; · ••
3. QeafmUtes ,Who•c:~~not read nor write.
if" ttfe
COt:,!$ENT,6F MINORS
· Unc:le'i\theCfvil Code/minors have a limited capacity
.:to con§enL Consent by a minor is not an absence of
conseQt ,as fo render the resulting contract void, A
m.ino(? con';;,ent only results in a voidable contract.
MINORS MAY CONTRACT THROUGH
THEIR GUARDIANS
Minors may validly contract without any impairing the
validity of said contract when they contract through
their natural guardians (parents) or legal guardians
(Id. at 418).
INSTANCES WHEN MINOR'S CONSENT
IS NOT DEEMED VITIATED
1. When the contract is entered into by a minor who
actively misrepresents his age (not . merely
constructive representation) (Mercado v. Espiritu,
GR. No. L-11872, December 1, 1917);
This exception is based on estoppel. Estoppel
presupposes capacity to misrepresent. The
circumstances of the minor (i.e. he appears to be
of legal age) must be of such nature that it could
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have been relied upon by the other party. LUCID INTERVAL

otherwise, the contract remains voidable
(Mercado v. Espiritu, GR No. L-11872,
December 1, 1917).
2. When it involves the sale and delivery of
necessaries to minors (CIVIL CODE, Art. 1489,
par. 2):
3. When It Involves a m1turol obligulio11 ui11J t:ucl1
obligation is fulfilled voluntarily by the minor
(CIVIL CODE, Arts. 1425-1427);
Contracts entered into during a lucid interval are valid
(CIVIL CODE, Art. 1328)
A person under guardianship for insanity may still
enter into a valid contract and even convey property,
provided it is proven that at the time of entering into
said contract, he was not insane or that his mcntnl
defect, if mentally deranged, did not interfere with or
arrect his capacity to appreciate the meaning anJ
significance of the transaction entered into by him
(JURADO, Obligations and Contracts, supra at 422).

CONTRACTS ENTERED INTO BY PRESUMPTION OF CAPACITY

MINORS MAY BE RATIFIED
When upon reaching the age of majority, they ratify
the same (Badillo v Ferrer, G.R. No. L-51369, July
29, 1987).
INSANE OR DEMENTED PERSONS
An insane or demented person includes any person,
who at the time of the celebration of the contract ..
can~ot understand the nature and consequences of
the act or transaction by reason of any caUS$
affecting his intellectual or sensitive faculties whethe.r
permanent or temporary (JURADO, Obligations and
Contracts, supra at 421 ).
It is not necessary that there be a previous
declaration of mental incapacity il'I• ord~r that a
contract entered into by a ment9 1ly defective person
may be annulled; it is enough that the insanity existed
at the time the contract was made ( 4 TOLENTINO,
supra at 471).
NOTE: Mere forgetfulness without evidence that the
same has removed from a person the· ability to
intelligently and firmly protect his property rights, will
not by itself incapacitate a person from ente~ing into
contracts (Almeda v. Heirs of Ponciano Almeda, G. R.
No. 194189, September 14, 2017).
STATE OF DRUNKENNESS
HYPNOTIC SPELL
Contracts agreed to in a state of drunkenness or
during a hypnotic spell are voidable ( CIVIL CODE,
Art. 1328).
But the same must be of a degree that obscures
completely the faculties and almost extinguishes the
consciousness of acts (JURADO, Obligations and
Contracts, supra at 422).
There is a prima facie presumption that every person
of legal age possesses the necessary capacity to
execute a contract (Id. at 423).
DEAF-MUTES WHO DO NOT KNOW HOW
TO WRITE
Being a deaf-mute is not by itself a disqualification for
giving consent. The law refers to the deaf-mute who
;;;,:a.does not know how to write ( 4 TOLENTINO, supra at
.i'."471).
IN~OMPETl;NTS
Under the Rut.es of Court, the following are
considered incompetents and may be placed under
guardianship: ·
· 1. Civil Interdiction
2. Hospitc!li2:ed .1.ey~ws,.
3. Prod}gal~(spi!ifi9tnrift)
· .. 4. Deaf aHdcfumb who are unable to read and write
5. Those of unsound mind even though they have
-1\Jcid intervals
,_6,_ .•Tht:ir:;e.y;ho by reason of age, disease, weak mind ·
. and other similar causes, cannot without outside
aid, take care of themselves and manage their
property becoming thereby an easy prey for
deceit and exploitation (RULES OF COURT,
SECTION 2, Rule 92)
OR
NOTE: Incompetents are also incapacitated from
giving unimpaired·consent.
EFFECT WHERE BOTH CONTRACTING
PARTIES ARE INCAPABLE OF GIVING
UNIMPAIRED CONSENT
If both of the parties are incapable of giving consent,
the contract is unenforceable (CIVIL CODE, Art.
1403).

It is the result of the use of alcohol or drugs upon the
condition of the mind which determines whether the
user has capacity to contract at any given moment;
the mere use in itself does not incapacitate him (4
TOLENTINO, supra at 472).
DISQUALIFICATION TO CONTRACT
Refers to those who are prohibited from entering into
a contract with certain persons with regard to certain
property under certain circumstances and, not to
 OBLIGATIONS AND CONTRACTS
Civil Law

those who are incap8cilcJleLf Lu yive their consent to a. Y.1olence;

a contract (CIVIL CODE, Arts. 1490& 1491). b. !ntimidation;
c. _Mistake
INCAPACITY V. DISQUALIFICATION d. .E.raud; and
e. !!ndue influence (CIVIL CODE, Art. 1330).

2. Vices of declaration (vicios de la

declaracion);

3. Simulation of contracts (CIVIL CODE, Arts.

1345-1346).

MISTAKE
Mistake or error is the false notion of a thing or a fact
material to the contract (DE LEON, Obligations and
Contracts, supra at 556).

TWO GENERAL KINDS OF MISTAKE

(JURADO, Obligations and Contracts, supraaf428).
PERSONS DISQUALIFIEDJO . · ·
CONTRACT
1. Those under Civil interdictipnt for transactions
inter vivos (REVISED PENf\L CODE, Art. 34).
2. Undischarged insolvents (INSOLVENCY LAW,
Sec. 24) · . .
3. Husband and wife cannot donate to.each other to
each other(FC, Art. 87) •· ,; · · ·.
4. Husband and wife cannbt sell property to .~ach
other except when they 9 re by t:onsent pr by
. judicial order under a regime of separation of
property (CIVIL CODE, Art. 1490)
5. Either spouse may not alienate or enc(Jml:>er
community or conjugal property. wittiout the
consent of the other spouse (FC, Art~ 96 and
124) .
6. The following cannot purchase (CIVIL CODE,
AJt.1491):
a. The guardian: his ward's property
b. The agent: the principal's property
c. Executors and administrators: property
under administration;
d. Public officers: state property under their
administration;
e. Justices, judges, prosecutors, clerks of court,
lawyers: property attached in litigation.
CONSENT MUST BE FREE,
INTELLIGENT, SPONTANEOUS, REAL
VICES OF CONSENT
1. Vices of the will (vicios de la formacion
de la voluntad): (VIMFU)
· Orie or bcith co'rttracting One or both parties arrive
parties 'believe th 9 t a at an erroneous
fact exists when in conclusion regarding the
reality it doe§ not or vice interpretation of a
versa. question of law or legal
effects of a certain act or
transaction.
Vitiates conseQt. Does not vitiate consent
except when it involves
mutual error as to the
effect of an agreement
when the real purpose is
frustrated.
(JURAPS, Obligations and Contracts, supra at 429).
REQUISITES OF MISTAKE OF FACT
WHICH VITIATES CONSENT: (SEM)
1. The error must be ~ubstantial regarding:
a. The object of the contract (error in re) which
may be:
i. Mistake as to the identity of the thing
(error in corpore);
ii. Mistake as to the substance of the thing
(error in substantia);
iii. Mistake as to the condition or state of the
thing; or
iv. Mistake as to the quantity of the thing
(error in quantitate) (Id. at 433);
b. The conditions which primarily moved or
induced one or both of the parties to enter
into the contract (CIVIL CODE, Art. 1331);
c. Identity or qualifications of one of the parties
(error in persona), but only if such was the
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rrinr.ir;:il r.;:iuse of the contract (CIVIL CODE,
Art. 1331, par 2).
2. The error must be £XCusable; and
3. The error must be a .Mistake of fact, and
not of law (JURADO, Obligations and Contracts,
supra at 430-432).
ERROR IN RE
In order that mistake may invalidate consent, it should
refer to the substance of the thing which is the object
of the contract, or to those conditions which have
principally moved one or both parties to enter into the
contract (CIVIL CODE, Art. 1331, par. 1).
1. Mistake as to the identity of the thing as when the
thing which constitutes the object of the contract
is confused with another thing;
2. Mistake as to the substance of the thing (error in
substantia);
3. Mistake as to the conditions of the thing, provided
such conditions have principally moved one or
both parties to enter into the contract; and
4. Mistake as to the quantity of the thing (error in
quantitate), provided that the extent or dimension
of the thing was one of the principal reasons of
one or both of the parties for entering into the•
contract.
The only mistake with regard to persons which will
vitiate consent are mistakes with regard to the identity
or the qualifications of one of the contracting parties.
(CIVIL CODE, Art. 1331, par. 2).
MISTAKE OF LAW
Mistake of law as a rule will not vitiate consent, except
when mutual error as to the legal effect of an
agreement when the real purpose of the parties is
frustrated, may vitiate consent (CIVIL CODE, Art.
1334).
REQUISITES OF MISTAKE OF LAW
WHICH VITIATES CONSENT: (LMF)
1. The mistake must be with respect to the begal
effect of an agreement;
2. The mistake must be ~utual; and
3. The real purpose of the parties must. have been
frustrated (CIVIL CODE, Art. 1334).
BURDEN OF PROVING DEFENSE OF
SUFFICIENT UNDERSTANDING
, . There is no mistake if the party alleging it knew the
'··-~· clouM, conti~~iency or risk affecting the object of the
contract (C,(Y/A CODE, Art. 1333).

MISTAKES WHICH DO NOT IN ANY.
MANNER AFFECT THE VALIDITY-OF THE
CONTRACT
1. Error with respect to accidental qualities of the
object of the contract (e.g. the quc!lity of the
paper of a book, the adjoining owners pf a piece
of land);
2. Error in the value of the thing (e.g. when a
person, having forgotten the cost price of
merchandise, erroneously sells it for}ess); and
3. Error which refers, not to the condition? pf the
thing, but to accessory matters in the C()ntract
foreign to the determination of the object ( 4
. TOLENTINO, supra at 480).
ERROR IN QUANTITA TE
It is important that this class of mistake should be
distinguished from a mistake of account or
calculation. In the first, there is a real mistake as to
the extent of the object of the contract; in the second,
there is only an apparent mistake, a mere mistake in
mathematical computation. As a consequence, in the
first, the contract is voidable; in the second, it is not
(JURADO, Obligations and Contracts, supra at 430).
ERROR IN PERSONA
This kind of mistake or error may refer either to the
name or to the identity or to the qualification• of a
person.
The obligatiop)b show that the terms of the contract
had been fuUy explained to the party who is unable to
read or ur:ider;,taf)d the language of the contract,
when fraLJcl ori mistake is alleged, devolves on the
. party seekin fo enforce it (CIVIL CODE, Art. 1332).
'1.f;.,-·v
,;apply, it must first be convincingly
. established that the illiterate or disadvantaged party
'"c9µJ9 not read or understand the language in which
t~,~'!'ltr:actwas written, or that the contract was left
" uhexplalnec:i'to said party (Dela Cruz V. Dela Cruz,
G.R. No. 146222, January 15, 2004).
ILLITERATE WHO SIGNS A CONTRACT
IS PRESUMED TO KNOW ITS CONTENTS
The rule that one who signs a contract is presumed
to know its contents has been applied even to
contracts of illiterate persons on the ground that if
such persons are unable to read, they are negligent
if they fail to have the contract read to them (Diampoc
v. Buenaventura, G.R. No. 200383; March 19, 2018).
It is a well-settled principle that the law will not relieve
parties from the effects of an unwise, foolish or
disastrous agreement they entered into with all the
required formalities and with full awareness of what
they vvere doing (Diarnpoc v. Buenaventura, G.F?.
No. 200383; March 19, 2018).
VIOLENCE
When in order to wrest consent, serious or irresistible
force is employed (CIVIL CODE, Art. 1335).
 OBLIGATIONS AND CONTRACTS
REQUISITES FOR EXISTENCE OF
VIOLENCE SUFFICIENT TO VITIA TE
CONSENT: (SD)
1. The force employed to wrest consent must be
Serious or irresistible; and
2. Must be the Q_etermining cause for the party upon
whom it is employed in entering into the contract
(JURADO, Obligations and Contmcts, supra at
436).
INTIMIDATION
There is intimidation when one of the contracting
parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of
his spouse, descendants or ascendants, to give his
consent (CIVIL CODE, Art. 1335).
REQUISITES FOR EXISTENCE._ OF
INTIMIDATION SUFFICIENT TO VITIA,TE
CONSENT: (CIRUP)
1. One party is _g_ompelled to give his consent by a
reasonable and well-grounded fear of an evil;
2. The evil must be !mminent and grave;
3. It is the Beason why hP- entP-rs the conJract;
4. The evil must be Unjust (JIJRADO, Obligations
and Contracts, supra at'436); and ·
5. The evil must be upon his Person or property, or
that of his spouse, descendants, or ,:i'scendants
(DE LEON, Obligations'and,, Contracts, supra at
566). . VIOLENCE
FACTORS THAT MAY BE CONSIDERED
IN DETERMINING INTIMIDATION
To determine the degree of intimidation, the age, 9ex
and condition of the person shall be -borne in mind
(CIVIL CODE, Art. 1335, par. 3).
It refers principally to the person intimidated. By
condition here is meant not only the resolute or weak
character of the person intimidated, but also his other
circumstances, such as his capacity or culture, which
permits him to appreciate whether or not there is an
imminent danger, his position, by which he can
determine whether or not it gives him a chance to
thwart the danger (JURADO, Obligations and
Contracts, supra at 441).
NOTICE OR WARNING OF JUST ACTION
NOT INTIMIDATION
A threat to enforce one's claim throui:ih competent
authority, if the claim is just or legal, does not vitiate
consent. (CIVIL CODE, Art. 1335, par. 4).
Even if it can be established that the reason or motive
of a party in entering into a contract was the threat of
Civil Law
the other to proceed against him through the courts,
the contract would still be perfectly valid and not
voidable (JURADO, Obligations and Contracts, supra
at441).
The intimidation that wiU annul a contract has to do
with the evil or harm arising from an unlawful act. The
fear in itself does not justify the annulment of the
contract, unless such fear was induced by a
threatened wrong (4 fOLENTINO, supra at491-492).
REVERENTIAL FEAR
If a contract is signed merely because of "fear of
displeasing persons to whom obedience and respect
are due," the contract is still valid, for by itself,
reverential fear is not wrong (4 PARAS, supra at 639).
EXCEPTION: If in addition to such fear of causing
displeasure, there is an imposition upon the will, then
the c.onsent will be vitiated ( 4 TOLENTINO, supra at
498).
NOTE: Consent given through intimidation must not
be confused with ·consent given reluctantly and even
against good sens~ ,md judgment. It is clear that one
acts as voluhtarily and independently in the eyes of
the law when he acts reluctantly and with hesitation
as when he ;xcts .s'pontaneously and joyously
(JURADO, Obligations {Ind Contracts, supra at 437
citing Vales v. Villa, G.R. No. 10028, December 16,
1916).
V. INTIMIDATION
Refers tb physical Refers to moral
compulsion , compulsion
Externa'r or-pt~vents the Internal or induces the
will to mahifest itself performance of an act
(JURADO, Obligations and Contracts, supra at 435).
VIOLENCE NEED NOT COME FROM
PARTIES
Violence or jntimidation shall annul the obligation,
although it may have been employed by a third
person who did not take part in the contract (CIVIL
CODE, Art. 1336).
UNDUE INFLUENCE
When a person takes improper advantage of his
power over the will of another, depriving the latter of
a reasonable freerlom of choice (CIVIL CODE, Art,
1337).
 &Ai#W \ I

MEM:Q~Y AID
San Be<la Univers;ty Collage of Law · RGCT Bar Operations Conter

REQUISITES FOR EXISTENCE OF interest or ill-will that part;:ikes of the nature of fraud
UNDUE INFLUENCE SUFFICIENT TO (Cathay Pacific, Ltd. v. Vasquez, G.R. No. 150843,
March 14, 2003).
VITIATE CONSENT: (IPD)
1. !mproper advantage; INSIDIOUS WORDS AND
2. _eower over the will of another; and
3. Q_eprivation of the latter's will of a reasonable
MACHINATIONS
freedom of choice (JURADO, Obligations and Constitutes deceit, including false promises,
Contracts, supra at 443). exaggeration of hopes or benefits, abuse of
mnfidence, fictitious names, qualificc1tions or
NOTE: Undue influence must be distinguished from authority (4 TOLENTINO, supra at 505).
intimidation, in that in intimidation there must be an
unlawful or unjust act which threatens, and which REQUISITES OF FRAUD UNDER
causes consent to be given, while in undue influence, ARTICLE 1338: (BE-SIN)
there need not be an unjust or unlawful act (4 1. It must be made in .§_ad faith, i.e., with knowledge
TOLENTINO, supra at 501). of its falsity (4 TOLENTINO, supra at 445-446);
2. One party must have gmployed fraud or insidious
Test of Undue Influence: Whether or not the words or machinations;
influence exerted has so overpowered or subjugated 3. It must have been .§erious;
the mind of a contracting party as to destroy his free 4. It !nduced the other party to enter into a contract;
agency, making him express the will of another rather and
than his own (JURADO, Obligations and Contracts, ' 5. !t must have been employed by one contracting
supra at 444 citing Gosa v. Fernandez Deza, GR. party upon the other and Not employed by both
No. L-16763, December 22, 1921). contracting parties or by third persons.

NOTE: By analogy, undue influence employed by a

third person may annul the contract (4 TOLENTINO.
.tFBAUD NOT PRESUMED
, ;<.,,· ' ' · ·,,,,,~·-·· .. " , "" ·,'., .;·;-;•1'"\L

supra at 503 citing Commission Memqrandum to
Joint Congressional Committee on Codification,
March 8, 1951).
FRAUD IN CONTRACTS
When, through insidious words or machir:ic'!tions of
one of the contracting parties, the other is induced to
enter into a contract which, without thflm, would
not have agreed to (Cl\1/L CODE, Art.. 1338).,
Fraud is deemed to comprise anything calculated to
deceive, including all acts, omIss1ons, and
concealment involving a breach of legal or equitable
duty, trust, or confidence justly reposed, resulting in
damage to another, or by which an undue and
unconscientious advantage is taken of another
(Information Technology Foundation of the
Philippines v. Commission on Elections, G.R. No.
159139, June 6, 2017).
MALICIOUS INTENT IS
LIABILITY FOR FRAUD
As a ground for damages, malice or dishonesty is
implied. It is the element of intent and not the harm
done (JURADO, Obligations and Contracts, supra at
64).
FRAUD SYNONYMOUS WITH BAD FAITH
Bad faith does not simply connote bad judgment or
negligence; it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a
breach of a known duty through some motive or
· · Bad taifn•~i'iil fraud are allegations of fact that
demand cleaf~i\d convincing proof. They are serious
accusationsJhatcan be so conveniently and casually
· ·. invoked, add (!,at is why they are never presumed
(Cathay Pticifiq Ai,tyays, Ltd., v. Sps. Vazquez, G.R.
;No. 1508/43, M_ h';J4, 2003; DPWH v. Quica, G.R.
.'/No. 18~ft .. .. ;}Ji-OB, 2012).
he .• LEGAL EXAMPLES AND
·.:ul:~tl.:ISJRATIONS OF FRAUD
;'.;:11;;;4?r.iucl by concealment
Failure to disclose facts, when there is a duty to
reveal them, constitutes fraud (CIVIL CODE, Art.
1339).
A neglect or failure to communicate that which a
party to a contract knows and ought to
communicate constitutes concealment. In this
case, concealment is equivalent to
n:iisrepresentation (INSURANCE CODE, Sec.
BASIS OF 26).
NOTE: Silence or concealment by itself does not
constitute fraud. The concealment contemplated
in Article 1339 presupposes a purpose or design
to hide facts which the other party ought to know
(DE LEON, Obligations and Contracts, supra at
641).
The injured party is entitled ·to cancel or annul a
contract whether the failure to disclose the
material facts is intentional or unintentional as
long as there is a duty to reveal or disclose them
 OBLIGATIONS AND CONTRACTS
Civil Law

or according to good faith such disclosure should WHEN MISREPRESENTATION NOT

be made and the other party is misled or
deceived in entering into the contract. If the
failure is unintentional, the basis of the action for
annulment is not fraud but mistake or error (CIVIL
CODE, Art. 1343).
If unintentional and there i.s no duty to make the
disclosure, the parties are bound by their contract
(Id.).
2. Principle of Tolerated Fraud (Do/us
Bonus)
The usual exaggerations in trade, when the other
party had an opportunity to know the facts, are
not in themselves fraudulent (CIVIL CODE, Art.
1340).
This is known as "tolerated fraud" which includes
minimizing the defects cif the thing, exaggerating
its good qualities, and giving it qualities that it
does not have. They do not affect the validity of
the contract, so long as they do not go· to. the
extent of malice or bad faith (4 TOLENTINO,
supra at 510).
FRAUD
Misrepresentation made in good faith is not
fraudulent but may constitute error (CIVIL CODE, Art.
1343).
MUTUAL FRAUD
When both parties use fraud reciprocally, neither one
has an action against the other, and neither party can
ask for the annvlment of the contract (DE LEON,
Obligations and Contracts, supra at 651 citing Valdez
v. Sibal, GR. No. L-26278, August 4, 1927). .
DISTINCTION OF FRAUD IN CONTRACTS
There are two types of fraud contemplated in the
performance of contracts: dolo incidente or
incidental fraud and dolo causante or fraud serious
enough to render a contract voidable (Tank?h v.
Development Bank of the Philippines, GR. No.
171428, November 11, 2013).
DOLO INCi.DENTE V. DOLO CAUSANTE

Dealer's talk or trader's talk are representations

which do not appear on the face of the contract
and these do not bind either party (DE LEON,
Obligations and Contracts, supra at 582; Puyat v.
Arce Amusement Co., G.R. No. L-47538, June
20, 1941; Philippine Steel Coating Corp. v. Not serioLJs in character Deceptions or
Quinones, GR. No. 194533, April 19,. 2017). and without which the misrepresentations of a
other party would still serious character
3. Expression of an Opinion have entered into ttie employed by one party
A mere expression of an opinion does not signify contract and without which the
fraud unless made by an expert and the other other party would not
party relied on the farmer's special knowledge have entered into the
(CIVIL CODE, Art. 1341). contract.

An opinion of an expert is like a statement of a

fact, and if false, may be considered a fraud
giving rise to annulment (4 TOLENTINO, supra at
511).

4. Fraud by Third Person

Fraud by a third person does not vitiate consent
and merely gives rise to an action for damages Person employing it Nullity of the contract
by the party injured against such third person must pay damages. and the indemnification
unless: of damages.
1. It has created a substantial mistake and the
same is mutual (CIVIL CODE, Art. 1342). (Geraldez v. Court of Appeals, G.R. No. 108253,
2. A third person makes the misrepresentation February 23, 1994).
with the complicity, or at least with the
knowledge but without the objection, of the SOME EXAMPLES OF WHAT
contracting party who is favored (JURADO, CONSTITUTE DOLO CAUSANTE OR
Obligations and Contracts, supra at 449). CAUSAL FRAUD:
1. When the seller, who had no intention to part with
her property, was "tricked into believing" that
 MEM:Q~Y AID
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what she siQned were papers pertinent to her
application for the reconstitution of her burned
certificate of title, not a deed of sale;
2. When the signature of the authorized corporate
officer was forged; or
3. When the seller was seriously ill, and died a week
after signing the deed of sale raising doubts on
whether the seller could have read, or fully
understood, the contents of the documents he
signed or of the consequences of his act
(Spouses Carmen S. Tongson and Jose C.
Tongson, et al., v. Emergency Pawnshop Bula,
Inc., G.R. No. 167874, January 15, 2010).
PRETENDING THAT ONE HAD THE
EXCLUSIVE FRANCHISE AND
PROMISING TO TRANSFER IT TO GET
THE OTHER PARTY'S CONSENT IS
DOLO INC/DENTE
Plaintiff Charles Woodhouse entered into a written
agreement with the defendant Fortunato Halili to
organize a partnership for the bottling and distribution
of soft drinks. However, the partnership did not coi'ne .
into fruition, and the plaintiff filed a Complaint in order . · };~produce, for purposes of deception, the appearance
to execute the partnership. The defendant filed a
Counterclaim, alleging that the plaintiff had defrauded
him because the latter was not actually the owner of
the franchise of a soft drink bottling operation. Thus,
defendant sought the nullification of the contract to
enter into the partnership.
It was concluded that plaintiff dkl actually represent
to defendant that he was the holder of.the exclusive
franchise. The defendant was made to believe, and
he actually believed, that plaintiff had the exclusive
franchise. The record abounds with circumstances
indicative that the fact that the principal consideration,
the main cause that induced defendant to enter into
the partnership agreement with plaintiff, was the
ability of plaintiff to get the exclusive franchise to
bottle and distribute for the defendant or for the
partnership. The defendant was, therefore, led to the
belief that plaintiff tiad the exclusive franchise, but
that the same was to be secured for or transferred to
the partnership.
Thus, while the representation that plaintiff had the
exclusive franchise did not vitiate defendant's
consent to the contract, it was used by plaintiff to gel
from defendant a share of 30 percent of the net
profits; in other words, by pretending that he had the
exclusive franchise and promising to transfer it to
defendant, he obtained the consent of the latter to
give him (plaintiff) a big slice in the net profits. This is
the dolo incidente defined in article 1270 of the
Spanish Civil Code, because it was used to get the
other party's consent to a big share in the profits, an
incidental matter in the agreement (Woodhouse v.
Ha/iii, GR. No, L-4811, July 31, 1953).
QUANTUM OF EVIDENCE TO PROVE
THE EXISTENCE OF FRAUD AND THE
LIABILITY OF THE PARTIES
In order to constitute fraud that provides basis to
annul contracts, it must fulfill two conditi0ns:
1. First, the fraud must be dolo causante or it must
be fraud in obtaining the consent of the party.
In order for the deceit to be considered seriou:s, it
is necessary and essential to obtain the consent
of the party imputing fraud. To determine whether
a person may be sufficiently deceived, the
personal conditions and other factual
circumstances need to be considered.
2. Second, this fraud must be proven by clear and
convincing evidence (Tankeh v. Development
Bank of the Philippines, G.R. No. 171428,
November 11, 2013).
SIMULATION OF CONTRACTS
It is the declaration of a fictitious will, deliberately
:made by agreement of the parties, in order to
.. ;~L•Fj!J..fi.dical{~ct which does not exist or is different
··· from that wnictiwas really executed ( 4 TOLENTINO,
supra at 516), :'
The main chatact~ristic of an absolute simulation is
that the apparent contract is not really desired or
· intended to prpduce legal effect or in any way alter
the jurid\Ga\ ~i\µ9tig./}pf the parties. As a result, an
absolutelysfrfiiif~tedbr fictitious contract is void, and
, the parties may· recover from each other what they
· may have given under the contract (Tanchuling v.
y~pJ~/a1 G.R. No, 209284; November 10, 2015).
Under Article 1345 of the CIVIL CODE, simulation of
a contract may be absolute, when the parties do not
intend to be bound at all, or relative, when the parties
conceal their true agreement. The former is known as
contracto simulado while the latter is known as
contracto disimulado. An absolutely simulated or
fictitious contract is void while a relatively simulated
contract when it does not prejudice a third person and
is not intended for any purpose contrary to law,
morals, good customs, public order or public policy
binds the parties to their real agreement. Here, in
executing the Deed of Assignment, Ferrochrome
Philippines, Inc. (FPl)'s intention was not to transfer
absolutely the assigned assets to G Holdings, Inc. in
payment of FPl's obligations. It did not really intend to
divest itself of its title and control of the assigned
properties (G Holdings v, Cagayan Electric Power
and Light Company Co. (CEPALCO), G.R. No.
226213, September 27, 2017).
 OBLIGATIONS AND CONTRACTS
Civil Law

REQUISITES: (DAP) REQUISITES OF VALID CONTRACTUAL

1. A Qeliberate declaration contrary to the will of the OBJECT: (CLRT-D)
parties; 1. Must be within the fommerce of man (CIVIL
2. ~greement of the parties to the apparently valid CODE, Art. 1347);
act; and 2. Should be .!,,icit (CIVIL CODE, Art. 1347);
3. The eurpose is to deceive or to hide from third 3. Should be B_eal or possible ( CIVIL CODE, Art.
persons (Loyola v. CA, G.R. No. 115734, 1348);
February,23, 2000). · 4-: Should be Iransmissible (CIVIL CODE, Art.
1347);
ABSOLUTE V. RELATIVE SIMULATION 5: Should be Qeterminate, or at least possible of
determination as to its kind ( CIVIL CODE, Art.
1349).

ALL THINGS MAY GENERALLY BE

SUBJECT OF CONTRACTS
Parties do not intend to Parties . have an All things or services may be the object of contracts.
be bound by the agreement I
which they This includes future things or rights which do not
contract at all. conceal under the guise belong to the obliger when the contract was made
of another contract( 4 . jCJIV/L CODE, Art. 1347) . .
TOLENTINO, supra at
516) .
)isJ ge~eta!rule, all rights may be the object of a
, .conlr,;!ct ; TM \.exceptions are when they are
intrahsmissiblesb'y.their nature, or by stipulation, or by
Void (JURADO, ;aftie'~)o
Binct,(tt{d'7 thefr' provisjon·'of l~w (Cl\(IL CODE, Art. 1311, par. 1).
Obligations and reqf agi"E!err1~nt/ whenJt
Contracts, supra at does not'pfejudice a third INVAUp QBJEC:J"S OF CONTRACTS:
454). ~tson ;'and ! is not .(Qlf,'.".SIN)
int~ncfed for any purpose 1. Things Qutside the" commerce of men (CIVIL
qontrary to law; mdr~ls, . COQ.E, Art. 1347);
~09q " ~ustor.ns.•~ public 2. !ntrahsmissiqlJ right$ (CIVIL CODE, Art 1347);
<$rdel····. 1 or )\ \ puplic 3, · !:uture (nheri{9 nce; j'
P91)cy7<:;lvtL \OOOE, Art: 4·, y.-P",_.,.
Servic~s ·;
co~trary tel law, morals, good customs,
1346) . . \. ' . ' ii ,> .
'{, 'L ''" ? , -..,'·'¾ -pl,ll:>lic;' order or pu~lic policy (CIVIL CODE, Art.
1306); ··• ...
THIRD PERSON ACTINd'l,N G~)Op RAil~ 5: "!mpossil.5°1e thing~ or services; and
.6. ' .'Obji,cfs.Not possible of determination as to their
With respect to a third person acting in good'faitJ:f;1ne .,kiM. /'· •..
apparent contract must be considered'·as/JheJfue
contract. The declaration that the · c~rrtra9t is NOT°E~jn6rder that a thing, right or service may be
simulated does not prejudice him (4 TO[ENT/NO, the 66ject of a contract, it should be in existence at
supra at 519). ,,,,,
the moment of the celebration of the contract, or at
least, it can exist subsequently or in the future (4
TOLENTINO, supra at 521).

I
OBJECT
OBJECTOF
CONTRACTS
I Things of public ownership such
as sidewalks, public places,
bridges, streets, etc.; things that
are common to everybody such
as air, sunlight, rain
The thing, right or service which is the subject matter
of the obligation arising from the contract (JURADO, Prohibited drugs and all illicit
Obligations and Contracts, supra at 456).
objects; to kill a person, etc.
(illicit things or services are also
outside the commerce of men.);
to get soil from planet Jupiter; to
construct a building in one day
 MEM✓Q-RY Al D
San Beda University College of Law - RGCT Bar Operations Center

CIVIL CODE relating to testamentary succession

All the cavans of rice in a
warehouse; all the eggs in a
basket; my land with the
smallest area; the land at the
corner of a particular street
Things to be manufactured,
raised, or acquired after the
perfection of the contract such
as wine that a vineyard is
expected to produce; wool that
shall thereafter grow upon a
sheep; rice to be harvested next
harvesting season; milk that a
cow may yield; eggs that hens
may lay; young animals not yet
in existence, etc.
Political rights such as the right
to vote; family, marital, and
parental rights; right to public
office, or to run for public office,
etc.
(DE LEON, Obligations and Contracts, supra at
FUTURE THINGS
· A future thing may be the object of a contract.
contract may be either be: -
1. Conditional
- if its efficacy should depend, upon the. future
existence of the thing (4 TOLENTINQ,' supra at
521). •'
2. Aleatory
- if one of the contracting parties should bear the
risk that the thing will never come irjto existence
(4 TOLENTINO, supra at 522). ' onga," t;J~. No. L-2152-53, July 31, 1951 ).
EXCEPTION: No contract may be ente~td i11t§ with
respect to future inheritance except irf cases
expressly authorized by law (CIVIL CODE, Art. 1347,
par. 2).
ELEMENTS OF FUTURE INHERITANCE:
(OPE}·
1. The succession has not yet been Qpened;
2. The object of the contract forms P,art of the
inheritance; and
3. The proroissor has a mere gxpectancy of a right
which is purely hereditary in nature (J.L. T. Agro
Inc. v. Balansag, G.R. No. 141882. March 11,
2005).
EXCEPTIONS TO THE EXCEPTION
1. Future spouses may give or donate to each other
in their marriage settlement their future property
to take effect upon the death of the donor and to
the extent laid down by the provisions of the
(FC, Art 130); and
2. A person may make a partition of his estate by an
act inter vivas, provided that the legitime of
compulsory heirs is not prejudiced (CIVIL CODE,
Art. 1080).
IMPOSSIBLE THINGS OR SERVICES
Impossible things or services cannot be the object of
contracts (CIVIL CODE, Art. 1348).
KINDS OF IMPOSSIBILITY
1. Absolute or objective
- when nobody can perform the service. It
nullifies the contract; or
2. Relative or subjective
- when due to the special conditions or
qualifications of the debtor, it cannot be
performed. If temporary, it does not nullify the
contract (4 TOLENTINO, supra at 526).
PARTIAL IMPOSSIBILITY
f the thing is_ partly possible and partly impossible,
· ·· pend upon the divisibility of the thing.
If it 1s A< , by its nature or by the intention of
the parties, th~(;) is no contract; the consent would be
wanting. Butiif;l11$ thing is divisible, then the contract
.. is valid to th~ ~xfei,nt possible (4 TOLENTINO, supra
at 527). l 0 \
£ \_
. ERFORMANCE
A showin ''ere inconvenience, unexpected
impediments, or increased expenses is not enough to
· v_e a party of the obligation (JURADO,
'.·~n§,and Contracts, supra at 294; De Castro
The difficulty of performance should be such that the
party seeking to be released from a contractual
obligation would be placed at a disadvantage by the
unforeseen event. Mere inconvenience, unexpected
impediments, increased expenses, or even pecuniary
inability to fulfil an engagement, wit! not relieve the
obligor from an undertaking that it has knowingly and
freely contracted (Sp_s. Poon v. Prime Savings Bank,
G.R.No.183794, June 13, 2016).
QUANTITY SHOULD BE DETERMINATE
AS TO ITS KIND OR SPECIES
The fact that the quantity is not determinate shall not
be an obstacle to the existence of the contract,
provided it is possible to determine the same, without
the need of a new contract between the parties ( CIVIL
CODE, Art. 1349).
The object of a contract, in order to be considered as
"certain," need not specify such object with absolute
(: '" ,~ J-.> ~".' 3 ":; ', :~~;:~ '
'.\484 ' "•, ·' , • ·,".f OBLIGATIONS AND CONTRACTS
,: < ' ! ,
1
,';, ,._' ~ ;,_ t 0 :i,,.;'"'.,1 :' t.
Civil Law

certainty as long as it is determinable (Domingo CAUSE V. MOTIVE

Realty v CA, GR. No. 126326, January 26. 2007).

I CAUSE OF CONTRACTS · 1

CAUSE
It is the immediate, direct or most proximate reason
which explains and justifies the creation of an
obli!-]atlon throuqh the will of the contracting parties
(JURADO, Obligations and Contracts, supra at 464).

ESSENTIAL REQUISITES OF CAUSE:

(ELT)
1. .!;_xisting at the time of the celebration of the
contract
2. !::icit or lawful; and
3. Irue (JURADO, Obligations and Contracts, Iii;; legatity ;;iffects the Its legality does not affect
supra at 472). exjstence or Validity of the existence or validity
the contfact · of contract.
NOTE; A promise made by one party, if made in
accordance with the forms required qyJaw, may be.a (4 TOLENTINO, supra at 466).
good cause or consideration. for a pr,o:mise made· by
the other party (4 TOLENTINO, supra at 532). NOTE: Motive becomes causa when it predetermines
the purpose of the contract (4 TOLENTINO, supra at
466).
CAUSE V. OBJE.CT
CAUSJ.;JN DIFFERENT CONTRACTS

For each contracting party, the

· prestation or promise of a thing or
seNice by the other;
NOTE: A promise made by one
party may be a sufficient cause for
a promise made by another party.
It is not, therefore, necessar,y that
the cause or consideration should
pass from one party to 'the other
at the time of the execution of the
contract (JURADO, Obligations
and Contracts, supra at 468).

The service or benefit which is

remunerated.
May be the same for both
each party the parties · NOTE: Remuneratory contract is
one in which one of the
(4 TOLENTINO, supra at 464-465). contracting parties remunerates
or compensates the service or
benefit rendered or given by the
other party, although such service
or benefit does not constitute a
demandable debt (Id. at 471 ).
 &M+D \I -
MEM,Q~Y AID
San Beda University College of Law ~ RGCT Bar Operations Center
Mere liberality of tt1e benefactor
(Id. at 472).
Same as that of the principal
contract (Id. at 469).
(CIVIL CODE, Arts. 1350 & 2052).
MORAL OBLIGATION AS CAUSE
Where the moral obligation arises wholly from ethical
considerations, unconnected with· . any civil
obligations, it cannot constitute a sufficient cause or
consideration to support · an onerous contract
(JURADO, Obligations and Contracts, supra at 469;
see Fisher v. Robb, G.R. No. 4627 4, November 2,
1939).
Where such moral obligation is based upon a
previous civil obligation which has already been
barred by the statute of limitations at the time when
the contract is entered into, it constitutes a sufficient
cause or consideration to support a contract, it is then
already a natural obligation (Id at 469-470).
EFFECTS OF LACK, ILLEGALITY,
FALSITY, OR INADEQUACY OF CAUSE
1. Total lack or absence of cause - the contract
confers no right and produces no legal effect
(CIVIL CODE, Art. 1352).
NOTE: Even if the cause is not stated in the
contract, it is presumed that it exists and is lawful,
unless the debtor proves ·the contrary (CIVIL
CODE, Art. 1354)
2. Illegal/Unlawful cause - the contract is null and
void (CIVIL CODE, Art. 1409 (1)).
3. False cause - the contract is void unless it should
be proved that it be founded upon another cause
which is true and lawful (CIVIL CODE, Art. 1353).
4. Inadequacy of c.ause/lesion - the contract is
valid. However, under certain conditions, it is
rescissible under Article 1381 (1 ).
Even if the consideration for the contract is only
P1 .00, it will not render the contract void,
because it is the absence of consideration, not
mere inadequacy which will result in a void
contract (Carantes v. CA, G.R. No. L-33360, April
25, 1977).
PRE~UMl-'TIUN Ut- LAWt-.UL l.;AU::St:.
When the cause is not stated, it shall be presumed to
be in existence and lawful unless proof to the contrary
is shown (CIVIL CODE, Art.1354).
NOTE: The presumption lt1al a contract tias sufficient
consideration cannot be overthrown by a mere
assertion that it has no consideration. To overcome
the presumption, the alleged lack of consideration
must be shown by preponderance of evidence. The
burden to prove lack of consideration rests upon
whoever alleges it (Mendoza v. Sps. Palugod, G.R.
No. 220517, June 20, 2018).
FORM OF CONTRACTS
(ARTS. 1356-1358)
FORM OF CONTRACTS
Contracts shall be obligatory, in whatever form they
may have been entered into, provided all the
. essential requisites for their validity are present
(CIVIL CODE, Art. 1356).
NOTE: Art. 1356 retained the "Spiritual System" of
.the Spanish Code by virtue of which the law looks
•.more at the spirit rather than the form of contracts
..-.~::; .{J.C.fIJ:ljDO, Qpljgations and Contracts, supra at 479).
,. .,, ,,,._ ,, ~,.< " · ,, ,.. 57 :/
CONSENT, IS GENERALLY SUFFICIENT
FOR VALfqtTY, ENFORCEABILITY AND
EFFECTIVITY
A contract' may be (1) parol or oral, or (2) in writing,
or (2) pqrtlyp~l..:ir:i.!4.partly in writing. If in writing, it
· may be in'iI'iir:fCtf'>lt~''()ta private instrument.
' -~ ,,.,,
A contract need not be contained in a single writing.
·1tm~Y be collected from different writings which do
"h6(:ie9J1flict. with each other and which when
connected, show the parties, subject matter, terms
and consideration, as in contracts entered into by
correspondence (DE LEON, Obligations and
Contracts, supra at 634).
IMPLIED-IN-FACT CONTRACT
One implied from facts and circumstances showing a
mutual intention to contract. It arises where the
intention of the parties is not expressed but
manifested by conduct and not by direct or explicit
words between parties but is to be deduced from
conduct of the parties, language used, or things done
by them, or other pertinent circumstances attending
the transaction (UP v, Phi/ab Industries, Inc., G.R.
No. 152411, September 29, 2004).
EXCEPTIONS TO GENERAL RULE:
1. When the law requires that the contract be in a
certain form to be valid (CIVIL CODE, Art. 1356);
2. When law requires that the contract be in a
certain form to be enforceable (CIVIL CODE, Art.
1403); and
 OBLIGATIONS AND CONTRACTS
Civil Law

3. When required to make the contract effective as appearing or which should appear in a public
against third parties (CIVIL CODE, Art. 1357- document, or should prejudice a third person
1358). (CIVIL CODE, Art. 1358(3)); and
d. The cession of actions or rights proceeding
CONTRACTS WHICH BY LAW MUST from an act appearing in a public document
APPEAR IN WRITING (CIVIL CODE, Art. 1358(4)).

1. For Validity 3. To Bind Third Persons

a. Wills (CIVIL CODE, Ari 804); _
a. Assignment (CIVIL CODE, Art. 1625);
b. Stipulation limiting Common carrier's duty of
b. Sale/transfer of large cattle (Anti-Cattle
extraordinary diligence to ordinary diligence
Rustling Law of 1974, P.O. No. 533);
(CIVIL CODE, Art. 1744);
·c. Matters required to be registered and
c. -Donation of personal property whose value
annotated on a Certificate of Title to Land
exceeds P5,000 (CIVIL CODE, Art. 748);
(P.O. No. 1529).
d. Antichresis (CIVIL CODE, Art. 2134);
e. Sale of a piece of Land or any interest therein
through an agent (CIVIL CODE, Art. 1874); ACTION FOR EXECUTION OF FORMAL
f. Agreements regarding payment of Interest in INSTRUMENT DOES NOT CURE
contracts of loan (CIVIL CODE, Art. 1956); INVALIDITY
g. Donation propter nuptias (Fe; Art. 82); and If the law requires a document or other special form,
h. Sale of transfer of large cattle (P.O. f\/_o. 5-33, · as in.,.. th,e acts and contracts enumerated in the
August 8, 1974). fol/owing arti<;:le, the contracting parties may compel
to
each other ·o~serve that form, once the contract
2. For Enforceability ___ _ _ . __ has been perfected. This right may be exercised
a. An agreement that by its· term 9 it not to be simultaneously with the action upon the contract.
performed within a ye~r. frdrn,
the making (CIViL CODE.'. ~rt_, 13p7). -
thereof; · · · ·
b. A contract of guarantee NOTE: Because Article 1357 presupposes the
c. A contract propter nJ.1ptia§ ••· executio11 of a ineinorandum of a contract already
d. Sale of personal pfopertyiwort,h more than perfected; Article 1357 iS not applicable to contracts
P500 -' . who require certa,in forl'.n!'llities for their validity.
e. Sale of real property _\ _i . · '-
f.
g.
A lease for a periodJongerifhan orie 'year
A representation as; foittte\ credft o( a third
. SIGNINci ()F ·IN~rtiuMENTS
A contract may be encompassed in several
person.
il)sfrumerits even thqcigh every instrument is not
CONTRACTS WHICH MUST APPEAR' i~ A signed by the parties. since it is sufficient if the
unsigned, iristrume9ts are clearly identified or referred
PUBLIC DOCUMENT to and inaqe, part of the signed instruments (BF
1. For Validity Corporation v. CA, G.R. No. 120105, March 27,
'99··a,1·. -- J
a. Donation of immovable pro~ertieJ (CIVIL r1.: ·:c 1-·\ ,
CODE, Art. 749);
b. Donation of personal property, the value of ELECTRONIC CONTRACTS
which exceeds PS,000 (CIVIL CODE, Art. The formal requirements to make contracts effective
748); as against third persons and to establish the
c. Partnership where immovable property or existence of a contract are deemed complied with,
real rights are contributed to the common provided that the electronic document is unaltered
fund (CIVIL CODE, Arts. 1771 & 1773). and can be authenticated as to be usable for future
reference (Electronic Commerce of 2000, R.A. No.
2. For Efficacy and Convenience 8792, sec. 7 (a)).
a. Acts and contracts which have for their
object, creation, transmission, modification PROBATIVE VALUE OF PUBLIC
or extinguishment of real rights over
DOCUMENTS
immovable property, except sale of real
property (CIVIL CODE, Art. 1358{1)); The effect of the notarization of a private document is
b. The cession, repudiation or renunciation of to convert the said document into a public one and
hereditary rights or of those of the conjugal render it admissible in, evidence in court without
partnership of gains (CIVIL. CODE, Art. further proof of its authenticity and due execution
1358(2)); (Nadayag v. Grageda, A. C. No. 3232, September 27,
c. The power to administer property, or any 1994).
other power which has for its object an act
 - ' ~ ~ , ' "l ' ~ \;', I
f \ / /.( (, .,,
, J ,,, ,l
'
~
.,
!

MEM:v~Y AID . :. ,,., · · '4a7

San Seda University College of Law - RGCT Bar Operations Center A '"'., 0 '<" ~ ' ' ' C ' ~

Oy law, a notarial document is entitled to full faith and
credit upon its tace.24 It enjoys the presumption ot
regularity and is a prima facie evidence of the facts
stated therein - which may only be overcome by
evidence that is clear, convincing. and more than
merely preponderant. Without such evidence, the
presumption must be upheld (Heirs of Sps. Liwagon
and Dumalagan v. Heirs of Sps. Liwagon and
Liwagon, G.R. No. 193117, November 26, 2014).
REFORMATION OF
INSTRUMENTS
(ARTS. 1359-1369)
REFORMATION OF INSTRUMENTS
The remedy through which a written instrument is
made or construed so as to express or conform to the' ' ·
real intention of the parties when some error qr_., '"''
mistake has been committed (JURADO, Obligations ·
and Contracts, supra at 487).
THE PAROL EVIDENCE RULE
When the terms of an agreement have been reduced
to writing, it is considered as containing all the terms
agreed upon and there can be, between the parties
and their successors in interest, no evidence of such
terms other than the contents of the written
agreement (RULES OF COURT, Rule 130, Sec. 9,
par. 1).
The rule excludes extrinsic evidence by which a party
seeks to conlradid, vary, add lo or subtract from the
terms of a valid agreement or instrument.
EXCEPTION:
1. When there is an intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. When there is failure of the written agreement to
express the true intent and agreement of the
parties thereto (RULES OF COURT, Rule 130,
Sec. 9, par. 2).
REFORMATION V. ANNULMENT

RATIONALE: It would be unjust to enforce a written The contract was not

instrument which does not truly reflect the real validly entered into as
agreement of the parties. In reforming an instrument, when their minds did not·
no new contract is created for the parties, rather, the meet or if the consent
reformed instrument establishes the real agreement was vitiated.
between the parties (Makati Tµ:,c;any Condominium
Corporation V. Multi-Realty . . Development
Corporation, GR. No. 185530; Aprjf 18, 2018).

REQUISITES: (MIMIC)
ife to the contract
1. ~eeting of the minds of the parties; ~frlaking the
2. Their true !ntention is not expressed in 'the instrument conform to contract.
instrument; the true intention of the
3. Failure to express true intention is due to Mistake, parties.
fraud, inequitable conduct or accident
4. The facts upon which relief by way of reformation (JURADO, Obligations and Contracts, supra at 488).
of the instrument is sought are put in !ssue by the
pleadings; and CAUSES/GROUNDS FOR
5. f_lear and convincing proof of mistake, accident, REFORMATION: (MFCIO)
relative simulation, fraud, or inequitable conduct
1. Mutual Mistake
(DE LEON, Obligations and Contracts, supra at
- In case of mutual mistake of the parties (CIVIL
648).
CODE, Art. 1361)
NOTE: However, intentions involve a state of mind,
m;.ikinq lltP.fll diffic111l lo dP.cipher; II IHI HrlJf H, LI IH 2. fraud
subsequent and contemporaneous acts the parties of - Wl1en one party was rrnstaken and the other
party acted fraudulently (CIVIL CODE, Art. 1362).
must be presented into evidence to reflect the parties'
intentions (Molwti Tuscany Condomtnium
Corporation v. Multi-Realty Development 3. ~oncealment amounting to Fraud
Corporation, G.R. No. 185530; April 18, 2018). - When one party was mistaken, the other knew
or believed that the instrument does not show
their real intent but concealed that fact to the
former (CIVIL CODE, Art. 1363).
 <-' , , ~- ' )-'I
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1 ,, , -
. :'. 488 °:: >
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4. In case of !gnorance, lack of skill,
negligence or bad faith on the part of the
person drafting the instrument or the
clerk or typist (CIVIL CODE, Art 1364); and
5. gquitable Mortgage
- When parties agree upon the mortgage of a real
property, but the instrument states that the
property is sold absolutely or with a right of
repurchase (CIVIL CODE, Art. 1365).
NOTE: Correlate to Article 1605.
WHO MAY ASK FOR REFORMATION
1. In case of mutual mistake, the action for
reformation may be brought by instance of either
party or their successors in interest;
2. In other cases, the action may be brought by the
instance of the injured party or his successors-in-
interest (CIVIL CODE, Art. 1368).
~:;~~i~,~~~~::~~E
1. §.imple donations int~r
condition is imposed (CIVIL CODE, Art.
1366(1)); . construction (Olivares.and Robles v. Sarmiento,
REASON: An action to reform an instrument is in
the nature of specific performance and requires a
valuable consideration - an element lacking as
between donor and donee, and:between testator.
and beneficiary (4 TOLENTINO, '.~upraaL556J,.
2. Wills (CIVIL CODE, Art. 1366(2));
NOTE: Only imperfect or erroneous description?
of persons or property can be corrected, but the
manner in which the testator disposes of his
property cannot be changed by a reformation of
the instrument (4 TOLENTINO, supra at 556).
3. When the real 8greement is void (CIVIL
CODE, Art.1366(3))
NOTE: Upon the reformation of an instrument,
the general rule is that it relates back to and takes
effect from the time of its original execution as
between the parties.
If mistake, fraud, inequitable conduct or accident
has prevented a meeting of the minds of the
parties, the proper remedy is not reformation of
the instrument but annulment of the contract
(CIVIL CODE, Art. 1359, par.2).
Expediency and convenience are not grounds for
the reformation of an instrument (Mu/ti-Ventures
OBLIGATIONS AND CONTRACTS
Capital and Management Corp. v. Stalwart
Management Services Corp., G.R. No. 157439,
July 4, 2007).
4. When one of the parties has brought an
action to enforce the instrument, no
subsequent reformation can be asked
(Principle of gstoppel) (CIVIL CODE, Art.
1367).
INTERPRETATION OF
CONTRACTS
(ARTS. 1370-1379)
1. If the terms are clear and no doubt upon the
intention of the parties, the literal meaning of its
stipulations shall control (CIVIL CODE, Art. 1370,
par. 1).
CAN BE NO
The contract is the law between the parties and
vivos wherein no when the words of the contract are clear and can
easily be understood, there is no room for
G.R. No. 158384, June 12, 2008).
If the ,terms of a contract are clear and leave no
doubt upon the contracting parties' intention,
such terms · should be applied in their literal
meaning (Sps Duinlao v. Marlon Realty Corp.,
G.R. No. 131491, August 17, 2007).
2. If words are contrary to the intention, the latter
shall prevail over the former (CIVIL CODE, Art.
1370,par. 2).
Well-settled is the rule that in case of doubt, it is
the intention of the contracting parties that
prevails (Marquez v. Espejo, G.R. No. 168387,
August 25, 2010).
When the true intent and agreement of the parties
is established, it must be given effect and prevail
over the bare words of the written contract ( 4
TOLENTINO, supra at 559-560).
3. The contemporaneous and subsequent acts of
the parties shall be considered (CIVIL CODE, Art.
1371).
4. If the terms in a contract are general, they shall
not be understood to comprehend things that are
distinct and different from those which the parties
intended (CIVIL CODE, Art. 1372).
 i#U&M \ 1
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5. If some stipulation should admit of several
meanings, it shall be understood as bearing that
import which is most adequate to render it
effectual (CIVIL CODE, Art. 1373).
6. Various stipulations shall be interpreted together
(CIVIL CODE, Art. 1374).
NOTE: A contract cannot be construed by parts,
but its clauses should be interpreted in relation to
one another. The whole contract must be
interpreted or read together in order to arrive at
its true meaning (4 TOLENTINO, supra at 563).
7. Words with different significations shall be
understood in that which is most in keeping with
the nature and object of the contract (CIVIL
CODE, Art. 1375).
8. Usage or custom of the place shall be considered
in the interpretation of the ambiguities of a
contract and shall fill the omission of stipulations
which are ordinarily established (CIVIL CODE,
Art. 1376).
9. Interpretation of obscure. words or stipulations
shall not favor those who caused the obscurity
(CIVIL CODE, Art. 1377). .
Rule 123 of the Rules of Court shall likewise be
observed in tl")e construction of contracts (CIVIL
CODE, Art. 1379).
NOTE: When an instrument consists partly of
written words and partly of a printed form, and the
two are inconsistent, the former controls the latter
(RULES OF COURT, Rule 130, Sec, 15).
RULES ON SETTLING DOQBTS
CONTRACTS
1. Gratuitous Contracts
- when the doubts refer to its incidental
circumstances, the least transmission of rights
and interests shall prevail (CIVIL CODE, Art.
1378).
2. Onerous Contracts
- the doubt shall be settled in favor of the
greatest reciprocity of interests (CIVIL CODE,
Art. 1378).
3. Principal Object
- if the doubts are cast upon the principal object
of the contiact in such a \Nay that it cannot be
known what may have been the intention or will
of the parties, the contract shall be null and void
(CIVIL. CODE, Art. 1378).
RESCISSIBLE
CONTRACTS
(ARTS. 1380-1389)
RESCISSIBLE CONTRACTS
These are contracts which are valid but are defective
because of injury or damage to either of the
contracting parties or to third persons and, as a
consequence thereof, it may be rescinded by means
of a proper action for rescission (JURADO,
Obligations and Contracts, supra at 502-503).
CONCEPT OF RESCISSION
Rescission (as contemplated in Articles 1380 to 1389
of the CIVIL CODE) is a remedy granted by law to the
contracting parties and even to third persons, to
secure the reparation of damages (lesion or
_ pecuniary damage) caused to them by a contract,
,.,iheven if this should be valid, by restoration of things to
')1;;their condition at the moment prior to the celebration
:pttp!3;Contraf!2{Buenviaje v. Spouses Salonga, G.R.
No. 21002'$Jit(J)ctober 5, 2016).
REQUISIU:S OF RESCISSION:
(VLE-P2 NR) .
1. The cpntract mµst be ~alidly agreed upon (CIVIL
copE, Arf: 138Q);
•2. Th~'t~ '\Jig~ttb~ j'e§ion or pecuniary prejudice or
damage fo'one of the parties or to a third person
(CIVIL CODE, Art. 1381);
3. The rescission must be based upon a case
!;S!)f)Cia/ly provided by law (CIVIL CODE, Art
1380-1382);
IN 4. The object of the contract must not legally be in
the fossession of third persons who did not act
in bad faith (CIVIL CODE, Art. 1385, par. 2);
5. The _Eeriod for filing the action for rescission must
not have prescribed. (CIVIL CODE, Art. 1389);
6. There must be ~o other legal remedy to obtain
reparation for the damage (CIVIL CODE, Art.
1383); and
7. The party asking for rescission must be able to
Return what he is obliged to restore by reason of
the contract (CIVIL CODE, Art. 1385, par 1).
RESCISSION UNDER ART. 1911 ONLY
APPLIES IN SUBSTANTIAL BREACH
Rescission of a contract will not be permitted for a
siighi casuai breach, bul oniy for :;uch substantial anci
fundamental breach as would defeat the very object
of the parties in executing the agreement (Vermen
Realty Corp. v. Court of Appeals, G.R. No. 101762,
July 6, 1993).
 OBLIGATIONS AND CONTRACTS
Civil Law

In order that there may be substantial pertcirmance of

an obligation, there must have been an attempt in
good faith to perform, without any willful or intentional
departure therefrom. The deviation from the
obligation must be slight, and the omission or defect
must pe technical and unimportant, and must not
pervade the whole or be so material that the object
which the parties intended to accomplish in a
particular manner is not attained. The non-
May be demanded only May be demanded by a
performance of a material part of a contract will
by a party to the third party prejudiced by
prevent the pertormance from :=imo1mting to a
contract. the contract.
substantial r.omrlianr.P. (lntP.mational Hotel Corp. v.
Joaquin, GR. No. 158361, April 10, 2013).

RESOLUTION FOR BREACH OF May be denied by court Extension of time does

STIPULATION V. RESCISSION BY when there is sufficient not affect the right to ask
REASON OF LESION OR DAMAGE reason to justify the for rescission.
extension of time.

·'Non-;~rfon:nance is the Various reasons of equity

... , ,oriiy gm4ndJor the right are grounds for
tcfre&cissi6n -

Applies ; only · t6 Applies to either

reciproc~I obllg;;itions, reciprocal or unilateral
yvhere pne pat;ty has_ obligations and whether
failed fo. comply with; the contract has been
what i~ incu_mbeht upon1 fully fulfilled or not.
Based on breach of B~iea) "tpn 'le~i~h or _him;,'/ · f ' ,._, ,i;
trust. economic \ ·prejbdi<;:e,
renitering "t!)e c6nt(;;lct
rescfasible
,,
by·-law.
<1:,,
·

A subsidiary actiop)Jased.
on injury to\the ~fajilJJffs
economic interests' as
described in Articles'1380 -_ 1: Both presuppose contracts validly entered into
and 1381. and existing (this distinguishes rescission from
annulment, in which there is a defect which
vitiates the contract); and '

2. Both require mutual restitution when declared

Termination of the Abrogation of the contract·
proper.
obligation and release from the beginning and
of the parties from restoration of the parties {Heirs of Sofia Quirong v. Development Bank of the
further obligations from to their relative positions Philippines, G.R. No. 173441 December 3, 2019;
each other. as if no contract has been Congregation of the Religious of the Virgin Mary,
made. et.al., v. Oro/a, GR. No. 169790, April 30, 2008).

To declare the contract NOTE: The term "resolution" is based on Art. 1124 of
void at its inception and to the Old Civil Code but the present Code uses the term
put an end to it as though "rescission."
it never was
 \ I
MEt1✓Q-RY Al D
San Seda University College of Law RGCT Bar Operations Cante,
CONTRACTS THAT ARE RESCISSIBLE:
(GAFILS)
1. Those which are entered into by Quardians
whenever the wards whom they represent suffer
lesion by more tha·n one-fourth of the value of the
things which are the object thereof;
2. Those agreed upon in representation of
Absentees. if the latter suffer the lesion stated in
the preceding number;
3. Those undertaken in Fraud of creditors when the
latter cannot in any -other manner collect the
claims due them;
4. Disposition of Property made in state of
Insolvency whose fulfillment cannot be
compelled at the time;
5. Those which refer to things under !:_itigation if
they have been entered into by the defendant
without the knowledge and approval of the
litigants or of competent judicial authority
6. All other contracts ~pecially declared by law to be
subject to rescission (CIVIL CODE, Art. 1381&
~-
CONTRACTS CAUSING LESION IN>
VIOLATION OF FIDUCIARY DUTY
1. Those entered into by guardians where il1e ward •ti:~~~~~;;?auif~ian is authorized only to manage the
suffers lesion of more than one~fourtn (¼) of the
value of the things which are objects thereof;
2. Those agreed upon in representation of
absentees, if the latter suffer lesion by more than
one-fourth(¼) of the value of.the things which are
subject thereof (CIVIL CODI=, Art. 1381, nos. 1
and 2);
LESION
The injury which one of the parties suffers by virtue of
a contract which is disadvantageous for him. To give
rise to rescission, the lesion must be known or could
have been known at the time of making of the contract
and not due to circumstances subsequent thereto or
unknown to the parties ( 4 TOLENTINO, supra at
574).
REQUISITES OF ACTION FOR
RESCISSION ON GROUND OF LESION
1. Contract was entered into by a guardian in
behalf of his ward or by a legal representative i'n
behalf of an absentee (CIVIL CODE, Art. 1381,
Nos. 1 and 2);
2. It was entered into without judicial approval
(CIVIL CODE, Art. 1386);
3. Ward or absentee suffered lesion of more than
¼ of the vaiue of the property which is the object
of the contract (CIVIL CODE, Art. 1381, Nos. 1
and 2);
4. There is no other legal means of obtaining
reparation for the lesion ( CIVIL CODE, Art.
1383);
5. Person bringing the action must be able to
return whatever he may be obliged to restore
(CIVIL CODE, Art. 1385, par. 1); and
6. Object of the contract must not be legally in the
possession of a third person who did not act in
bad faith (CIVIL CODE, Art. 1385, par. 2).
In rescission by reason of lesion or economic
prejudice, the cause of action is subordinated to the
existence of thal preJutJice, because it is the raison
d'etre as well as the measure of the right to rescind.
Hence, where the defendant makes good the
damages caused, the action cannot be maintained or
continued, as expressly provided in Articles 1383 and
1384 (Buenviaje v. Spouses Salonga, G.R. No.
216023, October 5, 2016).
ACT OF ADMINISTRATION V. ACT OF
STRICT DOMINION
The guardian (legal representative) is only authorized
to manage the estate of his ward (absentee).
b
•. He has no power to dispose of or encum er any pa
rt
:t!;:~hereof (CIVIL CODE, Arts. 1647 and 1878 (8) and
r'{1FC" Arts. 96 <Jnd 124)-
estate of the' :ward; should he dispose a portion
thereof without authority from the court by way of a
contract. tne sa"rpe is unenforceable under Art.
1403( 1]. irrespective of whether there is lesion or not
. . (4 TOLENTINO, su•· a at 575).
· .,. •··· - "
FRAUD OF CREDITORS
· · Those undertaken in fraud of creditors when the latter
•, ;cannot in any manner claim what are due them ( CIVIL
;(:JQDE;:-Art,,1381, no. 3);
These are contracts executed with the intention to
prejudice the rights of creditors, and should not be
confused with those entered into without such
intention, even if, as a consequence thereof, some
particular damage may be caused to a creditor ( 4
TOLENTINO, supra at 575).
DISPOSITION OF PROPERTY IN STATE
OF INSOLVENCY
Payments made in a state of insolvency for
obligations to whose fulfillment the debtor· could not
be compelied at the time they were effected are also
rescissible (CIVIL CODE, Art. 1382).
REASON: Where a debtor is insolvent and is
indebted to several debtors, a debtor cannot be
compelled to pay one of them without necess;cirily
causing fraud or prejudice to the others. This is
because the possibility that the other will be repaid in
the earliest possible time is impaired. There is a
'f>,~•\~:<t kd' :\,, ,~ ,., :::,i\, f;

.· .. 492,,;, , - ,',, '• ,,:: OBLIGATIONS. AND CONTRACTS

\;:: "' ~ ' , , ., Civil Law
.: / J' ' .•l J,

presumption that the creditors who were paid ahead
of the other creditors intended to defraud the others.
REQUISITES BEFORE A CONTRACT
ENTERED INTO IN FRAUD OF
CREDITORS MAY BE RESCINDED:
(CFCP)
1, There is a ~redit existing prior to the celebration
of the contract;
2. There is .E raud, or at least, the intent to commit
. fraud to the prejudice of the creditor seeking
rescission;
3. Creditor cannot in any legal manner ~ollect his
credit; and
4. Object of the contract must not be legally in the
fossession of a third person who did not act in
bad faith (JURADO, Obligations and Contracts,
supra at 508).
CONTRACTS IN FRAUD OF CREDITORS
MAY BE VOID
Some contracts entered into to defraud"<,-:'rec!itors arE!
VOID and not merely rescissible,. such•' as those
contemplated by: . ·. . ·· . ··
1. Section 4 of Act No. 3952(Bulf:<s §~les,Law),
2. Section 52 and 58 of R.,f\. No. 10142 >(Financial
Rehabilitation and fnsolyencyAct) · 12. Wher~ the' mortgagor-vendor and mortgagee-
TRANSFEREE OF PRo'PE~TY MUST BE
IN BAD FAITH
For a contract to be rescinded Jor:being; in:ffaud of
creditors, both contracting parti~s 1rr\ust be" ~t:iown to
have acted maliciously soi, as to\. prejudi~C the
creditors who were prevented from cqllecting their
claims (Union Bank of the Phils. v. Ong, G.R. ,ffiJ.
152347, June 21, 2006).
NOTE: The presumptions under Aft, _ 1387 are
rebuttable and not conclusive (Buencaminp, v.
Bantug, G.R. No. L-37849, October 5, 1993).
If the case is NOT one for which the law establishes
a presumption of fraud(C/V/L CODE, Art. 1387), the
creditor seeking rescission must prove the existence
of such fraud (Lee v. Bangkok Bank Public Company
Limited, G.R. No. 173349, February 9, 2011).
PRESUMPTION OF FRAUD
1. Alienation by gratuitous title if the debtor has not
reserved sufficient property to pay all of his debts
9ontracted before alienation (CIVIL CODE, Arl.
1387, par. 1);
2. Alienation by onerous title if made by a debtor
against whom some judgment has been
rendered in any instance or some writ of
attachm€nt has been issued (CIVIL CODE, Art.
1387, par. 2).
BADGES OF FRAUD:
1. The fact of inadequate or fictitious cause or
consideration of the conveyance;
2. Transfer by a debtor after suit has been begun
and while it is pending against him;
3. Sale on credit by an insolvent debtor;
4. Evidence of large indebtedness or complete
insolvency
5. Transfer of all or nearly all of debtor's property by
him, especially when he is insolvent or greatly
embarrassed financially;
6. Transfer between father and son, where others of
the above circumstances are presEint;
7. Failure of the vendee to take exclusive
possession of the property sold; and
8. Gross disparity between the price and the value
of the property
9. At the time of the conveyance, the vendee was
living with the vendor and the former knew that
. there was judgment against the latter;
1Q. It was,known to the vendee that the vendor had
no propertjes other than that sold to him (Cabaliw
.v.'sadorra,GR. No. L-25650, June 11, 1975);
11. the. ,certift,ca.te,_ of title covering the lands sold
rernaihedin th.e ry_ame of the vendor who declared
them_ foftaXatiori'. purposes (Castro v. Escutin,
G.R. No. [,,27406, May 31, 1979);
. vendee are bosom '.'frien.ds with long history of
trust ~nd intimacy and the element; and
13, Where .the seller ahd the buyer are half-brothers
and'the.sale:was executed and registered about
one month after a 8~cision was rendered against
the seller (Neroria v. !AC, G.R. No. L-42505,
DE!cember 26, 19Ef4; DE LEON, Obligations and
contracts, supra at 733).
NOTE: The:above enumeration is not an exclusive
'lis(Wh~n, tleafand unmistakable, badges of fraud
. will. serv€l, td 'destroy the camouflage of validity of a
contract. Where the sale is fictitious and fraudulent,
the action or defense for the declaration of its
inexistence does not prescribe (Id. at 733).
UNAUTHORIZED CONTRACTS OF
THINGS UNDER LITIGATION
Those which refer to things under litigation if they
have been entered into by the defendant without the
knowledge and approval of the litigants or of
competent judicial authority (CIVIL CODE, Art. 1381,
No. 4);
REQUISITES:
1. There is a suit that involves a property; and
2. The DEFENDANT entered into a contract without
the knowledge and approval of the litigants or of
competent judicial authority (JURADO,
Obligations and Contracts, supra at 509).
 &4@@@ \ I
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EXAMPLES OF OTHER CONTRACTS
DECLARED BY LAW TO BE SUBJECT TO
RESCISSION:
1. Partition of inheritance where an heir suffers
lesion of at least one-fourth (¼) of the share to
which he is entitled (CIVIL CODE, At1. 1098);
2. Deterioration of the thing through the fault of the
debtor, if the creditor chooses to rescind ( CIVIL
CODE, At1. 1189, no. 4);
3. Right of unpaid seller to rescind (CIVIL CODE,
Art. 1526, no. 4);
4. Deterioration of the object of the sale before its
delivery ( CIVIL CODE, At1. 1538);
5. Sale of real estate with a statement of its area, at
the rate of a certain price for a unit of measure or
number, where the vendor failed to deliver the
area stated; the vendee may ask for rescission of
the contract_ if the lack of area is not less .than
one-tenth (1/10) of that stated (CIVIL CODE,
A/1.1539, par. 2);
6. The vendee does not accede to the failure of the
vendor to deliver what has been stipulated ( CIVIL
CODE, At1. 1542, par. 2);
7. When, through eviction, the vendee loses a part
of the thing sold of such importanc~. in relation to
the whole, that he would not have bought it
without said part ( CIVIL CODE, At1. 1556, par. 1);
8. Sale of immovable encumbered with any non-
apparent burden or servitude, not mentioned in
the agreement, of such nature that it must be
presumed that the vendee would not have
acquired it had he been aw.are thereof (CIVIL
CODE, At1. 1560, par. 1);
9. Election of the vendee to withdraw from the
contract in the cases under Arf 1561, 1562,
1564, 1565 and 1566 (CIVIL CODE, At1: 1567);
and
10. Rescission by the aggrieved party in a contract of
lease when the other party does not cpmply with
Art. 1654 and 1657 ( CIVIL CODE, Art. 1659).
APPARENT CONFLICT BETWEEN CIVIL
CODE ARTICLE 1382 AND ARTICLE
1198(1) IF THE OBLIGATION IS SUBJECT
TO A SUSPENSIVE PERIOD
Under Article 1382 of the CIVIL CODE, payment
made by an insolvent is rescissible. Under Article
1198( 1) of the CML CODE, a debtor can be
compelled to pay by the creditor even before the
expiration otthe period since by his insolvency he has
already lost his right to the benefit of such period.
Tho rr.nflir-t r::m o,:,c:ily ho rc,c::r.h,orl hy Cl"lnc::irlc,rihg thc,
priority of dates between the two debts. If the
obligation with a period became due before the
obligation to the creditor seeking the rescission
became due, then the latter cannot rescind the
payment even if such payment was effected before
the expirahon of the period; but if the obligation with
a period became due after the obligation to the
creditor seeking rescission became due, then the
latter can rescind the payment (DE LEON, ·
Obligations and Contracts, supra at 510).
ACCION PAUL/ANA
The action to rescind contracts in fraud of creditors is
known as accion pauliana. Consequently, accion
pauliana presupposes a judgment and an unsatisfied
execution which cannot exist when the debt is not yet
demandable at the time the rescissory action is
brought (4 TOLENTINO, supra at 576).
PARTIES WHO MAY INSTITUTE ACTION:
1. The creditor who is defrauded in rescissory
actions on ground of fraud, and other person
authorized to exercise the same in other
· rescissory actions;
2. Their representatives;
3. Their heirs; and
4. Their creditors by virtue of the subrogatory action
defined in Art. 1177 of the CIVIL CODE
(JURADO, Obligations and Contracts, supra at
1).
NOTE: The action for rescission is subsidiary; it
cannot be instituted except when the party suffering
damage has ' no other legal means · to obtain
reparation .. for the same (CIVIL CODE, A£ 1383).
Rescission sh~II be_ only to the extent necessary to
.·;.·'. cover tb.e··,·.,•.,:,1»;.,·,«s',,'\
i;Jqrriages..,.,eaused · ·
(CIVIL CODE, At1. 1384).
. 1, As to the parties
•• tD1,,;;';,mutual restitution of the objects of the contract,
~' ' tog~tn~r with their fruits and the price with its
interest (CIVIL CODE, Art. 1385).
NOTE: This is applicable only to rescissory
actions on the ground of lesion and not to
rescissory actions on the ground of fraud (OE
LEON, Obligations and Contracts, supra at 514).
When it is no longer possible to return the object
of the contract, an Indemnity for damages
operates as restitution (Coastal Pacific Trading,
Inc. v. Southern Rolling Mills, GR. No. 118692,
July 28, 2006).
2. As to third persons
a. In bad faith or not in legal possession -
ohliged to return; the creditor who is
prejudiced can run after the third person in ·
possession of the thing.
NOTE: It is not necessary that the transferee
should have connived· with the transferor to
defraud the latter's creditors. It is enough that
 OBLIGATIONS AND CONTRACTS
the transferee knows of the intention of the
transferor to defraud creditors (4
TOLENTINO, supra at 594).
b. In good faith or in legal possession - no
rescission; however, indemnity for damages
may be demanded from the person causing
the loss (CIVIL CODE, Art. 1388).
EXTENT OF RESCISSION
Rescission shall be only to the extent necessary to
cover the damages caused (CIVIL CODE, Art. 1384).
The rescission shall only be to the extent of the
creditor's unsatisfied credit. The policy of the law is to
preserve or respect the contract, not to extinguish it
(DE LEON, Obligations and Contracts, supra at 716).
PRESCRIPTIVE PERIOD FOR ACTION
FOR RESCISSION:
1. Under Art. 1381, No. 1
- within 4 years from the _time of the-termination
of the incapacity of the ward · · · ·· giving consent to a contract (CIVIL CODE, Art.
2. Under Art. 1381, No. 2 ·
- within 4 years from the time the domicile of the
absentee is known
f
3. Under Art. 1381 Nos. ana 4 as well as
Art.1382
- within 4 years from the :tif1le pf the discovery of
fraud (CIVIL CODE, Art 1389);
. j .;. ',
NOTE: In certain cases of cdritrfuctsof sale which are
specially declared by law to !Je rescis~ible, however,
the prescriptive period for the commen~merit of the
action is 6 months or even 40 days, counted from t_he
day of delivery (CIVIL CODE, Arts, 1543, 1571, and
1577).
RESCISSION IS NOT ALLOWED WHEN:
1. The· party who demands rescission cannot return
what he is obliged to restore under the contract
(CIVIL CODE, Art. 1385, par. 1); and
2. The property is legally in the possession of a third
person who acted in good faith (CIVIL CODE, Art.
1385, par. 2).
VOIDABLE CONTRACTS
(ARTS. 1390-1402)
VOIDABLE CONTRACT$
Contracts where all of the essential elements for
validity are present, althm..,gh the element of consent
Civil Law
is vitiated either by lack of legal capacity of one of the
contracting parties, or by mistake, violence,
intimidation, undue influence, or fraud. It is binding
until it is annulled by a competent court (JURADO,
Obligations and Contracts, supra at 533).
CHARACTERISTICS OF VOIDABLE
CONTRACTS: (VBCJRD)
1 . The defect consists of the Y:itiation of consent of
one of the contracting parties;
2. They are §.inding until annulled;
3. They are susceptible of £ onvalidation by
ratification or prescription; and
4. The defect or voidable character cannot be
invoked by 3rd persons (Id. at 531-532).
VOIDABLE OR ANNULLABLE
CONTRACTS: (VIMFU-1)
1. Those where the consent is vitiated by _Mistake,
~iolence, !ntimidation, .!:!_ndue influence, or .E.raud
2. Those where one of the parties is !ncapable of
139RJ
NOTE: If both parties are incapable of giving
consent, tt:ie contract is unenforceable (CIVIL
CODE, Art 140,3(3)).
PROPER ACTION IN COURT
Art. 1390 of the CJVILCQDE refers to a "proper action
in court." The validity of a voidable contract may only
be attacked either oy way cif a direct action or by way
of defense via a counterclaim, and not by a special or
affirmative defense {JURADO, Obligations and
Contracts. supra at 531).
INJU~'Y NOT. ESSENTIAL
EvenJhoughthere are no right to damages between
the contracting parties, the contracts enumerated in ·
Art. 1390 are still voidable (Id. at 533).
MODES TO EXTINGUISH AN ACTION
FOR ANNULMENT:
1. PJescription (CIVIL CODE, Art. 1391);
2. Ratifica~ion {CIVIL CODE, Art. 1392); or
3. Loss of the thing which is the object of the contract
through fraud or fault of the person who is entitled
to institute the action (CIVIL CODE, Art. 1401).
PRESCRIPTIVE PERIOD FOR ACTION
FOR ANNULMENT
1. Contracts entered into by incapacitated
person
- within 4 years from the time guardianship
ceases;
 ff f \ /
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2. Where consent is vitiated .by violence,
intimidation or undue influence
- within 4 years from the time such violence,
intimidation or undue influence ceases;
3. Where consent is vitiated by mistake or
fraud
- within 4 years from the time of the discovery of
such mistake or fraud (CIVIL CODE, Art 1391).
NOTE: These periods apply only to the parties to the
contract and not to 3rd persons (4 TOLENTINO, supra
at 599).
The running of the prescriptive period of 4 years
cannot be interrupted by an extrajudicial demand
made by the party whose consent was vitiated
(Miailhe v. CA, G.R. No. 108991, March 20, 2001 ).
Mistrust of the courts and of judicial processes is no
excuse for their non-observance of the prescriptive
period set down by law ·(First Philippine Holdings·
Corporation v. Trans Middle East, (Phils.) Equities
Inc., G.R. No. 179505, December 4, 2009).
RATIFICATION
The act or means by virtue of which efficacy is given
to a contract which suffers from a vice( curable
nullity (4 TOLENTINO, supra at 600).
FORMS OF RA TIFICATIOtJ:
1. Express ratification ( CIV{L CODE; Art. 1393);
2. Implied ratification
- there is a tacit ratification if, with knowledge of
the reason which renders the contr~ft voidable
and such reason having ceased, th~\[)erson VihO
has a right to invoke it should exei::ute 9n act
which necessarily implies an intention to waive
his right (CIVIL CODE, Art. 1393). . - rules provided in Art. 1398-1402 shall govern
EFFECTS OF RATIFICATION:
1. Extinguishes · the action for annulment of
voidable contract (CIVIL CODE, Art. 1392);
2. Cleanses the .contract of its defects from the
moment it was constituted ( CIVIL CODE, Art.
1396).
REQUISITES OF RATIFICATION: (VEKD)
1. Contract is tainted with a ~ice susceptible of
being cured;
2. Confirmation is gffected by the person who is
entitled to do so under the lavv';
3. It is effected with ~nowledge of the vice or defect
of the contract; and
4. Cause of the nullity or Qefect has already
disappeared (JURADO, Obligations and
Contracts, supra at 547).
NOTE: The right to ratify may be exercised by the
guardian of the incapacitated person having such
right (CIVIL CODE, Art..1394). Ratification does not
require the conformity of the contracting party who
has no right to bring an action for annulment ( CIVIL
CODE, Art. 1395).
WHO MAY INSTITUTE ACTION FOR
ANNULMENT
An action tor annulment may be instituted by all who
are thereby obliged principally or subsidiarily, except
the following:
1. The party who contracts with an incapacitated
person;
2. The one who caused that which vitiates the
contract or has chargeable knowledge thereof
(CIVIL CODE, Art. 1397).
REQUISITES:
1. Plaintiff must have interest in the contract; and
2. The victim and not the party responsible for the
vice or defect must assert the same (JURADO,
Obligations and Contracts, supra at 550).
.. i(~;,tt)/r;<L pers~who is prejudiced in his rights with
. :, fespecf't~:t:qoe of the contracting parties, and can
· show detrimerit which would positively result to him
of from the contta"tt in which he has no intervention may
seek annuljn~hf(Teves v. People's Homesite &
Housing Cprp.i G.''f?. No. L-21498, June 27, 1968).
NULMENT:
has not been
d
shall be released from the obligations
,erefrom;
2. If contract has already been
consummated
(JURADO, Obligations and Contracts, supra at
552).
a
OBLIGATION OF MUTUAL RESTITUTION
1. Obligation to give
- The parties shall restore to each other things
which have been the subject matter of the
contract with fruits and the price with interest,
except in cases provided by law (CIVIL CODE,
Art. 1398).
EXCEPTION: When the defect of the contract
consists in the incapacity of one of the contiacting
parties, the incapacitated person is not obliged to
make restitution except insofar as he has been
benefited by the thing or price received by him
(CIVIL CODE, Art. 1399).
 OBLIGATIONS AND CONTRACTS
NOTE: The profit or benefit received by the
incapacitated person, which obliges him to make
restitution, is not necessarily a material and
permanent increase in fortune, but any prudent
and beneficial use by the incapacitated of the
thing he received for his necessities, social
disposition or discharge of his duties to others (4
TOLENTINO, supra at 610-611).
It is presumed, in the absence of proof, that no
such benefit has accrued to the incapacitated
person (JURADO, Obligations and Contracts,
supra at 553-554).
Art. 1399 cannot be applied to those cases where
the incapacitated person can still return the thing
which he has received (Id. at 554).
Innocent third parties are not bound to restore
(Peralta v. Heirs of Bernardina Abalon, G.R. No.
183448, June 30, 2014). · CHARACTERISTICS
2. Obligation to do or not to dp
- There will be an apportionment of damages
based on the value of such prestation with
corresponding interests (JURADO, Obligations
and Contracts, supra at 552-553).
EFFECTS OF FAILURE TO MAKE
RESTITUTION
Where the thing is lost:
1. Due to fault of defendant
- he shall return the fruits received and the value
of the thing at the time of loss, with interest from
the same date (CIVIL CODE, Art. 1400);
2. Due to fault or fraud of plaintiff
- the action for annulment shall be extinguished;
3. Due to fault of the incapacitated
- whether the loss occurred during the plaintiffs
incapacity or after he had acquired capacity, the
action for annulment would still be extinguished '
in accordance with Art. 1401, par. 1; and
4. Due to fortuitous event
- contract can still be annulled, but the defendant
can be held liable only for the value of the thing
at the time of loss without interest thereon
(JURADO, Obligations and Contracts, supra at
555-557).
Civil Law
UNENFORCEABLE
CONTRACTS
(ARTS. 1403-1408)
UNENFORCEABLE CONTRACT
Those which cannot be enforced by a proper action
in court unless they are ratified, because, either:
1. They are entered into without or in excess of
authority (CIVIL CODE, Arts. 1403, par. 1 and
1317);
2. They do not comply with the Statute of Frauds
(CIVIL CODE, Art. 1403, par. 2); or
3. Both of the contracting parties are incapable of
giving consent (CIVIL CODE, Art. 1403, par. 3).
OF
UNE~FORCEABLE CONTRACTS:
1. They. cannot be enforced by a proper action in
court (CIVIL CODE, Art. 1403);
2. They a(e susceptible of ratification (CIVIL CODE,
Art. 1403, 1405, 1407, 1371); and
3. They cannot be assailed by third persons (CIVIL
CODE, Art. 1408). '
PRINCIPLES UNDER CONTRACTS
ENTERED INTO WITHOUT OR IN EXCESS
OF AUTHORITY:
1. No one may contract in the name of another
without being authorized by the latter or unless
he has a right to represent him. If he is duly
authorized, he _must act within the scope of his
powers (CIVIL CODE, Arts. 1317 &1881);
2. A.contract entered into in the name of another by
one who has no authority or legal representation,
or who has acted beyond his powers, is
unertforceable (CIVIL CODE, Arts. 1403, par. 1
and 1.317); and
3. However, such contract may be ratified,
expressly or impliedly by the person in whose
behalf it has been executed, before it is revoked
by the other contracting party (CIVIL CODE, Art.
1317).
CONTRACTS COVERED BY THE
STATUTE OF FRAUDS
In the following cases, an agreement hereafter made
shall be unenforceable by action, unless the same,
or some note or memorandum thereof, be in writing,
and subscribed by the party charged, or by his agent;
evidence thereof, of the agreement cannot be ·
received without the writing; or a secondary evidence
of its contents: (1 PM-GLSR)
 MMIM# \ 1
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1. An agreement that by its terms is not to be
performed within 1 year from the making thereof;
NOTE: Only full or complete performance by one
party within a year from the execution thereof will
take the case out of the Statute of Frauds
(JURADO, Obligations and Contracts, supra at
563-564).
2. A special fromise to answer for the debt, default
or miscarriage of another;
NOTE: If the promise is an original one or
independent one, that is, the promisor becomes
thereby primarily liable for the payment of the
debt, the promise is not within the statute. But on
the other hand, if the promise is collateral to the
agreement of another and the promisor, the
promise must be in writing (Reiss v. Memije, G.R.
No. 5447, March 1, 1910).
3. An agreement made in consideration of
_Marriage, other than a mutual promise to marry
(e.g. Pre-Nuptial Agreement, Marriage
Settlements, and Donation Propter Nuptias); ·
NOTE: When the marriage is a mere incident,
and the end to be attained by the agreement, the
contract is not in consideration of a marriage, and
oral evidence can prove the agreement (4
TOLENTINO, supra at 622).
4. An agreement for the sale of Q_oods, chattels or
things in action, at a price not less than P500,
unless the buyer accepted and received such
goods and chattels or evidences or some of
them, of such things in action or pay ai the time
some part of the purchase money; but when a
sale is made by auction and entry is made by the
auctioneer in his sales book, at the time of sale,
of the amount and kind of property sold, terms,
price, names of the purchasers and persons to
whose account the sale is made, it is a sufficient
memorandum;
NOTE: Where there is a purchase of a number of
articles which separately do not have a price of
P500 each but has an aggregate sum exceeding
P500, the statute is only applicable if the
transaction is inseparable (Id. at 624). ·
5. An agreement for.the 1,easing of real property for
a longer period than one (1) year;
6. An agreement for the §.ale of real property or
interest (e.g. usufruct, easement) therein; and
7. A Representation as to the credit of a third
person.
This serves as the basis to an action for damages
against the party who made the representation, if
the same turns out to be false or incorrect.
NOTE: The Statute of Frauds is exclusive, that is, it
applies only to the agreements or contracts
enumerated therein (PINEDA, Obligations and
Contracts, supra at 638).
REASON FOR THE STATUTE OF FRAUDS: To
prevent fraud and perjury in the enforcement of
obligations (DE LEON, Obligations and Contracts,
supra at 763, citing Phil. National Bank v. Phil.
Vegetable Oil Co. Inc., G.R. No. L-25400, January
14, 1927).
REMOVAL FROM COVERAGE OF
STATUTE OF FRAUDS
1. Express or Implied Ratification of a ,Party bound
by it;
2. Partial or Total Performance of the Obligations
under the Contract (Executed Contracts)
. ,.3. Execution of one or more Note or Memorandum
. in written form and subscribed by the party
i'charg$d:'.0t,his agent (CIVIL CODE, Art. 1403(2)
& 14osr··
FULL OR, PARTIAL EXECUTION
Contracts infringing the Statute of Frauds, are ratified
by the failure to object to the presentation of oral
evidenc;~ 1t9,prov(} try~ same, or by the acceptance of
benefits 'iin'-'1~ftfiilirn{CIVIL
·"' ... -,t. . >'•,p ..
CODE, Art. 1405).
If a contract has been totally or partially performed,
·thi; exclusion of parol evidence would promote fraud
br badfaith, for it would enable the defendant to keep
the benefits already delivered by him from the
transaction in litigation, and, at the same time, evade
the obligations, responsibilities or liabilities assumed
or contracted by him thereby (Mactan-Cebu
International Airport Authority v. Tudtud, GR 174012,
November 14, 2008).
NOTE: In other words, the Statute only covers
executory contracts. It no longer covers contracts
which have been partially or fully executed.
NOTE OR MEMORANDUM MUST BE
COMPLETE
For a note or memorandum to satisfy the Statute, it
must be complete in itself and cannot rest partly in
writing and partly in para/ (Swedi{,h Match, AB v. CA,
G.R. No. 128120, October 20, 2004).
The note or memorandum must contain the names of
the parties, the terms and conditions of the contract,
sind a description of the property sufficient to render
 OBLIGATIONS AND CONTRACTS
Civil Law

it capable of identification. ( Swedish Match, AB v. CA,
GR No. 128120, October 20, 2004).
Such note or memorandum must contain the
essential elements of the contract expressed with
certainty that may be ascertained from the note or
memorandum itself, or some other writing to which it
refers or within which it is connected, without
resorting to para/ evidence ( Swedish Match, AB v.
CA, G.R. No. 128120, October 20, 2004).
PRINCIPLES UNDER CONTRACTS
WHERE BOTH PARTIES ARE
INCAPACITATED:
1. These contracts are also unenforceable (CIVIL
CODE, Art. 1403, par. 3); and
3. The right to set up the defense of inexistence or
B_bsolute nullity cannot be waived or renounced
(CIVIL CODE, Art. 1409);
4. The action or defense for the declaration of their
inexistence or nullity is !mprescriptible (CIVIL
CODE, Art. 1410);
5. The inexistence or absolute nullity of a contract
cannot be invoked by a person whose interests
are not Qirectly affected (Tongoy v. CA, G.R. No.
L-45645, June 28, 1983); and
6. The defense of illegality of contract is not
available to 3 rd persons whose interests are not
directly affected (CIVIL CODE, Art. 1421).
VOID V. INEXISTENT CONTRACTS

2, If only one of the parties is incapacitated, the

contract is voidable (CIVIL CODE Art. 1390, no.
1).
Those wtiere all of the Those where one or
requisites of. a contract some or all of the
3. The contract may be ratified by the parents or
guardians of the contracting parties, or'by tne
are present' t:>ut the requisites essential for
cause;, . object or the validity of a contract
parties themselves upon attaining or regaining
purpose is<c6ntr,13'iy to are absolutely lacking
capacity. . . ' · .
law, rnoralst·. 'gbod such that it could not
a. Ratification on the part ·of only ope of the
customs, public order or come to existence,
parties - the contract becomes voidable;
b. Ratification on the part of both parties - the
public policy, or the whether valid or void.
contract. itself is
contract shall be validafodifrom its inception
prohibited or declared
(JURADO, Obligations anil Contracts, supra
at 572). ,- · void bytaw.

' ', '.

VOID OR INEXIS'FENT
CONTRACTS
(ARTS. 1409-1422),

VOID OR INEXISTENT CONTRACTS

Covers Art. 1409 Nos. Covers Art. 1409 Nos, 2
In general, they are those which lack absolutely either
1, 3,4,5,6, and 7. and 3.
in fact or in law one or some of the elements essential
for its validity. It has no force and effect from the very (JURADO, Obligations and Contracts, supra at 574-
beginning, as if it has never been entered into, and 575).
which cannot be validated either by time or by
ratification (JURADO, Obligations and Contracts, CONTRACTS WHICH ARE INEXISTENT
supra at 574). AND VOID AB IN/TIO: (ACE-Pl 20)
1. Those whose cause, object or purpose is
Characteristics Of Void Contracts: fontrary to law, morals, good customs, public
(Leg-RAID-3 rd ) order or public policy;
1. They do not produce any Legal effect (quod 2. Those which are Absolutely simulated or
nullum est nullum producit effectum); fictitious;
2. They are not susceptible of Ratification {CIVIL 3. Those whose cause or object did not ~xist at the
CODE, Art. 1409); time of the transaction;
4. Those whose object is Qutside the commerce of
men;
 W@#·N \ 1 "·, " ',:':' ': ''/ i;,"~;/,·/·
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' ' ,. - ; . ,:'499 .
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5. Those which contemplate an !mpossible service; 3. Payment of money or delivery of property made
6. Those where the !ntention of the parties relative by an incapacitated person, if the interest of
to the principal object of the contract cannot be justice so demands (CIVIL CODE, Art. 1415);
ascertained; and
7. Those expressly .E_rohibited or declared void by 4. Agreement or contract not illegal per se but
law (CIVIL CODE, Art. 1409). merely prohibited by law, and the prohibition is
designed for the plaintiffs protection (CIVIL
OTHER VOID AND INEXISTENT CODE, Art. 1416);
CONTRACTS: (ICF)
NOTE: The exception should not be applied if
1. Those which are the direct result of previous
public policy will not thereby be enhanced or
!llegal contracts (CIVIL CODE, Art. 1422);
subserved (Philippine Banking Corporation v. Lui
2. Those where there is no ~oncurrence between
She, G.R. No. L-17587, September 12, 1967).
offer and acceptance with regard to the object
and the cause of the contract; and
5. Payment of any amount in excess of the
3. Those which do not comply with the required
maximum price of any article or commodity fixed
!:_orm where such form is essential for validity
by law (CIVIL CODE, Art. 1417);
(JURADO, ·obligations and Contracts supra at
578).
6. Contract whereby a laborer undertakes to work
longer than the maximum number of hours fixed
THE FOLLOWING STIPULATIONS ARE by law (CIVIL CODE, Art. 1418);
VOID:
1. Pactum comissorium NOTE: The laborer may still demand additional
- a stipulation that allows the creditor to. compensation for service rendered beyond the
automatically appropriate the things given by way.• time limit even if the contract was signed
of mortgage or dispose of them upon default of , ':i yoluntarilY,by the laborer (Luzon Stevedoring Co.
the obligation(CIVIL CODE, Art. 2088). ; Inc. v:J:,:uzon Marine Department Union, G.R. No.
L-9265, Apt:il 29, 1957.)
'. ~ ;;

2. Pactum de non alienado

- a stipulation forbidding the . owner from 7. Contract whereby a laborer accepts a wage lower
alienating the immovable mortgaged (CIVIL than the minimum wage fixed by law (CIVIL
CODE, Art. 2130). CODE, Art 1419);

8. In c;~~Sf]dl~l~itili contracts, the legal terms may

3. Pactum leonina
be enforced 'separately from the illegal terms
- a stipulation which excludes one or more
(CIVIL CODE, Art. 1420); and
partners from any share of the profits or losses
(CIVIL CODE, Art. 1799).
bh'e who lost in gambling because of fraudulent
schemes practiced on him. He is allowed to
NOTE: The above enumeration is not exclusive.
recover his losses (RPC, Art. 315 (3b}) even if
gambling is prohibited (JURADO, Obligations
PRINCIPLE OF IN PAR/ DEL/CTO and Contracts, supra at 602-603).
When the defect of a void contract consists in the
illegality of the cause or object of the contract and · EFFECTS WHEN BOTH PARTIES ARE AT
both of the parties are at fault or in pari delicto, the
law refuses them any remedy and leaves them where
FAULT AND THE ACT CONSTITUTES A
they are (CIVIL CODE, Art. 1411 ). CRIMINAL OFFENSE:
1. They shall have no action against each other;
EXCEPTIONS: 2. Both shall be prosecuted; and
1. Payment of usurious interest (CIVIL CODE, Art. 3. The effects or instruments of the crime shall be
1413); confiscated in favor of the government (CIVIL
CODE, Art. 1411).
2. Payment of money or delivery of property for an
illegal purpose, where the party who paid or EFFECTS WHEN ONLY ONE IS AT FAULT
delivered repudiates the contract before the AND THE ACT CONSTITUTES A
purpose has been accomplished, or before any
CRIMINAL OFFENSE:
damage has been caused to a third person
(CIVIL CODE, Art. 1414); 1. The guilty party will be prosecuted;
2. The instrument of the crime will be confiscated;
and
 ' " ('.'
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OBLIGATIONS AND CONTRACTS

" i ' " ~ ' Civil Law
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3. The innocent one may claim what he has given;

or if he has not given anything yet, he shall not
be bound to comply with his promise (CIVIL
CODE, Art. 1411).

NOTE: Art. 1411, par. 1 of the CIVIL CODE is not

applicable to Art. 1409 par 2 and 3 (JURADO,
Obligations and Contracts, supra at 575).

EFFECTS WHEN BOTH PARTIES ARE AT

FAULT AND THE ACT DOES NOT
CONSTITUTE A CRIMINAL OFFENSE:
1, Neither may recover what he has given by virtue
of the contract; and

2, Neither can demand the performance of the

other's undertaking (CIVIL CODE, Art. 1412, par.
1).

EFFECTS WHEN ONLY ONE IS AT fAULt

AND THE ACT DOES NOT CONSTl;FUTE
A CRIMINAL OFFENSE: . ! ,
1. Guilty party cannot recover V)lhafhas'beein given 0

by reason of the contract, qra_sk fh~-fDlfjllment of

what has been promised l:llm,[·, "'f
•
·
; '<,~ - ~'

2. Innocent party may demhndJllei:turnpfwhat he

has given without any oqJigatipn to cqmply with
his promise (CIVIL CODE, Art.*1412, par. 2):
½ ;:< !} !

NOTE: In the principle[ pari '<1.ei1:to where ~f ::itt

only one of the contracli!lQ p~rfifS is.,~Ffiru,lt, the
non-availability of recov~ry of '{fie thih~, !Jtven
extends to his heirs. Thl!s, the 'tl,eirs r:nay hot
institute an action for nul{ity as ·tqe pr:thciple ·
constitutes a bar for action· (J..iguez 'v:,, CA, $.R
No. L-11240, Dec. 18, 1957). 1' '"•-·,. ,.. , ·
 1
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COMPARATJVE TABLE OF DEFECTIVE CONTRACTS

Defect is caused by Defect is caused by Defect is caused by lack of Defect is caused Defect is caused
injury/ damage vice of consent required form, authority, or by the absence by illegality or
either to one of the capacity of both parties, not of at least one of invalidity of any
parties or to o third cured by prP.sr.rirtion the essential one of its
person requisites. essential
elements, or the
contract itself

Defense or Action Corresponlting adtio

of. -,Defense or Action for the declaration
prescribes in 4 years for annulment recov~ry. if•there was totat bf nullity or inexistence do not.
prescribes in 4 years or parti~I performance of • pi;escribe
the unenforceable contrad
uhder r:ios.;!i or 3 of Article
1403, maiprescribe
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May be assailed only by a

contr~cting party
 ' '

,,. 5()2. ' ' '•. ~ ·, ' ';,·· OBLIGATIONS AND CONTRACTS
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Civil Law

REMEDl[S AVAILABLE AGAINST DEFEC IIVE CONTRACTS

1. Contracts entered into by guardians By ward Within four years from gaining capacity
whenever the wards whom they
represent suffer lesion by more than
¼ of the value of the things which are
objects thereof;

2. Contracts agreed upon in By absentee Within four years from knowledge of

representation of absentees, if the domicile or knowledge of fraudulent
latter suffers lesion by more than ¼ contract
of the value of the things which are
subject thereof;

3. Contracts undertaken in fraud of By creditor Within four years from knowledge of

creditors when the latter cannot in fraudulent act
any manner collect the claims due
them;

4. Payments made in a state of By creditor

insolvency for obligations who!5e .
Within •four years from knowledge of
fulfillment the debtor could .not be
fraudulent contract
compelled at the time 1they were
effected

5. Contracts which refer to the things By party litigant

under litigation if they have been
Within four years from knowledge of
entered into by the defendaht without
fraudulent contract
the knowledge and approval of the
litigants and the court

1 . Contracts where one of the parties is By party who is Within four years from gaining or
incapable of giving consent to the incapacitated regaining capacity to act
contract

2. Contracts where the consent is By party whose consent Within four years from cessation of
·vitiated by mistake, violence, was vitiated force, intimidation or undue influence;
intimidation, undue influence or fraud within four years from discovery of
fraud or mistake

1. Contract entered into in the name of Person in whose name the At any time whenever one party
another person without authority or in contract is entered into attempts to enforce the contract
excess of authority against another through court action

2. Contract entered into which does not By party against whom the
comply with the Statutes of Fraud contract is being enforced

3. Contract where both contracting By parents or guardians of

parties do not possess the required both parties, or both
legal capacity parties after regaining
capacity to act
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MEM:Q,RY AID
San Seda University College ot law RGCT Bar Opemtlons Cente1

Contract whose cause, object or By innocent party;

purpose is contrary to law, good By 3rd persons whose
customs, morals, public order or intore8t£ are directly
public policy affected

2. One or some of essential requisites By any of the contracting

of valid contract is lacking in fact or in parties;
law: By 3rd persons whose
a. Absolutely simulated interests· are directly
b. Cause or object did not exist affected
C. Object is outside the commerce
of man
d. Contemplate an impossible
service
e. Intention of parties relative to the
principal object of contract
cannot be ascertained

3. Contracts expressly prohibited by By the paf1Y in whose

law protection prohibition the
of the law is <.ie,s,ig[/~Q;
By 3 rd p6ri'Y'>who$:~•,
,interests are directly
affected
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OBLIGATIONS AND CONTRACTS

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Civil Law

NOTE: Article 2052 provides that natural obligations

NATURAL OBLIGATIONS may be guaranteed. In principle, however, a natural
obligation cannot be guaranteed, because the
(ARTS.1423-1430) liability of the guarantor presupposes that there must
be a prior exhaustion of the property of the principal
debtor, and that the guarantor after paying can
recover from the principal debtor - and both of this
NATURAL OBLIGATIONS cannot be legally done when the obligation is natural
Those based on equity and natural law, which do not (Id. at 651).
grant a right of action to enforce their performance,
but after voluntary fulfillment by the obligor, ILLICIT OBLIGATIONS
authorize the retention of what has been delivered or Obligations which are contrary to morals and good
rendered by reason thereof (CIVIL CODE, Art. customs do not constitute natural obligations, and,
1423). therefore, whatever is paid under such obligations
can be recovered, without prejudice to the provisions
NOTE: The binding tie of these obligations is in the of Articles 1411 and 1412 (Id. at 651).
conscience of man, for under the law, they do not
have the necessary efficacy to give rise to an action
(4 TOLENTINO, supra at 646).
NATURAL OBLIGATION
V. MORAL OBLIGATION
NECESSITY OF JURIDICAL TIE .
In order that there may be a natural obligation there
must be a juridical tie which is not prohibited by law
and which in itself could give a cause of action but
because of some special circumstances is actually
without legal sanction or . means of enforcing
compliance by intervention . of courts (4
TOLENTINO, supra at 646).

TWO CONDITIONS NECESSARY FOR

NATURAL OBLIGATIONS:
Voluntary fulfillment of Voluntary fulfillment of
1. That there be a juridical tie between two
persons; and such produces legal such does not produce
2. That this tie is not given effect by law. effects which the court any legal effect which
will recognize and the court will recognize
NOTE: The first requirement distinguishes the prote.ct. and protect.
natural obligation from the moral, and the .second
distinguishes it from the civil (4 TOLENTINO, supra
at 646). Within the domain of Within the
morals.
CONVERSION INTO CIVIL OBLIGATION
(4 TOLENTINO, supra at 647-649).
The promise to perform a natural obligation is as
effective as performance itself and converts the
NATURAL OBLIGATION
obligation into a civil obligation (Id. at 649).
V. CIVIL OBLIGATION
NOTE: A natural obligation may also be converted
into a civil obligation by novation or by confirmation
or ratification (Id. at 650).

Example: Acknowledgement of a prescribed debt.

EFFECT OF PARTIAL PAYMENT

As a general rule, partial payment of a natural
obligation does not make it civil; the part paid cannot
be recovered but payment ofthe balance cannot be
enforced (Id. at 651).
(JURADO, Obligations and Contracts, supra at 635).
 MWtiii@ \ 1
MEM✓Q~Y AID
San Beda Universrty College of Luw - RGCT Ba:r Operations Center
EXAMPLES OF
OBLIGATIONS:
1. Performance after the civil obligation has
prescribed (CIVIL CODE, Art. 1424);
2. Reimbursement made to a third person who paid
for a debt that has prescribed (CIVIL CODE, Art.
1425);
3 Porformance ;:,fter action to enforce civil
obligation h.:ts failed (CIVIL CODE, Art. 1428);
4. Payment by heir of debt exceeding value of
property inherited (CIVIL CODE, Art. 1429); and
5. Payment of legacy after the will has been
declared void (CIVIL CODE, Art. 1430).
RESTITUTION BY MINOR
After a decree of annulment of a contract, the parties
are generally bound to make restitution. When the
ground for annulment, however, is the incapacity of
the plaintiff, he is not bound to make restitution
except to the extent that he was benefited.
However, he has a natural obligation to do so; hen~
under Article 1426, if he voluntarily makes restitution,
he cannot recover what he has delivered, if he is
minor over 18 years of age. A minor of such age is
deemed to have sufficient mental and moral
development .to be aware of his debt of conscience
(4 TOLENTINO, supra at 652).
PAYMENT BY MINOR
Article 1427 deals with voluntary payment by minor
over 18 years of age under an annullable contract.
There is no natural obligation in the situation
contemplated by this Article; the obligation here is a
civil obligation, which exists and is enforceable
unless it is set aside or annulled by competent court
in an action for that purpose (Id. at 653).
ESTOPPEL
(ARTS. 1431-1439)
ESTOPPEL
Through estoppel, an admission or representation is
rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person
relying thereon (CIVIL CODE, Art. 1431).
NOTE: Estoppel is the condition where a person is
rendered unable to deny an admission or
representation made to the person who had already
relied on such admission in good faith (PNB v. /AC,
GR. No. 66715, September 18, 1990).
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NATURAL DISTINGUISHED FROM WAIVER
-------
A waiver is a voluntary and intentional abandonment
or relinquishment of a known right. It carries no
implication of fraud. It involves the act or conduct of
only one of the parties. An equitable estoppel may
arise, however, even where there is no intention on
the part of the person estopped to relinquish any
existing right, and frequently carries the implication
ol traud. It involves l11e conduct of both particG (1
TOLENTINO, supra.at 657).
DISTINGUISHED FROM RATIFICATION
The party in ratification is bound because he
intended to be; in the latter, he is bound
notwithstanding the fact that there was no such
intention, because the other party will be prejudiced
and defrauded by his conduct unless the law treats
him as legally bound (Id. at 657).
Kinds of Estoppel:
1. Estoppel in pais or by conduct
- Applies to a situation where, because of
something which a person has done or omitted
a to do, a party is denied the right to plead or prove
· '·" an,qthei'wise important fact (Id. at 664).
·~ .. E§tif~pel by. silence (e.g., CIVIL CODE,
Art. 1#37);
b. Estoppel by acceptance of benefits (e.g.,
CIVIL' CODE, Art. 1438)
c. Promissory estoppel - a promise to do or
n,ot to do n:,sults in estoppel, provided that
· , ich was intended to be relied
'relied upon and the refusal to
enforce it would sanction fraud or injustice (4
TOLENTINO, supra at 658).
EJJtii'ents (CI K):
a. ~onduct amounting to false representation
or concealment of material facts, or at least
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party. subsequently
attempts to assert;
b. !ntent, or at least expectation that this
conduct shall be acted upon by, or at least
influence, the other party; and
c. ,!Snowledge, actual or constructive, of the
real facts (Id. at 664).
2. Technical estoppels:
a. Estoppel by deed - a party to a deed is
precluded from asserting as against the
other party, any material fact asserted
theiein; and
b. Estoppel by record - a party is precluded
from denying the truth of matters set forth in
a record, whether ·judicial or legislative
(JURADO, Obligations and Contracts, supra
at 640).
 : , - ,;/ ~-~- )' ~ '\ '- </" ;~," ', : ~
OBLIGATIONS AND CONTRACTS
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3. Estoppel by judgment
- a party to a case is precluded from denying the
facts adjudicated by a court of competent
jurisdiction (RULES OF COURT, Rule 39,
Section 47{b)};
4. Estoppelbylaches
- failure or neglect for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have
been done earlier (Regalado v. Go, G.R. No.
167988, February 6, 2007).
EXAMPLES OF ESTOPPEL:
1. If a person, in representation of another sells or
alienates a thing, the former cannot
subsequently set up his title as against the buyer
or grantee (CIVIL CODE, Art. 1435).
2. A lessee or bailee is estopped from asserting
title .to the thing leased or received, as against
the lessor or bailor (CIVIL CODE, Art. 1436).
Estoppel of Tenant
A tenant will not be heard 16 dispute his
landlord's title. Once the c·ontracf of lease is
shown to exist between ;the pahies, the lessor
cannot be compelled to prove his title thereto
(TOLENTINO, supra at 665).
3, When in a contract between third persons
concerning immovable propeft}, one of them is
misled by a person with respect to the ownership
or real right over the real estate, the latter is
precluded from asserting hi,s legal title or interest
therein, provided all the following requisites are
present (FIUA)
a. There must be _Eraudulent representation or
wrongful concealment of facts known to the
party estopped;
b. The party precluded must !ntend that the
other should act upon the facts as
misrepresented;
c. The paIiy misled must have been ,!lnaware
of the true facts; and
d. The party defrauded must have ~cted in
accordance with the misrepresentation
(CIVIL CODE, Art. 1437).
SUBSEQUENT ACQUISITION OF TITLE
Although plaintiff's father did not obtain title to the
land until some years after, he had sold such land,
his subsequent acquisition of the land would have
the effect of making his conveyance of the same to
defendant valid. A person who sells a property when
he did not have title to it, cannot deny validity to the
sale after he has acquired title (See CIVIL CODE,
Art. 1434; lnquimboy v. Cruz, G.R. No. L-13953, July
26, 1960).
Civil Law
ESTOPPEL AGAINST OWNER
When in a contract between third persons
concerning immovable property, one of them is
misled by a person with respect to the ownership or
real right over the real estate, the latter is precluded
from asserting his legal title or interest therein,
provided all these requisites are present:
1. There must be fraudulent representation or
wrongful concealment of facts known to the
party estopped;
2. The party precluded must intend that the other
should act upon the facts as misrepresented;
3. The party misled must have been unaware of the
true facts; and
4. The party defrauded must have acted in
accordance with the misrepresentation {CIVIL
CODE, Art. 1437).
NOTE: The rule is well-settled that the titre to land or
real property may pass by an equitable estoppel
which is effectual to take the title to land from one
person and vest it in another where justice requires
that such action be done. Thus. by · intentionai
misrepresentalloii, misleading conduct, or wrongful
concealment, a person may preclude himself from
asserting his legal title to land or from enforcing an
encumbrance ph, or maintaining an interest in, real
estate (DE LEON, Obligations and Contracts, supra
at 962).
ESTOPPEL BY ACCEPTANCE .OF
BENEFITS
On~. who has ailowed.another to assume apparent
ownership of personi,:il property for the purpose of
making any transfer of it, cannot, if ·he received the
sum ior which a pl(;}dge has been constituted, set up
his own title to defeat the pledge of the property,
made by the other to a pledgee who received the
same in good faith and for value (CIVIL CODE, Art.
1438). ., .
(T/1e laws on pledges and chattel mortgage are
repealed by RA 11057 otherwise known as the
Personal Property Security Act (hereinafter PPSA).
Based on Section 68 and 26 of the PPSA, the
implementation of this act shall be conditioned upon
the establishment and operation of the Registry).
NOTE:_ Estoppel is frequently based upon the
acceptance and retention by one having knowledge
or notice of the facts, of benefits from a transaction,
contract, instrument regulation, or statute which he
might have rejected or contested. It has been said
that the case is referable, when no fraud, either
actual or constructive, is involved to the principles of
ratification (See CIVIL CODE, Arts. 1317, 1403 (1),
and 1405) rather than to those of estoppel.
 f&W#iii ' I
MEM:v:RY AID
San Beda University College of Law - ROCT Bar Operations Center
The result produced, however, is clearly the s;:ime,
and the distinction is not usually. made_ Such
estoppel precludes one who accepts the benefits
from repudiating the accompanying or resulting
obligation, and may operate to prevent a party from
profiting by his own wrong (DE LEON, Obligations
and Contracts, supra at 962-963).
Examples:
1. It has been held that where an employee had
accepted the benefits accruing from the abolition
of his office by enjoying his unused vacation and
sick leave and receiving the corresponding
gratuity, he is estopped from questioning its
validity or deemed to have waived the right to
contest the same (Magana v. Auditor General,
GR No. L-12180, April 26, 1960).
2. In a case, the appointees, having accepted the
acting appointments (as acting Mayor, Vice-
Mayor, and councilors of a newly created
municipality) extended to them without any
protest or reservation, and having acted •
thereunder for a considerable time, the court
ruled that they "cannot now be heard to say that
such appointments were, in reality, permanent - . ""·"
and that, by reason of their being so, they could
not be removed, except for cause, berore the
end of the term for which they were,supposedly
appointed" (Cab/ling v. Pabualan, G.R. No. L-
, May , ). · exercising due diligence, could or should have been
21764 31 1965
3. But the plaintiff's acceptance of the offer qf
settlement of the defendant should not be
deemed a waiver of the action where his
·acceptance was conditional and the condition
was not accepted. The doctrine of estoppel
cannot, therefore, be slapped against him
(Switzerland Gen. Ins_ Co., Ltd. v. Java Pacific &
Hoegh Lines, GR No. L-21760, April 30, 1966).
4_ Quitclaims executed by laborers are commonly
frowned upon as contrary to public policy and
ineffective to bar claims for the full measure of
the workers' rights under the law. Acceptance of
benefits such as separation pay by employees
does not amount to estoppel (Blue Bar Coconut
Phils., Inc. v. NLRC, G.R. No. 95914, May 5,
1992).
PERSONS AFFECTED BY ESTOPPEL
Estoppel is effective only as between the parties
thereto or their successors in interest (CIVIL CODE,
Ar_t. 1439).
NOTE: A stranger to a transaction is neither bound
by, nor in a position to take advantage of, an
estoppel arising therefrom (Resuena v. CA, G.R. No.
128338, March 28, 2005).
REASON: Mutuality is an essential element of
estoppel; and estoppel must bind both parties or
neither is bound (DE LEON, Obligations and
Contracts, supra at 964).
Thus, a grantor is not estopped by his deed as
against one who is neither a party thereto nor in
privity with a party. If anybody may be heard to
challenge the application of the doctrine of estoppel,
it is only the party against wl1om it m3y be invoked
(Id. at 964).
The government, however, is not estopped by the
mistake or error on the part of its officials or agents
(Id. at 964; Luciano v. Estrella, G.R. No. L-30306,
January 31, 1969), especially true when the
government's actions are sovereign in nature (Hi-
Lon Manufacturing Inc. v. GOA, G.R. No. 210669,
August 01, 2017).
I
I
LACHES
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' l..ACHESbR "STALE DEMANDS"
Failure or itl~lect, for an unreasonable and
• · ·
unexplained t~ngth of time, to do that which, by
done earlier; it is the negligence or omission to
assert a right within,a reasonable time, warranting a
presLirfiptlon~thl:lf.tnitparty entitled to assert it either
has abandonJcJi or declined to assert it (Tijam v.
Sibonghanoy, G.R. No. L-21450, April 15, 1968;
.f)tJ_partment of Education v. Casibang, G.R. No.
· '19?~6$, January 27, 2016).
NOTE: Laches operates not really to penalize
neglect or sleeping on one's rights, but rather to
avoid recognizing a right when to do so would result
in a clearly inequitable situation (Spouses Sierra v.
PAIC Savings and Mortgage Bank, Inc., G.R. No.
197857; September 10, 2014).
NOTE: While a person may not acquire title to the
registered property through continuous possession,
the heir of the latter may lose his right to recover
back the possession of the property and the title
thereto, by reason of !aches. The petitioners' !aches
extends to his heirs, since they stand in privity with
him (Heirs of Lacamen v. Heirs of Laruan, G.R No.
27088, July 31, 1975).
ELEMENTS OF LACHES (COLI):
1 . ~onduct on the part of the defendant, or of one
under whom he claims, giving rise to the
situation of which complaint is made and for
which the complaint seeks a remedy;
 OBLIGATIONS AND CONTRACTS
Civil Law

2. Qcloy in asserting the cu111µlc1in,mt's rights, the

complainant haviflg had knowledge or notice of
the defendant's conduct and having been
afforded an opportunity to institute a suit;

3. !:_ack of knowledge or notice on the part of the

defendant that the complaint would assert the
right on which he bases his suit; and

4. !njury or prejudice to the defendant in the event

relief is accorded to the complainant, or the suit
is not held to be barred (Pangasinan v. Disonglo
Almazora, G.R. No. 200558, July 1, 2015).

PRESCRIPTION V. LACHES

(JURADO, Obligations and Contracts, supra at 648-

649).
 1
4faG¥5ffl '
MEM✓Q-RY AID
San Beda University College of law - RGCT Bar Operations Center

]
deposit, guardianship, and agency, in that the

[ .: TRUSTS trustee has legal title to the property (Heirs of

Labanon v. Heirs of Labanon, G.R. No. 160711,
August 14, 2007).

Not all Trusts are Contracts

TRUST (FIDE/COMJSSO)
Express trusts are created by the intention of the
A trust, either express or implied, is the fiduciary trustor or of the parties (NEW CIVIL CODE, Art.
relationshiJ) between one person having an 1441). Express trusts therefore r.omply with the
0riuit.ible ownership of property ;:inrl another person ulernents of a contrnr.t· r.om,cmt, object, and cause
owning the legal title to such property, the equitable
(NEW CIVIL CODE, Art. 1318).
ownership of the former entitling him to the
performance of certain duties and the exercise of
NOTE: This is why express trusts are sometimes
certain powers by the latter (Goyanko Jr. v. United
referred to as conventional trusts.
Coconut Planters Bank, G.R. No. 179096, February
6, 2013). Implied trusts however are created by operation of
law (NEW CIVIL CODE, Art. 1441). The obligations
In its technical legal sense, a trust is ~efined as the
between the parties in an implied trust are created
right, enforceable solely in equity, to the beneficial
by law as a matter of equity in recognition of the trust
enjoyment of property, the legal title to which is
relation between them. They are created with or
vested in another, but the word "trust" is frequently
without the consent of the parties to the relation.
employed to indicate duties, relations, and
responsibilities which are not strictly technical trusts
(Pena/ber v. Ramos, G.R. No. 178645, January 30,
2009).
GENERAL PROVISIONS
NOTE: Trust denotes "confidence," "fiduciary :,, .~TS. 1440-1442
relationship," etc. and is often used in reference to
the confidential aspect of any kind of a bailment or
possession by one person of the property of another
(DE LEON, Comments and Cases on Partnership,
PERSONSJN\(OLVED IN ATRUST
Agency and Trusts (2019), p. 629, [hereinafter, DE
LEON, Partnership, Agency & Trusts]). 1. Trustor , ,
- The,.~G>99A~ho establishes the trust (CIVIL
There is a fiduciary relation between the trustee arid cotfE/iflqi'f4'$iOj.
• the beneficiary ( cestui que trust) as regards certain
property, real, personal, money or choses inaction 2. Trustee
(Peiialber v. Ramos, G.R. No. 178645, January 30, i:;{f:,7.J~e one in whom confidence is reposed as
2009). •· •• •
0
'-'''r{jgard\:t property for the benefit of another
person (CIVIL CODE, Art. 1440).
Difference of Trust from Other Relationships.of a
Fiduciary Character 3. Beneficiary or the cestui que trust
This legal relationship can be distinguished from - The person for whose benefit the trust has
other relationshiµs of a fiduciary character, such as been created (CIVIL CODE, Art. 1440).

man: ''ZIPl'l~m~~mnirrifl:MII IRtm f '"'"Tl\1't ii E -

DOHN ALFRED E. AQUIUZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GA CUI.A, Ad Hoc Director for Bar Matter, I MARTELLE CIELO B. BELG IRA, Vice Chairperson for Finance I JUAN J.NIGO S. MIGlJF.L,
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit I CORINA R. TAMPUS, Vice
Chairperson for Secretariat I ARVY KEITH N. CHUNG, Vice Chairperson for Logistics I ANTONlO JUN-JUN C. MANALIGOO IV, Vice
Chairperson for Membership I JORDAN N. CHAVEZ, Vice Chairperson for Eleclmnic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair I KING LAURENZ S. MASILUNGAN, Assistant Subject Chair I AUIEX ADREA M.
PERALTA, Subject Electronic Data Processing I SUBJECT HEADS: JOAN V. J.AGRAOJLLA, Agency & Trusts I QlJENNIE IRIS V.
BULATAO, Conflicts of !.aw I JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligation, and Contracts I
CHRISTJENNE NATHALIE A, BERONA, Persons and Family Relation.s I KRJSTOFFER MONICO S. NG, l'roperty I JOLEEN EVETTE
D. MALLARI, Land 7\tles and Deeds I MARISOL 0. SISON, Sales I GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS,
Succession I

SAMANTHA YVES 0. Pl,ACIDO, Qll.ENNIE JRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARI.ON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSEi.LE JUNE G. CERENO, MARIANNE HELENE I'. REYEG,
VERONICA V. VEl,ASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMJKO ANGELllJS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A Y_ALAO., KlEZU.F. CAYNE D.
MANALILI, ANNA ROCHELLE D. PA YONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KI.,~UDJNE A. ROSALES

~ B I l!Ll~~11Pffl:P7.,_.,,,t!f:UJllll!JJ! i1RI
Atty. THERESA GENEVIEVE NUEVE-CO and Atty. LUIS MANUEL BUGAYONG
 ~ >, ",,,,~~\~ \ ,~·, ... • '\ ·",~}-:,.,,

; 51(f . :· . •,' /' .·· ' TRUSTS

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Civil law
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NOTE: The trust muy provide for mo1e ll1w1 one TRUST V. CONTRACT
beneficiary (DE LEON, Parlnership, Agency &
Trusts, supra at 642).

Always involves A legal obligation based

TRUSTOR AS TRUSTEE OR ownership, embracing on an undertaking
BENEFICIARY a set of rights and supported by a
The· trustor may establish a trust with him as the duties fiduciary .in consideration, which
trustee or the beneficiary. He cannot, however, be character, which may obligation may or may
both the sole trustee and the sole beneficiary of a be created by a not be fiduciary in
single trust (fd. at 642). declaration without character.
consideration.
CHARACTERISTICS OF A TRUST (Id. at641).
1. It is a relationship;
2. It is a relationship of fiduciary character;
TRUST V. AGENCY
3. It is a relationship with respect of property not
involving merely personal duties;
4. It involves the existence of equitable duties
imposed upon the holder of the title to the
property to deal with it for the benefit of another;
and Title. and control of the Agent merely represents
. 5. It arises as a result of a manifestation to create property under the trust and acts for his
the relationship (Morales v. Court of Appeals, instrirmenf'· passes to principal.
G.R. No. 117228, June 19, 1997). the trustee who. acts in
his own ncjme:
CHARACTER OF OFFICE OF TRUSTEE
1. As principal
- The trustee is not an agent of.the trust estate
or of the cestui que trust, but he acts for himself
Tn-1st may ordinarily be Agency may in general
in the administration of the trust estate, although
terminated only by the be revoked at any time.
subject to the terms ot'the trust and the law of
fulfillment of its
trusts. · · ·
purpose.

2. As agent
- In some cases, however, a trustee has been
regarded as an agent of beneficiaries of the trust
at least for certain purpose, such as for the
purpose of imputing to the berieficiaries of the
trust notice given to the trustee.
.Trusf is based on the Agency is formed with
3. As fiduciary idea of discretion in the the thought of constant
- A trustee holds an office of trust. A trustee has trustee and guidance supervision and control
a duty of loyalty. He has the obligation to avoid by the settler or cestui by the principal.
conflicts of interest with the beneficiary, and only to a limited extent
even potential conflicts of interest. He is and when expressly
expected to exercise the degree of care, provided for.
prudence and skill that a reasonably prudent (Id. at 372).
person would exercise in administering and
protecting his own property (Id. at 644-645). TRUST V. USUFRUCT
TRUST DISTINGUISHED FROM. OTHER
RELATIONS
What distinguishes a trust from other relations is the
separation of the legal title and the equitable Trustor transfers legal The owner transfers only
ownership of the subject property between two or' title to the trustee. He beneficial title to the
more people (Id. at 640). i may retain beneficial usufructuary, retaining
title for himself, or also legal title for himself.
transfer beneficial title
to a third person.
 #& \ I

MEM-Q-RY Al D
San Seda University College of Law - RGCT Bar Operations Center

TRUST V. LEASE

Trustor transfers title to Lessor retains naked

two persons: the trustee title, transferring only
and beneficiary, with beneficial rigt1l to use
the former acquiring and possess to the
legal title and the latter lessee.
acquiring beneficial title.
It is the trustee, the It is the usufructuary who
naked title holder, who is obliged to preserve the NOTE: Trustor may
actively manages and form and substance of the also merely transfer
administers the trust property held in usufruct, naked title to the trustee
property, and the and to take care of it with while retaining
beneficiary mainly is a the diligence of a good beneficial title as
passive receiver of the father of a family for the beneficiary.
fruits and benefits benefit of the naked title
arising from the trust holder at the end of the
property. usufruct.
Essence of the contract Essence of the contract
(VILLANUEVA, Agency & Trusts, Partnerships & is for the trustee to is the enjoyment of the
Joint Ventures, (2018), p.300 [hereinafter, manage the trust possession and use of
VILLANUEVA, Agency & Trusts, Partnerships & property as the legal the leased property.
Joint Ventures]). titte holderfor benefit or
• iriteresk> · .• ,,of the
TRUST V. SALE beneficiary. '

Benefits enjoyed by I.he Benefits enjoyed by the

beneficiary ~re usually lessee are only for a
of a pefm~netif'.natu're. limited contracted
',,,'"·/J,/)·:y~·-·
period.
(Id. at 300).

TRUST V. DONATION

A trust is an existing Donation is a transfer of

legal relationship and property and involves a
involves the separation disposition of both legal
Constituted merely as a Entered into for its own legal and equitable title and equitable
preparatory end, the acquiring of (DE LEON, supra at ownership.
arrangement, a title of the subject 630).
medium, by which the matter by the buyer.
trustee is expected to
pursue other juridical
acts for the benefit of Beneficiary need not The donee must comply
execute any formal with the formal
the beneficiary.
acceptance in order torequirements in
llrl ~+ ?n-t \
tiU. Ol VVlj. enforce his iights. accepting donations
under Article 749 of the
NOTE: Acceptance of New Civil Code.
beneficiary necessary
(NEW CIVIL CODE, Art.
1446).
 ,: " < ~ ' .I

'

' . 512 •
,, ,C '

, ' , , .. TRUSTS
"
~ > ,, '

I Ii '
Civil Law
, \

TRUST V. STIPULATION POUR AUTRUI or otherwise dispose of them. The beneficiary can
transfer only the interest he holds - the equitable title
(Id. at 644).

NECESSITY OF EXISTENCE OF
BENEFICIARY
A trust may exist A stipulation pour autrui A trust is not void for indefiniteness if the whole
because of legal can arise only in the property will go to beneficiaries who will be
provision or because of case ofcontracts. determined at the termination of the trust, at the
an agreement. latest (e.g., "my minor children", "my brothers and
sisters"). It is not necessary to the creation of a trust
that the cestui que trust be named or identified or
even be in existence at the time of its creation (Id. at
A trust refers to a A stipulation pour autrui 646).
specific property. refers to specific
property or to other
KINDS OF TRUSTS
things.
Trusts are either:
(4 PARAS, supra at 889). 1. Express Trusts
Express trusts are created by the intention of
TRUST PROPERTY the trustor or of the parties (NEW CIVIL CODE,
The property so held is referred to as· the, ''.trust Art. 1441).
property" or "trust res", which is the subject matter qf
the trust. The subject matter of a. trust may be any 2. Implied Trusts
property of value - real, personal, furfds or money, Implied trusts come into being by operation of
or choses in action (DE LEON! Partnership, Agency law (NEW CIVIL CODE, Art. 1441).
& Trusts, supra at 642-643).
TYPES OF IMP.LIED TRUSTS
Property Must be Existing .. 1. Resulting 11rust
It must consist of property actuc:illy in existence in
One in which the. intention to create a trust is
which the trustor has a transfer,:1ble interest or title_
although it may, as a rule, be ahy ~ihd of transferable
pres,umed by law tp exist from the transaction
and facts of the case.
property either realty or personalty including
undivided, future, or contingent interest therein. But
Example: Includes those contemplated under
it cannot be a mere expectancy without right or
Articles 1448, 1449, 1451, 1452, 1453 of the
interest or a mere interest in the performance of a
Civil Code (NEW CIVIL CODE, Art. 1447).
contract although such interest is in the nature of a
property right (Id. at 643). ·
(Please reff!r to page 517 herein).

NATURE Ot= OWNERSHIP OF'TRUSTEE 2. Constructive trust (trust ex ma/efacio,

AND BENEFICIARY trust ex de/icto, and de son tort)
The trust property is owned by two persons at the One imposed by law irrespective of and even
same time, the relation between the two owners contrary to the intention of the parties. It is
being such that one of them is under an obligation to designed to promote justice, frustrate fraud and
use his ownership for the benefit of the other. The prevent unjust enrichment (DE LEON,
former is called the trustee, and his ownership is Partnership, Agency & Trusts, supra at 647).
trust-ownership; the other is called the beneficiary,
and his is beneficial ownership (Id. at 643). Example: Includes, but is not limited to, those
contemplated under Articles 1450, 1454, 1455,
The ownership of the trustee is a mere matter of form 1456 of the Civil Code (NEW CIVIL CODE, Art.
rather than substance, and nominal rather than real. 1447)
The trustee is not a mere agent, but an owner. A
trustee is a person to whom the property of someone (Please refer to page 518 herein).
is fictitiously attributed by the law, to the extent that
the rights and powers thus vested in a nominal
owner shall be used by him on behalf of the real
owner (Id. at 644).

The interest of the beneficiary in the trust can, in

general, be reached by his creditors, and he can sell
 &%& \ I

MEM:Q~Y AID
San Bede University College of Law - RGCT BllI Operations Center

EXPRESS TRUST V. IMPLIED TRUST 2. As to revocability

- From the viewpoint of whether they may be
revoked by the trustor, they may be either:

a. Revocable trust - one which can be revoked

Created by the intention Comes into being by or cancelled by the trustor or
of the trustor or parties operation of law (NEW another individual given the power; or
(NEW CIVIL CODE, A1t. CIVIL CODE, Art. b. Irrevocable trust - one which may not be
1441), 1441 ). terminated during the specified term of the
trust (Id. at 647-648).

An express trust over an An implied trust,

immovable property or
any interest therein
whether the property
subject to trust is real or
EXPRESS TRUSTS
cannot be proved by personal may be proved ARTS. 1443-1446
parol evidence (NEW by oral evidence (NEW
CIVIL CODE, Art. CIVIL CODE, Art.
1443). 1457).
ELEMENTS OF AN EXPRESS TRUST:
(CORB-DA)
lmprescriptible; the Being obligations 1. Competent trustor and trustee;
property held in trust created by operation of 2. Ascertainable trust Bes; and
can be recovered law, actions to enforce 3. Sufficiently certain ~eneficiaries
anytime implied trusts 4. A present and complete Qisposition of the trust
prescribed in 10 years ·· ... :prppE:rty;,:.
EXCEPTION: If there is from the time the cause 5. . Establishment of some power of ~dministration
repudiation of express of action ai:ises (NEW other tha·15 a mere duty to perform a contract
trust, the action for CIVIL CODE, Art. 1144 although . the contract is for a third party
reconveyance (2)). beneficiary (Goyanko Jr. v. United Coconut
prescribes 1O years Planters Bank, G.R. No. 179096, February 6,
from the repudiation of 2013).
trust (AQUINO,
Reviewer on Civil Law INTENf":rctcREATE A TRUST Musr BE
(2018) p. 622). DEFINITELY ESTABLISHED
A failure on the part of the settlor definitely 'to
.•·· 9E'.:ll'\tribetpe subject-matter of the
supposed trust or
·the beneficiaries or object thereof is strong evidence
An express repudiation In constructive trusts,
that he intended no trust. The intent to create a
made known to the even if there is no
trust must be definite and particular. It must show
beneficiary is necessary repudiation, laches may a desire to pass benefits through the medium of a
in order that laches or ba~ an action to enforce
trust, and not through some related or similar device
acquisitive prescription an implied trust
(Mindanao Development Authority v. Court of
may bar an action to
Appeals, G.R No. L-49087, April 5, 1982).
enforce an express EXCEPTION: If there is
trust. (OE LEON supra concealment (DE LEON
at 669). supra at 669-671 ).
COMMON TYPES OF EXPRESS
TRUSTS: (P 2 EAS 2 D)
OTHER CLASSIFICATIONS OF TRUST 1. fublicly-Regulated Trust
1 . As to Effectivity - One where the State provides the vehicle by
- From the viewpoint of whether they become which institutions are allowed to administer large
effective after the death of the trustor or during funds for the benefit of the public. Among such
his life, it may be either: funds created under the law would be pension
and benefits funds administered by GSiS, SSS,
a. Testamentary trust - one which is to take and Pag-lbig Fund (VILLANUEVA, Agency &
effect upon the trustor's death. Trusts, Partnerships & Joint Ventures, supra at
b. Trust inter vivas (sometimes called "living 288);
trusts") - one established effective during
the owner's life.

2. f riv ate Trust
- Not for the good of the public in general or
society as a whole;
3. gleemosynary/Charitable Trust
- Designed for the benefit ·ot a segment of the
public or the public in general;
4. ~ccumulation Trust
- One that will accumulate income to be
reinvested by the trustee in the trust for the
period of time specified;
5. §pendthrift Trust
- Income will be paid to the prodigal-beneficiary
only when necessary; and
6. §prinkling Trust
- Gives the trustee the right to determine the
income of beneficiaries who should receive
income each year and the amount thereof;_
7. Qiscretionary Trust .. ..
- Gives the trustee discretion.,totlay orpoffo pay
the income or principal (DE1EON/Partnership,
Agency & Trusts, supra a(,(;57J.
. ',~·
i'
,•
CREATION OF EXPRESS.TRUST: -
Express trusts are intentionallYtn~ated by direct _and
positive acts of the trustor...:. by 9orne writing, deed,
will, or oral declaration evincing'· an intention to
create the trust.
The creation of an express tn)stmuifci;be ~~•hif~St~d
with reasonable certainty and.cannot.be assumed
from loose and vague declarations or cirC4mst1nc;s
capable of other interpretations (Philippim;/'NationaJ
Bank v. Aznar, G.R. No. 171805, May3(J,?<nJr
PERFECTION OF EXPRESS TRlJST
Express trust is perfected at the moment that there ·
existed a separation of title and equitable interest
over the trust property.
FORM OF EXPRESS TRUST
GENERAL RULE: No particular words are required
for the creation of an express trust, it being sufficient
that a trust is clearly intended (NEW CIVIL CODE,
Art. 1444).
The mere fact that the word "trust" or "trustee" is
employed does not necessarily indicate or prove an
intention to create a trust (DE LEON, Partnership,
Agency & Trusts, supra at 655).
The question in each case is· whether the trustor
manifested an intention to create the kind of
relationship which to lawyers is known as trust. It is
immaterial whether or not he knows that the
TRUSTS
Civil Law
relationship which he intends to create is called a
trust, and whether or not he knows the precise
characteristics of the relationship which is called a
trust (Go v. Estate of de Buenaventura, G.R. No.
211972, July 22, 2015).
EXCEPTION: No express trust concerning an
immovable or any interest therein may be proved by
parol evidence (NEW CIVIL CODE, Art. 1443).
NOTE: The burden of proving the existence of the
trust is on the party alleging its existence by clear,
satisfactory and convincing proof (Ramos v. Ramos,
G.R. No. L-19872, December 3, 1974).
FORMALITIES OF EXP~ESS TRUST A
MATTER OF ENFORCEABILITY
1. The requirement that the express trust over an
immovable be written is only for enforceability,
.. 11ot for validity between the parties. Hence,
: ArticlE) 1443 may by analogy be included under
·.. trye Stalute, of Frauds. ·
2, ..By irpplicafiqn, for a trust over personal property
an ,oral agr~ment is valid and enforceable
betwee,n the. pMies.
3. Regarding>t~ird persons, the trust must be in a
publjc instrume,nt \rnd registered in the Registry
of P;roperfy if it concerns real property (4
PARAS, supraat892)
WHEN , ·· .TRUSTEE DECLINES
DESIG:NATIOtf.
GENERAt RULE: No trust shall fail because the
tru~tee appoipted declines the designation. ·
~?<.C,EPTJON: Unless the contrary should appear in
the ipstiu~e,~t c;ohstituting the trust (CIVIL CODE,
Art 1445).<. . '
0
One, ,~~sig nated or appointed as truste~ may decline
the responsibility and thereby be free from any legal
or equit~ble duty or liability in the matter. Unless the
contrary intention appears in the instrument
constituting the trust, declination or refusal or
disqualification of a trustee does not operate to
defeat or void the trust; nor does it operate to vest
legal title as well as equitable title in the beneficiary
(DE LEON, Partnership, Agency & Trusts, supra at
659-660).
Where a trustee under a written instrument declines,
resigns, dies, or is removed before the objects of the
trust are accomplished, and no adequate provision
is made in such instrument for supplying the
vacancy, the proper Court of First Instance may,
after due notice to all persons interested, appoint a
new trustee to act alone or jointly with the others, as
the case may be (see RULES OF COURT, Rule 98,
Sec.3).
 @!#'BP \ /
MEM✓v~Y AID
San Beoa University College of Law - RGCT Bar Operations Center
NOTE: There are cases in which it may appear that
the trustor intended lhe trust to continue only so long
as the person desigmiled by him as trustee <1liould
r.ontinue as such. It may be ~(1 provided by the terms
of the tru3t, or it m:Jy aµµ1:1a1 that the purpnsP.s of the
trust cannot be carried out unless the person named
as trustee continues to act. In such a case, the trust
will fail, if the trustee resigns, dies, is removed or
otherwise ceased to be a trustee (VILLANUEVA,
Agency & Trusts, Partnerships & Joint Ventures,
supra al 292).
TRUSTEE MUST FILE A BOND
Before entering on his duties, a trustee shall file with
the clerk of the court a bond payable to the
Government of the Philippines, sufficient and
available for the protection of any party in interest. A
trustee who neglects to file such bond shall be
considered to have declined or resigned the trust;
but the court may exempt a trustee under a will from
giving a bond when the testator has directed or
requested such exemption and may so exempt any
trustee when all persons beneficially inter.ested in·
the trust request the exemption. Such exemption•
may be cancelled by the court at any time and the
trustee required to forthwith file a bond (see RULES
OF COURT, Rule 98, Sec.5).
CONDITlQNS INCLUDED I~,> J3OND
WHETHER WRITTEN THEREJN O~:NOT
1. That the trustee will make and return tci the
court, at such time as it rnsy 9~det,. a true
inventory of all the real and person~! esta_\e
belonging to him as trustee, which a(the time of
the making of such inventory shallhave come
to his possession or knowledge;
2. That he will manage and dispose }Wah such.
estate, and faithfully discharge hJs trust
relation thereto, according to law and.tpe
the testator or the provisions of the instrument
or order under whir-h he is appointed;
3. That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused therefrom in any year by the court, a
true account of the property in his hands and
the management and disposition thereof, and
will render s11r.h other accounts as the court
may order;
4. -1 hat ot the expiration of his trust hf::! will settlP.
his account in court and pay over and deliver all
the estate remaining in his hands, or due from
him on such settlemont, to the person or
persons entitled to thereto.
NOTE: But when the trustee is appointed as a
successor to a prior trustee, the court may dispense
with the making and return of an inventory, if one has
already been filed, and in such case the condition of
"' ' ,>-- ( -, f
l· -1~ '/~ '
- -. •/ ·~. · 515 , '.
.
,~', . ., o,
'
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'
the bond shall be deemed to be altered accordingly
(see RULES OF COURT, Rule 98, Sec.6).
APPRAISAL
Wh!:HI 8n 'inv_e_n_t-ory_i_s_r_P.fl_l_Ji-rc-d to be returned by a
trustee, the estate and effects belonging to the trust
shall be appraised and the court may order one or
more inheritance tax appraisers to assist in the
appraisement (see RULES OF COURT, Rule 98,
Sec.7).
COMPENSATION OF TRUSTEE
The compensation of the trustee shall be fixed by the
court, if it be not determined in the instrument
creating the trust (see RULES OF COURT, Rule 98,
Sec.7).
RESIGNATION OF
REMOVAL OR
TRUSTEE
The proper Regional Trial Court may, upon petition
of the parties beneficially interested and after due
notice to the trustee and hearing, remove a trustee if
such removal appears essential in the interest of the
petitioner. The court may also, after due notice to all
' · - ted, remove a trustee who is insane
or o capable of discharging his trust or
evidently uns£titable therefor. A trustee, whether
appointed qffh~ court or under a written instrument,
may resigd'his trust if it appears to the court proper
to allow qDch'(esli;!nation (see RULES OF COURT,
Rule 98:jSec.J3). ·
OF BENEFICIARY
tance by the beneficiary is necessary (NEW
':li?@.f, Art. 1446).
in
of will However, if the trust imposes no onerous condition
upon the beneficiary, his acceptance shall be
disputably presumed, if there is no proof to the
contrmy (NEW CIVIL CODE, Art. 1446).
Form of Acceptance of Beneficiary
Even if real property is involved, acceptance by the
beneficiary need not be in a public instrument
(Cristobal v. Gomez, G.R. No. L-27014, October 5,
1927).
NOTE: /\cceptance by the beneficiary of a gratuitous
trust is not subject to the rules for the formalities of
donations (4 PARAS, supra at 898).
Effect of Non-Acceptance of Beneficiary After
Legal Title has been transferred to Trustee
Author Cesar Villanueva opines as follows: "The
essential characteristic of express trust _being a
preparatory contract would mean that with the
purpose of the trust no longer availing, since the
 ; "'..{,,~, ! ),, \ ; ' ,' / / ' " ,,

<

, 516
'"' i
· , " · · ,,, , ,
" ;; ), TRUSTS
\' , ,, -;/ ' } Civil Law
' '

designated beneficiary has refused the trust (Filipinas Port Services Inc. v. Go, GR No. 161886,
relationship, the trust ceases to have an objective. March 16, 2007):
But since the naked or legal title remains with the
trustee, his obligations are to comply with the An implied trust is neither dependent upon an
instructions of the trustor, and to dispose of the trust express agreement nor required to be evidenced in
properties in accordance with the instructions of the writing, Article 1457 of our Civil Code authorizes the
trustor, which may include the designation of a new admission of parol evidence to prove their existence.
beneficiary (VILLANUEVA, Agency & Trusts, Paro! evidence that is required to establish the
Partnerships & Joint Ventures, supra at 266). existence of an implied trust necessarily has to be
trustworthy and it cannot rest on loose, equivocal or
EXTINGUISHMENT OF EXPRESS indefinite declarations (Jose Juan Tong et al. v. Go
2
TRUST: (THE-MAD -BRAM) Tiat Kun et al., G.R. Nu. 196023, April 21, LU14).
1. Iota! loss of the object of the tru5I;
2. _!:!appening of the resolutory condition, if one had RESULTING TRUST V. CONSTRUCTIVE
been imposed; TRUST
3. gxpiration of the agreed term;
4. _Mutual agreement of all parties;
5. ~nnulment or rescission of the trust;
6. Qecision of court declaring the trust terminated;
7. Q_eath or legal incapacity of the trustee whEm the
trustor intended no other person to adm_inister The ihter1t of the parties The trust is created
the trust (Caneza v. Rojas, G.R. No .. 148-788, . to create',a trust is irrespective of or even
November 23, 2007); · . .presurri~d-or implied by contrary to the intention
8. Breach of trust; . law frofn the' nature of of the parties to promote
9. Revocation by the trustor When'•such powetis their-transi:iction.v justice, frustrate fraud
reserved (VILLANUEVA/ Agengy &f Trusts, and to prevent unjust
Partnerships & Joint Ventures, supra a_t 302); enrichment.
10. ~ccomplishment of the purpq~~ of tru~t; :md
11. _Merger of the rights bf _the 'trustor' and the
trustee, as when the trustor waived his beneficial The 10~ye~r The 10-year
rights in favor of the trustee, for vice, versa (4 prescr:iptiy~ pefiod shall prescriptive period shall
PARAS, supra at 899). ·· be counted from, •the be counted from the
time / .r¢pudiicltion ·.. _ '·is time the trustor or
m~ci~ /knoy)'n to .,the beneficiary is charged
trustor or be'rieficiarf with · constructive
IMPLIED TRUST-S knowledge of the
ARTS. 1447~·1457:,- constructive trust.
~ ·. ,,{

(DE (J~C)_f>J,\ [Jartnership, Agency & Trusts, supra at

66f:-66~)~, .

IMPLIED TRUST IMPLIED TRUST RECOGNIZED BY THE

Those which, without being express, are deducible
from the nature of the transaction as matters of
intent, or which are superinduced on the transaction
by operation of law, as matters of equity
independently of the particular intention of the
parties (Philippine National Bank v. CA, G.R. No.
97995, January 21, 1993).
PROOF OF IMPLIED TRUSTS
While implied trusts may be proved hy ornl evirfence,
the evidence must be trustworthy and received by
the courts with extreme caution, and should not be
made to rest on loose, equivocal or indefinite
declarations. The proof should be as fully
convincing as if the acts giving rise to the trust
obligation are proven by an authentic document
CIVIL CODE
Resulting trusts
1. Purchase money resulting trust (NEW CIVIL
CODE, Art. 1448);
L. Donations made to a person but the beneficial
interest is vested in another. The donee is the
trustee while tile designated third person is the
beneficiary (NEW CIVIi (;ODE, Art. 1449);
3. Legal title to land inherited by heir placed in the
name of another (NEW CIVIL CODE, Alt. 1451);
4. Legal title to property purchased taken in one co-
owner (NEW CIVIL CODE, /\rt. 1452); or
5. Conveyance under a promise to hold for, or
transfer to another (NEW CIVIL CODE, Art.
1453).
 \ I
MEM:Q-RY Al D
San Beda Uriiversity CoUege of Law - RGCT Bar Operations Center
Constructive trusts
1. Purchase with borrowed funds and the
conveyance is made to lender to secure
payment of debt (NEW CIVIL CODE, Art. 1450);
2. Absolute conveyance to a person to secure
performance of grantor's obligation (NEW CIVIL
CODE, Art. 1454);
3. Purchase of property with yse of trust funds and
causes the conveyance to be made to the
trustee or to a third person (NEW CIVIL CODE,
Art. 1455);
4. Property acquired through mistake or fraud
(NEW CIVIL CODE, Art. 1456).
Enumeration not Exclusive
The enumeration of cases of implied trusts does not
exclude others established by the general law of
trust but the limitation laid down in Art. 1442 is
applicable (NEW CIVIL CODE, Art. 1447).
An implied trust arising from mortgage contracts is
not among the trust relationships the Civil Code
enumerates. However, the Code itself provides that
such listing "does not exclude others established by
the general law on trust." Under the general
principles on trust, equity converts the holder of
property right as trustee for the benefit of another if
the circumstances of its acquisition makes the holder
ineligible "in good conscience to hold and enjoy it."
(Juan v. Yap, Sr., GR. No. 182177, March 30,
201~. . .
The Court has recognized unCQnventionatjmplied
trusts in contracts involving the pt.lrchasepf.);lousing
units by officers of tenants' associatiom; in breach of
their obligations, the partitioning of realty conti-ary to
the terms of a compromise agreement, and the
execution of a sales contract indicating a buyer
distinct from the provider of the purchase money. In
all these cases, the formal holders of tltle were
deemed trustees obliged to transfer title to the
beneficiaries in whose favor the trusts were deemed
created. Thus, there is no reason to bar the
recognition of the same obligation in a mortgage
contract meeting the standards for the creation of an
implied trust. (Juan v. Yap, Sr., GR. No. 182177,
March 30, 2011).
IMPLIED RESULTING TRUSTS
The principle of a resulting trust is based on the
equitable doctrine that valuable consideration and
not legal title determines the equitable title or interest
and are presumed always to have been
contemplated by the parties (Jose Juan Tong et al.
v. Go Tiat Kun et
al., G.R. No. 196023, April 21,
2014).
Trustee as merely a depositary of legal title
FACTS: Unknown to the other children of Margarita,
the mother transferred the tax declarations of her
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three (3) lands to her son, Roberto, to support his
application for travel to the US.
As a trustee of a resulting trust, therefore, Roberto,
like the trustee of an express passive trust, is merely
a depositary of legal title having no duties as to the
management, control or disposition of the property
except to make a conveyance when called upon by
the cestui que trust (Estate of Cabacungan v. Laigo,
G.R. No. 175073, August 15, 2011).
Conversion of Resulting Trust to Express Trust
An implied trust can be converted into an express
trust if the implied trustee recognized the right of the
owner over the property (PINEDA, Partnership,
Agency & Trusts (2006) p.446 [hereinafter PINEDA,
Partnership, Agency & Trusts]).
A trust may have a constructive or implied nature in
the beginning, but the registered owner's
subsequent express acknowledgement in a public
document of a previous sale of the property to
another party effectively converted the same into an
express trust (Tamayo v. Callejo, G.R. No. L-25563,
July 28, 1972).
Purchase Money Resulting Trust;
When p~perty is sold, and the legal estate is
granted to one party but the price is paid by
another party for the purpose of having the
bene_fleiaf;interest of the property (NEW CIVIL
CODE, Ar;t. 14,f.8).
!Ut~: Purchase money resulting
trust occurs when there is:
_·....... a. An actual payment of money, property or
•i;i~r~;iti\fia;,:;~~c~! ci~si~;ratf:i~~~nt, constituting
b. Such consideration must be furnished by the
alleged beneficiary of a resulting trust
(Gabutan v. Nacalaban, G.R. Nos. 185857-
58 & 194314-15, June 29, 2016).
EXCEPTIONS:
a. If the person to whom the title is conveyed is
a child, legitimate or illegitimate, of the one
paying the price of the sale, it is disputably
presumed that there is a gift in favor of the
child; (NEW CIVIL CODE, Art. 1448);
b. Where an actual contrary intention is
proved;
c. Where the purchase is made in violation of
an existing statute and in evasion of its
express provision, no trust can result in
favor of the party who is guiity of fraud
(Morales v. Court of Appeals, GR. No.
117228, July 19, 1997).
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No Implied Trust is Created when Purchase
is Made in Violation of Law
Where the purchase is made in violation of an
existing statute and in evasion of its express
provision, no trust can result in favor of the
party who is guilty of the fraud (Banco Filipino
and Savings and Mortgage Bank vs. Ta/a
Realty Services Corporation et.al., G.R. No.
181933, September 9, 2013).
2. Donation to a Person but Beneficial
Interest Vested in Another;
A trust results in favor of the person in whom it
is intended to vest the beneficial interest in the
property donated, with the done being the
trustee (DE LEON, Partnership, Agency &
Trusts, supra at 688).
3. Legal Title to Land Inherited by Heir
Placed in the Name of Another;
Where a person who has acquired land by
inheritance causes the legal title tp-~e placed in
the name of another, a resfilting · trust is
presumed by law in favor of the true owner, the
heir (DE LEON, Partnership, Agency & Trusts.
supra at 690). · ·•
4. Legal Title to Property Purchased Taken
in One Co-owner; and ·
For Article 1452 to apply, .a)lfthat a co-owner
needs to show is that there is "common consent"
among the purchasing, co~owpers to put the
legal title to the purchased prcjpgrty ,nu,e
name
of the co-owner for the ben~fit of
alt The
property must be capable of priv~te ownership;
otherwise Article 1452 is .not appllcable (DE
LEON, Partnership, Agency & Trusts; supra at
691). - ,, -.,
5. Conveyance Under a Promi~'e to Hold
For, or Transfer to Another
Article 1453 is based on the promise or
representation of the grantee to hold the
property conveyed for, or transfer it to another or
the grantor. The grantee is estopped from
asserting ownership in himself by denying his
representation as against the person for whose
benefit the implied trust is created (Id. at 693).
CONSTRUCTIVE TRUSTS
NOTE: A constructive trust does not emanate from
or generate a fiduciary relation. Constructive trusts
are created by the construction of fillli.l!y in order to
satisfy the demands of justice and prevent unjust
enrichment {Jose Juan Tong et al. v. Go Tiat Kun et
al., G.R. No. 196023, April 21, 2014).
TRUSTS
Civil Law
1. Purchase with Borrowed Money;
If the price of a sale of property is loaned or paid
by one person for the benefit of another and the
conveyance is made to the lender or payor to
secure the payment of the debt, a trust arises by
operation of law in favor of the person to whom
the money is loaned or for whom it is paid, The
latter may redeem the property and compel a
conveyance thereof to him. (NEW CIVIL CODE,
Art. 1450).
NOTE: An agreement between the parties
whereby the property purchased shall be
considered sold to the trustee in case the
beneficiary fails to reimburse him is tantamount
to pactum commissorium (DE LEON,
Partnership, Agf)ncy & Trusts, supra at 689).
2. Absolute Conveyance of Property is
Made in order to Secure Performance of
Grantor's Obligation;
If an absolute conveyance of property is made
instead in order to guarantee the performance of
ari obligation'of the grantor toward the grantee,
an implied trust is created by operation of law for
the benefit of. the grantor (DE LEON,
Partnership; Ageilcy & Trusts, supra at 694).
3. Purchase: o.f Property with the Use of
Trust Funds;••- and Causes the
Conveyance fo qe Made to the Trustee or
T!li~d ,PersQ1i; an'd
The rufe stands onthe moral obligation to refrain
frcini plating Of]e's self in position which
. ordinarily excite conflicts between self-interest
a_nd integrity.
''The ru't~'ir1,Article 1455 is entirely independent
9fwl:ii:\th~r any fraud has intervened. No fraud,
inJad need be shown, and no excuse will be
heard from the trustee (Id. at 695).
4. Acquisition of Property through Mistake
or Fraud
Where a party acquires through mistake or fraud
a legal title to the property to which another has
a better right, there is created by law what is
termed in jurisprudence as constructive trust in
favor of the aggrieved party who is truly entitled
to it or his successors-in -interest, and grants to
the latter the right to recover his or their over the
property by w'ay of reconveyance while the
same has not yet passed to an innocent
purchaser for value in keeping with the primary
principle of law and equity that one should not
unjustly enrich himself at the expense of another
(Id. at 696).
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San Beaa University College of Law - ROCT Bar Operations Canter
DISTINCTION FROM RESULTING
TRUSTS
1. Resulting trusts are
contractual
a. The cases contemplated from Articles 1448
to 1454 all involve an implied intention by
the trustor to establish a trust in his own
favor or in favor of a third person.
l>. The ihtentionality of the conveyw1ce uf
property in favor of another instead of the
equitable owner makes its contractual
nevertheless.
c. The right of the trustor or beneficiary to the
return and reconveyance of the trust
property is founded on the obligation to
restitute in case of rescission or annulment
of contract following its breach (See NEW
CIVIL CODE, Arts. 1385 and 1398).
d. The trustee has legal title to the trust
property and has no obligation to return
unless his ownership has become unlawful
or contrary to the objective of the trust.
2. Constructive Trusts are based on equity
a. Constructive Trusts as defined under Article ..
1456 however contemplates situation ¥'here ·
the conveyance of a property is oy mistake
or fraud therefore lacking in an intent to
establish a trust. ·
b. The trust is purely a matter 9f equity and is
created even without a_r:iy intention on the
part of the implied trust9_r:,.
c. As the basis of the trustee's obligation _ is
mistake or fraud, a quasi-contractJs created
instead. · · ·
d. The obligation of the trustee to reconvey the
property wrongfully conveyed :'to him_ Js
based on the principle agalnst unjust
enricnment (NEW CIVIL CODE, Arf. 22;
Laureano v. Stevenson, GR. No."'20783,
October 16, 1923).
No Fiduciary Relation Exists
A court of equity does not consider a constructive
trustee for all purposes as though he were in reality
a trustee; although it will force him to return the
property, it will not impose upon him the numerous
fiduciary obligations ordinarily demanded from a
trustee of an express trust. It must be borne in mind
that in an express trust, the trustee has active duties
of management while in a constructive trust, the duty
is merely to surrender the property (PNB v. CA &
B.P. Mata, G.R. No. 97995, January 21, 1993).
NOTES:
1. In constructive trusts, there is neither a promise
nor any fiduciary relation to speak of (Estate of
Cabacungan v. Laigo, G.R. No. 175073, August
15, 2011).
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2. The so-called trustee neither accepts ,my tnist
nor intends holding the property for the
beneficiary (Estate of Cabacungan v. Laigo,
essentially G.R. No. 175073, August 15, 2011).
3. The implied trustee shall deliver the possession
and reconvey title to the property to the
beneficiary of the trust, and to pay to the latter
the fruits and other net profit received from such
property during the period of wrongful or
unconscionable holding, c1ml ult1e1w1sP. In adjust
the equities between the trustee holding the
legal title and the beneficiaries of the trust
(Sumaoang v. Judge, RTC, G.R. No. 78173,
October 26, 1992).
INNOCENT PURCHASER FOR VALUE
The right of action in this constructive trust should
be exercised against the trustee, who caused the
fraud, and not against an innocent purchaser for
value, as the Susana Realty, Inc. This right may
also be exercised against Santiago Cruz who also
obtained title to the land with knowledge of the
fraud, but not with regard to Susana Realty, Inc.
,·;_,
which, as already stated, has bought the property in
,;,.'.; good faith. Th_e remedy in this case of the defrauded
i"i~ip:~ifs).~J9 b~rjg an action for damages against those
who catise02'.the fraud or were instrumental in
depriving ther:ftof the property. Their action cannot
reach an ir\rjo~ent purchaser for value who is
protected .oy ;la-i( (Avecil/a v. Yatco, G.R. No. L-
11578, M$y
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.
EDON TRUSTS
REPUDIATION OF EXPRESS OR
RESULTING TRUST
A trustee (express trust or implied trust) cannot
acquire by prescription ownership over property
entrusted to him until and unless he repudiates the
trust (Vda. De Esconde v. Court of Appeals, GR.
No. 103635, February 1, 1996).
The repudiation constitutes a breach of contract
which gives the trustor and/or the beneficiary a
cause of action (NEW CIVIL CODE, Art. 1170).
REQUISITES FOR VALID REPUDIATION:
{UPE)
1. The trustee has performed !}_nequivocal acts of
repudiation amounting to an ouster of the cestui
que trust;
2. Such eositive acts of repudiation have been
made known to the cestui que trust; and

3. fvidence thereon is clear and positive (Vda. de
Cabrera v. Court of Appeals, G.R. No. 108547,
February 3, 1997).
Repudiation Not Necessary in Constructive
Trusts
In constructive trusts, the legal title of the
constructive trustee is acquired by fraud or mistake
and is therefore adverse from the beginning. It is not
necessary for the constructive trustee to repudiate
the trust.
Trustee Cannot Repudiate Trust by Relying on
Registration of property In His Own Name
A certificate of title under the Torrens System is
aimed to protect dominion, and should certainly be
not turned into an instrument for deprivation of
ownership (Adriano v. CA, G.R. No. 124118, March
27, 2000).
NOTE: The principle that a trustee who puts a
certificate of registration in his name cannot
repudiate the trust by relying on the registration i?
a
one of the well-known limitations upon title. (Jose
Juan Tong et al. v. Go Tiat Kun ~t al., G.R. No.
196023, April 21, 2014).
NOTE: Registration of a registered land by an
innocent purchaser for valuEl shall qe respecte·d as a
matter of public policy to protect the integrity of the
Torrens System (Avecilla v.Yatco, G.R. No. L 11578,
May 14, 1958).
PRESCRIPTION OF ACTION'S TO
ENFORCE EXPRESS OR RES ULTING
TRUSTS
1. Express Trusts Over Immovables
Express trusts over immovables must be written
(NEW CIVIL CODE, Art. 1443).
An action to enforce a written contract
prescribes within 1O years from the time the
cause of action accrues (NEW CIVIL CODE, Art.
1144, par. 1).
2. Express Trusts Over Personalty
a. If the trust is written: 10 years from accrual
of cause of action (NEW CIVIL CODE, Art.
1144, par. 1).
b. If the trust is oral: 6 years from accrual of
cause of action (NEW CIVIL CODE, Art.
1145, par. 1).
3. Resulting Trusts
The obligations of the implied trustee are
created by law (NEW CIVIL CODE, Art. 1441 ). It
follows that actions to enforce obligations
created under an implied trust prescribes within
1O years from the accrual of cause of action
(NEW CIVIL CODE, Art. 1144. par. 2).
TRUSTS
Civil Lnw
When Cause of Action Over an Express or
Resulting Trust Accrues
The cause of action accrues from the time when the
trustee's repudiation of the trust is communicated
and made known to the trustor or beneficiary
(Salinas v. Tuason. G.R. No. L-33626, March 2,
1931).
Prescription of Actions for Conveyance Based
on Constructive Trust
The obligation of the constructive trustee is created
by law (NEW CIVIL CODE, Art. 22). It follows that
actions to enforce obligations created under a
constructive trust prescribes within 10 years from the
accrual of cause of action (NEW CIVIL CODE, Art.
1144, par. 2).
NOTE: If the owner however is in possession of the
property wrongfully conveyed by fraud or mistake,
then the action to reconvey legal title acquired under
a constructive trust partakes in the nature of quieting
of title. In such cases, the action does not prescribe
(r-leirs of Narvasa Sr. v. lmbomal, G.R. No. 182908,
August 6, 2014).
The 4.:year prescriptive period under Art. 1391
applies only if the fraud does not give rise to an
implied trust, and the action is to annul avoidable
contract under Art. 1390 (Bejoc v. Cabreros, G.R.
145849, July 22, 2005).
When Cause of Action Over a Constructive Trust
Accrues
The 'right to s_eek reconveyance on an implied or
constructive trust is not absolute. It is subject to
extinctive prescription. An action for reconveyance
based on implied or constructive trust prescribes in
10 years. This period is reckoned from the date of
the issuance of the original certificate of tile or
transfer certificate of title. Since such issuances
operates as a constructive notice to the whole world
(Bejoc v. Cabreros, G.R. 145849, July 22. 2005).
In constructive trusts (that are imposed by law),
there is neither promise nor fiduciary relation; the so-
called trustee does not recognize any trust and has
no intent to hold for the beneficiary; therefore, the
latter is not justified in delaying action to recover his
property. It is his fault if he delays; hence, he may be
estopped by his own !aches (Diaz v. Gorricho, G.R.
No. L-11229, March 29. 1958).
 ,,,,1 " ;{, • ~ :;, ,.-: ~" \

MEt1✓Q~Y AID
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San Beda UnNers1ty Co»ega of Law ~ RGCT Bar Operations Center
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RULES ON PRESCRIPTION OF ACTION

FOR RE CONVEYANCE BASED ON
IMPLIED TRUST wait until his possession is
The following are the rules on prescription and disturbed or his title is
!aches in an action to recover the property held in attacked before taking steps
trust: to vindicate his right. His
undisturbed possession gives
him a continuing right to seek
the aid of a court of equity to
ascertain and determine the
If the action for The period of prescription is nature of the adverse claim of
reconveyance four (4) years from the a third party and its effect on
involves the discovery of fraud. his own title, which right can
annulment of a be claimed only by one who is
voidable contract REASON: The action for in possession (Gabutan v.
(Article 1390) annulment of voidable Nacalaban, G.R. Nos.
which became the contract shall be brought 185857-58 & 194314-15,
basis for within four years (CIVIL June 29, 2016).
fraudulent CODE, Ari. 1391).
registration of the
subject property
TRUST PURSUIT _RULE
Equity will pursue property that is wrongfully
If the action does The period of prescription is:. · •• ,t:,
converted by the fiduciary, or otherwise compel
not involve an ten (10) years from the time . l!(;i,
restitution to the beneficiary. A trust will follow the
annulment of a the cause of action accrues. . .<ii"i~f.Qj:?§lrj:ythr,qpgh all changes in its state and form
contract, but there \,;e,,•~v1cfn'lhfo:;;1tii,{hands of a transferee other than a
was fraud in the REASON: An action based bona fide pur~haser for value, or restitution will be
registration of the upon an obligation by law, enforced at •the . . election of the beneficiary through
subject property must be brought ·within ten recourse :;igciinst the trustee or the transferee
(10) years from the time the ([;state of Margarita Cabacungan v.
right of action accrues (CIVIL · GR, No. 175073, August 15, 2011 ).
CODE, Article 1144f2)),

If the action The action is imprescriptible:

involves the
declaration of the REASON: The a.ction or
nullity or defense for the declaration of
inexistence of a the inexistence of a contract
void or _inexistent does not prescribe (CIVIL
contract which CODE, Art. 1410).
became the basis
of fraudulent
mgistration of the
subject property

If the plaintiff or The action is imprescriptible,

the person In effect, the action for
enforcing the trust reconveyance is an action to
is in actual quiet the property title., whir.h
possession or Lile does not prescribe.
property
Reason: The one who is in
actual possession of the land
claiming to be its owner may
 SALES AND LEASE
Civil Law

The absence of any of the essential elements

SALE shall negate the existence of a perfected
contract of sale (Dantis v. Maghinang Jr., G.R.
(ARTS. 1458-1637) No. 191696, /\pril 10, 2013).

2. Natural
- Those elements which are deemed to exist in
CONTRACT OF SALE ·certain contracts in the absence of any contrary
By the contract of sale, one of the contracting parties stipulations (DE LEON, supra at 12).
obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay Exampl~s: Warranty against eviction (CIVIL
therefor a price certain in money or its equivalent CODE, Art. ·/548) and warranty against hidden
(CIVIL CODE, Art. 1458). defects (CIVIL CODE, Art. 1561).

ELEMENTS OF A CONTRACT OF SALE: 3. Accidental

1. Essential - Those elements which may be present or
- Those elements, without which, there can be absent depending on the stipulations of the
no valid sale. · parties (e.g., conditions, interest, penalty, time
or place of payment) (DE LEON, supra at 12).
a. Consent/ IVleeting of the Minds - refers to
the consent on the part of the, seller or :PliASES OR STAGES OF CONTRACT
vendor to transfer and deliver,<;md oii",the .
part of the buyer or vendel to,pay '(CIVIL
CODE, Art. 1475). --
-~ ~.t!~;:!iog
0

-~ ·t-hsl ,periockof negotiation and bargaining,

end_in!_'.),at Jhe moment of agreement of the
NOTE: There may bC\6,~)c~g;in~t the will part\,es. ·•· ·
of the owner in cas'e of expropriation bf
property for public use, which is goierned by i; t ' ' J ·,
· Policitatio~ is'an unaccepted unilateral promise
speci81 l;iws ((;/VII r.orrE)Art 1488). . lo
to b~y or se\l, pric>'r acceptan~e, and doe:; 11ul
' '
give;rise to .:=my.ob.ligation or right. This produces
b. Object I Subject - tefe~s'tb the determinate no :Jµtidical :effect and creates no legal bond.
thing which is the object ofa contract;(CIV/L Thii"'ls ·a mere, offer and has not yet been
CODE, Art. 1460). -- ..
co~V~rted Jfito ~ contract except at the moment
'ifis/accepted (Qiamante v. CA, G.R. No. L-
c. Cause / Consideration - r~fers t6 a p;ice 5_1824, february?, 1992).
certain in money or it~ equiva!~nt (CIVIL,
CODE, Art. 1458). It is. presumeo that a,
contract has sufficient consideration, (Df
-2. : ,e-~rfe~t,i'on,
-;;- l3hih J>f gJntract; a contract of sale is perfected.
LEON & DE LEON JR., Co1]1ments' and
: ,1Jpb1i'1tJ€i''meeting of the minds of the parties:
Cases on Sales and Lease, (2014), f).12
'c1:.,,'fo enter into a contract of sale, i.e.,
[hereinafter, DE LEON]). It includes· the .. acceptance of offer,
manner of payment.
b. Upon the thing which is the object of the
contract; and

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad Hoc Director for Bar Matters I MARIELLE CIELO B. BEi.GIRA, Vice Chairperson for Finance I JUAN INJGO S. MIGUI:I ..
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SAt'ITOS, Vice Chairperson for Audit I CORINA R. TAMPUS, Vice
Chairperson for Secretarial I ARVY KEITH N. CHUNG, Vice Chairperson for Logistics I ANTONIO JON-JUN C. MANALIGOD IV, Vice
Chairperson for Membership I JORDAN N. CHAVEZ, Vice Chairperson Ji:Jr Electronic Data Proces.,ing

NOSLEN ANGINEB E. MENDOZA, Sub;ect Chair\ KING LAURENZ S. MASILUNGAN, Assistant Sub;ect Chair\ ALHEX ADREA M.
J't:l.lALTA, Subject Electronic Data .Processing I SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trnsts \ QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU R. TRINIDAD, Loan and Deposit \ SKY BLUE C. SAMSON, Obligations and ContracL, \
CHRISTIENNE NATHAI.JE A. BERONA, Persons and Family Relations\ KRISTOFFER MONICO S. NG, Property\ JULEEN EVETTE
D. MALLARI, Land Titles and Deeds\ MARISOL 0. SISON, Sales I GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. 1-'EDERIS,
Succession I

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MAHIE G. CARI.ON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQlffi L BALISONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA H. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, J\,lARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZUE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, J\,-tA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. THERESA GENEVIEVE NUEVE-CO and Atty. LUIS MANUEL BUGAYONG

+MM+ \ I
MEM✓Q~Y AID
San Seda !Jniver6ity College of Law ·· RGCT Bar Opemtiuns Center
c. On the consideration or price certain in
money or its equivalent (CIVIL CODE, Art.
1475, par. 1).
From that moment, the pa_rties may reciprocally
demand performance, subject to the provisions
of the law governing the form of contracts (CIVIL
CODE, Art. 1475, par. 2).
EXCEPTION: When the sale is subject to a
suspensive condition, because perfection takes
place from the moment the condition is fulfilled
(Reyes v. Tuparan, G.R. No. 188064, June 1,
2011).
NOTE: Actual delivery of the. subject matter or
payment of the price agreed upon are not
necessary components to establish the
existence of a valid contract of sale. Neither is
the delivery of the thing bought nor the payment
of the price necessary for the perfection of the
contract of sale (DE LEON, supra at 16); their
non-performance do not also invalidate, pr
render void a sale that has begun to exist asa
valid contract at perfection (V/LLANUEV,A, ·
supra at 8). The non-performance merely
becomes the legal basis for remedies of either
specific performance or rescIss10n, with .·
damages in either case (Gabe/av. GA, G.R. No.
111743, October 8, 1999). ··
Consent ... .·.
It is manifested by the con®rren~e6f.the offer
and the acceptance upon the thing _ahd th$
cause, which are to constitute. th.~:·cqntract'
(CIVIL CODE, Art. 1319, par. 1). .
Elements of Consent: (SC 3 ) ..
a. .§.ubjects / contracting parties (C}VJL CODE,
Art. 1318); ·. ··.· .. .
b. _g_oncurrence of offer and acceptance 1CIVIL
CODE, Arts. 1319-1326);
c. Legal .Q_apacity of the contracting parties
(CIVIL CODE, Arts. 1327-1329); and
d. The .Q_onsent must be given intelligently,
freely, and spontaneously (CIVIL CODE,
Arts. 1330-1336).
NOTE: The contract to sell is a bilateral contract.
Where there is merely an offer by one party
without the acceptance of the other, there is no
consent. (Salonga v. Farra/es, G.R. Nu. L-
47088, July 10, 1981).
Form of Offer
It must be certain, definite, and intentional
(CIVIL CODE, Art. 1319, par. 1).
Business Advertisements of Things for Sale
Unless it appears otherwise, they are not
definite offers but mere invitations to make an
offer (CIVIL CODE, Art. 1325).
Advertisements for Bidders ·
They are simply invitations to make proposals
and the advertiser is not bound to accept the
highest or luwe::;l IJillller::;, unless the contrary
appears (CIVIL CODE, Art. 1326).
An offer becomes ineffective upon the death,
civil interdiction, insanity, or insolvency of either
party before acceptance is conveyed ( CIVIL
CODE Art. 1323).
Form of Acceptance
It must be absolute. A qualified acceptance
constitutes a counter-offer (CIVIL CODE, Art.
1319, par. 1). An acceptance may be express or
implied (CIVIL CODE, Art. 1320).
Acceptance by a letter or telegram
It does not bind the offeror except from the time
it came to his knowledge. Therefore, even if an
has been mailed or sent to the
. offeror may still withdraw his offer
any tim~'"\before he has knowledge of the
acceptqii<;Ei\(CIVIL CODE, Art. 1319, par. 2).
*
The R'rs~n .making the offer may fix the time,
plac~·, an9 mapner of acceptance, all of which
.. '' with (CIVIL CODE, Art. 1321).
rough an agent is accepted
from the time acceptance is communicated to
. him (CIVIL CODE, Art. 1322).
!:?~·iahsummation
- Death of contract; delivery/ actual .transfer of
ownership of the thing together with the payment
of the price marks the consummation of the
contract of sale (Rabern Development Corp. v.
People's Landless Associated, G.R. No.
173622, March 11, 2013).
CHARACTERISTICS: (PNB-TOC 2)
1. frincipal
- It can stand on its own and does not depend
on another contract for its validity or existence
(VILLANUEVA, supra at 5);
2. Nominate
- It has been given a particular name by law
tr-11111 '\J'-./L.J'--
r-nn,:::: r11
\ ...._,, v ,,_
A.+,. 1Ai:;;m-
, -r1JvJ,
1
3. ~ilateral
- It imposes an obligation on both parties
(VILLANUEVA, supra at 5);
a. Obligation of seller-to transfer ownership
 ~:~, ~\~\;<,,>:~~; /:h';: r::<'t~~:,,}
SALES AND LEASE
524. •,·:,\- 1 ,.. ·
.. • Civil Law
, c'< ; ' ' flt ;,I,

of and deliver a determinate thing; and CONTRACTS OF SALE DISTINGUISHED

b. Obligation of buyer-to pay a price certain
in money or its equivalent.
4. !itle
- Sale is merely a title that creates the obligation
on the part of the seller to transfer ownership
and deliver possession, but on its own, it is not
a mode that transfers ownership. (San Lorenzo
Development Corporation v. CA, G.R. No.
124242, January 21, 2005);
5. Onerous
- It imposes a valuable consideration, which is a
price certain in money or its equivalent (CIVIL
CODE, Art. 1458);
Consequence: All doubts in construing an
onerous contract shall be resolved in greater
reciprocity of interests ( CIVIL CODE, Art. 13,78).
6. fommutative
- Wherein a thing of value i~ exchanged for·
equal value, i.e., the value ofthf :;;ubjectmatter
is equivalent to the price paid (\(JLi:.ANUEVA,
supra at 11); and · ··
7. Consensual
=-11 is perfected by mer~ consent (CIVIL CODE,
Art. 1475).
TWO MAJOR TYPES:, OF ACQNT~ACT
OF SALE:
1. Absolute Sale
- No conditions attached; transfer oJ ownership
is vested upon delivery (CIVIL CODE, Art.
1497); and
FROM OTHER KINDS OF CONTRACTS
A contract is what the law defines it to be, taking into
consideration its essential elements, and not what it
is called by the contracting parties (ACE Foods, Inc.
v. Micro Pacific Technologies Co., Ltd., G.R.
200602, December 11, 2013).
CONTRACT OF AGENCY
By the contract of agency a person binds himself to
render some service or to do something in
representation or on behalf of another, with the
consent or authority of the latter (CIVIL CODE, Art.
1868).
The transfer of title or agreement to transfer for a
price paid is the essence of sale. If such transfer puts
the transferee in the position of an owner and makes
him liable for the agreed price, the transaction is a
safe. Ori the other hand, the essence of an agency
tQ $ell is tpe.~elivery to an agent, not as his property,
.. but c:1s the prbl')yrty of his principal, who remains the
owner,and hast~ right to control sales, fix the price
and terms, ,deniaru;l and receive the proceeds less
the agent'i·~OXD{;l'l~sion upon the sales made (Sps.
Viloria v, Coirl,fnerital~irlines, Inc., G.R. No. 188288,
January\16, 2Q,12)., · ·
SALE AND A<:;ENCY TO SELL,
OISTfNGUISHED
Buyer pays' the price: Agent delivers the price,
which he got from his
buyer, to his principal.

2. Conditional Sale
- Contemplates a contingency (CIVIL CODE,
Arts. 1461, 1462, par.2, and 1465) and subject Buyer receives the Agent receives the
to certain conditions (CIVIL CODE, Art. 1503, goods as owner. goods as goods of the
par. 1); ownership will not automatisally transfer principal who retains his
to the buyer although the property may have ownership over them.
been previously delivered to him (Coronel v. CA,
G.R. No. 103577, October 7, 1996).

Test: If the condition is imposed upon the seller's Seller warrants the Agent makes no
obligation to tran~fer the ownership of and deliver thing sold (CIVIL warranty for which he
the thing, there is a conditional sale. (Santos v. CA, CODE, Arts. 1547, assumes personal
1548, 1561, 1562, liability as long as he
G.R. No. 120820, August 1, 2000).
1564, 1565, and 1566). acts within his authority
and in the name of the
However, if the condition is imposed upon the
buyer's obligation to pay the price, the sale is still seller.
absolute. Payment of the purchase price is part of
the consummatiof.l stage of the contract of sale.
(Heirs of J.M. Mascufiana v. CA, G.R. No. 158646,
June 23, 2005).
 ME~Q~YAID
San Beoa University College of Law • RGCT Bar Operations Center

Sale of a manufactured The services dominate

item; it is a sale of goods the contract even
even though the item is though there is a sale
Buyer, being the owner, The agent, in dealing manufactured by labor of goods involved (DE
can deal with the thing with the thing received, furnished by the seller LEON, supra at 55).
sold as he pleases. must act according to and upon previous order
the instructions of the of the customer (DE
principal. LEON, supra at 55).

Contract of sa_le is not
unilaterally revocable
(VILLANUEVA supra at
29).
Essentially revocable, Governed by the Statute Not governed by · the
because it covers an of Frauds (CIVIL CODE, Statute of Frauds (DE
underlying fiduciary Art. 1483). LEON, supra at 55).
relationship between
the principal and the
agent (CIVIL CODE, ·
Arts. 1919-1920). The thing transferred is The thing transferred

(CIVIL CODE, Art. 1466; DE LEON, supra at 51-52)

"on~ whichi'.Jwould have is not in existence·and
exisled; aiid,;would have would never have
been the sd,bj~ct of sale existed but for the
CONTRACT FOR A PIECE OF WORK to· some ,other person, order of the party
When a factory accepts a job that requiresfhe use even if tM order had not desiring to acquire it
of extraordinary or additional equipment;· or if it been given. (DE- LEON, supra at
involves services not generally performe9 by it, the 55).
factory thereby contracts for . . a· piece ◊f work
(Celestino Co. V. CIR, G.R. No. L-8506, August 31,
1956).

The distinction between a contract of sale and one or manufactured

in the especially for the
for work, labor, and materials is tested by the inquiry
ordinary course of customer and upon his
whether the thing transferred is one not ih existfnce
business (CIVIL CODE, special order, and not
and which never would have existed but for' the order Art. 1467). for the general market
of the party desiring to acquire it, or a thing which (CIVIL CODE, Art.
would have existed and has been the subject of sale 1467).
to some other persons even if the order had not been
given (Del Monte PH, Inc. v. Aragones, G.R.
153033, June 23, 2005). BARTER
By the contract of_ barter or exchange one of the
SALE AND CONTRACT FOR A PIECE parties binds himself to give one thing in
OF WORK, DISTINGUISHED consideration of the other's promise to give another
thing (CIVIL CODE, Art. 1638).

SALE AND BARTER, DISTINGUISHED

Borne by the buyer Borne.by the worker or

(CIVIL CODE, ·Arts. contractor, not by the
1189, 1480, 1538). employer [the person A thing is given in A thing is given in
who ordered] (CIVIL exchange for a price exchange for another
certain in money or its thing (CIVIL CODE, Art.
1638).
 SALES.AND LEASE
Civil Law

SALE AND DACION EN PAGO,

DISTINGUISHED

Law on Sales Law on Barter or

Exchange (CIVIL
CODE, Arts. 1638-
1641).

The rules on the Statute The rules on Statute of

of Frauds, which apply Frauds, which apply to
to the sale of real the sale of real property
property and personal and personal property On the part of the seller: On the part of the
property bought at P500 bought at P500 or the price. debtor: the
or more, apply. more, do not apply extinguishment of the
(VILLANUEVA, 9upra On the part of the buyer: debt.
a{ 18). the acquisition of the
object. ·• On the part of the
creditor: the acquisition
of the object offered in
lieu of the original
1. The transaction is cha;ac;terizecl by the
credit.
manifest intention of the parties..
2. If there is no manifest intention .1.
a. Barter if the value, of
.the• thing •is more
valuable than money (value of the thing >
money) . •"" · •
b. Sale if the value of t~e thing, is eqt1c1I gr les::;
than the amount of r.mo11ey\( ClvJ(CQDE,
Art. 1468). (Value '9f the ·~hing. =;,_or.<
mooe0. ·

RULE ON MONEY EXCHANGE

If local currency is exchanged for foreign currency,
there is purchase and sale. · ; ·
~~Yl on' Sales (CIVIL CODE, Art. 1245).
If the local currency is exchanged with other . (DE LEON, supra at 58-59)
denominations of the same local currency, there is
barter.
LEASE
The rule is the · same if a foreign currency is A contract whereby one person (lessor) binds
exchanged in the Philippines for another foreign himself to grant temporarily the enjoyment or use of
currency (5 PINEDA, Civil Code of the Philippines a thing or to render of some work or service to
Annotated V, (2010), p. 42 [hereinafter, 5 PINEDA, another (lessee) who undertakes !6 pay some rent,
Civil Code]). · compensation or price therefor (DE LEON, supra at
703).
DATJON IN PAYMENT
(DACION EN PAGO) SALE AND LEASE, DISTINGUISHED
Dation in payment is a mode of extinguishment of
obligation whereby property is alienated to the
creditor in satisfaction of a debt in money.
Ownership is No transfer of
transferred upon ownership because the
rights of the lessee are
 255@ \ I ),. i, ~. \ ? ?'' :: ' ~ ' ,<,' ) ,

MEM✓Q~Y AID
'0 C C (," > ~ f?

. : ' , ' . , ,· :· ' fi" 527' ,'

San 8ecia University College of Lav.· ~ RGCT Bar Op+1rations Center ,,.,,:: : ~ , : , " i" < .i; <~
regarding the reservation of ownership to the
seller, it will be construed as a contract to sell if
the true intent of the parties is to transfer the
ownership of the properties only upon the
buyer's full payment of the purchase price (Sps.
Orden, v. Sps. Aurea, GR. No. 172733, August
20, 2008).

3. There is a contract to sell when execution of a

Permanent transfer of Temporary transfer of deed of absolute sale was made depenrlAnt
ownership, unless possession (DE LEON, upon the proper court's approval of the sale of
subject to a resolutory supra at 720). the shares of the minor owners. A contract to sell
condition (CIVIL CODE, is a bilateral contract whereby the prospective
Art. 1465). seller, while expressly. reserving the ownership
of the subject property despite delivery thereof
to the prospective buyer, binds himself to sell the
said property exclusively to the latter upon his
Seller must be the Lessor need not be the fulfillment of the conditions agreed upon. The
owner at the time the owner (DE LEON, fulfillment of the suspensive condition will not
property is delivered, or supra at 720). automatically transfer ownership to the buyer
at least authorized by although the property may have been previously
the owner to transfer delivered to him. The prospective seller still has
ownership (CIVIL to convey title to the prospective buyer by
CODE, Art. 1459). entering into a contract of absolute sale (Villamil
v. Sps. Erguiza, G.R. No. 195999, June 20,

Usually, selling The price of the 9bject,

price is mentioned, as distinguished, from
the F SALE AND CONTRACT
the parties involved can rent, is usµally not. ·
fix it. However, the mentioned (DE '.LEDN,
fixing of the price supra a.t720). i ··.
cannot be left to the
discretion of one of the
contracting parties
(CIVIL CODE, Art. Only gives
1473). reciprocal suspensive
conditional obligation
(i.e., non-demandable
CONTRACT TO SELL
1. On seller - to obligation until the
1. A bilateral contract where the prospeCti.Y!;l,~ller, transfer ownership condition happens) on
while expressly reserving the ownership' of the and deliver· the seller to transfer
subject property despite delivery thereof to the possession of the ownership only when the
prospective buyer, binds himself to sell the said thing buyer paid the price in
property exclusively to the prospective buyer full.
upon fulfillment of the condition agreed upon, 2. On buyer - to pay
that is, full payment of the purchase price. a .price certain in
Failure to do so is not a breach but a situation money or its
preventing the obligation of the vendor to convey equivalent (CIVIL
title from acquiring obligatory force. Thus, for its CODE, Art. 1458).
non-fulfillment, there will be no contract to speak
of for the obligor failed to perform the suspensive
condition which enforces a juridical relation
(Zamora Realty and Dev't Corporation v. Office
of the President, G.R. No. 165724, November 2, Title passes to Ownership will pass only
the
2006). upon fu!! payment of the
h11yor 1rpnn rlPliuPnj nf
the thing sold ( CIVIL price ( CIVIL CODE, Art.
2. The real character of the contract is determined CODE, Art. 1496). 1478).
by the intention of the parties. Although a
document is denominated as "De(;ld of Absolute
Sale," and there is no provision therein
 SALES AND LEASE
Clvil Law

A deed of sale is absolute in nature although

denominated as a "Deed of Conditional Sale" where
Failure to pay is a It is not a breach of the nowhere in the contract in question is a proviso or
negative resolutory contract but simply an stipulation to the effect that title to the property sold
condition, which puts event that prevents the is reserved in the vendor until the full payment of the
an end to the obligation of the vendor purchase price, nor is there a stipulation giving the
transaction (CIVIL to convey title from vendor the right to unilaterally rescind the contract
CODE, Art. 1179). acquiring a binding force from the moment the vendee fails to pay within a
(Manuel Uy & Sons, Inc. fixed period (Dignos v. C.:A, G.H. No. L-69266
v. Valbueco, Inc., G.R. February 29, 1988).
No. 179594, September
11, 2013). The Suspensive Condition in a Contract to Sell
is Commonly Full Payment of the Purchase Price
A contract to sell is akin to a conditional sale where
the efficacy or obligatory force of the vendor's
obligation to transfer title is subordinated to the
1. Specific Action to recover happening of a future and uncertain event, so that if
performance; OR possession-if the buyer the suspensive condition does not take place, the
2. Rescission refuses to surrender the parties would stand as if the conditional obligation
thing to the seller. hag never existed. The suspensive condition is
With the payment of . C()mmonty full payment of the purchase price
damages in either (Spouses lntac v. Spouses Cueto, G.R. No. 204735
case ( CIVIL CODE, February 19, 2018). ,
Art. 1191).
ABSOLUTE CONTRACT OF SALE AND
CONDITIONAL CONTRACT OF SALE,
Vendor has· lost and Title remains in the DISTINGUISHED
cannot recover the vendor unless and until
ownership until and . the vendee does not
unless the contract of cilmp!y' i with . the
sale itself is resolved conditi\)rj precedent.
and set aside.
Tille passes to the There is a stipulation
buyer upon 'delivery. reserving the title to the
seller until the fulfillment
Vendee becomes the Vendor still need to
of the condition even if
owner of the property execute another
there is delivery.
upon delivery of the instrument conveying
thing sold. the property to the
vendee (e.g., deed of
absolute sale). Both parties have the There is a stipulation
(DE LEON, supra at 21-23). right to rescind · the that the seller may
contract. unilaterally rescind the
contract in case of non-
CONDITIONAL SALE
fulfillment of the
1. In conditional obligations, the acquisition of condition.
rights, as well as the extinguishment or loss of
those already acquired, shall depend upon the (Dignos v. CA, G.R. No. L-59266, Feb. 29, 1988).
happening of the event which constitutes the
obligation {CIVIL CODE, Art. 1181);

2. There was no perfected sale of a lot if it was

conditionally or contingently awarded subject to
the approval by the city council of the proposed
consolidation subdivision plan, and the approval
of the award by the valuation committee and
higher authorities (People's Homesite &
Housing Corp. v. CA, G.R. No. L-61623,
December 26, 1984).
 MEM:Q~Y AID
Sl\11 Beda University Cottege of law - RGCT Ba, Operations Center

CONDITIONAL SALE AND CONTRACT
TO SELL, DISTlf\JGUISHED
In both cases the seller may reserve the title to
property until fulfillment of the suspensive
condition (e.g., pDymont) (Serrano v. Caguiat,
G.R. No. 139173, February 28, 2007).
It is a preparatory contract in which one party grants
to the other, for a fixed period and under specified
conditions, the power to decide, whether or not to
enter into a principal contract. It binds the party who
has given the option not to enter into a principal
contract with any other person during the period
designated, and, within that period, to enter into such
contract with the one to whom the option was
granted, if the latter should decide to use the option.
It is a separate ar:ireement distinct from the contract
of sale, which the parties may enter into upon the
consummation of the option ( Carcefler v. CA, G. R.
No. 124791, February 10, 1999).

CONTRACT OF SALE AND OPTION

The sale is perfected; if Ownership · is not CONTRACT, DISTINGUISHED
there has been previous automatically
delivery of subject transferred to the buyer
property to the buyer, (eyen if there has been
ownership previous delivery to
automatically transfers him) upon fulfillment of
to the buyer by suspensive condition
operation of law without (i.e., full payment of _
any further act on the purchase price).
part of the seller.
Seller still has to convey
title to prospective
buyer by entering into a
contract of absolute Consideratfoh 'omust be
sale. a price certain in money
or its eqllivaleni (CIVIL
CODE,)\rt. 1458),, Such consideration is
separate and distinct
from the purchase price
Upon the fulfillment of There is no double sale ( San Miguel Properties
suspensive condition, (because there is no Philippines, Inc. v.
sale becomes absolute previous sale_ of Huang, G.R. No.
which affects the property despite 137290, July 31, 2000).
seller's title. fulfillment of suspensive
condition).
The third person
becomes a buyer in bad The consent is the
The consent is the
faith if he possesses The third person is not a acceptance by the
acceptance of the offer
constructive or actual buyer in bad faith. offeree of the offeror's
itself whereby the
knowledge of defect in promise to sell (or to
Prospective buyer offeree asserts his or
seller's title. buy) the determinate
cannot seek relief of her right or privilege to
thing, i.e., the offeree
of buy (or to sell), which
A subsequent buyer reconveyance agrees to hold the right
constitutes as his or her
cannot defeat the first property. or privilege to buy (or to
consent to the sales
buyer's title. sell) within a specified
contract.
period.
(DE LEON, supra at 29).

OPTION CONTRACT
An option contract is an accepted promise to buy or The determinate thing the right or privilege to
to sell a determinate thing for a price certain which itself. buy (or to seii) a
is binding upon the promiser if the promise is determinate thing for a
supported by a consideration distinct from the price price certain (Philippine
(CIVIL CODE, Art. 1479). National Oil Company
v. Keppel Philippines

Hnlrlings, GR Nn
202050, July 25, 2016)
ELEMENTS OF A VALID OPTION
CONTRACT: (CSP)
1. fonsent;
2. §ubject Matter
- An option right to an "unaccepted unilateral
offer to sell, or to buy" or an "accepted promise
to sell or promise to buy":
a. A determinate object or determinable object;
b. For a price certain, including the manner of
payment thereof;
3. .Erestation
- A consideration separate and distinct from the
purchase price for. the option given
(VILLANUEVA, supra at 126). . 4. TIJsi option is an independent contract by itself
NOTE: In an option contract, the optic; gr:a~t~d to
the offeree is for a fixed period 9 n9 a {/etetmiried
price. Lacking these two essentic,1frequi~it%; whaUs
involved is only a right of firs(refpsa(/DELEON,
supraat101). · ······.,• ... • · · the propos~d·' co_r1tract (object of the option)
WHEN THERE IS No,T CQN~IDE~TION
PRESENT
The Supreme Court held th~t without a con$ideration.
0 5. Care sjlould' be taJ<en of the real nature of the
separate and distinct from ~the:p1i[chas(;l\price. an.
option contract would be vpjdj a,s:, a tQntr:at:,t, but
would still constitute a valid offer} so 'ih.afih the
offer
option is exercised prior to its\,.,ithdrawal, the: is
accepted, and a valid and binding contract ofsaleis .
entered into (Sanchez v. Rigas, G.R. Ncf 1,,-25494,; • ·
June 14, 1972). · 1
When the offeror has allowed the off;;~~e./~i.ftain
period to accept, the offer may be withdrawn atat;1X
time before acceptance by communicating such
withdrawal, except when the option is founded upon
a consideration, as something paid or promised
(CIVIL CODE, Art. 1324).
Accordingly, when an option to buy or to sell is not
supported by a consideration separate from the
purchase price, the option constitutes as an offer to
buy or to sell, which may be withdrawn by the offeror
at any time prior to the communication of the
offeree's acceptance. When the offer is duly
accepted, a mutual promise to buy and to sell under
the first paragraph of Article 1479 of the Civil Code
ensues and the parties' respective obligations
become reciprocally demandable (PNOC v. Keppel
Philippines Holdings, Inc., G.R. No. 202050, July 25,
2016).
NOTE: There are other cases decided differently.
SALES AND LEASE
· Civil Law
RULES WHEN A PERIOD IS GIVEN TO
THE OFFEREE WITHIN WHICH TO
ACCEPT THE OFFER (I.E., OPTION)
1 . If the period itself is not founded upon or
supported by a separate consideration, the
offeror is still free and has the right to withdraw
the offer before its acceptance, or, if an
acceptance has been made, before the offeror's
coming to know of such fact, by communicating
that withdrawal to the offeree (Sanchez
Doctrine);
2. The right to withdraw, however, must not be
exercised whimsically or arbitrarily; otherwise, it
could give rise to a damage claim under Article
19 of the Civil Code;
3. If the period has a separate consideration, a
contract of option is deemed perfected, and it
would be a breach of that contract to withdraw
the offer during the agreed period;
and''shguld be distinguished from the projected
' IJiain; ?meement. If the optioner-offeror
withdraws0: ·tl)e offer before its acceptance
(exen::ise'ofoptjon) by the optionee-offeree, the
may
latter pot,sµe for specific performance on
·ri9
sine~ ther;f. is, perfection of the option
contract. The dpti9qer-offeror, however, is liable
for ~amages· due·· to breach of the option
contract; anQ ;m,,j ):
C9f!$ld(}ratiqrt,gLve~, for if in fact, it has been
intended tci be parf of the consideration for the
, ·m~in cont/act witl:l a right of withdrawal on the
·. part of th~ optioryee, the main contract could be
-~ deern.¢d perfected; a similar instance would be
~[l. earp~st rT!Oney in a contract of sale that can
eviqenceij.s perfection (Ang Yu Asuncion v. CA,
<tf{.N,.o/109125, December2, 1994).
PROPER EXERCISE OF OPTION
The payment of the price is contingent upon the
delivery of the deed of sale. Unless and until the
owner has done this, the buyer who has the option
is not and cannot be held in default in the discharge
of his obligation to pay (Nietes v. CA, G.R. No. L-
32873, August 18, 1972). Also, since the obligation
to pay is not yet due, consignation in court of the
purchase price is not required (Heirs of Luis Bacus
v. CA, G.R. No. 127695, December 3, 2001).
PERIOD WITHIN WHICH TO ENFORCE
THE VALID EXERCISE OF AN OPTION
Even when an option is exercised within the option
period by the proper tender of the amount due,
nevertheless the action for specific performance to
enforce the option to purchase must be filed within
10 years after the accrual of the cause of action as
 fMfMiri \ I
MEM✓Q-RY Al D
San Seda Univernity CoUege of Law - RGCT Ber Operations Center
provided under Art. 1144 of the Civil Code (Dizon v.
CA, G.R. No. 122544, January 28, 1999).
EFFECT OF EXERCISE OF OPTION
Once an option is exercised, there arises a
reciprocal obligation. The performance of one
obligation is conditional on the simultaneous
fulfillment of the other obligation (Heirs of Luis Bacus
v. CA, G.R. No. 127695, December 3, 2001).
RIGHT OF FIRST REFUSAL
When a lease contract contains a right of first
refusal, the lessor is under a legal duty to the lessee
not to sell to anybody at any price until after he has
made an offer to sell to the latter at a certain price
and the lessee has failed to accept it. The lessee has
a right that the lessor's first offer shall be in his favor
(Tanay Recreation Center and Development Corp.
v. Fausto, G.R. No. 140182, April 12, 2005).
A deed of sale executed in favor of a third party not
deemed a purchaser in good faith, in violation of the,•·• .
right of first refusal granted to the optionee is vaH«:1•
but rescissible under Arts. 1380 to 1381[3} of the••
New Civil Code which states that a contract which ls
valid may be rescinded by reason of injury to third
persons (Riviera Filipina, Inc. v. CA, G.R. No.
117355, April 5, 2002).
In an option to buy, the basis of \hetfgtJt}!first
refusal must be .the current offer to sell of the seller
or offer to.purchase of any proSf1E!,ctiv~ 6uyt:lr O~ly
after the optionee fails to exercise ifs righf of first
priority under the same terms and withintheperiod,
contemplated could the owner validlyoffer to·sell the
property to a third person, again, underth~ same
terms as offered to the optionee (Paraff,!,,qtie Kings
Enterprises, Inc. v. CA, G. R. No. 111538, Februt:lry
26, 1997). .
MUTUAL PROMISES TO BUY AND SELL
Promise to sell a determinate thing coupled with a
correlative promise to buy at a specified price is
binding as an executory agreement (CIVIL CODE,
Art. 1479).
In an agreement to buy and sell, which is an
executory contract, title to the property does not
pass to the promisee and the contracting parties are
merely given the right to demand fulfillment of the
contract in the proper cases, or damages for breach
thereof where it is not possible to carry out its terms
(Coronel v. CA, G.R. No. 103577, October 7, 1996).
EFFECT OF PROMISE
1. Accepted unilateral promise to sell or
buy (CIVIL CODE, Art. 1479, par. 2)
Only one makes the promise, which is accepted
by the other (e.g., A promise to sell to B, B
accepts the promise, but does not in turn
promise to buy).
When the offer is duly accepted, a mutual
promise to buy and to sell under the first
paragraph of Article 14 79 of the Civil Code
ensues and the parties' respective obligations
become reciprocally demandable (PNOC v.
Keppel Philippines Holdings, Inc., G.H. No.
202050, July 25, 2016).
Pending notice of its withdrawal, the accepted
promise partakes the nature of an offer to sell,
which if accepted, results in a perfected contract
of sale, although the option is given without
consideration (Sanchez v. Rigos, G.R. No. L-
25494, June 14, 1972).
2. Bilateral promise to buy and sell (CIVIL
CODE, Art. 1479, par. 1).
When one party accepts the other's promise to
buy, and the latter accepts the farmer's promise
to sell a determinate thing for a price certain, it
has the same effect as a perfected contract of
sale since it is reciprocally demandable (DE
' ra at 122).
Since it iffeciprocally demandable, the parties
have thl ilght to demand fulfillment or damages,
but there Ts no transfer of title of dominion yet. It
requires no '\consideration distinct from the
selling price. ·,.
T~~,; .. ~;c;eller still has to convey title to
the prospe~tive buyer by entering into a contract
of absolute sale (Coronel v. CA, G.R. No.
· 3577, October 7, 1996).
3:¥~\"~('~
RULES GOVERNING AUCTION SALES
(CIVIL CODE, Art. 1476)
1. Sales of separate lots by auction are separate
contracts of sale;
2. Sale is perfected when the auctioneer
announces its perfection by the fall of the
hammer or in other customary manner; and
Until such announcement is made:
a. Any bidder may retract his bid; and
b. The auctioneer may withdraw the goods
from the sale unless the auction has been
announced to be without reserve.
3. Seller or his agent has the right to bid in the
auction, provided: · ·
a. Such right was reserved;
b. Notice was given that the sale was subject
to a right to bid on behalf of the seller; and
c. Right is not prohibited by law or by
stipulation.
 SALES AND LEASE
Civil Law

REASON: To avoid puffing or secret bidding by Optima Realty Corp. v. Securitron Security Services,
or on behalf of the seller (DE LEON, supra at G.R. No. 199648, January 28, 2015).
95).
EARNEST MONEY AND OPTION
The owner of the property sold at the auction may MONEY, DISTINGUISHED
provide terms under which the auction will proceed
and the same are binding upon all bidders, whether
they knew of such conditions or not (Leoquinco v.
The Postal Savings Bank, G.R. No. L-23630, August
25, 1925).
Title passes to the Ownership is reserved
buyer upon delivery of to the seller and is not
When the auction sale had already been perfected,
the thing sold. passed until full
a supplemental sale with higher consideration at the
payment.
instance of only one party could no longer be validly
executed (Dizon v. Dizon, G.R. No. 156539,
September 5, 2007).
Action for specific There can be an action
EARNEST MONEY OR "ARRAS" performance or for for specific
Something of value to show that the buyer was really rescission can be filed performance.
in earnest and given to the seller to bind the bargain · by the injured party.
(DE LEON, supra at 137). ..

It is considered as: .
· Jhs,part of the purchase Money is given as a
1. Part of the purchase price (a!l•'~<lv.anbe.or down .
. price.' · · ' distinct conside·ration
payment), and earnest mo~ey ii;"'.de\jtXcted from .. for an option contract
the total price; and f · ·
(see CIVIL CODE, Art.
2. Proof of perfection of the tontract/(CIV~L CODE,
1479, Par. 2).
Art. 1482).

NOTE: Option money may:H~to~ earne'st money

if the parties agree, or wheri iti~considE!re.d,as such
based on other terms or words Us~d in the 'contract
(DE LEON, supra at 139).

By agreement of the parties, the amount glve'n may

be merely a deposit of wti<1t would, evenfuajly
become earnest money or down. paymerit~hotJld. a
contract of sale be made by therri', not as a·paq_bf
the purchase price and as a proof ofttie Pe'rfectiOri
of the contract of sale out only as a gual'antee/that
·,s
the buyer would not back out of the sale. It DAiy a
proof of the concurrence of all essential elements of
a contract which establishes the existence of a
perf~cted contract (Manila Metal Container Corp. v.
PNB, G.R. No. 166862, December 20, 2006).
In a potential sale transaction, the prior payment of
earnest money even before the property owner can
agree to sell his property is irregular and cannot be
used to bind the owner to the obligations of a seller
under an otherwise perfected contract of sale. The
property owner-prospective seller may not be legally
obliged to enter into a sale with a prospective buyer
through the latter's employment of questionable
practices which prevent the owner from freely giving
his consent to the transaction; this constitutes a
palpable transgression of the prospective seller's
rights of ownership over his property, an anomaly
which the Court will certainly not condone {First
"Earfi'e;t money" and "option money" are not the
same but distinguished thus; (a) earnest money is
part of the purchase price, while option money is the
money given as a distinct consideration for an option
contract; (b) earnest money given only where there
is already a sale, while option money applies to a
sale not yet perfected; and, (c) when earnest money
is given, the buyer is bound to pay the balance, while
when the would-be buyer gives option money, he is
not required to buy, but may even forfeit it depending
on the terms of the option (Limson v. CA, G.R. No.
135929, April 20, 2001).
EFFECT OF RESCISSION ON EARNEST
MONEY RECEIVED
In the absence of an express stipulation, the seller
cannot keep the earnest money received to answer
for the damages sustained in the event the sale fails
 I; ' ;
ME~Q~Y AID
Sarl Bede University College ot Law - RGCT Bar Operations Center
due to the fault of the prospective buyer (Goldenrod,
Inc. v. CA, G.R. No. 126812, November 24, 1998).
EXPENSES OF EXECUTION
REGISTRATION
The expenses for the execution and registration of
the sale shall be borne by the vendor, unless there
is a stipulation to the contrary (CIVIL CODE, Art.
1487).
I OBJECTS OF SALE
GENERAL RULE: A person cannot sell or convey
what he does not have or own.
EXCEPTIONS:
1. Sale of a thing having potential existence (CIVIL
CODE, Art, 1461);
2. Sale of future goods (CIVIL CODE, Art. 1462};'
and
3. Contract for the delivery at a certain price of an
article which the vendor in the ordinary course
business manufactures or procures for the
general market, whether the same is _hand at
the time or not (CIVIL CODE, Art. 1467).
1. Rights
Requisites:
a. Transmissible or personal ( CIVIL CODE::,
Art. 1459); _ a e of land in violation of the
b. Licit - it should not be contrary to law,
morals, good customs, public order, or
public policy ( CIVIL CODE, Arts. 1459 and
1347).
2. Things
Requisites:
a. Actual or possible (CIVIL CODE, Arts.
1461, 1462 and 1465);
It must be existing, future, or subject to a
resolutory condition (CIVIL CODE, Arts.
1461, 1462, par. 2).
A thing i~ actual when it 1s existing. A thing
is possible when it has a potential existence.
NOTE: When the requisite that the thing
should be actual or possible does not exist
as to subject matter, the resulting contract of
sale would be void (CIVIL CODE, Art. 1409,
par. 3).
b. Licit (CIVIL CODE, Art. 1459);
The thing must be licit, and the vendor must
have a right to transfer the ownership
thereof at the time it is delivered ( CIVIL
CODE, Art. 1459).
AND Requisites: (Co-In-In)
i. II is not outside the Commerce of men;
ii. It is not lntransmissible; and
iii. It does not contemplate a future
Inheritance, unless expressly
authorized by law ( CIVIL CODE, Art.
1347).
When the subject matter is illicit, the
I resulting contract is void (CIVIL CODE, Art.
1409, par. 1).
Kinds of Illicit Things:
i. Illicit per se (of its nature); and
ii. Illicit per accidens (because of some
provisions of law declaring it illegal) (DE
LEON, supra at 31).
Examples of Void Sale Due to Being illicit
per accidens:
i. Sale of animals suffering from
contagious diseases (CIVIL CODE, Art.
par. 1).
·,_;;<{iitii!Bale of animals if the use or service for
they are acquired has been
on stated in the contract, and they are
;- fdUn'O to be unfit therefor (CIVIL CODE,
Art. 1"(575, par. 2).
vi. S1le 'of future inheritance except in
·· ,, pressly authorized by law
ODE, Art. 1347).
constitutional prohibition against the
transfer of lands to aliens ( CONST., Art.
v. Pursuant to the Public Land Act, a
contract which purports to alienate,
transfer, convey, or encumber any
homestead within the prohibitory period
of five (5) years from the date of the
issuance of the patent (Binayug v.
Ugaddan, G.R. No: 181623, December
5, 2012).
vi. Narcotics (R.A. 6425).
vii. Wild birds or mammals (Act. 2590, Sec. ·
7).
viii. Rare wild plants (Act. 2983, Sec. 1).
ix. Poisonous plants or fruits (R.A. 1288).
x. Dynamited fish (R.A. 428, Sec. .1).
xi. Gunpowder and explosives (Sec. 1, Act.
2255).
xii. Firearms and ammunitions (P.D. 9).
c. Determinate or at Least Determinable
(CIVIL CODE, Arts. 1458 & 1460).
Determinate Thing - that which is:
i. Particularly designated; or

ii. Physically segregated from all others of
the same class (CIVIL CODE, Art. 1460,
par. 1). · the risk of acquiring the title and making the
NOTE: A determinate thing is identified by
its individuality (DE LEON, supra at 36).
Illustration: A person may validly sell all the
cavans of rice inside a particular bodega but
if it is not specified and the seller has more
than one bodega, the contract shall be null
and void (DE LEON, supra at 86).
NOTE: Art. 1165 of the Civil Code provides
that if the obligation is to deliver a
determinate thing, the creditor has the right
to compel specific performance and to
recover damages for breach of the
obligation (JURADO, Obligations and
Contracts, (2010), p. 45 [hereinafter,
JURADO, Obligations and Contracts]). ··
NOTE: A contract of sale is.also perfect~d
even· when the exact qua,ritity or qui;ility of
the subject matter is nqJ krfown, ~o·long as
the source of the subject,is.certain and fixed
(National Grains Autliorify v.lAC, G.R. No.
74470, March 8, 1989).
GOODS
Includes all chattels person<,1l,t1uthot things'in action
or money of legal tender in th,e Philippines.-::the term
includes growing fruits or c'rop~: (OIVIL -COQJ;, Art.
1636). ·. •. ,, :,
KINDS OF GOODS:
1. Existing goods .. , ..._
- Those that are owned or pos.~essed, by the..
seller may be the object of sale (C/VIL.CODE,
Art. 1462).
The seller must have the right to transfer
ownership at the time the thing is delivered.
Hence, it is not required that the seller is the
owner of the thing at the moment of the
perfedion of the contract of sale (CIVIL CODE,
Art. 1459).
2. Future goods
- Cover goods that are to be manufactured,
raised, or acquired by the seller after the
perfection of the contract of sale (CIVIL CODE,
Art. 1462).
Property or goods which at the time of the sale
are not owned by the seller but are to be
acquired by him, cannot be the subject of an
executed sale but may be the subject of a
contract for the future sale and delivery thereof,
even though the acquisition of the goods
SALES AND LEASE
Civil Law
depends upon a contingency which may or may
not happen. In such case, the vendor assumes
conveyance or responding in damages for the
vendee's loss of his bargain (Martin v. Reyes,
G.R. No. L-4402, July 28, 1952).
NOTE: The sole owner of a thing may sell an
undivided interest therein (CIVIL CODE, Art. 1463).
A co-owner may sell, but the sale is limited to th~
portion which may be allotted to him in .the division
of the thing upon the termination of the co-ownership
(CIVIL CODE, Art. 493).
NOTE: The co-owners can dispose of their shares
even without the consent of the other co-owners
except when personal rights are involved (CIVIL
CODE, Art. 493). The effect is that the buyer
becomes a co-owner in the thing sold (DE LEON,
s,uRra at 4 7).
'N,OTE: An undivided share of a specific mass, in
case of fllhgible ·goods, may be sold (CIVIL CODE,
Art. 1464):
Effect: The 'l:1uyer becomes a co-owner with the
seller of.the whole mass in the proportion in which
the definite shate bought bears to the mass '(CIVIL
CODE, Art. 1464). ·.. •.
If later 6n, it J:>e discovered that the mass of fungible
goods contains less than what was sold, the buyer
bec;ohies the owner· of the whole mass, and the
seller shall supply whatever is lacking from goods of
the same kind and qoality, subject to any stipulation
to th~ contrary (CIVIL CODE, Art. 1464).
·. . ,"
NOTE;: Things subject to a resolutory condition (e.g.
pactr;>_, de i,etrb sale) may be the object of a contract
of sc1le (CIVIL CODE, Art. 1465).
NOTE: When the conditions have for their purpose
the extinguishment of an obligation to give, the
parties, upon the fulfillment of the said conditions,
shall return to each other what they have received
(CIVIL CODE, Art. 1190).
EMPT/O REI SPERA TAE
{SALE OF THE THING EXPECTED)
It is the sale of a thing with potential existence,
subject to a suspensive condition that the thing will
come into existence (CIVIL CODE, Art. 1461).
If the subject matter does not come into existence,
the contract is deemed extinguished as soon as the
time expires or if it has become indubitable that the
event will not take place (CIVIL CODE, Art. 1461).
The contract of sale will not become effective. As
 f"F,.,.. \ I

MEM:Q-RY AID
San Bede University College of Law • RGCT Bar Opemtions Cont€,

such, the buyer will have no obtigation to pay the EMPT/O REI SPERATAE AND EMPT/O
price (DE LEON, supra at 40).
SPEI, DISTINGUISHED
Illustration: S binds himself to sell, for a ~pecified
price, to B a parcel of land if he wins a case for the
recovery of said land pending in the Supreme Court.
The obligation will arise if the "expected thing" (which
is the land} will come into existence (i.e. if he wins
the case). Before a decision is rendered, there is Sale is subject to the Sale is effective oven if
only "the mere hope or expectancy" that thing will r.nnrlitinn th;:it thA thing thA thing does not come
come into existence (DE LEON, supra at 42). will exist; if it docs not, into existence, UNLESS
there is no contract. it is a vain hope or
An emptio rei speratae covers only contracts of sale expectancy.
whose subject matter are determinate and has no
application to determinable generic things since the
condition that they must come into existence is It is with regard to the It is with regard to the
wholly irrelevant, for generic subject matters are quantity and quality of existence of the thing.
never lost (VILLANUEVA, supra at 67). the thing and not the
existence of the thing.
EMPT/O SPE/ ("SALE OF HOPE")
Sale of a mere hope or expectancy, which is deemed
subject to a condition that the thing will come intp ..
existence (CIVIL CODE, Art. 1461, par. 2). .

Illustration: B buys a sweepstakes ticket in the"'

hope of winning a prize. Here, the object of the
contract is the hope itself, not the prize. The sale is
valid even if B does not win a prize bec9 1.,1se it is not .·
subject to the condition that the hope will be fulfilled
(DE LEON, supra at 42). .
of doubt, the presumption is in favor
of emptio ref J>pratae; it is more in keeping with the
com.mutati-:,e ¢h~racter of the contract (Id. at 43).

Emptio spei typifies a situation where the

commutative nature of a contrac;tof sale seems not RICE
to be complied with (VILLANUEVA, supraat)'6).

The sale of a vain hope or expectancy is void (CIVIL

CODE, Art. 1461). This affirms the r~qu'tsite of
"possibility" of a subject matter as contrasted trt?m
an impossiole subject matter (VILLANUEVA, supra The sum stipulated as the equivalent of the thing
sold and also every incident taken into consideration
at 67).
for the fixing of the price, put to the debit of the
vendee and agreed to by him (lnchausti & Co. v.
Illustration: Sale of a losing ticket for a
Cromwell, G.R. No. 6584, October 16, 1911).
sweepstakes already run.

However, the sale is valid if the ticket be a collector's REQUISITES FOR VALID PRICE:
item (5 PARAS, Civil Code of the Philippines, (2016), (CARM 2 )
p. 21 [hereinafter, 5 PARAS]). 1. ~ertain or ~scertainable (CIVIL CODE, Art.
1'458);
2. Beal (CIVIL CODE, Art. 1471);
3. In ,Money or its Equivalent (CIVIL CODE, Arts.
1458.and 1468); and
4. Manner of payment must be agreed upon {CIVIL
CODE, Arts. 1458 and 1468).

REAL (NOT SIMULATED)

Price is real when at the perfection of the contract,
there is legal intention ·on the part of the buyer to pay
the price, and legal expectation on the part of the
 SALES AND LEASE
Civil Law

seller to receive such price (VILLANUEVA. supra at

89).

If the Price is Simulated

GENERAL RULE: The sale is void (CIVIL CODE,
Art. 1471).

EXCEPTION: If it can be shown to be a donation or

another contract (CIVIL CODE, Art. 1471).
The price is simulated when neither party had any
intention that the amount will be paid (Yu Bun Guan The statement of a false Failure to pay does not
v. Ong, G.R. No. 144735, October 18, 2001). cause or consideration make the sale null and
shall render a contract void for lack of
When a contract is void due to absence of void if it should not be consideration but
consideration, no \itle over the subject matter can be proved that it was results in buyer's
conveyed. Nemo potest nisi quad de Jure potest - no founded upon another default, for which the
man can do anything except what he can do lawfully cause which is true and seller may exercise his
(Traders Royal Bank v. CA, G.R. No. 93397, March lawful (CIVIL CODE, legal remedies
3, 1997). Art. 1353). (Balatbat v. CA, G.R.
No. 109410, August 26,
Requisites of Simujated Contract (FOP) . If !he price indicated in 1996).
1. An Qutward declaration of will different from the the covering ihstrument
will of the parties; is false (i.e. there is REASON: Contract of
2. The false appearance must hav.e been intended actually another price sale, being consensual,
by mutual agreement; and upon which the minds of is perfected by mere
3. The _Eurpose is to deceive third persons the parties have met), consent (CIVIL CODE,
(Payongayong v. CA, GR No. 144576; May 28, the contract of sale is Art. 1475). Delivery of
2004). valid, but the underlying the thing bought, or
deed is subject to payment of the price is
GENERAL RULE: When the price in a purported reformation to indicate not necessary for the
contract of sale is completely simulated, the in pari the real price agreed perfection of the
delicto non oritur actio shall apply,.whfch denies alf upon (CIVIL CODE, Art. contract (Alcantara-
recovery to the guilty parties intw se. Such principle 1359). . Daus v Sps. De Leon.,
applies to cases where the nullity "arises from the G.R. No. 149750, June
illegality of the consideration or the purpose of the There is a presumption 16, 2003.
contract (Madina v. CA. G.R. No. 109355, October that the consideration
~1W~. . . exists pnd that it is
lawful. Even though it is
When the deed of sale states that the purchase pric€ not stated.-- in the
has been paid, but in fact has never been paid, the contract {CIVIL CODE,
deed of sale is null and void for lack of consideration. Art 1254).
If no payment was actually made, this fact indicates
that its price purportedly paid was simulated (Heirs
of Ureta v. Heirs of Ureta, G.R. No: 165748, CERTAIN OR ASCERTAINABLE
September 14, 2011). 1. Certain
- Expressed and agreed in terms of specific
EXCEPTION: When the principle is invoked with pesos and/or centavos (VILLANUEVA, supra at
respect to inexistent and void contracts (Yu Bun 100).
Guan v. Ong, G.R. No. 144735, October 18, 2001).
2. Ascertainable
FALSE PRICE AND NON-PAYMENT - It is sufficient that the price is with reference
to another thing certain or that the determination
OF PRICE, DISTINGUISHED
thereof be left to the judgment of a specified
person or persons (CIVIL CODE, Art. 1469):
a. Fixed by a specified third person or persons
- if the third person or persons is unable or
unwilling to fix the price, the contract shall
be inefficacious, unless the parties
subsequently agree upon the price (CIVIL
CODE, Art. 1469).
 \ I
MEM:Q-RY AID
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If the third person or persons is prevented
from fixing the price or terms by fault of
either the seller or the buyer, the party not in
fault may have such remedies (rescission or
fulfillment, with damages in either case)
against the party in fault as are allowed the
seller or the buyer, as the case may be
(CIVIL CODE, Arts. 1469, 1191, par. 2 and
1594).
The party may demand from the courts the
fixing of a reasonable price, under the
principle that when the party prevents a
condition from happening, that condition can
be deemed fulfilled by the other party (CIVIL
CODE, Art. 1186).
Even before the fixing of the price by the
designated third person. a contract of sale is
deemed to be perfected and existing, albeit
conditional (VILLANUEVA, supra at 101).
Question: If the money paid is a counterfeit;
would the sale still be valid? ·
Answer: Yes, for we cannot say that the
consideration or cause of the contract is the
illegal currency. The real consideration or
cause is still the VALUE or price agreed
upon (5 PARAS, supra at 30). · · ··
b. Fixed by the courts - wl:i~re tnethird person
or persons fixes the price in bad faith or by
mistake (CIVIL CODE, Art.1469); '.
c. Fixed by reference to a definite.day, or in a
particular exchange or market . (CIVIL
CODE, Art. 1472).
Requisites: (MAD)
i. Meeting of the minds as to the subject
matter;
ii. ~greement that a price will be paid; and
iii. Q.elivery and appropriation
Price of Securities, Grains, Liquids, and Other
Things is Considered Certain When:
1. The price fixed is that which the thing would
have on a definite day, or in a particular
exchange or market (CIVIL CODE, Art. 1472);
. 2. An amount is fixed above or below the price on
such day, or in exchange or market, provided
said amount be certain ( CIVIL CODE, Art.
1472); or
3. Fixed by reference to another thing certain
(CIVIL CODE, Art. 1469).
Article 1472 is especially applicable to fungible
things (e.g., securities, grains, liquids, etc.) the price
of which are subject to fluctuc1tions of the market (DE
LEON, supra at 73).
Example: I can sell you today my Mont Blanc
fountain pen at the price equivalent to the stock
quotation two days from today of 100 shares of
PLDT (5 PARAS, supra at 35).
Under Art. 1469 of the Civil Code, the parties give
rise to a contract of sale when they appoint a third
party to fix the price. However, this is not allowed for
the determination of the subject matter of the sale.
REASON: The obligation to pay the price is a
fungible obligation; the price is essentially generic,
and generally, cannot be extinguished by fortuitous
event. On the other hand, the obligation 4o deliver a
subject matter and the title thereto is a specific
obligation, and therefore its designation cannot be
left to the will of a third party who may choose a
subject matter beyond the capacity of the seller to
comply with his obligations to deliver the same (DE
LEON, supra at 62).
,.the price can never be left to the
discretion ofQfi!;l of the contracting parties. However,
if the price fixed'by one of the parties is accepted by
the other, ,the sii!.e is perfected ( CIVIL CODE, Art.
1473). .
Basis!!\; ••. r compliance of a contract
cannot be depend upon the will of one party
(CIVIL CODE, Art. 1308).
·.~:Jffi~-9}Y!11:)J;Of a thing has the right to quote his own
price·: re"ci'sonable or unreasonable. It is up to the
prospective buyer to accept or reject it (Cornejo v:
Calupitan, G.R. No. L-2342, October 27, 1950).
IN MONEY OR ITS EQUIVALENT
Article 1468 of the Civil Code recognizes that if the
consideration consists partly in money and partly in
another thing, the transaction can still be considered
. a contract of sale when it is the manifest intention of
the parties.
NOTE: The phrase "or its equivalent" means that
there is certainty as to the price but what is given as
payment is an object (e.g., P5Q,000.0U worth of
Maggi noodles).
MANNER OF PAYMENT MUST BE
AGREED UPON
Before a valid and binding; contract of sale can exist,
the manner of payment of the purchase price must
first be established since the agreement on the
manner of payment goes into the price, such that a

disagreement on the manner of payment is
tantamount to a failure to agree on the price (Sps.
Navarra v. Planters Development Bank, G.R. No.
172674, July 12, 2007).
GROSS INADEQUACY OF PRICE (CIVIL
CODE, Arts. 1355 and 1470)
The price must be grossly inadequate or shocking to
the conscience such that the mind revolts against it
and such that a reasonable man would neither
directly nor indirectly be likely to consent to it. It must
be stressed that the property was mortgaged by
Lasala to the Rural Bank for P.100,000.00. It was
bought by the Rural Bank at the extra-judicial sale at
P.108, 185.34. Also, the Certificate Authorizing
Registration issued by the Bureau of Internal
Revenue to petitioners shows that the prevailing fair
market value of the property in 1989 was
P.85,260.00. All these show that the price in the
amount of P.150,000.00 paid by petitioners for the
purchase of the property was within ~eastlnable
bounds (Tio v. Abayata, G.R. No. 160898, Jude 27,
2008). ... ' .. 1
Inadequacy of price may be a•:g;duod-f6r setting
aside an execution sale but is .notJ:1 sufficient ground
for cancellation of a volu11tary .cqntract of sale
otherwise free from invalidatiog effects (Bapasa v.
CA, G.R. No. 124045, May 21,f99lJ). · ~bsente,es, iHne latter should suffer lesion
1. VOLUNTARY SALES< '
GENERAL RULE: Mere i~adequacy'_of price
does not affect the validity 6t tn~
sale iffixed in
good faith and without. fraud ((Hulst y, PR
Builders, Inc., G.R. No. 156364, September 3;
2007).. .
EXCEPTIONS:
a. Where a low price indicates. a· vice of
consent, sale may be annuiied (CIVIL
CODE, Art. 1355), or the contract is
presumed to be an equitable mortgage
(CIVIL CODE, Art. 1602, par. 1 (1));
b. Where the price is so low as to be "shocking
to the conscience," sale may be set aside
(Aguilar v. Rubiato, G.R. No. L-14823,
December. 9, 1919);
c. Where the price is simulated such as when
the parties intended a donation or some
other act or contract (CIVIL CODE, Art.
1471); and
d. Where the parties did not intend to be bound
at all, the contract is simulated and void
(VILLANUEVA, supra at 131).
2. INVOLUNTARY OR FORCED SALES
GENERAL RULE: Mere inadequacy of the price
is not a sufficient ground for the cancellation of
the sale of real property (Ponce de Leon v.
SALES AND LEASE
· Civil Law
Rehabilitation Finance Corporation, ·G.R. No. L-
24571, December 18, 1970).
EXCEPTIONS:
a. Where the price is so low as to be shocking
to the moral conscience, judicial sale of
personal property will be set aside; and
b. If in the event of a resale. a better price can
be obtained.
NOTE: The validity of the sale is not necessarily
affected where the law gives to the owner the
right to redeem, upon the theory that the lesser
the price, the easier it is for the owner to effect
redemption { The Abaca Corporation of the
Phils., v. Garcia, G.R. No. 118408, May 14,
1997)_
3. RESCISSIBLE CONTRACTS . OF
SALE
Inadequacy of price is a ground for rescission of
cofl\le11tional sale in case of rescissible
contracts fovered under Article 1381 of the Civil
. <;od¢, namely:
a. · Those entered into by guardians whenever
the Ward whom they represent suffer lesion
by more than one-fourth (¼) of the value of
the 061ect 9Lthe sale; and
b.. Those .agreed upon in representation of·
,f)y more than oi,e-fourth (¼) of the value of
the objecfof the sale.
EXISTENCE OF .SALE EVEN WHEN NO
PRICE IS AGREED ~PON
GENERAL RULE: ·when the price cannot be
determiri.ed in accordance with Articles 1469 to
14731 tfie rcqntract is inefficacious ("inefficacious"
means "th(;) inability to produce the effect wanted").
·EXCEPTION: The thing or a part thereof has been
delivered to and appropriated by the buyer, in which
case the buyer has to pay a reasonable price
therefor (CIVIL CODE, Art. 1474). It is based on the
fundamental principle that no one should enrich
himself at the expense of other.
Appropriation
"Acceptance" by the buyer, having treated the
subject matter as his own (VILLANUEVA, supra at
110).
Requisites for the Applicability of the Exception:
(MAD)
1. Meeting of the minds as to the subject matter;
2. Agreement that a price will be paid which fails to
meet the criteria of being certain or
ascertainable; and
3. _Qelivery by the seller and ·appropriation by the
buyer of the subject matter (Id. at 112).
 MEM✓Q~Y AID
San Beda Urwersity College of Law - RGCT Bar OperatiOns Canter
Reasonable Price is generally the market price at
the time and place fixed by the contract or by law for
the delivery of the goods (DE LEON, supra at 74).
FORMALITIES OF
CONTRACT OF SALE
GENERAL RULE: Contracts shall be obligatory in
whatever form they may have been entered into,
provided all the essential requisite for their validity
are present (CIVIL CODE, Art. 1356).
EXCEPTION: When the law requires that a contract
be in some form in order that it may be valid or
enforceable, or that a contract be proved in certain
way, that requirement is absolute and indispensable.
(CIVIL CODE, Art. 1356).
. / ··-• -- yl(°' -------------------
THE FORM OF SALE WILL AFFECT THE
VALIDITY UNDER THE FOLLOWING
CIRCUMSTANCES: (PLN)
1. In a sale of a _Eiece of land or any interest therein
through an agent, the authority of th~'_latter shall
be in writing; otherwise the sale shall be void
(CIVIL CODE, Art. 1874 )_ ··
If the proof of capacity cdhsists of special
power of attorney duly notarized; mere'
inspection of the face of such public dotument
already constitutes sufficient inquiry. If no• such
• special power of attorney is provided or4here is
one but there appears to be flaws ih jts not?rial
acknowledgment, mere inspectioh of the
document will not do; the buyer must' snow, that
his investigation went beyond the document and
into the circumstances of its execution. Article
1874 of the Civil Code provides that "when a
sale of a piece of land or any interest therein is
through an agent, the authority of the latter shall
be in writing; otherwise, the sale shall be void."
In other words, if the subject SPA was not
proven to be duly executed and authentic, then
it cannot be said that the foregoing requirement
had been complied with; hence, the sale would
be void (Heirs of Sarili v. Lagrosa, G.R. No.
193517, January 15, 2014).
2. Sale of!:arge cattle must be in writing otherwise
the sale will be void; and no sale of large cattle
shall be valid unless the sale is registered with
the municipal treasurer who shall issue a
certificate of transfer (CIVIL CODE, Art. 1581;
P.D. 533).
3. Sale of land by "_tlon-M11slim hill tribe cultural
minorities all throughout the Philippines" is void
if not approved by the National Commission on
Indigenous Peoples (AOMINJSTRA TIVE CODE
OF MINDANAO AND SULU, Sec. 145).
WHEN FORM IS IMPORTANT IN
ENFORCEABILITY: (PReY Form)
The following must be in writing to be enforceable:
1. Sale of fersonal property at a price not less than
Five Hundred Pesos (P500);
2. Sale of Real property or an interest therein
regardless of the price involved;
3. Sale of property or of an interest therein not to
be performed within a year from the date thereof
regardless of the nature of the property and the
price involved; and ·
4. When an applicable statute requires that the
contract of sale be in a certain Form (CIVIL
CODE, Arts. 1403 par. 2, [a, d and e], and 1356).
EXCEPTIONS:
1. When there is a note or memorandum in writing
O tc'<I and subscribed by the party charged or his agent
VI DE, Art. 1403);
e has been partial consummation of
th e sale ('0/VIL CODE, Art. 1403.);
3. When t,neire has been failure to object to the
preser:i,fation'; of evidence aliunde as to the
existence; of, a contract (Barretto v. Manila
Railroad :Co.,\G.R. No. L-21313, March 29,
i' 19, ' , VA, supra at 172); and
4. W' ·--· effected through electronic
commerc (RA 8792, The Electronic
Commerce Act, Sec. 6).
:1!\:$tatu_te of Frauds is applicable only to
executory contracts and not to contracts which are
totally or partially performed (OE LEON, supra at
144)- .
Statute of Frauds is inapplicable in a case of a verbal
sale that had been executed (Heirs of Alida v.
Campana, G.R. No. 226065, July 29, 2019).
NOTE: Article 1358 of the Civil Code requires that
the form of a contract that transmits or extinguishes
real rights over immovable property should be in a
public document, yet the failure to observe the
proper form does not render the transaction invalid.
The necessity of a public document for said
contracts is only for convenience; it is not essential
for validity or enforceability (Diampoc v.
Buenaventura, G.R. lVo. 200383, fvfarch 19, 2018j.
Even a sale of real property, though not contained in
a public instrument or formal writing, is nevertheless
valid and binding, for even a verbal contract of sale
or real estate; produces legal effects between the

parties. Consequently, when there is c1 uered in the
notarization of a document, the clear and convincing
evidentiary standard originaHy attached to a duly-
notarized document is dispensed with, and the
measure to test the validity of such document is
preponderance of evidence. Nevertheless, the
defective notarization of the deed does not affect the
validity of the sale of the house. Although Article
1358 of the Civil Code states that the sale of real
property must appear in a public instrument, the
formalities required by this article is not essential for
the validity of the contract but is simply for its greater
efficacy or convenience, or to bind third persons, and
is merely a coercive means granted to the
contracting parties to enable them to reciprocally
compei the observance of the prescribed form.
Consequently, the private conveyance of the house
is valid between the parties (Diampoc v.
Buenaventura, G.R. No. 200383, March 19, 2018).
IF NOTARY PUBLIC
AUTHORIZED
a
If the deed of sale of land is notarized~QY Nptary .
Public whose authority had expi,r;$d;:· ·· :i:lle~~ould
still be valid, since fdr validity ,i>'c l,h · "; a pl'.i6iic
instrument is not even essentjl!ili(~9t1;;,no v{ Latona;
G.R. No. L-3408, December ~3, 195£)). _·
;t ;:- if / The sale <$,f .'r~I property made by minors
IMPLIED IN.FACT CONT~f;T OF, SAl.;E
An Implied in Fact contract is oqe- ifnplied fr,om fads
and circumstances showing·"a}Jl'lqtua! inJei;iUon to
contract. It is a contract, the: e_xi?t~~ce ario tepYis of
which are manifested by conduct ohthe i:l~rti.e\ and
not by direct or explicit woi\ls betvv~en the,m>To
create contracts implied in fad, circu~tancesmllsl·
warrant inference that one expected coh1pensatiqn .
and the other to pay (University otJhe Phij/ppf.oes 'v: ' ,
PH/LAB, G.R. No. 152411, September 29, -'2'0Q.4)>
. . , .
;
CAPACITYTOBUYOR
SELL
I c. Sale by Insane or Demented Persons
GENERAL RULE: All persons, whether natural or
juridical, who can bind themselves, have legal
capacity to buy and sell (CIVIL CODE, Art. 1489,
Par. 1 (1)).
EXCEPTIONS:
1. ABSOLUTE INCAPACITY
-'-Persons who cannot bind themselves (DE;
LEON, supra at 184).
Minors, insane or demented persons, and deaf-
mutes, who do not know how to write, have no
SALES AND LEASE
Civil Law
l8y81 cctµacity to contract (CIVIL CODE, Art.
1327).
The contracts entered into by such legally
incapacitated persons are not void, but merely
voidable, subject to annulment or ratification
(CIVIL CODE, Art. 1390, Francisco v. Herrera,
G.R. No. 139982, November 21, 2002).
a. Purchase by a Minor
GENERAL RULE: The contract is voidable
{CIVIL CODE, Art. 1390, par 1).
EXCEPTION: Where necessaries are sold
and delivered to a minor or other person
without capacity to act, the incapacitated
person must pay a reasonable price therefor
(CIVIL CODE, Art. 1489_, par. 2).
Necessaries cover everything
.i,ndispensable for sustenance, dwelling,
cfbtl)Jng, medical attendance, education,
and 'transportation, in keeping with the
.. firian~iai· ,capacity of the family (FAMILY
. COQE, Arf.:194).
b. {>ale.by Minpr
Who haye~lr,ecipy passed the age of puberty
~nd adojescen~e and are near the adult age
When th~y pret~nd to have already reached
•th~ir mdjority, While in fact they have not,
' anq th(;i other; party had good reason to
.· _· qeliev~" that Jhe minor was capable of
. contracting, is' valid. The parties cannot be
. permitted a{t~rwards to excuse themselves
Jrom cor,i'pliance with the obligation
· assumeo by them ·or to seek their
\mhulrrient. (RULES OF COURT, Rule 131,
•~ec.,.2) and the principle of estoppel applies
?Mercado and Mercado v. Espiritu, G.R. No.
L-11872, December 1, 1917).
Contracts entered into during lucid intervals
by insane or demented persons are
generally valid. Contracts agreed to in a
state of drunkenness or during a hypnotic
spell are voidable (CIVIL CODE, Art. 1328).
2. RELATIVE INCAPACITY
-When certain persons, under certain
circumstances, cannot buy certain property
(Wolfson v. Estate of Martinez, G.R. No. L-5970,
October 13, 1911).
NOTE: Among people relalive!y incapacitated
are those mentioned in Articles 1490 and 1491
of the Civil Code (5 PARAS, supra at 90).
MEM:Ql{Y Al D
San 8eda lJniversity College of Law - RGCT Bar Operations Center
a. Husband and Wife
GENERAL RULE: A sale between husband
and wife is inexistent and void from the
beginning because such contract is
expressly prohibited by law (CIVIL CODE,
Art. 1409, par. 7).
NOTE: The prohibition applies to common-
law spouses. If the same rule is not applied,
"the condition of those who incurred guilt
would turn out to be better than those in
legal union. Here, the contract is void not
because it falls under Article 1490 but
because the Supreme Court deems such
contract as void for being contrary to morals
and public policy {Ching v. Goyangko, G.R.
No. 165879, November 10, 2006).
REASONS:
i. To prevent commission of fraud or
prejudice to third persons;
ii. To prevent one from unduly influencing
the other; and
iii. To avoid indirect donations (Medina. v;
Collector of Internal Revenue, G.R. no. ·
L-15113, January 28, 1961).
EXCEPTIONS:
i. Regime of separation of property
governs them; ..
ii. A judicial separation of property under
Article 135 of the Family Code has been
decreed (CIVIL,. CODE; Art, 1490, par.
2); . es of the principal, which are not
iii. Moderate gifts on the occas.ioh 6f family
rejoicing (FAMILY CODE, Art. 87).
NOTE: If the spouses had been lega_Uy
separated, there is no more prohibitiotr for
them to sell properties to one another for
they are now governed by the regime of
separation of property (PINEDA, Sales and
Other Special Contracts, (2010), p. 108
[hereinafter PINEDA, Sales)).
Persons Permitted to Question the Sale
between Husband and Wife:
i. Persons who bear such a relationship to
the spouses or to the property itself that
such transfer interferes with their rights
or interest (Cook v. McMicking, G.R. No.
L-8913, March 3, 1914), i.e., heirs of
either spouse, as we// as creditors at the
time of the transfer but not creditors who
became oniy s,uch after the transaction;
and
ii. The Government is always an
interested party in all matters governing
taxable transactions (Medina v. CIR,
G.R. No. L-15113, January 28, ·1961).
b. Incapacity by Reason of Relation to
Property (CIVIL CODE, Art. 1491)
The following cannot acquire property by
purchase, even at a public auction, either in
person or through the mediation of another:
(GAE-PJO)
i. ~uardian, with respect to the property of
his ward;
Reason: Relationship is so intimate, the
dependence so complete and the
influence so great that any transaction
between the two (2) parties entered
while the relationship exists are
suspicious, and presumptively
fraudulent (DE LEON, supra at 194).
ii. ~gents, with respect to the property
whose administration or sale may have
been entrusted to them, unless the
consent of the principal has been given;
REASON: The agent and the principal
form one juridical person (Id. at 195).
~ ·;'"
.er the termination of the relationship,
tf)e agent is not prohibited to purchase
:·a} property belonging to the erstwhile
· pr,inbipal (Valera v .. Velasco, G.R. No. L-
2~05~ March 13, 1928).
·s- he prohibited from buying
included among the properties of which
he was commissioned to sell (Moreno v.
• Vilonea, 40 O.G. 2322 as cited in DE
i"''liJitcLEON, sup~a at 151).
However, the agent may buy the
property placed in his hands for sale
and administration if the principal gives
his consent thereto (Cui v. Cui, G.R. No.
L-7041, February 21, 1957).
iii. Executor or administrator, with respect
to the property of the estate under
administration;
Executors do not administer hereditary
rights of any heir; hence, there is no
prohibition as to the purchase by an
executor of hereditary rights ,(Naval v.
Enriquez, G.R. No. 1318 April 12,
1904).
NOTE: With respect to Art. 1491 (1, 2,
and 3), the sale shall only be voidable
because in such cases only private
interests are affected (Wolfson v. Estate

of Martinez, G.R. No. L-5970, October
13, 1911).
The defect can be cured by ratification
of the seller (CIVIL CODE, Arts. 1392-
1396).
iv. _Eublic officers and employees, with
respect" to the properties of the
government, its political subdivisions, or
GOCCs that are entrusted to them.
The prohibition includes judges and
government experts who, in any
m~mner, take part in the sale.
REASON: To prevent the opening of
the floodgates to abuse, as it would be
very easy for such persons to justify
gain or advantage on the part of the
persons whom they represent.
Precisely to avoid such temptation and
quibbling, Article 1491 haiehtirely shut
the door to such p~r;,ons oc9upylng
fiduciary positions, to ~y~n, desire to
acquire, directly or iridirect\y, properties
of their ward, estate or principal, as the
case may be (VILLANUEVA,. supra at
62). . coriJh1gent ,fee is not made during the
v. Judges, justices, prosecuting attorneys,
clerks of courts,· etc., with respect to
property in cust9diaJegfs; and .
Prohibition with respect to Judges,
Justices . ,,2014).
It is not required th 9 t some c_ontest or
litigation over the property itselfoshould
have been tried by the jUdge; such
property is in litigation from the monient
that it became subject to ttie· judicial
action of the judge, such as levy on
execution (Tiangco v. Pabinguit, G.R.
No. L-10439, Octob.er 17, 1916).
Prohibition with Respect to Lawyers
For the prohibition to apply, the sale or
assignment of the property must take
place during the pendency of the
litigation involving the property. Where
the property is acquired after the
termination of the case, no violation of
paragraph 5, Article 1491 of the Civil
Code attaches (Sabidong v. Sofas, A.M.
No. P-01-1448, June 23, 2013).
A thing is in litigation if there is a contest
or litigation over it in court or when it is
subject of the judicial action (Conjugal
partnership of Sps. Cadavedo v.
SALES AND LEASE
Civil Law
Lacaya, G.R. No. 173188, January 15,
2014).
The prohibition on purchase is all
embracing to include not only sales to
private individuals but also public or
judicial sales (Ramos v. Ngaseo, A. C.
No. 6210, December 9, 2004).
Violation of this • prohibition would
constitute breach of professional ethics
and malpractice for which the lawyer
may be reprimanded, suspended or
disbarred from the practice of the legal
profession (Mananqui/ v. Villegas, A.M.
No. 243QAugust3~ 1990).
While contingent fee agreements are
indeed recognized in this jurisdiction as
a valid exception to the prohibitions
under Article 1491 (5) of the Civil.Code.
; •. this recognition does not apply to the
present case. A contingent fee
contr,,act is an agreement in writing
'.Where',the fee, often a fixed percentage
9f what may be recovered in the action,
is made to depend upon t_he success of
the · litigation. The payment of the
pendericy Qf the litigation involving the
client's jjroperty but only after the
judgment has been rendered in the case
han~led by the lawyer (9onjugal
partnership of Sps. Cadavedo v.
L,acaya, G.R. No. 173188, January 15,
, ,The fact that the property in question
was first mortgaged by the client to his
· lawyer and only subsequently acquired
by the latter in a foreclosure sale long
after the termination of the case will not
remove it from the scope of the
prohibition for at the time the mortgage
was executed the relationship of lawyer
and client still existed. To rule otherwise
would be to countenance indirectly what
cannot be done directly (Fornilda v.
RTC, G.R. No. 72306, October6, 1988).
Article 1491 (5) of the Civil Code
prohibits the purchase by lawyers of any
interest in the subject matter of the
litigation in which they participated by
reason of their profession. Here,
however, respondent lawyer was not
the purchaser or buyer of the property or
rights in litigation. For, in point of fact, it
was his son Julius, and not respondent
lawyer, who purchased the subject
 ~ ~ ~ !,: ~ ~
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ME~Q~Y AID
San Beda Unive,.sity CoMeye or Law RGCT Bar OperatiQns Center t l<f~
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property (S,mtos v. Armjario, AC No

8502, June 27, 2018).

vi. Any Qther person specially disqualified

I SALEBYNON-OWNER I
by law (CIVIL CODE, Art. 1491).
Ownership is necessary only at the time of delivery
NOTE: With respect to Art. 1491 (4, 5, and 6), (CIVIL CODE, Art. 1459). Thus, sale by non-owner
the sale shall be null and void; public interest is at time of perfection is valid.
involved (CIVIL CODE, Art. 1409, par. 1; Rubias
v. Batil/er, G.R. No. L-35072, May 29, 1973). When a person who is not the owner of a thing sells
or alienates and delivers it, and later the seller or
NOTE: The persons disqualified to buy referred grantor acquires title thereto, such title passes by
to in Articles 1490 and 1491 are also disqualified operation of law to the buyer or grantee (CIVIL
to become lessees of the things mentioned CODE, Art. 1434).
thereon (CIVIL CODE, Art. 1646).
PERFECTION STAGE:
Examples of Persons Especially Disqualified by
1. Sale by owner
Law:
-Valid
1. Aliens who are disqualified to purchase private
agriculturnl lands, unless by hereditary
2. Sale by non-owner
succession (intestate succession) (CONST. Art.
-Valid
XII, Secs. 3 and 7).

Where a land is sold to an alien who later sold it CONSUMMATION STAGE:

to a Filipino, the sale to the latter cannot be 1. Sale by owner
impugned. In such case, there would be no more ._. ;,-;The cqqtract is valid; the transfer of title is also
public policy to be served in allowing the Filipino / valictJ;ff ·
seller or his heirs to recover the lanp as it is
already owned by a qualified person (Vicente 2. Sale by.rfop-owner
Godinez v. Fong Pak Luen, G.R. No. L-36731, - The _contr~ct is valid because it has passed
January 27, 1983). perfection, stage; the transfer of title is void (Id.
at 322-323).
Aliens may still be lessees .even .if they. cannot
buy lands. Since the residehte of aliens in the GE~~Mb#lltE: Where goods are sold by a
person wnb'·is not the owner thereof, and who
Philippines is temporary, they may be granted
temporary rights such as a lease contract which does not sell them under authority or with the
is not prohibited by the Constitution (DE LEON, ·, ;consent of the owner, the buyer acquires no
supra at 736; Krivenko v. RegisterofDeed, G.R. · >'better title to the goods than the seller had
No. L-630, November 15, 1947). (CIVIL CODE, Art. 1505).

2. An unpaid seller having a right of lien or having
stopped the goods in transitu, who is prohibited
from buying the goods either directly or indirectly
in the resale of the same at a public or private
sale (CIVIL CODE, Art. 1533, par. 5).
3. The officer conducting the execution sale, or his
deputies cannot become a purchaser (RULES
OF COURT, Rule 39, Sec. 19).
NOTE: The prohibitions are applicable to sales in
legal redemption (CIVIL CODE, Art. 1619);
compromises (CIVIL CODE, Art. 2028); and
renunciations (CIVIL CODE, Arts. 6 and 1270).
REASON: Nemo dat quod non habet (nobody
can dispose of that which does not belong to
him).
l:.XCEPTIONS: (ERJ-MTA-CU)
a. Owner is _sstopped or precluded by his
conduct (CIVIL CODE, Art. 1505);
b. Sale· made by the ~egistered or apparent
owner in accordance with registration laws
(CIVIL CODE, Art. 1505);
c. Sales sanctioned by Judicial or statutory
authority (CIVIL CODE, Art. 1505);
NOTE: The government does not warrant
the title to properties ~-old by the sheritt at
public auction or judicial sales (see CIVIL
CODE, Art. 1570).

d. Purchases in Merchant's stores, fairs or
markets (CIVIL-CODE, Art. 1505, par. 3;
CODE OF COMMERCE, Arts. 85-86).
NOTE: To allow recovery would retard
commerce.
e. When a person who is not the owner sells
and delivers a thing, and subsequently
acquires Iitle thereto (CIVIL CODE, Art.
1434);
f. When the seller has a voidable title which
has not been Avoided at the time of the sale
(CIVIL CODE-:Art. 1506), provided that the
buyer acquires the goods-
a. In good faith;
b. For value; and
c. Without notice of the seller's defect of
title.
g. Sale by Co-owner of whole property 9r a
definite portion thereof (CIVIL. CODE;, Art.
493); . .
' . .,
NOTE: If a co-owne~ sells. ·the whole
property as his, the sale wH! a'ttectonly his
share, but not those of the other co-owners
who did not consent fothe sale. Only the
rights of the seller 'are tri;lpsferred: thereby
making the buyer a :co-()wrier of theproperty
(Tomas Claudio Memor(al_ College; Inc. v.
CA, GR. No: 124262. Qctober',12, 1999}.
:,, ~ _,_
h. Special rights of !J_npaid , selfe( (CIVIL
CODE, Arts. 1526-1533),
ARTICLE 1505 AND ARTICLE . 1506,
DISTINGUISHED
Article 1505 refers to sale with void tiU~, while
Article 1506 refers to a sale with voidable title.
SALE BY SELLER WITH VOIDABLE
TITLE
When a buyer buys a property from a seller with
voidable title to property, he acquires a good title to
the property if (CIVIL CODE, Art. 1506). . persons who choose are permitted to attend -and
Requisites: (GFA)
1. He buys it in Qood faith;
2. He buys it [or value; and
3. He is not Aware of the seller's defect of title.
REASON: Art. 1506 is predicated on the principle
that where loss has happened which must fall on one
of two innocent persons, it should be. borne by him
who is the occasion of the loss (DE LEON, supra at
261).
SALES AND LEASE
Civil Law
Illustration: "A" purchased a genuine Rolex watch
from "B'' who is a minor, "C" in turn purchased the
watch from "A". Although the title of "A" is voidable
due to minority of "B'', "C" became the owner ofthe
watch after it was delivered to him there being no
annulment of the purchase .made. The possible
remedy of "B'' is to go after "A".
TITLE AS TO MOVABLE PROPERTIES
GENERAL RULE: Possession of movable property
acquired in good faith is equivalent to title (CIVIL
CODE, Art. 559, par. 1).
EXCEPTIONS:
1. Owner lost the movable
- Owner may recover the movable without
reimbursement (CIVIL CODE, An. 559, par. 1.);
and
2. Owner is unlawfully deprived of the movable
· :._ .·Owner may recover the movable without
reimbursement (CIVIL CODE, Art. 559, par. 1).
.
.On1Jwtul·Deprivation
It is .when ,.· h:1.e orig~nal owner has been
disposs~sseiL without his consent (Dizon v.
Sunfay, G.R.. No. L-30817, September 29,
1972). It if)Cllides. not only cases of theft or
robbery, but also those occasioned by swindling
or estafa (Del Ro:;a.rio v. Lucena, G.R. No. L-
9,
3546, September1 1907).
EXCEPTIONS TO TAB EXCEPTIONS:
1. The. ·person wh6 possesses the movable
pfi;Jperty has acqdired the same in good faith at
.. a public 'sale (CIVIL CODE, Art. 559, par. 2);
.NOTE: · The' owner cannot obtain its return
without. reimbursing the price paid therefor
(CiV)L CODE, Art. 559, par. 2).
2. The buyer bought the movable at a merchant
store (CIVIL CODE, An. 1505).
PUBLIC SALE
A sale of property at auction, where any and all
offer bids (BLACK'S LAW DICTIONARY).
Store is any place where goods are kept for sale,
whether by wholesale or retail (5 PARAS, supra at
132).
 fii8¥&wi& \ I
MEM:Q~Y AID
San Beda Unflrorsity College of Law - RGCT Bar Oparatiol')s Center
EFFECTS ON THE
CONTRACT WHEN THE
THING SOLD HAS BEEN
LOST
EFFECT OF LOSS OF THING AT THE
TIME OF SALE:
1. Thing Entirely Lost
- The contract shall be without any effect (CIVIL
CODE, Art. 1493, par. 1). Where the thing is
entirely lost at the time of perfection, the contract
is inexistent and void (CIVIL CODE, Art. 1409,
par. 3) because there is no object (CIVIL CODE,
Art. 1318, par. 2).
The thing is lost when it perishes, or goes out of
commerce, or disappears in such a way that its
existence is unknown, or it cannot be recovered
(CIVIL CODE, Art. 1189, par. 2). . .
\t;,
2. Thing Partially Lost
- If the subject matter is only partially lost, the
vendee may elect between:
a. Withdrawing from the contract; or
b. Demanding the remaining part of the object,
paying its price in proportion to the sum
agreed upon (CIVIL CODE, Art.. 1493, par.
2).
EFFECT OF LOSS IN CASE OF SPECIFIC
GOODS
Specific Goods - Goods identified arid agreed
upon at the time a contract of sale is made (CIVIL
CODE, Art. 1636, par. 1).
Where the specific goods, without the knowledge of
the seller, have perished in part or have wholly or in
a material part so deteriorated in quality as to be
substantially changed in character, the buyer may:
1. Rescind or withdraw from the contract; or
2. Give it a legal effect, paying the proportionate
price of the remaining object (DE LEON, supra
at 207).
Divisible Sale: Option 2 is available only if the sale
is divisible (CIVIL CODE, Art. 1494, par. 2). A
contract is divisible when its consideration is made
up of several parts (CIVIL CODE, Art.1420).
Indivisible Sale: It is believed that the buyer should
be made to pay only the proportionate price of the
remaining goods as provided for in Art. 1493(2) of
the Civil Code. If the sale is indivisible, the object
thereof may be considered as a specific thing (DE
LEON, supra at 207).
NEGOTIABLE
DOClTMENTS
O.FTITLE
DOCUMENT OF TITLE
It is a document used in the ordinary course of
business in the sale or transfer of goods:
1. As a proof of the possession or control of the
goods; or
2. Authorizing or purporting to authorize the
possessor of the document to transfer or
receive, either by endorsement or by delivery,
goods represented by such document (CIVIL
CODE, Art. 1636).
KINDS:
. 'f.i ;,:J;ljll of}(~ding
·· '.:_;A tib'cu~ent that serves as evidence of receipt
of goods:for shipment issued by a common
fa
carrier._ It :an instrument of two-fold character.
It is ai ohce a receipt and a contract. In the
former character it is an acknowledgment of the
receipt of the property on board his vessel by the
ov,i;ri~! -~~.131. The receipt of the goods lies
at tha, 't,t,n of the contract to carry and
deliver(PINEDA, Sales, supra 146);
S;2. , Dock Warrant
3
· i A.;Warrant given by dock-owners to the owner
of merchandise imported and warehoused on
the dock upon the faith of the bills of lading as a
recognition of his title to the goods (DE LEON.
supra at 264);
3. Warehouse Receipt
- A document of title issued by a
warehouseman. It is a receipt wherein it is stated
that certain goods were received by the bailee to
be delivered to the bearer or to the order of any
person named in such receipt or to a specified
person (DE LEON, supra at 264); and
4. Quedan
- A warehouse receipt that covers sugar,
tobacco, riCe or hemp (Philippine Legal
Encyclopedia, p. 811).
NEGOTIABLE DOCUMENT OF TITLE
A document of title in which it is stated that the goods
referred to will be delivered to the bearer, or to the
 SALES AND LEASE
Civil Law

order of any person named in such document (CIVIL convey to a purchaser in good faith for value;
CODE, Art. 1507). and
2. Direct obligation of the bailee issuing the
HOW NEGOTIATED: document to hold possession of the goods for
him according to the terms of the document as
1. By Delivery
fully as if such bailee had contracted directly with
a. Where by the terms of the document, the
him (CIVIL CODE, Art. 1513).
one issuing the same undertakes to deliver
the goods to the bearer (CIVIL CODE, Art.
1508, par. 1); or UNAUTHORIZED NEGOTIATION
b. Where by the terms of the. document, the As between the owner of a negotiable document of
one issuing the. same undertakes to deliver title who indorsed it in blank and entrusted it to a
the goods to the order of a specified person. friend, and the holder of such negotiable document
and such person or a subsequent endorsee of title to whom it was negotiated in good faith and
has indorsed it in blank or to the bearer for value, the latter is preferred, under the principle
(CIVIL CODE, Art. 1508, par. 2). that as between two innocent persons, he who made
the loss possible should bear the loss ( Siy Cong
Mere delivery without indorsement is sufficient if Bieng v. Hongkong and Shanghai Banking Corp,
the document is deliverable to the bearer. G.R. No. 34655, March 5, 1932).
However, even though the document is
deliverable to the order of a specified pers.Qn, if · A pyrchaser in good faith is one who has purchased
the latter indorsed it in blank by simply slgning the,pr9pezly in good faith without notice of the defect
his name without specifying any p~~o11Jo;whom .. 'dfJhe)itl~ 6Ntie seller and for valuable consideration
the goods are to be delivered or ifidor'sedJi-to · · ··(lnquimbpy,v. Vqa. De Cruz, G.R. No, L-13953, July
bearer, the document may now.tienegg,tiafed by 26, 1960). . .
mere delivery (PINEDA, Sq/;$, stipr.a'al 149)'_··· .
-,
- .
' '
.
l-,. :-~"~~,~ k,,./r ~
,,c· ,, THE VAL101tv ·oF THE NEGOTIATION
2. By Endorsement and:'Deli~ ! OF A't NE(?OTIABLE DOCUMENT OF
- The endorsement may beJD rflank, to..bearer, TITLEIS NOT IMP~IRED BY THE FACT:
or to a specified per~o,o·-fC{;VIL CQDE,_ Art.
1509). ' . ····· . 1. -· Thaf the negotiatiort,: was a breach of duty on the
partot the person making the negotiation; or
If indorsed to a specifieJ ;i;$0~,
it
negotiated by endorsem~nf Qt.such p~rspn in
ma}-be
again 2. That !he-ow~er of the document was deprived of
tbe possesikm onhe same by loss, theft, fraud,
Afocfdent, mistake, duress or conversion, if the
blank, to bearer or to arioflier s'r?ecified r:ier~on
(CIVIL CODE, Art. 1509).\ \,. .
pers6n to whom the document was negotiated
or a ~rson to whom the document was
sub_s.equently r1egotiated paid value therefor in
WHO MAY NEGOTIATE:. ,good fajth without notice of the breach of duty or
1. The owner of the document (i-.e,.,the .person to ... ' l9~s,, t~eft,'fraud, accident, mistake, duress or
whom it was originally issued); or ··0 ,c ·· ·C:Onv,ersion (CIVIL CODE, Art. 1518).
2. Any person tci whom the possession drc4_stody
of the document has been entrusted b:t the ·11 is in protecting the rights and contractual
owner if: expectations of a buyer in good faith that the law
a. By the terms of the document, the goods are encourages the public to accept by way of
deliverable to the order of the person to negotiations and at face value negotiable
whom the possession or custody of the documents of title (VILLANUEVA, supra at 284).
document has been entrusted; or
b. By the time of such entrusting the document NEGOTIABLE INSTRUMENT V.
is in such form that it may be negotiated by
delivery (CIVIL CODE, Art. 1512).
NEGOTIABLE DOCUMENT OF TITLE
f·:;';... NEGOTIABLE •' : '." NEGOTIABLE , :-
EFFECTS OF NEGOTIATION ::ff . INSTRUMENT · , DOCUMENT OF TITLE ,
A person to whom the document is negotiated
acquires:
.f},. As_to Function .
1. Title to the goods as the person negotiating the It operates as. a It operates as proof of
document to him had or had ability to convey to substitute for money. the possession or
a purchaser in good faith for value, and also control of the goods.
such title to the goods as the person to whose Authorizes or purports
order the goods were to be delivered by the to authorize the
terms of the document had or had ability. to
 .....
-,,
MEM✓Q,RY AID
San Booa University CoRege of Law - ROCT Bar Operations Cente,

trnnsferee no cJdditioncJI right (CIVIi CODE, Art.

1511).

possessor of the The term "negotiation" is used with respect to

document to transfer or documents negotiable in form while non-negotiable
receive, either by documents may simply be transferred thing (DE
endorsement or by LEON, supra at 269).
delivery, goods
represented by such A non-negotiable document contains terms wherein
l11e yuuus are deliverable to a specified person. In
document (CIVIL
CODE, Art. 1636). contrast, the terms of a negotiable document provide
that it is deliverable to the bearer, or to the order of
any person named in the document (DE LEON,
supra at 265).
Governed by the Governed by the Civil
Negotiable Instruments Code, and in some EFFECTS OF TRANSFER
Law cases, by the A person to whom the document is assigned
Warehouse Receipt acquires:
Law and the Code of 1. The title to the goods, subject to the terms of any
Commerce agreement with the transferor; and
2. The right to . notify the bailee who issued the
document of the transfer and also acquire the
direct obligation of such bailee to hold
/:~>;.
A bearer· instrument is The special tt?t possession of the goods for him according to the
always a bearer endorsement of a. ,3'/# terms ofJhe document (CIVIL CODE, Art. 1514,
instrument even if a bearer instrument has ,}tc1I;,,,;0z:f:'p?(!Iik{f~c;i 2).
special endorsement is the effect of converting
made (NEGOTIABLE the bearer .• instrument NOTE: Ndtification is an operative act to transfer
INSTRUMENTS LAW, into an order instrument the titl~/cir possession of the goods in favor of
Sec. 40). (OE LEO(',J,>supra
267). ·.. .
at the transforee.

Befote notification, the bailee is not bound to

tral'i~
" • >ht may be defeated by a levy
or a,.
,;or execution upon the goods by
the creditor of the transferor or by notification to
The instrument is no If words "non- ., ....... 1;>uch bailee of the subsequent sale of the goods
longer negotiable. negotiable" or _the like ;•i;l,~l;;/;;;;~(<lrlYILCODE, Art. 1514, par. 3).
are placed . on . the ~·;:,?;f ;:/.::,::>:>;.~--;,;/i\1>~7'.f /'y
document, such There is no legal relationship between the
document may assignee and the bailee until the latter is
nevertheless be informed by the former of the assignment of the
negotiated by the holder document of title (VILLANUEVA, supra at 285).
(CIVIL CODE, Art.
1510). TRANSFER OF ORDER DOCUMENT
WITHOUT INDORSEMENT
NON-NEGOTIABLE DOCUMENT OF This article specifies the rights of a person with
TITLE whom an order document of title, which may not be
A document of title which does not state that the properly be negotiated by mere delivery, has been
goods referred to document are deliverable either to delivered, without indorsement.
bearer or to the order of any person named 1. Right to the goods as against the transferor; and
(VILLANUEVA, supra at 279). 2. Right to compel the transferor to indorse the
document.
HOW TRANSFERRED OR ASSIGNED The negotiation shall take effect as of the time when
A document of title which is not in such form that it the indorsement is actually made (CIVIL CODE, Art.
can be negotiated by delivery may be transferred by 1515) .
the holder by delivery to a purchaser or donee. A
non-negotiable document cannot be negotiated and NOTE: If the Intention of the parties is that the
the endorsement of such a document gives the document should be merely transfer, the transferee

has no right to require the transferor to indorse the
document (DE LEON, supra at 277).
WARRANTIES ON NEGOTIATION OR
ASSIGNMENT
A person who negotiates or transfers a document of
title warrants that: {MINT-G)
1. The goods are ,Merchantable or fit for a particular
purpose;
2. He has knowledge of no fact which would !mpair
the validity or worth of the document;
3. He has a legal right to !:!egotiate or transfer it;
4. He has a right to Iransfer the title to the goods;
and
5. The document is Qenuine (CIVIL CODE, Art.
1516).
The endorsement of a document of title shall not
make the endorser liable for any failure on the part
of the bailee who issued the document or previous·
endorsers thereof to fulfill their respective
obligations (CIVIL CODE, Art. 15:/7) . .. The
indorsement of a document of title inthe law bn sales
is merely a conveyance of tht:1 't:lo~u117ent ·by thy
transferor to the holder. It is• not 'a' iontract of
guaranty (DE LEON, supra at 279}, · '
NOTE: The warranties of one wtfo negotiates a
negotiable document of title, andol)e who assigns a
non-negotiable document of tit!~ are the same
(VILLANUEVA, supra at 311) ...
RULES ON LEVY / GARNISHMENT- OF
GOODS
1. Negotiable Documenfof Title',, . stipulati6n to the contrary ( CIVIL CODE, Art.
Goods cannot be attached' by garri'lshmenf,or .
levied, unless:
a. The document is first surren'deJed;
b. The negotiation of the documentis enjoiped:
or
c. The document is impounded by the court
(CIVIL CODE, Art. 1519).
A creditor whose debtor is the owner of a
negoti<;1ble document of title shall be entitled to
aid from the courts of appropriate jurisdiction by
injunction and otherwise in attaching the
document or in satisfying the claim by means
thereof as is allowed at law or in equity in regard
to property which cannot be attached or levied
upon by ordinary legal process (CIVIL CODE,
Art. 1520).
2. Non-Negotiable Document of Title
It cannot be negotiated but ii can only be
transferred or assigned by delivery. Even if the
document is indorsed, the transferee acquires
no additional right
SALES AND LEASE
Civil Law
Prior to notification of the bailee at the trans1er
of document of title, the title of the trans(<0ree to
the goods may be defeated by levy of
attachment of execution (CIV./L CODE, 1514,
par. 3).
OBLIGATIONS OF THE
VENDOR
OBLIGATIONS OF THE VENDOR:
(ADDED-ME NT)
1. ~ccord the buyer the right to examine the goods
(CIVIL CODE, Art. 1584);
2. Q.eliver the thing sold (CIVIL CODE, Arts. 1458
and 1495)-cannot be waived;
3. :J!eliv~r the fruits and accessories (CIVIL CODE,
/ \ Afis./11,64, 1166, and 1537);
-4 .. ' !;nter into·a~ontract with t~e carrier on behalf of
the buyl=!r .:i's may be reasonable under the
circCfmsfence:;; '(CIVIL CODE, Art. 1523);
5. Take care,pfttie'thing, upon perfection and prior
to d~livery,, -with the proper Q.iligence of a good
a:
father of faniil~ (CIVIL CODE, Art. 1163;
ViL(ANUEV,A,.sup'ra at 195);
6. _Mak!3 warranties. {CIVIL CODE, Aris. 1495,
1545-1581F:;can: f;ie waived or modified;
. "".atrqnty is, not an essential element of the
t
cdnfract of sale-;' '
7; .. ~a/'.fur t~t gxp~ses for the execution and
r~gistrati9h of .the sale, unless there is
148,7):
8. ~ofify )he ,buyer regarding the necessity to
i{isure,gooi:ls if it is usual to insure them (CIVIL
OOD,'{i{'Arl. 1523); and
9. Iransfer ownership (CIVIL CODE, Arts. 1458
and 1495}-cannot be waived.
TRANSFER OF OWNERSHIP (CIVIL CODE,
Arts. 1458 and 1495)
GENERAL RULE: Ownership of the thing sold is
acquired only upon its delivery, actual or
constructive, to the buyer even if purchase was
made on credit (Alcantara-Daus v. Sps. De Leon,
GR. No. 149750, June 16, 2003).
Payment of the purchase price is not essential to the
transfer of ownership, as long as the property sold
has been delivered (Sampaguita Pictures, Inc. v.
Jalwindor Manufacturers, Inc., GR. No. L-43059,
October 11, 1979).
Non-payment only creates a right to demand
payment or to rescind the contract, or to criminal
prosecution in the case of bouncing checks (EDCA
 ea e \ '
ME~Q~Y AID
San Beda University Co»ege of Law - RGCT Bar Operntions Center
Publishing and Distributing Co,p. v Santos, G. R.
No. 80298, April 26, 1990).
EXCEPTIONS (Cases Where There is
Reservation of Ownership Despite Delivery):
(PRANC)
1. e,actum reservati dominii ( contractual
reservation of title)
- In sale, the general rule is that delivery of the
thing transfers ownership to the buyer ( CIVIL
CODE, Art. 1477). HowAvP.r, thA rcirties moy
agree that the ownership shall remain with the
seller until the full payment of the purchase price
(CIVIL CODE, Art. 1478).
2. Implied Reservation of Ownership under A_rticle
1503:
a. Where goods are shipped and, by the bill of
lading the goods are deliverable to the
seller, or his agent. or to the order of the
seller or agent-seller reserves ownership in
the goods;
b. Where goods are shipped, and by the bill of·
lading the goods are deliverable to the orde.r
of the buyer or his agent, but the possession
of the bill of lading is retained by the seller
or his agent-seller reserves a right to the
possession of the goods; and
c. Where the seller of the goods draws on the
buyer for the price and transmits the bill of
lading and bill of exchange to the-buyer to
secure acceptance or paynient of the bill of
exchange and the buyer does not honor the
bill of exchange. Here, the seller is the
drawer and the buyer is the qrawee. If the
buyer, as drawee, does not honor the bill of
exchange, he shall return the bill of lading.
If he retains the same, he acquires no added
right thereby.
3. Sale on 8cceptanceltrial/approval/satisfaction
(CIVIL CODE, Art. 1502).
Ownership passes to the buyer only when:
a. He signifies his approval or acceptance to
the seller or does any act adopting the
transaction; or
b. He does not signify his approval or
acceptance but retains the goods without
giving notice of rejection, then if a time has
been fixed for the return of the goods, on the
expiration of such time, and, if no time has
been fixed, on the expiration of a reasonable
time (CIVIL CODE, Art. 1502, pars.1 and 2).
NOTE: In "Sale or Return," ownership passes to
the buyer on delivery, but he may revest the
ownership in the seller by returning or tendering
the goods within the time fixed in the contract, or
if there is no time fixed, within a reasonable tinie
~ ~ ~
11
·:({ : • I ': : l ' > : J / ' r > :
.,, \"' ',
·:
~ ,,~,,,·
, ' : • ; ' ,c·,
- ','.i.~~ ~
,549
~ ,,.,
(CIVIL CODE, Art. 1502, par. 1). What is
reasonable is a question of fact. It depends upon
the prevailing circumstances. Moreover, the
decision to return or tender on the part of the
buyer is discretionary on his part without
reference to the quality of goods (PINEDA,
Sales, supra at 125).
4. Sale by a !:!on-Owner
- The contract is valid because it has passed the
perfection stage, but the transfer of title is void.
Rationale: Nemo dat quod non habet (nobody
can dispose of that which does not belong to
him) (Gochan v. Heirs of Baba, GR. No.
138945, August 19, 2003).
5. f ontractto sell (Coronel v. CA, GR. No.
103577. October 7, 1996).
DELIVERY OF THE THING SOLD (CIVIL
CODE, Aris. 1458 and 1495)
It is a mode of acquiring ownership, as a
consequence of certain contracts such as sale, by
virtue of which, actually or constructively, the object
i9'.: ,,p)aced in,. the control and possession of the
;veifd~tlf, , e'.:f}
Seller is boy~d: to deliver all goods unless delivery
by installment' hf.ls been agreed upon ( CIVIL CODE,
Art. 1583). -.
to, deliver the thing sold and its
Ct'lSsories in the condition in which
they were·il ·~ perfection of the contract (CIVIL
CODE, Art. 1537).
;tiil~t~E~Y IN CASES OF EXECUTION
SALES
The judgment debtor in an execution sale is not
obliged to deliver the property sold to the buyer
immediately after the sale since he is given the right
of redemption. He can redeem the property within
one (1) year from the registration of the sale in the
Office of the Registry Property (Techico v. Serrano,
GR. No. L- 12693, May 29, 1959).
It is only after the lapse of one (1) year from the
registration of the sale that the buyer may take
possession of the property. If the seller refuses to
surrender possession of the property, the buyer may
petition the court for a Writ of Possession (PINEDA,
Sales: supra at 113).

KINDS OF DELIVERY: (DAD-QTL)
1. Qelivery through document of title ( CIVIL CODE,
Arts. 1507-1520);
2. ~ctual or Real (CIVIL CODE, Art. 1497);
3. Qelivery through carrier ( CIVIL CODE, Art.
1503);
4. Quasi-tradition (CIVIL CODE, Art. 1501);
5. Iradition by operation of law ( CIVIL CODE, Art.
1434); and
6. .!:,egal or Constructive (CIVIL CODE, Art. 1498-
1500).
ACTUAL OR REAL
Placing the thing under the control and possession
of the buyer ( CIVIL CODE, Ari. 1497).
LEGAL OR CONSTRUCTIVE
Delivery is represented by other signs or acts
indicative thereof. It is a delivery by fiction of law.
Under Article 1496 of the Civil Code,. constructive
delivery can take several forms, and' may qe \my
"manner signifying an agreement.··. that . the
possession is transferred from the ,vendor.to the
vendee." The essence of mos! fq:rms of,.const(uctiye
delivery is the existence of an agreementbetweeri
the seller and the buyer, and th.at the latter is
understood to have control pf !lie s'ubject :matter of
the sale (VILLANUEVA, supra at 290). ·
Requisites: (ACI) . . .
1. The seller must ~ave ~9tya1, "possessior arid
control over the thing; ·.. · • C · ..
2. The object must be placed undet Contrpl of the
vendor; and "'.""_ · ···
3. There must be an !ntentiori to deliver.the thing
for purposes of transferring ownership. ··. . · ·
NOTE: (31'S OF DELIVERY)
1. Identity
- The very same object must be delivered. The
absolute giving up of control and custody of the
property on the party of the vendor and the
assumption of ·the same by the vendee
(Equatorial Realty Development, Inc. v. Mayfair
Theater, Inc., G.R. No. 106063, November 21,
1996);
2. Integrity
- A seller's duty is to deliver the thing sold in a
condition suitable for its enjoyment by the buyer
for the purposes contemplated (Consing v. CA,
G.R. No. 78272, August 29, 1989); and
3. Intentional
- Toe act of delivery must be coupled with the
intention of delivering the thing and putting the
SALES AND LEASE
Civil Law
buyer under control (Santos v. Santos, GR. No.
133895, October 2, 2001 ).
NOTE: In all forms of delivery, it is necessary
that the act of delivery, whether constructive or
actual, should be coupled with the intention of
delivering the thing. The act, without the
intention, is insufficient. .. Without that intention,
there is no tradition (Union Motor Corporation v.
CA, GR 117187, July 20, 2001). .
TYPES:
1. Delivery by Execution of Public
Instrument (CIVIL CODE, Art. 1498, par. 1)
- It gives rise to a prima facie presumption of
delivery, which is destroyed when actual
delivery is not effected due to legal impediment
(Ten Farly Realty v. Cruz, G.R. No. 151212,
September 10, 2003).
,:,,
Tne . potarized deed of sale has two
fµnction~.:
. ;:3: Ll.ope~ates as a formal or symbolic delivery
9f thejjroperty sold; and
b. lf'authorizes the buyer to use the document
',as pr9of;o( OV{nership (VILLANUEVA, supra
at201J.' ··
Exc~ptions (Case's Where the Ex~cution of
Public lnsttument Does NOT Produce the
Effect~ of q,eHvefy):
a. · There is a stipulation in the instrument to the
contrary. ·
Instances where contrary stipulation is
present:
i.: A certain date is fixed for the purchaser
to take possession of the property
subject of the conveyance;
ih" In sale by installments, where it is
stipulated that until the last installment is
made, the title to the property should
remain with the seller;
iii. When the seller reserves the right to use
and enjoy the property until the
gathering of the pending crops; or
iv. Where the seller has no control over the
thing sold at the moment of the sale,
and, therefore, its material delivery
could not have been made (Villamar v.
Mangaoil, G.R. No. 188661, April 11,
2012).
b. When at the time of the execution of the
public instrument, the subject matter was
not subject to the control of the seller or
there is an impediment that ma:4 prevent the
passing of tl)e property.
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If, notwithstanding the execution of the
instrument, the purchaser cannot have the
enjoyment and material tenancy of the thing
and make use of it himself or through
another in his name, because such tenancy
and enjoyment are opposed by another, the
delivery has not been effected. It is not
enough for the vendor to vest unto the
vendee the ownership and the right of
possession over the property, but it must
also be placed in his control (Addison v.
Felix, G.R. No. L-12342, Aug-ust 3, 1918).
c. The control or ability to transfer physical
possession and enjoyment does not subsist
for a reasonable length of time after the
execution of the instrument (Cebu Winland
Development Corporation v. Ong Siao Hua,
G.R. No. 173215, May 21, 2009).
The absence of control for a reasonable
length of time after execution would create
undue burden on the part of the buyer w_ho
would be compelled to literally jump into ttie
possession of the subject matter soon affo"r• · •. fi'';
signing the instrument, for he would then
obtain no remedy from the seller
(VILLANUEVA, supra at 0 J- 2 7
Since tradition is an obligation on fhe part of
the seller, then the burden must continue to
lie with the seller to gr~nt the buyer a
reasonable period to tak,e possessiq11 of the
subject matter (Vda. de Sa_rjpiento v,
Lesaca, G.R. No. L-15385, Ju!],ff!,:J0J'.1960).
2. Traditio Symbolica
To effect delivery, the parties may µse a to~(;ln
- or symbol to represent the thing delivered (e.g.,
key to a house) (CIVIL CODE, Art. 149§), ..
3. Traditio Longa Manu (Long
Delivery)
Delivery of a thing by mere agreement where the
seller points out to the buy~r the property without
the need of actually delivering (as when the thing
sold cannot be transferred to the possession of
the vendee at the time of sale) but must be within ·
the sight of the parties (CIVIL CODE, Art. 1499).
NOTE: The delivery "by mere consent or
agreement of the contracting parties" is qualified
by the phrase "if the thing sold cannot be
transferred to the possession of the vendee at
the time .of the sale (DE LEON, supra at 231 j.
4. Traditio Brevi Manu (Short
Delivery)
Before the contract of sale, the would-be buyer
was already in possession of the would-be
subject matter of the sale by virtue of another
title which is not ownership (e.g., as lessee), and
pursuant to a sale, he would now hold
possession in the concept of an owner (CIVIL
CODE, Art. 1499).
NOTE: Article 1499 expressly applies to
movable property. This notwithstanding, traditio
longa manu and tradition brevi manu, apply to
immovable property.
5. Traditio Constitutum Possessorium
Opposite of Traditio Brevi Manu (DE LEON,
supra at 231). The delivery consists in the
owner's continuous possession of the property
he had already sold to another person, but his
present possession is no longer that of an owner
but under another capacity, like that of a lessee,
depository, etc. Under this kind of- tradition, the
law considers all these formalities to have taken
place by agreement of the parties (Carbonell v.
CA, GR. No. L-29972, January 26, 1976). There
is both constructive and actual delivery in
tradition constitutum possessorium (CIVIL
CODE, ~rt. 1500).
i~)ft,e:,;':S':: .. :~~k,
· QUA.Sf::TR"!D/T/O
Delivery of ,rlghts, credits or incorporeal property,
made by: _ · ·
1. Execution ofa public instrument; or
2. Placi~g titles of ownership in the possession of
the vendee; or,
Th ··- , · _"·ment by the buyer of the rights
pert· 'e incorporeal property, with the
seller's consent (CIVIL CODE, Art. 1501 ).
UJON BY OPERATION OF LAW
.,. "'-~·. , '--~
When a non-owner who sells and delivers a thing
subsequently acquires title thereto, the title passes
by operation of law to the buyer ( CIVIL CODE, Art.
Hand 1434).
DELIVERY THROUGH DOCUMENT OF
TITLE (CIVIL CODE, Arts. 1507-1520)
Please see the discussion on Negotiable
Documents of Title on page 545.
DELIVERY THROUGH CARRIER
GENERAL RULE: Where the seller is authorized or
required to send the goods to the buyer, delivery to
the carrier constitutes delivery to the buyer (CIVIL
CODE, Art. 1523).
EXCEPTIONS:
1. When a contrary intention appears (i.e., the
Hand parties did not intend the delivery of the goods
through the carrier); or

L. Implied reservation of ownership (CIVIL CODE,
Art. 1503, pars. 1, 2 and 3).
KINDS OF DELIVERY TO CARRIER:
1. F.A.S. (Free Alongside Vessel)
The seller pays all charges and bears the risk
until the goods are placed alongside the vessel.
2. F.O.B. (Free on Board)
Goods are to be delivered t, ee ot expense to the
buyer to the point where they are F.O.B. The
point off .O.H. (either at the point of shipment or
the point of destination) determines when the
ownership passes.
a. F.0.B. Shipping point-delivery of the
goods to the carrier is equivalent to delivery
to the buyer, and at that point the risk of loss
pertains to the buyer.
b. F.0.8. Destination---0nly when the vessel ,
has arrived at the point of destin 9 tioh would
there be delivery to the buyer; and prior to
that point in time, the ri:.;k' 'of loss will be
borne by the seller. ·· · · other party i$ not present or even if present, is not
3. C.I.F. (Cost, Insurance, Freight)
It signifies that the price fixed cov~rs the costs of
the goods, the expenses of the freight and the
insurance all of which are to:he paid by the seller
up to the point of destination_: t
4. C.O.D. (Collect on D~liv~,j) . would be deemed to. have waived the seller's
The carrier acts for the seller in,. collecting
purchase price, which the buyer must pay to
obtain possession of the. goods (DE LEON,
supra at 293-295).
NOTE: The terms F.O.B. and C.O:Q, 1TJerely make
rules of presumption, which yield to proof of contrary
intention (General Foods Corp. v. National Coconut
Corp., G.R. No. L-8717, November 20, 1956).
INSTANCES WHEN THE VENDOR IS
NOT BOUND TO DELIVER:
1. If vendee has not paid him the price (CIVIL
CODE, Art. 1524);
EXCEPTION: If parties stipulated on different
periods for delivery and payment of price,
vendor must deliver on the time agreed on
despite non-payment of price at the time of
delivery as price is considered due only upon the
expiration of the term agreed on ( CIVIL CODE,
Art. 1193).
2. If no period for payment has been fixed in the
contract (CIVIL CODE, Art. 1524); or
SALES AND LEASE
Civil Law
3. A period for payment has been fixed in the
contract but the vendee has lost the right to
make use the term as provided in Article 1198
(CIVIL CODE, Art. 1536).
PLACE OF DELIVERY:
1. The place of delivery agreed upon;
2. In the absence of an agreement, place is
determined by usage of trade;
3. In the absence of an agreement and there is also
no prevalent usage, the seller's place ot
business;
4. In any other case, the place ot delivery is the
seller's residence; or
5. In case of specific goods known by the parties at
some place at the time of the perfection of sale,
such is the place of delivery, in the absence of
agreement or usage of trade to the contrary
(CIVIL CODE, Art. 1521).
Wherever the proper place of delivery may be, either
party acquires a right of action by being ready and
willing at that place to perform his legal duty, if the
prepared tc(perform in a proper manner with what is
incumbent upon him (CIVIL CODE, Art. 1169, par.
3).
Where, however, the delivery was not effected at the
place specified in the contract, but the buyer
accepted the goods iNlthout complaint, the buyer
failure to deliver according to the terms of the
contract and would be. liable to pay the price agreed
upon (Sullivan v. Gird, 22 Ariz. 332 as cited in DE
LEON, supra at 284).
TIME OF DELIVERY:
1. Agreement of the parties; or
2. In the absence thereof, within a reasonable time
(CIVIL CODE, Art. 1521, par. 2).
Hour of delivery
The demand or tender of delivery to be effectual
must be made at a reasonable hour of the day (CIVIL
CODE, Art. 1521, par. 4)
DUTY OF SELLER TO PUT GOODS IN
DELIVERABLE CONDITION
· Unless otherwise agreed, the seller bears the
expenses to place the thing in a deliverable state
(CIVIL CODE, Art. 1521, par. 5).
How does an "as-is where-is" type of sale affect
the vendor's obligation to deliver?
The phrase "as-is where-is" basis pertains solely to
the physical condition of the thing sold, not to its
legal situation, and therefore does not amount to a
waiver on the legal defects pertaining to the subject
 \ I

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matter (NOC v. Madrigal Wan Hai Lines Corp., G.R. price; such sale derends upon the discretion of the
No. 148332, September 30, 2003). buyer (CIVIL CODE, Ari. 1502, par 1)a

It is merely descriptive of the state of the thing sold. Rules:

Thus, the "as-is where-is" basis merely describes the
actual state and location of the property sold. The
depiction does not alter the seUer's responsibility to
deliver the property to the buyer (Asset Privatization
Trust v. T.J. Enterprises, G.R. No. 167195, May 8,
2009).
SALE ON ACCEPTANCE, TRIAL,
APPROVAL, OR SATISFACTION
A contract is in the nature of an option to purchase if
the goods prove to be satisfactory, with the approval
of the buyer being a condition precedent; the sale is
dependent upon the quality of goods (CIVIL CODE,
Art. 1502, par. 2).
1. Title passes to the buyer upon delivery;
2. Buyer bears the risk of loss;
3. The option to purchase or return the goods rests
entirely on the buyer without reference to the
quality of the goods;
4. I hP. huym m;:iy rnvP.st thP. ownP.rship in the seller
by returning or tendering the goods within the
time fixed in the coAtract or within a reasonable
time if no time is fixed; and
5. The buyer must comply with the express or
implied conditions attached to the privilege;
otherwise. the sale becomes absolute and
becomes liable for the price (DE LEON, supra at
236).

Rules: SALE OR RETURN ANO SALE ON

1. Title remains in the seller, until TRIAL, DISTINGUISHED
becomes absolute by:
a. Buyer's approval of the goods; or
b. Buyer's failure to comply with the expressor
implied conditions of the contract as to
giving notice of dissatisfaction or as to -
returning the goods; or
c. By his doing any other act adopting the
transaction (e.g., morlgaging the properly or
selling it to a third person).

2. Risk of loss remains with tl:)e seller; except

when the buyer is at fault or has agreedto bea~
the loss;
Ownership remains in
3. Buyer must give the goods a trial, exceptwhere on delivery the seller until the buyer
it is evident that it cannot perform the work ,quent return signifies his approval or
intended; reverts ownership to acceptance to the seller.
the seller.
4. Period within which buyer must signify
acceptance runs only when all parts essential for Ownership is revested There is no revesting of
the operation of the object have been delivered; in the seller if the buyer ownership because it is
so decides. retained by the seller
5. If it is stipulated that a third person must signify until the sale becomes
approval or satisfaction, the provision is valid, absolute.
but the third person must be in good faith. If
refusal to accept is not justified, the seller may
still sue; and

6. Generally, the sale and delivery to a buyer who

is an expert on the object purchased is not a sale (Id. at 237-238)
on approval, trial, or satisfaction (DE LEON,
supra at 236-237). SALE BY DESCRIPTION
A sale where a seller sells a thing as being of a
SALE OR RETURN certain kind, the buyer merely relying on the seller's
Property is sold but the buyer, who becomes the representations or descriptions (CIVIL CODE, Art.
owner of the property on delivery, has the optiqn to 1481).
return the same to the seller instead of paying the
\:: :t,• 'l /'":,~•~,' '>~~>' Y

"554. " . ,;,:t SALES AND LEASE

> ) I ) ,\
Civil Law
, f ~ ,_ , ? !~ ~' :~

SALE BY SAMPLE or disposal of the goods, the

A sale where a small quantity of a commodity is buyer is riot liable for more than
exhibited by the seller as a fair specimen of the bulk, the· fair value to him of the
which is not present and as to which there is no goods delivered.
opportunity to inspect or examine (Mendoza v.
David, GR. No. 147575, October 22, 2004). This is "Fair value to him" is the benefit
intended to save the parties from the time and which the buyer may have received
expense of examining the whole quantity of the from the goods. It is not necessarily
goods being purchased (DE LEON, supra at 135). the market value. Since the
defaulting seller is the wrong doer,
Mere exhibition of the sample does not necessarily the buyer is not required to pay
make it a sale by sample. The exhibition must have more than the contract price if such
been the sole basis or inducement of the sale (DE price for the goods is more than fair
LEON, supra at 135). value to him of the goods (DE
LEON, supra at 287).
Warranty: That the bulk of the commodity will ii. Larger-
correspond in kind, quality, and character with the Buyer has three (3) options:
sample exhibited examine (CIVIL CODE, Arts. 1481 1.) Accept per contract and reject the
and 1565). rest; ·
2.) Accept the whole and pay at the
Rights of the Buyer in a Sale by Sample:· · contract rate; or
1. Retu:n the t~i~g and recover the ry:tohe¥ p/;l'id; or · · ).) If indivisible, reject the whole or
2. Retain the thing and sue fo,1>the breach ,of "accept it entirely.
warranty (5 PARAS, supra afr71J. \ f,. ·""' iii: Mixed with Goods of Different
.:"'/ . . .,. '" .\;'' :~1,;+"'._,,-.,,:."~ oeschption-
SALE BY DESCRIPT1O,r AND.rSAn,IIPLE ·?\:'Y~flias two (2) options:
1a) /Accef?t the goods which are in
Must satisfy the requirements'in both/and riot in oniy accordance with the contract and
one (Id.). r i i· ..
reje~t the rest; or
2.) lf"''friclivisible, reject the goods
Two-Fold Warranty in Sal; Sample and "t,y ~mtirelyior accept them entirely.
Description · .· · .: ·"
1 . That the goods purcha,sed 'riiatched;_,jjith ·the . 2: 1ffimQvabl8Sc,r./ • :
description; and ;, •.· f :, \ •::·;; \ A-'.t~old p'er Unit or Number. (CIVIL CODE,
2. That the goods matchetJ in kinp, qh~l1t/'a11d · · Art. 1,539-1540)--contains a statement of the
character with the samples exhibited to the area at the rate of a certain price for a unit
buyer (CIVIL CODE, Art. 1481, par: 1). . . .
or measure or number. Art. 1539-1540 of
"the CiviJ. Code shall also apply to judicial
NOTE: The buyer shall be given. a ria~ojiable
$a)~sjCIVIL CODE, Art. 1541).
opportunity to compare the bulk of thegoods'Withthe
description made on the sample presented, If the Ffules:
buyer has failed to notice the differences, the 'seller
i. GENERAL RULE: If the vendee should
is not excused from his warranties (CIVIL CODE,
demand, the vendor must deliver all that
Art. 1481, par. 2).
may have been stated in the contract.
ii. When the entire area cannot be
COMPLETENESS OF DELIVERY delivered-the object of the contract, its
1. Movables (CIVIL CODE, Att. 1522) cause as far as the vendee is
a. Where, in relation to what is contracted to concerned, is not delivered. Hence is
sell, the quantity of goods delivered is: entitled to rescind it.
i. Less- iii. If what is delivered is:
Buyer has two (2) options: 1.) Less in area OR of inferior or
1.) Reject the goods; or different quality
2.) Accept them Buyer may seek Rescission, if:
a.) When the acceptance is with a.) Lack in area is at least 1/10 of
knowledge that the seller is not the area agreed upon;
going to perform the contract, b.) The deficiency iri quality
the buyer shall pay at contract specified in · the contract
rate; or exceeds 1/10 of the price
b.} When knowledge is after the agreed upon;
acceptance and consummation
@S mp \ I
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c.) The vendee would not h;:ive
bought the immovable had he
known of its smaller area or
inferior quality; and
d.) Proportional reduction of price
in case of fulfillment.
2.) Greater in area
The vendee may accept the area
included in the contract and reject
the rest. If he accepts the whole
area, he must pay at the contract
rate (CIVIL CODE, Art 1540).
In a lump sum contract, a vendor is
generally obligated to deliver all the
land covered within the boundaries,
regardless of whether the real area
should be greater or smaller than
that recited in the deed. However, in
case there is conflict between the
area actually covered by the
boundaries and the estimated area
stated in the contract of sale, he/she
shall do so only when the excess. or
deficiency between the former and .
the latter is reasonable (Arcaina v.
Ingram, G.R. No. 196444, February
15, 2017).
The SC held that the differ!';lrice of
5,800 sq. m. is too substantlal to be
considered reasonable. The Court
noted that only 6,200 sq. m. was
agreed upon between petitioners
and Ingram. Declaring Ingram as
the owner of the whole 12,000 sq.
m. on the premise that this is the
actual area included in the
boundaries would be ordering the
delivery of almost twice the. area
stated in the deeds of sale." Surely,
Article 1542 does not contemplate
such an unfair situation to befall a
vendor-that he/she would be
compelled to deliver double the
amount that he/She originally sold
without a corresponding increase in
price (Arcaina v. Ingram, G.R. No.
196444, February 15, 2017).
b. Sold for Lump Sum (CIVIL CODE, Art.
1542)
A cuerpo cierto I par precio alzado; when
two or more real estates are sold for a single
pric~, ·the rule is the same as \.vhen the rear
estate is sold for a lump sum. There shall be
no increase or decrease in the area actually
delivered and the area stated in the contract
(Rudolf Lietz, Inc. v. Court of Appeals, G.R.
NO. 122463 December 19, 2005).
Rules:
i. There shall. be no increase or decrease
of the price although there be a greater
or lesser area or number than that
stated in the contract, especially with
the use of qualifying words of "more or
less" in describing the area;
ii. The same rule applies when two or
more immovable are sold for a single
price;
iii. But if, besides mentioning the
boundaries which is indispensable in
every conveyance of real estate, its
area or number should be designated in
the contract, the vendor shall be bound
to deliver all that is included within said
boundaries, even when it exceeds the
area or number specified in the contract
(VILLANUEVA, supra at 227). .
NOTE: The rule does not apply if the
deficiency is so material as to go to the
essence of the contract for under such
circumstances, gross mistake may be
:;., 7 :ii:}, infecred which is the duty of a court of equity
7
7:,to;&qect (Asiain v. Ja/andoni, G.R. No. L-
20435;. October 23, ·1923).
PRESCRIPTl(>N OF ACTION,
Action for'rescisskm arising from Articles 1539 and
1542 sh_all pr~scrib in six (6) months counted from
the daY, · }the thing to the vendee ( CIVIL
CODE,
TE: The Civil Code presumes that the purchaser
1
+mind a particular piece of land and that he
·
. ·a ~ln'eff its area
and quality before the contract _
of sale was perfected. If he did not do so, or if having
done so he made no objection and consented to the
transaction, he can blame no one but himself (Teran
v. Vda. de Riosa, G.R. No. L-34697, March 26,
1932).
Where the area of .the immovable is stated in the
contract based on ·an estimate, the actual area
delivered may not measure up exactly with the area
stated in the contract. According to Article 1542 of
the Civil Code, in the sale of real estate made for a
lump sum, there shall be no increase or decrease of
the price, although there be a greater or lesser area
or number than that stated in the contract (Feliciano
Esguerra, et al. v. Virginia Trinidad, G.R. No.
169890, March 12, 2007).
The vend9r is obligated to deliver all the land
included. within the boundaries, regardless of
whether the real area should be greater or smaller
than that recited in the deed (Ba/antakbo v. CA. G.R.
No. 108515, October 16, 1995).

If the vendor cannot deliver to the vendee all that is
included within the boundaries mentioned in the
contract, the latter has the option to (1) reduce the
price in proportion to the deficiency or (2) to set aside
the contract (CIVIL CODE, Art. 1542, par. 2).
DOUBLE SALE (CIVIL CODE, ART. 1544/
Requisites: (VIOS)
1. Two or more transactions must constitute Valid
sales; -
2. Two or more buyers who are at odds over the
rightful ownership of the subject matter must
each represent conflicting !nterests;
3. They must pertain exactly to the same Object or
subject maller; and - the Torrens system, the first t;>uyer's registration
4. They must be bought from the same or
immediate .§.eller (Vda. de Viray v. Sps. Usi,
G.R. No. 192486, November 21, 2012).
Article 1544 applies only to purchasers,lf{gocxJ {aith
and disqualifies any purchaser in b9d'fa~h (DJ L,oon
v. Ong, G.R. No. 170405, Februqry_.J,;2d1g), •
~;j '"¾_ i' ,.j:;c
Art. 1544 does not apply wh~h(? _>"' i 9.
1. Not all the elements are present;,/ ,
J, [:
NOTE: The principle of pri9rt&,/,pore, ~-otiqr jvre
(he who is first in tim'e ht·pfeferred\,in nght).
should apply. ; ce·t'" £ ·
\
. \
'\ : / \
· · '.
2. Where one of the sale ;i,s;t1f~~ a~~ft~t ~~d
repugnant to the Philippine Constitution ah{i is •.
thus, void ab initio, it stands to re{lson th~t there
can be no double sale to '•speak of,.(Magl}iqfle.<····•i.
Stone v. Cattleya Land, G. R. No:c.195975 .. ,
September 5, 2016); · ., ··: ,.: · ' · ··· •.
3. The two different contracts of sal~·'are ;;{ad.~ by
two different persons, one of them not being . th~ ·
owner of the property sold (Sps. Salera v. Spi .. ,,
Rodaje, G.R. No. 135900, August 11, 2007);
4. Sales involved were initiated not by just one
vendor but by several vendors, i.e., from one of
its co-owners and the other from t1/J the co-
owners (Sps. Man/an v. Sps. Beltran, G.R. No.
222530, October 16, 2019);
5. Sales involving unregistered lands; Under Act
No. 3344, registration of documents affecting
unregistered land is "without prejudice to a third
party with a better right;
6. Mere registration of a sale in one's favor does
not give him any right over the land if the vendor
was not anymore, the owner of the land, having
previously sold the same to somebody else,
even if earlier sale was unrecorded
SALES AND LEASE
Civil Law
(Radiowealth Finance Co. v. Palileo, G.R. No.
83432, May 20, 1991);
NOTE: The principle of prior tempore, potior jure
(he who is first in time is preferred in right)
should also apply.
7. The first sale occurs when land is not yet
registered and the second sale is done when the
land is already registered (Dagupan Trading Co.
v. Macam, G.R. No. L-18497, May 31, 1965);
NOTE: The principle of prior tempore, potiorjure
(first in time, stronger in right) should also apply.
8. When the property was already registered under
of the sale under Act No. 3344 is not effective for
purposes of Article 1544. Thus, the second
. buyer prevails over the first if the second buyer
,, ,recp,r:ded the sale in good faith with the Register
,: \ / ot, D~eqs in accordance with P.O. No. 1529
' :·: ($ps,; Al)reg_o v. De Vera, G.R. No. 154409, June
21! 2004),,·,''¾,
' --~-- ,·1\\;-\:.,"'-(:"'""·7· /' ,\\
~ n '·tfi~,,~t5Wb,er had previously sold his
· proP;erty '{@q<i dc,ITJinion already transferred) and
thereafter'~;i<ecut~ a second sale in favor of
~notper. pe"t~~~'.. t~ latter cannot acquire any
.ngh; At the:time of/;the second sale, the vendor
had'°_.no mo~,.e.xi~ijng right over the property
. w~.~)'l_l;l co,
Id lawf~lly dispose of (Consolidated
Rhfa/B,ank_:;'{Gqf]E!J(an Valley), Inc. v. CA, GR.
. ,.JYfJ;f216f, Januefry 17, 2005);
-1~;:\/Vhen _yi(
earliey{ansaction is a pacto de retro
• ~al~pfan unre,!'Jistered land and the subsequent
,s_;µrivey9[lce_ is a donation of the land in favor of
····~rf>t}le,'r,~y;the vendor a retro (Sps. De Guzman
>V+ CA..;•. G:R., No. L-46935, December 21, 1987)
, ,.,.,,1"Pr""
11 .'"'iJVhere there is only one valid sale, the previous
sale having been found to be fraudulent (Fudot
v. Catt/eya, Inc, G.R. No. 171008, September
13, 2007); if one sale is simulated and the other
is genuine (De Leon v. Caluag, G.R. No. L-
18722, September 14, 1967);
12. Where one sale is absolute and the other is a
pacto de retro sale and the period to redeem has
not yet expired (Teodosio v. Sabala, G.R. No. L-
11522, January 31, 1957);
13. Where one of the sales is subject to a
suspensive condition, which was not complied
with and the other is an absolute sale. The
reason being a conditional sale is not a sale
before the condition had been ·performed ·
(Mendoza v. Ka/aw, G.R. No. L-16420, October
12, 1921); .
 \ I
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14. Where one is a sale and the other is an
assignment of the right to repurchase the same
property (Dichoso v. Roxas, GR No. L-17441,
July 31, 1962);
15. Where one transaction is a sale and the other is
a mortgage (Mamuyac v. Abena, GR. No. L-
45742, April 12, 1939); and
16. In a contact to sell, there being no previous sale
of property, a third person buying such property
despite the fulfillment of the suspensive
condition cannot be deemed a buyer in bad faith
and the prospective buyer cannot seek relief of
reconveyance of the property (Coronel v. CA,
GR. No. 103577, October 7, 1996).
Rules on Preference (CIVIL CODE, ART. 1544):
1. Personal Property
- first possessor in good faith
2. Real Property • >.
a. First registrant in good faith: second buyeri
must register the document in good fafQi; ·_ .
otherwise, he does not have a better right:;_;:;\
(Fudot v. Cattleya Land Inc., GR. No: ·. · · ·
171008, September 13, 2007);
b. First possessor in good faith; or
c. Person with oldest title in gb® faith
(Martinez v. CA, G.R. No. 123547, May 21,
2001). .. . sale be~een
Applicability of the Rule of Caveat Emptot{Buyjt
Beware) . -•·• . : ·.'.~.
One who purchases real property, whi.ch is in.actual
possession of others, should make some inquiry
concerning the rights of those in go;sess,ion.
(Rosaroso v. Soria, G.R. No. 194846; June :19,
2013).
Purchaser in Good Faith
One who-
1. Buys the property without notice that some other
person has a right to, or interest in, such
property; and
2. Pays a full and fair price for the same at the time
of such purchase, or before he has notice of the
claim or interest of some other person in the
property (Agricultural and Home Extension Dev't
Group v. CA, G.R. No. 92310, September 3,
1992).
Burden of Proof
He who asserts the status of a purchaser in good
faith and for value has the burden of proving such
assertion (Mathay v. CA, G.R. No. 115788.
September 17, 1998).
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Lis Pendens (Suit Pending)
A buyer cannot be considered an innocent
purchaser for value where he ignored the notice of
tis pendens on the title when he bought the lot
(Limketkai Sons Milling, Inc. v. CA, G.R. No. 118509,
December 1, 1995).
First Buyer is Always in Good Faith
Indeed, knowledge gained by the first buyer of the
second sale ca1111ul defeat the first buyer's rights
except only as provided by law, as in cases where
the second buyer first registers in good faith the
second sale ahead of the first. Such knowledge of
the_ first buyer does bar her from availing of her rights .
under the law, among them, first her purchase as
against the second buyer (Spring Homes
Subdivision v. Sps. Tablada, G. R. No. 200009,
January 23, 2017).
If the second buyer in a sale of land registers the
sale after he has acquired knowledge that (1) there
was a previous sale of the same land to another, or
(2) that another person claims the same land, the
registration by the second buyer will not confer any
right him. The first vendee who took
the land in good faith is preferred
G.R. No. 96306,August2Q 1993).
lllustration/t\sold his land to B for P500,000.
Before B coul~ f~lly pay the price, A sold the land to
O
C and took p session of the land. B learned that the
C is not yet registered. Thus, B
regis claim over the lot with the
regist sequently, the deed of sale in
favor of C was registered and a TCT was issued to
her but with annotation of the adverse claim. Who
"'etter right over the land?
Answer: B, the first buyer. At the time of the first
sale, B was in good faith because the title was still in
the name of A. And B could not have been aware of
any sale involving the property. B's good faith did not
cease after he learned of the subsequent sale
between A and C. The. recording of the adverse
claim was done to protect B's rights. Consequently,
the subsequent registration by C of the sale was
done in bad faith. Although at the time of the second
sale C was a buyer in good faith, his status as such
ceased after the prior sale was made known to him
(Carbonell v. CA, G.R. No. L-29972, January 26,
1976).
Note that in all the rules there must be good faith;
otherwise, the order of preference does not apply
(Romeo Pay/ago and Rosario Dinaandal v. Ines
Pastrana Jorabe and the Court of Appeals, L-20046,
Mar. 27, 1968).
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Examination of Certificate of Title
GENERAL RULE: A buyer may rely on the Torrens
title of the seller. The buyer is not obligated to look
beyond the certificate to investigate the title of the
seller appearing on the face of the certificate (AFP
Mutual Benefit Association, Inc. v. CA, G.R. No.
104769, March 3, 2000).
EXCEPTION: When there exist important facts that
would create suspicion in a reasonable man to go
beyond the present title and to investigate those that
preceded it (Mercado v. Allied Banking Corp., G.R.
No. 171460, July 27, 2007).
Rule Governing Banks
The rule that persons dealing with registered lands
can rely solely on the certificate does not apply to
banks because their business is one affected with
public interest keeping in trust the money belonging
to their depositors (Sps. Sarmiento v. CA,. G:R.' No.
152627, September 16, 2005). · 31346, D~cf!mber 28, 1929).
When the Subject of Sale is ap µrir:egistered
Land
The rules in double sale unde'r Article-1544 of the
Civil Code, whereby the buyer ~ho able to first
register the purchase in good faith is in full accord
with Section 51 of P.D. 1529 whitl}provides that no
deed, mortgage, lease orothervol4ntary instrument.
except a will purporting to conve¥Ot affect registered
land shall take effect as a conveypnce or bind the
land until its registration. Thus; if1 the sale .is not
registered, it is binding only l;>etweeb the·seUer,and
the buyer but it does not: ,affect \nnocent third
persons (Sps. Abrigo v. De Ver.a, G.R. /IJo. 154409,
June 21; 2004).
Illustration: A sold his land to B with the right tO'
repurchase the same. A failed to rec;leem the
property, thus B registered the land in his ,narTJe.
Unknown to B, A obtained a free patent over the
land. The free patent was later on cancelled by a
TCT. Meanwhile, B sold the land to C. A also sold
the land to D who registered the sale and a TCT was
issued in her name. Who has a better right?
Answer: D. Both C and D registered the sale of the
property. Since C did not know that the property was
covered by Torrens System, he registered the sale
under Act 3344; while D registered the transaction
· under the Torrens system, because during the sale,
A presented the TCT covering the property. It has
been held that registration must be done in the
proper registry in order to bind the land. Since
the property in dispute was already registered under
the Torrens System, C's registration of the sale
under Act 3344 was not effective for purposes of Art.
1544 of the Civil Code. The priority in time principle
' ,
SALES AND LEASE
'
'°1"
Civil Law
is not applicable in this case ( Sps. Abrigo v. De Vera,
G.R. No. 154409, June 21, ·2004)
Registration
Any entry made in the books of registry, including
both registration in its ordinary and strict sense, and
cancellation, annotation, and even marginal notes
(Cheng v. Genato, G.R. No. 129760, December 29,
1998).
It is the entry made in the registry which records
solemnly and permanently the right of ownership
and other real rights (DE LEON, supra at 342).
Registration Requires Actual Recording
If the property was never really registered as when
the registrar forgot to do so although he has been
handed the document, there is no registration.
Registration in its juridical aspect must be
understood_ as the entry made in a book or public
registry of deeds (Po Sun Tun v. Price, G.R. No. L-
Bad faith 011 the part of one buyer amounts to
registration lnfavorofthe innocent buyer (DE L£ON,
supra at 344).
ik
A buyer of an unregistered land acquires a better title
than a subsequent buyer, even if the latter registered
the sale jn good 'faith after the registration of the land
by the seller becausethe second buyer merely steps
into the shoes of the seller who at the time of the sale
to him is no longer the owner of the property
(Radiowealth Finance Co. v. Palileo. G.R. No.
~3432, May 20, 1991): .
Double Donation ,
Art. 1544 applies to a double donation. A deed of
donation executed with all the formalities of the law
is on the $arhe footing as a deed of sale in the form
of a public instrument (Cagaoan v. Cagaoan, G.R.
· No. 17900, June 21, 1922).
Donations of the same thing to two or more different
donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons (CIVIL CODE, Art. 744)
Possession
Possession means both actual and constructive
(The Roman Catholic Church v. Pante, G.R. No.
174118, April 11, 2012).
Possession under Art. 1.544 of the Civil Code is
either material or symbolic (Ten Forty Realty v. Cruz
G.R. No. 151212, September 10, 2003).
Good Faith Must Concur with Registration
To be entitled to priority, the second purchaser must
not only establish prior recording of hr$ deed, but
 MEM:Q~Y AID
San Seda University College of law··· RGCT Bar Operations Can1er
must l,ave acted in good faith. Therefore, the
requirement of the law is two-fold: (1) acquisition in
good faith and (2) registration in good faith (Gabriel
v:Sps. Mabanta, G.R. No. 142403, March 26, 2003).
Act of registration must be coupled with good faith-
that is registrant must have no knowledge of the
defect or lack of title of his vendor or must not have
been aware of facts which should have put him upon
such inquiry and investigation as might be necessary
to acquaint him with the defects in the title of his·
vendor (Rosaroso v. Soria, G. R. No. 194846, June
19, 2013).
Duly Registered Attachment
It is a settled rule that an attachment, which is duly
registered, takes precedence over a prior
unregistered sale.
The preference created by the levy is not diminished
even by subsequent registration of the prior sale.
The reason is that an attachment is a proceeding in
rem. It is against the particular property and Jst.
enforceable against the whole world (Valdevieso';il
Dalamerio, G.R. No. 133303, February 17, 2005).
DELIVERY OF FRUIT . AND.
ACCESSORIES (CIVIL CODE, Arts,,ff64, 1166
and 1537)
ACCESSIONS
It is the fruits of a thing; Qf addition'$ . to, pr
improvements upon, a thing (e.g:· young of;~riimals,
house or trees on a land, etc.) (DELJ£QN, supra at.
322). The term "fruits" here includes riatural,
industrial and civil fruits (Binalbagan Esfate v.
Gatuslao, G.R. No. 48560, February 26; ..1943).
ACCESSORIES
Anything attached to a principal thing for its
completion, ornament, or better use (e.g., picture
frame, key of a house, etc.) (DE LEON, supra at
323).
The seller is bound to deliver accessions and
accessories in the condition in which they were upon
perfection of the contract (CIVIL CODE, Art. 1537).
This means that the seller has the duty to preserve
the thing and its accessions and accessories from
the moment of perfection of the contract of sale. If
anything happens to the thing before its delivery,
(e.g., Joss or deterioration, improvement), th~
seller's rights and liabilities will be governed by the
rules in Art. 1189 of the Civil Code, the seller being
considered its debtor (CIVIL CODE, Art. 1538).
The buyer 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 (CIVIL CODE, Art. 1164).
The fruits (natural, industrial or civil) shaU pertain to
the buyer from the day on which the contract was
perfected (CIVIL CODE, Art. 1537, par. 2).
The obligation to give a determinate thing includes
the delivery of all its accessions and accessories,
even though they may not have been mentioned
(CIVIL CODE, Art. 1166). ·.
WHEN THE VENDEE IS NOl; ENTITLED
TO THE FRUITS
1. By agreement of the parties;
2. When the vendee rescinds the contract of sale
instead of exacting the fulfillment thereof (CIVIL
CODE, Art. 1385); and
3. In a contract of promise to sell since the only
right of the contracting parties is to reciprocally
demand the fulfillment of the contract (DE
LEON, supra at 324). ·
event or contingency upon the
which the obligation or right of the
contract dep(;ltlfls. In such case, the obligation of the
contract do.fus 'Lnot attach ·until the condition is
··
performed (Df DEON, supra at 374).
f i . ".'t,
NOTE: Therd m~i be a contract of sale of goods,
whos~;· · ·. the seller depends upon a
canting ' ay or may not happen (CIVIL
CODE, Art. , par. 2).
tof Non-Fulfillment of Condition
~·nttter party may:
a. Refuse to proceed with the contract; or
b. Proceed with the contract, waiving the
performance of the condition.
2. If the condition is in the nature of a promise that
it should happen, the non-performance of such
condition may be treated by the other party as
breach of warranty (CIVIL CODE, Art. 1545, par.
1).
Article 1545 presupposes that there is a perfected
contract between the par;ties and that one of them
fails in the performance of an obligation under the
contract (Dev't Bank of the Philippines v. Medrano,
G.R. No.167004, February 7, 2011).
Distinction Between Condition Imposed on
Perfection of Contract and Condition Imposed
on Performance of Obligation:
1. Condition imposed on perfection of contract
- Prevents the juridical relation from coming into
existence.
 SALES AND LEASE
Civil Law

A warranty is not necessarily written. It may be oral

2. Condition imposed on performance of as long as it is not given as a mere opinion or
obligation judgment. Rather, it is a positive affirmation of a fact
- Gives the option to the party either to refuse that buyers rely upon, and that influences or
or proceed with the contract of sale and waive induces them to purchase the product (Philippine
the condition (Romero v. CA, G.R. No. 107207, Steel Coating Corp. v. Quinones, G.R. No. 194533,
November 23, 1995). April 19, 2017).

The vendor is bound to transfer the ownership of and

WARRANTY V. CONDITION deliver, as well as warrant the thing which is the
object of the sale ( CIVIL CODE, Art. 1495).
,~, WARRANTY . ,; ·"· ·::c~No1r10N .-. ·.. ':,!

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While warranty is not an essential element of a sale,
there can be no warranty without a sale. If the sale
is illegal, the buyer cannot maintain an action on a
Goes into the Goes into the root of
warranty accompanying it (Id. at 378).
performance of such the existence of the
obligation and in fact obligation.
The decisive test is whether the seller assumes to
may constitute an
assert a fact of which the buyer is ignorant
obligation in itself.
- . (Goodyear Philippines Inc. v. Sy, G.R. No. 154554,
fiovemf?.er 9, 2005).

May form part of the Must be ~tipufated"by .:~OTE: The buyer may make warranties as well, as
obligation or contract by the parties in order to wllenhe warrants that he will pay or when he makes
provision of the law form paf1i of
an any affirmation or' promise to induce the seller to
without the parties objig~tjon .. •.·· enter into the contract of sale (DE LEON, supra at
., 379).
having agreed thereto.

Time of Warranty.
Under Article 1546, the· affirmation must induce the
Whether express or May ~t(ach itself either buyer to purchase the good and the buyer purchases
implied, relates to the to Jfle 9bligation of the the thing relying on the affirmation. If the warranty is
subject matter itself or to seller or
of the buyer Jo giVen after the coRtractiof sale has been perfected,
the obligations of the d~liyer possessibn and the w~rr9nty 111ust generally, in order to be effective,
seller as to the subject transfer • . owners.hip be accompanied by a new and separate
matter of the sale. over the subject matter consideratipn (Id. at 380-381 ).
of the sale. ·
Intention to .Ma~e a Warranty
It is the riafur'al tendency of the affirmation of
Non-fulfillment of a Although •it may promise ·10 induce the buyer to purchase that is
impgrtan( and not the intention of the seller to
warranty would extinguish the
wa'rrant, and in the absence of an intention to
constitute a breach of obligation upon which it
warrant is of no consequence (Id. at 381 ).
contract. is based, it generally
does not amount to a
Warranty is a collateral undertaking
breach of the contract
Since an assignee mer(;!ly steps into the shoes, so
of sale.
to speak, of an assignor, the assignee shall likewise
(VILLANUEVA, supra at 454). shoulder all the obligations of a vendor-assignor,
including the vendor's warranty. As a collateral
WARRANTY undertaking, it follows where the principal obligation
Awarranty is a statement or representation made by goes (Koa v. CA, G.R. No. 84847, March 5, 1993).
the seller of goods - contemporaneously and as part
of the contract of sale - that has reference to the A warranty is a collateral undertaking in a sale of
character, quality or title of the goods; and is issued either real or personal property, express or implied;
to promise or undertake to insure that certain facts that if the property sold does not possess certain
are or shall be as the seller represents them incidents or qualities, the purchaser may either
(Philippine Steel Coating Corp. v. Quinones, G.R. consider the sale void or claim. damages for breach
No. 194533, April 19, 2017). of warranty. An express warranty pertains to any
affirmation of fact or any promise by the seller
relating to the thing, the natural tendency of which is
 ♦lilii& \ /
MEM:Q~Y AID
San Seda Unlv~rsity Cottege of Law .. RGCT Bar Operations Center
to induce the buyer to ptm:hase the same. An
implied warranty is one which the law derives by
application or inference from the nature of
transaction or the relative situation or circumstances
of the parties, irrespective of any intention of the
seller to create it (Pilipinas Makro, Inc. v. Coco
Charcoal Philippines, Inc., G.R. No. 196419,
October 4, 2017).
KJNDS OJ- WARRANTY:
1. Express
- It is any affirmation of fact or promise by the
seller relating to the thing, inducing the buyer to
purchase the same and if the buyer purchases
the thing relying thereon (CIVIL CODE, Art.
1546).
Requisites: (AIR)
a. It must be an ~ffirmation of fact or any
promise by the seller relating to the subject
matter of the sale;
b. The naiural tendency of such affirmation or,.
promise is to !nduce the buyer to purchase,
the thing; and ··,
c. The buyer purchases the thing Belying ons
such affirmation or promise (Philippine Steef
Coating Corp. v. Quinones, G.R: No.
194533,Aprll19, 2017).
The breach of an express warranty mak~s the
seller liable for damages (VILLANUEVA; supra
at 455).
The usual exaggerations in trade, wh~n the
other party had an opportunity to know the facts,
are not in themselves fraudulent (CIVIL CODE,
Art. 1340).
Dealer's or Trader's Talk
Dealer's talk like "excellent," cannot be
considered as an express warranty (PARAS,
supra at 208). The law allows considerable
latitude to seller's statement or dealer's talk
(Tankeh v. Dev't Bank of the Philippines, G.R.
No. 171428, November 11, 2013).
A mere expression of opinion, no matter how
positively asserted, does not import a warranty,
unless the seller is an expert and his opinion
was relied upon by the buyer (CIVIL CODE, Art.
1341).
Misrepresentation made in good faith is not
fraudulent but may constitute error ( CIVIL
CODE, Art. 1343).
2. Implied
- It is that which the law derives by implication
or inference from the nature of the transaction or
the relative situation or circumstances of the
parties, irrespective of any intention of the seller
to create it (Ang v. CA, G.R. No. 177874,
September 29, 2008).
The principle of implied warranties is an
exception to the rule of caveat emptor (DE
LEON, supra at 387).
NATURE OF IMPLIED WARRANTY
It is a natural element of a contract, deemed
incorporated in the contract of sale (Id.).
It may be waived or modified by express
stipulation (e.g. warranty against · eviction,
warranty against hidden defects) (Id.).
Although only a seller is bound by implied
warranties of law, nevertheless, an agent of the
seller may bind himself to such warranties, by
express contractual stipulation ( Schmid and
Oberly Inc. v. RJL Martinez Fishing Corporation,
GR. No. 75198, October. 18, 1988).
Illustrations:
Wai;r;-;mty that the seller has a right to sell;
· ' ty against eviction;
c. ty against non-ap·parent burden or
servj es;
d. Warr~n against hidden defects or
Ul)knQwri encumbrance (CIVIL CODE. Art.
1/i61);; .
e. Warr$nty 'against redhibitory defects on
f. · as to fitness or merchantable
quality (CIVIL CODE, Art. 1562);
Warranties for consumer goods (R.A. 7394,
68).
WHEN IMPLIED WARRANTY NOT
APPLICABLE:
1. As is and where is Sale
- The vendor makes no warranty as to the
quality or workable condition of the goods and
the vendee takes them in the conditions in which
they are found and from the place they are
located (OE LEONJ supra at 387).
NOTE: It does not extend to liens or
encumbrances unknown to the vendee and could
not be disclosed by a principal examination of the
goods sold (Id.).
2. Sale of Second Hand Articles
- There is no implied warranty as to the
condition, adaptation, fitness or suitability or the
quality of an article sold as a second-hand
article. Such articles might be sold under such
circumstances as to raise an implied warranty. A
certification issued by a vendor that a second-

hand machine was in A-1 condition is an express
warranty binding on the vendor (Moles v. /AC,
G.R. No. 73913. January 31, 1989).
3. Sale by Virtue of Authority in Suit or Law
- Not applicable to a sheriff, auctioneer,
mortgagee and other person who sells by virtue
of authority in fact or law (the principle applicable
to execution sales is caveat emptor because the
purchaser acquires no better title than the
judgment debtor has) (Allure Manufacturing Inc.,
v. CA, G.R. No. 94452, July 16, 1991).
NOTE: The persons enumerated are, however,
liable for actual representations, fraud or negligence
in the exercise of their duties (DE LEON, supra at
389).
WARRANTY THAT SELLER HAS A know the circumstances or reasons behind the
RIGHT TO SELL
Although Art. 1547 uses the phrase/'.tfhless a
contrary intention appears", there c9n.be no legal_
waiver of such warranty without changing t_hej}asic
nature of the relationship, for the',w;3rraiity on the
part of the seller that he has th,e cap~·oityhsel( i.e.
to transfer ownership of the tnin'g,:1s·1he essence of
sale, unless it amounts to c.lear assfimption of risk
on the part of the buyer (VILUjNf:JEVA,,supra at
,49~. - - . · EviGtion S(l_i, ·
WARRANTY AGAINST EYIE;TION \
The seller guarantees that he ~¥t,lle rig~ff9, s,ell the. -
thing sold and to transfer dw~rship to thf:;•6uyer;
who shall not be disturbed in\his Jeg~l and pea~ful
possession thereof (CIVIL COOE, Art.154BT· ·. ·-
·,.; "''~ , . ·• · The yendor's I liability for warranty a_gainst
ELEMENTS: DJ-PIS-No
· 1. Vendee is Deprived, in wholepr1n;J?art,of
the thing pi:;chased; ·-· ' ·'
2. Deprivation is by virtue of a final Judgment;
The warranty cannot be enforced until a final
judgment has been rendered, whereby the
vendee loses the thing acquired or a part thereof
(CIVIL CODE, Art. 1557).
NOTE: The term final judgment in article 1548
refers to "final and executory judgment"
(Perez v. Zu/ueta, G.R. No. L-10374, September
30, 1959).
Eviction may take place by virtue of a final
judgment of an administrative office or board. -lt
is not necessary that a court makes final
judgment, · provided it was rendered by a
competent authority and in conformity with the
procedure prescribed by law (Bonzon v.
Standard Oil Co. of New York, G.R. No. L-
10297, March 11, 1916).
SALES AND LEASE
Civil Law
3. Judgment is based on a right frior to the
sale or an act !mputable to the vendor;
4. Vendor was .§.ummoned in the suit for
eviction at the instance of the vendee:
a. To enable the seller to prove his claim;
b. To avoid multiplicity of suits; and
c. To satisfy due process.
The vendor shall not be obliged to make good
the proper warranty, unless he is summoned in
the suit for eviction at the instance of the vendee
{CIVIL CODE, Art. 1558).
REASON: In order to give the vendor an
opportunity to intervene and defend the title that
he has transferred, for, after all, he alone would
.,Flaim of the plaintiff and be in a position to
defen_s:J the validity of his title (De la Riva v.
.i E,scobar;<3R. No. 27300, December 17, 1927).
The 'defel:fdpnf vendee shall ask, within the time
fixed·io:tne Rules of Court for answering the
con'lplalh,l/ th~t\jhe vendor be made a co-
def~ndant (CIV/L CODE, Art. 1559).
I
· ·It refers to ,a ca~q where the vendee is the
defend9 nt iQ in;'dit;;instituted to deprive him of
th~ thing pufcha~_§}cf (DE LEON, supra at 406).
.,,,,:.....
5. <NO;Waiv(1f of warranty by the vendee (Id. at
. _39;1). .
· evigtibn in a-' contract of sale is generally
.-waiva6)e agd· may be renounced by the vendee
._ · (Ar/cJ9 ya,.tf Manansala, G.R. No. L-14714, Apr.
·:30,J960).
In the absence of any of these essential
requisites, breach of warranty of eviction cannot
be declared (DE LEON, supra at 391).
The disturbance referred to in the case of
eviction is a disturbance in law which requires
that a person go to courts of justice claiming the
thing sold, or part thereof, and invoking reasons
(Id. at 392). .
NOTE: Mere trespass in fact does not give rise
to the application of the doctrine of eviction
(CIVIL CODE, Art. 1590). In such case, the
vendee has a direct action against the
trespasser in the same way as the lessee has
such right (CIVIL CODE, Art. 1664).
 f+atM## \ /
MEK✓Q-RY AID
San Be<.fa UrtfVernity College of Law - ROCT Bm Operetion& CentfJ{
Rules that Govern Eviction Suit:
1. No appeal is needed nor tor buyer to resist
eviction for right to accrue; it is enough that the
aforementioned requisites are complied with
(CIVIL CODE, Art. 1549).
2. Applies to judicial sale; judgment debtor
responsible for eviction unless otherwise
Llecreetl i11jutly111e11l (CIVIL CODE, A!I. 1552).
3. Vendor. not liable for eviction if adverse
possession had been commenced before sale
but prescriptive period is completed after
transfer (CIVIL CODE, Art. 1550).
4. If the property is sold for nonpayment of taxes
due and not made known to the vendee before
the sale, vendor is liable for eviction (CIVIL
CODE, Art. 1551).
5. Rescission is not a remedy in case of eviction
because rescission .contemplates that the one
demanding it is able to return whatever he has
received under the contract. Since the vendee
can no longer restore the subject-matter of the
sale to the vendor, rescission cannot be carried
out (CIVIL CODE, Art. 1385). ....
6. The suit for the breach can be directed only>
against the immediate seller, unless the sellers
of the seller had promised to warrant in favor of
later buyers or the immediate seller 'has
expressly assigned to the buyer his own right to
sure his own seller (De la Riva v .. Vfuda de
Limjap, G.R. No. 27300, December f?,;1927).
7. The disturbance referred to in ·the tas13 of
eviction is a disturbance in.law which requires
that a person go to courts of)ustice claiming the
thing sold, or part thereof and invoking reasor,is:.
8. Mere trespass in fact shall not,_authorize the
suspension of the payment of the price {CIVIL
CODE, Art. 1590). . .Q~ts of the suit (RULES OF COURT, Rufe 142,
9. Vendor's liability is waivable but any stipulation
exempting the vendor from the obligation;fo
answer for eviction shall be void if he acted in
bad faith (CIVIL CODE, Art. 1553).
Where Warranty Against Eviction is Not
Applicable
1. The -sale of an inheritance, in which the seller
shall only be answerable for his character as an
heir, but not ownership of all the things that
supposedly comprise the inheritance (CIVIL
CODE, /\rt. 1630); or
2. The sale for .a lump sum of the whole of certain
rights, rent, or products, in which case the
vendor is not obliged to warrant each of the
various parts of which it may be composed,
except in a case of eviction from the whole or
part of greater value of the thing sold (CIVIL
CODE, Art. 1631).
Vendor's Liability is Waivable
GENERAL RULE: The obligation of the vendor to
warrant against eviction is not an essential element
of contract of sale and may therefore, be increased,
diminished, or suppressed by agreement of the
parties (CIVIL COOf:, Art. 154D, par. :J).
EXCEPTION: The waiver is contrary to law, public
order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized
!Jy law (CIVIL CODE, ArJ. 6)
Vendor's Liability
In case of Total Eviction (CIVIL CODE, Art. 1555),
the vendor's liability shall consist of: (VICED)
1. Yalue of the thing at the time of eviction;
All kinds of improvements whether useful or
necessary or even recreational expenses
voluntarily incurred by the vendee or caused by
the nature or time. insofar as they may affect the
value of the property, are taken into account in
determining the value of the property (Sta.
Romana v. lmperio, G.R. No. f-170280,
December 29, 1965).
NOTE: Article 1555 does not speak of payment
of interest on the purchase price. The law had
· egl;;\hat the interest on the price shall be
. ."ei~inst the fruits received by the vendee
from th~=i1hing while in his possession (DE
LEON, $'t.ipr{J at 398.)
l ~ >
2. Income or: fruits, only if so decreed by the court;
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.ndee belongs the use, free of
''e subject matter of sale (Id. at
~1;1);• .
NOTE: It does not include travelling expenses
incurred by the vendee in defending himself in
an action (Orense v. Jaucian, G.R. No. L-5619,
March 11, 1919).
It does not also apply to a situation where the
judgment is in favor of the vendor except if the'
vendor acted with fault or negligence (CIVIL
CODE, Arts. 1170 and 2176).
4. _sxpenses of the contract; and
GENERAL RULE: The expenses in execution
and registration of the sale are borne by the
vendor (CIVIL CODE, Art. 1487).
EXCEPTION: If the vendee should have paid for
such expenses, he shall have the right to
demand from the .vendor (DE LEON, supra at
399).

5. Qamages and interests and ornamental
expenses, if the sale was in bad faith. _
NOTE: The vendee is not entitled to recover
damages if the vendor acted in good faith (Id. at
399).
The interest contemplated in Article 1555(5)
refers to interest on costs other than the
purchase price (e.g., cost of suit and expenses
of the contract) (Id. at 400).
In case of Partial Eviction, vendee may (CIVIL
CODE, Art. 1556):
1. Enforce vendor's liability for eviction (VICED); or
2. Demand rescission of the contract.
The choices are available in the following instances:
1. When the vendee is deprived of a part of the
thing sold if such part is of such importance to.
the whole that he would not have boµghflhe
thing without said part (CIVIL CODE, 'Art. ·,(~56,
par. 1); or . ·
2. When two (2) or more things· are jQjn\!y"'sofo,
whether for a lump sum or Ji>r/a $°fW~rl:ite price
for each, and the venctee ·woi'lld . npt have
purchased one without tt)e other.{C/VIL CODE,
Art. 1556, par. 2). ··· ··
In applying Article 1556/'the!intentiJn of the
vendee should be deter:,mined as, of the
perfection of the sale: tfi'. this rE:!gard, under
Article 1371, in order to juctg~ tlie int<:foti9h of the
contracting parties, theincofa(irhporaneoµs and
subsequent acts shall be, principally Observed
(DE LEON, supra at 402). . .
Vendee Has No Duty to Appeal from.. the ·
Judgment
Appeal is not needed, and the buyer n·eed ~ot resist
eviction for the right against the vendor to'accuie. It
is enough that the requisites are complied with
(CIVIL CODE, Art. 1549).
The requirement of final judgment does not also
mean that the parties have taken all the remedies.
Thus, the final judgment may be based on a
compromise agreement among the parties (DE
LEON, supra at 394).
Effect of Prescription
When an adverse possession had been commenced
before the sale but the prescriptive period is
completed after the transfer, the vendor shall not be
liable for eviction (CIVIL CODE, Art. 1550).
Basis: The vendee could easily interrupt the running
of the prescriptive period by bringing the necessary
action (DE LEON, supra at 394).
SALES AND LEASE
Civil Law
When the prescription has commenced to run
against the vendor and was completed before the
sale, the vendee can enforce the warranty against
eviction (Id. at 394).
Basis: The deprivation is based on a right prior to ·
the sale and an act imputable to the vendor.
NOTE: Article 1550 will have no application if the
property sold is a land registered under the Torrens
System. Under the latter, ownership of the land is not
subject to prescription (Id. at 394).
liability of Judgment Debtor
The judgment debtor is also responsible for eviction
in judicial sales, unless it is otherwise decreed in the
judgment (CIVIL CODE, Art: 1552). .
Basis: Principle of law that a person may not enrich
himself at the expense of another (DE LEON, supra
~{~95}. .
.Q~prl~atio~for Non-Payment of Taxes
lftn~-i;iroperty i~·,:;;old for non-payment of taxes due
and .(lotmade known to the vendee before the sale,
the vehdc>r 1s Jiable Jor eviction ( CIVIL CODE, Art.
0
1551). ', •.. ' .. .
Vendee must acd~good faith. He must not have
knowledge of the· non~payment of taxes at the time
of the sale (DE 4EON/ $upra at 395).
lnapplicabjlity.bf ~es~ission
Re~jssion is .:hot a remedy in case of eviction
because. res.iission .contemplates that the one
d,emanding Al is able to return whatever he has
received under the· contract. Since the vendee can
no longer re;;;toreJhe subject matter of the sale to the
· vendor, .. resdssion cannot be carried out (CIVIL
c;od{/; A'fJA385).
EXCEPTION: The buyer may demand rescission in
case of partial eviction, because there still remains a
portion of the thing sold (DE LEON, supra at 403).
The suit for the breach can be directed only against
the immediate seller, unless the sellers of the seller
had promised to warrant in favor of later buyers or
the immediate seller has expressly assigned to the
buyer his own right to sue his own seller (Id. at 401).
Waiver of Liability
Vendor's liability is waivable, but any stipulation
exempting the vendor from the obligation to answer
for eviction shall be void, if he acted in bad faith
(CIVIL CODE, Art. 1553).
Effect of Vendee's Bad Faith
He cannot claim that the vendor has warranted his
legal and peaceful possession of the property sold
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San Seda University Collage of Law - RGCT Bar Operations Center
on the theory that he proceeded with the sale with
the assumption of the danger of eviction (J.M.
Tuason & Co., Inc. v. CA, G.R. No. L-41233,
November 21. 1979).
Kinds Of Waiver of Eviction (CIVIL CODE, Art.
1554)
1. Consciente I Simple
- The waiver is voluntarily made by the vendee
without the knowledge and assumption of the
risks of eviction. The vendor shall pay only the
value which the thing sold had at the time of
eviction.
2. lntencionada I Calificada
- The waiver is made by the vendee with
knowledge of the risks of .eviction and
assumption of its consequences, in which case
vendor is not liable provided he did not act in bad
faith (CIVIL CODE, Art. 1554).
NOTE: Every waiver is presumed to be consciente.
To consider it intencionada, it must be accompaniclJ /
by some circumstance, which reveals the vende.ef~ · j-;;i,
knowledge of the risks of eviction and his intention ·•
to submit to such consequences (El Banco Nacionaf
Filipino v. Silo, GR. No. L-47920, April 30, 1.f)1•1J. . .. _
''
Formal Summons to Vendor Essential
The vendor shall not be obliged to mak~ gQod .the·
proper warranty, unless he is summoned ili.•the suit
for eviction at the instance of .the vende,e {CIVIL
CODE, Art. 1558).
The phrase "unless he is summoned in thi:lsuit to(
eviction" means that the vendor shoulcfbe made
party to the suit either by way of asking Ihat the
former be made a co-defendant (CIVIL CODE Art.
1559), or by the filing of a third-party compfairit
against said vendor (DE LEON, supra at 404).
In the absence of such opportunity, the vendor is not
bound to his warranty (Escaler v. CA, GR. No. L-
4263~ August 1, 1985).
WARRANTY AGAINST NON-APPARENT
BURDEN OR SERVITUDES (CIVIL CODE,
Art. 1560)
Requisites:
1. Immovable sold is encumbered with non-
apparent burden or servitude not mentioned in
the agreement; and
2. Nature of non-apparent servitude or burden is
such that it must be presumed that the buyer
would not have acquired it had he been aware
thereof.
Lack of knowledge on part of the vendor is not a
defense. The contract can still be invalidated on the
ground of mistake (CIVIL CODE, Arts. 1331, 1556 &
1566)
NOTE: Servitude (or easement) is an encumbrance
imposed upon an immovable for the benefit of
another immovable belonging to a different owner
(CIVIL CODE, Art. 613).
Remedy of the Buyer in Case of Breach:
1. Rescission; or
2. Indemnity (CIVIL CODE, Art. 1560).
When warranty not applicable: (ARAK)
1. Servitude is ~pparent;
2. Non-apparent burden or servitude is Recorded
in the Registry of Property, except when there
is express warranty that the thing is free from all
burdens and encumbrances;
3. The servitude is mentioned in the ~greement;
4. Vendee had !Snow!edge of servitude (DE LEON,
supra at 408).
> Prescriptive Period (Rescission)
The period is one ( 1) year, computed from the
·cf~;"
execution of the deed (CIVIL CODE, Art. 1560, par.
:~~~;~%:~rSot
-. . ...·
If the period}fas already elapsed, the vendee may
only bring ar/ ~ction for damages within one (1) year
from the date;: of.the discovery of the non-apparent
burden or seryituct~ (CIVIL CODE, Art. 1560, pars. 2
0
and 3). / • •
AGAINST HIDDEN
a guarantees that the thing sold is free from any
.~l,{?9lts or defects or any charge or
encumbrance not declared or known to the buyer
(CIVIL CODE, Art. 1561).
Hidden faults or defects pertain only to those that
make the object unfit for the use for which it was
intended at the time of the sale (Investments & Dev't
Inc. v. CA, GR. No. L-51377, June 27, 1988).
This warranty in sc1IP.s is npplicable in lease (Yap
Kim Chuan v. Tiaoqui, G.R. No. 10006, September
18, 1915).
NOTE: The provIsIons governing warranty
contained in the Title on Sales, shall be applicable to
the contract of lease (CIVIL CODE, Art. 1653).
Redhibition
The avoidance of a sale on account of some vice or
defect in the thing sold, which renders its use
impossible, or so inconvenient and imperfect that it
must be supposed that the buyer would not have
purchased it had he known of-the vice (OE LEON,
supra at 409).
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Redhibitory Action Defect at the time of Sale

An action instituted to avoid a sale on account of
some vice or defect in the thing sold (Id.).
Redhibitory Vice or Defect
A defect in the article sold against which defect the
seller is bound to warrant (Id.).
Elements: (SHEN-PW)
1. Defect is §.erious or important such that:
a. The hidden defect should render the subject
matter unfit for the use for which it is
intended; or
b. The hidden defect should diminish Jhe
thing's fitness such that the buyer would
not have acquired it or would have given
a lower price for it had he been aware of the
defect (Id. at 410; CIVIL CODE, Art. 1561).
An imperfection or defect of little consequence
does not come within the category -of being
redhibitory. It must be serious (Id. at 410) . .
2. Defect is Hidden
Hidden --Not known or coti1d· •11ot ha\/~ been
known to the vendee (Supercars"M~nagement
and Development Corp. v. The Late •Filemoh
Flores G.R. No. 148173, December 10, 2004);
Hidden to the eyes and iannot tie discbvered by
ordinary careful inspection: Hence, there is no
warranty if the defect ii patent or visible (Id. At
41~ . . . Sold on Account of Hidden Defects (CIVIL CODE,
3. gxists at the time of the sale;
4. Vendee must give .!'.!!_otic~\of the· defect to the
vendor within a reasonable time (CIVIL CODE,
Art. 1586); . .
5. Remedies must be brought within th~·:e_eriod of
six (6) months from delivery of the thing or forty
(40) days from date of delivery in case of
animals (CIVIL CODE, Arts. 1571 & 1577); and
6. No Waiver of the warranty on the part of the
vendee (CIVIL CODE, Art. 1548, par. 3).
Vendor is NOT Liable for:
1. Patent Defects
a. Defect, which the buyer must have
observed; or
b. Defect, which is not obvious, but the seller
tells the buyer, or which the buyer knows or
should have known (CIVIL CODE, Art.
1561).
2. Those that are not visible but the buyer is an
expert who, by reas0n of his profession, should
have known them (CIVIL CODE, Art. 1561).
The vendor cannot be held liable for defects suffered
by the thing sold after the perfection of the sale. The
vendee must prove that the defect existed at the time
of the sale visible (DE LEON, supra at 413).
Knowledge of Vendor, Not Important
(Applicability of Doctrine of Caveat Venditor or
Vendor Beware)
GENERAL RULE: Seller is liable even though he is
unaware of the hidden defect (CIVIL CODE, Art.
1566, par. 1).
EXCEPTION: When there is a stipulation to the
contrary and the seller is not aware of it (CIVIL
CODE, Art. 1566, par. 2).
NOTE: Good faith cannot be availed of as a defense
by the vendor (DE LEON, supra at 421).
REASON: A sound price warrants a sound article
(McCullough V. Aenlle & Co., G.R. No. 1300,
. February3; 1994).
NOTE: If the· vendee is aware of the defect in the
thing he buys q.r tl)e lack of title in the vendor, he is
deemedto havewillfuHy and voluntarily assumed the
risk attendant to the sale (Martinez v. CA, G.R. No.
L-31271, April 29, 1974).
Qbligation of S~lled_r i(;ase of Loss of the Thing
Aft. 1568) .
lfthere was no"Waiver.bf warranty and the thing was
lost duE! fo hidden defects:
1. \Nhen 9eller is aware of the hidden defects:
(L-PED)
. a, Bear the boss;
'b.. Feturn the frice;
c. • R~kiild the ~xpenses of the contract; and
d, Pay Qamages.
2. When seller is not aware of the hidden defects:
(L-PIE)
a. Bear the boss;
b, Return the ~rice;
c. Return the !nterest; and
d. Reimburse .!;_xpenses of the contract if paid
by the vendee.
If there was a waiver of warranty (CIVIL CODE, Art.
1566, par. 2): .
1, When the seller is aware of the hidden defects,
the waiver is in bad faith; as a corollary, seller is
still liable.
2. · When the seller is not aware of the hidden
defects and if the contrary has been stipulated,
the seller is not liable.

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ME~Q~Y AID
San Becta Univarsrty College of Law RGCT Bar Operations Center
Effect of Loss of Defective Thing Sold
If the thing sold had any hidden fault at the time of
the sale and should thereafter be lost through a
fortuitous event or through the fault of the buyer,
the buyer may demand of the seller the price paid
less the value of the thing at the time of loss (CIVIL
CODE, Art. 1569).
The difference between the price paid for the thing
and the value at the limo of lhi: lo:;:; represents
damage suffered by the vendee. H is also the
amount by which the vendor has enriched himself; in
other words, the vendor is still made liable on his
warranty (DE LEON, supra at 425).
Illustration: A purchased a television from B at
P250,000 which was paid in full. The television has
hidden defects, the repair of which will cost PS0,000.
The television, however, was lost through fortuitous
event. At the time of the loss the television is worth
P200,000. B is liable to refund to A the sum of
P50,000.
;:h
If it is the vendee who caused the loss of the thing; . ~{ii~}:
the vendor is still liable by virtue of the existence- of
the defects in the thing. He will be liable for P50,00O .. ,, _ ,,,Jhrough_ . norance or bad faith {CIVIL CODE,
'iiil"f''.-f/ifA'lt -1 -
the amount needed for the repairs of the thing had if
not been lost.
Alternative Remedies of the Buyer to Enforce
Warranty (CIVIL CODE, Art. 1567) . COD[j{ A7. 1{i78).
Buyer may choose between theJolfowing:
1. Accion Redhibitoria (Redhibijory Action)
- The buyer withdraws from the cont(~Ct
2. Accion Quanti Minoris
- Proportionate reduction of the pri~e,;
NOTE: In case of a breach of an implied
warranty against hidden defects, thebuyer:imay
either elect between withdrawing the from
contract and d.emanding a proportionate
reduction of the price, with damages in either
case (Sps. Batalla v. Prudential Bank, G. R. No.
200676, March 25, 2019).
The choice of remedies (accion quanti minoris
or accion redhibitoria) is available to the buyer
only when the thing has not been lost
(VILLANUEVA, supra at 464).
The same right is given to the buyer in the sale
of animals with redhibitmy defects (CIVIL CODE,
Art. 1580). . supra at 429).
The buyer must present proof that he suffered
damages as a result of the breach of the seller's
warranty to be entitled to actual damages (De
Vera, Jr. v. CA, G.R. No. 132869, October 18,
2001).
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Applicability to Judicial Sale
The warranty is applicable to judicial sales;
however, the judgment debtor is not liable for
damages for the reason that he is merely compelled
to sell his property (CIVIL CODE, Art. 1570).
Prescriptive Period
Six (6) months from the delive~ of the thing· sold
(CIVIL CODE, Art. 1571).
The prescriptive period of six (6) months is only
applicable to implied warranties. For express
warranties, the prescriptive period of four (4) years
shall apply (DE LEON, Sales, supra at 427) unless
another period is specified in the express warranty
{Isidro v. Nissan Motor PHL., Inc., G.R. No.136500,
December 3, 1999).
WARRANTY AGAINST REDHIBITORY
DEFECTS ON ANIMALS
Instances where there is Redhibito~ Defect: (EVA)
1. .!;_xpert knowledge is not sufficient to discover it
(CIVIL CODE, Art. 1576, par. 1); or
2. The ~eterinarian failed to discover or disclose it
ar 2)' or
" 3..
Th~;;Ah1fOOI dies' within three (3) days after its
purchas/Pmd the disease which caused the
death exi$t~ at the time of the contract (CIVIL
';t
claim of the buyer must be based on
a 'pert that the disease causing
the ed at the time of the contract (DE
LEON, supra at 432).
,1:,,Q.eath occurs after three (3) days from
" pure ·,a·s·e or the defect is patent or visible, the
seller is not liable. If the loss is caused by a
fortuitous event or by the fault of the vendee, and
the animal has vices, Article 1569 should be
applied (Id.).
Sale of Animals at Fairs or at Public Auctions or
as Condemned
There is no warranty against hidden defect of
animals sold at fairs or at public auctions, or of
livestock sold as condemned (CIVIL CODE, Art.
1574).
Basis: It is assumed that the defects must hr:tvP.
been clearly known to the buyer (DE LEON, Sales,
Public auctions may either be judicial or extrajudicial.
The law does not distinguish (Id.).
Sale of a Team (CIVIL CODE, Art. 1572)
GENERAL RULE: The defect of one will only give
rise to its redhibition and not of the others_
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particular purpose for which the goods are

EXCEPTION: When the buyer would not have acquired; and
purchased the sound animal/s without the defective b. Where the buyer relies upon the seller's skill
one. or judgment (CIVIL CODE, Art. 1562 par. 1).

The exception is presumed when what is bought is 2. Warranty of Merchantability

a team, yoke, pair or set (even if separate price has The seller guarantees, where the goods were
been fixed for each one of the animals composing bought by description, that they are reasonably
the same). fit for the general purpose for which they are
Remedy sold.
1. Accion Redhibitoria; or
2. Accion Quanti Minoris (CIVIL CODE, Art. 1580). It requires identity between what is described in
the contract and what is tendered, in the sense
Sale of Two or More Things Together (CIVIL that the latter is of such quality and value (CIVIL
CODE, Art. 1573). CODE, Art. 1562 par. 2).
Article 1572, with respect to the sale of animals, shall
in like manner be applicable 'lo the sale of other The requirement of merchantable quality carries
things. with it no implication that the goods shall be
saleable in a particular market (DE LEON, supra
When Sale of Animals Void at 416).
1. Sale of animals with contagious diseases:
2. Sale of unfit animals, i.e. the use orserviG€] for NOTE: Article 1562 which applies to · goods
which the animals are acquired l)as been state,<;J . bought by description and refers to an implied
in the contract and they areJ6und to ·be unfit warranty .th.at the goods are of "merchantable
therefor (CIVIL CODE, Art. 1·575):' quaiity:'fArticle 1565 which applies to goods
bo'ught ,by, ~ample and refers. to an implied
Obligation of Buyer to Return warrantythat the:goods shall be free from any
In case of rescission, the animal shall be returned in defect rendering.them "unmerchantable".
the condition in which it was sold.and delivered, the
vendee being answerable for'anyJnjury due to his Cau~es of urimer~hantability
negligence, and not arising from.th~ redhibitory fault Goqds may be utimerchantable not because of
or defect (CIVIL CODE, Art.. 1579). . a ph,ysical defect ~ut because of some other
circµmstances (&:g, infringement of trademark,
Prescriptive Period . . use: of the!J1 is darjgerous) (DE LEON, supra at
Forty (40) days from the date of delivery to the buyer 417). .
(CIVIL CODE, Art. 1577). .
. Manufacturer . or seller of animal feeds
The prescriptive period shall apply,only withrespect · .carfoot: be . held liable for ' any damage
to faults and defects, which are determineq, by law c)llegedly caused by the product in the
or by local customs (CIVIL CODE, Art. 1577,par. 2). a;1:>sence of proof that the product was
defective
WARRANTIES IN SALE OF GOODS / It is incumbent on petitioners to establish liability
WARRANTIES OF QUALITY (CIVIL CODE, on the basis of breach of implied warranty. The
Art. 1562) ·manufacturer or seller of animal feeds cannot be
held liable for any damage allegedly caused by
Quality of goods
the product in the absence of proof that the
It includes their state or condition (CIVIL CODE, Art.
product was defective. The defect of the product
1636, par. 1).
requires evidence that there was no tampering·
with, or changing of the animal feeds. The Court
PURPOSE: To promote high standard in business
explained that "in the sale of animal feeds, there
and to discourage sharp dealings. They are based
is an implied warranty that it is reasonably fit and
on the principle that "honesty is the best policy" (DE
suitable to be used for the purpose which both
LEON, supra at 414).
parties contemplated." (Padilla v. Universal
Robina Corporation, G.R. No. 214805,
1. Warranty of Fitness December 14, 2017).
The seller ·guarantees that the thing sold is
reason.ably fit for the known particular purpose
for which it was acquired by the buyer. It exists
in the following, instances:
a. Where the buyer, expressly or by
implication, manifests to the seller the
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MEt4Q~Y AID
San 8eda Universrty College of Law - RGCT Bar Operations Center
SALE UNDER A PATENT OR TRADE
NAME
There is no warranty as to its fitness for any
particular purpose, unless there is a stipulation to the
contrary (CIVIL CODC, Art. 1563).
BASIS: By exactly defir1ing what he wants, the buyer
has exercised his own judgment instead of relying
upon that of the seller (DE LEON, supra at 418).
EFFECT OF USAGE OF TRADE
An implied warranty or condition as to the quality or
fitness for a particular purpose may be annexed by
the usage of trade (CIVIL CODE, Art. 1564).
A usage in order to bind both parties:
1. It must be known both; or
2. If unknown to one, the other must be justified in
assuming knowledge on the part of the person
with whom he is dealing (DE LEON, supra at
419).
MERCHANTABILITY OF GOODS
SAMPLE
In the case of a contract of sale by sample, if the
seller is a dealer in goods of that kind, there is an
implied warranty that the goods shall be free from
any defect rendering them unmerchantable which
would not be apparent on reasonable examiriatibn of
the sample (CIVIL CODE, Art. 1565).
FORM OF SALE OF LARGE CATTlE
Governed by special laws (i.e. P.O. No. 531or The
Anti-Cattle Rustling Law) (CIVIL CODE, Art.· 1_581).
PRESERVATION OF THE
PENDING DELIVERY
The seller is bound to take care of the thing with the
diligence of a good father of a family (CIVIL CODE,
Art. 1163).
OBLIGATIONS OF THE
VENDEE
PRINCIPAL OBLIGATIONS (1.tVII r;nnF,
ART. 1582)
OBLIGATIONS OF THE VENDEE:
1. To accept delivery of the thing sold;
2. To pay the price of the thing sold in legal tender
unless another mode has been agreed upon at
the time and place stipulated in the contract; and
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3. To bcm the expenses for the execution and
, ewi:;l1 i::tliu11 uf ti ,e sale a11d µulti11y lite yoods in
a deliverable state, if such is the stipulation (DE
LEON, supra at 435).
GRACE PERIOD TO VENDEE '
A grace period granted the vendee in case of failure
to pay the amount/s due is a right, not an obligation.
The grace period must not be likened to an
obligation, the nonpayment of which, under Article
1169 of the Civil Code, would still generally require
judicial or extra-judicial demand before default can
be .said to arise (Optimum Development Bank v.
Sps. Jovellanos, G.R. No. 189145, December 04,
2013).
RULES:
1. In a contract of sale, the vendor is not required
to deliver the thing sold until the price is paid, nor
the vendee to pay the price before the thing is
delivered.in the absence of an agreement in the
contract (CIVIL CODE, Art. 1524);
BY ;;:~,\ 2. If stipulated, the vendee is bound to accept
delivery and to pay the price at the time and
, Jae · nated;
.- · itll![ o stipulation as to the time and place
-of paymEpJtand delivery, the vendee is bound to
pay at tp\,i'ilme and place of delivery;
4. In the ctb~ence of a stipulation as to the place of
delivery ii sh.all be made wherever the thing
mighf be" at \!he moment the contract was
pe ·- ' ODE, Art. 1251):
If r delivery of the thing sold has
been , he contract, the vendee is required
to pay even before the thing is delivered to him.
f 9nly the time for payment of the price has been
THING ..,;Jt;le vendee is entitled to delivery even
before the price is paid by him (CIVIL CODE, Art.
· 1524; DE LEON, supra at 437).
LIABILITY OF VEND EE FOR
OBLIGATIONS OF COMPANY BOUGHT
OUT
1. Obligation not of considerable amount or
value
- The vendee may be said to assume the
obligations of the company bought out (e.g.
when incurred in the ordinary course of trade
and when the business of the latter company is
continued).
2. Obligation of considerable amount or value
- The vendee cannot be said to assume all the
obligations of the rival company (e.g. when the
company was bought to stop operations in ns
order to eliminate competition) (PH Airlines v.
Balinquit, G.R. No. L-8715, June 30, 1956).
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3. Monetary liabilities to selling company's
employees
GENERAL RULE: Unenforceable against the
transferee of an enterprise (e.g. labor contracts like
Collective Bargaining Agreement (CBA)).
REASON: Labor contra_cts are in personae and
binding only between th_e parties (Barayoga v. Asset
Privatization Trust, G.R. No. 160073, October 24,
2005).
EXCEPTION: Unless expressly assumed, or the
sale or transfer was made in bad faith (Barayoga v.
Asset Privatization Trust, G.R. No. 160073, October
24, 2005).
OTHER OBLIGATIONS:
1. To take care of the goods without the obligation
to return, where the goods are delivered t2 the
buyer and he rightfully refuses to acGeptjt. It is .
sufficient that the buyer notifies the,si:lller tfiat he
refuses to accept them (CIVIL ·C6bE, Art ·
1~n- - ~
If the seller refuses to take ~@verybf tlje goods
after being notified to do' so oy the buyer, the
latter may resell the goods {DE,LEON; s,upra at
453). . )•• f
The buyer in such a case)s"fn'lthe position of
bailee who has had goods 'entrusfed. 0pqn him
without his assent. He h¥s·tf~6plig1'1t!O/}tq take
reasonable care of the gotJds buJ not~i,ng rnore
can be demanded of him (fd.). ·-- · · ·
The goods in the buyer's pdssessiori''are aHhe _
seller's risk (Id.). · ··
2. To be liable as a depositary if vojuhtfurily h,~
constituted himself as such (CIVIL COD'E, Art....
1587). _ Acceptance is not a condition to complete delivery.
a. To pay interest for the period between
delivery of the thing and the payment of the
price in the following cases (CIVIL CODE,
Arl. 1589): {IFV)
i. !nterest is stipulated;
It is the rate stipulated which governs;
otherwise, the legal rate of interest shall
be due (OE LEON, supra at 455).
NOTE: Interest which must be in writing
refers only to contracts of loan (CIVIL
CODE, Art. 1956).
ii. .Eruits or income are received by the
· vendee from the thing sold (DE LEON,
supra at 455);
SALES AND LEASE
Civil Law
This applies even if a term has been
fixed for tt1e payment of price (Id. at
455).
iii. yendee is guilty of default (Id. at 455).
Under Art. 1169 of the Civil Code, the
debtor incurs delay from the time of
judicial or extra-judicial demand for
payment of the price. However, demand
is not necessary to constitute delay in
the following cases: {LTD)
1.) The !:,_aw or obligation expressly
provides;
2.) Time is of the essence; or
3.) _Qemand would be useless as when
the obligor has rendered it beyond
his power to perform.
. P~RTIAL PAYMENT
Article: 15?9 applies to a situation where the seller
,'deJlvElts tti''e t,hing to the buyer, who makes partial
· pa'.y,nfont of th'i:rpurchase price (DE LEON, supra at
- .456). ·.··· ,
NOTE: Artie~ ;1'$89 (~) will not apply if the seller files
and acti9n to 'n.ullifY;, th~ contract of sale (Id.).
AcceptJnce, Nbt a.Ba\ to Action for Damages or
Other Ligal Remedy(C/V/L CODE, Art. 1586) . .
a ', C' ~
ACCEPTAN¢E
Acceptance is ;the assent to become the owner of
spe'e1ficgood~;'When d~livery of them is offered to the
buyer {DE L,EON, supra at 451).
AccepJafice and .delivery are different and separate
.... acts'.'t,fc~ptapce is the buyer's obligation while
deli\{~r'Y, is !he' vendor's obligation (DE LEON, supra
at 368J.pe•·
Vendee has nothing to do with the vendor's delivery.
The _seller must comply with his obligation to deliver
although there is no acceptance yet by the buyer (La
Fuerza Inc., v. CA, GR. No. L-24069, June 28,
1968).
GENERAL RULE: Unless otherwise agreed upon,
acceptance of the goods (CIVIL CODE, 1587) by the
buyer does not discharge the seller from liability for
damages or other legal remedy {like rescission) in
breach of any promise (CIVIL CODE, Art. 1586) or
warranty in the contract of sale (CIVIL CODE, Art.
1547).
EXCEPTION: If the buyer, after acceptance of the
goods, fails to give notice to the seller of the breach
in any promise or warranty within a reasonable time
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ofter the buyer knows or ought to know of such

breach. 3. Reject delivery of a wrong quantity of goods or
of goods of a different description not included
PURPOSE: To protect the seller against belated in the contract, which are mixed with the goods
claims (DE LEON, supra at 452). sold (CIVIL CODE, Art.1522).

RIGHTS OF THE BUYER: 4. If he refuses to accept the goods, having. the

1. Not bound to ;:iccept delivery of goods by
installments ( CIVIL CODE, Art. 1583);
However, where the contract provides for the
delivery of goods by installments and a separate
price has been agreed upon for each
installment, it depends on each case of the
terms of the contract and the circumstances of
the case whether the breach is severable or not
(DE LEON, supra at 440).
Where Breach Affects the Whole Contract
If the seller makes defective, partial or
incomplete deliveries or the buyer wrongfully
neglects or refuses to accept delivery or fails t<> ••
pay installment, the injured party may sue {$ft•
damages for breach of the entire contract if thil?
breach is so material, that is, breach of
installment prevents the performance of tfie:'.";"'1
contract, as to affect the contract as a whoil:l(/d.
at 441). ,.e;i"S·
right to do so, he is not bound to return them to
the seller; it being sufficient that he notifies the
seller of his refusal to accept (CIVIL CODE,
Art.1522).
NOTE: As to registered and titled land, the buyer
has no obligation to inquire beyond four corners
of title Rule applies only when:
a. Sale is the registered owner of the land;
b. Owner of the land is in possession thereof;
and
c. Buyer was not aware at the time of the sale
of any claim or interest of some other person
in the property or of any defect or restriction
in the title of the seller (EEG Development
Corporation v. Heirs of De Castro, G. R. No.
219694, June 26, 2019).
orte,, ::;'1' constitutes himself as depositary of
.· ;,shall be liable as such (CIVIL CODE,
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Where the Breach is Severable <•-· -:·: .:. Effect of ~,~i~t to Accept Goods Without Just
It will merely give rise . to• ''a
dalm- for Cause :, ,;
Title to lf,e ~ood~ passes to the buyer from the
compensation for the partictJl~r breach but not a·
right to treat the whole contract' as broJ<j;}n (Id.) mom ·· · ed at his disposal, except if
owne reserved by the seller (CIVIL
2. GENERAL RULE: Reasonable "oppJHbnity to· CODE, Art.
examine the goods upon delivery to asc~rtain
whether they are in conformity with ti)~ ci5ntract ~nee and Actual Receipt
before accepting the same (Ctr/JL CQClE, . nee:
and actual receipt do not imply each
Art.1584). .. .·•.-.... other. '

EXCEPTIONS: ACCEPTANCE V. ACTUAL RECEIPT

a. There is a stipulation to the contrary (CIVIL
CODE, Art. 1584).
b. In case of C.O.D. (collect- on delivery) - Implies approval of the Refers only to the
buyer is not entitled to examine until contract (e.g. where the physical act of taking or
payment is made; except if: goods are selected. by receiving the goods
i. There is an agreement permitting the buyer). With the sold.
examination; or delivery and transfer of
ii. The usage of trade permits the title postponed until a
examination (CIVIL CODE, Art. 1523, later time.
par. 3).
(DE LEON, supra at 448).
The right of ·examination is not absolute. The
seller is bound to afford the buyer a reasonable Acceptance by the buyer may precede actual
opportunity of examining goods only on delivery; there may be actual receipt without
"request" (CIVIL CODE, Art. 1584, par. 2). acceptance and there may be acceptance without
receipt (OE LEON, supra at 451).
If the seller refused to allow inspection, the buyer
may rescind the contract (DE LEON, supra at
444).
 SALES AND LEASE
Civil Law

Modes of Manifesting Acceptance (CIVIL CODE,

(CIVIL CODE, Art. the vendee (CIVIL
Art. 1585):
1495). CODE, Art. 1582).
1 . Express Acceptance
- When the buyer, after delivery of the goods,
intimates to the seller, verbally osr in writing, that PAYMENT
he has accepted them. Non-payment does not prove simulation; at most, it
gives the seller the right to sue for collection.
2. Implied Acceptance Payment of the price is a resolutory condition and
a. When buyer, after delivery of goods, the remedy of the seller is to exact fulfillment or, in
performs acts of ownership case of substantial breach, to rescind the contract
b. Failure to return goods after reasonable under Art. 1191 of the Civil Code (DE LEON, supra
lapse of time (DE LEON, supra at 448). at 71 ).

USE OF PROPERTY
GENERAL RULE: An act inconsistent with the REMEDIES FOR
seller's ownership prevents the buyer from claiming
that he has not accepted the goods. BREACH OF CONTRACT
Example:
1 . Resale or mortgage of the goods;
2. Alteration in a manner proper only.for c:1_n own,er; :f~.ttset'sslON IN CASE OF BREACH OF A
m J~ :~p).~TY' OR'lN CASE OF LESION
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3. Sells or attempts to sell the gp9ffs.{/d:)., .. 1. R~scissj(:}n'based on Art. 1191

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a:, Legal basi~is substantial breach;
EXCEPTION: !/ /',;, V if~'
·;
b. Prirt~ipa,t ~medy, retaliatory versus unjust
If such use does not affect the contlitlon of value of party;', ; ·
the property (e.g. where the _bsejs for the purpose of c. Effect i$ mutual restitution.
trial) (Id. at 449). •. ··· · • 'le ~

., 2: · Rescission 6~sed;,op Art. 1381

EXCEPTION TO THE EXCEP.TJOfSI: ..... a. :Legal b~sis isll~sion (rescissible contract);
If the buyer prolongs the trfFI beydnd l;l rifu.\ooal;)!e b.i Subsidi~r;y r~rrjedy - cannot be instituted
period, or uses more of the 1goq.dS;, f:han -ji;;·faitly and / ::exceptwtienpther remedies are exhausted;
reasonably necessary in niaking the;tests,(/~.J-\., c. iEffectis mutual restitution.
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NOTE: The buyer must notify, the sel\fr withitf'a .,... gEMEDIES OF,,THE BUYER
reasonable time after the buyei\knows ot,0u'gJ:ifito;.
know of the breach; otherwise, tl:)e se\ler':wm h~ · · _,:,F

WHEN THE,SUBJECT MATTER OF THE

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released from such liability (CIVIL coog, Art 1pp6):

i.
.CONTRACT OF SALE IS IMMOVABLE
Notice is still required even if the seller •hi;!!>_ .PROPERTY
knowledge of the facts constituting the breach 1. Suspension of payment (CIVIL CODE, Art.
because whether or not the defect constitute a 1590);
breach must be taken from the point of view of the It contemplates a situation where the contract is
buyer (5 TOLENTINO, Civil Code of the Philippines not yet consummated (DE LEON, supra at 457).
Annotated, p. 134 [hereinafter, 5 TOLENTINO]).
It is applicable in the following cases (grounds to
DELIVERY V. ACCEPTANCE invoke suspension of payment):
a. Where the vendee is disturbed in
possession or ownership of the thing
bought; or
b. Vendee has reasonable ground to fear that
his possession or ownership would be
disturbed (by a vindicatory action or a
foreclosure of mortgage).

One of the obligations of Acceptance is an in both instances, the vendee may retain only
the vendor is the obligation on the part of the price that has not been paid to the vendor.
delivery of the thing sold

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I le is not entitled to recover what has already
been paid (DE LEON, supra at 457).
Under the second case, it is not necessary that
an action be brought against the vendee {Id.).
Exceptions to Suspension of Payment
(where vcndcc has no right to suspend
payment): (SSCTP)
a. Vendor gives §.ecurity for the return of the
price in a proper case (CIVIL CODE, Art.
1590);
b. §.tipulation that vendee must make payment
notwithstanding such contingency (CIVIL
CODE, Art. 1590);
c. £essation of disturbance or danger (Bareng
v. CA, GR. No. L-12973, April 25, 1960);
d. Disturbance is a mere act of Irespass (DE
LEON, supra at 457), or
e. Vendee has _raid the price in full (Id.).
NOTE: When the disturbance is caused by non-
apparent servitude, the remedy is rescission, not ..
suspension of payment (CIVIL CODE, Att
1560).
Length of Suspension of Payment
The right to suspend payment granted.by law to
the vendee exists only while the danger or
disturbance lasts. Once the vendor has caused
the cessation of this disturbance· such as by
compromising with the thirdperson who poses
the danger or disturbance to the vendee's
possession or ownership, the vend~e must
already pay (Bareng v. CA, GR. ,NoJL~, 2973,
April 25, 1960).
Mere Act of Trespass
A mere act of trespass shall not authorize.the
suspension of the payment of the pric~ (CIVIL
CODE, Art. 1590).
2. ln the sale of immovable property, to pay even
after the expiration of the period agreed upon,
as long as no demand for rescission of the
contract has been made upon him either
judicially or by a notarial act, even though it may
have been stipulated that rescission shall of right
take place upon failure to pay the price at the
time agreed upon (CIVIL CODE, Art.1592).
The defaulting vendee may defeat the vendor's
right to rescind the contract of sale if he pays the
amount due before he receives a demand for
rescission, either judicially or by a notariai act,
from the vendor (Heirs of Pangan v. Sps.
Perreras, G.R. No. 157374, August 27, 2009).
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GENERAL RULE: Once a demand for
rescission by suit or notarial act is made, the
court may not grant the vendee a new term
(CIVIL CODE, Art.1592).
EXCEPTION: In the interest of justice and
equity, where the vencieA h.=is s11hst,mti,illy
performed in good faith (J.M. Tuazon & Co. v.
Javier, G.R. No. L-28569, February '27, HUD).
Art. 1592 is not applicable in the following
cases:
a. Sale of installment on real estate - It does
· not apply to a sale on installment of real
property when the parties have laid down
the procedure to be followed in the event
that the vendee failed to fulfill his obligation
(Albea v. lnquimboy, G.R. No. L-1601, May
29, 1950).
b. Contract to sell/conditional sale of real
estate - In this case, the title remains with
the vendor until full payment of the purchase
price (Roque v. Lapuz, G.R. No. L-32811,
Ma • 31, 1980). Payment in this case is a
e suspensive condition, the failure of
whicfi;prevents the obligation of the vendor
to copvf3y title. In an absolute sale, non-
pay'm~nl is a resolutory condition
(J?angilin~n. v. CA, G.R. No. 83588,
$ept& bJt 29, 1997).
·y the Realty Installment Buyer
nown as the Maceda Law (R.A. 6552).
QTE: Article 1191 is subordinated to the
.'''.visions of Article 1592 when applied to sales
of immovable property (DE LEON, supra at
459).
The mere failure to fulfill the contract does not
operate ipso facto as its rescission (DE LEON,
supra at 459). ·
A judicial or notarial act is necessary before a
valid rescission can take place; whether or not
automatic rescission has been stipulated
(Jringan v. CA, GR. No. 129107, September 26,
2001).
A complaint by the vendor seeking the
cancellation of the vendee's adverse claim on
the vendor's original certificate of title and for the
refund of the payments made cannot be
considered a judicial demand under Article
1592. Seeking discharge from contractual
obligations and an offer for restitution is not the
same as abrogation of the contract (Ocampo v.
CA, G.R. No. 97442, June 30, 1994).

NOTE: In Articles 1191 and 1592, the rescission
is a principal action which seeks the resolution
or cancellation of the contract, while Article
1381, the action is a subsidiary one limited to
cases of rescission for lesion as enumerated in
said article (DE LEON, supra at 461 ).
3. In case of Subdivision or Condominium
Projects (P.O. 957, The Subdivision and
Condominium Buyer's Protective Decree).
Non-forfeiture of Payments
No installment payments made by the buyer in a
subdivision or condominium project for the lot or
unit he contracts to buy shall be forfeited in favor
of the owner or developer when the buyer, after
due notice to the owner or developer desists
from further payment due to the failure of the
owner or developer to develop the subdivision,or
condominium project according to the appr6ved
plans and within the time limit for q)mplyirigwith
the same (P.O. 957, Section 23}t · · ·
4. Rights provided for un;der 'ftl!aceda Law
(see Maceda Law section):
WHEN THE SUBJECT.MATTER OF THE
CONTRACT OF SALE IS A MOVABLE
PROPERTY /,'. ;
a. In case of failure of sell~r foAeliy¢r; me buyer
may seek action for 'spe,ci{rc peff6r,rt1ance,
without giving the seller the cip\jon of retaining
the goods on payment of daQ1ages · (CIVIL
CODE, Art. 1598). . refyie to rec~ive the goods; or if goods have
REASON: Damages are imposed by l~v/to · ·
insure fulfillment of contract and nof substitute•
for it (DE LEON, supra at 479). ' · · · ··
b. The judgment may be unconditional, or upon
such terms and conditions as to damages,
payment of the price 13nd otherwise, as the court
may deem just (CIVIL CODE, Art. 1598).
This article applies only where the goods to be
delivered are specific or ascertained (CIVIL
CODE, Art. 1598).
c. In case of breach of seller's warranty, the buyer
may, at his election, avail of the following
remedies: (RADaR)
i. _Becoupment - Accepf or keep the goods
and set up the seller's breach to reduce or
extinguish the price (CIVIL CODE, Art. 1599,
par. 1);
SALES AND LEASE
Civil Law
Theory of Recoupment
The seller's damages are cut down to an
amount which will compensate him for the
value of what he has given (DE LEON, supra
at 482).
Remedy of recoupment must be
exercised in relation to the same
transaction: Recoupment must arise out of
the contract or transaction upon which the
plaintiff's claim is founded. To be entitled to
recoupment, the claim must arise from the
same transaction. That there was a series of
purchases made by petitioners could not be
considered as a single transaction (First
United Constructors Corporation v.
Bayanihan Automotive Corporation, G.R.
No. 164985, January 15, 2014).
ii. Accept the goods and maintain an action for
damages for breach of warranty (CIVIL
QO°"E, Art. 1599, par. 1 (2));
iiL Actign'or counterclaim for Damages -
Refuse to accept the goods and maintain an
·.adlqn for'damages for breach of warranty
'(CIVIL,,. ('JODE;, Art. 1599, par. 3); or
Note: Adcei;>_t£nce with knowledge if the
preach ofwar[a·nty does preclude rescission
~ut it d~s,nci hecessarily preclude a right
to recoOpment} or damages (DE LEON,
silpra at 483);: i
/iv. Rescission c2 Rescind the contract and
9Jready been received, return them or offer
fo re~\Jrn)hem and recover what was paid or
. ·, •any part of it concurrently with return or
• inj'mediately after it (CIVIL CODE, Art. 1599,
par. 4).
These are alternative remedies, without
prejudice to paragraph 2 of Article 11.91 of
the Civil Code (a party may still seek
resc1ss1on after choosing specific
performance if the latter is impossible)
(CIVIL CODE, Art. 1599, par. 4 (2)).
NOTE: Article 1599 applies both to implied
warranties and to express warranties,
whether of quality of or of title (OE LEON,
supra at 481).
Article-1599 does not apply if the contract of
sale was not perfected (Insular Life
Company Ltd. v. Young, G.R. No.140964,
January 16, 2002).
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When Rescission by Buyer Not Allowed:

1.) If the buyer accepted the goods SALE BY DESCRIPTION AND BY
knowing the breach of warranty without SAMPLE
protest;
The goods must satisfy all the warranties
2.) If he fails to notify the seller within a
appropriate to either kind of sale (DE LEON, supra .
reasonable time of his election to
at136).
rescind; or
3.) If he fails to return or offer to return the
goods in substantially as good BUYER'S RIGHT TO SPECIFIC
condition as they were in at the time of PERFORMANCE
tho tranefer of ownership to him. But In cosc the seller ohould violate hie obligation to
where the injury to the goods as caused make delivery, the buyer as a matter of right can
by the very defect against which the demand specific performance upon application to
seller warranted, the buyer may still the court (CIVIL CODE, Art. 1598).
rescind the sale (CIVIL CODE, Art.
1599,.par. 4(3)). The seller cannot retain the goods on payment of
damages (Id.).
Rights and Obligations of Buyer in REASON: Payment of damages is not a substitute
Case of Rescission: for specific performance. It is imposed by law to
1.) Buyer shall cease to be liable for the insure fulfillment of the contract (DE LEON, supra at
price, his only obligation being to 479).
return the goods (CIVIL CODE, Art.
1599, par. 4 (4)); ·.. The judgment or decree by the court may be
2.) If he has paid the price or any part unconditional, or upon such terms and conditions as
thereof, he may recover it from fhe ·. to damages, payment of the price and otherwise, as
seller (CIVIL CODE, Art. 1599, par,'4 , eem just (CIVIL CODE, Art. 1598).
(4));
3.) He has the right to hold th~ goods as COMPAR TIVE TABLE OF REMEDIES
bailee for the seller should tne latter ..
refuse to accept the offer of th13. buyer
Jrt
«;ASE OF BREACH
to return the goods (CIVIL CODE, Art.
1599, par. 4 (5)): arid
4.) He has a right to have a lien on the Rescission based on
goods for any portion of tpe price substantial breach
already paid which such lierimay be (CIVIL CODE, Art.
enforced as if he were ari unpaid 1191).
seller (CIVIL CODE, Art. 159[[, par. 4
(5)). . for damages
CODE, Art.
d. In case of sale of goods by samp,l~ .Qr by
description, the buyer may demand rescission:
i. In a contract of sample or description, if the
bulk of the goods do not correspond to the 1. Rescission based on 1. Suspension of
sample or description; or Anticipatory Breach payment (CIVIL
ii. In sale by description and sample, if the (CIVIL CODE, Art. CODE, Art. 1590);
bulk of the goods do not correspond with 1591); 2. Right to grace period
the sample and description (CIVIL CODE, 2. Rescission based on under the Maceda
Art. 1481). a stipulation Law.
regarding automatic
SALE BY DESCRIPTION resc1ss1on (CIVIL
Purchaser has not seen the article sold and relies on CODE, Art. 1592);
the description given to him by the vendor, or has 3. Maceda Law.
seen the goods but the want of identity is not
apparent on inspection (DE LEON, supra at 135).

1. Action for the price 1. Action for specific

SALE BY SAMPLE
of the goods/specific performance in case of
It must appear that the parties contracted solely with performance (CIVIL specific or ascertained
reference to the sample, with the understanding that CODE, Art. 1595); goods ( CIVIL CODE,
the bulk was like it (DE LEON, supra at 135). Art. 1598);

2. Technical 2. In case of breach of
Rescission (CIVIL warranty of seller ( CIVIL
CODE, Art. 1597); CODE, Art. 1599).
3. Rescission based on
a stipulation
regarding automatic
resc,ss,on (CIVIL
CODE, Art. 1593);
4. Remedies of unpaid
seller (CIVIL CODE,
Art. 1526).
REMEDIES OF THE SELLER
WHEN THE SUBJECT MATTER OF THE
SALE IS IMMOVABLE
1. When there is anticipatory breach
Seller may sue for rescission if the following
concur:
a. There is delivery of immovable property;
b. Vendee has not yet paid the price; and
c. Vendor has reasonable ground to fear the:
i. Loss of the immovable property; and
ii. Loss of price (C{VIL CODE, Art. 1591).
This contemplates a sifuation ,'.where there has
been delivery of the imrt,ovablff property, but the
vendee has not yet pald fhe price (DE LEON,
supra at 458). · demand by judicial or notarial act (DE LEON,
This is applicable to both c.ash sales and to sales
in installments as Art. 1591 of the Civil Code
does not distinguish betweE)n one arid the other
(Id. at 459).
Pursuant to Art. 1191 of the Civil Code, the
vendor may sue for either fulfillment or
rescission with damages in either case upon the
vendee's failure to comply with his obligation to
pay the agreed price (Id.).
Rescission of a contract would not be permitted
for a slight or casual breach but only for such
substantial or fundamental breach that would
defeat the very object of the parties (Id.).
2. When there is failure on the part of buyer
to pay the price
Automatic rescission of sale of immovable
property is stipulated (CIVIL CODE, Art.
1592).
a. Vendor is given an option to rescind upon
JUDICIAL OR NOTARIAL demand;
b. When there is no judicial or notarial demand,
vendee may still pay. Offer to pay is
SALES AND LEASE
Civil Law
sufficient to defeat vendor's prerogative.
Vendor's right to rescind is not absolute;
c. Art. 1191 (3) of the Civil Code provides that
the court may grant vendee a new term.
However, if there is already a demand, the
court may no longer fix a term.
Applicability of Art. 1592
It applies only to a contract of sale of real
property where title passes to the vendee upon ·
the delivery of the thing sold usually effected
through the execution of public document. It
does not apply to conditional sale where the title
remains with the vendor until full payment of the
price (Valarao v. CA, G.R. No. 130347. March 3;
1999).
Meaning of "even though"
According to Justice Paras and Dean
Villanueva, the phrase "even though" signifies
that Article 1592 of the Civil Code is applicable
to all sales of immovable even when there is no
stipulation on automatic rescission (5 PARAS,
supra at 244; VILLANUEVA, supra at 394).
According to De Leon, however, the phrase
"even tho.ugh" . emphasizes that when no
stipulation is found on automatic rescission, the
judicial or notarial requirement still applies.
According to him, trierefore, the buyer may still
pay the price everi after the expiration of the
period and notwitt;lstanding a stipulation on
automatic rescissidn, as long as there is no
supra at 460). ·
Prescriptive Period (rescission under Articles
1191 and 1592)
It must be broughtwithin ten (10) years frorn the time
the right ofaction accrues (CIVIL CODE, Art. 1144).
SeUer is given an option to demand rescission upon
judicial or notarial demand (CIVIL CODE, Art. 1592).
NOTE: An action for reconveyance is not an action
for rescission. The judicial rescission of a contract
gives rise to mutual restitution which does not
happen in an action for reconveyance (Olympia
Housing Inc. v. Panasiatic Travel Corp., G.R. No.
140468, January 16, 2003).
However, when there is no judicial or notarial
demand, the buyer may still pay. Offer to pay is
sufficient to defeat seller's prerogative (DE LEON,
supra at 460).
The right of automatic rescission, which is
stipulated in a contract of sale, is subject to waiver.
In this case, the right was held waived by the vendor
who granted many extensions to the vendee, in all
of which, the vendor never called attention to the
 ; tD ' I
MEM:Q:RY Al D
San Bedll University College of law - RGCT Bar Operations Center
proviso on "automatic rescission" (Pilipinas Bank v.
/AC, G.R. No. L-67881; June 30, 1987).
WHEN THE SUBJECT MATTER OF THE
SALE IS MOVABLE
1. Movables in general
Automatic rescission shall take place in the
interest of the seller if the buyer without any valid
cnuse, upon the expiration of the µeriou rur
delivery of thing:
a. Should not have appeared to receive it; or
b. Having appeared, should not have tendered
the price at the time, unless a longer period
is stipulated for its payment (CIVIL CODE,
Art. 1593).
Reason behind Art. 1593: The delay is
prejudicial to the vendor since personal
properties are not capable of maintaining a
stable price in the market (DE LEON, supra at
468).
It applies only when thing sold has not been. ; j,iL
delivered to the buyer. • · ··
REASON: The buyer cannot take the law in his
hands (Id.). · 1µ9sequent performance from the seller
2. Sale of Goods
Provisions Governing Breacb,of Contnict of
Sale of Goods (CIVIL CODE,'Art. 1594)
Governed particularly by ·tiie provisions of
Chapter 6 (CIVIL CODE, Arts. 1595-1599), ancl
secondarily, by the other provision5, of t~e Title
on sales so far as said provisions can apply (DE
LEON, supra at 470). · \,1;;,Sc•\,;f;fi1L/l::i. .;. ,,,. .:·.·.··.·, .. Art. 1595, par. 3).
"Goods" include all chattels personal but riot
things in action or money of legal tenoer in the
Philippines. The term includes growing fruits or
crops (CIVIL CODE, Art. 1636, par. 1).
Actions available
In general, the actions available for breach of
the contract of sale of goods are the following:
1. Payment of the price (CIVIL CODE, Art.
1595);
2. Damages for non-acceptance of the goods
(CIVIL CODE, Art. 1596);
3. · Rescission of the contract for breach thereof
(CIVIL CODE, Art. 1597);
4. Specific Performance (CIVIL CODE, Art.
1598); and
5. Rescission or damages for breach of
warranty (CIVIL CODE, Art. 1599).
a. Seller's Right of Action for the Price
(CIVIL CODE, Art. 1595)
i. When the ownership of the goods has
passed to the buyer and he wrongfully
neglects or refuses to pay for the goods
according to the terms of the contract,
the seller may maintain an action
against him for the price of goods (CIVIL
CODE, Art. 1595, par. 1).
When price is payable on a certain day,
irresrective of delivery or transfer of
title, and the buyer wrongfully neglects
or refuses to pay, the seller may
maintain an action for the price although
the ownership in the goods has not
passed (CIVIL CODE, Art. ·1595, par. 2)
However, it is a defense to such action
that seller has manifested an inability to
perform the contract of sale on his part
or an intention not to perform it at any
time before the judgment (CIVIL CODE,
Art. 1595, par. 2).
• .t. Reason: A contract of sale
contemplates a double exchange.
·;J.i,t There is justice as well as good reason
P~~~
0
· }~'«fi:i;~·1tfs>2~tiirro~~ci~~~g :~!n b~~erwii; ~ot
,(DE,LEON.. supra at 473).
lfrgoods cannot readily be resold for a
reasonable price, although transfer of
· · ·p has not passed, and if the
s of Article 1596 par. 4, are not
app icable - seller may offer to deliver
the goods to the buyer (CIVIL CODE,
iii. If buyer refuses to receive, seller may
notify the buyer that he holds the goods
as bailee for the buyer. Thereafter, the
seller may treat the goods as the buyer's
and may maintain an action for the price
(CIVIL CODE, Art. 1595, par. 3).
b. Seller's Right of Action for Damages
i. When the buyer wrongfully neglects or
refuses to accept and pay for the goods
(CIVIL CODE, Art. 1596, par. 1);
ii. In an executory contract, where the
ownership in the goods has not passed,
and the seller cannot maintain ;m action
to recover the price (CIVIL CODE, Art.
1595, par. 4); or
iii. If the goods are not yet identified at the
time of the contract or subsequently, the
seller's right is necessarily confined to
an action for damages (DE LEON,
supra at 475).

Measure of Damages
Estimated loss directly and naturally
resulting in the ordinary course of events
from the buyer's breach (CIVIL CODE, Arl.
1596, par. 2).
Measure of Damages {when there is
available market)
In the absence of special circumstances
showing proximate damage of a different
amount, the difference between the contract
price and the market or current price at the
time the goods ought to have been
accepted, or at the time of refusal to accept
when there is no time fixed (CIVIL CODE,
Arl. 1596, par. 3). This follows the general
rule that damages comprehend not only the
actual loss suffered but also unrealized
profit (CIVIL CODE, Art 2200) (DE LEON,
supra at 475).
Measure of Damages (when"ther~ no
available market) / ·i . ,
The seller is entitled to tni:vfull\amounr of
damage which he has r?'~lly0$US!j3ifie9 by a
..
breached of the contr~g '(DE'J;;.EO!( supra
at 475). ' ·,. l . ·..·.
Measure of ,"Da!J}a~es ; (special
circumstance $h"6wirl,g proximate
damage) r .••· .,
An amount greater''".'.than the difference
between the contra&t pri~fl 'anlrriit~E:ll price
when "may be reas~nably \tttrib4tei.!)q th~
non-performance of ,the ob'ljgation. (C1V.JL
CODE, Art. 2201, par'.?)- ' . . . .,
Example: Hospitalizati~A,expen¥S·-d,!Je ta .
the refusal of the buyer, without,Justcause,.
to accept the delivery so ang~reclfhe -~ell er
that the latter suffered a heart attac~ for
which he was hospitalized (DE LEON, supra
at 476).
Measure of Damages for Repudiation or
Countermand
The measure of damages would include:
i. The labor performed and expenses
incurred for materials before receiving
notice of the buyer's repudiation; and
ii. The profit he would have realized if the
sale had been fully performed {CIVIL
CODE, Art. 1596, par. 4).
c. Technical Rescission (CIVIL CODE, Art.
1597)
This article applies where there has been no
delivery of goods yet. .
SALES AND LEASE
Civil Law
In the following instances, the seller may
totally rescind by giving notice of his election
to do so to the buyer:
i. Buyer has repudiated the contract of
sale;•
ii. Buyer has manifested his inability to
perform obligations thereunder; or
iii. Buyer has committed a breach
NOTE: The seller is required to give notice
of his election to seek rescission. Formal
notice is certainly not a requisite, and
bringing an action promptly for restitution is
sufficient (DE LEON, supra at 477).
If the goods have been delivered, the seller
may recover the value of what he has given
(CIVIL CODE, Art 1595).
UNPAID SELLER
I
1. · The ;~Mir
'Af!io to whom the whole of the price
has not been paid or tendered;
2. The· sellef-Qf?the goods, in case a bill of
' exchange or
ott')~r negotiable instrument has
. been receiv~d as cpnditional payment, and the
condition o~ whichj it was received has been
brqken ,by , reason· of the dishonor of the
i9structient, ,jnsoiveficy of the buyer or otherwise
i(C!YJL COPE, Art"1525).
.
. ~ .
. ::J:he te~ sellefas used in Articles 1525 to
·. 1535 include!:kthe following:
> .a-" ''.Agent offhe seller, to whom the bill of lading
•· hai b,een indorsed;
· · ti, C,plitignor or agent who has himself paid, or
/is directly responsible for the price; or
c. Any other person in the position of the seller
(CIVIL CODE, Art. 1525).
NOTE: A seller is .unpaid within the definition
whether title has or has not passed {CIVIL CODE,
Art. 1526).
TENDER OF PAYMENT BY BUYER
So far as concerns his rights against the goods, he
is not an unpaid seller after the tender of the price
(DE LEON, supra at 298).
REMEDIES OF UNPAID SELLER:
(Po5 4A 2 RM) ·
1. Possessory lien (CIVIL CODE, Arts. 1527 to
1529);
2. ~toppage of goods in transitu (CIVIL CODE, Art.
1530);

ft iliW \ /
MEM:Q~Y AID
San Seda Urwersity Col!i:,ge of Law - RGCT Bar Operations Center
3. §pecial right of resale (CIVIL CODE, Art. 1533);
4. ~pecial right of rescission (CIVIL CODE, Art.
1534);
5. §pecific performance;
6. ~ction for the price;
7. ~ction for damages;
8. Recto Law (CIVIL CODE, Art. 1484); and
9. Maceda Law (R.A. No. 6652).
POSSESSORY LIEN (CIVIL CODE, Art. 1527)
The seller is entitled to retain possession of the
goods as security for the purchase price.
When it may be exercised: (WEI)
1. The goods have been sold Without
stipulation as to credit.
The seller is entitled to the payment of the price
at the same time that he transfers the
possession of the goods (CIVIL CODE, Art.
1524).
2. The goods have been sold on credit, but the
term of credit has £Xpired.
The obligation of the buyer to pay shall be
governed by Article 1524 of the Civil Code (DE
LEON, supra at 301).
3. The buyer becomes !nsolvent (CIVILCODE, Art.
1527).
Insolvent -- A person who ceased to pay his
debts in the ordinary cou~e of business or
cannot pay his debts as they become due,
whether insolvency proceedings been have
commenced or not (CIVIL CODE, Art. 1636, par.
~-
Basis: When one party to a bilateral •contr.act is
incapacitated from performing his part:of the
agreement, the other party is also excused from
performing his part (DE LEON, supra at 300).
NOTE: The seller may exercise his right of lien
notwithstanding that he is in possession of the goods
as agent or bailee for the buyer (CIVIL CODE, Art.
1527, par. 2).
When Unpaid Seller Has Made Part Delivery of
the Goods
GENERAL RULE: He may exercise his right of lien
on the remainder that has not been delivered ( CIVIL
CODE, Art. 1528).
EXCEPTION: When part delivery has been made
under such circumstances as to show an intent to
waive the lien or right of retention (CIVIL CODE, Art.
1528).
' :; i" : h ~- ~
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When unpaid seller loses his lien: (COW)
1. Delivery of the goods to a ~arrier or other bailee
for the purpose of transmission to the buyer
without reserving ownership in the goods or right
to the possession thereof;
REASON: An unconditional delivery to an agent
or bailee for the buyer is the same as delivery to
the buyer insofar as the seller's lien is concerned
(DE LEON, supra at 303).
2. When the buyer or his agent lawfully Qbtains
possession of the goods;
any REASON: The seller has no possession
necessary for a lien (Id.).
3. By Waiver of the lien (CIVIL CODE, Art. 1529).
Loss of Lien
The lien of the seller depends upon either
possession or control of the property on which the
::\: lien is claimed, and if the seller permits the property
tt;pJ. to go into actual possession of the buyer, such lien
;}::/ is lost, although he delivers on the faith of a chattel
'ji~Jfi'[Q~9~}f'jfilth turns out to be invalid, or draft given
•.•· in pi:i~fB~s dishonored. If, however, the seller
has been ind4t;ed to part with possession by fraud,
the lien of ithe\seller is not lost but continues (5
TOLENTttyb.fc,'v{I Code, supra at 82).
Revival.of Lien after Delivery:
1. If ·' ·· ·. rejected by the buyer, and the
car ilee continues in possession of
them, even if the seller has refused to receive
them back (CIVIL CODE, Art. 1531, pars. 1 and
.
2. If the buyer refuses to receive the goods in
wrongful repudiation of the sale, provided that
the seller makes it clear in accepting the goods
from the buyer that.he is not assenting to the
rescission of the sale (DE LEON, supra at 304).
However, the return of the goods by the buyer to
the seller not in repudiation of the sale but for
some special purpose, such as to have repairs
or alterations by the seller, does not revive the
lien of the seller (5 TOLENTINO, supra at 83).
NOTE: Possessory lien is lost after the seller loses
possession but his lien as an unpaid seller remains.
His preference can only be defeated by the
government's claim to the specific tax on the goods
themselves (CIVIL CODE, Arts. 2241, 2242 and
2247).
Possessory lien is different from lien on the price. In
the first, the seller is entitled to retain possession of
the goods as security for the purchase price. In the

second, after delivery, the seller loses his
possessory lien but retains his lien on the price of the
goods (PINEDA, Sales, supra at 199).
STOPPAGE OF GOODS IN TRANS/TU
A right which a seller of goods on credit has to recall
them or retake them while they are in possession of
a carrier or other middleman who received them for
delivery to the buyer, on discovery of the insolvency
of the buyer (DE LEON, supra at 305).
Requisites: (UI-TE-RE)
1. Seller must be ,!!npaid (CIVIL CODE, Art. 1525);
2. Buyer must be !nsolvent (CIVIL CODE, Art.
1530);
NOTE: The buyer's insolvency need not be
judicially declared (Cl\1/L CODE, 1636 par. 2).
3. Goods must be in Iransit (CIVIL CODE_,.Art:
1531 ); and .,.. • foll9wint1circumstances do not justify the exercise of
4. Seller or his agent in that behalFf;'.;J;1·i1theG--P''
a. Actually take possession.Pbf,U:ie,gtJ9{f§°sold;
0~ ,t.... · , . ._: . -.
b. Give notice of his claim toJh~ G2frrier or other
person in possessioji of th~/goo~s (CJViL
CODE, Art. 1532, par, 1J t
NOTE: The carrier mayJncurfi~bility to\he setter
for delivering the goods f to _the, buyer
notwithstanding the proper'an~ timgly}riQtice.to... : ..
stop in transitu (DE LEON, fip~a al~S).\
~,J "';.
'"-
',,.
5. The carrier or other person in pci~;;essfoi\ i~st
_Bedeliver the goods to, ~r acco"tqing 'to Jlie_
directions of, the seller (CIV/t. CODE,~A,:t. 1532, '.
par. 2); and ·-- .... ·
•:,,.
'<,:~.
6. The seller must bear the .!;_xpenses "ot'<l~iweiy of
the goods after the exercise of the right'(61\LJl,.
CODE, Art. 1532, par. 2). .
Notice may be given either to the person in actual
possession of the goods or to his principal (CIVIL
CODE, Art. 1532, par. 1).
Basis of the Right of Stoppage in Transitu
The injustice of allowing the buyer to acquire
ownership and possession of the goods when he
has not paid and, owing to his insolvency, cannot
pay the price which was to be given in return for the
goods.
One man's property should not be applied in
payment of another's man's debt (DE LEON, supra
at 307).
SALES AND LEASE
Civil Law
Gash Sales
No right of stoppage in transitu exists in a cash sale.
The sale must be on credit to entitle the seller the
right (DE LEON, supra at 306).
Effect of the Exercise of Right by Seller
1. To restore the seller to the same position as if
the property never left his possession (CIVIL
CODE, Art. 1530), but subject to lien of carrier
for freight charges;
2. It does not operate to rescind the sale, and if the
buyer has paid part of the price, does not entitle
the buyer to recover such part payment; and
3. The seller may sue and recover the agreed
price, provided he is ready and willing to deliver
the goods on payment (DE LEON, supra at 308).
Requirement of Insolvency
The seller cannot exercise the right at the mere
./?:!price Cif the seller where no insolvency exists. The
,tn~'right bf&toppage in transitu:
:J"'.', l;he J:>yyen.,~as in default in the performance of
··h1&, ObligaliQfls;
;'"°' • ......
2,. The ·d,__eath of ·$he buyer, unless his estate is
insolvent' OF , ·.
3. Th~\fa_ct\\~at'fti_e'goods have been levied on by
attaching yre~1t9r~ of the buyer, unless the
·· · buy~r ,"
is insplve_n!.(PE
;,-.,-,,~ ,, . -t
LEON, supra at 307).
Time of Insolvency .. ;
The_ byy,fi:.becqme insblvent before he has taken
~oss~~ioQ:ofttje~ffe, or insolvency existed at the
/ . ' .,
tim7~~fJhe ~pie, if Jt was not discovered until
c}.fte_rvvards by;.the sell~r, then the seller has the right
ofst8ppag~t(/d.), ·
'
Wh,n,tJle,qoods"~re considered "In Transit":
1''.' Ifrprp fhi(,tfme when they are delivered to a
' ;- i-
, c~h:i~f,,of other bailee and before the buyer or
'.JJ,is,agent takes delivery of them; and
2:· If the goods are rejected by the buyer, and the
carrier or other bailee continues in possession of
them (even if the seller refused to receive them
back) (CIVIL CODE, Art. 1531, par. 1).
Mere arrival of the goods at or on the premises of the
carrier at the point of destination does not terminate
the transportation for transit includes not only the
carriage of the goods to the destination, but also
delivery according to the terms of the contract (DE
LEON, supra at 310).
The mere act of the carrier or middleman in giving
notice to the buyer regarding the arrival of the goods
is not a termination of the transit (Id.).
NOTE: Taking of the goods in transit by an
unauthorized agent of the buyer does not extinguish
 \ I ' ' e" ; > ' /,,~

ME~Q-RY AID
San Seda Un!Versity Cottoge of Law - RGCT Bar Operations Center ~ _,
'
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tho right of stoppage in tmnsitu (5 P/\R/\S, Civil up possession of the whole of the goods (CIVIL
Code, supra at 166). CODE, Art. 1531, par. 4)

In case of misdelivery, the goods are still considered
in transit, hence, the seller may still exercise said
right pursuant to Article 1532 of the Civil Code, which
provides that an unpaid seller may exercise his right
of stoppage in transitu by giving notice of his claim
to the carrier "or other bailee in whose possession
the goods are."
When the Goods are NO Longer in Transit:
(ADAR)
1. ~fter delivery to the buyer or his agent in that
behalf;
2. If the buyer or his agent obtains _Qelivery of the
goods at a point before their arrival at the
appointed destination;
3. If after the arrival of the goods at the appointed
destination, the carrier or the . bailee
~cknowledges to hold the goods in behalf of the
buyer (also known as Attornment by the Bailee)
(DE LEON, supra at 310); and · Effect if the Buyer Already Sold the Goods:
4. If the carrier or bailee wrongfully :::' ,_.-..,.,-;,:,rr
deliver the goods to the buyer (CIVIL CODE,
1531, par. 2).
Effects of the Exercise of the Right of Stoppage
in Transitu:
1. The goods are no longer in transit (CIVIL CODE,
Art. 1531, par. 2);
2. The contract of carriage ends after the arrival of
the goods at the destination. The carrier now
becomes a mere bailee, and will be liable as
such (CIVIL CODE, Art. 1531, par. 2(2)); and
3. The seller would have the same rights to the
goods as if he had never parted possession with
it (CIVIL CODE, Art. 1530).
Ways of Exercising the Right:
1. By taking actual possession of the goods; or
2. By giving notice of his claim to the carrier or
bailee in whose possession the goods are
(CIVIL CODE, Art. 1532, par. 1).
GENERAL RULE: The unpaid seller's right to lien or
stoppage in transitu remains even if buyer has sold
( IL CODE, Art. 1535).

When a carrier first receives goods consigned to the EXCEPTI .

buyer, the carrier is agent for the s~ller for the·
purpose of delivering the goods to the buyer:tn order
to terminate the seller's right to stop, the carljet[11USt
enter into a new relation, distincf"from ti:]e original
contract of carriage, so th~( he theq_ holds
possession of goods for the buyer as his .i:lflent for,
the purpose of custody on the buyer'S aGC6unt (DE'
LEON, supra at 311). · ,· ··
Effect of Refusal to Deliver:
1. Wrongful Refusal
- The goods are no longer in transit. The carrier
is not allowed to extend the seller's· right by
refusing to deliver the goods to the buyer or his
agent in that behalf (CIVIL CODE, Art. 1531, par.
2(3)).
1. When t~~J~ller has given consent thereto; and
2. When fl riegptiable document of title has been
issue#foGth~t~oods (CIVIL CODE, Art. 1535).
,' -- \
. tes as a delivery of the goods
des, when indorsed. It protects a
purchaser without notice after the seller had
stopped the goods either by virtue of his lien or
page in transitu (DE LEON, supra at 320).
Where Goods Not Covered by Negotiable
Document of Title
A seller cannot give any right larger than he has.
When the goods are subject to a legal lien, a
purchaser from the original buyer can acquire only
such rights as the buyer then had (Id.).

2. Rightful Refusal SPECIAL RIGHT OF RESALE: (LSPRO)

- Right to stop by the seller would not be
terminated (DE LEON, supra at 311).
Delivery to a Carrier Chartered by the Buyer
It does not make a delivery to the carrier a delivery
to the buyer. It is a question depending on the
circumstances of the particular case (CIVIL CODE,
Art. 1531, par. 3).
Effect of Partial Delivery
It does not deprive the seller of the right to stop with
respect to the remainder unless it may be shown that
the seller has an agreement with the buyer to give
An unpaid seller can exercise the right to resell only
when he has either:
1. A right of !:,ien (CIVIL CODE, Art. 1526 (1)); or
2. Exercised the right to §top the goods in transit
(CIVIL CODE, Art. 1526 (2)); and under~ of
the three (3) following cases:
a. Goods are ferishable in nature;
b. The right to resell is expressly _!:!esewed in
case the buyer should make a default; or
c. The buyer _Qelays in the payment of the
price for an unreasonable time (CIVIL
CODE, Art. 1533).

NOTE: Article 1533 of the Civil Code applies only if
the title to goods has already passed to the buyer.
Otherwise, the goods cannot be resold.
Article 1533 provides that the seller"having the right
"may resell the goods". The language is permissive
in nature rather than mandatory (DE LEON, supra at
316).
Effect of Resale
The new buyer acquires a good title as against the
original buyer (CIVIL CODE, Art. 1533, par. 2).
The seller is not liable to The seller has right
the original buyer for any to sue for the
profit earned in the resale balance (C!Vll__
(CIVIL CODE, Art. 1533, CODE, Art.. 1533,
par. 1). par 1).
The seller is not liable to the originaJ buyer for any
profit earned in the resale and m9y re9overdamages
occasioned by the buyer's breach 9f'the contract of
sale. Action for the rescission of th~ sale is not
necessary {PINEDA, Sales, supra at 211 ).
Notice of Resale Not Essential·
Though the seller is not bo\J~d t9 ~ive noti~e of his
intention to ·resell and of the time and_ place where
the resale will be held {CIVIL CQbF.;., Art. 1533, par.
4). . .. . ..
It is prudent to give the buyer such notice, as the.
giving or failure to give it may be.important evidence
in regard to the fairness of the sale (DE LEON, supra
at 317). ·
Manner of Resale
The law is satisfied with a fair sale made in good faith
according to established business methods with no
attempt to take advantage of the vendee (Id.).
NOTE: The seller cannot, directly or indirectly, buy
the goods (CIVIL CODE, Art. 1491, par. 6).
Ti.me of Resale
Must be made within a reasonable time ::ifter the
breach (VI:::: LcON, supra at 317).
Place of Resale
GENERAL RULE: At the place of delivery (Id.).
EXCEPTION: At another place if the seller is unable
to sell readily at a fair price at the place of delivery
and can get a better price by reshipment and sale at
another place (Id.).
SALES AND LEASE
Civil Law
NOTE: The seller cannot, arbitrarily and without
good reason, take the goods to another market and
hold the buyer for the difference between the
contract price and the amount for which the property
was resold, including the cost of transportation {Id.).
SPECIAL RIGHT TO RESCIND: (LSRD)
The unpaid seller having either:
1. The right of tien (CIVIL CODE, Art. 1526, par.
1); or
2. A right to .§top the goods in transit, when seller
has already parted with possession of the goods
(CIVIL CODE, Art. 1526, par. 1, (2)), and under
either of the two (2) situations:
a. Where the right to rescind on default has
been expressly .Reserved; or
b. Where the buyer has been in Qefault for an
unreasonable time (CIVIL CODE, Art. 1534,
par. 1).
Effect. otExercising Right of Rescission
The seller shall not thereafter be liable to the buyer
upon the contra~t of sale but may recover from the
buyer' d.amages for any loss occasioned by the
breach ofc;ontract(CIVIL CODE, Art. 1534, par. 1).
Effect of Rescission··
The seller resumes the ownership of the goods
(CIVIL CODE, Art. 1534, par. 1).
Manner of Rescissiori
There n-11:ist be ryotice q'r some other overt act of an
to
intention ·_ resciri9'. . Overt act - need not be
communicated but the giving of notice is relevant in
determining the reasonableness of the time given
the buyer to make. good his obligations under the
contract (CIVIL CODE, A'!- 1534, par. 2).
-RISK OF LOSS AND
DETERIORATION AND
ITS EFFECTS
1. Loss of the thing BEFORE
PERFECTION of the contract
The thing perishes with the owner (res perit
domino) (CIVIL CODE, Art. 1504).
Seller still owns the thing because there is no
delivery or transfer of ownership yet. Hence, the
seller bears the risk of loss (VILLANUEVA,
supra at 316).
 \ I

ME~Q-RY AID
Sari Seda Universrty Coflage of Law - RGCT Bar Operations Cei,ter

2. Loss of the thing AT PERFECTION of

the contract Under the same law, "the risk of the thing
sold passes to the buyer, even though he
Res perit domino applies (CIVIL CODE, Art.
has not received the thing. For the seller is
1504). _ not liable for anything which happens
a. If the thing is entirely lost, the contract Is
without his fraud or negligence x_x x."
without effect (CIVIL CODE, Art. 1493, par.
1). The Spanish Civil Code follows Roman law
b. If the thi11y should have 1.Jee11 lust in part by imposing upon the vendee the obligation
only, the buyer may choose between: .to pay the price of the thing sold that was
i. Withdrawiny from lhe conlrac;l; or lost as a result of fortuitous event (DE
ii. Demanding the remaining part, paying
LEON, supra at 125).
its proportionate price (CIVIL CODE,
Art. 1493, par. 2). Article 1480 of the Civil Code is based on
Article 1452 of the Spanish Civil Code; there
NOTE: As there is no distinction, even if the loss is reasonable basis for the proposition that
is not substantial, res peril domino applies Article 1480 follows the principle of
(PINEDA, Sales, supra at 109). perfection (e.g. the risk of loss is transmitted
to the buyer from the moment the contract is
The contract is considered void or inexistent perfected) (Id. at 126).
because the object did not exist at the time of
the transaction. Any action for the enforcement This theory is an exception to the rule of res
of such void contract can be defeated by a ,, peril domino.
motion to dismiss or by setting up a count¢f;.. .•
ct aim for the declaration of its nullity (Id. at 108}. · '· :II:· Article 1164 gives the creditor (buyer) the
:t:: -.,'.:\(;" . rigt}ftp the fruits of the ting from the time _the
3. Loss of the thing AFTER' ·. ''•''"'"3S\or,i~tion to deliver arises (or from the time
PERFECTION BUT 13EFORE perf~fon of the contract)
DELIVERY
Pur'sJ'arit to Article 1537 of the Civil Code,
a. Loss
atf'tha fruits shall pertain to the vendee from
GENERAL RULE: Who .b~i=frs the risk of
tpe d~y o~\which the contract was perfected.
loss is governed by thl3 stipulations in the
contract.
the buyer is entitled to the fruits
of the ing from the moment of perfection of
In the absence of stipulation, there are two
the contract, it is logical that the buyer bears
conflicting views: ·
risk of loss from the moment of the
(Id.}.
First View: Res perit creditori. or b1,1y~r
bears the risk of loss (this is the '.;idew
Under Article 1165, the implication is that if
subscribed to by the following Cil{il;Law
the seller was not at fault, the buyer is
authors: Paras, Vitug, Padilla, and De
responsible tor the fortuitous event even
Leon).
prior to the delivery.
Justification: Art. 1504 of the Civil Code,
Pursuant to Article 1262 of the Civil Code, if
which embodies res perit domino, only
the thing is lost or destroyed without the fault
covers goods.
of the debtor {or seller in case of sale), the
obligation to deliver is extinguished but the
Goods, as defined in Art. 1636 par. 1 (1) of
obligation to pay, shall subsist (PINEDA,
the Civil Code, includes all chattels personal
Sales, supra at 70).
but not things in action or money of legal
tender in the Philippines. The term includes
The third paragraph of Article 1480 purports
growing fruits or crops.
to provide different rule from the first two (2)
paragraphs of Article 1480. Under the third
The obligation to pay on the part of the buyer
paragraph, shouid fungible things be sold for
is not extinguished (as he is not the obligor)
a price fixed according to weight, number, or
(VILLANUEVA, supra at 319).
measure, the risk shall not be imputed to the
vendee (buyer) until they have weighed,
Under the Roman Law, the reciprocal
counted, or measured, and delivered.
obligations of the parties are considered
distinct stipulations.
 SALES AND LEASE
·· Civil Law

NOTE: The implication is that with respect b. Deterioration

to items covered by the first two (2) Impairment is borne by the buyer if the thing
paragraphs, the risk of loss is with the buyer deteriorates without the fault of the seller
even prior to the delivery (DE LEON, supra (CIVIL CODE, Art. 1189, par. 3)
at 127).
If it deteriorates through the fault of the
Second View: Res perit domino or seller debtor, the creditor may choose between
bears the risk of loss (this is the view the rescission of the obligation and its
subscribed to by the following Civil Law fulfillment, with indemnity for damages in
authors: Tolentino, Jurado, Baviera, and either case (CIVIL CODE, Art. 1189, par. 4).
Villanueva).
4. AFTER DELIVERY
Justification: Dr. Tolentino opines that in
Res peril domino applies.
reciprocal obligations, the extinguishment of
the obligation due to loss of the thing affects
The buyer is the owner, hence, the buyer bears
both debtor and creditor; the entire juridical
risk of loss (CIVIL CODE, A_rt. 1504).
relation is extinguished. Under this view, the
rule on loss under Article 1189 would be
Exceptions:
different from the rule on deterioration - the
a. Where delivery has been made either to the
loss would be for the account of the seller,
buyer or to the bailee for the buyer, but
while the deterioration would be_ for the
-. ownership in the goods has been retained
account of the buyer (this view Jpaffirmed by
· by the seller merely to secure performance
Baviera).
b,y the· buyer of his obligations under the
conJrElct (CIVIL CODE, Art. 1504, par. 1);
Article 1480, paragraph · '-3, i?' not an
exception but is an,expr,es,sion of the
and
b. Wh~re actual delivery has been delayed
general rule that the:risk is pot imputed to
through the fault of either ttie buyer or seller,
the vendee until ,, after delivery (A.M
the goods are at the risk of the party in fault
Tolentino, op.cit., pp. 2~~27).
(CIVIL CODE, Art. 1504, par. 2).
Purchase and sale is c1n1 gnerous contract,
where the cause; wit!] hrespect -to the
.. ' . '
vendee, is the thing. If tie. ~anhot haye Hie
thing, it is juridically, tllogital and unjust to · EXTINGDISHMENT
make him pay the price (ld.f-• OfSALE
According to Justice Jurado, this view is
more just and equitable and r'nor,e · in
conformity with the princi~I~ of res peril C)(USES OF EXTINGUISHMENT:
domino.
1, . Sarne causes as all other obligations (CIVIL
CODE, Arts. 1231 and 1600);
According to Dean Villanueva, this view
2. Conventional Redemption (CIVIL CODE, Arts.
would make Articles 1480 and 1538
1601-1618); or
consistent with the provisions of Article 1504
3. Legal Redemption (CIVIL CODE, Arts. 1619-
(VILLANUEVA, supra at 323).
1623).
According to Pineda:
Payment or performance only extinguishes the
i. Ownership is transferred only after
· obligations to which they pertain to in a contract of
delivery; .
sale, but not necessarily the contract itself since the
ii. Art.1480, par. 3, is an expression of the
relationship between buyer and seller remains after
general rule that the risk is not imputed
the performance or payment, such as the confinuing
to the vendee until after delivery; and
enforceability of the warranties of the seller
iii. The contract is reciprocal. If the vendee
(VILLANUEVA, supra at 516).
cannot have the thing, it is illogical and
unjust to make him .pay the price
(PINEDA, Sales, supra at 69). CAUSES OF EXTINGUISHMENT, IN
GENERAL: (PaloCo3 -PARe-FuN)
1. ~mentor performance of obligation;
2. Loss of the thing. due;
3. Condonation or remission of debt;
 '
"''.'.,''
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MEM:Q~RY Al D
San Beda University Cottage of Law - RGCT Bar Operations Center
.,
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4. Confusion or merger of rights; 8. Gives Reciprocal obligation (CIVIL CODE, Art.

5. Compensation; 1616); and
6. ,Erescription; 9. Reserved at the ,Moment of the perfection of
7. ~nnulment; contract (Diamante v. CA, GR. No. L-51824,
8. Rescission; February 7, 1992).
9. Fulfillment of a resolutory condition; or
10. !iovation (CIVIL CODE, Art. 1231). Proper Reservation of Right to Repurchase
The right to redeem must be reserved by the seller
CONVENTIONAL REDEMPTION through a stipulation to that effect in the contract of
The right which the vendor reserves lu l1imself, lu s;:ilP. (V1/lanca v. CA, GR. No. L-19196, November
reacquire the property sold, provided he returns to 29, 1968).
the vendee: (PEONU)
For a sale to be one a retro, the right must be
1. frice of the sale;
reserved in the same sale contract (Torres v. CA,
G.R. No. 134559, December 9, 1999).
NOTE: The law speaks of "price ofthe sale" and
not the value of the thing. It is lawful for the
The essence of a pacto de retro sale is that title and
parties to agree that the price to be returned will
ownership of the property sold is immediately vested
be more or less than the original sum paid by the
in the vendee a retro, subject to the restrictive
vendee (DE LEON, supra at 539).
condition of repurchase by the vendor a retro within
the redemption period (Misterio v. Cebu State
2. £Xpenses of the contract;
College of Science and Technology, G.R. No.
152199, June 23, 2005).
3. Any Other legitimate payments
therefore;
purchase may be proved by parol
NOTE: Numbers 1 and 2 need not be paid at the . n the contract of sale has been
very time of the exercise of the right, since they reduced in J?v.riting (Mactan Cebu International
are unknown amounts. They may b~ paid later. Airport Autfio[ifX v. CA, GR. No. 121506, October
The same is true of necessary and useful 30, 1996),
expenses (DE LEON, supra at 539). '
RtGH~ TO REDEEM V.
4. Necessary expenses made on the thing
'-ftTO PURCHASE
sold; and

5. !}_seful expenses made on the thing sold

(CIVIL CODE, Arts. 1601 and 1616).

NOTE: The vendor must comply not only wfth

Not a separate contract Generally, it is a
fhe provisions of Article 1616 but also with other
but merely part of the principal contract and
stipulation that may have been agreed Upon by
main contract of sale. may be created
the parties relating to the exercise of the right
independent of another
(Solid Homes, Inc. v.CA, G.R. No. 117501, July
contract.
8, 1997).

Nature of Conventional Redemption:

(CAP 2 0R 3M) Does not need its To be valid, it must have
1. Purely fontractual (Ordonez v. Vil/aroman, G.R. separate consideration a consideration
No. L-238, March 13, 1947); in order to he valid and separate and distinct
2. Accidental (Alojado v. Lim Siongco, G.R. No. effective. from the purchase
27084, December 311927); price.
3. fotestative (CIVIL CODE, A1t. 1182);
4. ~ower or privilege (Ocampo v. Potenciano, G.R.
No. L-2263, May 30 1951);
5. Person entitled to exercise is necessarily the
Qwner (Quimson v. PNB, G.R. No. L-24920,
November 24 1970);
6. geal right (CIVIL CODE, Art. 1608);
7. gesolutory condition (CIVIL CODE, Art. 1179);

There must be a tender May be exercised by
of payment of the notice of its exercise to
amount required by law, the offeror.
including consignment
thereof if tender of
payment cannot be
made effectively on the
buyer.
(DE LEON, supra at 488).
Period of Redemption
When No Period is agreed upon
It shall last for four (4) years from the date of the
contract (Id. at 519; CIVIL CODE, An. 1606).
However, in Misterio v. Cebu State College of :
Science and Technology, the four (4) yew period
was held to begin from the hc1ppehing; ot the'
stipulated condition contained inth~ _coyeting deecl
of sale rather than from the date\if the. contract, and
even when the entire covered period Jrom,the date
of the contract would exceed ten ye'ars. Since the
vendor may still exucise the.righti to repurchase
within thirty days from the t\me•final judgmentwas
rendered in a civil action· on the basis: that tne
contract was a true sale -.yitl:i :fight to. repurchase
(G.R. No. 152199, June 23, 200W. . (Cafa(1gtari.g v. tegayada, G.R. No. L-26295, July
When Period is agreed upon : ., . , ._
The period cannot exceed t~n (10)\years'JG/VtL
CODE, An. 1606). If it exceed's_ten (10lyea·rs, Jhe_·-
agreement is valid only for the 'first ten (lO)'years;.
(Anchuelo v. /AC, GR. No. 71391, Jf]nuafy.29~
1987). . , . ...
When a period of redemption is agreed upon' By the .
parties in a sale a retro, although the period agreed
upon may be unclear or void, it is the 10-year period
and not the four (4) year period that shall apply
(Tayao V. Dulay, G.R. No. L-21160, April 30, 1965).
When the Period agreed upon is "Indefinite"
(E.g. vendor a retro shall repurchase "at any time he
has money" or vendor will redeem "within the month
of March of any year'J, the time of redemption is
within ten (10) years from execution of contract
(PINEDA, Sales, supra at 38).
Date from which Period Reckoned
At the date of the contract from which the contract
produces its effects (e.g. from the fulfillment of the
suspensive condition) (DE LEON, supra at 526).
NOTE: The right to redeem becomes functus officio
on the date of its expiry, and its exercise after the
SALES AND LEASE
Civll Law
µeriod Is not really one of redemption but aright of
repurchase (Id. at 489).
Pendency of Action Tolls Redemption Period
The pendency of an action brought in good faith and
relating to the validity of a sale a retro tolls the
running of the period of redemption ( Ong Chua v.
Carr, G.R. No. L-29512, January 17, 1929).
Non-payment of price does not affect the running of
the redemption period ( Catangcatang v. Legayada,
GR. No. L-26295, July 14, 1978).
Possession of the Subject Matter during Period
of Redemption
Buyer has a right to the immediate possession of the
property sold, unless otherwise agreed upon. This is
subject only to the resolutory condition of repurchase
by the seller a retro within the stipulated period (Solid
H~mes, Inc. V. CA, G.R. No. 117501, July 8, 1997).
!E;xt!rtj;~ bf.Redemption
I~.n(Jtff 'of' P,i'lyment is sufficient to compel
redemption b.utis not in itself a payment that relieves
the y~ndqffi"om h'ls liability to pay the redemption
price (Mclaugfllin v. CA, GR. No. L-57552, October
10, 1986). - .
The law requires that the offer must be a bona fide
one and acoompan/ed by an actual and
simultal)eOUS tender o(payment or consignation of
the fuU ' s=1mourit agr$ed upon for repurchase
14, 1978)c .-· .
lt)S:,'enough for the vendor a retro to tender the
repurcha,se price ;at the time of redemption. The
othec -.amounts provided under Article 1616 of the
Ci\iiL yQd~. may be paid afterwards. Tender of
paynwnf):S"'needed in order to show that the
repu,rchase was made within the redemption period
(5 TOLENTINO, supra at 175).
CONSIGNATION
GENERAL RULE: It is not a legal requisite for a
vendor to make consignation or judicial deposit of
the price if the offer or tender is refused. He is not a
debtor. He has a right, not an obligation, to
repurchase (DE LEON, supra at 543).
EXCEPTION:
1. The vendee a retro refuses to accept the
redemption price-(Torrijos v. Crisologo, G.R. No.
L-17734, September 29, 1962); or
2. When a judicial action has already been filed to
enforce compliance with the contract of sale with
right of repurchase (Rivero v. Rivero, G.R. No.
L-5•78, April 30, 1948).
 f:rrM:o,Rv Alo
San Beda University Coltega of Law - RGCT Bar Operations CenttJr
Consignation is imperative when the tender of
payment cannot be validly made because the buyer
cannot be located, and failing to do so within the
'redemption period, the right of redemption shall
lapse (Catangtang v. Legayada, GR No. L-26295,
July 14, 1978).
IN CASE OF MULTI-PARTIES
Redemption in Sale of Part of Undivided
Immovable
The buyer of a part of an undivided immovable who
acquires the whole thereof in the case of Article 498
of the Civil Code may compel the seller to redeem
the whole property, if the latter wishes to make use
of the right of r~demption ( CIVIL CODE, Art. 1611).
Illustration: A, B and C are co-owners of an
undivided parcel of land. A sold his undivided portion
to D with right of repurchase. As a result of a
partition, D who is now one of the co-owners,
acquired the whole land after paying the portions
belonging to B and C. If A would like to repwchase;
..... ·. them or any one of them. If they do not do so, B
the portion sold by him, D may compel him Jo
redeem the entire parcel of land so that the prope1;ty_
will not revert to a state of co-ownership (DE LEON, •
supra at 534-535).
Redemption in Joint Sale by CQ-:J>wners I
Co-Heirs of ·undivided Immovable ·
If several persons, jointly and in the same y0nlract,
should sell an undivided immovable with a right of
repurchase, none of them may exercise thiSright,for
more than his respective share. The same rule shaU
apply if the person who sold an immoyable alone has
left seyeral heirs (CIVIL CODE, Art. 1612). . them except for his own share, whether the thing is
The buyer may demand of all the vendors.or co-heirs.
that they come to an agreement upon the re-
purchase of the whole thing sold; and should, they
fail to do so, the buyer cannot be compelled to
consent to a partial redemption (CIVIL CODE, Art.
1613).
NOTE: The redeeming cm-owner cannot claim
exclusive right to the property owned in common.
Registration of property is not a means of acquiring
ownership. It operates as a mere notice of existing
title, that is, if there is one (Adi/le v. CA, G.R. No. L-
44546, January 29, 1988).
Redemption in Separate Sales
Owners of Undivided Immovable
Each one of the co-owners of an undivided
immovable who may have soid his share separately,
may independently exercise the right of repurchase
as regards his own share, and the buyer cannot
compel him to redeem the whole property ( C/V/t
CODE, Art.1614).
,' V / ; {' ', t~ '
,, ' "'' .
. i,··, '. , 587 .
. t ' ~
, ' / ! ~i
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REASON: It would be unjust to require the co-
owners to come to an agreement with regard to the
repurchase of the thing sold, and certainly, it would
be worse to deprive them of their right in case they
fail to disagree.
The very purpose of the law is to prevent unjust
enrichment (DE LEON, supra at 538).
Illustration: X, Y and Z are co-owners of a parcel of
land. If they should sell the property to B with the
right to repurchase in the contract, each one of them
may exercise that right only as regards his own
share or for one-third portion of the property.
The same rule applies if C is the sole owner of the
land and he sold it with right to repurchase to B and
should he die and leave X, Y and Z as his heirs. Each
one of them can only exercise the right of
redemption for the one-third portion he has inherited.
But B can demand that they come to an agreement
upon the repurchase of the whole property by all of
:':'.t, cannot be compelled to assent to a partial
tl;!
redemption (CIVIL CODE, Art. 1611 ).
,."t'f\,.:L~:-:~:\~ff;/~'-(:A~
1;,.:·,·1(5<;"';¥':" . old their respective shares to B with
·· the right of r1pµrchase in separate instruments and
at different dales, each one of them may exercise his
right indegknb~rJtly of the others and B cannot
compel a9y ot thei;n to redeem the whole property.
1
\. st Heirs ofVendee
If theve leave several heirs, the action .
for redemption cannot be brought against each of
,,, ,ided or it has been partitioned among them. But
'itih'e'fifance has been divided and the thing sold
has been awarded to one, of heirs, the action for
redemption may be instituted against him for the
whole (CIVIL CODE, Art. 1615).
Illustration: S sold his parcel of land to B with right
to repurchase. Then B died leaving C, D and E as
his heirs. The right of redemption of S is against
each of the heirs orily for his respective share or for
one-third of the property. If the property has been
awarded to C by partition, then the action of
redemption may be instituted against him for the
entire property.
by Co- In De Guzman v. CA, the Court held that under the
rules in Article 1612 of the Civil Code, should one of
the co-owners or co-heirs succeed alone in
redeeming the whole property, such co-owner or co-
heir shall be considered as a mere trustee with
respect to the shares of his co-owners or co-heirs;
accordingly, no prescription will lie against the right
to any co-owner or co-heir to demand from the
redemptioner his respective· share in the property

redeemed (De Guzman v r.A, r.R No. L-47378,
February 27, 1987).
NOTE: The purpose of Article 1611-1615 is to
discourage co-ownership which is recognized as
undesirable, since it does not encourage the
improvement of the property co-owned (DE LEON,
supra at 534).
Judicial - Order for Recording of
Consolidation of Ownership
In case of real property, the consolidation of
ownership in the buyer shall not be recorded in- the
Registry of Property without a judicial order, after the
seller has been duly heard ( CIVIL CODE, Art. 1607).
Art. 1607 of the Civil Code abolished automatic
consolidation of title in the buyer (a retro) upon
expiration of the redemption period by requiring the
buyer to institute an action for consolidation where
the vendor (a retro) may be heard (VILLANUEVA,
supra at 484). ·· ·
Notwithstanding Article 1607 of tp~ ½ivi't;,cgae; the
recording of the consolidation of'ownership. is not a
condition sine qua non to trarn,fer ·, tb6 ownership
(VILLANUEVA, supra at 485). .,, . .
PURPOSE: To minimize the ev,M'olwhich'.tlie pacto
de retro sale has caused in the·htmds ofusurpers
(Cruz v. Leis, G.R. No. 125233. March 9, 2000).
• z-1· ,. ··,'
A judicial order is necessafy ,iworter t6 d~f~rmine
the true nature of the transaGtion ;!\n'd to pfoveht the
interposition of buyers in good fajth ~hile 'th~
determination is being made (Gruz v. L'eis, G.R. Nb.
125233, March 9, 2000). · ·
Grant of 30-day Redemption Right ih ,qa~e of
Litigation •. . Righfs.of~rties as to Fruits of Land
· When the period of redemption has expired,"ttJ~n
ipso jure the right to redeem has been extinguished:·
However, even when the right to redeem has
expired, and there has been a previous suit on the
nature of the contracf, the seller may still exercise
the right to repurchase within thirty (30) days from
the time final judgment was rendered in a civil action
on the basis that the contract was a true sale with
right to repurchase (CIVIL CODE, Art. 1606, par. 3).
Date from which Period Reckoned
At the time the judgment becomes final; and a
judgment becomes linal after the period to appeal
had lapsed without one having perfected (DE LEON,
supra at 526).
The 30-day Period is Peremptory
The policy of the law is not to leave the purchaser's
title in uncertainty beyond the said period. It is not a
prescriptive period but more a requisite or condition
SALES AND LEASE
Civil Law
precedent to the exercise of lite 1iyl1l of legal
redemption (Pangilinan v. Ramos, G.R. No. 75304,
January 23, 1990).
Non-Applicability
1. Contract found to be an absolute sale (Tapas v.
CA, GR. No. L-22202, February 27, 1976);
2. Sale known and admitted by vendor as pacto de
retro (Felicen, Sr. v. Orias, G.R. No: L-33182,
December 18, 1987); and
3. When a party abandoned his position that the
transaction was an equitable mortgage after
judicial declaration of transaction as a pacto de
retro sale (Abilla v. Gobonseng, G.R. No.
146651, January 17, 2002).
Effect of Stipulating Extending Period of
Repurchase
1. After expiration of period of redemption - void
and no effect because there is nothing to extend.
The,,. ownership in the vendee is already
cgnso1it;lated, and becomes absolute (DE
l)::Ofv, sDp[a at 526).
·NOl'E: lJii;l',parties can enter into an entirely ·
newagroo corttract involving the same property,
indepehclent-_6f the pacto de retro sale (Id.}.
2. Before thJ~xp1ratibn of the period of redemption
~. the origi~al terni\ may be extended provided
that the ext'~nsion, }including the original term,
shall not ext~nd b~y,pnd 10 years; otherwise, the
extel)slbn is;:Void a~to the excess (Id.} .
.- . ., .'f ,·,:::..,~,.~-- ,":;· i
Reai:;c,ii for Limiting l?eriod of Redemption
1! is nohi goqd thing that the title to property should
l:>e left for "!.'long per,iod of time subject to indefinite
conditiorw'of this nature. The intention of the law is
re,s,t~ictive aCJg li.1T1itative (Id. at 527).
lfaft):ietime of the execution of the sale there should
be visible or growing fruits on the land, there shall be
no reimbursement for or pro-rating of those existing
at the time of redemption, if no indemnity was paid
by the purchaser when the sale was executed {CIVIL
CODE, Art. 1617, par. 1).
Should there have been no fruits at the time of the
sale and some exist at the time of redemption, they
shall be pro-rated between the redemptioner and the
buyer, giving the latter the part corresponding to the
time he possessed the land in the. last year. counted
from the anniversary of the date of the sale ( CIVIL
CODE, Art. 1617, par. 2).
Applicability
Article 1617 applies only when there is no sharing
agreement with respect to the fruits existing at the
time of redemption (Almeda v. Daluro G.R. No. L-
28070, October 5, 1997). Otherwise, such
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agreement will control. It refers only to natural and
industrial fruits. Civil fruits are deemed to accrue
daily and belong to the vendee in that proportion (DE
LEON, supra at 544).
Right of Vendor a Retro to Recover Thing Sold
Free from Charges
The vendor who recovers the thing sold shall receive
it free from all char~es or mortriaries mnstituted by
the vendee, but he shall respect the leases which the
When Presumed: (T-PERIOD)
1. Vendor binds himself to pay the Iaxes of the
thing sold (Lumayag v. Heirs of Nemeno, G.R.
No 162112, July 3, 2007);
2. _Eossession by the vendor remains, as lessee or
otherwise (Capulong v. CA, G.R. No. L-61337,
June 29, 1984);
3. ~xtension of redemption period after expiration
(Lacorte v. CA, G.K. No. 124574, February 2,
199~; . [,

latter may have executed in good faith, and in
accordance with the custom of the place where the
land is situated (CIVIL CODE, Art. 1618).
NOTE: The law establishes an exception with
respect to leases which the vendee may have
entered into in good faith according to the customs
of the place where the land is located. The exception
is dictated by public convenience in the interest of
agriculture (DE LEON, supra at 546).
EQUITABLE MORTGAGE
One which, although lacking in some formality, or
form or words, or other requisites demanded by a
statute, nevertheless reveals the intention of the
parties to charge real property as security for a
debt, and contains nothing impossible or contrary
to law (Ceballos v. Mercado, G.R. No. 1558,t;f;J; May
28, 2004). ..
Presumpti.on of Equitable Mortgage Arisiswhen
1 . Parties entered into a contrac;t denominated as
sale; and
2. Their intention was to secure'an existing debt by
way of mortgage (Romulo v. $ps. Layug, G.R.
No. 151217, September 8, 2006).
4. Retention by the vendee of part of the purchase
H
Ii
price (Camus v. CA, G.R. No. 102314, May 26,
1993);
5. Unusually !nadequate purchase price (Cachola
v. CA, G.R. No. 97822, May 7, 1992);
6. Any Qther case where the parties really
intended that the transaction should secure the
payment of a debt or the performance of any
obligation (CIVIL GODE, Art. 1602); or
7. In case of Qoubt as to whether contract is
contract of sale with right of repurchase or an
equitable mortgage (CIVIL CODE, Art. 1603).
,.,:;},·NOTE: The provision of Article 1602 shall also apply
. . /:i:i;
to a contract purporting to be a sale with right to
\,,v{~@l!f<;hase;~all be construed as an equitable
" mo'rtg~!}e'(~fJL G_ODE, Art. 1604).
This holds tfr.le, if indeed, the real intention of the
parties is thbt \.the transaction shall secure the
payment 9f a'.,detit or the performance of any other
obligation (Crµz v.'pA, G.R. No. 143388, October 3,
2003) • .·· ..
PACTO DE RETRO V. MORTGAGE

A Right of Repurchase for an Extended:Period is

in Reality an Equitable Mortgage
A perusal of the Deed of Conditional Sale reveals-the
real intention of the partie~ is not to enter into a Ownership is Ownership is not
contract of sale but merely to secure the payment of immediately transferred, transferred but the
the loan of Prisco+. This is evident from the fact that subject to the resolutory property is merely
the latter was given the right to repurchase the condition of repurchase subject to a charge or
subject property even beyond the 12-year (original by the vendee. lien as security.
and extended) period, allowing in the meantime the
contif!u~d possession of Ernesto pending payment
of the consideration. Under these conditions and in
accordance with Article 1602 of the Civil Code. The Failure of seller to Mortgagor does not
constituted pacto de retro sale is in reality an repurchase loses all his lose his interest if he
equitable mortgage. (Gua-an v. Quirino, G.R. No. interest in the property, fails to pay his debt at
198770; November 12, 2012). title to which vests upon maturity but subjects
the buyer by operation of the property to
NOTE: When in doubt, courts are generally inclined law. foreclosure and public
to construe a transaction purporting it to be a sale as sale.
an equitable mortgage, which involves a lesser
transmission of rights and interest over property in ·
controversy (CIVIL CODE, Art. 1603; Salonga v. No obligation upon the Duty of the mortgagee
Concepcion, G.R. No. 151333, September 20, purchaser to foreclose to foreclose if he
2005). nor the vendor to redeem wishes to secure a

after the maturity of the perfect title thereto,
debt and mortgagor has
right to redeem after
maturity of the debt
and before
foreclosure.
(DE LEON, supra at 492-493).
Reason behind the Provisions on Equitable
Mortgage: To curtail circumvention of the usury law
and pactum commissorium (Ching Sen Ben v. CA,
G.R. No. 124355, September 21, 1999).
Proof by Parol Evidence
Parol evidence may be adduced to prove the
agreement granting the seller a right to repurchase
the property sold, since the deed of sale and the
verbal agreement allowing the right of repurchase
should be considered as an integral whole (Mactan
Cebu International Airport Authority v. CA, G,R. filo.
121506, October 30, 1996).
Effects when Sale is adjudged a; a~· Eq1Jitab1e'
Mortgage: · 1619):.
1. Money, fruit or other benefit to be -received by-
the buyer as rent or , otherwise shall be
considered as interest (CIVIL C()DE, Art. 1602,
par. 2); · 1913).
2. The apparent seller may aikJcir the reformation
of tlie instrument (CIVI& CQ{)~. Art. 1605);
3. The court may decree that 0'~epdor" 0 debtor pay
his outstanding loan to the .'tvende~~ ~creditor
(Bang a v. Bello, G.R. No: <156705, $eptf)mber
30, 2005). ', .
4. A remand of the case to the trial co'Urt where the
latter did not pass upon the mortgagpr's claim .
that he had paid his mortgaga obligat~oh., t9rthe ·
purpose of the determining\ whettjer said .
obligation has been paid, and if not, _hbw much
should still be paid (Banga v. Bello, · G.R. No.
156705, September 30, 2005).
PACTUM COMMISSORIUM
A stipulation for automatic vesting of title over the
security in the creditor in case of debtor's default
(VILLANUEVA, supra at 492).
Pactum commissorium is among the contractual
stipulptions that are deemed contrary to law. It is
defined as "a stipulation empowering the creditor to
appropriate the thing given as guaranty for the
fulfillment of the obligation in the event the obligor
fails to live up to his undertakings, without further
formality, such as foreclosure proceedings, and a
public sale." It is explicitly prohibited under Article
· 2088 of the Civil Code (Philnico Industrial Corp. v.
Privatization and Management Office, G.R. No.
199420, August 27, 2014).
SALES AND LEASE.
Civil Law
NOTE: The creditor cannot appropriate the things
given by way of mortgage or dispose of them. Any
stipulation to the contrary is void (CIVIL CODE, Art.
2088)
The proper remedy is foreclosure of the mortgage. If
there is no foreclosure, the debtor retains the
ownership (Vasquez v.. CA, G.R. No. 144882,
February 4, 2005).
Pactum commisorium applies only when the
covering transaction is a mortgage or other security
contracts and has no application to a true sale or
transfer transaction (Vda. De Zulueta v. Octaviano,
G.R. No. L-55350, March 28, 1983).
LEGAL REDEMPTION
The right to be subrogated, upon the same terms
and conditions stipulated in the contract, in the place
ofone who acquires a thing by:
1. . Purchase;
. 2>. Datiqn in payment; or
·3,., Any ·other transaction whereby ownership is
transferred by onerous title ( CIVIL CODE, Art.
.
. .
It may beeffect~ against movables and immovables
(US v. Cabailero, G8. No. 8608, September 26,
.
Note: "Ownership is :transferred by ·onerous title"
. hence,· it. is not avail{:lble in cases of donation,
succession, barter, mortgage or lease (DE LEON,
supra at 54 7).
Ulustration: B is the owner of a land adjoining the
land of !).'.A donated his own land to X. In this case,
· B. cannot exercise legal redemption to acquire the
prppeity 9f A from X since the latter acquired the·
adjoining ·fbt gratuitously (donation) and not by
pnerous title
It operates only one way and in favor of the
redemptioner. Not having parted with anything, the
legal redemptioner can compel the purchaser to sell
but the former cannot be compelled to buy (DE
LEON, supra at 549).
In sales of property approved by the court in testate
or intestate proceedings for the purpose of raising
funds for payment of debts of the estate are final and
are not subject to legal redemption unlike in ordinary
execution sales (Plan v. /AC, G.R. No. L-65656,
February 28, 1985).
Exercise of Right of Pre-emption or Redemption
It must be exercised within thirty (30) days from the
notice In writing by the prospective vendor, or by the
vendor, as the. case may be (CIVIL CODE, Art.
1623).
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Realty Corporation v. CA, C.R. No. 104114,

REASON: The seller of an undivided interest is in December 4, 1995).
the best position to know who are his co-owners that
under the law must be notified of the sale (Cuizon v. Basis and Nature of the Right of Legal
Remoto, G.R. No.143027, October 11, 2005). Redemption
Source of the right proceeds from the law, which
In stressing the mandatory character of the creates it. However, it may be converted into one of
requirement, the law states that the deed of sale conventional redemption (DE LEON, supra at 548).
shall not be accorded in the Registry of Property
unless the same is accompanied by an affidavit of It is not predicated on proprietary right but on a bare
the vendor that he has given notice thereof to all statutory privilege to be exercised only by the person
possible redemptioners (Primary Structures Corp. v. named in the statute. The statute does not make
Valencia, GR. No. 150060, August 19, 2003). actual ownership at the time of sale or redemption a
Notice must be in Writing condition precedent, the right following the person
To remove all uncertainty as to the sale, its terms and not the property (Magno v. Viola and Sotto, G.R.
and its validity and to quiet any doubts that the No. 37521, December 22, 1934).
alienation is not definitive (Conejero v. CA, G.R. No.
L-21812, April 29, 1966). Legal redemption is in the nature of a privilege
created partly for a reason of public policy and partly
NOTE: Without the written notice. the period of 30 for the benefit and convenience of the redemptioner.
days within which the right of legal pre-emption or It is intended to minimize co-ownership, the latter
redemption may be exercised, does not start being not favored by law (DE LEON, supra at 549).
(Guillen v. CA, GR. No. 159755, June 18, 2009).
CONVENTIONAL REDEMPTION
Form of Written Notice Vrc..LEGA~ REDEMPTION
Article 1623 does not prescribe any particular form
of notice so long as the reasons for a notice ·are
present or otherwise satisfied as long as the
redemptioner is informed in writing of the sale and
the particulars thereof (DE LEON, supra at 574).
Actual Knowledge
GENERAL RULE: A written notice to co-owners is
mandatory notwithstanding actu.al'knowledge ofthe
other co-owners of the sale (DE LEON, .. supra at.
57~. . -

EXCEPTION: In the case of Alonzo v. /AC, the Court

adopted an exception to the general rule; ·ln view of
the "peculiar circumstances of this case''wherein the
co-heirs were undeniably informed of tht:1 .sales
although no notice in writing was given them. The
30-day period began and ended during the 14 years
between the sales and the filing of the complaint for Extinguishes the Actually constitutes a
redemption in 1977, without the co-heirs exercising underlying contract of new sale in substitute
their right of redemption (G.R. No. 72873, May 28, sale as though there was of the original sale.
1987). never any contract at all.
(VILLANUEVA, supra at 506-507).
Contents of Written Notice of Sale
The notice, which Article 1623 of the Civil Code
PRE-EMPTION V. REDEMPTION
requires to be made, is a notice not only of a
perfected sale but of the actual execution and
delivery of the deed of sale. This is implied from the
second sentence of Art.1623 of the Civil Code (DE
LEON, supra at 576).

There is no prescribed form for an offer to redeem to

be properly effected. What is paramount is the use
of the fixed and definite period within which to
exercise the right of legal redemption (Lee Chuy

No rescIssIon because There can be
the sale does not yet rescission of the
exist. original sale.
The action is directed Action is directed
against the prospective against the buyer.
seller.
(DE LEON, supra at 564).
INSTANCES OF LEGAL REDEMPTION:
1. Under the Civil Code:
a. Sale of a Co-owner of His Share to A
Stranger (CIVIL CODE, Art. 1620)
Requisites: (BRACES)
1
i. The sale must be !!efoce partition' (DE
LEON, supra at 555); , · ' ·· ·
NOTE: The basis of tbe ri1:fht of legal
redemption is thffe) status-of an owner
(Butte V. M. Uy 8/ Sons, lhc., G.R. No. L-
15499, February 28;:;.19B2).
,; ,,. /
ii. The vendee must be R~imbursed for the
price of the sale (OE1 LEON, supra at
555); ,: • · · ..•
iii. There must be Alienation ofall or any of
the shares of th~ ,co-owners (Id.);
iv. There must 6e subsisting £.o~
ownership; .. . proportion of their respective shares in the
PURPOSE: The rule proceeds .. on the
theory that the privilege confe~red upon
the co-owner to redeem ls.Jnteijded to
facilitate the termination of ownership in
common, which may be an obstacle in
the development of property, of industry
and of wealth, and to consolidate the
dominion in a sole owner (Magno v.
Viola and Sotto, G.R. No. 37521,
December 21, 1934).
v. The right must be ~xercised within the
period provided in Art. 1623 of the Civil
Codo (DE LEON, cupra at 555); and
vi. The sale must be made to a .§tranger,
(i.e., anyone who is not a co-owner).
NOTE: The right of redemption may be
exercised by a co-owner only when part
of the community property is sold to a
stranger; where it is sold to another co-
owner, the right does not arise because
SALES AND LEASE
Civil Law
a new participant is not added to the
ownership (Fernandez v. Tarun, 391
SCRA 653 (2002).
Price of Redemption
Generally, it is the purchase price paid by
the owners to the selling co-owner(s) (DE
LEON, supra at 558).
If the price is grossly excessive, the
redemptioner shall pay only a reasonable
one. This is to preventcollusion between the
purchaser and the selling co-owner. The
payment of reasonable price requires tender
of payment and consignation of the price,
independently of - the size of the
redemptioner's share in the co-owned
property (PINEDA, Sales, supra at 390).
The co-owners may only exercise
redemption in proportion to the share they
may respectively have (CIVIL CODE, Art.
1620, par. 2).
Tl)e right . of redemption of co-owners
excludes that of adjoining owners ( CIVIL
COD~, Art. 1623, par.2).
Illustration of Legal Redemption between
Co-owliers: A, B and C are co-owners of an
undivided property valued at Php 50,000. A
· sells his interest to D for P20,000. B or C
. may exercise ,the right of redemption by
reimbursing D of the price of the sale._ If both
Band C redeem the interest sold by A, each
of them shall pay P10,000 to D which is the
co,-qwnership. If the price of P20,000 is
-grossly· excessive, the same may be
·- .equitably reduced by the courts (DE LEON,
·supra at 555-556).
Art. 1620 Does NOT Apply When:
i. The thing owned in common had been
partitioned, judicially or extra-judicially;
ii. The shares of all co-owners are sold; or
iii. The thing owned in common had been
offered for sale by co-owners (DE
LEON, supra at 557-558).
h. Sal~ of Adjacent Rural Lands Not
Exceeding One (1) He~tare
Requisites: (RATE-OS)
i. Both the land of the one exercising the
right of redemption and the land sought
to be redeemed must be Rural;
A rural land refers to a land adapted and
used for agricultural or pastoral
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purposes. It is principally used for the
purpose of obtaining products ·from the 2.
soil (DE LEON, supra at 561). 3.
The intention of the law is the promotion
and protection of agriculture by the
union of small agricultural lands under 4.
one owner for better exploitation of the
two lands· (Fabia v. Intermediate 5.
Appellate Court, G.R. No. L-66101,
November 21, 1984).
ii. The lands must be ~djacent;
iii. There must be alienation in favor of a
Ihird person, not in favor of another
adjacent owner;
PURPOSE: To prevent the passing of
the land to the hands of strangers
whose possession over the same will
not be for public welfare (Del Pilar v.
Catindig, G.R. No. 10432, November 4, .
1916). . supra at 567).
iv. The piece of rural land alienated must
not Exceed one hectare (10,000 square ·
meters) in area; . •
PURPOSE: To prevent the .. creation of
big landed estates (10 Manres{i:372).
V. The vendee must alre~dy $Orne Qvm
rural land; and .
vi. The rural land sold must.· not be
~eparated by brooks, drains, _ravines,
roads and other apparenLservitudes
from the adjoining land. " · large profit (DE LEON, supra at 568).
In case two (2) or more adjacent owners
desire to exercise the right of redemption,
the law gives preference to the owner of the
adjoining land of smaller area but if both
lands have the same area, to the one who
first requested to redeem (CIVIL CODE, Art.
1621, par. 3).
PURPOSE: To encourage the maximum
development and utilization of agricultural
lands (Ortega v. Orcine, G.R. No. L-28317,
March 31, 1971).
c. Sale of Adjoining Owners of Urban Land
Requirements for the exercise of the right of
pre-emption or redemption of urban lands:
1. The one exercising the right must be an
adjacent owner;
PURPOSE: To discourage speculation in
real estate and consequent aggravation
of the housing problems in centers of
population (DE LEON, supra at 569).
. ~
' ., ·,
,, ,. , . )
,.
.
·",
, 1z
..
~~
(.
1·
"' .' · 593 ·
·~ ' ,,
• ;< JJ.,,;,, '
<; ' "" .,,1
The piece of !and is urban;
The land sold must be so small and so
situated that major portion thereof cannot
be used for any practical purpose within
reasonable time;
It was bought mere merely for
speculation; and
The land is about to be resold, or that its
resale has been perfected (CIVIL CODE,
Art. 1622).
Preference as Between Two (2) or More
Adjacent Owners
The owner whose intended use of the land
in question appears best justified shall be
preferred (CIVIL CODE. Art. 1622, par. 3).
Urban Lands
Their purpose or being for dwelling, industry
or commerce, and not for agricultural,
fishing, or timber exploration (DE LEON,
It refers to the character of community or
·· in which it is found. Even if land is
~ow dedicated to agriculture, it is still
urbapf'if it is located within the center of the
POP,Ul~fipn or more or less portion of a city or
town :(OrJega v. Orcine, G.R. No. L-28317,
M~rc/J 31;1 1971).
i i ;
'/Jo Speculate"
in a hazardous business
transaction for the chance of an unusually
· ffi:ln A Credit or Other Incorporeal Right
in Litigation is Sold
Requisites: (SAO-P 2 E)
i. There must be a _§ale or fissignment of
a credit or other incorporeal right;
ii. The assignee must have Qemanded
payment from the debtor;
iii. The credit or right must be the subject of
a _Eending litigation at the time of its
assignment or sale, i.e. that an answer
.to the complaint is already filed;
iv. The debtor must fay the assignee:
1.) the price paid;
2.) judicial costs; and
3:) interest on the price from the date of
payment;
v. The right must be ~xercised by the
debtor within thirty (30) days from the
date the assignee demands Oudicially or
extrajudicially) payment from him (CIVIL
CODE, Art. 1634; Id. at 601).

Purpose of Grant of Right to Debtor
Gives an advantage to the debtor because
he will pay less than the value of the credit
assigned if he exercises his right to redeem
the same. To avoid the purchase by the third
person of credits in litigation merely for
speculation (DE LEON, supra at 601).
EXCEPTIONS:
i. Sale to a co-heir or co-owner of the right
assigned;
REASON: The law does not favor co-
ownership (DE LEON, supra at 604).
ii. Sale to a creditor in payment of his
credit; or
Presumption: The assignee cannot be
considered as vendee of a right iIJ _ _
litigation and as a speculator. JH·eally
refers to a dation in paymeny(fEf at{:j05). ·
,,,,le _,,.,
iii. Sale to the possess,ot of ·~roperty· in
question.
<' -l
PURPOSE: to pr¢sumabJy preserve the
tenement, and (Jot to s,peculqte at the
expense of the pebJpr (/d. at 6p5; CIVIL
CODE, Art. 16:J5).'.
e. Sale of an Heir of'. HltBtreditary, Rights ·
to a Stranger ; _ :,. · · .\ \
Should any of the ~Jir! se\J his\.tJerJttitary
rights to a stranger before partition, ;:iny qr
all of the co-heir~ maype subi'Qgated to fl1E!' -,
rights of the purchaser' by reimbursing hJ,m ; . ·
for the price of the sale wltl]in onei't)IJjonth ·
from the time they were notifi~d ,in ~i"itijig of
the sale by selling co-heir (CIVIL.(:ODE,.'Art.
1088). .. . ,-<:s-·
The right of legal redemption applies only to
the sale by an heir of his hereditary right, it
doesn't apply to sale of estate property (Plan
v. /AC, G.R. No. L-65656, February 28,
1985).
When the subject matter was a particular
property and not hereditary right, the
redemption by co-owner redounds to the
benefit of all other co-owners; while
redemption by a co-heir is only for his own
account.
2. Under Special Laws:
a. Equity of Redemption in cases of
Judicial Foreclosures
The right must be exercised within a period
of not less than ninety (90) days nor more
SALES AND LEASE
Civil Law
than one hundred twenty (120) days after
entry of judgment or even after the
foreclosure sale but prior to confirmation of
sale (GSIS v. Court of First Instance of lloilo,
Branch Ill, G.R. No. L-45322, July 5, 1989).
b. Right of Redemption in cases ofExtra-
Judicial Foreclosures
The right must be exercised within one (1)
year from and after the date of sale and
registration of the certificate of sale (Lee
Chuy Realty Corp. v. CA, G.R. No. 104114,
December4, 1995).
The execution of dacion en pago by sellers
effectively waives the redemption period
normally given by the mortgagor (First
Global Realty and Development Corp v. San
Agustin, G.R. No. 144499, February 19,
2002). .
' c.;, 'i~txtemption of Homesteads
;;-,v'"-1\,.
· · (;011vev.ance of land acquired under free
patent.''t,omestead provisions shall be
su,bJ,Eict to''tepurchase within five (5) years
Jrohf Jhe ,ct.;:ite of conveyance (PUBLIC
'!cANOA-Ct, SfJC. 117).
iii
~ederJJub~ tax sales
The deltrlqu'e~t~ taxpayer may exercise the
:right wit5in on~ ( 1) year from the date of sale
, .(/il/rTIONAL INTERNAL REVENUE CODE,
···· · Sec. 2f4),.&,s :'
.- '-e. , Redemption by an agricultural tenant of
land'sold by'tl)e landowner
The agricultural lessee has the right to
.. -· redeem .,tithin one hundred eighty ( 180)
·- days:,Jr-Gm notice in writing (AGRARIAN
RfiFORM CODE, Sec. 12).
'l Redemption in foreclosure by rural
banks (R.A. 720)
If the land is mortgaged to a rural bank,
.mortgagor may redeem within two (2) years
from the date of foreclosure or from the
registration of the sheriff's certificate of sale
at such foreclosure if the property is not
covered or is covered, respectively, by
Torrens Title. If the mortgagor fails to
exercise such right, he or his heirs may still
repurchase within five (5) years from
expiration of the 2-year redemption period
pursuant to section 119 of the Public Land
Act (Rural bank of Davao City v. CA, G.R.
_No. 83992, January 27, 1993).
 ~ < ,, /
&689 \/ , ,,
MEM✓Q~Y AID
San Beoa University Coli<lge of I.aw - RGCT Bar Operations Center
t
'
(
,
• /
595
.....

I
CONTRACT OF SALE V.
ASSIGNMENT OF
CREDIT

An agreement by virtue of which the owner of a

l ASSIGNMENT OF ,CREDIT

credit (known as the assignor), by a legal cause - Property (PNB v. CA, Credit, incorporeal rights
such as sale, dation in payment or exchange or G.R. No. 11681, or rights of action (PNB
donation - and without need of the debtor's consent, January 6, 1997). v. CA, supra).
transfers that credit and its accessory rights to
another (known as the assignee), who acquires the
power to enforce it, to the same extent as the
Need not be through a Public instrument (CIVIL
assignor could have enforced it against the debtor_
public instrument CODE, Art. 1625).
(Far East Bank & Trust Company v. Diaz Realty,
(CIVIL CODE, Art.
Inc., G.R. No. 138588. August 23, 2001)
1497).

NATURE OF ASSIGNMENT OF CREDIT

1. Consensual, bilateral, onerous, and
commutative or aleatory contract (DE LEON, Whole world Definite third person
supra at 588); (VILLANUEVA, supra at
2. The assignment involves no transfer of 573)
ownership but merely·· effects the transfer of
rights which the assignor has at the time to the
assignee (Casabuena v. CA, G.R. No. 115410, Ownership is transferred
February 27, 1998);
upon delivery of the
3. It may be done onerously (i.e., exch9pge, dacion thing. documents evidencing
en pago) or gratuitously (i.e., ddpetion) (DE ··
agree the credit or incorporeal
LEON, supra at 589); and . be rights (constructive
4. As a general rule, all principle§g6\lerniffg ~ales
r delivery) (VILLANUEVA,
also applicable to this transattion. The act of
supra at 576).
assignment cannot operat~~fro en~ser:1tens or
restrictions burdening thi:l . right.· _affsigned •
(Gonzales v. Land Bank of thePhi/fppine~, G.R
No. 76759, March 22, 1990). ·· · ·
always a requisite.
PERFECTION OF CONTRACT ' FOR Action may
ASSIGNMENT OF CREDIT (CIVIL CODE; Art. maintained by the
1624) assignee based on his
The contract is perfected irom the moment the title even if there is no
parties agree upon the credit or right assigned and consideration (PNB v.
upon the price even if neither has been delivered CA, supra).
(CIVIL CODE, Art. 1475). However, the assignee will (PINEDA, Sales, supra at 408).
acquire ownership only upon delivery ( CIVIL CODE,
Arts. 1498, par. 2 and Art. 1501).
EFFECTS OF ASSIGNMENT
Consent of Debtor Not Necessary 1. It transfers the right to collect the full value of the
In an assignment of credit, the consent of the debtor credit, even if he paid a price less than such
is not necessary in order that the assignment may value; and
fully produce the legal effects (DE LEON, supra at
590). 2. It transfers all the accessory rights (e.g.
guaranty, mortgage, or preference) (CIVIL
REASON: Other.vise, all creditors would be CODE, Art. 1627);
prevented from assigning their credits because of
the possibility of the debtor's refusal to give consent NOTE: If the period for payment has been
(Rodriguez v. CA, G.R. No. 84220 March 25, 1992). extended without the consent of the guarantor,
the assignee cannot go after the former
because, as to him his guaranty is only up to the
original period.
i '':' \/': .· ,' \ ''.,, ' . '.'~. ;,,
'596 ~ . , · ,,
,, i ' ·- \ ' ' ~ ~ , ,
' ~,. ;: , , ~
Illustration: A obtained a loan (P100,000) from
B. To secure the payment of loan, C mortgaf;jed
his property to B. B assigned his credit owing
from A to D. A failed to pay the loan. D can
foreclose the mortgage because being an
accessory right, it is deemed included in the
assignment.
3. Debtor can set up against the assignee all the
defenses he could have set up against the
assignor (Koa v. CA, G.R. No. 84847, March 5,
1998); and
4. Assignee cannot go after the assignor to enforce
the credit if through his own negligence he
allowed the credit to prescribe provided the
assignee was given enough time to enforce the
said credit
Illustration: A lends money to Bon March 30, 200fL
A then assigned the credit to C on April 30, 2009.··c
demanded payment from B only on M_M 30,;2019.
For ten years, C cannot collect fromJ3'siflce,the lo~rk.
has already prescribed; neither c911, he cglle9Mrom
A (the assignor) - he cannop' tfft~\.191},•"hi~. Dwn
negligence, (a.nd considering ~~,vya~ ~iven"enou~h.
time to enforce the credit) go ;!iftef"thi,tassignor if he
cannot anymore collect fromihe debtor.
ENFORCEABILITY
PERSONS:
1, As between the parties}, the ?Spignme~t'.js valid
although it appears onlyri/1 ,~ p\ivate::,doq'ument
so long as the law does1 not require\tsp~fi~
form for its validity (CIVIL '<;ODE, '1,356);';: . : :•.,.
2. If the assignment involves eJ'edit, rigt-\t or action, .
a public instrument is ne~ed to 'm;=ik'edtie
assignment effective against tfhrd per~~'s>:··• ..
3. If real property is involved, recorctirig/irj the
Registry of Property would be neede<,f {CIVIL
CODE, Art. 1625). .,. ····"•·•
EFFECT OF PAYMENT BY THE DEBTOR
AFTER THE ASSIGNMENT OF CREDIT:
1. Before notice of the assignment
- Payment to the original creditor is valid and
debtor shall be released from his obligation
(CIVIL CODE, Art. 1626); or
2. After notice of the assignment
- Payment to the original creditor is not valid as
against the assignee. He can be made to pay
again by the assignee (DE LEON, supra at 593).
3. Even without notice but with knowledge
- Even without notice, the debtor will not be
released from his obligation should he pay the
creditor after having had knowledge of the
SALES AND LEASE
Civil Law
assignment of the obligation. He thereby acts in
bad faith (DE LEON, supra at 594)
WARRANTIES OF THE ASSIGNOR OF
CREDIT: (LES)
1. The _begality and !;xistence of the credit at the
time of sale unless he sold it as doubtful, (i.e.,
he is not sure of the validity of his acquisition of
the thing sold which fact he has disclosed to the
assignee);
2. The §olvency of the debtor, if expressly
stipulated, or if the insolvency of the debtor was
prior to the sale and of common knowledge
(CIVIL CODE, Art. 1628, par.1).
LIABILITIES OF THE ASSIGNOR OF
CREDIT FOR , VIOLATION OF HIS
WARRANTIES:
1. ,~ssignor in Good Faith
:s-1::iability is limited only to the price received and
· ·• t<;t the e'Xpenses of the contract, and any other
·. ,.Jegitirnate"'.\payments by reason of the
a·ssignmeht(C/VIL
-,.,. . -
CODE, Art. 1628, par. 2);
·,:::,
2. As$ig11Qr'ih£~d Faith
- Liable n'ot'only for the payment of the price and
... all t6e ex~hs~s' b,ut also for damages (CIVIL
COQE, Art.'!1628,'par. 3).
AGAINST · ( THIRD , \ . ·;
:-, '. i
~ .,j&-':./·
ouRA1:10.N or·.&ss1GN0R·s LIABILITY
WHERE J •:OEBl'OR'S SOLVENCY
GU~NTf;ED'rclv1L CODE, Art. 1628)
This J:irpvisiop'does npt apply if the assignor acted in
bad(aith ..·"
' Tn~ddi;~iQ'.hofJtl; assignor's liability as follows:
1:· lf\ther,e is"a stipulation, then for the term or
, . ; , pe~g'.ci·fixed;
· · 2.;:,. lftl'lere is no stipulation:
a. One (1) year from the assignment of credit -
when the period for payment of the credit
has expired; or ·
b. One (1) year after its maturity - when such
period for payment has not expired.
Reasons for the Rule:
1. To prevent fraud which may be committed by
feigning the solvency of the debtor at the tim~ of
the assignment when in fact he is solvent; and
2. To oblige the assignee to exert efforts in the
recovery of the credit and thereby avoid by 'his
oversight, the assignor may suffer (DE LEON,
supra at 597).

e 11111 ''
MEM✓Q~Y AID
S8fl Bedo University College of Law - RGCT Bar Operatioos Center
SALE OF SUCCESSIONAL
HEREDITARY RIGHTS
One who sells an inheritance without enumerating
the things of which it is composed, shall only be
answerable for his character as an heir (CIVIL
CODE, Art. 1630).
This refers to the sale of successional right or the
right to an inheritance before partition (DE LEON,
supra at 597).
While an heir may sell his hereditary right before
partition, the law prohibits the sale of a future
inheritance, upon which no contract can be made
other than those making a division inter v,vos of an
estate in accordance with Article 1347 of the Civil
Code (Id.).
WARRANTIES OF SELLER
The seller of hereditary rights warrants only the fact
of heirship but does not warrant the objects which
make up his inheritance (Id. at 598).
Illustration: H and I are the heirs of the estate left ,~r;;; HtE CON,IRACT
by D, deceased. Before partition and without,··.·
specifying his definite share in the inheritance, H . ,.. '•peff~~~,~,;~in the moment there is meeting of
sold his share to B for P100,000. In this q:ise, H only ·' minds upon' ,the things promised by each party in
warrants the fact the he is an heir to He is not o.
liable to B should his share after the partiJioqbeless ·
than P100,000 (Id.).
SALE OF WHOLE OF CE"J~TAIN RIGHTS,
RENTS OR PRODUCTS . . .·. . 46069t
The vendor warrants only the legitima~y,ofthf.lwhole
and not the various parts of which it may be
composed. The vendor is not liable for eviction bf the
various parts unless the eviction involve~ the whole
or part of a greater value (CIVIL CODE, A.rt• 1()$1).
LIABILITY OF VENDOR OF
INHERITANCE FOR FRUITS RECEIVED
Should the vendor have profited by some of the fruits
or received anything from the inheritance sold, he
shall pay the vendee thereof, if the contrary has not
been stipulated (CIVIL CODE, Art.. 1632).
LIABILITY OF VENDEE FOR DEBTS OF
AND CHARGES ON ESTATE
The vendee, on his part, reimburse the vendor for all
that the latter may have paid for the debts of and
charges on the estate and satisfy the credits he may
have against the same, uniess there is an
agreement to the contrary (CIVIL CODE, Art. 1633).
, ~ ~ ~
.
'
, ~97
.
."
.
, ' ' .
OR
BARTER
(ARTS. 1638-1641)
BARTER
A contract whereby one of the parties binds himself
to give one thing in consideration of the other's
promise to give another thing (CIVIL CODE, Art.
1638).
It is similar to a sale with the only difference that
instead of paying a price in money, another thing is
given in lieu thereof (DE LEON, supra at 610).
A contract whereby one person transfers the
ownership of non-fungible things to another with the
obligation on the part of the latter to give things of
the same kind, quantity, and quality (CIVIL CODE,
Art. 1954).
'~t
PERFECTION AND CONSUMMATION OF
·
consideratioMit the other (CIVIL CODE, Art. 1475).
( ';
Consumrpat~d f!;om the time of mutual delivery by
the conifacting faarties of the things promised
(Tagayt,i Detel ' ent Corp. v. Osorio, G.R. No. L-
, 1939).
RULES GOVERNING BARTER:
re the giver of the thing bartered is not the
,:owner thereof, the aggrieved party cannot
be compelled to deliver the thing which he has
promised. He is also entitled to damages (CIVIL
CODE, Art. 1639).
2. Where a party is evicted of the thing exchanged,
the injured party is given the option, either to
recover the property he has given in exchange
with damages or claim an indemnity for
damages. The right to recover is subject to the
rights of innocent third persons (CIVIL CODE,
Arts. 1640 and 1385).
3. As to matters not provided for by the provisions
on barter, the provisions on Sales will apply
suppletorily (CIVIL CODE, Art. 1641)

._I_ _RE_c_T_o_LA_w_ _ _
It provides for remedies of a vendor in the sale of
personal property by installments (CIVIL CODE, Art.
1534; VILLANUEVA, supra at 345).
SALE ON INSTALLMENT
When there is an initial payment and the balance is
payable in the future, there is no basis to apply the
Recto Law. Such is not a sale on i11slc1llrne11ls but
rather a "straight sale". Under the language of then
Article 1454 (now 1484) of the Civil Code, the buyer
needs to have defaulted in the payment of two or
more installments to allow the seller to rescind or
foreclose on the chattel mortgage (Levy Hermanos,
Inc. v. Gervacio, G.R. No. L-46306, October 27,
1939).
NOTE: Provisions on Chattel Mortgage Was alre.ady •
repealed. · · ···
-' / vehicle from petitioner but from a third party, and
PURPOSE OF THE REC}Q_LAW"
To remedy the abuses commltlecJin i:o\·me9tion witti
the foreclosure of chattel mo~gages"and w~s meant
to prevent mortgagees fronl sei'i-i14 llie nfortg0gcd
property, buying it at foreclQsure sale for a low price
and then bringing suit agajhst tti0t mortgagor for,a
deficiency judgment (Universa/;Motors- Corp. v. by,
Hian Tat, G.R. No. L-23788; Maj/fp, 1969).,
' J ) t '.
Requisites: (SPIF)
1. Contract of §.ale;
2. fersonal property; . ._.
3. Payable in !nstallments; and'\. _ ,• .. ,__
4: In the case of the second and<third:rem~dies, •
that there has been a E_ailure to p~yfylcfor.fnore
installments (CIVIL CODE, Art. 1484f" , -, •
NOTE: Art. 1484 applies to contracts purporting to
be leases of personal property with option to
buy, when the lessor has deprived the lessee of the
possession or enjoyment of the thing (CIVIL CODE,
Art. 1485) i.e. where a lease agreement is in reality
ct lease with an option to purchase an equipment
to which Article 1485 applies (PC/ Leasing &
Finance, Inc. v. Giraffe X Creative Imaging Inc., July
12, 2007).
f-'UHPOSE: Io prevent vendors from reso,1ing to
this form of contract which usually is in reality a
contract of sale of personal property payable in
installment in contravention of the provisions of
Article 1484 (DE LEON, supra at 179).
The vendor by retaining ownership over the property
in the guise of being the lessor, retains likewise the
SALES AND LEASE
Civil Law
l right to possess the same, without going through the
process of foreclosure, in the event the vendee-
lessee defaults in the payment of the installment.
There arises no need to constitute a chattel
mortgage over the immovable sold (Fi/invest Credit
Corp. v. CA, G.R. No. 82508, September 29, 1989).
Repossession by the Lessor Need Not be
through Court Action
If the lessee-buyer does so in obedience to the
lessor's demand or where the contract specifically
authorizes the lessor-seller to repossess the
property whenever the lessee-buyer defaults in the
payment of rent (U.S. Commercial Co. v. Ha/iii, G.R.
No. L-5535, May 29, 1953).
Article 1484 of the Civil Code, which governs the
sale of personal properties in installments which
gives the vendee the remedies, applies only when
there is a vendor-vendee relationship between the
par;ties and not a debtor-mortgagor and creditor-
. mqrtgagee.-.A judicious perusal of the records would
r~ve;;il that _respondent never bought the subject
merely sought financing from petitioner for its full
purchase prjc~. Since it is undisputed that petitioner
had regc1inedpo;session of the subject vehicle, it is
only appropriate tfi 9t\ foreclosure proceedings, if
none yet has. been- conducted/concluded, be
commericed in Jccord:aoce with the provisions of Act
No. 1508, otherwise . known as "The Chattel
Mortgage . Law,'' as intended (Equitable Savings
· Bank_v. Pafces,;;GR. N9. 214752, March 3, 2016).
,' ··, 0 ' ,,
l\rt.·1484 of t~e Civi!;tode does NOT apply to:
1.. - Sale of/personal property payable in straight
- > terms (partly in cash and partly in one term)
. . (Levy H@rm<;1rios, Inc. v~ Gervacio, G.R. No. L-
1&306,\Dptober 27, 1939);
2- '. ,~tale· opftortgage of real estate;
-:t _h,ctidn for replevin;
4". · Contracts to sell on movables. In this case, the
rules on rescission and substantial breach are
not applicable (VILLANUEVA, supra at 381).
ALTERNATIVE AND EXCLUSIVE
REMEDIES
The remedies under Article 1484 of the Civil Code
have been 1ec.:uy11iLHd as alternative, not
cumulative, in that the exercise of one would bar the
exercise of the others (Delta Motors Sales Corp. v.
Niu Kim Duan, G.R. No. 61043, September '2, 11)!:J:2).
NOTE: The remedies cannot also be pursued
simultaneously. Availment of all the remedies is
irregular and flagrant circumvention of the
prohibition of the law (Luneta Motor Co. v. Dimagiba,
G.R. No. L-17061, December 30, 1961).
 "' 111D \ I
MEM-Q~Y AID
San Beda University CoHege o! law - RGCT Bar Operations Center
1. Specific Performance upon Vendee's
Failure to Pay
The vendor may, after obtaining favorable
judgment from the court, cause the sheriff to levy
on the thing sold and have it sold at, a public
auction. If the proceeds of the sale were not
enough, the vendor may cause an alias of writ of
execution to be issued on the other properties of
the vendor (DE LEON, supra at 157).
In sales on installments, where the action
instituted is for specific performance and the
mortgaged property is subsequently attached
and sold, the sale thereof does not amount to a
foreclosure of the mortgage, hence, the seller-
creditor is entitled to a· deficiency judgment
(Southern Motors Inc. v. Moscoso, G.R. No. L-
14475, May 30, 1961).
When Deemed Chosen
The seller is deemed to have chosen specific
performance when he files an action in court for
recovery (VILLANUEVA, supra at 355).
Resort to Rescission after Choosing ~o,ec11nc•.
Performance
GENERAL RULE: When the seller has chosen
specific performance, he can no 10119~6,eek for
rescission or foreclosure of the chattel mortgage
constituted on the thing sold (V!l,::LANl.)f=VA,
supra at 355).
.,
EXCEPTION: Even if the/seller hc1d>:chosen
specific performance, if the same ha~ become,
impossible, the seller may still chpqse resj;ission
(CIVIL CODE, Art. 1191, par. 2). ..
2. Rescission of the Sale if Verulee s~;itH•
have Failed to Pay Two (2}:0,r Mbre
Installments When Deemed Chosen'
When the seller has clearly indicated to end the
contract such as when: (NPA)
a. He sends a _!:iotice of rescission;
b. He takes rossession of the subject matter
of the sale; or
c. He files an ~ction for rescission
{VILLANUEVA, supra at 387).
Forfeiture of Installment or Rentals Paid
GENERAL RULE: Rescission creates the
obligation to return the things which were the
object of the contract, together with the fruits,
and the price with its interests. It can be carried
out on!y when he who demands rescission can
return whatever he may be obliged to restore ·
(CIVIL CODE, Art. 1385).
EXCEPTION: A stipulation that the installments
or rents paid shall not be returned to the vendee
or lessee shall be valid insofar as the same may
~ j ' 'I , '
., '
' , ,· 5~9
·, ' _,, ,,f>-•
t " ~ ' ,
not be unconscionable under the circumstances
(CIVIL CODE, Art. 1486). Otherwise, the court
has the power to order the return of the portion
of the total amount paid in installments or rent
(OE LEON, supra at 181).
It is recognized that when the seller takes
possession of the subject property in rescission
of the sale, the seller is barred from recovering
the balance of the price. Although no barring
effect is expressly provided for such remedy
under Article 1484, the same is implicit from the
nature of the remedy of rescission, which
requires mutual restitut\on {VILLANUEVA, supra
at 388).
3. Foreclosure of the Chattel Mortgage
Constituted on the Thing Sold if Vendee
shall have failed to Pay Two (2) or More
Installments
In this case, there shall be no deficiency
judgment {CIVIL CODE, Art. 1484, par. 3).
When Deemed Chosen
the tir!},e of actual sale of the subject property
";,,,i>,,,;,;;.;;..,,t., · · uction pursuant to the foreclosure
s commenced (Manila Motor Co.,
Inc. v. Fff/1{1ndez, GR. No. L-8377, August 28,
1956) •i , c.
2
Barrii: Jff:3t of Foreclosure
It is}the fored sure and actual sale at public
·•· ·:r1gaged chattel that shall bar
by the seller of any balance on
the purchaser's outstanding obligation not
.. satisfied by the sale prior to that point in time,
r has every right to receive payments on
id balance of the price from the buyer
(Manila Motor Co., Inc. v. Fernandez, G.R. No.
L-10910, January 16, 1959; VILLANUEVA,
supra at 390-391).
Any agreement allowing for further action to
recover unpaid balance is void {CIVIL CODE,
Art. 1484, par. 3).
NOTE: Article 1484 (3) is inapplicable where the
amounts adjudged in favor of the vendor -
mortgagee were not part of unpaid balance of
the purchase price or in the concept of a
deficiency but were expenses of the suit
(Universal Motors Corp. v. Velasco, G.R. No. L-
25140, July 15, 1980).
Recoverable expenses would include expenses
properly incurred in effecting seizure of the
chattel and attorney's fees in prosecuting the
action for replevin (Agustin v. CA, G.R. No.
107846, April 18, 1997).

The mere fact that the seller secures the
possession of the personal property through an
attachment after filing an action for collection of
the unpaid balance, with a prayer for an
issuance of a writ of preliminary attachment
does not necessarily mean that he intends to
resort to a foreclosure of the mortgage (Palma
v. CA, GR. No. 45158, June 2, 1994).
Prior to foreclosure and actual sale at public
auction, the seller has every right to receive
payments on the unpaid balance of the price
from the buyer (Sps. Rosario v. PC/ Leasing and
Finance, G.R. No. 139233, November 11,
2005).
Payments made before actual foreclosure could
be retained by the vendor (Northern Motors, Inc.
v. Sapinoso, GR. No. L-28074, May 29, 1970).
The following situations were not co11sidered
as having "exercised" the _rnmeqy of
foreclosure because of its' Jncc;,rnplete
implementation:
a. The seller merely .informed purchaser of
intent.ion to foreclose and did hot •actually
foreclose (Radiowealth, 'Inc. v. Lavin, G.R.
No. L-18563, April 27, 1963):
b. Mere demand for surrer:1der''of thing sold but
no foreclosure (Tobias l,tdustriaf Finance
Corp. v. Tobias, G.R. No. L-41555, July 27,
1977). . .·· .
c. Action for replevin (Ur,ivefsa! Motors,, Cbfp.
v. Velasco, G.R. No.; L'-2(5140/ Jµ/y 15,
1980). . ..
d. Action for specific performance (Southern
Motors, Inc. v. Moscoso, G.R. No. L-14475, .
May 30, 1961). ._ . ·...... .
e. Vendor given possession byvenclee'did not
foreclose (Fi/invest Credit Corp. v. · Phil
Acetylene Co., Inc. G.R. No. L-50449,
January 30, 1982).
f. Seller filed petition for exlrajudicial
foreclosure and obtained possession but did
not foreclose (De la Cruz v. Asian Consumer
& Industrial Finance Corp., GR. No. 94828,
September 18, 1992).
g. Thing not sold at public auction as it was
released by sheriff (Pacific Commercial Co.
v. De La Rama, G.R. No. L-47771, June 17,
1941).
BARRING EFFECT ON OTHER
SECURITIES GIVEN FOR PAYMENT OF
PRICE
After foreclosure, the vendor cannot proceed against
any third party who may have guaranteed the
vendee's performance of his obligation, for if the
guarantor should be compelled to pay the balance,
SALES AND LEASE
Civil Law
the guarantor will be entitled to recover what he has
paid from the debtor-vendee, so that ultimately, it will
be the vendee who will be made to bear the payment
of the balance of the price ( Cruz v. Filipinas
Investment & Finance Corp., G.R. No. L-24772, -May
27, 1968).
The word "action" is referring to any judicial or extra-
judicial proceeding by virtue of which the vendor may
lawfully satisfied balance of the purchase price from
the purchaser or his privy (Cruz v. Fi/ipinas
Investment & Finance Corp., G.R. No. L-24772, May
27, 1968).
SELLER'S ASSIGNMENT OF CREDIT
When the seller assigns his credit to another person,
the same law likewise binds the latter. Accordingly,
when the assignee forecloses on the mortgage,
there can be no further recovery of the deficiency
and. the seller-mortgagee is deemed to have
renounced any right thereto. To rule otherwise would
pqve the way for subverting the policy under Article
·148.4 (B;0rbon· U v. Servicewide Specialists, Inc.,
G.R. No; 106418; July 11, 1996).
Art. 1484 (3) ofthe ~ivil Code does not bar one to
whom the vendor has. assigned on a with recourse
basis his credit\against the vendee from recovering
fromthe;tvendor the assigned credit in full although
· the vendor may have nd:right of recovery against the
vendee for the defici!3!1CY (Filipinas lmtestment &
Finance Corp. v: Vitug,'Jr., GR. No. L-25951, June
30, 1.969). ·.
EXTENT OF.BARRING EFFECT
Despite the limiting language of Article 1484 of the
Civil Code., which uses the phrase "any unpaid
balance," the Supreme Court, in Macondray & Co.,
Inc... v.'Eustaquio, ruled that the barring effect also
·applie'~ .to all other claims (e.g., the interest on the
· pdncipal, attorney's fees, expenses of collection,
and the costs) (G.R. No. L-43683, July 16, 1937).
PERVERSE BUYER-MORTGAGOR
When a defaulting buyer-mortgagor refuses to
surrender the chattel to the seller to allow the latter
to be able to proceed with foreclosure, then the
seller, even after foreclosure, should be allowed to
recover expenses and attorney's fees incurred in
trying to obtain possession of the chattel (Filipinas
Investment & Finance Corp, v. Ridad, G.R. No. L-
27645, November 28, 1969). In effect, the Ridad,
Universal Motor Corp. and Agustin ruling provides
an exception to the complete barring effect
espoused in Macondray & Co., Inc. ruling.

~i'E.M:Q~Y Al D
San Beda University College ot Law - RGCT Bar Operations Center
MACEDALAW
(R.A. NO. 6552)
PURPOSE
It is an expression of public policy to protect buyers
of real estate on installments against onerous and
oppressive conditions (RA 6552, Sec. 2).
COVERAGE
Transactions or contracts involving sale or financing
of real estate on installment payments including
residential condominium apartments (RA 6552_.
Sec. 3)-
IT DOES NOT APPLY TO:
1. Sale covering industrial lots;
2. Sale covering commercial buildings (and
commercial lots by implication);
3. Sale to tenants under agrarian reform laws; or
4. Sale of lands payable in straight terms (R.A. ;
6552, sec. 3).
It is clear that the buyer's protection under RA No.
6552 only applies to contracts of sale oheal estate
on installment payments, including residential
condominium apartments, but excluding in<:lustrial
lots, commercial buildings and sales to tenants. A
purchase by a company involvec;I in the real estate
business of a six-hectare lot can hardly be
considered as residential (Royal Plains View v.
Meija, GR. No. 230832. November 12, 2018).
The enumeration of the transactions not .covered by
the Maceda Law is NOT exclusive, since other
transactions over immo~ables, although not within
the enumerated exclusions are to be consldered
excluded. An example would be the sale on
installment of commercial condominium units
(VILLANUEVA, supra at 384).
NOTE: Section 3 of the Maceda Law is
comprehensive enough to include both contracts of
sale and contracts to sell, provided that the terms of
the payment of the price require at least two
installments (Id. at 385).
Requisites:
1. Transactions or contracts involving the sale or
financing of real estate on installment payments,
including residential condominium apartments;
and
2. Buyer defaults in payment of succeeding
installments (R.A. 6552, Sec. 3).
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SALE BY INSTALLMENTS
Its definition is the same for sale of movables by
installments, which would involve at least two (2)
installments (VILLANUEVA, supra at 382).
NOTE: While under Sec. 3, down payment is
included in computing the total number of installment
payments made, the proper divisor is the monthly
installment on the down payment (Jestra
Development and Management Corp. v. Pacifico,
G.R. No. 167452, January 30, 2007).
Maceda law Cannot be availed of by the
Developer
The Maceda Law has no application to protect the
developer or one who succeed_s the developer
(Lagandaon v. CA, G.R. Nos. 102526, May 21,
1998).
RIGHTS OF THE BUYER:
1. If the buyer has paid at least two (2) years of
installments:
a. The buyer must pay, without additional
:, interest, the unpaid installments due within
·;;!:.,.·. . , ; ,_•.•.' _·_,.• the,M?-tal grace period earned by him. There
· ;t;-~;t]~J;;,be one (1) month grace period for
every;;9ne (1) year of installment payments
macfo; (l;?.A. 6552, Sec. 3).
NOTE: This right shall be exercised by the
buyer only once every five (5) years of the
life. Qt th contract and its extensions (R.A.
<e J3J.
b. Actual cancellation can only take place after
thirty (30) days from receipt by the buyer of
notice of cancellation or demand for
rescission by a notarial act and upon full
payment of the cash surrender value to the
buyer (R.A. 6552, Sec. 3; Olympia Housing
v. Par.asiatic Travel Corp., G.R. No.
140468, January 16, 2003).
c. Cancellation of Contract
For a valid and effective cancellation of the
contract under the Maceda Law, the
mandatory twin requirements of a notarized
notice of cancellation and refund of the
cash surrender value must be complied with
(Gatchalian Realty Inc., v. Angeles, G.R.
No. 202358, November 27, '?()1.1).
NOTE: The seller shall refund to the buyer
the cash surrender value of the payments on
the property equivalent to fifty percent (50%)
of the total payments made. After five (5)
years of installments, there shall be an
additional five percent (5%) every year but
 :· ·;t; ,.· :,:>,:: '.'/: -:~ :·,..:.
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not to exceed ninety percent (90%) of the
total payments made (R.A. 6552, Sec. 3).
The right of the buyer to refund accrues only
when he has paid at least two years of
installments (Manuel Uy & Sons, Inc., v.
Valbueco, Inc., G.R. No. 179594,
September 11, 2013).
Cancellation of a contract to sell may be
done outside of court, however, the
cancellation by the seller must be in
accordance with Sec. 3 (b) of R.A. No. 6552.
Where the buyer has paid at least two years
of installments and in case he defaults in the
payment of succeeding installments, he is
entitled to the refund of the cash surrender
value of the payments on the property
equivalent to fifty per cent of the total
payments made, and after five years. of..
installments, an additional five per•'cent
every year but not to exceed nipefy per.cent :
of the total payments mad~,, F\6viclep: that
the actual cancellation of ,the contra.ct·"Shall
take. place after thirty dayff(om,.Rlce,Jpt by ··• ·· ·
the buyer of the notice,•of•canc~llati9h or the,
demand for rescission ofthe/contract by a
notarial act and upon full paymeht of the
cash surrender ,;,alu~ 'to the · buyer
(Associated Marine Ofricets and Seamen's
Union of the PhiHppines: PTGWO-ITF V.
Decena, G.R. No1 '1'18584; Odfober 8,
2012).
d. The buyer shall have the ~ght to sell his
rights or assign the same to another person
OR to reinstate the contract by updating the . ···
account during the graceperiod arid.q_efore''
actual cancellation of thff confrai::t (~:A-
6552, Sec. 5).
e. The buyer shall have the right to pay ih '
advance any installment or the full unpaid
balance of the purchase price any time
without• interest and to have such payment
annotated in the certificate of title covering
the property (R.A. 6552, Sec. 6).
2. If Buyer has paid less than two (2) years of
installments:
a. The seller shall give the buyer a grace
period of not less than sixty (60) days from
the date the installment became due. If the
buyer fails to pay the installments due at the
expiration of the grace period, the seller may
cancel the contract after thirty (30) days
from receipt by the buyer of the notice of
cancellation or the demand for rescission of
contract by a notarial act (R.A. 6552, Sec.
4).
SALES AND LEASE
Civil Law
,;
b. The buyer shall have the right to sell his
rights or assign the·same to another person
or to reinstate the contract by updating the
account during the grace period and before
the actual cancellation of the contract (R.A.
6552, Sec. 5).
c. The buyer shall have the right to pay in
advance any installment or the full unpaid
balance of the purchase price any time
without interest and to have such payment
annotated in the certificate or title covering
the property (R.A. 6552, Sec. 6).
NOTE: Section 4 of RA 6552 is the provision
applicable to buyers who have paid less than
two (2) years-worth of installments.
For buyers who have paid less than two (2)
years-worth of installments, the following
requisites must be satisfied:
.. a, The seller shall give the buyer a sixty (60)
d'ay,grace period to be reckoned from the
date'•the installment became due;
·b,. The seller must give the buyer a notice of
c:an¢'ellatiofl/demand for rescission by
nota.ric:11 a~hif the buyer fails to pay the
installments clue at the expiration of the said
9race.'p~riQdl ~nd
c The sellef'may; actually cancel the contract
pnly aft¢t thfrty1. (30) days from the buyer's
(receipt /; ,.of .; ' the said notice of
¢ijhcell,i'tion/d~flland for rescission by
. nqtarial. act,(C>ptimum Oev't Bank v. Sps.
Jovel/ahas, G.l?. No. 189145, December 04,
. 2013)'.
~OTE: Down payments, deposits or options on
the·contract shall be included in the computation
"'"qt,,
tt~e :toJal number of installment payments
~,m,adeJR'A 6552, Sec. 3).
When Republic Act No. 6552 or the Maceda Law
speaks of paying "at least two years of
installments" in order for the benefits under its
Section 3 to become available, it refers to the
buyer's payment of two (2) years' worth of the
stipulated fractional, periodic payments due to
the seller. When the buyer's payments fall short
of the equivalent of two (2) years' worth of
installments, the benefits that the buyer may
avail of are limited to those under Section 4.
Should the buyer still fail to make payments
within Section 4's grace period, the seller may
cancel the contract. Any such cancellation is
ineffectual, however, unless it is made through a
valid not('lrial act (Obre v. Fi/invest Land, Inc.
G.R. No. 208185, September6, 2017).
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San 8000 Univeroity College of Law RGCT Bar Operat,ons Center ~ (~ ~ ~~. t ' ~ ft •

The notice of cancellation accompanied by a
jurat is not the valid notarial act
contemplated by the Maceda Law
Notarization under the Maceda Law extends
beyond converting private documents into public
ones. Under Sections 3 and 4, notarization
enables the exercise of the statutory right of
unilateral cancellation by the seller of a
perfected contract. Through an
acknowledgement, individuals acting as
representatives declare that they are authorized
to act as such representatives. It is imperative
that the officer signing for the seller indicate that
he or she is dwly authorized to effect the
cancellation of an otherwise perfected contract.
Respondent's notice of cancellation here was
executed by an individual identified only as
belonging to respondent's Collection
Department. A jurat is a distinct notarial act,
which makes no averment concerning the
authority of a representative (Obre v. Fi/invest
Land, Inc. .G.R. No. 208185, September 6,
2017).
LEASE
(ARTS. 1642-1679)
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DEFINITION OF CONTR1'~T Qfl:EASE
A contract whereby one persbn (le~sor)'.: binds .
himself to grant temporarily the enjoyn:ientoi' use of
a thing or to render of some work. or service to
another (lessee) who .undertakes to pay,l?_gm,e rent,
compensation or price therefor (DE LEON, supra at
703). ·, , .
ESSENTIAL ELEMENTS
CONTRACT OF LEASE
As in ordinary contract, a contract of lease has three
elements, namely: (COC)
1. fonsent of the contracting parties;
2. Qbject certain which is the subject matter of the
contract; and
3. fause of the obligation which is established
(CIVIL CODE, Art. 1318)
CHARACTERISTICS OF LEASE
THINGS:
1. ~onsensual;
Hence, as a rule, lease may be entered orally.
However, if the lease of real property is for more
than one (1) year, it must be in writing, in
compliance with Statue of Frauds (CIVIL CODE,
Art. 1403. par. 2, (e)) .
Issuance of the Gertificate by the city engineer's
office is not required for the perfection of a
contract of lease. Being a consensual contract,
a lease is perfected at the moment there is a
meeting of the minds upon the thing and the
cause or consideration which are to constitute
the contract (Hilltop Market Fish Vendors'
Association, Inc. v. Yaranon, G.R. No. 188057,
December 7, 2017).
2. ~ommutative;
3. Onerous (there must be rent or price certain);
4. .!;!ilateral;
5. frincipal; and
6. Nominat~.
LEASE CONTRACT IS NOT
ESSENTIALLY PERSONAL IN
CHARACTER
GENERAL RULE: It survives the death of the parties
and continues to bind the heirs.
. ,:':,', EXCEPTION: If the contract states otherwise
:, (lnocencion . v. Hospicio de San Jose, G.R. No .
. Iiii)~,Ji,1,~er:.,fJ~mber 25, 2013).
RULES Of'if. TEMPORARY ENJOYMENT
OR USE: ...
1. PeriQCJ isfeitl'Jer definite or indefinite (5 PARAS,
supra at 323~'$25)
2. H · .· · ~)ease of things, no lease for
.· 'e'ars shall be valid (CIVIL CODE,
S OF LEASE AS TO THE SUBJECT
,.R(CIVIL CODE, Art. 1642):
1. Lease of things (CIVIL CODE, Art. 1654);
2. Lease of service (CIVIL CODE, Arts. 1689,
OF A 1700 and 1732); and
3. Lease of work (CIVIL CODE, Art. 1713).
LEASE OF THINGS
One of the parties (lessor) binds himself to give to
another (lessee) the 1;3njoyment or use of a thing for
a price certain, and for a period which may be
definite or indefinite. However, no lease for more
than ninety-nine (99) shall be valid (CIVIL CODE,
Art. 1643).
OF
ESSENCE OF LEASE
The transmission of the temporary enjoyment or use
by the iessee of a thing for a certain period in
consideration of the undertaking to pay rent therefor
(DE LEON, supra at 705).
 SALES AND LEASE
Civil IAW

Hence, the object of lease must be within the
commerce of man (CIVIL CODE, Art. 1317);
otherwise, it is void (Id.)
SUBJECT MATTER OF LEASE
Article 1643 applies to lease of things, whether
movable or immovaple.
The Civil Code makes no special provisions for the
IA::-:ise of movables. Nevertholoss, tho provisions of
the Code on leases of lands are also applicable to
leases of personal woperty except those provisions
wl 1icli by their nature and intent, can only be applied
where the obfect of the lease is immovable (Id. at
706).
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RULE FOR LEASE OF CONSUMABLE
GOODS
GENERAL RULE: Consumable goods cannot be
the subject matter of a contract of lease <;Jf:things
(CIVIL CODE, Art. 1645).
commodatum (which is essentially gratuito11s)
(CIVIL CODE, Art. 1933).
RIGHT TO FIX RENT
It belongs to lessor as lease is a consensual
contract, similar to sale. If the rentals being claimed
are exorbitant, the courts could intervene as a matter
of fairness and equity. The burden of proof to show
thA unreasonableness of the rent is on the lessee
(Ramon Mc1y:,mysay Award Foundation v. CA, G.k.
No. L-55998, January 17, 1985).
RIGHT TO INCREASE RENT
It is not an -absolute right on the part of the lessor
without the consent of the lessee (Ramon
Magsaysay Award Foundation v. CA, G.R. No. L-
55998, January 17, 1985). Neither can the cou_rt fix
a different rental, even where there is an increase in
realty taxes (Ledesma v. Javellana, G.R. No. L-
55187, April 28, 1983)

REASON: To use or enjoy them, they wiflJ:iaveto be

consumed. This cannot be done ln lease since ·
returning the thing is the essehc1: 9f
Jease (CIVIL
CODE, Art. 1643). ., ' .

EXCEPTIONS:
1. If they are merely to be ~xhibited; or
2. If they are accessory std · an industrial
establishment (CIVIL CODE, Art. 1B45J\

OWNERSHIP OF THIN'(; " '0

The lessor need not be the owner of the thirig !~ased
as long as he can transmit its enjoyrnept or 4sffto
0

the lessee since the ownership is hqt :being'

transferred (Id.). "·

Even the lessee himself may lease th'e pr9perty to

another; in such case, a sublease results {CIVIL Seller' needs to be the Lessor need not be the
CODE, Art. 1650). ..- owner of the thing to owner (DE LEON,
transfer ownership Sales, supra at 706).
CONSIDERATION OF LEASE (CIVIL CODE, Alt.
.RENT 1459) .
It is the cause of the contract of lease, in money or
in its equivalent, such as products, fruits or other
useful things or some other prestation which the The price of the object, is The price of the thing is
lessee binds himself to undertake. The important is usually not mentioned usually fixed in. the
that what have given by the lessee has value (DE (DE LEON, supra at contract (CIVIL CODE,
LEON, supra at 707), · 720). A,L 1473).

NOTE: It must be capable of determination (since (DE LEON, supra at 720).

the law says "price certain") (5 PARAS, supra at
324).

It must not be fictitious or nominal. Otherwise, there

· is a possibility that the contract is one of
 1
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MEM✓Q,RY AID
San Beda Univernity Colfoge of Law ·· RGCT Bar Operations Center

LEASE V. SIMPLE LOAN

(DE LEON, supra at 721 ).

Lessor does not lose Ownership of the thing
ownership. transfers to the NOTE: Both consist in the transmission of the
borrower or debtor enjoyment or use of a thing to another (CIVIL CODE,
(CIVIL CODE, Art. Art. 1933).
1953).
LEASE V. USUFRUCT

Limited to the use Includes all possible

specified in the contract. uses and enjoyment of
If what is leased is real the thing (CIVIL
property for more than CODE, Arts. 562, 564
one (1) year, the Statute and 566).
of Frauds must be
complied with (CIVIL
CODE, Art. 1403, 2 (e)).

Not governed by the Governed by Usury Law Can be created only

Usury Law. (CIVIL CODE, Arts.· not 0
> 'owner, be the owner, or by
1175 and 1961). • therefore he. may or may duly authorized agent
(DE LEON, supra .at 721- 722). .~.c,t be the creator of the acting in behalf of the
:flq~ht:- owner (CIVIL CODE,
Art. 563).

May be created only by May be created by

contract; and by way of law, by the will of
exception, by law (as in private persons
the case of implied new expressed in acts inter
lease; or when a builder vivas or in a last will
has built in good faith a and testament, and by
building on the land of prescription (CIVIL
Onerous, although the Essentially gratuitous; if another, when the land is CODE, Art. 563).
rent may be there is a price or rent, considerably worth more
subsequently condoned the contract ceases to in value than the
or remitted. be commodatum. building).

Personal in character. Owner or lessor is more The owner is more or

Not essentially personal
Thus, the death of or less active, and he less passive and he
in character. Hence, the
either the bailor or makes the lessee enjoy allows the
right may be transmitted
bailee ends the the thing - "hace gozar". usufructuary to enjoy
to the heirs.
commodatum. the thing given in
 SALES AND LEASE
Civil Law

usufruct - "dejagozar" at will {CIVIL CODE,

(CIVIL CODE, Art. Art. 1972).
62).

The lessee generally has The usufructuary has Onerous. May be gratuitous
no duty to pay for repairs. the duty to make the (CIVIL CODE, Art.
ordinary repairs 1965).
(CIVIL CODE, Art..
592).
Consensual. Real contract,
perfected only upon
The lessee generally The usufructuary pays delivery of the thing
pays no taxes. for the_ annual charges (CIVIL CODE, Art.
and taxes on the fruits 1963).
(CIVIL CODE, Art. .. (DE LEON, supra at 723).
596).
L.EASE OF SERVICES V .
. CONTMCT FOR A PIECE OF WORK
The lessee cannot A u$GrrqdQary .m~y
constitute a usufruct on leasi, the . property
the property leased. it~€l1tJo another (CIVIL
(;ODE, Art. 581).
(DE LEON, supra at 722-723).
the poject , ot ttt.e The object of the
LEASE V. ,EP,J)$1T contract js thei lab61t or contract is the work
servi~' itself P.;rformEfd done (the result of the
by the)essor. · · · labor) without
considering the labor
' that produced it (C,IVIL
A real right only by Real right. CODE, Arts. 1689 and
exception. that is, when 1700).
it involves land, and it is
for more than one (1)

Tt\~,,,res'i:11t is generally The result is generally

·not important; hence the important; the price is
laborer is entitled to be not payable until the
Covers real and In extrajudicial deposit, paid even if there is work is completed and
personal property. only a movable thing destruction of the work said price cannot be
may be the object through fortuitous event lawfully demanded if
{CIVIL CODE, Art. or the result intended is the work is destroyed
1966). not attained. before it is finished and
accepted.

Enjoyment or use of the Safekeeping of the

thinQ leased. thing delivered (CIVIL 1. There i:, o price certain (compensation)
CODE, Art. 1962). 2. The relation of principal and agent does not
exist between the lessor and iessee. ·
: ; As to When p~{Tland:for the Thing Can B~ '.:_
·, "' Made ·, .. _, (5 PARAS, supra at 337-338).
: . 7 ~ . ~ .-,' ,.:' :,

Only upon expiration of Demand for return of

the contract. the thing can be made
 ~
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MEt4Q-RY Al D
San Beda University College of Law - RGCT Bar Operations Center .,_.
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LEASE OF SERVICES V. AGENCY

Independent contractor GENERAL RULE:

It is based on It is based on personally liable for his Agent is not liable to
employment (the lessor representation - agent contracts with third third persons.
of services does not represents his principal persons EXCEPTION: When
represent his employer and enters into juridical the agent expressly
nor does he execute acts. binds hi111self ur
juridical acts). exceeds the limit of his
Agent enters into authority (CIVIL CODE,
Lessor does not enter juridical acts in behalf Ari. 1897).
into juridical acts in of the principal (CIVIL
behalf of lessee. CODE, Ari. 1868).
Lessor is only limited to Agent exercises
ministerial duties. discretionary power
Principal contract Preparatory contract; (CIVIL CODE, Aris.
the purpose is for the 1876, 1877, 1881,
agent to enter into 1882, 1884, 1887 and
other contracts which 1888).
he is authorized to. • (DE LEON, supra at 724-725).
enter.
ASE OF CHATTELS
V. EMPLOYMENT
The lessor performs a The agent exJ;icutes a
material act for the juridical actfor and in
benefit of his employer behalf of the principal
without representation of (CIVIL GbDE; Ari.
the latter (CIVIL CODE, 1868). Employer
Art. 1644). employee
CODE, Aris.
1713).
Work or service must be Presumed to be Jor a
for a price or price or con~i_deration
consideration. (CIVIL CODE, Art.
1875).
Lessor loses control or The employer retains
management over the control or management
Will of both parties Will of one is sufficient chattel leased. over his chattel.
necessary. (CIVIL CODE, Arts.
1919 (1, 2), 1920 and
1928).

Lessor has no control or The employer

Two persons - lessor Three persons supervision over the exercises control and
and lessee. principal, agent, and lessee. supervision over the
third person. employee.
,,__, V V r O ,_ V , £ '. ~ • - ~ ~ : ~~~ : ', ~, '~ >~ - ~ •- ,<

:,
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. ~~:\o.Ris~ ot Loss Befo~e·Qel~velo/..·' :·: t
'~ ~~ ' ' S • V , ,• '

Borne by the Borne by the principal

independent contractor since agent merely Lessee pays rent to the Employer pays wages
(CIVIL CODE, Arts. acts as representative. lessor for the enjoyment or salary for the
1717 and 1718). or use of the chattel. services of the
employee.
(DE LEON; supra at 724).
 ' _,') : ; ' ~ ':; 'a,'. ~, : ( ' '

'608 ,' . ,· SALES AND LEASE

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Civil Law

SERVICE AS DRIVER UNDER WHERE LEASE CONTRACT AMOUNTS

BOUNDARY SYSTEM TO VIRTUAL TRANSFER OF
Under the boundary system, the relation between OWNERSHIP
the driver and the jeepney owner is that of employer A contract whereby an alien is given not only a lease
and employee, not lessor and lessee (DE LEON, but also an option to buy a parcel of land by virtue of
supra at 733). which Filipino owner cannot sell or otherwise
dispose of her property for 50 years, circumvents the
LEASE OF THINGS constitutional ban against alien landholding
V. LEASE OF SERVICES (Philippine Banking Corp. v. Lui She, G.R. No. L-
17587, September 12, 1967).

MAXIMUM PERIOD OF LEASE TO

ALIENS
Under P.D. No. 471, the maximum period is 25
years, renewable for another 25 years upon mutual
agreement of both lessor and. lessee. R.A. No. 7652
(Investors' Lease Act), regulates the long-term lease
of private lands by foreign. investors.

PROPER AUTHORITY REQUIRED IF

LEASED·.. TO BE RECORDED IN
REGISTRY OF PROPERTY (CIVIL CODE,
Art. 1647l
In case of breach, there In cas~ of breach, no If a lease ls to,,be recorded, the following persons
can be an action for action · for specific must have :proper authority (special power of
specific performance. pe'rformartce. <1ttorneyto constitute the lease):
1. The husbahd \;','Jth respect to the paraphernal
(DE LEON, supra at 724). : real estate ofthe wife, unless the administration
of such properties has been transferred to the
PERSONS DISQUAUFiE'p TO BE husband done ih a public instrument duly
LESSEES recorded (FAMILY CODE, Art. 110). Conjugal
. property cannot be leased without the joint
The persons disqualified to buy referred to in
consent of the spouses;
Articles 1490 and 1491, are also disqualified to
2. The fattier or guardian with respect to the
become lessees of the things mentioned therein
properly of the minor or the ward (CIVIL CODE,
(CIVIL CODE, Art. 1646).
,firt. 1647); and
3. The,manager (administrator) with respect to the
The prohibition is adopted in Article 1946 because of ·
property under his administration (CIVIL CODE,
the similarity between the contract of lease snd '.that
Art:' 1647).
of sale (DE LEON, supra at 736). ·
NOTE: Article 1647 does not specify the term of the
(Please refer to the discussions on Articles 1490 and
lease. Every lease of real estate may be recorded,
1491 in page 541).
and if recorded, creates a real right binding upon the
parties (CIVIL CODE, Art. 1648).
LEASE OF REAL PROPERTY TO ALIENS
. GENERAL RULE: Foreigners are prohibited by the REASON: The registration of the lease is an act of
Constitution ownership or strict dominion; hence, a special power
of attorney is necessary (DE LEON, supra at 739).
EXCEPTION: In cases of hereditary successions, to
acquire lands in the Philippines (CONST., Art. XII,
THE MANAGER'S SPECIAL POWER OF
Secs. 2 and 7).
ATTORNEY IS REQUIRED FOR
Nevertheless, they can lease real or immovable VALIDITY
property in the Philippines (Investors Lease Act, R.A. The requirement under Article 1878 (8) is imposed
7652, Sec. 4). whether or not the lease will be recorded. In the
absence of a special power, a lease for more than
one (1) year executed by persons mentioned in

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Article 164 7 is valid only for one (1) year but void as
to the excess (DE LEON, supra at 739).
NOTE: The word manager in the law is a broad term
and may be:
1. The administrator of conjugal property (Chua v.
CA, G.R. No. L-60015, December 19, 1984);
2. Administrator of co-ownership (Melencio v. Dy
Tiao Lay, G.R. No. L-32047, November 1,
1930);
3. Administrator of state patrimonial property
(Tipton v. Andueza, G. R. No. 2070, January 2,
1906).
RECORDING OF THE LEASE OF REAL
PROPERTY
Its purpose is to notify strangers to the transaction
(CIVIL CODE, Art. 1648). It is intended to protect the
lessee, who cannot be ousted by the buyer if the
lease is recorded (Report of the Civil Code
Commission, p. 142).
However, if the purchaser has actual knowledge of
the existence of the lease, which knowledge ts
equivalent to registration, he is bound by the lease
(Lao v. Lao, G.R. No. 149599, May 16, 2005).
LEASE AS PERSONAL OR REAL RIGHT
GENERAL RULE: Lease is only a personal right
(DE LEON, supra at 703).
EXCEPTIONS: Lease partakes of the nature of real
right if:
1. Lease of real property is more than on~ (J) year,
and to be enforceable, it must be in wr-itihg; or
2. Lease of real property is registered regardless of
duration with Registry of Property (CIVIL CODE,
Art. 1648).
NOTE: Lease of personal property cannot be
registered. To be binding against third persons, the
parties must execute a public instrument (DE LEON,
supra at 740-741).
EFFECT OF ACTUAL NOTICE OF
UNREGISTERED LEASE BY THE
PURCHASER
Where, a purchaser .of a land at the time of the
purchase has full knowledge that the land has been
leased to a third person, he is bound to respect said
lease, although it is not entered upon the certificate
of sale (Lao v. Lao, G.R. No. 149599, May 16, 2005).
ASSIGNMENT OF LEASE BY LESSE·E
GENERAL RULE: A lessee cannot assign the lease
without consent of lessor (CIVIL CODE, Art. 1649).
REASON: In the case of cession or assignment of
lease rights on real property, there is a novation by
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the substitution of the person of one of the parties -
the lessee. The personality of the lessee, who
dissociates from the lease, disappears; only two
persons remain in the juridical relation - the lessor
and the assignee who is converted into the new
lessee (Inocencio v. De San Jose, G.R. No. 201787,
September 25, 2013).
The objective of the prohibition is to protect the
lessor or owner of the leased property (Dakudao v.
Consolacion, G.R. No. L-54753, June 24, 1983).
EXCEPTION: If there is stipulation to the contrary
(CIVIL CODE, Art. 1649).
An assignment exists when the lessee made an
absolute transfer of his leasehold rights in a contract,
and he has disassociated himself from the original
contract of lease. Consequently, the juridical relation
is only between the lessor and the assignee
(Manlapat v. Salazar, G.R. No. L-8221, January 31,
1956).
It is a separate and distinct contract of lease wherein
the original 'les~ee becomes a sublessor to a
sublessee of the thing, in whole or in part, -without
prejudi~\t(:);his~?J?RASibility for the performance of
the contraclct<:}ward the lessor (CIVIL CODE, Art.
1650). .
>As the existence of the sublease depends upon the
leim~t,tlhe'sublease is terminated upon the
rescission of the lease contract (Go King v.
Geronimo, G.R. No. L-2126, August 27, 1948).
A sublease cannot have a term longer than that of
the lease on which it is dependent. It terminates
upon the termination of the lease, unless the lease
is for a shorter term (Blas v. CA, G.R. No. 82813,
December 14, 1989).
RIGHTS OF THE LESSEE TO SUBLEASE
Unlike in assignment, a lessee may generally
sublease the property in the absence of express
prohibition (CIVIL CODE, Art. 1650).
REASON: The lessee remains a party (bound by the
terms and conditions of the contract) to the lease
even if he has already created a sublease thereon
(DE LEON, supra at 744).
NOTE: Under Section 9 (a) of R.A. 9653 (Rent
Control Act of 2009), assignment of lease or
subleasing of residential in whole or in part, including
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lite at:ceµlcmce of boarders or bed spacers, without RESPONSIBILITY OF A SUBLESSEE "rO

the written consent of the owner/lessor is a ground THE LESSOR
for judicial ejectment.
GENERAL RULE: The sublessee is directly liable to
Accepting boarders is not equivalent to subleasing the sublessor and not the lessor (Manlapat v.
since the lessee does not relinquish or surrender his Salazar, G.R. No. L-8221, January 31, 1956).
lease to them. He did not cease to become the
actual occupant and possessor of the demised REASON: There is no juridical relationship between
premises (Malasarte v. CA, G.R. No. 178 SCRA 310, the lessor and the sublessee (CIVIL CODE Art.
1989). 1311 ).

EXCEPTIONS:
RIGHTS OF THE LESSOR IF SUBLEASE The sublessee is responsible to the lessor for:
IS PROHIBITED BUT SUBSEQUENTLY 1. All acts which refer to the use and preservation
ENTERED INTO BY THE LESSEE: of the thing leased in the manner stipulated
1. Rescission and damages; or between the lessor and the lessee (CIVIL
2. Damages only (Contract will be allowed to COD_E, Art. 1651); and
remain in force). 2. Rent due to the lessor from the lessee which the
latter failed to pay ( CIVIL CODE, Art. 1652).
As the existence of the sublease depends upon the
lease, the sublease is terminated upoJ) the Amount recoverable: Since the liability of the
rescission of the lease contract (Go King v. sublessee is subsidiary, the sublessee shall not be
Geronimo, G.R. No. L-2126, August 27; 1948). ·. responsible beyond the amount of rent due from him,
in accordance with the terms of the sublease, at the
time ofthe extrajudicial demand by the lessor (CIVIL
SUBLEASE V. ASSIGNMl;~T QF .LEASE CODE, Art. 1652):

PURPOSE: To preveot situation where the lessee

collects rents from: the:sublessee but does not pay
his rents to the lessor (DE LEON, supra at 744-745) .

There are two leases Th~te ., is · only one . ACCIONDiR.ECTA

and two distinct juridical juridical, rela,tionship, ft is a direct action which the lessor may bring
relationships although thaFof the lessor and against a subtessee who misuse$ the subleased
immediately connected the assignee, who i;, property (5 PARAS, supra at 354).
and related to each converted into a
other. lessee. NOTE: If, the lessor was compelled to file a
complaint, which is equivalent to a judicial demand,
the lessor can claim other forms of damages from
.the -.sublessee like attorney's fees, costs, etc.
The personality of the The personi'.llity :of the (PINEDA, Sales, supra at 485).
lessee does not lessee disappears.
disappear.
NECESSITY OF JUDGMENT AGAINST
THE LESSEE
There must be a judgment against the lessee
The lessee does not The lessee transmits evicting the latter from the premises, or cancelling
transmit absolutely his absolutely his rights to the lessee's lease contract, when he cannot pay the
rights and obligations to the assignee. rentals and the sublessee is in possession. The
the sublessee. mere failure of the lessee to pay the rentals does not
make the sublessee subsidiarily liable (Wheelers
Club Int'/ v. Bonifacio Jr., G.R. No. 139540, June 29,
The sublessee, The assignee has a 2005).
generally, does not have direct action against
any direct action against the lessor. LIABILITY FOR RENTS PAID· IN
the lessor. ADVANCE
(DE LEON, supra at 744-745). Payments of rents in advance by the sublessee shall
be deemed not have been made, sq far as the
lessor's claim is concerned, unless said payments
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were effected in virtue of the customs of the place

(CIVIL CODE, Art. 1652, par. 2).
REASON: To avoid collusion between the lessee
and sublessee (DE LEON, supra at 749).
WARRANTY OF THE LESSOR
The provisions governing warranty, contained in the
Titlo on Gales, shall be oprlir.:1hlfl to the contrnr.t of
lease. (CIVIL CODE, Art. 1653).
In cases where the return of the price is required,
reduction shall be made in proportion to the time
during which the lessee enjoyed the thing (Id.).
5. Making of Mecessary repairs, unless there is a
stipulation to the contrary (CIVIL CODE, Art
1654, par. 2).
NOTE: In default of a special stipulation, the
custom of the ,place shall be observed as to the
kind of repairs (CIVIL CODE, Art. 1686).
WHERE LEASE CONTRACT CONTAINS
RIGHT OF FIRST REFUSAL
The lessor is under a legal duty to the lessee not to
sell to anybody at any price until after he has made
an offer to sell to the latter at a certain price and the
lessee has failed to accept it (PUP v. CA, G.R. No.
143513, November 14, 2001).

The sale in violation of such right is valid. It may be

OBLIGATIONS rescinded or may be the subject of an action for
OFLESSOR specific performance (PUP v. Golden Horizon Realty
Corp., G.R. No. 183612, March 15, 2010).

OF LESSOR TO CONTINUE
OBLIGATIONS OF THE LESSOR: SAME BUSINESS OR INDUSTRY
(CT-DAN) ISNGAGED+IN BY LESSEE
:,-.--->'!.;:" -,,',,._ _,.,,.,,.,
1. Cannot alter the form of the thing leased (CIVIL GENERA-if fi\JLE: The lessor of a business or
CODE, Art. 1661); . industrial est~blishment may continue engaging in
the same business or industry to which the lessee
Alteration - to constitute alteration, .. the devotes th¢ thing leased (CIVIL CODE, 1656).
. 1 ...
modification must be in such manner t~;3t it
would destroy the substance of the thing leased • EXCEPTION: The~ is a stipulation to the contrary.
unserviceable for the use in(ende,q (DE LEON,
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supra at 7_67). REASONr~Y:I.easfiis no warranty by the lessor to the
2. The obligation to protect the lesseecovers acts
• lessee that the latter's business would be
~fessful. Even if the lessee should suffer losses,
of !hird persons and of the lessor JBercero v. · uld still be bound to fulfill the terms of the lease
Capitol Development Corp., G.R. No. ·154765;
March 29, 2007);
T'°f:/aga v. CA, G.R. No. L-5944, November 26,
1954).
3. .Q.elivery of the object (actual or constructive;
cannot be waived) (CIVIL CODE, Art. 1654, par. RULES ON ALTERATION OF THE FORM
1); OF THE LEASE
The lessor cannot alter the form of the thing leased
NOTE: At the time of the delivery, the thing must in such a way as to imp13ir the use to which the thing
be in a condition fit for the use intended; is devoted under the terms of the lease (CIVIL
otherwise, lessee's cause of action is against CODE, Art. 1661).
the lessor for breach of contract. The lessee has
no cause of action ag:ainst the possessor REASON: Right of the lessee to be maintained in
because he has no relation (Republic v. De Los peaceful enjoyment for the entire duration of the
Angeles, G.R. No. L- 26112, October 4, 1971). contract (CIVIL CODE, Art. 1654, par. 3).

4. Maintenance in peaceful and ~dequate NOTE: To constitute alteration, the modification

enjoyment of the lease for the entire duration of must be in such manner that it would destroy the
the contract (CIVIL CODE, Art. 1654, (3)). substance of thing leased unserviceable for the use
intended (Id.).
The obligation arises only. when legal trespass
disturbs the lessee's peaceful enjoyment thereof
(Bercero v. Capitol Development Corp., G.R.
No. 154765, March 29, 2007);

RULl::S IN CASE OF USEFUL
IMPROVEMENTS AND ORNAMENTAL
EXPENSES
1. Rights of Lessee in case of Useful
Improvement
a. To remove the improvements should the
lessor refuse to reimburse although the
principal may suffer damage; or
b. To be reimbursed by one-half (1/2) of the
value of said improvements at the time of
termination of the lease should the lessor ·
choose to appropriate it (CIVIL CODE, Art.
1678, par. 1).
PURPOSE: To prevent unjust enrichment of the
lessor. The lessee is not a possessor in good
faith in the sense he believes himself to be the
owner, but neither is he a possessor in bad faith.
He is in possession by virtue of a contract, so his .
possession is lawful.
The lessor is to pay only one-half (1/2) of th.e
value of the improvements at the time the lease
terminates because the lessee has enjoyed the
same. On tlie other hand, the.lessor will enjo~
them indefinitely thereafter (Report of-the Civil
Code Commission, pp. 144-145).
Parties may stipulate that the lessor may
5 Sales, supra at 485).
appropriate them without rt=;imbursing the lessee
should the latter fail to comply .with the terms of
the lease contract. Courts may equltably reduce
a stipulated penalty in the contracts (1) if the
principal obligation has been partly or irregularly
complied with; and (2) even if there has be~r-i no
compliance if the penalty is iniquitous or
unconscionable in accordance with Artiele 1229
of the Civil Code (Florentino v. Supervalue, Inc.,
G.R. No. 172384. September 12, 2007).
To be entitled to either two remedies, the ·
following must concur:
a. Lessee must be a considered a builder in
good faith (Florentino v. Supervalue, Inc.,
G.R. No. 172384, September 12, 2007);
NOTE: The improvements can be
considered made in good faith if they are not
in violation of the lease contract (DE LEON,
supra at 808).
b. Improvements must be suitable to the use
for which the lease is intended; and
c. The form and substance of the property
leased should not be altere·d (Inocencio v.
Hospicio de San Jose, G.R. No. 201787,
September 25, 2013).
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SALES AND LEASE
Civil Law
2. Rights of Lessee in case of Ornamental
Expenses
The lessee has no right of reimbursement, but
he may remove them, provided:
a. No damage is caused to the principal thing;
and
b. Lessor does not choose to retain them by
paying their value at the time of the lease
(GI\IIL CODE, Art. 1678, par. 2).
Rules in Case of Urgent Repairs
The lessor has the obligation to make necessary
repairs (CIVIL CODE, Art. 1654, par. 2); 3nd the
lessee is obliged, within the shortest possible
time, to advise of the need of such repair (CIVIL
CODE, Art. 1663, par.2).
The lessee is obliged to tolerate the work
although it may be very annoying to him and
although during the same time he may be
deprived of a part of the premises, if repairs last
for less than forty (40) days (CIVIL CODE, Art.
1662, p.ar. 1).
The burden is on the lessor to prove the urgency
of the repair (DELEON, supra at 769).
If the repairs are not urgent, the lessor is liable
for damages suffered by the lessee (PINEDA,
NOTE:. Article 1642 speaks of repairs.
Modifications·or improvements which the lessor
m~y want to make on the property during the
period of the lease cannot be done against the
objecti9n of the lessee (Id. at. 769).
Rights of Lessee in Case of Urgent Repairs
If forty-(40) days or more - the lessee can ask
for.reduction of the rent in proportion to the time
· - inciuding the first fori:y (40) days - and the part
of the property of which he is deprived (Id.).
If less than forty (40) days - the lessee cannot
ask for reduction of the price in the absence of a
provision in the contract giving him such right or
for rescission (Id.).
When Rescission may be availed of
In either case, rescission may be availed of if the
main purpose of the lease is to _provide a
dwelling place for the lessee and the property
becomes uninhabitable (CIVIL CODE, Art.
1662).
Remedies if the Lessor Fails to Make Urgent
Repairs
The lessee may: (RISA)
a. Order Repairs at the lessor's cost, to avoid
imminent danger;
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b. !ndemnification for damages;
c. §uspend the payment of the rent; or
d. · ~sk for rescission, in case of substantial
damage to him (CIVIL CODE, /\rt. 1663).
If the lessor refuses to make urgent repairs
despite notice, the remedy of the lessee is to
make urgent repairs themselves and to charge
the cost to the lessor and not to suspend
payment C,f rentals (Banzon v. Ubay, G.R. No. L-
46464. November 21. 1979).
TWO KINDS OF TRESPASS IN LEASE
1. Trespass in Fact (perturbacion de mero
hecho)
A physical disturbance on the property leased
such as an intrusion without any legal claim to
justify entry into the property (CIVIL CODE, Art.
1664).
Illustration: Forcible entry
Liability of lessor: Lessor will not be held liable.
REASON: The duty to maintain the lessee in the
peaceful enjoyment of the lease is a warranty
that the lessee shall not be disturbed in his legal,
and not physical, possession (Bercero v. Capitol
Development Corp., G.R. No. 154765, March
29, 2007),
The lessee is authorized by. law tb pursue a
direct action against the usurper or intruder
(CIVIL CODE, Art. 1664).
2. Trespass in Law (perturbacion
derecho)
A third person claims legal right to enjoy the
premises.
Liability of lessor: The lessor will be held liable
to the lessee. The lessor may maintain an action
to recover title (accion reinvindicatoria), or to
establish his better right of possession (accion
publiciana) (DE LEON, supra at 773).
NOTE: In the Goldstein case, trespass in fact is
distinguished from legal transfer. If the trespass
is not accompanied or preceded by anything
which reveals a juridical intention on the part of
the trespasser, in such wise that the lessee can
only distinguish the material fact, stripped of all
legal forms or reasons, it is only trespass in fact
(de mero hecho) (Nakpil v. Manila Towers
Development Corp., G.R. No. 160867,
September 26; 2006).
The act of the Japanese armed forces in evicting
the lessee from the leased premises and .·
occupying the same was a trespass in law under
the rules of "belligerent occupation" (Villaruel v.
Manila Motor Co., G.R. No. 10394, December
13, 1958).
A lessor is not responsible for the lessee's
eviction through condemnation proceedings and
cannot be held liable for damages therefor. The
lessee must look to the expropriating plaintiff for
his compensation (Sayo v. Manila Railroad Co.,
G.R. No. L-17357, June 21, 1922).
The obligation to maintain the lessee in the
peaceful and adequate enjoyment of the leased
property seeks to protect the lessee not only
from the acts of third persons but also from the
acts of the lessor (Bercero v. Capitol
Development Corp., G.R. No. 154765, March
29, 2007).
PRESUMPTION OF RECEIPT OF THING
LEASED IN GOOD CONDITION (CIVJL
CODE, Art. 1666)
In the absence of a statement (or representation),
written or oral concerning the condition of the thing
at the time the lease was constituted, the law
·• prei4rne? ,{~t the lessee received it in good
condition, unless there is a proof to the contrary.
OBLIGATIONS OF
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(PUT-EN 2R)
1. To ~ay the price of the lease according to the
terms stipulated (CIVIL CODE, Art. 1657 par. 1).
The lessP.P. i:-; ohligec! to pay rent;:il:-; c!1iring thP.
pendency of the action for rescission of the lease
(M & M Management Aids, Inc. v. CA, G.R. No,
L-53924, June 29, 1984).
• Proper rate for back rentals is 6% (BSP Cir. No.
/9Y, S. W1 :.:J) per annum computed from the
time of demand. Back rentals are equivalent to
a Imm or forhemance of money (Castro v.
Palenzuela, G.R. No. 184G98, January 21,
2013).
The lessor has not only the right to terminate the
lease upon the expiration of the term but also to
increase the rent in case of renewal. The lessee
has an option to accept the new rate or vacate
the premises; otherwise, he will be considered a
possessor in bad faith of the property (De Leon
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2. To !!_se the thing leased as a diligent father of a
family would, devoting it to the use stipulated;
and in the absence thereof, to that inferred from
the nature of the thing leased according to the
custom of the place (CIVIL CODE, Art 1657,
(2)).
The lessee is liable for any deterioration caused
by members of his household, guests and
visitors (CIVIL CODE, Art. 1668).
Basis: He is made legally responsible for their
acts as in quasi-delicts (CIVIL CODE, A,ts. 2176
and 2180) under the principle of command
responsibility. The law makes no distinction
between intentional or negligent acts of third
persons. The lessee may recover from the third.
persons what he has paid in satisfactior;i,,,of the
claim of the lessor (DE LEON, supra at77l).
3. To Iolerate urgent repairs even if ·annoying to
him and although during the same., he may be ·
deprived of part of the premises (OfVIL CODE,
Art. 1662, par. 1) unless Jhe' dwelling becomes
uninhabitable (CIVIL CODE, Art, 1662, par. 3).
4. To pay .!;_xpenses for t~e deed of lease (CIVIL
CODE, Art. 1657, par. 2).
NOTE: By agreement, 1 the;oqjigaHon may be
assumed by the lessor. {DE !:.EON, supra at
760). '\_ , ,, ,,
5. To Notify the lessor of usurpation or.~ntoward
acts which any third person may . ,,have
committed or may be openly preparing to carry
out upon the leased thing (CIVIL.' CODE; :Art.
1663).
REASONS:
a. So that the lessor may bring proper action
· against the usurper (Simpao v. Dizon, G.R.
No. 452, April 30, 1902).
b. It is unjust to compel the lessor to stand idly
and trust the defense of his property to a
mere lessee (Roxas v. Mijares, G.R. No.
3823, November 23, 1907).
6. To )'iotify the lessor of need for repairs (CIVIL
CODE, Art. 1663, par. 2).
REASON: Because the lessee is in possession
and the lessor has no duty to make constant
inspection (Gregorio Araneta Inc. v. Lyric Film
Exchange Inc., G.R. 37730, November 14,
1933).
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Notification is not essential if the lessor actually
knows the need for the repairs (Johnson Picket
Rope Co. v. Grey, CA, 40 O.G. (Supp. 11) 239).
7. To Return the property leased upon termination
of the lease in the same condition 9 s he received
it save what has been lost or impaired by:
a. Lapse of time;
b. Ordinary wear and tear; or •
c. Inevitable cause/fortuitous event (CIVIL
CODE, Art. 1665).
NOTE: If the lessee fails to comply with (5) and (6),
he would be liable for damages which the lessor
would suffer and which could have been avoided by
the lessee's diligence (CIVIL CODE, Art.1663, par.
3). .
RESPONSIBILITY OF THE LESSEE FOR
DETERIORATION OR LOSS OF THING
LEASED (CIVIL CODE, 1667)
.The J~ssee is responsible for the deterioration or loss
ofthe thing leased, unless he proves that it took
place with_otit his fault. This burden of proof on the
lessee does,rio1 apply when the destruction is due to
earthqua,ke, fk>Od, storm, or other natural calamity.
I I
REMEDIES
,. 9"
ALTERNATIVE REMEDIES OF
AGGRIE;VED P~RTY
tf the lessor or the lessee should not comply with the
obtigc1tiqns, seL forth in Article 1654 and 1657, the
aggrieved party ask for:
1. Rescission and damages (CIVIL CODE, Art.
1659);
NOTE: The lessor may directly file an action for
ejectment against the lessee instead of
rescinding the contract (Pamintuan v. Tiglao,
G.R. No. L-29292, March 13, 1929).
The court cannot apply Article 1191 par. 3 to
grant additional time for the performance of the
obligation if the aggrieved party avails the option
of rescission in Article 1659 (DE LEON, supra at
762).
A lessee cannot take advantage of his own
wrongdoing to rescind the lease. He cannot
refuse to pay the rent and then declare the tease
rescinded. Rescission is a remedy granted only
to the injured part and cannot be availed of by

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the wrongdoer (Fernandez Hermanos v. Pitt,
G.R. No. L-11068, March 29, 1916).
2. Damages only, allowing the contract to remain
in force - Specific Performance (CIVIL CODE,
Art. 1659);
NOTE: Damages recoverable in ejectment
cases are the rents or the fair rental value of the
premises and liquidated damages if agreed
upon by the parties (DE LEON, supra at 762).
The following cannot be successfully
claimed:
a. Profits plaintiff could have earned were it not
for the forcible entry or unlawful detainer;
b. Material injury to the premises; and
c. Actual, moral, or exemplary damages
(Baens v. CA, G.R. No. L-57091, November
23, 1983).
d. Future rents where the termination of the
lease abrogated liability for future rents
(Rios v. Jacinto, Palma y Hermanos, G.R,
No. L-23893, March 23, 1926).
OTHER REMEDIES OF THE LESSOR
1. May hold the sublessee bound for all acts which
refer to the use and preservation of .the things
leased (CIVIL CODE, Art. 1651);
2. May hold the sublessee subsidiarily liable for
any rent due from the lessee (CIVIL CODE, Art.
1652); or
3. Ejectment (CIVIL CODE, Art. 1673 (1), (2), (3)
& (4)).
REMEDIES OF THE LESSEE:
1. Extinguishment of the lease in case of total
destruction of the thing leased caused . by
fortuitous event (CIVIL CODE, Art. 1655);
Where the buildings and the land, which formed
part of the consideration of the lease contract,
constituted an indivisible unit, the destruction of
the building extinguished the obligation or
terminated the tease contract (Rohde Shotwell
v. Manila Motors Co., Inc., G.R. No. L-7637,
December 29, 1956).
2. Proportional reduction of the rent or rescission in
case of partial destruction of the thing leased
caused by fortuitous event (CIVIL CODE, Art.
1655);
Once the choice of the lessee has been
communicated to the lessor, the former cannot
change it (CIVIL CODE, Art. 1201 ).
NOTE: Art. 1655 of the Civil Code provides for
an instance where the lessee may rescind the
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contract of lease as a matter of right
notwithstanding the fact that lessor is not guilty
of breach or negligence.
3. Terminate the lease in case a dwelling place or
any other building Intended for human habitation
that its use brings imminent and serious danger
to life and health (CIVIL CODE, Art. 1660); or
Immediate Termination of Lease with Notice
under Art. 1660 of the Civil Code Applies:
a. Only to dwelling place or any other building
intended for human habitation; and
b. Even if at the time the contract was
perfected, the lessee knew of the dangerous
condition or waived the right to rescind on
account of such condition.
The rule can apply to commercial buildings
where workers perform their jobs (PINEDA,
Sales, supra at 483).
REASON: The right of the lessee is a precautio·n
for public safety which is above any stipulation.
(Report of the Code Commission, p. 142). It
:~nnot ti$ waived (CIVIL CODE, Art. 6).
4. Suspension of the payment of rent (CIVIL
CODE, lk[ 1658).
NOTE: HowJyer, in the Banzon case, the SC
ruled,thatihe remedy is not to suspend payment
butj9;makeJ~ µrgent repair and charge cost
ther&if;agitfostthe lessor (G.R. No. L-46464,
November"21, 1979).
,JNSI.ftNCES WHEN THE LESSEE MAY
SUSPEND THE PAYMENT OF RENT:
1. Lessor fails to make the necessary repairs; .or
In case the lessee makes the repairs, he cannot
suspend the payment of rent as a matter of right.
The remedy is legal compensation. He still
needs to pay the rent but it will be compensated
by the amount he spent for the repairs.
2. Lessor fails to maintain the lessee in peaceful
and adequate enjoyment of the property leased
(CIVIL CODE, Art. 1658).
NOTE: "Suspend"- for the intervening period,
the lessee does not have to pay the rent unless
the lessor can prove that the suspension was not
legally justifiable (DE LEON, supra at 761).
Article 1658 of the Civil Code allows a lessee to
postpone the payment of rent if the lessor fails
to either (1) "make the necessary repairs" on the
property or (2) "maintain the lessee in .peaceful
and adequate enjoyment of the property

leased." This provIsIon implements the
obligation imposed on lessors under Article
1654 (3) of the Civil Code. The failure to
maintain the lessee in the peaceful and
adequate enjoyment of the property leased does
not contemplate all acts of disturbance. Lessees
may suspend the payment of rent under Article
1658 of the Civil Code only if their legal
possession is disrupted. The duty 'to maintain
the lessee in the peaceful and adequate
enjoyment of the lease for the duration of the
contract' mentioned in [N]o. 3 of [Article 1654] is
merely a warranty that the lessee shall not be
disturbed in his legal, and not physical,
possession." (Race/is v. Spouses Javier, G.R.
No. 189609, January 29, 2018).
EFFECTIVITY OF THE SUSPENSION
The right begins:
1. In the case of repairs, from the time deman_d is
made upon the lessor and the latter falls to
perform his obligation; . of demand does not change the fact that the lease
2. In the case of eviction, from the· time h~ is
unlawfully dispossessed (DFJ:.EON; stipra at
761). C •
DURATION OF THE LEASE
The period may be definite or indefinite but, in any
case, the period is only tertiporary,not perpetual. If
there is a determinate time or period fixed (definite),
the lease will be for the said perlod, and ends on the
day fixed without the need of demand (CIVIL CODE,
Art. 1669).
Ninety-nine (99) year Limitation
( The longest period that can b(:) stipulatt;d is only
ninety-nine (99) years.
If period is more than ninety-nine (99) years, the
lease is considered as having expired at the .end of
99 years. The excess is considered to be an
indefinite period should an implied new lease arise.
PURELY POTESTATIVE CONDITION
As a rule, a lease contract providing that the lessee
can stay in the premises for as long as he wants and
for as long as he can pay the rent9Is and its
increases are not permissible as it is a purely
potestative condition, leaving the effectivity and
enjoyment of leasehold rights to the sole and
exclusive will of the lessee. However, the SC upheld
that a lease contract, which provides that "the lease
contract shall continue for an indefinite period
provided that the lessee is up-to-date in the payment
of his monthly rentals" for the contract is one with a
period subject to a resolutory condition (Jespajo
Realty v. CA, G.R. No. 113626, September 27,
2002).
SALES AND LEASE
Civil Law
If from lt1e circumstances It can be inferred that a
period was intended, the court may fix the duration
thereof under Article 1197 of the Civil Code.
A lease of things during the lifetime of one of the
parties, as the lessor or lessee may please, is one
for life, ending upon the death of either party
(Eleizegui v. The Manila Lawn Tennis Club, GR. No.
967, May 19, 1903).
A month-to-month lease is for a definite period.
Where the parties agreed that upon the thirty (30)
day notice, either party may terminate the
agreement, the lease is for a definite period (Rantael
v. CA, GR. No. L-47519, April 30, 1980).
When the action is to terminate the lease, notice or
demand to vacate is not necessary. Demand is only
a prerequisite to an action for unlawful detainer when
the action is for failure to pay rent due, or to comply
with the conditions of the lease (Co Tiamco v. Diaz,
G.R. No. L-7, January 22, 1946). Thus, the absence
. contract 'has ·ended upon the termination of the
period fixed for its existence.
IF THERE IS NO FIXED PERIOD
{INDEFINITE):
1. For rural lands
a .. It shall be for all the time necessary for the
gathering of fruits which the whole estate
may yield in ohe (1) year; or
b. Which it. may yield once although two or
more years<have elapsed (CIVIL CODE, Art.
1682).
2. For urban lands
a. If rent is paid daily, lease is from day to day;
b. If rent is paid weekly, lease is from week to
week;
c. If· rent is paid monthly, lease is from month
to month; or
d. If rent is paid yearly, lease is from year to
year (CIVIL CODE, Art. 1687).
NOTE: Article 1687 does not apply where there
is a fixed period, whether such period is definite
or indefinite (DE LEON, supra at 820).
a. A lease contract on a month-to-month basis
(Junson v. Martinez, G.R. No.141324, July
8, 2003);
b. A lease stipulating that the lessee will vacate
as soon as the lessor needed the premises
(Lim v. Legarda Vda. de Prieto, G.R. No.
9189, March 30, 1957);
c. A lease contract with a period subject to a
resolutory condition (Jespajo Realty v. CA,
G.R. No. 11362$, September 27, 2002).
NOTE: In all cases, whether for definite or indefinite
period (except for the last paragraph mentioned in
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San Seda University College of Law - RGCT Bar Operations Center
number 1 above), the lease is not terminated by
reason of the death of either the lessor or lessee
(lnocencion v. Hospicio de San Jose, GR. No.
201787, September 25, 2013).
BASIS: Relativity of contracts
RULES ON EXTENSION OF THE LEASE
PERIOD:
1. If a lease contract for a definite term allows
lessee to extend the term, there is no necessity
for lessee to notify lessor of his desire to extend
the term, unless the contrary is stipulated
(Cosmopolitan Bal/et and Dance School, et. al.
v. Teodoro, G.R. Nos. L-7838, November 10,
1942).
2. "May be extended" as stipulation
- Lessee can extend 3/ithout lessor's consent
but lessee must notify lessor (Koh v. Ongsiako,
G.R. No. 11106, January 27, 1917).
3. "May be extended for six (6) years agreed upon
by both parties" as stipulation
- This must be interpreted in favor of the lessee.
Hence, ordinarily the lessee at the end of the
original period may either:
a. Leave the premises; or
b. Remain in possession (Cruz v. Alberto, G.R.
No. 13791, August 7, 1919)c
4. In co-ownership, assent >of all fs-.needed,
otherwise it is void or ineffective against non-
consenting owners (Leonzon v. Limltngan, et al,
G.R. No. L-9552, September 30,: 1951).'
·... @r!pf;l
5. Where according to the terms of the contract, the
lease can be extended only by the written
consent of the parties, no right of extension can
arise without such written consent (reodoro v.
Mirasol, G.R. No. L-8934, May 18, 1956).
.6. If the option is given to the lessor, the lessee
cannot renew the lease against the former's
refusal. The lease is deemed terminated (DE
LEON, supra at 661).
7. Where a lessee is given the option to continue
or renew the contract of lease and is silent upon
the rentals,· the old terms are to be followed in
the renewed lease (Gustilo v. CA, G.R. No. L-
61083, February 28, 1983).
8. The lessor may impose additional conditions
after the expiration of the oiiginal period.
9. Article 1687 par. 2 of the Civil Code provides
that in the event that the lessee has occupied
the leased premises for over a year, courts may
fix a longer term of lease. The power of the
courts to establish a grace period is potestative
or discretionary, depending on the particular
circumstances of the case (Malayan Realty, Inc.
v. Uy Han Yong, G.R. No. 163763, November
10, 2006).
10. A verbal agreement to extend the lease is
admissible to qualify the terms of a written
contract (Florentino v. Superyalue Inc., G.R. No.
172384, September 12, 2007).
11. The extension granted shall be commensurate
with the period of occupation (Araneta v. De
Mesa, G.R. No. L-21972, September 30, 1970).
NOTE: The lessor has the right to increase rent for
each period subject to existing laws in the same way
that the lessee has all the right to refuse to
acquiesce. Upon such refusal, the contract of lease
between the parties is deemed terminated (Chua v.
Victorino, G.R. No. 155768, May 18, 2004).
RULE IF THE LESSOR OBJECTS TO THE
LESSEE'S CONTINUED POSSESSION
· Reguisites:.
··· 1\ "(¾~J!~~itia~ expired_; . .
2. Lessee coptmues enJoymg the thing; and
3. Lessor objected to this enjoyment (CIVIL CODE,
Art. 1671)'.
NOTE: IUhe ~hreci'.requisites are present, the lessee
shall be consi~ered ~ possessor in bad faith (CIVIL
COD£, ~iJi<:!~7jJ:_ ·.:
REMEDY OF THE LESSOR
9n action of unlawful detainer to recover
. < pdsse.ssion, of the premises and the rents or fair
rental value of the property (DE LEON, supra at
670).
NOTE: Profits, which the plaintiff might have
received were it not for the forcible entry or unlawful
detainer, are not covered for it does not represent
"fair value" (DE LEON, supra at 789).
IMPLIED NEW LEASE (TAC/TA
RECONDUCCION)
Arises if at the end of the contract, the lessee should
continue enjoying the thing leased for at least fifteen
(15) days with the acquiescence of the lessor, unless
a notice to the contrary had previously been given by
either party (5 PARAS, supra at 393).
Requisites:
1. The term of the original contract has expired;
2. The lessor or lessee has not previously given a
notice to vacate; and
3. The lessee continued enjoying the thing leased
for at least fifteen ( 15) days at the end of the

contract with the acquiescence of the lessor
(CIVIL CODE, Art. 1670).
NOTE: The notice required is the one given after the
expiration of the lease period for the purpose of
aborting an implied renewal of lease (Tagbilaran
Integrated Settlers Assoc v. CA, GR. No. 148562,
November 25. 2004),
A lessor who gives notice after the 15-day period has
no cause of action for unlawful detainer as there is
already an implied new lease (DE LEON, supra at
787).
Instances when there is NO Implied New Lease:
1. When before or after the expiration of the term,
there is a notice to vacate given by either party
{CIVIL CODE, Art. 1670);
2. When there is no definite or fixed period in the
original lease contract as in the case of .
successive renewals of the lease un.der Art.
1687 of the Civil Code; .. ..
3. There is a stipulation against re!)ev.<~r(:Agalo~os .
V. /AC, G.R. No. L-67220, May1; 198.l);
4. Invalidity of original lease (Estate o[ Sa'!tos v.
De Veyra, G.R. No. L-30027/ JulyJ1, 1969);
5. Acceptance of rentals beyond original .term (DE
LEON, supra at 669); , .'
6. Acceptance of rentals 'fess· than · amounts
stipulated (DE LEON, supra at 788); and
7. Non-payment of rentals (River~ v. Roman, G.R'.
No. 142402, September: 20, 2005). ·
Effects: . UN,OERARJ. 1673 OF THE CIVIL CODE:
1. The period of the new lea:'e is not that ~tated !n
the original contract but thf? time estabhsh,ed: m
Articles 1682 and 1687 of the Civil Co9e (CfVJL
CODE, Art. 1670); . ,
2. Accessory obligations contracte_d by :a .third
person are extinguished (CIVIL C,ODE, Art.
1672); and
NOTE: The renewal of the lease is, in effect, a
novation of the original contract of lease (CIVIL
CODE, Art. 1291).
- unlawful detainer to prosper, a demand to pay and
3. Other terms of the original contract are revived
(CIVIL CODE, Art. 1670).
NOTE: Terms that are revived are only those
which are germane to the enjoyment of
possession (e.g. amount of rent, date of
payment, care of the property, etc.), but not
those with respect to special agreements which
are by nature foreign to _the right of occupancy
or enjoyment inherent in a contract of lease -
such as an option to purchase the leased
premises (Dizon v. Magsaysay. G.R. No. L-
23399, May 31, 1974).
SALES AND LEASE
Civil Law
PURCHASE OF THE LEASED
PROPERTY (CIVIL CODE, Art. 1676)
GENERAL RULE: Purchaser of thing leased can
terminate lease (CIVIL CODE, Art. 1676, par. 1).
EXCEPTIONS:
1. Lease is recorded in Registry of Property;
REASON: An unrecorded lease is terminable at
the will of the new owner who is an innocent
purchaser for value.
2. There is a stipulation in the contract of sale that
purchaser shall respect the lease until
termination of its period;
3. Purchaser has actual knowledge of the
existen·ce of the lease;
REASON: Such is equivalent to registration
4. Sale is fictitious; there is a disputable
presumption that it is fictitious if the sale is not
. ' ., registered {CIVIL CODE, Art. 1676, par. 3);
. 5. Sale is made .with right of repurchase (CIVIL
. OODEi Art. 1677).
,. .,
NOTE: The buyer may make use of the power to
oust the; lessee if any of the grounds for ejectment
under Article 1673 is·present. (DE LEON, supra at
805)
GROUNDS FOR JUDICIAL EJECTMENT
(.ENVI). ,
1. . Expiration of the period agreed upon or the
perjpd under ,Arts. 1682 and 1687 of the Civil
. ,.GOi:Je; .
2.. N,on,pa,:ment of the rentals agreed upon; _
3. ·•·Violation of any of the conditions agreed upon in
-the'contract; and
4. !mproper use or enjoyment by the lessee of the
thing leased.
NOTE: In all cases except number 1, for the case of
vacate should be given to the lessee (Racaza v.
Gozum, G.R. No. 148759, June 8, 2006).
An alternative notlce to pay an increased rental or
vacate the premises is not the demand
contemplated by the Rules of Court in unlawful
detainer cases. Hence, if the lessee elects to stay,
he merely assumes the new rental and until he
defaults in said obligation, he cannot be ejected
(Vda. De Murga v. Chan, G.R. No. L-24680, October
7, 1968).
A notice or demand to vacate. does not have to
expressly use the word "vacate" as it stiffices that the
 -
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San Seda University College of Law .. RGCT Bar Operations Center
demand letter puts the lessee or occupant on notice
that if he does not pay the rentals or comply with the
tflrms of the lease contract, he should move out of
the leased promises (trao v. By ttm Flny, Inc., G.R.
No. 177120, July 14, 2008).
The ejectment of tenants of agricultural lands is
governed by special laws (CIVIL CODE, Art 1673).
For a tenancy relationship to exist between the
parties, the following elements mu~t concur: (a) the
parties are the landowner and the tenant; (b) the
subject matter is an agricultural land; (c) there is
consent between the parties; (d) the purpose is
agricultural production; (e) there is personal
cultivation by the tenant; and (f) there is sharing of
the harvests between the parties (Quintas v.
Department Of Agrarian Reform Adjudication Board
and Kanlurang Mindoro Farmer's Cooperative, Inc.,
G.R. No. 185838, February 10, 2014).
PRELIMINARY MANDATORY
INJUNCTION TO RESTORE
POSSESSION
In ejectment cases where an appeal is taken, the
lessor is entitled to a writ of preliminary injunction to
restore him in his possession in case the higher
court is satisfied that the lessee's appealfs frivolous
or dilatory (i.e. without merit) or the lessor's;::ippeal
is prima facie meritorious. The period· of ten (10)
days shall be counted from the. time the appeal is
perfected (CIVIL CODE, Art. 1674},
REASON: To put an end to the then state of.the law
which unjustly allowed the lessee to continue in
possession during an appeal to the higher ·court
(Report of the Code Commission, supra ~t 143).
GROUNDS FOR THE TERMINA'TJON OF
THE LEASE:
1. By the expiration of the period (CIVIL CODE, Art.
1673, par. 1);
2. When the lessor has no right to enter into a lease
contract (e.g. when the lessor is not the owner
or has no authority or right to lease the property)
(Ballesteros v. Abton, G.R. No. 143361,
February 9, 2006);
3. By the will of the purchaser or transferee of the
thing (CIVIL CODE, Art. 1676, par. 1);
4. By total loss of the thing (CIVIL CODE, Art.
1tib5);
5. By rescission due to non-performance of the
obligation of one of the parties set forth in Arts.
16G4 and 1657 of the Civil Code (CiViL CODE,
Art. 1659); or
6. In case the dwelling place or any other building
is unfit for human habitation and is dangerous to
life or health (CIVIL CODE, Art. 1660).
Questiori: Upon the termination of the lease, the
lessee claims reimbursement for the improvements
introduced on the property alleging that they were
made in good faith. Will the claim prosper?
Suggested Answer: No. To be entitled to
reimbursement for improvements introduced on the
property of another, he must be a builder in good
faith. A builder in good faith is one who is unaware
of any flaw on his title. A lessee cannot claim to be
a builder in good faith because he knows that his
occupation would continue only for the life of the
lease (Josefa v. Buenaventura, G.R. No. 163429,
March 3, 2006).
SUBDIVISION AND
CONDOMINIUM BUYERS
PROTECTIVE DECREE
(P.D. NO. 957)
PURPOSE;\
To afford its irihahitants the requirements of a decent
human settler;nent, and to provide them with ample
opportunities for ir'J}proving their quality of life (DE
LEON,;".~~~~t§l~~tJ,•
NATIONAL HOUSING AUTHORITY
!t.~hall have exclusive jurisdiction to regulate real
..:estc.lfe::t!ci,d~ and business in accordance with the
. provisions' of this decree (hereinafter referred to as
"the authority") (P.O. 957, Sec. 3).
NOTE: Under E.O. 648 of 1981. the implementation
of P.O. 957 was transferred from the National
Hcusing Authority (NHA) to the Housing and Land
Use Regulatory Board (HLURB).
REGISTRATION OF PROJECTS
The registered owner of a parcel of land who wishes
to convert the same into a subdivision project shall
submit his subdivision plan to the Housing and
Land Use Regulatory Board, which shall act upon
and approve the same, upon a finding that the plan
complies with the Subdivision Standards and
Regulations enforceable at the time the plan is
submitted. The same procedure shall be followed in
the case of a plan for a condominium µ1 oject except
that, in addition, said Authority shall act upon and
approve the plan with respect to the building or
buildings included in the condominium project in

accordance with the National Building Code (P.O.
957, Sec. 4).
The subdivision plan, as so approved, shall then be
submitted to the Director of Lands for approval in
accordance with the procedure prescribed in Section
44 of the Land Registration Act (Act 496, as
amended by R.A. 440): Provided, that in case of
complex subdivision plans, court approval shall no
longer be required. The condominium plan as
approved shall · be submitted to the Register of
Deeds of the province or city in which the property
lies and shall be acted upon subJect to the conditions
and in accordance with the procedure prescribed in
Section 4 of the Condominium Act (R.A. 4726).
LICENSE TO SELL
Such owner or dealer to whom a registration
certificate has been issued shall not be authorized to
sell any subdivision lot or condominium unit in the
registered project unless he has obtained aHcense
to sell the project within two weeks from the
registration of such project (PD. 951; Sec. 5)c
PERFORMANCE BOND
No license to sell subdivision" lots or condominium
units shall be issued by the NHA unless the owner
or dealer shall have filed an adequate performance
bond approved by said Authority to guarantee the
construction and maintenance ofihe roads, gutters.
drainage, sewerage, water system, lighting systems,
and full development of the subdivisJon project or the
condominium project, and the compliance by the
owner or dealer with the applicable laws and.rules
and regulations (P.O. No. 951; Sec. 6).
EXEMPT TRANSACTIONS .
A license to sell and performance bond sha.lLnot be
required in any of the following transactions:·
1. Sale of a subdivision lot resulting from the
partition of land among co-owners and co-heirs.
2. Sale or transfer of a subdivision lot by the
original purchaser thereof and any subsequent
sale of the sa!'Tle lot.
3. Sale of a subdivision lot or a condominium unit
by or for the account of a mortgagee in the
ordinary course of business when necessary to
liquidate a bona fide debt (P.O. 957, Sec. 7).
SUSPENSION OF LICENSE TO SELL
Upon verified complaint by a buyer of a subdivision
lot or a condominium unit in any interested party, the
Authority may, in its discretion, immediately suspend
the owner's or dealer's license to sell pending
investigation and hearing of the case.
The Authority may metu proprio suspend the license
to sell if, in its opinion, any information in the
registration statement filed by the owner or dealer is
SALES AND LEASE
Civil Law
or has become misleading, incorrect, inadequate or
incomplete or the sale or offering for a sale of tile
subdivision or condominium project may work or
tend to work a fraud upon prospective buyers.
The suspension order may be lifted if, after notice
and hearing, the Authority is convinced that the
registration statement is accurate or that any
deficiency therein has been corrected or
supplemented or that the sale to the public of the
subdivision or condominium project will neither be
fraudulent not result in fraud. It shall also be lifted
upon dismissal of the complaint for lack of legal
basis (P.D. 957, Sec. 8).
GROUNDS FOR THE REVOCATION OF
REGISTRATION OF THE CERTIFICATE
AND LICENSE TO SELL OF OWNERS OR
DEALERS: (Not-Mi-VIBE)
1. Does Not conduct his business in accordance
. with }aw, or sound business principles; or
2.' Has ,· rr1ad(;l any Misrepresentation in any
prospectus, brochure, circular or other literature
about the subc;livision project or condominium
pr6jechhat has been distributed to prospective
buyers; or .
3. HasYiolated an'y_dfthe provisions of this Decree
or· any applicable, rule or regulation of the
· Authority, or any undertaking of his/its
performance bond; pr
4. If !risolvent; or
5. · ls "of !;!ad business repute; or
6. Has been or is gng'aged or is about to engage in
ftaudulerJ(transac;:tions (P.O. 957, Sec. 9).
REGISTERS OF SUBDIVISION LOTS
AND CONDOMINIUM UNITS
· A rec6rd of subdivision lots and condominium units
shall'be kept in the authority, wherein all orders of
.the authority shall be entered. The registers shall be
open for public inspection within reasonable hours
as promulgated by the authority (P.D. 957, Sec. 10).
REGISTRATION OF DEALERS,
BROKERS,ANDSALESMEN
No real estate dealer, broker. or salesman shall
engage in the business of selling subdivision lots or
condominium units unless he has registered himself
with the Authority in accordance with the provisions
of th is section (P.D. 957, Sec. 11).
GROUNDS FOR THE REVOCATION OF
REGISTRATION AS DEALERS,
BROKERS OR SALESMEN: (V-Ma-FUCh)
1. Has Yiolated any provision of this Decree or any
rule or regulation made hereunder; or
 'MEM:Q~Y AID
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2. Has Made a material false statement in his
application for registration; or
3. Has been guilty of a Eraudulent act in connection
with any sale of a subdivision lot or condominium
unit; or
4. Has demonstrated his Unworthiness to transact
the business of dealer,-broker, or salesman, as
the case may be.
5. In case of Charges against a salesman, notice
thereof shall also be given the broker ·or dealer
employing such salesman (P.O. 957, Sec. 12).
Pending hearing of the case, the Authority shall have
the power to order the suspension of the dealer's,
broker's, of salesman's registration; provided, that
such order shall state the cause for the suspension
(P.O. 957, Sec. 12).
THE CONDOMINIUM
ACT
(R.A. NO. 4726)
Date Approved: June 18, 1966
(See discussion under Property).
NOTE: Any transfer or conveyance of a unit or an
apartment, office or store or other space therein,
shall include the transfer or conveyance of the
undivided interests in the common areas or, in a
proper case, the membership or shareholdings in the
condominium corporation: Provided, however, That
where the common areas in the condominium
project are owned by the owners of separate
units as co-owners thereof, no condominium
unit therein shall be conveyed or transferred to
persons other than· Filipino citizens, or
corporations at least sixty percent of the capital
stock of which belong to Filipino citizens, except
in cases of hereditary succession. Where the
common areas in a condominium project are held by
a corporation, no transfer or conveyance of a unit
shall be valid if the concomitant transfer of the
appurtenant membership or stockholding in the
corporation will cause the alien interest in such
corporation to exceed the limits imposed by existing
laws (R.A. 4726, Sec. 5).
RENT CONTROL ACT •
(R.A. NO. 9653)
Date approved: July 14, 2009
PURPOSE: To encourage the development of
affordable housing for the lower income brackets
and other beneficiaries and to protect them from
unreasonable rent increases (R.A. 9653, Sec. 2).
Coverage:
1. Alf residential units in the National Capital
Region and other highly urbanized cities, the
total monthly rent for each of which ranges from
one peso (P1 .00) to ten thousand pesos
(P10,000.00).
2. All residential units in all other areas the total
monthly rent for each of which ranges from one
peso (P1 .00) to five thousand pesos (5,000.00).
EXCEPT: Already existing contracts (R.A. 9653,
Sec. 5)
EXCEPJIQN:Hent-to-Own Scheme -at the option
of the lessor, h_e or she may engage the lessee in a
written renHo.-own agreement that will result in the
transfer of ownership of the particular dwelling in
favor of the latter (R.A. 9653, Sec. 11 ).
LIMIJ,ON INCREASE IN RENT
For a period '.9fohe (1) year from effectivity, no
increase shall be imposed on the rent of any
residential unit covered by this Act.
'·· After such.period until December 31, 2013, the rent
shall not be increased by more than seven percent
(7%) annually as long as the unit is occupied by the
same lessee.
When the residential unit becomes vacant, the
lessor may set the initial rent for the next lessee.
In case of boarding houses, dormitories, rooms, and
bed spaces offered to students, no increase in rental
more than once per year shall be allowed (R.A.
9653, Sec. 4). ·
Notwithstanding the lapse of the period, the Housing
and Urban Development Coordinating Council
(HUDCC) is granted the authority to continue the
regulation of rental of certain residential units, to
determine the period of regulation and its
subsequent extensions if warranted (R.A. 9653, Sec
6).
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Civil Law
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DEFINITION OF TERMS (R.A. 9653, Sec. 3) In the event that the lessee fails to:
1. Settle rent, electric, telephone, or other utility
Rent
bills; or
Is the amount paid for the use or occupancy of a
2. Destroys any house components or
residential unit whether payment is made on a
accessories.
monthly or other basis.
The deposits and interests shall be forfeited in favor
Residential Unit
Shall refer to an apartment, house and/or land on of the latter in the amount commensurate to the
which another's dwelling is located and used for pecuniary damage done by the former (R.A. 9653,
residential purposes and shall include not only Sec. 7).
buildings, part or units thereof used solely as
dwelling places. boarding houses, dormitories, ASSIGNMENT OF LEASE OR
rooms and bed spaces offered for rent by their SUBLEASING
owners, except motels, motel rooms, hotels, hotel Assignment of lease or subleasing of the whoJe or
rooms but also those used for home industries, retail any portion of the residential unit, including the
stores or other business purposes if the owner acceptance of boarders or bed spacers, without the
thereof and his or her family actually live therein and written consent of the owner or lessor is prohibited
use it principally for dwelling purposes. (R.A. 9653, Sec. 8).

Immediate members of family of the lessee or .· 'GROUNDS FOR JUDICIAL EJECTMENT:

lessor ·· ·
For purposes of repossessing the lea.sed· premises,
(Ex-AU~)
are limited to his or her spouse, direct descendants 1. Expiration, of the period of the lease contract;
or ascendants, by consanguinity or.affinity. ·· · (R.A. 965.J;Sec. 9)
'2. Assignrr:ient oflf)ase or subleasing of residential
Lessee • ..•· unhs in whole. or in part, including the
Is the person renting a resid9:ntial un,i,t. acceptance of bo~rders or bed spacers, without
the written consent of the owner/lessor;
Owner/Lessor 3. Legitimate ne.eq of the owner / lessor to
Includes the owner or admlnistratqr or agent of the repossess his share or her property for his or her
owner of the residential unit · own Use or for, the use of any immediate
m<;1h)berof !}is famity as a residential unit
Sublessor .· .· ;\ . . ,
Is the person who leases onents dut a resid~otial Ccm.ditions:
unit leased to him by an owrnk · a. The lease for a definite period has expired;
b, The· lessor has given the lessee formal
Sublessee notice threti (3) months in advance of the
Is the person who leases or rents .out a residential lessqr'sjntention to repossess the property;
unit from a sublessor (R.A. 9653, Seb; 3j. .. c.: ··The owner/lessor is prohibited from leasing
th~ residential unit or allowing its use by a
RENT AND REQUIREMENT OF A.BANK · third party for a period of at least one (1)
year from the time of repossession
DEPOSIT
Rent shall be paid in advance within the first five (5) 4. Need of the lessor to make necessary f!epairs
days of every current month or the beginning of the of the leased premises which is the subject of an
lease agreement unless the contract provides for a existing order of condemnation by appropriate
later .date of payment (R.A. 9653, Sec. 7). authorities concerned in order to make the said
premises safe and habitable
LESSOR IS PROHIBITED:
1. To demand more than one (1) month advance Conditions:
rent; and a. After said repair, the lessee ejected shall
2. To demand more than two (2) months deposit, have the first preference to lease the same
which shall be kept in a bank under the lessor's premises;
account name during the entire duration of the b. The new rent shall be reasonably
lease agreement. · commensurate with the expenses incurred
for the repair of the said residential unit;
Any and all interest that shall· accrue shall be c. That if the residential unit is condemned or
returned to the lessee at the expiration of the lease completely demolished,,the lease of the new
contract. building will no longer be subject to the
aforementioned first preference rule.
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MEM✓v~Y AID
<

• 1 •; ·_ • ·: . a2t:"·
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San Seda Vniversity CollelJ" of u,w - RGCT Bar Operations Center ,,>~ ;· "~;-' itz,~ ,\',~,qi'~~}::

5. ~rrears in payment of rent for a total of three (3)

months. In case of refusal by the lessor to accept
payment of the rent agreed upon, the lessee
may either deposit, by way of consignation, the
amount in court or with the city or municipal
treasurer, as the case may be, or barangay
ch;ciirm;m, or in a bank in the name of and with
notice to the les~or, within one (1) month after
the refusal of the lessor to accept payment.

Lessee shall thereafter deposit the rent within

ten (10) days of every current month. Failure to
deposit the rent for three months shall constitute
a ground for ejectment

The lessor, upon authority of the court in case of "

consignation or upon joint affidavit by him and
the lessee to be submitted to the city or
municipal treasurer or barangay chairman and
to the bank where deposit was made, shall be
allowed to withdraw the deposits;

PROHIBITION AGAINST EJECTMEN'I'

BY REASON OF SALE OR MORTGAGE .. ,
No lessor or his successor in inte~est shall be
entitled to eject the lessee upon the groundthat the
leased premises have been sold or mortgaged to a
third person regardless of whether the. lease or
mortgage is registered or not (R.A 9653, S~c:. 10).

APPLICATION OF THE Cl\llL CODE AND

RULES OF COURT
Except when the lease is for a definite.period, the
provision of paragraph (1) of Article 1673 of the Civil
Code, insofar as they refer to resid!3ntial' units
covered by this Act. shall be suspended during the
effectivity of this' Act, but other provisions of the Civil
Code and the Rules of Court on lease contn1:icts,
insofar as they are not in conflict with the provisions
of this Act shall apply (R.A. 9653, Sec. 12).

PENALTIES:
1. A fine not less than P25,000,00 nor more than
P50,000.00;
2. Imprisonment of not less than one m;mth and
one day to not more than six months; or
3. Both (R.A. 9653, Sec. 13).
 ( ~ : C-_ /- : f>-.C ~ \ S ~~

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AGENCY
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Civil L8W
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I AGENCY ] DISTINCT CHARACTERISTIC

CONTRACT OF AGENCY:
1. Representative Character
OF A

- In <! contract of agency, the agent acts as a

representative of the principal, and not for
A contract of agency is one whereby a person
himself;
(agent) binds himself to render some service or to do
something in representation or on behalf of another
2. Derivative authority (Id. at 334); and
(principal), with the consent or authority of the latter
(NEW C!ViL CODE, Art. 1868) . .
3. The agent's power to bring about business
relations between his principal and third persons
CHARACTERISTICS OF AN AGENCY is the most distinctive mark of the agent, as
CONTRACT: (PF-BORN-CP) contrasted With others who act in representative
1. e_reparatory; capacity but are not agents {Id. at 353).
2. f.iduciary;
3. !!ilateral. (but may be unilateral); PARTIES TO THE CONTRACT OF
4. Qnerous (generally); AGENCY:
5. Representative Relation;
6. Nominate; 1. Principal
7. ~onsensual; and . -~ One whom the agent represents and from
8. E_rincipal (5 PARAS, supra at 770-771). whom he derives authority (OE LEON, supra at
335);·

' · a.1 He must be capacitated to enter into a

~ CQn frc}Ct'i
NATURE, FORM,i;\ND b.
·

·H_erfiay be a natural or juridical person

KINDS OF AGENCY o: Theiagent. is not liable where he was
ignorant of the principal's incapacity (DE
ARTS. 186~'."1..883 LEON, supra at 338-339).

NATURE OF AN AGENCY
It is both a contract and a representative relation (DE
LEON, Comments and Cases on Partnership,
Agency, and Trusts (2019), p.332) [hereinafter DE
LEON, Partnership, Agency, & Trusts]).
Exception to Contractual Nature
Agency may be created by operation of law (DE
LEON, supra, at 333).
2. Ag~nt .
..,.. Qnewho af;ts for 9'nd represents another (Id. at
335f .
a. lr;isofar as third person is concerned -
Capacity of the principal is enough (DE
· LEON, -supra at 340)
· b. lnsqfar as the obligations of an agent to
.. his" principal is concerned - the agent
must be able to bind himself
c. Some mental capacity is necessary as
an agent. Therefore, those who are
absolutely incapacitated such as ins~ne

DOHN ALFRED E. AQUlLIZAN, Over-Al/ Chai1person I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad IIoc Director for Bar Matters I MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance I JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, \lice Chairperson for Audit I CORINA R. TAJl.1PUS, Vice
Chairperson for Secreturiat I ARVY KEITH N. CHUNG, Vice Chairperson for Logistics I ANTONIO JUN-JUN C. MANALIGOD JV, Vice
Chairperson for Membership IJORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair I KING LAURENZ S. MASILUNGAN, Assistant Subject Chair I ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing I SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts I QUENNJE JRIS V.
BULATAO, Conflicts of Law i JESSU R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRJSTJENNE NATHALIE A. BERONA, Persons and Family Relations I KRISTOFFER MONICO S. NG, Property I JULEEN EVETTE
D. MALLARI, Land Titles and Deeds I MARISOi. 0. SISON, Sales I GEM EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINJDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMJNIQUE L BALIS ONG, ROSELLE JUNE G. CERENO, MARIAN.NE HELENE P. REYF.G,
VERONICA V. VELASQUEZ, ALY.SSA AIMEE S. BATIE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SAN'fOS, YUMJKO ANGELIUS M. YOSHI!Y, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA R O_CHELLE D. PA YO NGA YONG, MA. NICOLAI M. TORRES ·and MIKHAILA KLAUDINE A. ROSALES

Atty. THERESA GENEVIEVE NUEVE-CO and Atty. LUIS J\.1Al'l.'UEL BUGAYONG

 MEM:Q,RY Al D
San Beda University College of Law - RGCT Bar Operations Center
or demented persons cannot hP.c.ome an
agent (OE LEON. supra at 341).
PURPOSE OF AN AGENCY
To extend the personality of the principal through the
facility of the agent. It enables the activity of man
which is naturally limited in its exercise by the
impositions of his physiological conditions to be
legally extended by permitting him to be
constructively present in many dffferent places and to
perform diverse juridical acts and carry on many
different activities through anothe,r when physical
presence. is impossible or inadvisable at the same
time (DE LEON, supra at 334-335).
ELEMENTS OF AN AGENCY: (COC-RW)
1. fonsent, express or implied
a. Express
A person may express his consent through a
contract either orally or in writing (NEW CIVIL
CODE, Art. 1868).
b. Implied
A person may impliedly express his consent
through his conducts (NEW CIVIL CODE,
Art. 1869); or through ratification (NEW CIVIL
CODE, Art. 1910).
NOTE: Consent may also
presumption or operation of law.
c. For a contract of agency to exist, it is
essential that the principal consents that the
other party, the agent, shall act its behalf,on
and the agent consents so as to act (Apex
Mining Co., Inc v. Southeast Mindanao Gold
Mining Corp., G.R. No. 152613, June 23,
2006).
d. A principal must be capacitated have a
legal capacity to enter into a contract. The
agent's capacity is usually immaterial; he
does not have to possess full capacity to act
for himself insofar as third persons are
concerned (DE LEON, supra at 338-340).
Thus, even one under legal disability (e.g.,
minor), whose contracts are not binding upon
him, may act as an agent and bind his
principal. But in some instances, additional
qualifications may exist, the lack of which
may void a relationship (e.g., lawyer .to
represent in legal matters) (Id. at 341).
e. Any person or entity having juridical capacity
and capacity to act and not otherwise
disqualified, may enter into an agency.
f. Insofar as his obligations to his principal are
concerned, the agent must be competent to
bind himself. The extent to which an agent is
a fiduciary and is subjected to duties and
liabilities to his principal depends upon his
capacity (Id.).
g. In an aQent-principal relationship, the
personality of the principal is extended
through the facility of the agent: In so doing,
the agent, by legal fiction, becomes the
principal, authorized to perform all acts which
the latter would have him do. Such a
relationship can only be effected with the
consent of the principal, which must not, in
any way, be compelled by law or by any court
(Orient Air Services and Hotel
Representatives v. Court of Appeals, G.R.
Nos. 76931 & 76933, May 29, 1991).
2. Object
- Execution of a juridical act in relation to a third
person;
·... 3. fause
· ,.,.·May pe,9nerous or gratuitous but presumed for
cbmpeilsation (NEW CIVIL CODE, Art. 1875);
It is not n~cessary that there is a consideration
arise by for the relationship to be created.
. 4. The. agent acts as Representative of the
pr'inc:ip;:1J£111<i_: norfor himself;
The acts'.of'the agent on behalf of the principal,
within the scope of his authority (NEW CIVIL
.J;:ooE, Art. 1881), produce the same legal and
•../if 2 ~9!t;lgip,Q~ffects as if they were personally done by
·•tM(irincipal.
or 5. The agent acts Within the scope of his
, authority (DE LEON, supra at 336).
The agent must act as a representative and not
for himself, and must act within the scope of his
authbrity (NEW CIVIL CODE, Art. 1881).
ACTS THAT MAY BE DELEGATED TO AN
AGENT
GENERAL RULE: What a man may do in person, he
may do through another (DE LEON, supra at 342).
EXCEPTIONS:
1. Pers?nal Acts (e.g., right to vote, making of a will)
2. Criminal Acts or acts not allowed by law if done
by the principal (e.g., ownership of private
agricultural lands by aliens through an agent,
persons prohibited to acquire a property by
reason of position or relation to the person cannot
do the same through the mediation of another,
 AGENCY
Civil Law

participation in the commission of a crime) (Id. at (Id. at 367-368).

343).
AGENCY AND LEASE OF SERVICES,
KNOWLEDGE OF AGENT IS IMPUTED TO DISTINGUISHED
PRINCIPAL
GENERAL RULE: The knowledge of the agent is
imputed to the principal even though the ager,t never
communicated such knowledge to the principal (DE
LEON, supra at 351).

NOTE: Knowledge of the principal cannot be imputed

~rinciple
representation
applied.
f: Principle of
employment is applied.
to his agent ( Sunace International Management
Se,vices, Inc. v. NLRC, G.R. No. 161757, January
25, 2006).

EXCEPTIONS: (ABC) Extinguished at will of Concurrence of parties

1. Where the agent's interest is ~dverse to those of the principal or the
agent. is necessary.
the principal;
2. Where the person claiming the §.enefit of the rule
colludes with the agent to defraud the principal;
and ~
Agent exercises Employee exercises
3. Where the agent's duty is not to disclose. the
ministerial functions
information, as where he is informed by way of discrf3tionary power. only .
.Qonfidential information (DE U~ON, .. supra at
352). .

SALE
By a contract of sale, one of thE::contracting parties (Id. af 355-356; PARAS; supra at 777).
obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay
therefore a price certain in, money or. its ~quivalerit AGl;l'=JCY AND TRUST,
(NEW CIVIL CODE, Art. 1458). . . OISJJNGUISHED

AGENCY TO SELL AND SALE,

DISTINGUISHED

Agent receives the The buyer receives the. May' be revoked Is terminated upon the
goods as the goods of goods as owner. anytime. accomplishment of its
the principal. purpose.

Agent does not hold title Trustee holds title over

over the property the property subject of a
subject of agency. trust agreement.

Agent can return the The buyer, as a rule,

object in case he is cannot return the object Agent acts in the name The trustee may act on
unable to sell it. sold. of his principal. his own name.

Agent has authority to The trustee does not

represent the principal. have authority to bind
Bound to act according The buyer can deal with the trustor.
to the instructions of his the thing as he pleases
principal. being the owner.
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b. Compensated or onerous (NEW CIVIL

CODE, Art 1875).

3. As to extent of ~cope of business

May or may not involve covered
a property. a. General - comprises all the business of the
(5 PARAS, supra at 780). principal;
b. Special - comprises one or more specific
transactions (NEW CIVIL CODE, Art. 1876).
AGENCY AND GUARDIANSHIP,
DISTINGUISHED 4. As to Authority conferred
a. Couched in general terms - one which is
created in general terms and is deemed to
comprise only acts of administration (NEW
CIVIL CODE, Art. 1877);
Founded upon consent Created irrespective of b. Couched in specific terms.
of the parties thereto. the consent or capacity
of the ward. 5. As to its Nature and effects
a. Ostensible/ representative - agent acts in the
name and in representation of the principal;
Agent represents a A guardian represents b. Simple / commission - agent acts in his own
person who has the an incapacitatec:l name but for the account of the principal (DE
capacity to contract· for person. LEON, supra at 380).
himself.
),'FORMS Of.AGENCY
. ' Gi,ii,~RA,.t.-ntiLE: There are no formal requirements
governing the.jppointment of an agent. It may be oral
Agent derives his Guardian ooes not or written an!:1 pi~Y also be in public or private writing
authority from his derive his' authority (NEW CIV/1/QO'f!)E, Art. 1869). ·
principal. from the v.iard ... i l

Appointment of an agent Guardian i!l,i!Ppointed,
is derived from contract. by ttfe,c:,(;9Urf and•
stands irY!oco pa(Emtis.
Agent's power may at
any time be abrogated or Legal guardi~n rnay be
modified by the principal. substituted by law, '; ·
1. Exprets;
2. lrrmli~d;.. .•., , .
a.. 'Fl'~fll/AAii.~~ of the principal;
b. Frohi t'lis silence or lack of action;. to
repudiate the agency knowing that another
'2''(/,.. _person is acting on his behalf without
\,}'.' t/(;i;1~tttt}ority (NEW CIVIL CODE, Art. 1869}; and
c. If the principal delivers his power of attorney
to the agent and the latter receives it without
any objection (NEW CIVIL CODE, Art. 1871).

Agents are subject to the Not subject to the

control of their principals. direction of their EXCEPTION:
wards. 1. When the law requires a specific form (e.g., sale
of a piece of land or any interest therein thru an
(DE LEON, supra. at 377).
agent), authority of the agent shall be in writing,
otherwise, the sale is void (NEW CIVIL CODE,
KINDS OF AGENCY: (C 2 SAN) Art. 1874).
1. As to Manner of Creation
a. Express: - Is the rule provided in Article 1874 in conflict
i. Oral or Verhr1I with the rule under Article 1403 no. 2, par. E?
ii. Written - when the law requires a Under Article 1874, the authority of the agent in
specific form (NEW CIVIL CODE, Art. selling a piece of land or any interest therein shall
1869, par. 2). be in writing, otherwise, the sale shall be void.
b. Implied. While Article 1403 provides that the sale of real
property or any interest therein shall be in writing,
2. As to its f haracter otherwise the sale shall be unenforceable.
a. Gratuitous;
 ; ~ I ' ) -"

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Thus, Article 1874 provides that the authority of
the agent in selling a piece of land or any interest
therein shall be in writing. While Article 1403, on
the other hand, speaks of the transaction itself or
the contract instituted by the agent with the third
person on behalf of the principal that should be in
writing.
DISTINCTIONS BETWEEN ART. 1872 ,
2. When it is required to make the contract effective
against third persons (DE LEON, supra at 381).
b. When the principal entrusts to him by letter
or telegram a power of attorney with respect
to the business in which he is habitually
engaged as an agent, and he did not reply
to the letter or telegram (NEW CIVIL CODE,
Art. 1872).
EXCEPTION A AND B

3. When it is required for the purpose of proving the

existence of the contract (Id.}.

In an implied agency, the principal is still bound by

the acts of the agent just as in case of express
agency.

NOTE: It is not essential that the agent should be Replies or No reply at all.
appointed directly by the principal, but the a9knowledges receipt
appointment may be made through another, as by without any objection.
referring an applicant to another and,_representing
that he has authority to act, or the relation may arise
out of an agreement to employ the agent of another, DISTINCTIONS BETWEEN ARTICLE
such person then becoming an agent of the firs,t party 1871 AND ARTICLE 1872
(DE LEON, supra at 378). . ..

FORMS OF ACCEPTANCE BY AGENT:

Acceptance by the agent may also be express or
implied from his acts which carry out the agency, or .h When created, both the ·
When created, .bot
from his silence or inaction according to ihe principal. and agent are principal and the agent
circumstances (NEW CIVIL CODE, Art. 1870). are absent.
present ·

1. Express; and
2. Implied:
a. From his acts which carry out the agency; or
The power of attorney is The power of attorney
b. From his silence or inaction accordi,ng to the
personally delivered by is not personally
circumstances (NEW CIVIL CODE, Art.
the principal to the agent delivered. There is
1870). transmission by
messenger, or by letter
KINDS OF IMPLIED ACCEPTANCE: or telephone.
1. Between persons who are present (NEW (PINEDA, supra at 263).
CIVIL CODE, Art. 1871);
a. Principal delivers his power of attorney to the
agent; and PRESUMPTION OF AGENCY
b. Agent receives it without any objection. GENERAL RULE: Agency is not presumed

"Present" - meaning "face to face" or conversing with EXCEPTIONS:

each other through mobile cellphone (5 PARAS
supra at 787).
2. Between persons who are absent (NEW
CIVIL CODE, Art. 1872), the acceptance of the
agency cannot be implied from the silence of the
agent, except:
a. When the principal transmits his power of
attorney to the agent, who receives it
without any objection;
1. By operation of law
2. To prevent unjust enrichment (DE LEON, supra
at 384).
POWER OF ATTORNEY
It is an instrument in writing by which one person, as
principal, appoints another as his agent, and confers
upon him the authority to perform certain specified
acts or kinds of acts in behalf of the principal (DE
LEON, supra at 388).
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PURPOSE: Not to define the authority of the agent
but to evidence the authority of the agent to third
parties with whom the agent deals (Id.).
Except as may be required by statute, a power of
attorney is valid even though no notary public
intervened in its execution (Angeles v. Phil. National
Railways, G.R. No. 150128, August 31, 2006).
EFFECTS OF SPECIAL INFORMATION
OR PUBLIC ADVERTISEMENT
If a person specially informs another or states by
public advertisement that he has given a power of
attorney to a third person, the latter thereby becomes
a duly authorized agent, in the former case with
respect to the person who received the special
information, and in the latter case with regard to any
person,
The power shall contribute to .be in full force until the
notice is rescinded in the same manner in which it
was given (NEW CIVIL CODE, Art. 1873).
MANNER OF TERMINATION OR
RESCISSION OF AGENCY CREATED
UNDER ARTICLE 1873
The power of attorney created under Art. 1873 shall
continue to exist and be effective until the notice
(information or advertisement) had been rescinded in
the same manner in which it was given (PINEDA,
supra at 267).
If the agency has been entrusted for the purpose of
contracting with specified persons, its revocation
shall not prejudice the latter if they were not given
notice thereof (NEW CIVIL CODE, Art. 1921).
If the agent had general powers, revocation of the
agency does not prejudice third persons who acted in
good faith and without knowledge of the revocation.
Notice of the revocation in a newspaper of general
circulation is a sufficient warning to third persons
(NEW CIVIL CODE, Art. 1922).
Revocation made in any manner is effective where
the person dealing with the agent has actual
knowledge thereof; otherwise, bad faith and fraud
would be committed (DE LEON, supra at 393).
To forestall fraud, a revocation made in any manner
shall be effective against all persons having actual
knowledge thereof (5 PARAS, supra at 789).
is what he appears to be (Cuison v. Court of Appeals,
G.R. No. 88539, October 26, 1993).
REQUISITES FOR . AGENCY BY
ESTOPPEL: (MARC)
1. The principal Manifested a representation of the
agent's authority or knowingly allowed the agent
to assume such authority;
2. The third person, in good faith, Belied upon such
representation; and
3. Relying upon such representation, such third
person has f.hanged his position to his detriment.
(Litonjua v. Eternit Corporation, G.R. NO.
144805, June 08, 2006).
ESTOPPEL TO DENY AGENC_Y:
1. Estoppel of agent
- One professing to act as agent may be
estopped to deny agency both against the
asserted principal and third persons.
2. Estoppel of principal
a. As to agent - if he knows that another is
acting as his agent and fails to repudiate his
acts.or accepts the benefits of them.
b. </lis to sub-agent - he must have known or be
charged with the knowledge of the fact of
transaction and terms of agreement between
the agent and sub-agent.
3. Estqppel of third persons
- A, ttrird:~rsdn,. having dealt with one as an
agent may be' estopped to deny the agency as
against the principal, agent, or third persons in
interest. He will not, however, be estopped where
i he has withdrawn from the contract made with
· the unauthorized agent before receiving any
benefits thereunder.
4. Estoppel of the government
- The government is neither estopped by the
mistake or error on th2 part of its agents. But it
may be estopped through affirmative acts of its
officers acting within the scope of their authority
(DE LEON, supra at 395).
AGENCY BY ESTOPPEL AND IMPLIED
AGENCY, DISTINGUISHED

RULE ON AGENCY BY ESTOPPEL

One who clothes another with apparent authority as Should be restricted to T O be proved from
deductions or
his agent, and holds him out to the public as such, cases where authority is inferences from other
cannot be permitted to deny the authority of such not real but apparent. facts.
person in good faith, and in the honest belief that he
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v. Eternit Corporation, G.R. No. 144805, June 8,

2006).
Reliance by third Reliance is · not
persons in good faith is necessary. RULE ON BROKER'S COMMISSION
necessary. GENERAL RULE: A broker is never entitled to
commission for unsuccessful efforts. Even if the
broker is responsible for making the owner and the
possible buyer to meet and discuss the terms if no
There is no agency at There is actuar agency. sale was consummated. he is not entitled' to a
all, but the one The Principal alone is commission (DE LEON, supra at 404).
assuming to act as liable.
agent has apparent or
EXCEPTION: The broker should be paid his
ostensible, although not
commission where he is the efficient procuring cause
real, authority to
in bringing the sale (Manotok Brothers v Court of
represent another.
Appeals, G.R. No. 94753, April 7, 1993).

When . there is a close, proximate and causal

An apparent agent has Agent has actual connection between the agent's efforts and the sale
none of the rights of an authority to act on of the property, the agents are entitled to their
agent, except where the behalf of the principal: ·· · comr.nission (Ticong v. Ma/im, G.R. No. 220785.
principal's conduct or March' 1,2017).
representations are
such that the agent LIABIUTY . OF PRINCIPAL TO PAY
reasonably believed ···· .. COMPENSATION:
that the principal
intended him to act as 1_. AmQunt -·
agent in the matter.
- the prinbipal . must pay the agent the
compensatipn $greed upon, or the reasonable
(DE LEON, supra. at 396-397) . ..• Value, of the ageDf,s 'pervices, if no compensation
was $pecifieq (DE _LEON, supra at 403).
AGENCY FOR COMP~NSA~ION
GENERAL RULE: Agenc1 is ptesumed>tb be for 2. Co~plianc~ by 1gent with his obligations
compensation (NEW CIVIL (lOQE; Art. 18.75)', - the liability of~he;principal to pay commission
pteimpposf?S that the agent has complied with his
EXCEPTION: Unless there is'proof to the coritr9ry, . otjtigatio~as suchfo the principal (Id. at 404).

NOTE: The relation of principal ,and agent can be. · 3. Pro.curing C~tise of the transaction
created although the agent . . receives no . , Goverrijng -~ule: The agent must prove that he
compensation (DE LEON, supra at 403). w;31, th~• guiding cause or the "procuring cause"
(DE~pON, supra at 405).
GRATUITOUS AGENT
Procuring Cause
A person who agrees to act as an agent without
A cause originating a series of events which
compensation. The promise of a gratuitous agent is
without break in their continuity, result in th~
ordinarily not enforceable but the fact that he is such
accomplishment of the prime objective of the
has no effect upon his rights and duties with
employment of the· broker - producing a
reference to the principal and third persons. The fact
purchaser ready, willing and able to buy on the
that the agency was for compensation or not, shall be
owner's terms (Ticong v. Malim, G.R. No.
considered by the court in determining the extent of 220785. March 1, 2017).
liability of agent for fraud or negligence (Id.).
4. Evasion of commission in bad faith
REAL ESTATE BROKER 5. Compensation contingent on profits
A real estate broker is one who negotiates the sale of 6. Reduction by principal of overprice
real properties. His business, generally speaking, is
7. Terminaticm of agency contract
only to find a purchaser who is willing to buy the land
upon terms fixed by the owner. He has no authority 8. Grant of compensation on equitable
to bind the principal by signing a contract of sale. ground
Indeed, an authority to find a purchaser of real 9. Right of agent's companion to
property does not include an authority to sell (Litonjua compensation
 &MW:D \ I

MEM:Q~Y AID
San Seda University College of Law - RGCT Bar OperatiQns Cooter

10. Validity of exclusive sales agency

agreement (DE LEON, supra at 407-4·/0)

CLASSES AND KINDS OF AGENTS:

Statement of principal Authority of agent must
1. Universal Agent
with respect to the be strictly pursued.
- one authorized to do all acts for his principal
agent's authority would
which can lawfully be delegated to an agent. So
ordinarily be regarded
far as such a condition is possible, such an agent
as advisory only.
may be said to have universal authority.

2. General Agent
- one authorized to do all acts pertaining to a Apparent authority does Mere revocation is
business of a certain kind or at a particular place, not terminate by the effective to terminate
or all acts pertaining to a business of a particular mere revocation .of his the authority as to third
class or series. He usually has authority either authority without notice persons because the
expressly conferred in general terms or in effect to the third party. third person has a duty
made general by the usages, customs or nature to inquire.
of the business which he is authorized .to
(DE LEON, supra at 415-418).
transact.

3. Special or Particular Agent AGENCY COUCHED IN GENERAL AND

- one authorized to do some particular act or to· SPECIAL TERMS
act upon some particular occasion. He acts : According to the power or authority conferred, the
usually in accordance with specific instructions.or · ·agency may be:
under limitations necessarily implied from .the
nature of the act to be done (Siasat v. /AC, G.R. 1. "tt>uche;cl;in general terms; or
No. L-67889, October 10, 1985). An agency _couched in general terms comprises
only acts of administration, even, even if the
GENERAL AGENT AND SPECIAL principal should state that he withholds no power
AGENT DISTINGUISHED· or thakth~ ag't,mt may execute such acts as he
may consider appropriate, or even though the
agency (.>lloµ!p,~ytt,'Jorize a general and unlimited
manageir)~tjt(NEW CIVIL CODE, Att. 1877).
NOTE: It includes only acts of administration and
Usually authorized to do Authorized to do only
express power is necessary to perform any act of
all acts connected with acts in pursuance of
'stiictoWnership (NEW CIVIL CODE, Att. 1878;
the business or particular instructions or
Yoshizaki v. Joy Training Center of Aurora, Inc.,
employment in which he with restrictions
G.R. No. 174978, July 31, 2013).
is engaged. necessarily implied
from the acts to be
Acts of Administration
done.
Acts of administration are those which do not
imply the authority to alienate (DE LEON, supra
at 419).

Binds his principal by an Cannot bind his
act within the scope of principal in a manner
his authority although it beyond or outside the
may be contrary to his specific acts which he is
special instructions. authorized to perform
on behalf of the
principal.
Conducts a series of Usually involves a property in question, and did not include or
transactions involving a single transaction or a
continuity of service. series of transactions
not involving continuity.
The power of administration does not include
acts of disposition or encumbrance, which are
acts of strict ownership. As such, an authority to
dispose cannot proceed from an authority to
administer, and vice versa, for the two powers
may only be exercised by an agent by following
the provisions on agency of the Civil Code (from
Article 1876 to Article 1878). Specifically, the
apparent authority of Atty. Parulan, being a
special agency, was limited to the sale of the
extend to the power to administer the property
(Sps. Aggabao v. Paru/an, G.R. No. 165803,
September 01, 2010).
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2. Couched in specific terms under special
power of attorney (NEW CIVIL CODE, Art.
1878).
INSTANCES WHERE SPA IS
NECESSARY (NEW CIVIL CODE, ART.
1878): (PECWEM-LLB-BOCARO)
1. To make .E_ayments as are not usually
considered as acts of administration;
Payment is the delivery of money or the
performance in any other manner of an
obligation. It is an act of ownership because it
involves the conveyance of ownership of money
or property (DE LEON, supra at 426).
When payment is made in the ordinary course of
management, it is an act of administration (Id. at
426).
> :
NOTE: If the payment is usually considered an •
act of administration, no special 'power of
attorney is needed. It should be
notEia, however,
tl)at some acts of administration ·carry with them
the exercise of acts of dominion, e._g., the sale by
an administrator of fertile land'or the products of
the land (5 PARAS, supta at 800). . ownership •· of . an
2. To gffect novations which put an end to
obligations already. in existence' at tiine
the agency was constituted;
Novation is the extinctioh ·. qf ah obligation
through the creation of a riew one which
substitutes it by changing the object of principal
conditions thereof, substituting a debtor or
subrogating another in the 'right of the creditor ,
(NEW CIVIL CODE, Art. 1291). . .
The obligations must already be in ·existence at
the time of the constitution of the agency .(5 .
PARAS, supra at 801).
3. To ~ompromise, submit questions to
.!!rbitration, renounce the right to 2ppeal
from a judgment, waive objections to the
venue of an action or 2 bandon a
prescription already acquired (CAAWA);
There are five (5) ·different powers mentioned
here. A right given regarding one is not enough
to grant the others (5 PARAS, supra at 801).
Compromise
It is a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put
an end to one already commenced (NEW CIVIL
CODE, Art. 2028). - construction shall be given the document
AGENCY
Civil Law
Arbitration
It is where parties submit their controversies to
one or more arbitrators for a decision (DE LEON,
supra at 427).
NOTE: The absence of an SPA does not mean
that the compromise agreement is void for it is
merely unenforceable (Dungo v. Lopena, GR.
No. L-18377, December 29, 1962).
An agent cannot waive: the right to appeal from
a judgment; objections to the venue of an action;
prescription- already acquired by the principal
(PINEDA, supra at 293).
4. To Waive any· obligation gratuitously;
This is condonation or remission (NEW CIVIL
CODE, Art. 1270). The agent cannot waive a
right belonging to the principal without
consideration (DE LEON, supra at 428).
Express.condonation shall comply with the forms
ofdonation {NEW CIVIL CODE, Art. 1270). The
waiver is an act of ownership (PINEDA, supra at
294).' .
·,
5; To gntei\into any contract by which the
immovable is
transmitted or acquired either
gratuitously ot for a valuable
consideratibn.' '. •·
The' conveyahce pf an immovable, wheth~r for a
valuable COJ1Sideuitlon or gratuitously' is an act
. of::ownership. Si:>ecial power of attorney is
needed .fo validly effect such conveyances
at
(PINEQ'A, supra 295).
NC:f(E: ·~;authority of an agent to execute a
cbritract of sale of real estate must be conferred
in writing and must give him specific authority,
either to conduct the general business of the
principal or to execute a binding contract
containing terms and conditions which are in the
contract he did execute (Cosmic Lumber
Corporation v. CA, G.R. No. 114311, November
29, 1996).
The special power of attorney mandated by law
must be one that expressly mentions a sale or
that includes a sale as a necessary ingredient of
the authorized act. A special power of attorney
must express the powers of the agent in clear
and unmistakable language for the principal to
confer the right upon an agent to sell real estate.
When there is any reasonable doubt ·that the
language so used conveys such power, no such
(Yoshizaki v. Joy Training Center of Aurora, Inc.,
G.R. No. 174978, July 31, 2013).
 lmiPitM \ I
MEM:Q~Y AID
San Bada University College of Law - KGCT Bar Operations Canter
Absence of Written Authority
It has been repeatedly held that the absence of a
written authority to sell a piece of land is ipso Jure,
void, precisely to protect the interest of an
unsuspecting owner from being prejudiced by the
unwarranted act of another (Pahud v. CA, G.R.
No. 160346, August 25, 2009).
6. To Make gifts, except customary ones for
charity or those made to employees in the
business managed by the agent;
GENERAL RULE: Gifts are donations. A
donation is an act of liberality whereby a person
disposes of a thing or right in favor of another
who accepts it. lt is an act of ownership. Hence a
special power of attorney is necessary.
EXCEPTION: Gifts which are customary for
charity or given to employees in the business
managed by the agent (PINEDA, supra at 297).
7. To 1,oan or borrow money, unless the
latter act be urgent and indispensable for
the preservation of the things which are
under administration;
The mere act of the principal of giving pre-signed·
checks to the agent is not authority for the agent
to loan in the name of the principal. In the
absence of any authorization, Gutierrez could not
enter into a contract of loan in. behalf of the ·
petitioner (Patrimonio v. Guti~rrez, G.R . . No.
187769, June 04, 2014).
The same principle applies to ttl~ act of
borrowing money. Without a SPA; the agent
cannot lend or borrow money irr behalf.:of the
principal (Rural Bank of Caloocan. v. CA, G.R.
No. L-32116, April 21, 1981).
The power to borrow money is one
cases where corporate officers as agents of the
corporation need a special power of attorney.
Therefore, there was no basis to hold the
corporation liable since there was no authority
given to borrow money (Yasuma v. Heirs of de
Villa, G.R. No. 150350, August 22, 2006).
The rule is that the agent cannot borrow money
without a SPA except when the funds are
necessary and indispensable for the preservation
of the property being administered by the said
agent (PINEDA, supra at 297).
8. To !:ease any real property to another
person for more than one year;
The special power of attorney is necessary
because a lease for more than one ( 1) year
creates a real right. (PINEDA, supra at 298).
If the lease is not for more than one ( 1) year, it is
merely an i:lct of administration provided it is not
registered (Id.).
The principal is the lessor and not the lessee
(Id.).
NOTE: The lease here does not refer to lease of
real property from another person and to lease of
personal property (OF LEON, supra at 432).
The requirement of special power of attorney
extends to renewal or extension of lease of real
property to another (id.).
9. To §ind the principal to render some
service without compensation;
While the agent may agree to render some
service without compensation, he cannot without
authority bind his principal to do so, unless he is
given a special power to that effect. This is
tantamount to bind him to render service without
compensation. This is involuntary servitude
(PINEDA, supra at 298).
, 1!l~T<>ijirt~l}he principal in a contract of
partnership;
By the ccint,:act of partnership, the partners bind
themselve!:> .to contribute money, property or
industry' to a common fund with the intention of
dividil)g the profits among themselves (NEW
CIVIL CODE, \Art. 1767). The contract of
paftti.er,~hfp. •i thus. creates obligations the
0
fulfillrnerWof' ·Which requires an act of strict
ownership (DE LEON, supra at 432).
c'Fl;l,ft.tl_E;:r,more, the principal must personally have
tflfst·and confidence in the pro·posed partners.
(Id.).
of those
11. To Qbligate the principal as guarantor or
surety;
By the contract of guaranty, the guarantor binds
himself to the creditor to fulfill the obligation of the
principal debtor in case the latter should fail to do
so (NEW CIVIL CODE, Art. 2047). A contract of
guaranty is unenforceable unless it is made in
writing (NEW CIVIL CODE, Art. 1403 par. 2(b)).
This is an act of ownership because to fulfill the
obligation, there may be a need to pay in cash or
property (PINEDA, supra at 299).
In suretyship, the surety binds himself solidarily
with the principal debtor. The creditor can make
the surety personally liable for the debt of the
principal debtor (Trade and Investment
Development Corp. of the Phil v. Asia Paces
Corp., G.R. No. 187403, February 12, 2014).
This is an act of strict ownership (PINEDA, supra
at 299).
 , t ~ Xi' J ",
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12. To ~reate or convey real rights over
immovable property;
An agent cannot create real rights (Le. usufruct,
mortgage, voluntary easement etc.) over the
immovable property of his principal without a
special power of attorney. This is an act of strict
ownership. With more reason, an agent cannot
convey same real rights. Both acts constitute acts
of strict ownership. A special power is needed
(Id.).
13. To 8ccept or repudiate an inheritance;
Any person having the free disposal of his
property may accept or repudiate an inheritance
(NEW CIVIL CODE, Art. 1044). This act is one of
strict dominion; hence, the necessity of a special
authority (DE LEON, supra at 434).
14. To ,Batify or recognize obligations
contracted before the agency; ...
An agent cannot effect novation of obligations
existing at the time of the constitGti,;m ".df the
agency unless he be specially. a'utnorized ,to do
so. Also, the agent cannotratify or recognize .
obligations contracted before the· agency without
special power of attorney (Id.). ·. • ,
15. Any Qther act of strict dq01inion;
Included in the general provisions arecall acts of
strict dominion not mentioned in the f\rst cases
enumerated in the artkle (PINEDA, supra at
300). . The contract is unenforpeable (NEW CIVIL CODE,
PRESENTATION OF P~WER. OF
ATTORNEY
A third person· with whom the agent wishes to
contract on behalf of the principal, may requir~ the
presentation of the power of attorney · or the
instructions as regards the agency. Private or secret
orders and instructions of the principal do not
prejudice third persons who have relied upon· the
power of attorney or instructions shown them (NEW
CIVIL CODE, Art. 1902).
NOTE: It is a settled rule that persons dealing with an
agent are bound at their peril, if they would hold the
principal liable, to ascertain not only the fact of
agency but also the nature and extent of authority,
and in case either is controverted, the burden of proof
is upon them to establish it. If he does not make such
an inquiry, he is chargeable with knowledge of the
agent's authority and his ignorance of that authority
will not be any excuse. The principal, on the other
hand, may act on the presumption that third persons
dealing with his agent will not be negligent in failing
to ascertain the extent of his authority as well as the
existence of his agency. (Manila -Memorial Park
Cemetery, Inc. v. Linsangan, G.R. No. 151319,
November 22, 2004).
.AGENCY
Civil Law
SPA under Art. 1878 need not be in writing
As long as the mandate is express, such authority
may be either oral or written. The authority must be
duly e$tablished by competent and convincing
evidence other than the self-serving assertion of the
party claiming that such authority was verbally given,
thus: The requirements of a special power of attorney
in Article 1878 of the Civil Code and of a special
authority in Rule 138 of the Rules of Court refer to the
nature of the authorization and not its form. The
requirements are met if there is a clear mandate from
the principal specifically authorizing the performance
of the act (Patrimbnio v. Gutierrez, G.R. No. 187769,
June 04, 2014).
SPECIAL POWERS OF ATTORNEY
Even if a document is titled as a general power of
attorney, the requirement of a special power of
attorney is met if there is a· clear mandate from the
principal specifically authorizing the performance of
the act There was no need to execute a separate and
spE:lcial power of attorney since the general power of
attorney had expressly authorized the agent or
. attorney .. in Jact •the power to sell the subject
property. The special power of attorney can be
included in ttie general power when it is specified
therein the act or trari~action for which the special
powe,r is requirecf(Bravb-Guerrero V. Bravo, G.R. No.
152658, -July 29}2905).
Effect of Lack of SPA·Where One Is Required
Art. 1403). .
SCOPE. Of"AGENT'S AUTHORITY
The scope of the agent's authority is what appears in
the written tE:lrms 9fthe power of attorney. While third
persons are bound to inquire into the extent or scope
of the ag·ent'.s ·authority, they are not required to go
beyo6d Jhe ·terms of the written power of attorney.
Third persons cannot be adversely affected by an
understanding between the principal and his agent as
to the limits of the latter's authority. In the same way,
third persons need not concern themselves with
instructions given by the principal to his agent outside
the written power of attorney (Siredy Enterprises, Inc.
v. Court of Appeals, et al. G.R. No. 129039,
September 17, 2002).
SCOPE OF AUTHORITY TO SELL
Special power to sell excludes the power to
mortgage; and a special power to mortgage does not
include the power to sell (NEW CIVIL CODE, Ari.
1879).
The power or authority to sell by virtue of the
extrajudicial foreclosure of the REM could not be
necessarily implied from tne text of
paragraph, expressing the petitioners' agreement to
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the extrajudicial foreclosure (Baysa v. Plantilla, G.R. 2. Apparent or ostensible

No. 159271, July 13, 2015). - The doctrine of apparent authority provides that
even if no actual authority has been conferred on
LIMITATION OF POWER TO an agent, his or her acts, as long as they are
COMPROMISE within his or her apparent scope of authority, bind
the principal. However, the principal's liability is
A special power of attorney to compromise does not
limited to third persons who are reasonably led to
authorize submission to arbitration (NEW CIVIL
believe that the agent was authorized to act for
CODE, Art. 1880).
the principal due to the principal's conduct
(Calubad v. Ricarcen DAvelopment Corp .. G.R.
REASON: A special power to compromise does not
No. 202364,August3~ 2017).
authorize submission to arbitration because while the
principal may have the trust and confidence in the
judgment of his agent, he may not have the s;;ime 3. General
- refers to all the business of the principal.-
trust and confidence on the designate arbitrators
(PINEDA, supra at 301).
4. Special
To authorize a person to submit the principal's - limited only to one or more specific
transactions in question to arbitration, there must be transactions; and
a special power of attorney to tliat effect (NEW CIVIL
CODE, Art. 1878, par. 3). Thus, if the principal has 5. Emergency or authority by necessity or
designated the names of the arbitrators to arbitrate, operation of law (OE LEON, supra at 443-
the agent cannot submit the matter in controversy to 444).
the other arbitrators (Cox v. Fay 54 Vt. 446). If t~ete
is no designation, the ag~nt may submit the matte(in }}j.WHEN A PRINCIPAL IS NOT BOUND BY
question to any arbitrator (PINEDA, supra at 302). <: :A&i[OF lJO= AGENT (ID. AT 448):
f .. ,. Agerit' acts without or beyond the scope of his
WHEN A PRINCIPAL IS BOUNDJ3V ACT authority irlthe principal's name; and
OF THE AGENT: 2. Agent ac;ts\,-vjthin the scope of his authority but in
1. Agent must act within the scope ofJilsS~uthority his owr\ oan:Je, except when the transaction
(NEW CIVIL CODE, Art. 1881}; and ,' -_._. involves a 0thirig belonging to the principal (NEW
2. Agent must act in behalf of the principal (DE CIVIL.:COOE, Art. 1883, par. 2).
LEON, supra at 447). · ·· -· 4i , ~ .. ~'">,, •

REls~rAhi~ is no representation of the

NOTE~ The limits of the agent's autho{:i,ty sht',11! not be principal (DE LEON, supra at 448).
considered exceeded should it have been pe'i:fprmed
in a manner more advantageous to the ptil}9iP~I than
that specified by him (NEW CIVIL CODE;>Art. 1?B?)- ., "t: . With" Authority
a. In principal's name - valid; principal is
AUTHORITY bound; agent not personally liable unless he
It is the power of the agent to affect the legal relations expressly bound himself or exceeded the
of the principal by acts done in accordance with the limits of his authority without giving such
principal's manifestation of consent to him (DE party sufficient notice of his powers (NEW
LEON, supra at 441). CIVIL CODE, Art. 1897);

NOTE: Authority may be considered as the source or Illustration:

cause, while power is the effect (Id.).
KINDS OF AUTHORITY
1. Actual
- may be express or implied; the principal is
bound by the acts of the agent on his behalf (Id.
at 443).
a. Express - directly conferred by
either orally or in writing
b. - Implied - incidental or reasonably
necessary to accomplish the main
purpose of the agency or enable the
agent to perform his assigned duties. ·
P authorized A to sell his (P's) car. A then
sold the car in P's name. (5 PARAS, supra at
812).
b. In his own name - apply Article 1883;
generally not binding on the principal; agent
and stranger are the only parties, except
\AJOrds,
regarding things belonging to the principal or
when the principal ratifies the contract or
derives benefit therefrom.
Illustration - GENERAL RULE:
If P authorized A to find for him (P) a singing
engagement at the Manila Grand Opera
' : ,. . ' • . r,
.· 6;6 _., . ·.. AGENCY
Civil Law

House, and A acts in his own (A's) behalf, ACTS OF THE AGENT AND VALIDITY OF
that is, A wanted to sing and he got the job, THE CONTRACT
only A and the Opera House would be bound
to each other.

Illustration - EXCEPTION:
P authorized A to sell his (P's) car, A then
sold the car in his (A's) own name, without
disclosing who the principal was. Ordinarily,
the agent can only have recourse against the
buyer, and the buyer can have recourse only
against the agent under Article 1883.
However, in this particular case, since the car
Valid (NEW
belonged to the principal, P can have
binding (NEW CIVIL CODE,
recourse against the buyer and the buyer can
CIVIL CODE, Art. 1883)
have recourse against agent P(ld.).
Art. 1897)
2. Without Authority Unenforceable Valid
a. In principal's name - unauthorized & (NEW CIVIL
unenforceable but may be ratified by th!;l CODE, Art.
principal, in which case, may be __ yalidated 1403 par. 1)
retroactively from the beginning (NEW CIVIL
CODE, Art. 1407);

Illustration: Without P's,authbrity, A sold P's

car to a buyer in P's behalf. The transaction,
insofar as P is concerned is unauthorized, No agency Valid but no
hence unenforceable (NEW CIVIL CODE, ,(NEW CIVIL agency.
Art. 1403, par. 1). P is therefore not bound, COQE, Art. Deemed as
unless he ratifies the transaction. Without.the 1403 par. 1) an ordinary
necessary ratification, the buyer can have a contract
claim only against the alleged agent A. The since there is
moment a ratification is made, A steps out of no principal,
the picture, since he would no longer be there is no
personally liable, and now it_ is P who will agent.
have to deal with the buyer (5 PARAS, supra
at 812). N_OTE: lf tne party with whom the agent contracted is
aware· of the limits of the powers granted by the
b. · In his own name - valid, whether or not the principal (in bad faith), the contract is void; otherwise
subject matter belongs to · the ·principal; (in good faith), the contract is unenforceable (NEW
Provided, that at the time of de'livery, the CIVIL CODE, Art. 1898).
"agent" can legally transfer the ownership of
the thing. Otherwise, he will be held liable for
WHEN THE PRINCIPAL IS BOUND BY
breach of warranty against eviction; Art. 1883
does NOT apply (Id. at 811 ). THE ACTS OF THE AGENT BEYOND THE
LATTER'S POWERS: (De-LiBRa)
Illustration: 1. Where the principal's acts have contributed to
A, without authority from P, and representing Deceive a third person in good faith;
himself to be the owner of P's car, sold it to a 2. Where the Limitations upon the power created by
buyer. Here, A acted without authority. him could not have been known by the third
Moreover, he acted in his own behalf. It is person (DE LEON, supra at 450).
clear that the transaction (sale) is valid 3. Where the principal has placed in the hands of
provided that at the time delivery is to be the agent instruments signed by him in ~lank
made, the "agent" can transfer legally the (Strong v. Repide, G.R. No. L-7154, February 21,
ownership of the thing. Oth·erwise, he will be 1912);
held liable for breach of warranty against 4. Contracts entered into by a corporate president
eviction. It is also clear that'only A is liable to without prior board approval binds the
an innocent purchaser. Here, Article 1883 corporation when such officers' apparent
does not apply because Article 1883 authority is established and when these contracts
presupposes authority (Id. at_ 812). are ratified by the corporation. (People's Aircargo
 @Wt#W \ 1
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San Seda University Coll&ge ot Law • RGCT Bar Operations Center
vs .. Court of Appeals, G.R. No. 117847, October
7, 1998);
5. Where the principal has Ratified the acts of the
agent (DE LEON, supra at 451).
DOCTRINE OF AGENCY BY NECESSITY
If there is an emergency to meet, the authority of the
agent is expanded to cover the exigencies of the
moment.
Requisites: (ECARC)
1. The real existence of an gmergency;
2. Inability of the agent to ~ommunicate with the
principal;
3. Exercise of the additional ~uthority for the
principal's own protection;
4. The adoption of fairly _Beasonable means,
premises duly considered; and
5. The £easing of the authority the moment the
emergency no longer · demands the same
(PINEDA, supra at 305).
NOTE: Strictly speaking, agency can never be
created by necessity; what is created is additional
authority in an agent appointed and authorized before
the emergency arose (5 PARAS, supra at 819). ·
AGENCY WITH AN
PRINCIPAL
GENERAL RULE: Agent is direc:tly liable to the
person with whom he had contracted as if the
transaction were his own.
EXCEPTION: Contract that involves things belonging
to the principal (NEW CIVIL CODE, Art. 1883, par. 2).
Art. 1883 pertains to the act of an agent who is
authorized, but instead of acting in behalf of the
principal, he acts in his own behalf. Art.1883 does
not apply if the agent was unauthorized or he acts in
excess "of his authority" (5 PARAS, supra at 822-
823).
Undisclosed Principal
Is one whom the other party dealing with the agent
has no notice of the fact that the said agent is acting
for a principal (PINEDA, supra at 308).
REASON: To protect third persons against possible
collusion between the agent and the principal. It
applies only when the agent has, in fact, been
authorized by the principal to enter into the particular
transaction, but the agent, instead of contracting for
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(DE LEON, supra at 455).
. OBLIGATIONS OF THE AGENT
ARTS. 1884-1909
GENERAL OBLIGATIONS OF AN AGENT
TO PRINCIPAL: (ObAE)
1. To Obey all lawful orders and instructions of
principal within the scope of the agency
2. To ~ct with utmost good faith and loyalty for
furtherance of principal's interests; and
3. To _!;xercise reasonable care, skill and diligence
(DE LEON, supra at 462-464).
SPECIFIC OBLIGATIONS OF AN AGENT
TO PRINCIPAL: (CAFOA-DALAR-PAID-
BIR)
1. To farry out the agency which he has
accepted (NEW CIVIL CODE, Art. 1884);
The provision is clear that an agent is bound to
carry out the agency. The relationship existing
between principal and agent is a fiduciary one,
'aemand1ng conditions of trust and confidence. It
is the duty of the agent to act in good faith for the
UNDISCLOSED advancement of the interests of the principal. In
this case, BPI had the obligation to carry out the
agency' by .informing the beneficiary, who
appeared before BPI to withdraw funds of the
insured who was BPl's depositor, not only of the
existe£1ce,<,tthec(nsurance contract but also the
accofrip~nyin{f terms and conditions of the
insurance policy in order for the beneficiary to be
able to properly and timely claim the benefit (BPI
Ii. Lair;go, G.R. No. 205206, March 16, 2016).
EXCEPTION: An agent shall not carry out an
agency if its execution would manifestly result in
loss or damage to the principal (NEW CIVIL
CODE, Art. 1888).
2. To ~nswer for damages which through
his non-performance the principal may
suffer (NEW CIVIL CODE, Art. 1884);
This rule is an application of the general rule in
contracts that any person guilty of fraud,
negligence, or delay in the fulfillment of his
obligation, or who in any other manner fails to
comply with the terms tt)_ereof shall be liable for
damages (NEW CIVIL CODE, Art. 1170).
It is a well-settled rule that an agent is also
responsible for any negligence in the
performance of its function and is liable for
damages which the principal may suffer by
reason of its negligent act. Hence, the Court of
Appeals erred when it opined that BA, being the
principal, had no cause of action against PAL, its
 "" ' \ "71 ,_, ,,' ~ -,. ?<
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agent or sub-contractor (British Airways v. CA,
G.R. No, 121824, January 29, 1998).
3. To Finish the business already begun on
the -death of the principal should delay
entail any danger (NEW CIVIL CODE, Art.
1884);
4. To Observe diligence of a good father of
a family in the custody and preservation
of the goods forwarded to him by the
owner in case he declines an agency until
an agent is appointed (NEW CIVIL CODE,
Art. 1885);
GENERAL RULE: When a person declines the
offer to make him an agent, generally, no contract
of agency arises and thereby no obligation is
assumed by such person to the offeror based__
the absence of privity. ·
EXCEPTION: Art. 1885 provld~s t~r a1J .
exception as when the offeree, in-~pit~,of his
refusal to accept the appOintment, • as~µmes · · ·
c~rtain liabilities ( VILLANUE,VA, s~pra f/(129).
The duty of care over goods giv~h to ~is custody
can only cover a "reas?nab..Je period(' because
the law provides that "tt)e own~r shall ~s soon as
practicable either app'oint .,<'lh agent or take
charge of the goods" (Id.)/ •... '
5. To Advance the nece~afyJuncls sh9uld
there be a stipulation to do s,o (NEW CIVIL
CODE, Art. 1886);
EXCEPTION: The agent is not bound fopr()yide .
the funds if the principal is insolvent (NEWC]VIL •
CODE, Art.1886). . .' • •. :s~mEl (NEW CIVIL CODE,
6. Not to carry out the agency if · its· ·
execution would manifestly result in loss
or Qamage to the principal (NEW CIVIL
CODE, Art. 1888);
NOTE: Notice that the article covers only acts
that would "manifestly" lead to losses, in other
words, the agent cannot be a guarantor that the
principal would suffer no loss or damage in the
pursuit of the agency; the sustaining of losses
due to human error is part of the risk that every
owner or principal assumes ( VILLANUEVA,
supra at 134).
Of the established rules under the Code, one
cannot be more basic than the obligation oMhe
agent to carry out the purpose of the agency
within the bounds of his authority. Though he
may perform acts in a manner more
*,,'
AGENCY
advantageous to the principal than that specified
by him, in no case shall the agent carry out the
agency if its execution would manifestly result or
damage to the principal. Wincorp had no
authority to absolve Power Merge from the
latter's indebtedness to its lenders. Doing so
therefore violated the express terms of the SPAs
that limited Wincorp's authority to contracting the
loan (Virata v. Ng Wee, G.R. 220926, July 05,
2017).
7. To Answer for damages if there being a
conflict between his interest and those of
the principal,. he should prefer his own
(NEW CIVIL CODE, Art. 1889);
Art. 1889 does not declare the contract or
transaction the agent entered into as void, but
merely makes the agent liable for damages
suffered by the principal (VILLANUEVA, supra at
cm .139).
NOTE: Where the agent's interests are superior,
. sJch aswli'ere he has a security interest in goods
ofthElpriodpal-,in his possession, he may protect
' this interest even if in so doing he disobeys the
principal1s ,o_rders or injures his interest (DE
LEON, supra at 47{3-479).
Rem~dy w~en an ~gent Wishes to Prefer His
tiwm Interest: He : must timely renounce the
agen'cy, _proVJdEid hi$ renu_nciation is not for the
purp9$e • of profitifig from the transaction
(P,INEDA, s4[11'8 at 321 ).
,· . . .
. . .
8. , Nof t~ L:ban tc:f himself if he has been
.- . ·author,iz"ed to lend money at interest (NEW
CIVIL/CODE, Art. 1890);
. .EXC'E;Pl;ION: When the principal consents to the
Art. 1890).
,,cf"
If the agent has been expressly empowered to
borrow money, he may himself be the lender at
the current rate of interest. (DE LEON, supra at
479).
REASON: The principal will suffer no prejudice
because the principal, just the same, will be liable
to pay interest (Id.).
9. To render an Account of his transactions
and to deliverto the principal whatever he
may have received by virtue of the
agency, even though it may not be owing
to the principal (NEW CIVIL CODE, Art. 1891);
All prqfits made and advantage gained by the
agent in the execution of the agency belong to
the principal. And it matters not whether such
profit or advantage be the result of the
 l' --'"'-
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San Seda University College of Law - RGCT Ser Operations Ctmtf.lr '
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performance or of the violation of the duty of the v. Domingo, G.R. No. L-30573, October 29,
agent if it be the fruit of the agency (Dumaguin v. 1971).
Reynolds, GR. No. L-3572, September 30,
1952). Report Distinguished from Accounting
a. Report imports a statement of collections.
Stipulation Exempting Agent from Duty to b. Accounting means settling of account of
Account is Void administration or agency, which includes
REASON: It is contrary to public policy (NEW payment (DE LEON, supra at 487).
CIVIL CODE, Art. 1306) as it would encourage
f1c:1ud. It is in the natu.re of an action for future AGENT AND BANK TELLER,
fraud which is void (PINEDA, supra at 326). . DISTINGUISHED
The agent has an absolute duty to make a full
disclosure or accounting to his principal of all
transactions and material facts that may have
some relevance with. the agency (Domingo v.
Has independent and Has no independent
Domingo, G.R. No. L-30573, October 29, 1971).
autonomous right. right, payment to him is
payment to the bank
Obligation to Account NOT Applicable:
itself. He is a mere
(SLIM)
custodian.
a. In cases of §,olutio indeMi (PINEDA, supra
at 326);

b. Where a right of ,bien exists in favor of the He is guilty of qualified

agent, the rule is not also applicable (DE· theft.
LEON, supra at 486).
i. The agent may, under Art.1914, retain in (DTE-LBON,~ilf>ra at 488).
~\
pledge the things which are \he object of
,

the agency until the principal effects the
reimbursement and pays the· fndemnity
provided in Arts. 1912 and 1913.
ii. A lawyer shall have a lien upon the
funds, documents. and pap~rs of his
client and may retain the sar:ne until his
lawful fees and disbursements have
been paid (RULES OF COURT, Rule
138, Sec. 37).
c. Neither would the r_ule apply if the agent or
broker had !nformed the principal;of the gift
or bonus or profit _he received from the
purchaser and his principal did not object
thereto (DE LEON, supra at 486).
d. The duty embodied in Art. 1891 will not apply
if the agent or broker acted only as a
_Middleman with the task of merely bringing
together the vendor and the vendee, who
themselves thereafter will negotiate on the
terms and conditions of the transaction
(Domingo v. Domingo, G.R. No. L-30573,
October 29, 1971).
NOTE: An agent who ta~es a secret profit is
guilty of breach of his loyalty and forfeits his right
to collectthe commission. It does not even matter
if the agency was a gratuitous one, or that the
principal obtained better results, or that usage or
custom allows a receipt of such bonus (Domingo
10. To be S~sponsible in certain' cases for
the acts .
a. Ot:;fhesubstitute appointed by him when:
i./ He was not given the power to appoint
,,,1;:,, ·OOE:1,aod,
. 11D{itl~:W:as·given such power, but without
designating the person, and the person
appointed was notoriously incompetent
or insolvent (NEW CIVIL CODE, Art.
HB92);
11. To fay interest on funds he has applied
to his own use (NEW CIVIL CODE, Art. 1896);
Two Cases in Contemplation of the Rule:
a. The sum belonging to the principal which he
applied to his own use; and
b. The sum that the agent still owed the
principal after the extinguishment of the
agency (NEW CIVIL CODE, Art. 1896).
12. To ~ct in accordance with the
instructions of the principal, and in
default thereof, to do all that a good father
of a family would do (NEW CIVIL CODE, Art.
1887);
Note: Acting in accordance with the instructions
of the principal is different from acting within the
scope of the agent's authority. The former refers
to the details of the execution of the agency while
the latter refers to the general parameters or
 ' '
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extent of the agency (PINEDA, supra at 317-
318).
13. To !nform the principal, where an
authorized sale of credit has been made,
of such sale (NEW CIVIL CODE, Art. 1906);
14. To Qistinguish goods by countermarks
and designate the merchandise
respectively belonging to each principal,
in the case of a commission agent who
handles goods of the same kind and
mark, which belong to different owners
(NEW CIVIL CODE, Art. 1904);
The commission agent must provide identifying
marks on the goods belonging to different owners
so that segregation may be easy (PINEDA, supra
- at 353). He may not commingle goods his
principal's property with his own or to deal with it
in a way which would make it appear to be his
own property (DE LEON, supra at 5_30) '.
15. To _f!ear the risk of colleftion, shquld he
receive also on sale, a guarantee
commission (NEW CIV!L CODE, Art. 1907);
Guarantee Commission or Del Credere
1 render service for the b$nefit of the principal and not
Commission
It is one where the fador or commission agent
guarantees to the principal the' payment of debts_
arising _ through his, agency- in• consideration
of an increased or .'higher commission
(DE LEON, supra at 533). · . .
16. To !ndemnify the principal for dan;,ages
for his failure to collectthe credits of his
principal at the time that they become due
(NEW CIVIL CODE, Art. 1908);
NOTE: Not applicable to guarantee corrli'nission
(NEW CIVIL CODE, Art, 1907).
17. To be Responsible for fraud or
negligence (NEW CIVIL CODE, Art. 1909).
OBLIGATION TO
AGENCY
The agent is bound by his acceptance to carry out the
agency and is liable for the damages which, through
his non-performance, the principal may suffer.
He must also finish the business already begun on
the death of the principal, should delay entail any
danger (NEW CIVIL CODE, Art. 1884).
AGENCY
Civil Law
OBLIGATION OF THE PERSON WHO
DECLINES AN AGENCY
If the owner has appointed a person to be his agent
and has forwarded goods to the latter whom he
expected to accept the agency but did not, the latter
is required to observe ordinary diligence in the
custody and preservation of the goods until the owner
thereof has appointed an agent to take care of them.
Failure to do so on the part of the declining person
will render him liable for damages (PINEDA, supra at
316).
DILIGENCE OF A GOOD FATHER OF
FAMILY
A person who declines an agency is still bound to
observe diligence of a good father of a family in the
custody and preservation of the goods forwarded to
him by the owner (NEW CIVIL CODE, Art. 1885).
WHEN AN AGENCY SHOULD NOT BE
CARRIEO OUT:
lftts exe!;ution would manifestly result in loss to the
. principal ((VEW C{VJL CODE, Art. 1888).
REASON: Th~ 9uty oJ the agent who is merely an
extension of the per~onality of the principal is to
to act to his detrimentfOE LEON, supra at 477).
AUTHORITY TO BORROW OR LEND
MONEY ·
1. lf..he has been expressly empowered to borrow
money, he may himself be the lender at the
current rate bf iQterest (NEW CIVIL CODE, Art.
1890). . .
REASON: The principal will suffer no prejudice
because even if the agent finds a third person as
lender, the principal just the same will be liable to
pay interest at the current rate or probably more
(PINEDA, supra at 321).
2. If the agent has been authorized to lend money
at interest, he cannot be the borrower without the
consent of the prineipal (NEW CIVIL CODE, Art.
CARRY OUT THE 1890).
REASON: To protect the principal. The agent
may not be a good payer, or may be insolvent, or
may not be a good risk. More, conflict of interests
is bound to arise (PINEDA, supra at 322).
EXCEPTION: When the principal gives his
consent, either orally or in writing (Id,).
 MEM:Q~Y AID
San Seda Unlversrty College of law - RGCT Bar OperabOns Center
The agent may appoint a substitute if the
principal hc1~ not prnhibHed him from doing so;
but he shall be responsible for the acts of the
substitute: , CIVIL CODE, Art.1892, par. 2);
1. When he was not given the power to appoint one;
2. When he was given such power, but without
designating the person, and the person
appointed wus notoriously incompetent or
insolvent.
NOTE: In these two cases the principal may further
bring an action against the substitute with respect to
the obligations that the latter has contracted under
the substitution (NEW CIVIL CODE, Art. 1893).
All acts of the substitute appointed against the
prohibition of the principal shall be void (NEW CIVIL
CODE, Art. 1892).
In the cases mentioned in Nos. 1 and 2 of Art. 1892,
the principal may furthermore bring an action against
the substitute with respect to the obligations which
the latter has contracted under the substitution (NEW
CIVIL CODE, Art. 1893).
SUB-AGENT
A person employed or appointed by an agent as his
agent, to assist him in the performance of an act for
the principal, which the agent has been empowered
to perform (DE LEON, supra at 489).
GENERAL RULE: An agent m9 y appoint a sub~
agent. The agent in this situation is a J'.)iincipal with
respect to the substitute (Id.).
REASON: For convenience and practical utility (Id.).
EXCEPTIONS:
1. When prohibited by the principal; . his responsibility unless the person
2. When the work entrusted to the agent to carry out
requires special knowledge, skill or competence
(Id.).
EXCEPTION TO THE 2No EXCEPTION: When
authorized to do so by the principal (Id.).
EFFECT OF DEATH
PRINCIPAL/AGENT
It will depend from whom the authority of the sub-
agent was derived:
1. From the principal
- Death of the agent who appointed him cjoes not
affect his authority.
2. From the agent who appointed him
- Death of the agent terminates his authority (DE
LEON, supra at 490).
EFFECTS OF SUBSTITUTION
1. Substitution expressly prohibited:
a. All acts of the substitute shall be void (NEW
NOTE: Although Art. 1892 provides that all
acts of the substitute appointed against the
prohibition of the principal shall be void, the
contracts ore really unenforceable insofar as
the principal is concerned alld subjecl lo tiis
ratification pursuant to Article 1317 of the
New Civil Code (VILLANUEVA, supra at 151-
152).
In a situation where the SPA to sell a piece
of land does not empower the attorney-in-
fact to appoint a substitute, but nevertheless
the agent appoints a substitute who executes
the deed of sale in the name of the principal,
while it may be true that the agent may have
acted outside the scope of his authority, that
did not make the sale void, but merely
unenforceable under Art. 1317. Although the
principal denied the sale, his acceptance of
the proceeds thereof was tantamount to
ratifihltlion thereof (Escueta v. Lim, G.R.
Ni/137)62, January 24, 2007).
b. Agent:is personally liable for the acts of the
suostitute., as though the contracts of the
substitute were his own; and
c. Principal vfould have no cause of action
~~ili,s,{:J~~ %Ubstitute (VILLANUEVA, supra
at 153). ·.•
.2., Substitution authorized:
· ;;{l,; The substitute was designated by the agent
'.: ff has the effect of releasing the agent from
appointed is notoriously incompetent or
insolvent (NEW CIVIL CODE, Art. 1892, par.
2).
b. The substitute was designated by the
principal - absolute exemption of the agent
(DE LEON, supra at 492).
OF · 3. Substitution not authorized, but not
, prohibited
- .if the substitution has occasioned damage to
the principal, the agent shall be primarily
responsible for the acts of the substitute (Serona
v. CA, G.R. No. 130423, November 18, 2002).
The principal also has a right of action against the ·
substitute. (DE LEON. supra at 492).
RESPONSIBILITY OF TWO OR MORE
AGENTS
The responsibility of two or more agents, even though
they have been appointed simultaneously, is not
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solldary, if solidarity has not been expressly
stipulated (NEW CIVIL CODE, At1. 1894).
JOINT AGENTS
Agents appointed by one or more principals under
such circumstances as to induce the inference that it
was the principal's intent that all should act in
conjunction in consummating the transaction for
which they were appointed (DE LEON, supra at 494).
Liability of Joint Agents
Their responsibility is joint; except if solidarity has
been expressly stipulated (NEW CIVIL CODE, At1.
1894).
If solidarity has been agreed upon, each agent is
responsible for the:
1. Non-fulfillment of the agency; and
2. Fault or negligence of his fellow agents, unless
the fellow agents acted beyond the scope of their
authority (NEW CIVIL CODE, At1. 1895). ..
NOTE: The liability referred to in Art: 1894 and 1895
is the liability of agents towards principaL,ahd not
towards third parties (5 PARAS/supra at,839). · ·
LIABILITY OF AGENT fOR INTEREST
The agent owes interest on the sums he has applied
to his own use from the day onwh.ith he did so, and
on those, which he still owe$ after the extinguishment
of the agency (NEW CIVIL COC)E/At1. 1896).
The agent who converted to' his.: personal· use the
funds ·of the principal is liable for interest by way of
compensation or indemnity (which is differe,nt from
interest for delay) which shall be computed fromt,he
day he did so, without prejudice to any crin,inalaction ,
for the conversion (DE LEON, supra at 496);
While there is no liability for interest on sums which
have not been converted for the agent's own use (De
Borja vs. De Borja, G.R. No. L-38479, November 20,
1933) the agent who is found to owe the principal
sums after the extinguishment of the agency is liable
for interest from the date the agency is extinguished
(DE LEON, supra at 496).
LIABILITY OF AN AGENT TO THIRD
PERSONS
GENERAL RULE: Agent is not personally liable to
third persons (NEW CIVIL CODE, Art. 1897).
REASON: The agent acquires no rights nor does he
incur any liabilities from the contract entered into by
him on behalf of his principal (DE LEON, supra at
497).
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EXCEPTIONS: INSTANCE$ WHEN
AGENT MAY INCUR PERSONAL
LIABILITY (FOi-WEEP) ·(NEW CIVIL
CODE, ART. 1897):
1. fraud and :negligence by agent (NEW
CIVIL CODE, Art. 1909);
NOTE: Although the agent becomes personally
liable, this does not mean that the principal is
exempted from liability. Since the acts of the
agent are by law those of the principal, both the
principal and the agent are deemed joint
tortfeasors and are deemed solidarity liable
insofar as third persons are concerned ·
(VILLANUEVA, supra at 162-163).
The remedy of the principal is to sue the agent
for damages due to agent's fraudulent or
negligent acts (Id. at 163).
-2.. Agent
~ . .
acts in his -Own name;
l:XCEPTION:When the contract involves things
belonging to the principal (NEW CIVIL CODE,
At1.1883, par{ 2). •
3. A person:.. who acts as an agent of an
!ncapacitated principal;
EX~EPTION1 Unl~ss the third party was aware
: '·
ofJhe iridapacity at the time of the making of the
coht~act (DE L"H)Nfsupra at 506).
4.• When aperson acts as an agent Without
· authority or without a principal (Id. at 505);
5. Agent gxpressly binds himself;
T~e. in<lividual liability of the agent can be
corisidered as further security in favor of the
·deditor and does not affect or preclude the
liability of the principal; both are liable (Id. at 500).
6. Agent gxceeds his authority; and
NOTE: If the agent contracts in the name of the
principal, exceeding the scope of his authority,
and the principal does not ratify the contract, it
shall be void if the party with whom the agent
contracted is aware of the limits of the powers
granted by the principal. In this case, however the
agent is liable if he undertook to secure the
principal's ratification (NEW CIVIL CODE, At1.
1898).
NOTE: If the party with whom the agent
contracted is unaware of the limits of the powers
granted by the principal, the contract is

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unenforceable under Article 1403 of the New Civil
Code.
The agent is not bound or liable:
a. When the principal ratifies the act, in which
case, the principal becomes liable.
b. When the agent has given the third person
sufficient notice about the extent of his power
to put him on guard.
c. When the third .person is aware of the limits
of the agent's powers (DE LEON, supra at
500-501).
If the agent acts in excess of his authority,
the principal is not bound insofar as the
excess is concerned. It is unfair if the
principal be bound in a contract which he did
not authorize (PINEDA, supra at 340).
7. Acts of the agent Ere vent performance on
the part of the principal (DE LEON, supra at
505).
INSTANCES WHEN THIRD PARTY .IS
LIABLE TOWARDS THE AGENT: (~BIT)
1. Where the agent fontracts in his own name for
an undisclosed principal, in which case,the agent
may sue the third party to enforce P,e contract
(NEW CIVIL CODE, Art. 1883); . . .•._ .
2. Where the agent possesses a §_erieficil:i!Jnterest
in the subject matter of the agency (NEW CIVIL
CODE, Art. 1927); •· . ·•
3. Where the agent pays moneyof his pfincipal toa
third party by mistake or under a contract which
proves subsequently to be !!legal, the agent
being ignorant with respect to its illegal nature;
and
4. Where the third party commits a Iort against the
agent (OE LEON, supra at 506).
SCOPE OF AGENT'S AUTHORITY AS TO
THIRD PERSONS
Includes not only the actual authorization conferred
upon the agent by his principal, but also that which
was apparently or impliedly delegated to him
(Angerosa v. The White Company, 210 N. Y.S. 204,
1936 as cited in DE LEON, supra at 509).
1. When authority is not in writing
- Every person dealing with an assumed agent is
put upon an inquiry and must discover upon his
peril, if he would hold the principal liable, not only
the fact of the agency but the nature and extent
of the authority of the agent (DE LEON, supra at
509).
NOTE: If he does not make such inquiry, he is
chargeable with knowledge of the agent's
authority, and his ignorance of that authority will
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not be any excuse (Baca/tos Coal Mines v. CA,
G.R. No. 114091, June 29, 1995).
2. Wh~n authority is in writing
- Such person is not required to inquire further
than the terms of the written power of attorney
(DE LEON, supra at 512).
If the duly authorized agent act:; in accordance with
the orders of the principal, the latter cannot set up the
ignorance of the agent as to circumstances whereof
he himself was, or ought to have been, aware (NEW
CIVIL CODE, Art. 1899).
So far as third persons are concerned, an act is
deemed to have been performed within the scope of
the agent's authority, if such act is within the terms of
the power of attorney, as written, even if the agent
has in fact exceeded the limits of his authority
according to an understanding between the principal
and the agent (NEW CIVIL CODE, Art. 1900).
METHODS OF BROADENING AND
,',RESTRICTING AGENT'S AUTHORITY:
.:(tJt,iptE) (Of; LEON, supra at 518-520) .
. .•l .: ·ey'!;!sag~ and custom;
EXCEPTIQNS: (V-DEC)
a. Where if·is sought to Y..ary the terms of an
express authorization;
b. Where it is sought thereby to Qispense with
, ,~,. leg~!"•.· rl;Jq,uirement enacted for the
p~ij91paf'sl'b~hefit;
C. Where H\s sought to vary an £SSential quality
of the agency relationship; and
,,::({, Where it is sought thereby to fhange a rule
,t•<1¥i:fof•law or as to dispense with a formality
required by law (DE LEON, supra at 519).
It is required that the principal must have notice
of the alleged custom before the agent's acts
may bind the former. However, a principal is
deemed to have notice of a given usage: (1)
where the principal and the agent reside in the
same community, thE: usage is definite and well
known and the agent has no notice that he is to
act to the contrary; and (2) where the agent is
authorized to deal in a particular market or
exch~nge (DE LEON, supra at 519).
2. By Necessity;
Requisites: (EUPRe)
a. The !;mergency really exists;
b. The agent is Y,nabie to communicate with the
principal
c. The agent's enlarged authority is exercised
for the principal's :erotection;
d. The means adopted are Reasonable under
the circumstances (Id. at 520).
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3. By certain Qoctrines;
a. Of apparent authority;
b. Of liability by estoppel; and only a private rule of limited in scope and such
c. Of ratification (DE LEON, supra at 520). guidance to the agent limitations are
and is independent themselves part of the
4. By !mplication (Id. at 518); or and distinct in authority (NEW CIVIL
character. CODE, Art. 1881 and Art.
5. By the rule of §usdem generis (Id. at 520). 1882).

RESPONSIBILITY OF PRINCIPAL Refers to the manner Relates to the subject

WHERE AGENT ACTED WITH IMPROPER or mode of his action with which the agent is
with respect to matters empowered to deal or the
MOTIVES which in their kind of business or
GENERAL RULE: The motive of the agent in substance are within transactions upon which
entering into a contract with a third person is the scope of permitted he is empowered to act.
immaterial. action.

EXCEPTIONS:
1 . Where the third person knew that the agent was
acting for his private benefit (DE LEON, supra a.t Without significance Limitations of authority
521). .as . against those are operative as against
2. Where the owner is seeking recovery of personal dealing with the agent those who have or are
property of which he has been unla~Uy with6ut knowledge or charged with knowledge
deprived (NEW CIVIL CODE, Art. 559; o;z6n v. n6tice. of , them of them and ignorance of
Suntay, G.R. No. L-30817, Sepfember29,. 1972). because they concern the authority will not be
only the prjncipal and any excuse (see Art.
RATIFICATION BY PRINCIPAL the agent (see Art. 1900).
1902).
A third person cannot set up the fa.ct thatthe agent
has exceeded his powers, ifthe principal has ratified,
or has signified his willingness tb ratify the agent's
acts (NEW CIVIL CODE, Ai-J.1901). Not expected 'to he Contemplated to be
.made known to those made known to the third
IMPLIED RATIFICATION whom the agent deals person dealing with the
A principal is deemed to have ratified an act Of an with. agent. Third persons
agent where he receives and retains the benefits of must therefore verify or
tile transaction with knowledge of the litaterial facts i1w8::.ligc1le ll 1e ctull 1u1 ily.
surrounding the same (DE LEON, supra at 527). (DE 4.EON, s4pra at 471-472).

PRESENTATION OF INSTRUCTIONS WHEN DEPARTURE FROM PRINCIPAL'S

GENERAL RULE: A third person is bound'fo inquire .. INSTRUCTIONS IS JUSTIFIED: (SAi)
as to the extent of the agent's authority. A third
1. .§udden Emergency
person deals with an agent at his peril (NEW CIVIL
- Where some unexpected emergency or
CODE, Art. 1902).
unforeseen event occurs which will admit no
delay for communication with the principal, the
EXCEPTION: Private or secret orders or instructions
agent is justified in adopting the course which
of the principal do not prejudice third persons (NEW
see111s l>esl lo hirn under the circumstances.
CIVIL CODE, Art. 1902).

2. 8mbiguous Instructions
INSTRUCTION AND AUTHORITY, - Where instructions are ambiguous, the agent is
DISTINGUISHED not chargeable with disohP.cliP.nr.P. nr its
consequences in case he makes an honest
mistake and adopts a r.onstruction different from
that intended by the principal. It is the duty of the
principal to couch hi::; instructions in clear terms.
Directs the manner of The sum total of the
transacting the powers committed or 3. !nsubstantial Departure
authdrized business permitted to the agent by - An agent may not be said to have breached
and contemplates the principal; may be the agency contract by reason of an insubstantial
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departure from thP. prinr.ipal's instructions, which

does not affect the result (DE LEON, supra at
475-476).

FACTOR/COMMISSION AGENT
A person whose business is to receive and sell goods Sells in his own Transacts in Transacts in
entrusted to him by the principal for a commission name. the name of the name of
and is usually selling in his own name (PINEDA, the principal. those who
supra at 351). employed him.
(Id. at 365-366; 529)
The commission agent shall be responsible for the
goods received by him in the terms and conditions
The commission agent cannot, without the express or
and as described in the consignment, unless upon
implied consent of the principal, sell on credit. Should
receiving them he should make a written statement of
he do so, the principal may demand from him
the damage and deterioration suffered by the same
payment in cash, but the commission agent shall be
(NEW CIVIL CODE, Art. 1903).
entitled to any interest or benefit, which may result
from such sale (NEW CIVIL CODE, Art.1905).
Factorage
Compensation of a factor or commission agent ( DE
lf_such sale is made without authority, the principal is
LEON, supra at 529).
given two alternatives (NEW CIVIL CODE, Art.1905):
Broker
1. He may require payment in cash, in which case
A middleman or intermediary who, in behalf of others
any interest or benefit from the sale on credit
and for a commission or fee, negotiates or contracts
shall belong to the agent since the principal
transactions relating to real or personal property and
· cannot t?,:allowed to enrich himself at the agent's
never acting in his own name but in the name of those,
expens.e;".
who employed him (DE LEON, supra at 365).
Illustration: If an agent was authorized to sell a
Commission of Brokers
Godin electric acoustic guitar for P100,000 cash,
The brokers are entitled to their commiss10n because
but he sells it on credit for P120,000, the principal
they were instrumental in the sale of the property.
can demand from said agent the sum of
They set the sale in motion (Tan v. Gui/as, G.R. No.
143978, December 3, 2002).
P190:,?PO:J? Cijstl, However, should the agent
evento~llyc:ollect the entire sum of P120,000, he
gets an ultimate personal gain of P20,000 (5
In the absence of an express contract between the PARAS, supra at 845-846).
broker and his principal, the implication generally is
that the broker becomes entitled to. the, usual
commissions (Medrano v. Court of Appeals, G.R No.
2'. \fo may ratify the sale on credit in which case it
will have all the risks and advantages to him (DE
150678, February 18, 2005). ·
LEON, supra at 531).
Ordinary Commission
It is the compensation for the sale of goods which are RULE WHEN THE COMMISSION AGENT
placed in the agent's possession or at his disposal. IS AUTHORIZED TO SELL ON CREDIT
Shou_ld the commission agent, with authority of the
COMMISSION AGENT V. principal, sell on credit, he shall so inform the
principal, with a statement of the names of the
ORDINARY AGENT V. BROKER buyers. Should he fail to do so, the sale shall be
deemed to have been made for cash insofar as the
principal is concerned (NEW CIVIL CODE, Art.
1906).

GUARANTEE COMMISSION
Needs to have No need to No need to
possession of have have Should the commission agent receive on sale in
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the goods. possession. possession.
guarantee commission, he shall bear the risk of
collection and shall pay the principal the proceeds of
the sale on the same terms agreed upon with the
purchaser (NEW CIVIL CODE, Art. 1907).
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PURPOSE OF THE COMMISSION: To compensate should m?ke a written statement of the damage
the agent for the inconveniences and risks he has to and deterioration suffered by the same (NEW
undergo in the collection of the purchase price CIVIL CODE, Arl. 1903);
payable to the principal (DE LEON, supra at 533).
2. If he handles goods of the same kind and mark
Liability of the Del Credere Agent belonging to different owners, to distinguish them
The liability of the def credere agent is contingent. If by ~ountermarks, and designate the
the buyer fails to pay, he shall pay the principal. He merchandise respectively belonging to each
has no right to invoke the benefit of excussion (NEW principal (NEW CIVIL CODE, Arl. 1904);
CIVIL CODE, Arls. 2058-2059) because he is not
really a guarantor. Precisely, he is given an additional 3. To tfot sell on credit, without the express or
commission for this obligation because he assumes implied consent of the principal. Should he do so,
the risk of collection for the principal {PINEDA, supra the principal may demand from him payment in
at 357). case, but the commission agent shall be entitled
to any interest or benefit, which may result from
The liability of the de/ credere agent is limited to the such sale (NEW CIVIL CODE, Art. 1905);
payment of the purchase price. It does not extend to
the other obligations arising from the contract such as 4. If he is authorized to sell on credit, to !nform the
damages (Id.). principal, with a statement of the names of the
buyers. Should he fail to do so, the sale shall be
Illustration: deemed to have been made for cash insofar as
The agent was authorized to sell on credit ·an Ibanez the principal is concerned (NEW CIVIL CODE,
electric guitar for P40,000 with ? l0% · ordihary · , Art. 1905)>
commission (P4,000). He was alsd paid ~uaranteed
commission of 5% (P2,000). His to.tal profit would 0
5. To. Bear· the 'risk of collection and pay the
therefore be P6,000. However,\ every time the principal the proceeds of the sale. on the same.
customer fails to pay an installment that is· due, fne terms agr~ed upb,n with the purchaser, if he
agent himself pays said amount to.the principal (5 should recelve on sale, in addition to the ordinary
PARAS, supra at 850). · commission; a guarantee commission (NEW
CIVIL CODE, Arl. 1907);
~ ?
NOTE: Art. 1907 includes both credit and cash sates
because the law did not make,any distinction (Id. at 6. To be liable Jor Dariiages if he does not collect
851). creditsof his principal at the time when they
become due, unless he proves that he exercised
If the agent receives guarantee commission, he que dilig(;)nce for that purpose (NEW CIVIL
cannot put the defense that the debtor-third person CODE, Art. 190lJ).
possesses property (Id.).

Who may Sue the Buyer who tailed to Pay

Either the principal or the de/ credere ag(;lnt may sue
the buyer. The suit of one will bar the subsequent suit
OBLIGATIONS OF THE
of the other (PINEDA, supra at 357). PRINCIPAL
Duty of Commission Agent ARTS. 1910-1918
The commission agent who does not collect the
credits of his principal at the time when they become
due and demandable shall be liable for damages,
unless he proves that he exercised due diligence for GENERAL OBLIGATIONS OF PRINCIPAL
that purpose (NEW CIVIL CODE, Art. 1908). TO AGENT
Duties and liabilities of the principal are primarily
Article 1908 does not apply to a guarantee based upon the contract and the validity of the
commission (DE LEON, supra at 534). contract between them. In addition to his contractual
duties, the principal is under an obligation to deal
SPECIFIC OBLIGATIONS OF A fairly and in good faith with his agent (DE LEON,
COMMISSION AGENT supra at 539).
(CRIB-ND}
SPECIFIC OBLIGATIONS OF PRlNCIPAL
1. To be B_esponsible for the goods received by him
in the terms and conditions and as described in TO AGENT: (CARIP)
the consignment, unless upon receiving them he 1. To fomply with all the obligations which the
agent may have contracted within the scope of
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his authority (NEW CIVIL CODE, Art. 1910) and representation, or who acted beyond his powers shall
in thP. name of llie principal; ho unenforceable (NEW CIVIL CODE, Art. 1317)

2. To ~dvance to .the agent, should the latter so EXCEPTIONS:

request, the sums necessary for the execution of
the agency (NEW CIVIL CODE, /\rt. 1912),
NOTE: Compare this with Art.1886 where the
agent is bound to advance the sums necessary
to carry out the agency, should there be a
stipulation and if the principal is solvent.
3. To ,Beimburse the agent for what the latter has
advanced (plus interest), even if the business
was not successful, provided the agent was free
from fault (NEW CIVIL CODE, Art. 1912);
4. To !ndemnify the agent for all the damages,
which the execution of the agency may have
caused the latter without fault or negligence on
his part (NEW CIVIL CODE, Art. 1913);
5. To fay the agent ttie compensation agreed upon;
or if no compensation was specified, the
reasonable value of the agent's services (DE
LEON, supra at 540).
As for any obligation wherein the agent h~ exceeded
his power, the principal is not bound except when he
ratifies it expressly or tacitly (NEW CIVIL C,OQE, Art.
1910).
PRINCIPAL BOUND BY AGENT'S ACTS
DONE WITHIN THE SCOPE OF THE
LATTER'S AUTHORITY
GENERAL RULE: Whatever has been done or
executed by the agent ·within the scope of h\s
authority and in the name of the princip;:il, is birJ'ding
upon the principal. Consequently, the principal must
comply with all the obligations arising· the
authorized acts of the agent (PINEDA, supra at 364).
REASON: The act of such agent is the act of the
principal (DE LEON, supra at 540-541).
Conversely, the principal is not bound by the acts of
the agent if the latter acted without or in excess of his
authority (PINEDA, supra at 364).
EXCEPTION: The principal may be bound if he
expressly or impliedly ratifies the contract (NEW
CIVIL CODE, /\rt. HJ10).
BINDING EFFECT OF- CONTRACTS
MADE WITHOUT AUTHORITY OR
OUTSIDE THE SCOPE OF AUTHORITY
GENERAL RULE: A contract entered into in the
name of another by one who has no authority or legal
1. When the principal ratifies such contract,
oxpressly or t::ir.itly (NEW CIVIL CODE, Art.
1910);
2. When the principal has allowed the purported
agent to act as though he had full powers (NEW
CIVIL CODE, Art. 1911); and
3. When the principal has revoked the agency but
the third party has acted in good faith without
notice of the revocation (NEW CIVIL CODE, Art.
1921).
LIABILITY OF THIRD PERSONS TO
PRINCIPAL
1. Based on contract
- third person is liable to the principal upon
contracts entered into by his agent, in the same
manner as though the contract were entered into
by the principal himself (OE LEON, supra at 545).
REASON: As the nature of agency is
. (epresentl;ltive, the relationship of the third party
,;to lJ:l~ principal is the same as that in a contract
in which there is no agent (Id.).
2. In tort
- thirdJierj;;on;s tort liability to the principal arises
in thre'e main factual situations:
a.. I/Y)1~r;e third person damages or injures
. plb~~<tdhterest of the principal in agent's
possf!ssi6n;
b. Where third person colludes with the agent to
injure or defraud the principal;
''\\/Wh.ere third person induces the agent to
violate his contract with the principal to
betray the trust reposed upon him by the
from principal (Id. at 546).
3. In respect of property received
- in the absence of a law or the possession by
the agent of apparent authority or circumstances
of estoppel against the principal, the latter may
recover property from the agent's transferee (Id.
at 546).
NOTE: In negotiable instrument. the law protects
third parties who are holders in due course (Id. at
547).
LIABILITY Of PRINCIPAL FOR TORT OF
AGENT RULE
-----------
The principal is civilly liable to third persons for torts
of an agent committed at the· principal's direction or
in the course and within the scope of the agent's
employment. Whether the tort is committed willfully or
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negligently has no effect on the extent or degree of the result was achieved (DE LEON, supra at
the principal's liability (Id. at 552-553). 556).

REASON: Based upon the principle that he who does The act must be ratified in its entirety or not at all.
an act through another does it himself. The agent is The principal cannot accept the benefits- of a
also liable with the principal and their liability is transaction and refuse to accept the obligations.
solidary (Id.at 553). (Id.).

MOTIVATION-DEVIATION TEST ·4. Act must be fapable of r;:itification; and

The bounds of the agent's authority are not the limits
of the principal's tort liability, but rather the "scope of
the employment" which may·or may not be within
the bounds of authority. Scope of employment is
much wider than scope of authority (Id.).
REQUISITES FOR VICARIOUS LIABILITY
FOR TORT:
1. Satisfactory evidence that the employee in doing
the act, in doing of which the tort was committed, .
was motivated in part, at least, by a .desire to
serve his employer; and .·
2. Satisfactory evidence that the act>in the doihg qf
which the tort is committed, was not an Elxtreme
deviation from the normal . coriduct of such
employee (Id. at 554).
RATIFICATION
It is the adoption or affirman:ce by a .persori of 9 prior
act which did not bind him, but which wa'f, done or
professed to be done on his account, thus giving
effect to the acts as if originally authorj:z;ed (Id. at.
558). . . . 5.
5. Principal must have had _!Snowledge or
had reason to know of material facts
about the transaction (Id. at 549).
Thus, if material facts were ·suppressed or
unknown, there can be no valid ratification and
this [is] regardless of the purpose or lack thereof
in concealing such facts and regardless of the
parties between whom the question of ratification
may arise (Manila Memorial Park Cemetery, Inc.
, v. Linsangan, G.R. No. 151319, November 22,
2004).
ACT$ T:HAT MAY BE RATIFIED:
1. . Valid acts:
2. Voidable acts;
3. Unrevoked acts;
The act must remain capable of ratification - the
act must be .done (by one party as agent for
someone else. .
4. Crirriinal acts: and ·
T9rti9us·acts (OELl;ON, supra at 569-570).

NOTE: It must be stressed Jhougtt, that only the NOTE: Acts which a~e absolutely void cannot be
principal, and not the agent, mtify . the c,m authorized or'ratified Jld. at 569).
unauthorized acts, which the principal· must ha.ve·
knowledge of ( Country Banters lnsuran_ce EFFECTS.. OF RATIFICATION BY
Corporation v. Keppel Cebu Shipyard, · GR. ,No. PR,INGlf>AV
166044, June 18, 2012). By ratificr:ition, the relation of principal and agency is
created since ratification by a principal is equivalent
CONDITIONS FOR RATIFICATION: (C- to prior authority. Once made, ratification becomes
BECK) irrevocable (Id. at 572).
1. Principal must have fapacity and power
1. With respect to agent
to ratify;
- Ratification relieves the agent from liability to
the third party to the unauthorized transaction,
2. Act must be done in ~ehalf of the and to his principal for acting without authority
principal; r1nrl hP. mr1y rnr.ovP.r thP. r.omrFmsc1tion d11e for
performing the act which has been ratified (Id. at
NOTE: /\ principal cannot ratify tho unalJthorizod G72).
act of another person unless that person
purported to act as agent for, and in the name of 2. With respect fo the principal himself
the principal, and not in his own behalf (Id. at - The principal who ratifies thereby assumes
561). responsibility for the unauthorized act as fully as
if the agent had acted under original authority but
3. Principal must ratify the acts in its is not liable for ·acts outsidl:l the authority
!;_ntirety; approved by his ratification. Thus, ratification
The acceptance of the result of the act ratifies the does not render the principal liable for fraudulent
whole transaction, including the means whereby
 F&fii \ 1
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misrepresentations made by the agent without
his knowledge (Id.).
3. With respect to third persons
- Ordinarily, a third person is bound by a
ratification to the same extent as he would have
been bound if the ratified act had been autho6zed
in the first instance, and he cannot raise the
question of the agent's authority to do the ratified
act (Id.).
NOTE: To be effective, ratification need not be
communicated or made known to the agent or the
third party. The act or conduct of the principal, rather
than his communication is the key. But before
ratification, the third party is free to revoke the
unauthorized contract (Id. at 573).
RETROACTIVE EFFECT
RATIFICATION
GENERAL RULE: The effect of ratification is the
same as where the principal allowed the agent to act .
as though the latter had full authority from the
beginning (Id. at 573).
EXCEPTIONS: (DWCW)
1. Where it would Qefeat the rights of third parties
which have accrued between the time of the
making of the unauthorized contract and the time
of ratification (Id. at 573).
2. If it will render Wrongful an otherwise rightful act
or omission which has taken place between the
making of the unauthorized contract and the time
of its ratification (Id. at 574).
3. If it will allow the g,ircumvention of a rule of law
formulated in the interest of public policy (Id. at
575).
4. If the third party has Withdrawn from the contract,
the act or transaction is no longer capable of
ratification (Id.).
SOLIDARY LIABILITY
Even when the agent has exceeded his authority, the
principal is solidarily liable with the agent if the former
allowed the latter to act as though he had full powers
(NEW CIVIL CODE, Art. 1911).
When an agent exceeds his authority in his agency,
the principal whom he is supposedly representing is
not bound thereby. The contract is considered
"unenforceable" as long as it is not ratified by the
principal (NEW CIVIL CODE, 1317, par. 2). Such
contract binds only the agent (NEW CIVIL CODE, Art.
1897; PINEDA, supra at 371).
However, a banking corporation is liable to innocent
third persons where the representation is made in the
course of its business by an agent acting within the
general scope of his authority even though, in the
particular case, tho agent is secretly abusing his
authority and attempting to perpetrate a fraud upon
his principal or some other person, for his own
ultimate benefit. The bank, in its capacity as principal,
may be adjudged liable under the doctrine of
apparent authority. The principal's liability in this case
is solidary with that of his employee (Citystate
Savings Bank v Tobias, ·G.R. No. 227990, March 7,
2018).
DOCTRINE OF APPARENT AUTHORITY
The doctrine of apparent authority or what is
sometimes referred to as the "holding out" theory, or
the doctrine of ostensible agency, imposes
liability, not "as the result of the reality of a
contractual relationship, but rather because of the
actions of a principal or an employer in somehow
misleading the public into believing that the
OF relationship or the authority exists."
_It is defined as the power to affect the legal relations
of another person by transactions with third persons
. arising from the other's manifestations to such third
,;person such that the liability of the principal for the
acts and contracts of his agent extends to those
•. , •whl¢1i->ai:e, within the apparent scope of the authority
conferred Oli bJrn, although no actual authority to do
such acts or •to make such contracts has been
conferred (Oitystate Savings Bank v. Tobias, G.R.
No. 227990, March 7, 2018).
The principal's liability, however, is limited only to
·• third persqtis,:;Vll'.h<t have been led reasonably to
believe by 'tne'fonduct of the principal that such
actual authority exists, although none was given. In
ptti,e.r words, apparent authority is determined only by
dh~':s~ft~Hf\he principal and not by the acts of the
ageht:'There can be no apparent authority of an
agent without acts or conduct on the part of the
principal; such acts or conduct must have been
known and relied upon in good faith as a result of the
exercise of reasonable prudence by a third party as
claimant, and such acts or conduct must have
produced a change of position to the third party's
detriment (Banate v. Philippine Countryside Rural
Bank, G.R. No. 163825, July 13, 2010).
ESTOPPEL
A bar which precludes a person from denying or
asserting anything contrary to that which has been
established as the truth by his own deed or
representation either express or implied (DE LEON,
supra at 575).
 • ' ' <I. ~ \l , '1 , " ~'

~ ' ,t; t
· 650 ·. ,. , >' ·; / •
AGENCY
. ' ' Clvlllaw
h ' I: r ''

APPARENT AUTHORITY AND

AUTHORITY BY ESTOPPEL,
DISTINGUISHED
That which though not
actually granted, . the
principal knowingly
permits the agent to
exercise or hold him out
as possessing.
Founded on conscious
perm1ss1on of acts
beyond the powers
granted.
(DE LEON, supra at 579).
RATIFICATION ANI) ESTOPPEL.,, ·•··.
DISTINGUISHED
Rests on intention, Rests on
express or implied, rather than intention.
regardless of prejudice
to another.
Where the principal, by
his culpable negligence,
permits his agent to
exercise power not
granted to him, even
though the principal has
no notice or knowledge
of the conduct of the
agent.
Based on negligen~ of
the prii;icipal in fai\(ng
properly to supervise
the , affain~•,of .. agerit,
allowing hif(I to ¢xercise
9
powers hcit gr nted to
him, and so Justifies
others ,in believing he
possesses the ·requisite
authdrity.
. 1, If the e.sfoppel i~ caused by the principal, he is
. .OBtlGATfONTO ADVANCE FUNDS
· execution of the agency.
prejudice
Confirmation of the Principal's inducement
unauthorized act or to another to act to his
contract after it has prejudice. Acts and
been done or made. conduct amounting to
Ratification may be an estoppel in pais may
complete without any in some instances
elements of estoppeL amount to ratification.
(Id. at 575-576).
In an agency by estoppel or apparent authority, "the
principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the
agent to assume, or which he holds the agent out to
the public as possessing." The principals'
(respondents) acquiescence of the agent's (Hojilla)
acts was made when they failed to repudiate the
latt~r·s' acts,. They knowingly permitted the agent to
representthem and petitioners were clearly misled
!flto-, pelieving the agent's authority. Thus, the
principals·. a~e now. estopped from repudiating the
agent's authority, anq the agent's actions are binding
upon the respondents (Republic of the Philippines v.
Banez, ~.R. No.169442, October 14, 2015).
NOTE: lnHmplied.agenc&. there is actual agency. The
principal ,alone is liable.: In agency by estoppel, the
authority f)f. tbe agent is mot real but only apparent:
li~ble to P&Y third /persons who relied on the
misrepresentation;,.'
2·:. tfit)s cal!sed by toe agent, then only the agent is
liable (ld. at 581)'.
The p'rihcipal 'must advance to the agent, should the
Jetter so ·'rnquest, the sums necessary for the
Should the agent have advanced them, the principal
must reimburse him therefor, even if the business or
undertaking was not successful, provided the agent
is free from all fault.

The reimbursement shall include interest on the sums

Is retroactive and Operates upon
makes the agent's something which· has
unauthorized act good been done but after the
from the beginning. misleading act and in
reliance on it and may
only extend to so much
of such act as can be
shown to be affected by
the stopping conduct.
advanced, from the day on which the advance was
made (NEW CIVIL CODE, Art. 1912).
In the absence of stipulation that the agent shall
advance the necessary funds (NEW CIVIL CODE,
Art. 1886), the principal must advance to the agent
the sums necessary for the execution of the agency
(DE LEON, supra at p. 582).
Failure of the agency, through no fault of the agent
must be borne solely by the principal. It is unfair to
 & 5§ \ I
MEM:Q~Y AID
San Seda Uruversrty College of La-.v - OOCT Bar Operations Center
hold this failure against an innocent agent (5 PARAS,
supra at 858).
Even if the agency be gratuitous, this Article still
applies; hence, the agent will still be entitled to
reimbursement and interest. This is so because the
reimbursement and interest in Article 1912 does not
refer to compensation or commission (Id).
The right of the agent to be reimbursed is not
dependent upon the success of the undertaking or
the transaction. The reimbursement shall include
interest. In the absence of any agreement, it shall be
the legal rate at six percent (6%) (PINEDA, supra at
374-375).
OBLIGATION TO INDEMNIFY
DAMAGES
The principal must also indemnify the agent for all the
. damages which the execution of the agency may
have caused the latter, without fault or negligence on
his part (NEW CIVIL CODE, Art. 1913).
The liability of the principal for damages is limited only
to that which the execution of the agency has caused
the agent. Thus, no promise to indemnify will be
implied for losses or damages causecj by the
independent and unexpected wrongfuLatts of third '
persons for which the principal is in JlO way
responsible (DE LEON, supra at 584).. ' · NOTE: A tr;;inspct\pn or undertaking is common to all
The rule is based on equity andJmplies ~vl':)n more if
the agency is gratuitous (5 PARl(S supra ai:p. 859),
RIGHT OF LIEN
The agent may retain in pledge the things whk;h are
the object of the agency until the princip~Feffect~ the
reimbursement and pays the indemnity'. set fqrtli in
the two preceding articles (NEW CIVIL CQDIE, Art.
1914). . ..
Kinds
Legal pledge or pledge by operation of law (PINEDA,
supra at 377).
For the protection of the agent, the law provides that
the agent has the right to retain in pledge the objects
of the agency until the principal shall have
reimbursed him for the advances he made with
interest as well as the amount of indemnity for the
losses and damages he suffered while fulfilling the
agency (Id.).
NATURE OF AGENT'S RiGHT OF LiEN
1. The right is limited to the subject matter of the
agency (DE LEON, supra at 585).
2. The right requires possession by agent of subject
matter - To entitle the agent to a lien, the funds
~ , ~f f ::,. ; < <
··
.
' ',,;',J
'
651 ·
or property against which it is asserted must be
in his actual or constructive possession, and he
must have acquired such possession lawfully
and in his capacity as an agent (Id.).
3. The right generally only in favor of agent - In the
absence of ratification of the sub-agent's acts by
the principal, the right of lien exists only in. favor
of the agent and cannot be claimed by one to
whom the agent delegates his authority where no
privity exists between the sub-agent and his
principal (Id. at 586).
JOINT PRINCIPALS
Two or more persons who appoint an agent for a
common transaction or undertaking (PINEDA, supra
FOR at 378).
Nature of Liability
If two or more persons have appointed an agent for a
common transaction or undertaking, they shall be
solidarily liable to the agent for all the consequences
of the agency (NEW CIVIL CODE, Art. 1915).
'}/JSQ(idarity is \I),/? rule under this Article because of the
- '.totfimon,tran®ction. Thus, even if the agents have
bee~ ~p~diht~ separately, the rule should apply in
the interest of}u~tice (PINEDA, supra at 378).
/ J\
principals Jr it i~ ori~ as to which their interests are in
accord and in harmpny (11 Manresa 561 as cited in
DE LE©tfi!~"f!pJ!ffAff?v).The rule in Art. 1915 applies
even wh~n~i.,ltnei,c.~fppointment was made by the
principals in separate acts, provided that they are for
.. , toe,~me transaction (Id. at 587).
,;,'(j~"Jft.~1;f1~i~~fii~ t'-\{~~\
lliiqiiisites bf Solidary Liability: (2C 2 )
1. There are two (.?) or more principals
2. The principals have all foncurred in the
appointment of the same agent; and
3. The agent is appointed for a fommon transaction
or undertaking (Id. at 587).
NOTE: Any one of the -principals may revoke the
agency (NEW CIVIL CODE, Art. 1925).
Illustrations:
W, X, and Y employ A as agent to sell a land owned
in common by the three, with A receiving a
commission of P1, 500,000. If A is successful, A can
collect from any of the three the sum of P1, 500,000
because of their solidary liability. Of course, if X pays
P1, 500,000, he can recover reimbursement of
P500,00 each from Wand Y (5 PARAS, supra at 859-
860).
C, D, and E appoint F as their agent to sell their
separate houses. The liability of C, D, and E are
merely joint and not solidary even if the appointment

is made in one instrument. This is because this is
NOT a common transaction or undertaking (Id. at
860).
TWO PERSONS CONTRACT
SEPARATELY WITH AGENT AND
PRINCIPAL
When two persons contract with regard to the same
thing, one of them with the agent and the other with
the principal, and the two contracts are incompatible
with each other that of prior date shall be preferred,
without prejudice to the provisions of Article 1544.
(NEW CIVIL CODE, Art. 1916).
When the principal and the agent separately
contracted for the sale of the same property which is
the object of the agency, the following rules shall be
observed:
1. The contract of prior date shall prevail.
2. But, if the rule on double sale under Article 1544
is applicable, said article applies.
LIABILITY TO THIRD PERSON OF AGENT
OR PRINCIPAL WHO CONTRACTS
SEPARATELY
In the case referred to in the preceding article, if the
agent has acted in good faith, the princip_al shall .be
liable in damages to the third person whose contract
must be rejected. If the agent acted in bad faith, he
alone shall be responsible {NEW CIVIL CODE, Art.
1917).
Whether the principal or the. agent will be the one
liable for damages to the third persort who has been
prejudiced under Article 1916 depends on whether
the agent acted in bad faith or not. If the age_nt acted
in good faith and within the scope of _his authority, the
principal incurs liability. If the agent acted in bad faith,
he alone shall be responsible to such third person
(DE LEON, supra at 590).
LIABILITY OF PRINCIPAL FOR THE
EXPENSES INCURRED
GENERAL RULE: The principal is liable for the
expenses incurred by the agent in the execution of
the agency (PINEDA, supra at 381).
EXCEPTIONS: The principal is not liable for the
expenses incurred by the agent in the foflowing
cases: (CF-KS)
1. If the agent acted in ~ontravention of the
principal's instructions, unless the latter should
wish to avail himself of the benefits derived from
the contract (NEW CIVIL CODE, Art. 1918 par.
1).
REASON: To penalize the agent for disobeying
the instructions of the principal. However, if the
AGENCY
Civil Law
principal will receive the benefits derived from the
contract, there is ratification and therefore, he is
bound to pay the expenses incurred by the agent
(PINEDA, supra at 381-382).
2. When the expenses were due to the Ea ult of the
agent (NEW CIVIL CODE, Art. 1918 par. 2).
REASON: Fairness dictates that where the
expenses were incurred because of the fault or
negligence of the agent, he alone should bear the
expenses (PINEDA, supra at 382).
3. When the agent incurred them with _!Snowledge
that an unfavorable result would ensue, if the
principal was not aware thereof (NEW CIVIL
CODE, Art. 1918 par. 3).
REASON: To punish the agent. He should not
carry out the agency if the execution thereof
would manifestly result in loss or damage to the
prindpal (NEW CIVIL CODE, Art 1888).
However, if .the principal is aware of the resulting
effect of the execution and did not stop the agent,
the agent is excused from liability (PINEDA,
at
supra 3$2).
4. When it wm, §Upulated that the expenses would
be borne by the agent, or that the latter would be
allowed only a certain sum (NEW CIVIL CODE,
Art. 1918par. 4).
REASON: The stipulation of exemption excuses
the principaf from eipenses. The parties are free
to enter into allowable stipulations (NEW CIVIL
CODE, Art. 1306).
LIABILITY FOR AGENT'S ILLICIT ACTS
GENERAL RULE: Where the fault or crime
committed by the agent is not in the performance of
an obligation of the principal, the latter is not bound
by the illicit act of the agent, even if it is done in
connection with his functions (5 TOLENTINO, supra
at 426).
EXCEPTIONS: (DeSC)
1. Where the delict or the quasi-delict was
committed by the agent because of Defective
instructions from the principal, or due to the lack
ofnecessary vigilance or supervision on his part,
the principal is liable for his own negligence;
2. When the agent .§ecures a contract through
fraud, or makes a fraudulent alienation, or
executes a simulated contract, all of these acts
are imputable to the principal as if done by him,
because the illicit act is inseparable from the
transaction executed for him; or
3. When the crime consists in the performance of
an act which is within the powers of the agent, _but
becomes ~riminal only because of the manner in
 MEM✓O~v AID
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whir.h thP. A(JP.nt h;:is f)P.rfnrmed it, thP. principal is
liable to third persons who act in good faith (Id. at
426-427).
NOTE: Principal is still liable for mismanagement of
business by the agent (Commercial Bank & Trust Co.
v. Republic Armored Car Service Corp., G.R. No. L-
18223, June 29, 1963).
h. Mutual Withdrawal from the relationship by the
principal and agent;
c. By the happening of a supervening event that
makes illegal or impossible the objective or
purpose for which the agency was constituted,
like the destruction of the subject matter which is
the object of the agency.
NOTE: Agency is terminated, as a matter of law,
upon the outbreak of war (OE LEON, supra at 598).

MODESOF BASES OF THE MODES OF

EXTINGUISHMENT OF EXTINGUISHMENT:
1. Revocation
AGENCY Agency is an act of trust and confidence. It
ARTS. 1919-1932 ceases when the trust and confidence disappear.
Consequently, the principal is allowed to
terminate the agency when he loses his trust and
confidence is the agent. The unilateral act of
PRESUMPTION OF CONTINUANCE OF revocation of the principal is a sufficient cause
to extinguish the contract of agency (PINEDA,
AGENCY
Slfta~t 383).
When once shown to have existed, an agency
relation will be presumed to have continued, in the t~ revocation must not be done in bad faith
."61.A-t
absence of anything to show its termination (OE (lcJ).
LEON, supra at 592).
Hence, if a principal acts in bad faith and with
CONTINUANCE OF AGENCY abuse of,dght in terminating the agency, then he
Parties must be: is liable in damages (Valenzuela v. Court of
a. Present; Appeals, G.R:.No. 83122, October 19, 1990).
b. Capacitated; and
c. Solvent (OE LEON, supra at 593). The, pqwe.r tc;i.revoke agency is an exception to
the gepef/;ll,,:r,ule on mutuality of contracts in
MODES OF EXTINGUISHMENT OF Article 1308 (Id.).
AGENCY: (EDWARDO)
2. :)Vithdrawal of the Agent
1. gxpiration of the period; , '; 'tfi,~: 1;tgentmay withdraw from the agency by
2. Q_eath, civil interdiction, insanity or insolvency of giving ·due notice to the principal (NEW CIVIL
the principal or of the agent; CODE, Art. 1928). However, although his
3. Withdrawal of the agent; withdrawal is for a valid reason, he must continue
to act until the principal has had the reasonable
NOTE: Agent may withdraw by giving notice to opportunity to take necessary steps to meet the
the principal, but must indemnify the principal for situation (NEW CIVIL CODE, Art. 1929).
damages that he may suffer by reason of such
withdrawal (NEW CIVIL CODE, Art. 1928).
3. Death
GENERAL RULE: Agency is extinguished ipso
4. ~ccomplishment of the object or the purpose of
Jure upon the death of either principal or agent
the agency; (OE LEON, supra at 594). The death of the
5. Revocation;
principal terminates the agency, even if a period
6. Dissolution of the firm or corporation, which
has been stipulated and such period has not yet
entrusted or accepted the agency
ended (5 PARAS, supra at 865).
7. Qther. modes of extinguishing a simple contrad
(NEW CIVIL CODE, Art. 1919).
Under Article 1919, New Civil Code, agency is
extinguished by the death of the agent. His rights
Other Modes:
and obligations arising from the contract are not
Article 1919 gives only those causes of extinction
transmittable to his heirs (Sps. Terrado v. CA,
which are peculiar to agency. The list is not exclusive
G.R. No. L-58794, August 24, 1984).
(DE LEON, supra at 592).
a. Loss and novation (NEW CIVIL CODE, Art.
1231);
:, f s, ) \ ,¢ : ~ ',. ',
0
"i '1 •
~, a·s4 ,_ , , ._,- ,·
_ ,' ~~:,~ 1! ~:'} ,: iV \ ' :~~'
REASON: With the death of the principal, the
source of authority is extinguished; whereas if the
agent dies, he can no longer act for the benefit
and representation of the principal (DE LEON,
supra at 584).
EXCEPTIONS: (IKCDAE)
a. The agency is coupled with an !nterest (NEW
CIVIL CODE, Art. 1930).
i. If the agency has been constituted in the
common interest of the principal and the
agent;
Interest in the Subject Matter
In an agency coupled with an interest,
the agent's interest must be in the
subject matter of the power conferred
and not merely an interest in the exercise
of the power because it entitles him to
compensation. When an agent's intere.s.t.
is confined in earning his .Ja"Qreed
compensation, the agen~y•·i~ · not_ one;.
coupled with an interest, sfhye·an ~gent's.-.
interest in obtaining his compen~atibn as
such agent is an ordinary iocfctfot of.-the ·-· ·
agency relationship .(UIT/ v,<Sabfin, G Py
No. 163720, Decemoer 1,6, 2004).
' .
Illustration: Zenr:iidaborrows frdm :Jose,
and as a security; entrdsts to Jbse a ring,
which Jose canselUn pase Z~~aida fails
to pay the debt ?it the time of the maturity.
Even if Zenaida\die~. \~e a~eri-cy9f Jose_
would still remain (5 Pf,.RA~; supra at
873). . .. -· •·-
ii. If it has been constituted in ti're interest-of
a third person who acceptec,f the: •
stipulation in his favor (NEW °CIVIL
CODE, Art. 1930). . . .
Illustration: Melady sells his lana ·to
Bravo and appoints Bravo his agent in
paying with the purchase price what
Melady owes Arellano, a third person.
Here, even when Melady dies, the
agency of Bravo continues to exist (5
PARAS, supra at 873).
b. The ad of the agent was executed without
fSnowledge of the death of the principal and
the third person who contracted with the
agent in good faith (NEW CIVIL CODE, Art.
1931).
NOTE: Under Act No. 3135, the power of
sale in a deed of mortgage survives the death
of the principal (mortgagor) as it is primarily
an authority conferred upon the mortgagee
AGENCY
Civil Law
for the agent's (mortgagee) own protection.
(DE LEON, supra at 595).
The power to foreclose is not an ordinary
agency that contemplates exclusively the
representation of the principal by the agent
but is primarily an authority conferred upon_
the mortgagee for the latter's own protection.
It is, in fact, an ancillary stipulation supported
by the same causa or consideration for the
mortgage and forms an essential and
inseparable part of that bilateral agreement..
(Perez v. Philippine National Bank, G.R. No.
L-21813, July 30, 1966).
The right of the mortgagee to extrajudicially
foreclose the mortgage after the death of the
mortgagor does not depend on the
authorization in the deed of mortgage
executed by the latter. The right exists
.Lndependently and is clearly recognized in
Sec., 7, Rule 86 of the Rules of Court (DE
LF=ON;, supra at 595; Bicol Savings and Loan
Associatfon v. Court of Appeals, G.R. No.
85302, March 31, 1989).
The ~gent must finish the business begun on
tbe death of ttie principal, should delay entail
any danqe(
, '
(N£W CIVIL CODE, Art. 1884).
/ .,) ~
C, ~_ivil _Interdiction (RPC, Art. 34), insanity and
insolvency •
Ci,vi\ interdic,fion deprives the offender during the
p~riqd of his sentence of the right to manage his
"pmpe'rty and dispose of such property by any act
. of any C,6nveyance inter vivas. A person under
civil .interdiction' cannot validly give consent
(NEW QlVILC:ODE, Art.1327).
As_ by . an act of ins9lvency the principal loses
t.onttol of the subject matter of the agency, the
· ·authority of the agent to act for his principal
generally ceases by operation of law upon an
adjudication of the principal's insolvency. The
insolvency of the agent will put an end to the
agency, if it is in any way connected with the
agent's business, which has cau~ed his failure
(VI= Ll=ON, supra at 594).
d. Qissolution of the firm or corporation
If the agent appointed is a corporation or a firm
(partnership) which has a juridical personality,
once it is dissolved, it could no longer function as
a principal or an agent except for winding up of
corporate affairs (CORPORATION CODE, Sec.
122; now REVISED CORPORATION CODE,
Sec. 139) or partnership affairs (NEW CIVIL
CODE, Art. 1832).
 ermun ' ' ,i , i. f- l ~ f : ~~, ~ ~,.

MEM-Q~Y AID
San Be<la University College of Law - RGCT Bar Operations Center
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e. ~ccomplishment of objer.t of purpose - death, legal incapacity, or insolvency of one

At least as between the parties, principal and
agent, the fulfillment of the purpose for which the
agency is created ipso facto terminated the
agency, even though expressed to be irrevocable
(DE LEON, supra at 596). The agency becomes
functus officio. It has no more basis for its
existence (PINEDA, supra at 388).
f. gxpiration of the period for which it was
constituted
Where an agency, by the terms of the original
agreement, is created for a fixed period or is to
end at a certain time, the expiration of such
period or the arrival of that time, results in the
termination of the relationship, even though the
purpose for which the agency was created has
not been accomplished. The parties may consent
to the continuation of the agency relationship
beyond the period originally fixed.
i. Time is specified - upon the arrival of the
time agreed upon.
ii. Time not specified - at the end of a
reasonable time. Either party can terminate
the relationship at will by giving notice to the
other.
iii. Period implied - the period maybe implied
from the terms of the agreement; the purpose
of the agency, and the circumstances cf the
parties (DE LEON, supra at 596 -597).
ACTS DONE WITHOUT KNOWLEDGE OF
PRINCIPAL'$ DEATH
Anything done by the agent, without knowledge of the
death of the principal or of any other caute that
extinguishes the agency, is valid and ihalt be f4lly
effective with respect to third persons who may.~ave
contracted with him in good faith (NEW C(VIL QODE,
Art. 1931). . , .,
EFFECT OF DEATH IN CASE
MULTIPLE AGENTS
1. In case of several agents constituted for
the same business or property
- death of one or more, but not all of them would
not extinguish the agency, with respect to those
who remain living.
NOTE: The same rule applies in case of civil
interdiction, insanity or insolvency of any but not
all of the common agents (VILLANUEVA, supra
at 227).
2. When it is clear at the constitution of the
agency that the common agents were
intended to be considered as having
capacity as a group and not individually
would legally terminate the agency (Id.).
LOSS OR DESTRUCTION OF SUBJECT
MATTER
GENERAL RULE: Agency is terminated (DE LEON,
supra at 599).
EXCEPTION (CSP):
1 f.ontrary agreement.
2. If it is possible to be .§ubstituted by another.
3. fartial loss or destruction does not always
terminate the agency. It may continue in
existence as to other property not affected (Id).
CHANGE OF CONDITIONS
GENERAL RULE: Where there is a basic change in
the circumstances surrounding the transaction, which
was not contemplated by the parties and which would
reasonably lead the agent to believe that the principal
would not desire him to act, the authority of agent is
terminated (Id. at 600).
''.; EXCEPTIONS: (R 2C)
· lf,Jhe origipal circumstances are Restored within
a:Yeasot;iaQle period of time.
2. Where ag~nt has Reasonable doubts as to
whether the'principal would desire him to act, his
authority ;ivifl not be terminated if he acts
reasonably. .
3. Where the: priricipal and agent are in close daily
~oq~i;$i:,,th,S;·;~Q!3nt's authority to act will not
terriiirfaJ§3i+Jfioa:a change of circumstances if the
agent knows.the principal is aware of the change
and does not give him new instructions (Id).
OF AGENCY BY
GENERAL RULE: Agency is revocable at will of the
principal, regardless of the term of the agreement, at
OF any time, with or without reason (NEW CIVIL CODE,
Art. 1920).
REASON:
1. The trust and confidence of the principal may
have been lost (Barreto v. Santa Marina, G.R.
No. L-8169, December 29, 1913).
2. Since the authority of the agent emanates from
the principal, it is enough if he wishes to withdraw
or terminate the agency.
3. The principal-agent relationship is consensual
and personal in nature and no one can be forced
to retain another agent against his will (DE
LEON, supra at 605).

REVOCATION AT WILL IS PROPER
1. Even if the agency is onerous:
2. Even if the period fixed has not yet expired (5
PARAS, supra at 866).
When done by the principal, it is• called "revocation"
and when done by the agent, it is usually spoken of
as "withdrawal" or "renunciation" (NEW CIVIL CODE,
Art. 1919, par. 2; DE LEON, supra at 605).
EXCEPTIONS: (COMBI) (NEW CIVIL CODE, Art.
1927)
1. When the agency is foupled with interest; (DE
LEON, supra at 619).
The interest possessed by the agent is not in the
proceeds arising from the exercise of the power,
but interest in the subject matter of the power
{Del Rosario, et al. v. Abad & Abad, G.R. No. L-
10881, September 30, 1958).
2. If it is the means of fulfilling an Qb!igation 9lteady ·
1
contracted; · .LEO!y, S(!pra at 606).
3. If a partner is appointed Man1ger ofk p;rtnerstiip
and his termination is unjustifi9 ble/' ·
4. If a §.ilateral contract depends upon it;
Illustration: P wanted to make A his surety so P
made A his agent as :a sort ,of induc(;lment to
safeguard him from eyenfuarloss (5. ''pARAS,
supra at 820); and · ·
5. If it is created not only for the 'Interest' of the
principal but also for the int~rest of th,ird persons,
who have accepted the stipulation in their ,,_
favor.
'•
NOTE: Agency coupled with int~f~st may be
revoked for a just cause (DE LEON; supra at
625).
A power of attorney can be made irrevocable by
contract only in the sense that the principal may
not recall it at his pleasure; but coupled with
interest or not, the authority certainly can be
revoked for a just cause, such as when the
attorney-in-fact betrays the interest of the
principal. It is not open to serious doubt that the
irrevocability of the power of attorney may not be
used to shield the perpetration of acts in bad
faith, breach of confidence, or betrayal of trust, by
the agent for that would amount to holding that a
power coupled with an interest authorizes the
agent to commit frauds against the principal
(Coleongco v Claparols, G.R. No. L-18616,
March 31, 1964),
There is an exception to the principle that an
agency is revocable at will and that is when the
-AGENCY
Civil Law
agency has been given not only for the interest of
the principal but for the interest of third persons
or for the mutual interest of the principal and the
agent. The principal may not defeat the agent's
right to indemnification by a termination of the
contract of agency. Where the principal
terminates or repudiates the agent's employment
in violation of the contract of employment and
without cause, the agent is entitled to receive
either the amount of net losses caused and gains
prevented by the breach, or the reasonable value
of the services rendered (Valenzuela v. Court of
Appeals, G.R. No. 83122, October 19, 1990). ·
LIABILITY OF PRINCIPAL FOR DAMAGE
CAUSED BY REVOCATION
While the principal may have absolute power to
revoke the agency at any time, he must respond in
damages for breach of contract where the termination
is wrqngful, although Art. 1920 does not expressly
provide, inJhose cases wherein not having the legal
right !6 do so, he should discharge the agent (DE
1. Fixed period
- principi;tl shall be liable by the wrongful
dischi3rge of ,th_e agent before expiration of the
period (Id.).
2. No fixed perjqq .
- the principal is at liperty to terminate agency at
will subject Only to the requirement of good faith
(Danon v. Brirno & Co., G.R. No. 15823,
• Septembef 12, 1921).
I\IQTICEOF REVOCATION
1. Totheagent
Express notice to the agent is not always
necessa·iy. If the party to be notified actually
knows, or has reason to know, facts indicating
that his authority has been terminated or
suspended, there is sufficient notice (DE LEON
supra at 609).
NOTE: A reYocation without notice to the agent
will not render invalid an act done in pursuance
of the authority (Id.).
2. To third persons
Actual notice must be brought home to the former
customer. While notice by publication is sufficient
to other persons (NEW CIVIL CODE, Art, 1873;
DE LEON, supra at 609).
In a case involving a general power of attorney
permitting the agent to deal with the general
public, the Supreme Court held that: Evidence
had been adduced that notice in writing had been
served not only on thoithram, but also on
 fPWMMi \ 1
MEM✓Q~Y AID
San Beda University Cotlego of law - RGCT Bar Operations Center
Ortigas, of the revocation of Choithram's power
of attorney by lshwar's lawyer, on May 24, 1971.
A publication of said notice was made in the April
2, 1971 issue of The Manila Times for the
information of the general public. Such notice of
revocation in a newspaper of general
circulation is sufficient warning to third persons
includinq Ortigas (Ramnani v. CA, G.R. No.
85494, May 07, 1991).
NOTE: In the absence of any notice of
revocation, the principal may also be held liable
even to third persons who never dealt with the
agent previous to the revocation, if they, in
common with the public at large, are justified in
believing that such agency continues to exist (OE
LEON, supra at 609).
KINDS OF REVOCATION:
a. Express revocation; and
b. Implied revocation (DE LEON, supra at 608).
AGENCY FOR THE PURPOSE OF
CONTRACTING WITH SPECIFIED THIRD
PERSONS
If the agency has been entrusted for the purpose of
contracting with specified persons, its revocation
shall not prejudice the latter if they were not given
notice thereof (NEW CIVIL CODE, Art. 1921).
The revocation of this kind of agency shall not
prejudice specified persons who were not timely
notified of the act of revocation. They mustbe given
the opportunity to meet the situation so that they may
be able to protect their rights and interest (PINEDA,
supra at 391).
If the agent fails or refuses to return ftie power of
attorney, it is incumbent upon the principal _to give
proper notice to the members of the public who may
be affected by the revocation. Under Article 1921 of
the New Civil Code, ifthe agency has been entrusted
for the purpose of contracting with specified persons,
its revocation shall not prejudice the latter who were
not given notice thereof (VILLANUEVA, supra at
209).
IMPLIED REVOCATION
If the agent had general powers, revocation of the
agency does not prejudice third persons who acted in
good faith and without knowledge of the revocation.
Notice of the revocation in a newspaper of general
circulation is a sufficient \AJarning to third persons
(NEW CIVIL CODE, Art. 1922).
The appointment of a new agent for the same
business or transaction revokes the previous agency
from the day on which notice thereof was given to the
former agent, without prejudice to the provisions of
the two preceding articles (NEW CIVIL CODE,
Art.1923).
IMPLIED REVOCATION MAY BE
EFFECTED:
1. By the act of the principal in appointing
another agent for the same business or
transaction (NEW CIVIL CODC, Ari. 1923);
A special power of attorney giving the son the
authority to sell the principal's properties is
deemed revoked by a subsequent general power
of attorney that does not give such power to the
son, and any sale effected thereafter by the son
in the · name of the father would be void (Dy
Buncio & Co. v. Ong Guan Can, G.R. No. L-
40681, October 2, 1934).
The revocation does not become effective as
between the principal and the agent until it is in
some way communicated to the latter (DE LEON,
supra at 614).
The rights of third persons who acted in good
fi:lith and.w,ithout knowledge of the revocation will
hotb~ptejudiced thereby (Id. at 614) . .
A special po)IVer revokes a general one as to the
specialmatter involved in the latter (NEW CIVIL
CODE;Art; 1926).
BL1t}Q!Pf~!)s ,n,g)r:nplied revocation where the
appointrneht;'qfahother agent is not incompatible
with the continuation of a like authority in the first
agent, or the first agent is not given notice of the
apppintment of the new agent (DE LEON, supra
ifat:($14), .
NOTE: There .is no proof in the record that the
first agent, the son, knew of the power-of-
attorney to his mother. It was necessary under
the law for the defendants, in order to establish
their counterclaim, to prove that the son had
notice of the second power-of-attorney (Garcia v.
De Manzano, G.R. No.13414, February 4, 1919).
2. By the act of the principal in directly
managing the business entrusted to the
agent (NEW CIVIL CODE, Arl. 1924);
The agency is deemed impliedly revoked
because there is no more basis for the existence
of the agency. There is no more representation
of the principal, which is the basis of the agency.
(PINEDA, supra at 397).
But the intervention of the principal after having
appointed an agent in the very business which he
has delegated to the latter will not revoke the
 AGENCY
Civil Law

agency if there is no incompatibility (DE LEON, is as yet no revocation of his powers (VILLANUEVA,
supra at 615). supra at 201).
When the agency is stipulated to be exclusive (or
The rule applies only in the case of when compensation is anchored on the success of
incompatibility. In case of true inconsistency, the ~he tra~sactions entrusted to the agent), the principal
agency is revoked, for there would be no longer Is deprived of the authority to appoint a new agent for
any basis therefor (11 Manresa 547 as cited in the same transaction whether the new appointment
DE LEON, supra at 615). is joint with the first agent or by way of revocation
(implied) of the power of first agent (PINEDA, supra
Revocation as a form of extinguishing an agency at 396).
~nder Article 1924 of the Civil Code only applies
m cases of incompatibility, such as when the REVO.CATION BY ONE OF THE TWO OR
principal disregards or bypasses the agent in MORE PRINCIPALS
order to deal with a third person in a way that
excludes the agent. The principals' claim for loss When two or more principals have granted a power
of attorney for a common transaction, any one of
cannot be seen as an implied revocation of the
them may revoke the same without the consent of the
agency or their way of excluding the agent
others (NEW CIVIL CODE, Alt. 1925).
(petitioner). They did not disregard or bypass the
agent when they made an insurance claim;
As the appointment of an agent by two (2) or more
rather, they had no choice but to personally do it
principals for a common transaction or undertaking
because of their agent's negligence. This ls not
makes them solidarily liable to the agent for all the
the implied termination or revocation of an
consequences of the agency (NEW CIVIL CODE Alt.
agency provided for under Article 1924 of the
· 1915); ar1y one bf the principals is granted unde; this
Civil Code (International Exchange Bank vs.
article 'the right, fo revoke the power of attorney
Spouses Briones, G.R. No. '205657;.March 29,
2017). . . . without t_he consent of the others (DE LEON supra at
617). ' '
When is the agency revoked?
REASON: In a solitlary obligation, the act of one is
Although the provision does not state whenthe act of
the act of all (Id.), '
revocation takes place, it can be presumed therefore
1. By tne act 'of . . the; principal in subsequently
that the moment the principal ~irectly manages the
granting a sqecial ppwer of attorney as regards
business by dealing directly with third persons, the
the same busi~e.§S lo another agent, where he
agency is revoked (VILLANUE;.VA, supra al201):
~a? previous I{' gr§\nted a general power of
attorney tcrone agent (NEW CIVIL CODE, Alt.
Logic dictates that when a ()rincipat di~regard~. or
bypasses the agent and directly deals with ·such 1926).
person in an incompatible or exdusioriary manciet,
said third person is deemed to have knowledge of the·
2. W_hen' an ager,f is granted a general power to do
ce_r:tain acts by his principal and the latter
revocation of the agency. They are expected to know ..
subseiqu.ently granted a special power to another
circumstances that should have put thetnpn gµa/d as
to the continuing authority of that agent The mere
a$~Dl to do the same matter or transaction, the
former power is impliedly revoked. There is a
fact of the principal dealing directly with the 'third ·
parallelism with the rule that a special law
person, after the latter had dealt with an agent, should
prevails over a general law. lmp!iedly, a general
be enough to excite the third person's inquiring mind
power subsequently granted to another agent
on the continuation of his authority. ( Yap Bitte v.
does not revoke the special power, unless it is
Spouses Jonas, G.R. No. 212256, December 09,
clearly stated that the special power is revoked
2015).
by the subsequent general power (PINEDA,
supra at 399).
Note: Revocation of the agency is only with respect
to the third persons with whom the principal deals
NOTE: A special power is not revoked by a
directly; as to third person who have previously
subsequent general power of attorney given to
known of the power of attorney of the agent and who
another agent, unless the latter refers also to the
have not dealt with the principal, the agency cannot
act authorized under the special power (5
be considered revoked (Id.).
TOLENTINO, supra at 436).
It is alsci apparent that unless the agent is aware or
given notice that the principal has directly managed
the business which is covered by his power of
attorney, then insofar as the agent is concerned there
 Gt:liWfiffi \ I
MEM:Q~Y AID
San Eleda \Jnivernity College of Law - FIOCT Bar Operation$ Cents,
REVOCATION AT Will
GENERAL RULE ON REVOCATION: The principal
may revoke the agency at will.
EXCEPTIONS: (BFA)
1. When a _!;!ilateral contract depends upon it;
2. If it is a means of fulfilling an obligation already
contracted; ,
3. If a partner is Appointed mnnnger or a
partnership in the contract of partnership and his
removal from the management is unjustifiable
(NEW CIVIL CODE, Art. 1927).
AGENCY COUPLED WITH AN INTEREST
An agency that is established for the mutual benefit
of the principal and of the agent, or for the interest of
the principal and of third persons, and it cannot be
revoked by the principal so long as the interest of the
agent or of a third person subsists (Lim v. Saban,
G.R. No. 163720, December 16, 2004).
WHEN A PARTNER IS APPOINTED
MANAGER OF A PARTNERSHIP AND IS
REMOVED UNJUSTIFIABLY
If a partner was agreed to be the manager of a
partnership as indicated in the Certificate of
Partnership, and for which he would devote time and
efforts and was thus induced to resign from his other
professional works so he could render full time as
manager, and has been dealing with third persons as
a representative of the firm, his. appointment as
manager cannot be revoked without valid ju~tification
(NEW CIVIL CODE, Art. 1800).
The agent may withdraw from the agency by giving
due notice to the principal. If the latter should suffer
any damage by reason of the withdrawal, the agent
must indemnify him therefore, unless the agent
should base his withdrawal upon the impossibility of
continuing the performance of the agency without
grave detriment to himself (NEW CIVIL CODE, Art.
1928).
Just as the principal may, at his will, terminate the
representation conferred by revoking the power
executed, likewise the agent may terminate the
agency by renouncing the trust (PINEDA, supra at
406).
The agent, even if he should withdraw from the
agency for a valid reason, must continue to act until
the principal has had reasonable opportunity to take
the necessary steps to meet the situation (f'JE~A/
CIVIL CODE, Art. 1929).
Even when the agent withdraws from the agency for
a valid reason, he must continue to act until the
principal has had reasonable opportunity to take the
necessary steps like the appointment of a new agent
to remedy the situ;::ition caused by the withdrawal.
The purpose of the law is to prevent damage or
prejudice to the principal (DE LEON, supra at 629).
The agency shall remain in full force and effect even
after the death of the principal, if it has been
constituted in the common interest of the latter and of
the agent, or in the interest of a third person who has
accepted the stipulation in his favor (NEW CIVIL
CODE, Art. 1930).
EFFECT OF DEATH OF THE PRINCIPAL
General Rule: Agency is terminated instantly by the
death of the principal (NEW CIVIL CODE, Art. 1919,
par. 3).
An agency is extinguished by the death of the
principal. Any act by ths agent subsequent to the
principal's death is void ab initio, unless any of the
exceptions expressly recognized in Article 1930 and
Article 1931 of the Civil Code is applicable (Lopez v.
Court of Appeals, GR No. 163959, August 1, 2018).
Exceptions:
, . 1... If the agency has been constituted in the
;'\\'@ooq;ipo,Jrjterest of the principal and the agent
(NEW61-c{l,L CODE, Art. 1930);
2. If it has been constituted in the interest of a third
person who has accepted the stipulation in his
favor (NEW CIVIL CODE, Art. 1930);
.· 3. If the agent had no knowledge of the death of the
principal d,r any . other cause which extinguishes
thf!J'.age~cy;;aiJdJhe third person who may hnve
contracted:iwitti'.him was in good faith (NEW
CIVIL CODE, Art. 1931);
4. )f the agent had already begun the business and
4he!B is an imperative need to finish the same to
, avoid ·danger, prejudice or damage to the
principal (NEW CIVIL CODE, Art. 1884).
VALIDITY OF THE ACTS OF THE AGENT
AFTER EXTINGUISHMENT OF AGENCY
Anything done by the agent, without knowledge of the
death of the principal or of any other cause which
extinguishes the agency, is valid and shall be fully
effective with respect to third persons who may have
contracted with him in good faith (NEW CIVIL CODE,
Art. 1931).
An act done by the agent after the death of the
principal is valid and effective only under two
conditions:
1. That the agent acted without knowledge of the
death of ihe principal; and
2. The third person who contracted with the agent
acted in good faith (Rallos v. Go Chan & Sons,
G. R. No. L-24332, January 31, 1978).
 AGENCY
Civil Law

NOTE: Both the agent and the third person must be

in good faith (PINEDA, supra at 412).

DUTY OF HEIRS TO NOTIFY UPON THE

DEATH OF AGENT
If the agent dies, his heirs have the duty to notify the
principal thereof and, in the meantime, adopt such
measures as the circumstances may demand in the
interest of the latter (NEW CIVIL CODE, Art. 1932).

NOTE: Art. 1932 does not impose on the heirs of the

principal the duty to notify the agent of the death of
the principal (DE LEON, supra at 636);

Can the heirs of the agent continue the agency?

GENERAL RULE: An agency cannot be performed
by the agent's personal representatives in case of his
death because agency calls for personal services.

EXCEPTIONS:
1. In case of agency by operation of law or
presumed or tacit agency;
2. Where the agency is one coupled with an interest
(DE LEON, supra at 636-637): .

NOTE: Tho Civil Code does not impose a duty on the

heirs to notify the agent of the death of
the principal
(Rallos v. Go Chan & Sons, G. R. No. L-24332,
January 31, 1978).

EFFECT OF AN AGREEMENT THAT

AGENCY WILL CONTL~UE AFTER
DEATH OF THE PRINCIPAL
If there is an agreement that ~ven after the death of
the principal, the agency will still co,ntinue, the
agreement shall be void {PINEDA, supra at 416).
 tii#t¥M \ 1

MEM:Q~Y AID
Son 8eda University Co/loge ot Lew - RGCT Bar Operations Center

I CREDIT TRANSACTIONS I CREATION OF BAILMENT

It may be created:
1. By contract
- in which case, it must contain all the elements
of a valid contract to be legally enforceable; or
CREDIT TRANSACTIONS
2. By operation of law (Id at 4).
Co11lracls of security that include all transactions
involving the purchase or loan of goods, services, or
money with a promise to pay or deliver in the future
PARTIES IN BAILMENT:
(DE LEON, Comments and Cases on Credit 1. Bailor (Comodatario)
Transactions, (2021), p. 1) [hereinafter, DE LEON]). - delivers the possession or custody of the thing
bailed; and
SECURITY
Ensures enforcement of an obligation or protects
2. Bailee (Comodante)
- receives the custody or possession of the
some interest in property (Id. at 2).
thing thus delivered (Id. at 4).
TYPES OF CONTRACTS OF SECURITY:
KINDS OF CONTRACTUAL BAILMENT:
1. Secured transactions or contracts of real
1. For the sole benefit of bailee
security
a. Commodatum
- transactions supported by a collateral or an
b. Gratuitous simple loan!mutuum
encumbrance of property; and
·• •. 2. For the sole benefit of bailor
2. Unsecured transactions or contracts of
.. a. Gratuitous deposit
personal security b.:-.M;J,rNJatum
- transactions supported only by a promise to
pay, or commitment of another such as a
3. For the' J:>enefit of both parties (mutual-
guarantor or surety (Id. at 1).
benefit qailments)
a. bailmE!nls of mere keeping
BAILMENT p'. bailments of carriage (private carriage)
It signifies a situation in which. one person holds L q~(li;n?ms.of goods delivered to another
personal property, the ownership of which is in ,. , Jct worKupon
another. The person who has possession is under d. bicitlments of goods delivered to another
the obligation to return the same goods', eithe~ in the towork with
same or in altered form to the owner, or dispo$es of bailments for security (pledges
them for his benefit, when the purpbse bf the bailments of vendor in possession after
bailment shall have been accomplished (Id. at 2);- sale

4. Fortuitous Bailments
- bailments arising out of finding, salvage, theft,
etc. (Id. at 5-6).

DOHN ALFRED E. AQlJILIZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACULA, Ad Hoc Director for Bar Matters I MARIEU.E CIE!",O B. BELGIRA, Vice Chairperson for Finance I JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations I ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit I CORINA R: TAMPUS, Vice
Chairpmon for Secretariat I ARVY KEITH N. CHUNG, Vice Chairperson for Logistics I ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership! JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair I KING LAURENZ S. J\,1ASILUNGAN, Assistant Subject Chair i AU-IEX ADREA M.
PERALTA. Subject Electronic Data Processing I SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts I QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU R. TRINIDAD, Loan and Deposit I SKY_ BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATHALIE A. HER.ONA, Persons and Famiiy Reiations j KRISTOFFER MONICO S. NG, Property j jULEEN EVETIB
D. MALLARI. Land Titles and Deeds I MARISOL 0. SISON, Sales I GEM EOWARD E. AQUINO, Torts I PATRICIA MAE R. l'EDERIS,
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TJUNIDAD, PATRICIA MARIF. G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
l\1ARIE C. SANTOS, YlJMIKO ANGELIUS M. YOSHIY, MARY JOY B, DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. TIMOTEO B. AQUINO

 LOAN AND DEPOSIT
Civil Law

KINDS OF BAILMENT FOR HIRE:
1. Hire of things (locatio rei)
- where goods are delivered for the temporary
use of the hirer.
2. Hire of service (/ocatio operis faciendi)
- where goods are delivered for some work or
labor upon it by the bailee.
3. Hire for carriage of goods (locatio operis
mercium vehendarum)
- where goods are delivered either to a
common carrier or to a private person for the
purpose of being carried from place to place.
4. Hire of custody (location custodiae)
- where goods are delivered for storage (Id. at
7).
2. Loan Agreement between the credit card
holder and the credit card issuer; and
3. The promise to pay between the credit card
issuer and the merchant or business
establishment (Pantaleon v. American
Express International, Inc. G.R. No. 174269,
August 25, 2010).
The Credit Card Company has No duty to
Approve
When the Card holder use their credit cards to pay
their purchases, they merely offer to enter into loan
agreements with the credit card company. Only after
the latter approves the purchase requests that the
parties enter into binding loan contracts (Id).
KINDS OF LOAN: -
1. Commodatum
-:- bailor delivers to the bailee a non-consumable

I LOAN (ARTS. 1933-'-1934) I thing so that the latter may use it for a certain
time and return the identical thing; and

2. Simplefoan(mutuum)
~, - ' ..:.. lerid~r d81iver'S to the borrower money or other
consumable thing upon the condition that the
CONTRACT OF LOAN . latter shah return the same amount of the same
A contract wherein one of th~ pa,rties d~livers to kind'and quality (CIVIL CODE, Art. 1933).
another, either something not coi15umabl~ so that
the latter may use the sarn:e''for a;;certain jime and Consumables - are those things which cannot
return it, in which case it is'_q1H~d ;commodatum; or be used in a manner appropriate to their nature
money, or other consum'able things, open the. withouHheidbeing consumed (CIVIL CODE, Art.
condition that the same amount oflhf'l sarpe'k1nd and 118);.' ,,
quality shall be paid, in whicti case ifjs simply called
a loan or mutuum (CIVIL CObf=, Art. 1,933) . . · 0
·. ·. COM MODATUM V. MUTUUM
The contract of loan is governed by the rules as to • •
the requisites and validity of contracts in general.(DE
LEON, supra at 9).
GENERAL RULE: Consumable/Fungible
MONEY MARKET TRANSACTION"IS A Nbn-consumable/Non- (CIVIL CODE,. Art. 418
l,.OAN fungible and Art. 1933)
A money market transaction is in the nature of a
loan. Money market has been defined to be a market EXCEPTION:
dealing in standardized short-term credit If the purpose of the
instruments where lenders and borrowers don't deal contract is not the
directly with each other but through a middleman or consumption of the
dealer in the open market. In a money market object (e.g. for
transaction, the investor is the lender who loans his exhibition) (CIVIL
money to a borrower through a middleman or dealer CODE, Art. 1936)
( Cebu International Finance Corporation v. Court of
Appeals, G.R. No. 123031, October 12, 1999).

Essentially gratuitous. Generally gratuitous

CREDIT CARDS.
although it may also be
Every Credit Card Transactions 1nvolves three onerous for there may
contracts, namely: be stipulation of
1. Contract of Sale between the cardholder interest.
and the merchantof business establishment
that accepted the card;
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2. Unilateral contract
:-once the subject matter has been delivered, it
creates obligations on the part of only one of the
parties (i.e. borrower) (DE LEON, supra at 16).
Use or temporary Consumption.
possession. 3. Nominate contract
:- it has been given a specific name by the Civil
Code (Id. at 16).

4. frincipal contract
Any property Personal property.
- its existence is not dependent on another
contract (/d. at 17).
NOTE: May be movable
or immovable and, if it is
movable property, it is
5. Informal contract
-_ no particular form is required for the contract
ordinary non-
(Id. at 17).
consumable
6. Gratuitous contract
:-the bailee does not pay the bailor for the use
of the thing {Id. at 17).

LOAN V. CREDIT

CQl:Jtract fot;\t)e delivery Ability of a person to

B\r"c5~ilparfy'.€Jnd receipt borrow money or things
of other parfypf a given by virtue of the trust or
sum of money, or other confidence reposed by
consumable' ;, things the lender so that he will
upon . ;::igreement,. pay what he may
expressf or :lmplied, to promise within a
In case of urgent need Uporu~xpiratio(l of the
repay;)~e:: · 9unt specified period (DE
and commission of any term qnly. .
of the':·: cl and LEON, supra at 10).
acts of ingratitude, even
before the expiration of
quality, w'i
or without
interest (CIVIL CODE, The concession of
the term.
A.i:t(J,933). "credit" necessarily
(OE LEON, supra at 13). ,;:t'fr'.;;;f''.·\\;l:F involves the granting of
"loans" up to the limit of
CHARACTERISTICS: (RUN-PIG) the amount fixed in the
1. Real contract "credit" (Id. at 1OJ.
:- delivery of the thing loaned is necessary for
the perfection of the contract because the CREDIT IN RELATION TO DEBT
purpose of the contract is to transfer either the Credit is a sum credited on the books of a company
use or the ownership of the thing loaned (CIVIL
to a person who appears to be entitled to it. It
CODE, Art. 1316).
presupposes a creditor-debtor relationship, and may
be said to imply abifity, by reason of property or
NOTE: An accepted promise to make a future estates, to make a promised payment (Chinatrust
loan is a consensual contract, and therefore
(Phils.) Commercial Bank v. Turner, G.R. No.
binding upon the parties. However, it is only after
191458, July 3, 2017).
delivery of the subject matter will the real
contract of loan arise (CIVIL CODE, Art. 1934).
LOAN V. DISCOUNTING OF PAPER
The non-fulfillment of an accepted promise will
give rise to an action for damages only (5
TOLENTINO, Civil Code of the Philippines,
(1992), p. 443) [hereinafter 5 TOLENTINO].
 LOAN AND DEPOSIT
Civil Law

NOTE: Delivery of the thing is a condition sine

qua non for the perfection of the contract. An
accepted promise to- deliver something, but not
yet followed by delivery, will constitute a contract
Less expensive than Slightly more expensive to loan, but it will not constitute a contract of
discounting. than obtaining loan commodatum (DE LEON, supra at 17).
because interest is
calculated on the 2. .e_rincipal .
amount loaned and not - it can stand alone by itself;
on the amount actually
received. 3. Qratuitous
- the cause of which is the mere liberality of the
benefactor (CIVIL CODE, Art. 1350); and

4. .E_ersonal in Nature
Always on a single Always on a double
- because of the trust (5 PARAS, Civil Code of
name paper (one on name paper (one on
the Philippines Annotated (2016), p. 889)
which no other which two signatures
[hereinafter 5 PARAS].
indorsement, other than appear with both parties
the signature of the liable for payment).
maker appears. 'S-INDS OF COMMODA TUM:
1'. Ordinary. Commodatum
- use of tl:ie thing by the bailee is for a certain
/' ,,, period oftime (CIVIL CODE, Art.1933);
Loan must be paid The. discount does not
back. have to be repaid 2. Precarlufn
(Herrera V. Petrophil - one whereby the bailer may demand the thing
Corp., G.R. No. L- loaned at will.
48349, December 29,
1986). A contract is'.preciv~um when:
(DE LEON, supra at 11). a. The duration ana purpose of the contract are
not stipulat§d; or
b. The use of the thing is merely tolerated by
the owner (CIVIL CODE, Art. 1947).
COMMODATUM
OWNE,RSHIP OVER FRUITS
(ARTS. 1935~1952) GENERAl RULE: Bailee acquires the temporary
use of the tt)ing but not its fruits since the bailor
rerrialns the owner (CIVIL CODE, Art. 1935).
CONTRACT OF COMMODATUM NOTE: If the bailee is not entitled to the use of the
A contract wherein one party delivers to another thing, the contract is a deposit (CIVIL CODE, Art.
something not consumable so that the latter may use 1962).
the same for a certain time and return it (CIVIL
CODE, Art. 1933) When the bailee is obligated to maintain the property
in good condition, such contract is not a
CONTRACT AKIN TO DONATION commodatum, but is akin to one between a landlord
Both contracts of commodatum and donation confer and a tenant. (Pajuyo v. CA, G.R. No. 146364, June
benefit to the recipient. The presumption is that the 3, 2004)
bailer has loaned the thing for hc:ving no need
therefore (DE LEON, supra at 22). The cause or RATIONALE: The right to use a thing is distinct from
consideration for both is pure liberality (CIVIL CODE, the right to enjoy the fruits (DE LEON, supra at 29).
Art. 1350). The fruits pertain to the owner of the thing producing
the fruits (CIVIL.CODE, Art. 441).
CHARACTERISTICS
COMMODATUM: (RPGP)
.
OF
EXCEPTION: When there is a stipulation to mak·e
use of the fruits of the thing loaned (CIVIL CODE,
1. Beal Art. 1940). Provided that the use of the fruits is
- perfected by delivery;
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merely incidental; otherwise, it is usufruct (DE (DE LEON. supra at 22-29).

LEON, supra at 28).
Such stipulation to enjoy the fruits cannot be
presumed (Id. at 29).
SUBJECT MATTER
GENERAL RULE: Non-consumable goods, whether
movable or immovable property (CIVIL CODE, Arts.
1936-1937).
EXCEPTION: Consumable goods · may be the
subject matter of commodatum if the purpose of the
contract is not the consumption of the object as
when it is merely for exhibition, called commodatum
ad ostentationem (CIVIL CODE, Art. 1936).
If consumable goods are loaned only for purposes of
exhibition, or when the intention of the parties is to
lend consumable goods and to have the very same
goods returned at the end of the period agreed upon,
the loan is commodatum and not mutuum
(Producers Bank of the Phifs. v. CA, GR. No.
115324, February 19, 2003).
CAUSE OR CONSIDERATION
The cause is the liberality of the
Commodatum is essentially gratuitous
CODE, Art. 1933).
NOTE: If any compensation is to be paid by the
borrower, there arises a lease contract; and if the
consideration is to render some service, an
innominate contract will result (DE LEON, supra at
19).
BAILOR NEED NOT BE THE OWNER OF
THE THING LOANED (CIVIL CODE, Art. 1938)
It is sufficient that the bailor has:
1. Possessory interest; or
2. The bailor has the right to allow the use of the
thing by the bailee (e.g. lessee,· usufructuary)
(DE LEON, s-uµra al 19).
REASON: Commodatum does not contemplate
transfer of ownership.
EFFECTS OF THE PRINCIPLE THAT
COMMODA TUM IS PURELY PERSONAL
(CIVIL CODE, Art. 1939)
NOTE: Art. 1939 constitutes an exception to the
general rule under Article 1178 that all rights
acquired in virtue of an obligation are transmissible
(DE LEON, supra at 27).
1. The dec)th of either the bailor or the bailee
extinguishes the contract {CIVIL CODE, Art.
1939, Par. 1).
bailor. EXCEPl!QNS:
(CIVIL a. WhE)n there is a contrary stipulation that the
commodatum is transmitted to the heirs of
either or both parties {CIVIL CODE, Art.
1'306); and
b. If there.are two or more borrowers, the death
•of;ion~•.dOOS not extinguish the contract in
thE:i abs§hce of stipulation to the contrary
(DE LEON, supra at 28).

COMMODATUM V. i. 'J"~; P,ailee can neither lend nor lease the

DEPOSIT/LEASE/USUFRUCT object of the contract to a third person {CIVIL
CODE, Art. 1939(2)).

EXCEPTIONS:
Principal purpose is In DEPOSIT, the principal a. Understanding or agreement to the
the gratuitous and purpose is the contrary; and
temporary use of the safE)keeping of the thing. b. Members of the household may make use of
thing by the borrower. the thing loaned (DE LEON, supra at 28).

Household - the immediate members of the

family or the occupants of the house (R.A. No.
10361, Sec. 4(f))

REASON: They are not considered third

persons (Id. at 28).
Bailee acquires a In USUFRUCT, the
mere use of the thing, usufructuary acquires the EXCEPTiONS TO THE EXCEPTION IN (B):
but acquires no rights right over the fruits. a. If there is a contrary stipulation; and
over the fruits thereof b. If the nature of the thing forbids such use by
in the absence of the members of the bailee's household (Id.
stipulation to that at 28).
effect.

OBLIGATIONS OF THE BAILEE
PRINCIPAL OBLIGATIONS: (TUP-R)
1. Iake care of the thing with diligence of a good
father of a family (CIVIL CODE, Art. 1163);
REASON: The bailee is supposed to return the
identical thing (CIVIL CODE, Art. 1933).
2. !,!se the thing loaned only for the purpose for
which it was loaned and for no other purpose
((;/VII CODE, Arts.1935. 1939, 1940).
Otherwise, he will commit a breach of contract
(DE LEON; supra at 31).
3. fay ordinary expenses for the use and
preservation of the thing and a portion of
extraordinary expenses arising from the actual
use of the thing (CIVIL CODE, Arts.1941, 1943,
1945, 1949, 1950); . . 196?, petitioner had been in adverse possession
REASON: He acquires the use orthe thing, and
is supposed to return the identical thing .( CIVIL
CODE, Art. 1933; OE LEON, silpra:at32).
. 16 yeacs JhaJ \t>ailee had been in adverse
Liability for Extraordin~ry Expenses
If extraordinary expenses arise 9n the.occasion
of the actual use of the 1hih~_bythe bai}ee, even
though he acted with9ut fault, they; shall be
borne equally by bottf th~ bflilor and bailee,
unless there is a stipulation'. to thei contrary
(CIVIL CODE, Art. 1949-, Paf'2);
EXCEPTION: If there is a'stipulafion fordifferent
apportionment (DE LEON, supra at 44).
. .
4. _Beturn and not to retain the iden{icat)hing •
loaned except under certain",, circu(n$taJrces
( CIVIL CODE, Arts. 1933, 1944, 1946; DELEON,
supra at 30) ..
Right of Retention
GENERAL RULE: Bailee has no right to retain
the thing loaned as security on the ground that
the bailer owes him something, even though it
may be by reason of expenses (CIVIL CODE,
Art. 1944).
REASONS:
a. Ownership remains in the bailor; and
b. Only temporary use is given to the bailee
(DE LEON, supra at 36).
EXCEPTION: The bailor who, knowing the flaws
of the thing loaned, does not advise the bailee of
the same, shall be liable to the latter for tl:le
damages which he may suffer by reason thereof
(CIVIL CODE, Art. 1951).
LOAN AND DEPOSIT
Civil Law
The bailee cannot lawfully sell the thing to satisfy
the damages (OE LEON, supra at 37).
Compensation shall not be proper when one of
the debts arises from a depositum or from the
obligations of .a depositary or a bailee in
commodatum (CIVIL CODE, Art. 1287).
The mere failure of the bailee to return the
subject matter of commodatum to the bailor
does not constitute adverse possession on the
part of the bailee who holds the same in trust (Id.
at 36).
Petitioner was in possession of the disputed
property as borrower in commodatum from
private respondents since 1906 but in 1951
petitioner repudiated the trust when it declared
the property for tax purposes under its name.
The Supreme Court held that when it filed its
application for registration of the said property in
oUhe sc1me for at least 10 years. Under Par. 4,
Art. 955.of,the Civil Code, it is clear that the real
·rig hf cif possession of bailer over the property
was lost or ncflonger existing after the lapse of
possessibh,{hereof (Catholic Vicar Apostolic of
t/Je Mt. Province ·v. CA, G.R. No. 80294-95,
March 23, 1990): ·
OTHER OBLIGATlpNS: (LDE)
1. .l.iabjlity for ,boss due to fortuitous event (CIVIL
COOE/Art.,{1'94Z}; .
, ' . ) ·i
· · GENERAL Ruui: He is not liable because
ownership rem<itins with the bailer (DE LEON,
supra at 34). ·
EXCEPTIONS: He is liable for loss even if it
,. ; shoiil<rbe through a fortuitous event in the
' 'folfowing cases (CIVIL CODE, Art. 1942):
(KLAS-D)
a. When he !Seeps it longer than the period
stipulated, or after the accomplishment of
the use for which the commodatum has
been constituted;
REASON: Delay (CIVIL CODE, Arts. 1165,
1169, and 1170).
b. When he ,bends or leases it to third persons
who are not members of his household;
REASON: Commodatum is purely personal
(CIVIL CODE, Art. 1939).
c. When the thing loaned has been delivered
with ~ppraisal of its value unless there is a

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stipulation exempting the bailee from
responsibility in ca~e uf fu1 luitous event.
REASON: The law presumes that the
parties intended that the borrower shall be
liable for the loss of the thing even if it is due
to a fortuitous event for otherwise, they
would not have appraised the thing (OE
LEON, supra at 35).
d. When, being able to ~ave either the thing
borrowed or his own things, he chose to
save the latter.
REASON: The bailee shows his ingratitude
after the thing is gratuitously loaned to him
(OE LEON, supra at 35).
e. When the bailee Qevoted the thing for a
different use from that agreed upon.
REASON: The bailee acted in bad faith
(CIVIL CODE, Art. 1170).
2. Liability for Qeterioration due to the use of the
thing (CIVIL CODE, Art. 1943);
GENERAL RULE: Bailee is not li.able (DE
LEON, supra at 35).
EXCEPTIONS (SNAP): , again~t the person, honor or property of
a. If expressly ~tipulated (Id. at 35);
b. If guilty of Fault or Meglig~nce (CIVIL CODE,
Art. 1170); , _ ·
c. If he devotes the thing to :8.ny pi,Jrpose
different from that for which it has been
loaned (CIVIL CODE, Art. 1942, par, 1); and
d. If he uses the thing beyond the feriod
stipulated (CIVIL CODE, Art. 1942, par. 2).
3. Liability for g,xpenses oth'er than those under
Arts. 1.941 and 1949 of the Civil Code for the
purpose of making use of the thing (e.g. ordinary
expenses for the preservation and expenses for
ostentation) (CIVIL CODE, Art. 1950).
NOTE: In case there are two (2) or more bailees,
their obligation shall be solidary (CIVIL CODE,
Art. 1945). This is an example of a solidary
obligation by operation of law or legal solidarity
where solidarity is imposed by the law (DE
I FON, supra at 38).
REASON: To effectively safeguard the rights of
the bailor (Id. at 37).
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OBLIGATIONS OF THE BAILOR: {RRL)
1. Respect the duration of the Imm (CIVIL CODC,
Art. 1946).
REASON: Bailor is bound by the terms of the
contract of commodatum which is for a certain
time (DE LEON, supra at 39).
GENERAL RULE: He cannot demand return
before expiration of the periocl or
accomplishment of the use (CIVIL CODE, Art.
1946).
EXCEPTIONS:
a. In case of urgent need of the thing, he may
demand "its return" (meaning permanent) or
temporary use (CIVIL CODE, Art. 1946 and
5 PARAS, supra at 897); and
REASON: Commodatum is essentially
gratuitous (DE LEON, supra at 18).
Effect: If for a temporary use, the contract
of commodatum is suspended while the
thing is in the possession of the bailor (CIVIL
GQ!JE., Art. 1946).
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b. If thei6'ailee commits any act of ingratitude
spec\fi~d_in Article 765 of the Civil Code:
i. ·-. B~ile_e should commit some offenses
the bailor, or of his wife or children under
'\:,i-hft>'µ,a'~tftal authority;
if :Baifee lmputes to the bailor any criminal
offense, or any act involving moral
turpitude, even though he should prove
it unless the crime or the act has been
·· c~mmitted against the bailee himself,
his wife or children under his authority;
and
iii. Bailee unduly refuses the bailor support
when the bailee is legally or morally
bound to give support to the bailor
(CIVIL CODE, Art. 1948).
c. In case of precarium, the bailor can always
demand the thing loaned at will. (CIVIL
CODE, Art. 1947)
REASON: A commodatum is essentially
gratuitous (CIVIL CODE, Art. 1933).
There is no need for the existence of an act
of ingratitude (DE LEON, supra. at 43).
NOTE: If the loan is for an illegal or immoral use,
the contract is void, and the lender can
immediately recover the thing, but cannot
recover damages or non-performance of

obligations by the borrower. (5 TOLENTINO,
supra at 448)
2. Refund to the bailee extraordinary expenses
incurred for the preservation of the thing,
provided that the bailee brings the same to the
knowledge of the bailor before incurring them,
except when the reply to the notification cannot
be awaited without danger (CIVIL CODE, Art.
1949, par. 1).
REASON: It is the bailor who profits by said
expenses (DE LEON, supra at 44).
EXCEPTION: If the extraordinary expenses
arise on the occasion of the actual use of the
thing by the bailee, even though he acted
without fault. they shall be borne equally by both
the bailor and the bailee (CIVIL CODE, Art.1949,
Par. 2).
EXCEPTION TO THE EXCEPTION: Stipulation
providing for a different apportionment of
expenses, or those expenses shall be borne by
the bailee or bailor only (DELEON, sµpi-a at 44).
Notice is required because it is possible that the
bailor may not want to incur the extraordinary
expenses. An exceptiori lies where they are so
urgent that the reply to the notification cannot be
awaited without danger.(/d.).
' ' ,.
If the bailee is at fault, he alone should pay.
3. Be _b_iable to the bailee fqr damages for known
hidden flaws (CIVIL CODE, Art. 1951).
Requisites: (FHANS) ...
a. Existence of J:law or defect;
b. The flaw or defect is !:!.idden;
c. The bailor is Aware thereof;
d. Bailor does B_ot advise the bailee of the
same; and
e. The bailee §.uffers damages by reason of
said flaw cir defect (DE LEON, supra at 46).
If the above requisites concur, the bailee has the
right of retention for damages (CIVIL CODE, Art.
1944).
The bailor is made liable for his bad faith (DE
LEON, supra at 46).
If the defect is not known to the bailer, he is not
liable because commodatum is gratuitous (Id.)
No Right of Abandonment
The bailor cannot exempt himself from the
payment of expenses or damages by
LOAN AND DEPOSIT
Civil Law
abandoning the thing to the bailee (CIVIL
CODE, Art. 1952).
REASON: The expenses or damages may
exceed the value of the thing loaned, and it
would, therefore, be unfair to allow the bailor to
just abandon the thing instead of paying for said
expenses and/or damages (DE LEON, supra at
47).
NOTE: The obligations enumerated are necessary
consequences of the contract of commodatum or
arises only in certain specified instances and are not
present in all contracts of commodatum. Hence,
commodatum is a unilateral contract. (DE LEON,
supra at 21)
MUTUUM
(ARTS. 1953-1955)
CONTRACT OF MUTUUM
A bilateral contract whereby one of the parties
delivers to another money or other consumable thing
with the understanding that the same amount, of the
same kind and quality, shall be paid ( CIVIL CODE,
Art. 1933).
It involves the return of the equivalent amount only
and -n.ot the identical thing because the borrower
acquires ownership of the money or other
consµmable thing loaned. This obligation "to pay"
may include the accessory obligation to pay interest
(DE LEON; supra at 48).
Subject Matter: Consumable or fungible goods
FUNGIBLE AND NON-FUNGIBLE:
1. Fungible
- belongs to a common genus which includes
several species of the same kind (e.g. grain,
wine, oil) fld. at 58).
2. Non-fungible
- specifically determined and cannot be
substituted by others (e.g. specific land,
building, particular house).
Whether a thing is consumable or not depends upon
its nature and whether it is fungible or not depends
upon the intention of the parties (Id. at 58-59).
 MEM✓Q~Y AID
San Beda University Coilege of Law - RGCT Bar Operations Center

EFFECT OF THE LOSS OF THE THING NON~PAYMENT OF LOAN V. ESTAFA

LOANED BY MISAPPROPRIATION
The loss of the thing loaned does not extinguish
one's obligation to pay (unless it is stipulated)
because his obligation is not to return the thing
loaned but to pay a generic thing. Genus nunquam
perit (generic thing never perishes) (Id. at 59).

NOTE: If the borrower loses the money or the goods, No ownership. subJect
this does not affect his obligation to repay the property was only held
The borrower acquires
creditor. This is in accordance with the rule of res in trust, or on
ownership over the
peril domino (Id. at 62). commission, or for
thing (CIVIL CODE, Art.
administration
1953)
Illustration: (REVISED PENAL
Borrower X placed his money loaned inside his CODE, Art. 315 (b))
cabinet. The night after, his house, together with the
money, was turned into ashes.

X is not excused to pay the thing loaned because he

is not required to return the bills with the same serial
numbers, but the same amount of the loan.

BANK DEPOSITS
Whether fixed, savings, or current deposits are in the
nature o.f a contract of mutuum. There is a debtor-
creditor relationship between the bank and its
depositor. The bank is the debtor and the depositor
BASIS: A person who receives a loan of money or
is the creditor. The debtor lends the bank money and
any other fungible thing acquires the ownership
the bank agrees to pay the depositor on demand
thereof and is bound to pay the creditor an equal
(Consolidated Bank and Trust Corp .. vs CA, GR. No.
amount of the same kind and quality (CIVIL CODE,
138569, September 11, 2003).
Art. 1953).

CASH ADVANCES ;perscin shall be imprisoned for non-

No
0

NOTE:
A cash advance is in the nature of a simple loan payment of debt (CONST. Art. Ill, Sec. 20).
(mutuum), hence, no fiduciary relationship is
created.Therefore, an employee who av~ilec:I of cah :Ml:JffUUM
AS COMPARED TO OTHER
advances may not be held liable for estafa for failure
CONTRACTS:
to return the same money which he received (Yong
Chan Kim v People GR No. 84719, January 25,
1991) 1. Lease
- a contract where one of the parties binds
NO CRIMINAL LIABILITY FOR FAILURE himself to give to another the enjoyment or use
TO PAY of a thing for a price certain, and for a period
No estafa is committed by a person who refuses to which may be definite or indefinite ( CIVIL CODE,
pay his debt per se as the borrower effectively Art. 1643).
acquires ownership and being the owner, he can
dispose of the thing borrowed and his act-will not be
MUTUUM V. LEASE
considered misappropriation thereof (DE LEON,
supra at 55).

Delivery of money or Delivery of some non-

some consumable thing consumable thing in
with a promise to repay order that the other
an equivalent of the may use it during a
same kind and quality. certain period and
return it to the former.
 LOAN AND DEPOSIT
Civil Law

3. Barter
- a contract whereby one person transfers
ownership of non-fungible things to another with
the obligation on the part of the latter to give
There is a transfer of There is no transfer of things of the same kind, quality and quantity
ownership of the thing ownership of the thing (CIVIL CODE, Att. 1954).
delivered. delivered. Lessor
simply loses his COMMODATUMJMUTUUM V. BARTER
control over the
property during the
period of the contract.

Relationship between Relationship is that of In mutuum, the subject Subject matter is non-
the parties is that of a landlord and tenant. matter is money or fungible, (non-
fungible things. consumable) things.
obligor-obligee.

Creditor receives Landlord receives• In . .,.commodatum, the The thing with

payment for his loan. compensation either in bailee is bound to return equivalent value is
money, provisions, the idehtigal thing given in return for what
chattels, or 'labor borrowed,· . has been received.
(Tole,ntin9 , · <' v.
Gonzales, ,G'.R. No.
290BQ, ,{fugu/,t 12, .
1,°927). Mutuul1)
gratuitoµs -and
(DE LEON, supra at 55-56)',: commodatum '. : is
essenUally gratl!ltous. :.
2. Sale
(bE LE.ON, supra at 64).
- a contract where one bf the contracting,parties
obligates himself to transfer tt)~ ownership and
FO_RMS OF PAYMENT:
to deliver a determinate thing, and the other to
pay therefor a price certain in·. money · or its
t. · lfthe thigg loanE!d is money, payment must be
made ip the currency stipulated, if it is possible
equivalent (CIVIL CODE, Art. 1458). t◊ deJiver such currency; otherwise, that which is
)egal tender in the Philippines.

In. c~~~· ~f extraordinary inflation or deflation,

payment shall be in the value of the currency at
the time of the creation of the obligation (CIVIL
CODE, Arts. 1249, 1250 a.nd 1955, par. 1).

2. If the thing loaned is a fungible other than

money, the borrower is under obligation to pay
the lender another thing of the same kind, quality
Generally unilateral and quantity even if it should change in value.
b I the Bilateral and
ecause on y reciprocal.
borrower has obligations. In case it is impossible to do so, the borrower
(5 PARAS, supra at 885). shall pay its value at the time of the perfection of
the loan (CIVIL CODE, Att. 1955, par. 2).
NOTE: If the property is "sold", but the real intent is
only to give the object as security for a debt - as
when the "price" is comparatively small - there really
is a contract of loan with an "equitable mortgage"
(CIVIL CODE, Art. 1602, par. 6).
 Ui@iii\j\@ \ I
MEt4v~Y AID
San Seda University College of Law - RGCT Sar Op<1rations Center
INTEREST
(ARTS. 1956-1961)
Interest may be paid either as compensation for the
use of the money (monetary interest) or as damages
(compensatory interest). The former is the interest
referred to in Article 1956 of the Civil Code; while the
latter is the interest mentioned in Article 2209 of the
Civil Code (Republic of the PhJJ. v. Unimex Micro-
Electronics GmBH, G.R No_ 166309-10, March 9,
2007).
There are two types of interest - monetary interest
and compensatory interest. Interest as a
compensation fixed by the parties for the use or
forbearance of money is referred to as monetary
interest, while interest that may be imposed by law
or by courts as penalty for damages is referred to as
compensatory interest (Hun Hyung Park v. Eung
Won Choi, GR. No. 220826, March 27, 2019).
The right to interest arises only by virtue of a contract
or by· virtue of damages for delay or failure to pay
principal on which interest is demanded (5 PARAS,
supra at 906; Barretto v. Santa Marina, G.R. No. L-
11908, February 4, 1918).
KINDS OF INTEREST:
1. Simple
- that which is paid for the principal at a
certain rate fixed or stipulated by the parties
2. Compound
- that which is imposed upon interest due
. and unpaid. The accrued interest is added
to the principal sum and the whole (principal
and accrued interest) is treated as a new
principal upon which the interest for the next
period is calculated. (DE LEON, supra at 67)
3. Legal
- that which the law directs to be charged in
the absence of any agreement as to the rate
between the parties (Id. at 68).
REQUISITES FOR DEMANDABILITY OF
INTEREST: (WEL)
1. The agreement must be in Writing (CIVIL
CODE, Art. 1956);
2. Must be .5.xpressly stipulated (CIVIL CODE, Art.
1956);
EXCEPTIONS:
a. Indemnity for damages (CIVIL CODE, Art.
2209); and
-t . . ,.:"' .:':· .". ,; . '" '.·- .:;: ~)
, -._ · "
·,,"),~I~~•~:"':,')'_,.•,.'>;,,' •
67:1. ::-
''-,<ti,.'
b. Interest accruing from unpaid interest (CIVIL
CODE, Art. 2212).
3. Must be bawful (DE LEON, supra at 69).
NOTE: The requirement that the payment of interest
must be expressly stipulated in writing applies only
to monetary interest, not to compensatory interest
(DE LEON, supra at 70). .
If there is an agreement for the payment of monetary
interest but not reduced in writing, there is only a
natural obligation to pay the same (CIVIL CODE, Art.
1960).
STIPULATION OF A PARTICULAR
INTEREST RATE
If a particular rate of interest has been expressly
stipulated by the parties, that interest, not the legal
rate of interest, shall be applied (Casa Filipina
Development Corp v. Deputy Executive Secretary,
G.R. No. 96494, May 28, 1992).
If the interest rate agreed upon by the parties are
fpynd to be,unconscionable, the legal interest rate
prevajhpg afthe time the agreement was entered
into shallbe ~pplied. The legal rate of interest, when
applied as c91')ventional interest, shall always be the
legal rate at the time the agreement was executed
and shall not be 1:,usceptible to shifts in rate (Isla v.
Estorga, p.R)No.:233974, July 2, 2018).
LEGA({:<Wtts~EST ONLy APPLIES IN
THE ABSENCE OF STIPULATED
l_t;ffEREST
_:,;: ~~f/;:~~ ,9ircular No. 799 expressly states that the
-· · legal· ihtefest applies only in the absence of
stipulated interest in loan contracts_
If the rate of interest is stipulated, such stipulated
interest shall apply and not the legal interest,
provided the stipulated interest is not excessive and
unconscionable.The stipulated interest shall be
applied until full payment of the obligation because
that is the law between the parties (Lara's Gift and
Decors, Inc. v. Midtown Industrial Sales, Inc .. G.R.
No. 225433,Augus/28, 2019).
Paragraph 3 in the guidelines laid down in Eastern
Shipping Lines failed to qualify that for loans or
forbearance of money, the prevailing legal interest
should only apply in the absence of stipulated
interest. This omission resulted in several rulings of
this Court, which imposed the stipulated interest on
the adjudged amount until finality of the decision
BUT applied the prevailing legal interest in lieu of the
stipulated interest from finality of the decision until
full payment of the obligation. This· is in direct
contravention of the law, particularly Article 2209 of
 LOAN AND DEPOSIT
Civil Law

the Civil Code, which mandates that when a debtor
incurs a delay in obligations to pay a sum of money,
the indemnity for damages shall be the payment of
the interest agreed upon (Lara's Gift and Decors,
Inc. v. Midtown Industrial Sales, Inc .. G.R. No.
225433, August 28, 2019).
The ruling in Eastern Shipping Lines (G.R. No.
97412, July 12, 1994), has now been modified by
Bangko Sentral ng Pilipinas Monetary Board
Circular No. 799, Series of 2013, which provides
that "the rate of interest for loan or forbearance of
any money, goods or credits and the rate allowed in
judgments, in the absence of an express contract as
to such rate of interest, shall be 6% per annum." Said
circular took effect on July 1, 2013.
THE LEGAL INTEREST RATE IN
ARTICLE 2209 OF THE CIVIL CODE HAS
BEEN AMENDED
On 29 January 19,73, Presidential Decree No. 116
(P.O. No. 116) was issued, which amended the
Usury Law and fixed the legal interest for Joans,
forbearance of money, goods, credits\or judgments
at 6% per annum "or such rate· as may be
prescribed by the Monetary Boarp ,of the Central
Bank of the Philippines." · · ·
PD. No. 116 amended all laws, including Article
2209 of the Civil Code, pre~cribi9g the rat~ of legal
interest to allow the Bangko S'entral ng Pifipinas to
calibrate the legal interest rate tomeet changing
economic conditions and to accelerate the growth of
the national economy. If RD. No. 116,did not amend
Article 2209, then all "obligations conl?isting in the
payment of a sum of money,'.'. which i,s the atl-
encompassing coverage of Article 2209 applying tq
all loans or forbearance of money, g9ods·, cred_its-or:
judgments, would ·still be subject to ·the ffxed 6%
legal interest rate (Lara's Gift and Decors, -Inc. v.
Midtown Industrial Sales, Inc.. GR. No. 225433, ·
August 28, 2019).
To summarize, the guidelines on the imposition of
interest as provided in Eastern Shipping Lines and
Nacar are further modified in the case of Lara's Gift
and Decors, Inc. v. Midtown Industrial Sales,
Inc. (G.R. No. 225433, August 28, 2019) for clarity
and uniformity, as follows:
1. When an obligation, regardless of its source,
(i.e., law, contracts, quasi-contracts, delicts or
quasi-de/icts) is breached, the contravenor can
be held liable for damages and the provisions
under Title XVIII on Damages of the Civil Code
govern in determining the measure of
recoverable damages;
2. With regard to an award of interest in the
concept of actual and compensatory damages,
the rate of interest, as well as the accrual
thereof, is imposed, as follows:
i. When the obligation is breached,
and it consists in the payment of
a sum of money, i.e., a loan or
forbearance of money, goods,
credits or judgments, the interest
due shall be that which is stipulated
by the parties in writing
PROVIDED it is not excessive and
unconscionable, which, IN THE
ABSENCE OF A STIPULATED
RECKONING DATE, shall be
computed from default, i.e., from
extrajudicial or judicial demand in
accordance with Article 1169 of the
Civil Code, UNTIL FULL
PAYMENT, without compounding
any interest UNLESS compounded
interest is expressly stipulated by the
parties, by law or regulation.
ii. In the absence of stipulated
· interest, the rate of interest on the
principal amount shall be the
pr'~v<1iling legal interest
prescribed by the Bangko Sentral
, ng · Pilipinas, which shall be
computed from default (i.e., judicial
or extrajudicial demand) in
a,ccordance with Art. 116 9 of the
Civil Code UNTIL FULL PAYMENT,
withouL compounding any interest
UNLESS compounded interest is
expressly stipulated by law or
regulation.
iii. ~or breached obligations not
·constituting a loan or forbearance
of money, goods, credits or
judgments, an interest on amount
of damages awarded may b'e
. imposed at the discretion of the
court at .. the prevailing legal
interest prescribed by the Bangko
Sentral ng Pilipinas, pursuant to
Articles 2210 and 2011 of the Civil
Code. No interest shall be adjudged
on unliquidated claims or damages,
except when or until the demand can
be established with reasonable
certainty.
i. Where demand is
established with reasonable
certainty, the prevailing
legal interest shall begin to
run from time claim is made
judicially or extrajudicially
UNTIL FULL PAYMENT;
 MWh#Mi \ I
MEM:Q~Y AID
San Beda University College of Law - RGCT Bar Operations Center
ii. When certainty cannot be
reasonably established at
the time demand is made,
interest shall begin to -run
only from date judgment of
the trial court is made (at
which time quantification of
damages may be deemed to
have been reasonably
ascertained) UNTIL FULL
PAYMENT. The actual base
for the computation of the
interest shall, in any case,
be on the principal amount
finally adjudged, without
compounding any interest
unless compounded interest
is expressly stipulated by
law or regulation.
iv. Whether the case falls on
forbearance or non-forbearance of
money, interest due on the principal
amount accruing as of judicial
demand shall SEPARATELY earn
legal interest at the prevailing rate
prescribed by the Bangko Sentral ng
Pilipinas, from the time of judicial
demand UNTIL FULL PAYMENT.
NOTE: The right to recover interest arises only either
by virtue of a contract (monetary inJerest). or as
damages for the delay or failure;to pay the principal
loan on which interest is demanded (compensatory
interest). Recovery of monetary intere$L requires
express stipulation in writing (Odiamar v. Valencia,
GR No. 213582, September 12, 2018).
FORBEARANCE OF MONEY, GOODS
OR CREDIT IS DIFFERENT FROM LOAN
Forbearance of money, goods or credits" refers to
"arrangements other than loan agreements, where a
person acquiesces to the temporary use of his
money, goods or credits pending happening of
certain events or fulfillment of certain conditions
(Crismina Garments, Inc. v. Court of Appeals G.R.
Nu. 128721, March 9, 1999).
Forbearance of goods includes the sale of goods on
installment, requiring periodic payment of money to
the creditor. Forbearance of credits includes the sale
of anything on credit, where the full amount rlI_1R r.;oin
be paid at a date after the sale (Lara's Gift and
Decors, Inc. v. Midtown Industrial Sales, Inc .. G.R.
No. 225433, August 28, 2019).
DIFFERENCE BETWEEN ARTICLE 2209
AND ARTICLE 2210-2211
Article 2209 of the Civil Code is applicable only to
loans or forbearance of money, goods or credit
which arise out of "obligations consisting in the
payment of a sum of money, and the debtor incurs
in delay," and thus where there is a debtor-creditor
relationship. Articles 2210 and 2211 refer to
obligations that do not involve the payment of a sum
of money and there is no debtor-creditor
relationship. Moreover, the payment of interest in
Article 2209 is mandatory, while the payment of
interest in Articles 2210 and 2211 is discretionary on
the court (Lara's Gift and Decors, Inc. v. Midtown
Industrial Sales, Inc .. G.R. No. 225433, August 28,
2019).
AUTHORITY OF THE BSP MONETARY
BOARD ("BSP-MB") TO PRESCRIBE
THE MAXIMUM INTEREST RATES
In Advocates for Truth in Lending, Inc., v. Bangko
Sentral Monetary Board, G.R. No. 192986, January
15. 2013, the Supreme Court affirmed the authority
of the BSP Monetary Board ("BSP-MB") to set
interest rates and to issue and enforce circulars
when it ruled that the BSP-MB may prescribe the
maximum rates of interest for all loans or renewals
therefor or the forbearance of any money, goods or
.crwits, including those for loans of low priority such
~s oonsuJn¢i loans and leans made by pawnshops,
finance compqnies and similar credit institutions.
The BSP-MB /ielso authorized to prescribe different
maximum rat~s'Jor different types of borrowings,
including ,deppsits and deposit substitutes or loans
of financial interrhediaries. This ruling was again
affirm~d' l;1y t(le ,.~ypwme Court in Nacar v. Gallery
Frames,;'(;fRlf:J,t;i·,\1l3tJ871, August 13, 2013.
'"'\',,<',,'":'''",
FACTORS THAT THE MONETARY
::>BO~8D CONSIDERS IN FIXING THE
'MAXtMOM RATES OR RATES OF
INTEREST:
1. The existing economic conditions in the country
and the general requirements of the national
economy~
2. The supply of and demand for credit;
3. The rate of increase in the price levels; and
4. Such other relevant criteria as the Monetary
Board may adopt (P.O. 116, Sec. 6).
In Sps. Anda/ v. Philippine National Bank (G.R. No.
194201, November 27, 2013), the issue is whether
debtors shall be liable for interest on a loan after the
exorbitant stipulated interest th8rnnn ;:inrl the
subsequent foreclosure of property that secured
said loan were nullified in another case that became
final and executory. The Supreme Court ruled that
the fact that the rate of interest was subsequently
declared illegal and unconscionable does not entitle
said debtors to stop payment of interest. Only the
rate of interest was declared void, the stipulation to
pay interest remains. The debtors are considered in

default from the date of finality of the other case and
not during the time they were unable to pay the
stipulated interest as it was exorbitant and hence,
declared void.
. INSTANCES WHEN INTEREST DOES
NOT BEGIN TO RUN
1. During the effectivity of the moratorium law,
which has the effect of suspending the collection
of payment of the principal obligation, which
carries the accessory obligation in the payment
of interest;
2. In case of insolvency of the bank, when the
Bangko Sentral prohibits the bank from doing
business; and
3. Despite defective consignation, from the time of
the offer and tender of payment (5 TOLENTINO,
supra at 452).
INCREASE IN INTEREST RATE
No increase in interest shall be due unless such
increase has also been expressly · stipulatE:9
(Security Bank & Trust Co. v. RTC; Makati, ~.R. No.
113926, October 23, 1996; Spduses , Taring . v.
Ganzon-Olan, G.R. No. 1687Bt Octob'.et
''-\·. . .
1(),
.
2008).
.. ' '
It was held that the unilateral determination and
imposition of increased rates is ;violative of the
principle of mutuality of confracts qrdained' in Article
1308 of the Civil Code (N~w Sampaguita:. v. PNB,
G.R. No. 148753, July 30, 2004). ...
LIABILITY FOR INTEREST 'IN .· THE
ABSENCE OF STIPULATION'
1. Indemnity for Damages.. . .
A debtor in delay is liable to pay legal j11tetest
(DE LEON, supra at 72). . .
',,.,,
The "obligation consisting in the payrrrentof sum
of money" referred to in Art. 2209 of the Givil
Code is not confined to a loan or forbearance of
money but also covers cases involving default in
the payment of price or consideration under a
contract of sale, an action for damages for injury
to persons, and loss of property and an action
for damages arising from unpaid insurance
claims (Castelo v. CA, G.R. No. 96372, May 22,
1995).
Interest as indemnity for damages is payable
only in case of default or non-performance of the
contract. As they are distinct claims, they may
be demanded separately (Sentinel Insurance v.
CA, G.R. No. L-52482, February 23, 1990).
LOAN AND DEPOSIT
· Civil Law
2. Interest Accruing from Unpaid Interest
Interest due shall earn interest from the time it is
judicially demanded although the obligation is
silent upon this point (CIVIL CODE, Art. 2212).
EXCEPTION
Where the court's judgment, which did not
provide for the payment of interest has already
become final, no interest may be awarded (Ruiz
v. Caneba, G.R. No. 84884, December 3, 1990).
RULE ON ACCRUED INTEREST
GENERAL RULE: Accrued interesf (interest
due and unpaid) will not bear interest (CIVIL
CODE, Art. 1959).
EXCEPTIONS:
a. If there is agreement to this effect (CIVIL
CODE, Art. 1959).
Compounding Interest
An express stipulation whereby the interest
due and unpaid shall be added to the
principal obligation and resulting total
amount shall earn interest (DE LEON, supra
at 67).
NOTE: Whatever compound interest is
agreed upon, the effective rate of interest
charged by the creditor shall not exceed
the eq~ivafent of the maximum rate
prescribed by the Monetary Board, or, in
default ; thereof, whenever the debt is
judicially claimed, in which last case it shall
· draw six per c:entum per annum interest or
· such· rate as may be prescribed by the
Monetary _Board (Lara's Gift and Decors,
Inc.: v. Midtown Industrial Sales, Inc.. G.R.
. . '·
No; 225433, August 28, 2019).
. ;
,,.·
' .
· ,b. When judicially demanded under Article
2212 of the Civil Code (DE LEON, supra at
68).
FORMULA IN COMPUTING INTEREST
FOR LOAN OR FORBEARANCE OF
MONEY:
TOTAL AMOUNT DUE = [principal + interest +
interest on interest] - partial payments made
INTEREST= principal x stipulated interest x number
of years from due date UNTIL FULL PAYMENT
INTEREST ON INTEREST = Interest computed as
of the filing of the complaint x legal interest x no. of
years until FULL PAYMENT
NOTE: Interest. due on the principal amount accruing
as of judicial demand shall SE PARATELYearn legal
 6:i@itllD \ /
MEM✓Q~Y AID
San Beoa Urnversrty Conoge pt Law - RGCT Bar Operatior1s Center
interest at the prevailing rate prescribed by the
Bangko Sentral ng Pilipinas, from the time of judicial
demand UNTIL FULL PAYMENT (Lara's Gift and
Decors, Inc. v. Midtown Industrial Sales, Inc., G.R.
No. 225433, August 28, 2019).
The legal interest is now 6% per annum or as may
be fixed by the Monetary Board of the Bangko
Sentral ng Pilipinas.
Illustrations:
Under a written contract of loan, B obliged himself to
pay A the sum of P20,000 at the end of the year.
If no payment of interest was mentioned, then no
interest is due.
If B incurs in delay, he is liable to pay interest at the
legal interest rate prescribed by the BSP from the
date of delay.
Suppose that A and B stipulated in their contract an
interest of 18% a year which is lawful. In this case,
all the requirements to entitle A to recover interest
are present. If B incurs in delay, he is liable to pay
the interest agreed upon as damages and not for the
use of the money.
B incurred in delay for one year. The if!demnity for
damages shall also be the stipulated inte,restof 18%·
so that B shall be liable to pay a totafof_ Pl,200:
P3,600 as compensatory interest for the ijrst year
and another P3,600 as indemnitf for the damages
for the one-year delay. · ·
If the interest was judicially demantjed six months
after B incurred in del,ay, the interesf.due (P3,600 +
P1 ,800 = PS,400) shall earn a legal inferes.t of 6%
or as may be fixed by the Monetary B:oard of the
Bangko Sentral ng Pilipinas from the time of judicial
demand until payment is made.
DISCOUNTING
1. Interest is deducted in advance from the
proceeds of the principal obligation.
Illustrations:
The stipulated rate of interest is 15%. If the
principal amount loaned is P10,000, how much
is the interest?
Answer: P10,000 x 0.15 = P1,!'i00
, 2. Instead of giving P10,000 as proceeds, only
P8,500 vvas given. P1 ,500 \'Vas. deducted in
advance but the amount to be returned is
P10,000. What is the interest rate?
Answer: Divide the amount of interest by the
actual amount received by the borrower.
1,500 / 8,500 = 17.64%
Should the vendee opt to purchase a subdivision
lot via the installment payment system, he is, in
effect, paying interest on the cash price, whether
the fact and rate of such interest payment are
disclosed in the contract or not (Relucio v.
Brillante-Garfin, G.R. No. 76518, July 13, 1990).
RULE ON APPLICATION OF
PAYMENTS:
If the debt produces interest, payment of the
principal shall not be deemed to have been made
until the interests have been covered (CIVIL CODE,
Art. 1953).
While this rule is obligatory upon the debtor; the
creditor may, however, agree on the application of
payment to the principal prior to the payment of
interest.
FINANCE CHARGE
Finance charge includes interest, fees, service
charges, discounts, and such other charges incident
to the extension of credit as the Monetary Board may
·•• prescribe. (R.A. 3765, Section 3(3))
, d:Ks1u1:v. FOR SURCHARGES AND
PENALTl~$.
The essence onationale for the payment of interest
is separate and distinct from that of surcharges and
penalties}DE;LEQN, supra at 79).
A perial~:'~tipl;ll~tldf)•is not necessarily preclusive of
interest, if ·~re<is· an agreement to that effect, the
two (2) being distinct concepts which may separately
pemanded (Ligutan v. CA, G.R. No. 138677,
. '!:lfY..J2.,
,: : ,~.-: /';'
2002).
USURY
Usury may be-defined as contracting for or receiving
something in excess of the amount allowed by law
for the loan or forbearance of money, goods or
chattels (DE LEON, supra at 96),
Elements of Usury (FUIT):
1. Loan or Eorbearance;
2. An .!,!_nderstanding between the parties that the
loan shall or may be returned;
3. An unlawful !ntent to take more than the legal
rate for the use of money or its equivalent; and
4. The Iaking or agreeing to take for the use of the
loan of something in excess of what is allowed
by law (DE LEON, supra at 96-97).
The nature of usury law is both remedial and penal
under Philippine jurisdiction (DE LEON, supra at 98),
Contracts and stipulations, under any cloak or
device whatever, intended to circumvent the laws

against usury shall be void. The borrower may
recover in accordance with the iaws on usury (CIVIL
CODE, Art. 1957).
Pursuant to Central Bank Circular No. 905,
adopted on December 22, 1982, the Supreme Court
declared that the Usury Law is now "legally
inexistent". The interest chargeable depends upon
the agreement between the lender and the borrower
(Liam Law v. Olympic Sawmill Co., G.R. No. L-
30771, May 28, 1984).
However, C.B. Circular 905 did not repeal nor in
anyway amend the Usury Law but simply suspended
the latter's effectivity (Security Bank and Trust
Company v. RTC of Makati, GR. No. 113926,
October 23, 1996).
VALIDITY OF UNCONSCIONABLE
INTEREST RA TE IN A LOAN
GENERAL RULE: Interest stipulated by the
contracting parties is valid.
EXCEPTION: If the interest is iniquitous and
unconscionable (DE LEON, supra at 102). · July 9, 1996; Equitable PC/ Bank v. Ng Sheung
The Supreme Court said that nothing ln said circular
suspending the Usury Law grants I.enders; authority
to raise interest rates to levels which will either
enslave their borrowers or lead to a hemorrhaging of
their assets (Sps. Almeda v. CA, G.R. No. ·113412,
April 17, 1996).
In Medel v. CA (G.R. No. 131622, Novembet27,
1998), it was ruled that while a stipulated interest of
5.5% per month on a loan is not usurious pursuant
to C.B. Circular 905, the same must be equitably
reduced for being iniquitous, unconscionable and
exorbitant. It is contrary to morals (contra bonos
mores). It was reduced to 12% per annum in
consonance with justice and fair play.
When the agre~d rate is iniquitous and
unconscionable, the courts may reduce the same as
reason and equity demand (Imperial v. Jaucian, G.R.
No. 149004, April 14, 2004).
RECOVERY OF UNSTIPULATED
INTEREST
If paid by mistake, the debtor may recover as in the
case of solutio indebiti or undue payment (CIVIL
CODE, Art. 1960).
NOTE: If voluntarily paid, there would be no
recovery as in the case of natural obligations (CIVIL
CODE, Art. 1423}.
LOAN AND DEPOSIT
Civil Law
ESCALATION CLAUSE MUST HAVE DE-
ESCALATION CLAUSE
Escalation clauses refer to stipulations allowing an
increase in the interest rate agreed upon by the
contracting parties (Juico v. China Banking Corp.,
G.R. No. 187678, April 10, 2013).
De-escalation clause is a stipulation that the rate of
interest agreed upon shall be reduced in the event
that the maximum rate of interest is reduced by law
or by the Monetary Board (PNB v. /AC, G.R. No.
75223, March 14, 1990; Villa Crista Monte Realty &
Development Corp. v. Equitable PC/ Bank, G.R. No.
208336, November 21, 2018).
The presence of escalation clause without the
corresponding de-escalation clause in the event of a
reduction of interest as ordered by law makes the
clause one-sided as to make it unreasonable. Any
incregise in the interest rate pursuant to an
escalation ,clause must be the result of an agreement
between the. two parties. Increases unilaterally
imposed by a bank are in violation of the principle of
mutuality of contracts (PNB v. CA, G.R. No. 109563,
Ngor, GR. No; 171545, December 19, 2007).
It.becomes inescapable for the Court to uphold the
validity and enforceability of the escalation clause
involved herein' despit~ the absence of the de-
escalation clause .. Tne actual grant by the
respondent .of the d.ecreases in the interest rates
imposed on tl')e ioaris extended to the petitioner
re.ndered inexjstent th~ evil of inequality sought to be
thwarted by,· the enactment and application of
Presidential Decree No. 1684. We do not see here a
situation· in which the petitioner did not stand on
~quality with the lender bank (Villa Crista Monte
Re9 /ty & D~veiopment Corp. v. Equitable PC/ Bank,
G.R. Nq, 208336, November 21, 2018).
DEPOSIT
(ARTS.1962- 2009)
CONTRACT OF DEPOSIT
A contract constituted from the moment a person
receives a thing belonging to another, with the
obligation of safely keeping it and of returning the
same (CIVIL CODE, Art. 1962).
PRINCIPAL PURPOSE: Safekeeping the thing and
returning the same (CIVIL CODE, Art. 1962).
 &iiiciiJO \ I

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If "safekeeping" is not the principal purpose it may DEPOSIT AS COMPARED TO OTHER

be: CONTRACTS
1. Commodatum;
2. Lease;or
3. Agency (DE LEON, supra at 152).
DEPOSIT V. MUTUUM

Illustration: In the case of valet parking the contract

entered into ts one ot deposit; while m an ordinary
c;::ir p;::irkin!) thP. r.ontrnct P.ntereri into ir. onP. of le;::ir.P.
of things (RABUYA, Pre-Dar Reviewer in Civil Law
(2021), p.524).

CHARACTERISTICS: (RUN-PIG)
1. ,Beal contract Movable/corporeal Money or fungible
- perfected by the delivery of the subject matter things only in case of things.
(CIVIL CODE, Art. 1316). extrajudicial deposit.

An agreement to constitute a deposit is binding, Any property in case of

but the deposit itself is not perfected until the judicial deposit.
delivery of the thing (CIVIL CODE, Art. 1963).

Where there has been no delivery, there is

Depositor and Creditor and borrower
merely an agreement to deposit, which however
depositary (DE LEON, (DE LEON, supra at
is binding and enforceable on the parties, Such
supra at 150). 52).
agreement is consensual (DE LEON, supra at
154).

2. _!:!nilateral Generally i gratuitous, May be gratuitous, or

- when deposit is gratuitous, because only the except by mutual with a stipulation to pay
depositary has an obligation (DE LEON, supra agreement or interest (CIVIL CODE,
at 147). depositary is e~gaged Art. 1933, Par. 3).
in storing gooq 9 (CIVIL
NOTE: It becomes bilateral if compensation is CODE; ~t/i'J~$5f •·
paid because it gives rise to obligations on the
part of both the depositary and depositor (Id. at
147).
'.E)fil?()sitor can demand The lender must wait
3. Nominate the feforti of the subject until the expiration of
:- it has been given a specific name by the Civil matter at will. the period granted to
Code (Id.). the debtor.
(DE LEON, supra at 151-153).
4. frincipal
- its existence is not dependent on another DEPOSIT V. COMMODA TUM
contract (Id.).

5. !nformal
- no particular form is required for the contract
(Id.).

6. Gratuitous
- the bailee does not pay the bailor for the use
of the thing (Id.). The depositary must, as The borrower can use the
a rule, return the thing thing for the period
deposited upon demand stipulated; and can be
(Id. at 166). required to return only iri
case of urgent need or
when the bailee has
committed any of the acts
 '-r, ~ ,, '
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freedom in choosing the depositary (DE

Movable / corporeal Both
things only in case of immovable may be the
extrajudicial deposit. object.
Any property in case of
judicial deposit.
LEON, supra at 158).
b. Necessary - made:
i. In .compliance with a legal obligation;
ii. On occasion of any calamity;
iii. By travelers in hotels and inns; or
iv. By travelers with common carriers (Id. at
movable and 205).
NOTE: There is a lack of free choice in the
depositor (Id. at 158).
JUDICIAL
V. EXTRA--JUDICIAL DEPOSIT

(DE LEON, supra at 151-152). Insure.~ the1 rfgl;lt of a Custody and

party to propertys or to safekeeping of the
recover .in case of thing deposited.
favorable judgment. .

May cover mov.able' ks Movables only (CIVIL

well ; as immovable CODE, Art.1966)
·propMy .·. (De !,.EON,
suprc]'.at. 158)., · Reason: Object is
,, • C

safekeeping.
00

. The
'Reascin: Th~ purpose of possibility that the
theoeposit is to protect thing may disappear or
· the rights of parties to a may be lost or stolen is
-sui{., not present in real
property.

Generally gratuitous
(5 PARAS, supra at 924).

KINDS OF DEPOSIT: (CIVIL CODE,

ART.1964)
1. Judicial or Sequestration
- takes place when an attachment or seizure of
property in litigation is ordered (CIVIL CODE,
Arts. 2005-2008)

2. Extra-judicial (Id. at 218).

a. Voluntary - delivery is made by the will of
the depositor or by two or more persons
each of whom believes himself entitled to
the thing deposited (CIVIL CODE, Arts.
1968 to 1995).. The depositor has complete
 &f&i#D \ I
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CAUSE OR CONSIDERATION
GENERAL-RULE: A deposit is a gratuitous contract
(CIVIL CODE, Art.1965).
EXCEPTIONS: (SES)
1. When there is a §_tipulation;
2. Depositary is !;ngaged in business of storing
goods; and
3. Property is §_aved from destruction without
knowledge of the owner (CIVIL CODE, Art.
2169).
FORM OF DEPOS_IT
A contract of deposit may be made orally or in writing
(CIVIL CODE, Art. 1969).
REASON: No written form is required because the
contract is real, and thus, the delivery itself
constitutes performance which will evidence the
perfection of the contract (DE LEON, supra at 161).
NEED NOT BE THE OWNER
The depositor need not be the owner of the thing
deposited because the purpose of the contract is
safekeeping and not transfer of ownership. The
depositary cannot demand that the depositor prove
his ownership of the thing deposited (CJVIL CODE,
Art. 1984, Par. 1). The depositary is estcfpped (CIVIL
CODE, Art. 1436).
. DEPOSIT BY TWO OR MORE PERSONS
In case two or more persons each believe -that he is
entitled to a thing deposited with a third p~tson, th~_
depositary shall deliver it to the person to Whom it
belongs (CIVIL CODE, Art. 1968). The remedtofthe
depositary is to file an action for ihterpleader
(RULES OF COURT, Rule 62, Sec. 1).
WHEN DEPOSITARY DISCOVERED
THING WAS STOLEN
Should the depositary discover that the thing
deposited has been stolen and who its true owner is,
the depositary is required to advise the latter of the
deposit
If the owner, in spite of such information, does not
claim it within ONE MONTH, the depositary shall be
relieved of all responsibility by returning the thing
deposited to the depositor (CIVIL CODE, Art. 1984,
pars. 2 and 3).
EFFECTS OF THE INCAPACITY OF THE -
DEPOSITARY OR DEPOSITOR:
1. If the depositary is capacitated, he is subject
to all the obligations of a depositary whether the
depositor is capacitated or not (CIVIL CODE,
Art. 1970).
NOTE: Under the law, "persons who are
capable cannot allege the incapacity of those
with whom they contracted" (CIVIL CODE, Art.
1397).
2. If the depositary is incapacitated, he does not
incur the obligation of a depositary. However, he
is liable to:
a. Return the thing deposited while still in his
possession; or
b. Pay the depositor the amount by which he
may have benefited himself with the thing or
its price subject to the right of any third
person who acquired the thing in good faith,
in which case the depositor may only bring
an action against him for its recovery (CIVIL
CODE, Art. 1971 ).
NOTE: A third person is considered to have acted in
bad faith if he has actual knowledge of the incapacity
of the depositary and if he has knowledge that the
thing is subject to the contract of deposit.
OBLIGATlONS OF A DEPOSITARY
1. TO KEl;P THE THING SAFELY (CIVIL
,:,,;tggq1;,'.'4ft-
1972).
He is liable ithe loss occurs through his fault or
negligence _;(CIVIL CODE, Art. 2207), even if the
thing is irn;,ured (CIVIL CODE, Art. 1170).
, REASON: The loss of the thing while in his
' ' posses~l~rrpr<;fipa'dly'faises the presumption of fault
on his part (CIVIL CODE, Art. 1265).
>, Degree of Care
.. ·'1rl~~ <,00\cact does not state the diligence which is
tb''b~ 'Bbser'ved in the performance, that of a good
father of a family shall be required (CIVIL CODE, Art.
1972, 1173, Par 2.)
REASON:
1. It is an essential requisite of the judicial relation
which involves the depositor's confidence in
good faith and trustworthiness.
2. Presumption that the depositor, in choosing the
depositary, took into account the diligence which
· the depositary is accustomed with respect to his
own property (DE LEON, supra at 165).
EXCEPTIONS (VCB):
The required degree of care is extraordinary
diligence when:
1. it is the depositary who ;{oluntarily offered to
keep the thing;
2. The deposit is _Qompensated; or
3. The deposit produces §_enefit to the depositary
(5 TOLENTINO, supra at 460).
 ,,, 1::<' °;'. , _,,. , 1 , , L"rl
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LOAN AND DEPOSIT
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2. TO RETURN THE THING (CIVIL CODE, Art. suffers inconvenience as a consequence (CIVIL
1972). CODE, Art, 1989).

Person to Whom the Thing Must Be Returned: NOTE: In cases under (1) and (2), the depositary
1. Depositor, his heirs and successors, or the must immediately inform the depositor of the
person who may have been designated in the attachment and opposition (CIVIL CODE, Art.
contract (CIVIL CODE, Art. 1972); 1988, par. 2).

1. Guardian or administrator of the person who What to Return:

made the deposit if the latter is incapacitated at 1. The thing deposited with all its products,
the time of deposiror the latter himself should he accessories, and accessions (CIVIL CODE, Art.
acquire capacity (CIVIL CODE, Art. 1970); 1983, par. 1);
2. If by force majeure or government order, the
2. Legal representative of the depositor should the depositary loses the thing, and receives money
latter subsequently lose his capacity during the or another thing in its place, he shall deliver the
. deposit (CIVIL CODE, Art. 1986). sum or other thing to the depositor (CIVIL
CODE, Art. 1990) . .
When to Return
GENERAL RULE: Upon demand even though a Where to Return:
specified period of time for such return may haye 1, If there is a stipulation, at the place agreed upon
been fixed (CIVIL CODE, Art.1988). . by the parties but the depositor bears the
REASON: The period is for the benefit of the . expenses for transportation.
depositor, but it may be validly waived by him ·4. If there is no stipulation, at the place where the
(5 PARAS, supra at 951). thing dep_osited might be even if it should not be
the same•-place where the deposit was made
EXCEPTIONS: w
provided there 9 s no malice on the part of the
1. It cannot be returned upon demand when the depositary (CIVILCODE, Art. 1987)-
thing is judicially attached ·while; in the
depositary's possession (OJVIL CODE,, Art. 3. NOT TO DEPOSIT THE THING WITH A
1988, par. 2); · THIRD PERSON: UNLESS AUTHORIZED
BY l:XPR~SS S_TIPULA TION (CIVIL CODE,
REASON: The property will kubjecfto,judicial be Art. 1973). .
orders (5 PARAS, supra. at 952). · · ••· ·· · ··
REASON: Deposit ,fo founded on trust and
2. The deposit cannot be r~tu~ned upondetnar\d if confidence (DE LEO/II, supra at 171)-
the depositary has been nofified of the
opposition of a third persop to the .return pr The, dep6sitary is' liable for the loss under the
removal of the thing deposited (Cl\l,IC CQDE, following i0$tances: ,
Art. 1988, par. 2); · · 1. He transfers the deposit with a third person
. with.9JJt. authority, although there is no
REASON: The oppositor may claim fo be the negligence on his part and the third person;
owner (5 PARAS, supra at 952). 2. He deposits the thing with a third person who is
manifestly careless or unfit, although authorized,
NOTE: In this case of conflicting claims, the even in the absence of negligence; and
depositary is authorized to consign the thing in 3. The thing is lost through the negligence of his
court through an action of interpleader under employees whether the latter are manifestly
Rule 62 of the Rules of Court (DE LEON, supra careless or not (CIVIL CODE, Art. 1973).
at 199)
Exemption from Liability: The depositary is not
If the deposit is gratuitous, the depositary may responsible in case the thing is lost without
return the thing deposited notwithstanding that a negligence of the third person with whom he was
period has been fixed for the deposit if justifiable allowed to deposit the thing if such third person is not
reasons exist for its return. If the depositor "manifestly careless or unfit" (DE LEON, supra at
refuses to receive it, the depositary may secure 172).
its consignation from the court (CIVIL CODE, Art.
1989). NOTE: The depositary is responsible for the toss
through the fault of his employees under the
If the deposit is for a valuable consideration, principle of respondeat superior (Id.).
period must be followed even if the depositary
 @i@M# \ I

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NOTE: If the depositary urgently needs to deposit If commingling is allowed, each depositor shall be
the thing and there is no more time to obtain entitled to each portion of the entire mass as the
consent, the depositary should be able to transfer amount deposited by him bears to the whole.
the deposit and should generally not be liable for the
transfer of the deposit (unless the third person is If the articles deposited, belonging to different
manifestly careless or unfit) (DE LEON, supra at depositors. are not of the same kind and quality, it is
172). the duty of the depositary to keep them separate or
at least identifiable (DE LEON, supra at 181).
4. TO CHANGE THE WAY OF THE DEPOSIT
IF UNDER THE CIRCUMSTANCES, THE 7. NOT TO MAKE USE OF THE THING
DEPOSITARY MAY REASONABLY DEPOSITED UNLESS AUTHORIZED
PRESUME THAT THE DEPOSITOR (CIVIL CODE, Art. 1977).
WOULD CONSENT TO THE CHANGE IF GENERAL RULE: Deposit is not for the use but for
HE KNEW OF THE FACTS OF THE the safekeeping of the subject matter. Unauthorized
use by the depositary would make him liable for
SITUATION, PROVIDED, THAT THE
damages (DE LEON, supra at 180).
FORMER NOTIFIES THE DEPOSITOR
THEREOF. AND WAIT FOR HIS EXCEPTIONS:
DECISION, UNLESS DELAY WOULD 1. Even without the express permission of the
CAUSE DANGER (CIVIL CODE, Art. 1974). depositor when the preservation of the thing
deposited requires its use; or
5. IF THE THING DEPOSITED SHOULD
EARN INTEREST: NOTE: It must be used only for that purpose.
a. TO COLLECT INTEREST AND THE
CAPITAL ITSELF AS THEY, FALL -_ 2. When expressly permitted by the depositor
DUE;AND t :JftIY't?~DE, Art.
1977).
b. TO TAKE STEPS TO PRESERVE ITS
The permiss)oh to use is not presumed except when
VALUE AND RIGHTS WITH,REGARD · such use i!l ~ecessary for the preservation of the
TO IT (CIVIL CODE, Art. 1975). • thing depositEkl &nd the burden is on the depositary
to prove Ahat permission has been given ( CIVIL
If a promissory note has been (lishonored by non-•· CODE, A,rt. 1~78).
p 9yment, the depositary must giyE;l notice of di_shonor
<:,~t·1_\;·:./t)L1_Jf,.' ,~i~d
to the indorsers so that the latter will •not be Effect if'l>'ijntij91lion to Use is Given:
discharged from liability (DE LEON, st1praat174). :;t 1. If the thing deposited is non-consumable:

Rule on Safety deposit Boxes

A contract for the rent of safety deposit bdxes is a
.!t.·,i\?lne
,,?.',,,::r~&~Hffes that of a commodatum.
special kind of deposit. It is not to. be stri¢tly
governed by the provisions on deposit. It cannotalso
be characterized as an ordinary contract 6f lease
because full and absolute control of the safety
deposit boxes was not given to the joint renters. The
relation between the bank and its custom·er is that of
a bailor and bailee, the bailment being for hire and
mutual benefit (CA Agro Industrial Development
Corp v. CA, G.R. No. 90027, March 3, 1993).
6. NOT TO COMMINGLE THINGS OF THE
SAME KIND AND QUALITY DEPOSITED
IF SO STIPULATED (CIVIL. CODE, Art.
1076).
EXCEPTION: Depositary can only commingle if the
articles are:
1. Of the same kind and quality; and
2. There is no contrary stipulation.
contract loses the character of a deposit and
EXCEPTION: If safekeeping is still the principal
purpose of the contract.
2. If the thing deposited is money or other
consumables:
The permission to use it will result in its
consumption and converts the contract into a
simple loan or mutuum (DE LEON, supra at 181-
182).
Prescription of Demand to Return
Things received on deposit do not prescribe, for the
depositary cannot claim that ownership of the thing
deposited was transferred to him, but simply the
custody thereof. The possession of the depositary
is not adverse to that of the depositor (Delgado v.
Bonnevie, G.R. No. 7097, October 23, 1912).
 LOAN AND DEPOSIT
Civil Law

8. TO BE LIABLE FOR LOSS THROUGH interest as indemnity. The depositary owes interest
FORTUITOUS EVENT: (SUDA) on the sums he has applied to his own use from the
1. If §tipulated; day on which he did so, and those which he still owes
2. If he !!_ses the thing without the depositor's after the extinguishment of the deposit (Id. at 192).
permission;
3. If he Qelays its return; and NOTE: Fixed, savings, and current deposits of
4. If he ~!lows others· to use it, even though he money in banks and similar institutions shall be
himself may have been authorized to use the governed by the provisions concerning simple loan
same (CIVIL CODE, Art. 1979). (CIVIL CODE, Art. 1980).

9. LIABILITY WHEN THE THING Bank deposits, which are in the nature of a simple
DEPOSITED IS DELIVERED CLOSED loan or mutuum, must be paid upon demand by the
depositor (Philippine National Bank v. Bacani G.R.
AND SEALED: (RPS)
No. 194983, June 20, 2018).
1. To ,Return the thing deposited in the same
condition;
Irregular Deposit - if safekeeping is still the
2. To eay for damages should the seal or lock be
principal purpose of the contract although there is a
broken through his fault, which is presumed
permission to use the consumable thing (5 PARAS,
unless proven otherwise; and
supra at 937).
3. To keep the ~ecret of the deposit when the seal
or lock is broken with or without his fault ((;/VIL·
CODE, Art. 1981). . . Ba~k deposits are in the nature of irregular deposits.
1:h~se:;i>are really loans because they earn interest.
.They are governed by the law on loans (Bank of the
REASON: Without the rule, •. irresponsible
Philippine lsl9nds v. CA, G.R. No. 104612, May 10,
depositaries may violate their trusts w,ith' impunity
1994). ·
(DE LEON, supra at 193). .
While the bl:\_nk has . the obligation to return the
The depositary is authorized to open the thing
amount depos~~, it has. however, no obligation to
deposited, which is closed and sealed, w~en there
return ordeliverthe same money that was deposited
is:
(Guingona, Jr. v. City Fiscal of Manila, G.R. No. L-
1. Presumed authority, such as if the key has been
60033, April 4, 1984).
delivered to him; or
2. Necessity to do so as when the instructions of
The relc1tiorr between aidepositor and a bank is that
the depositor as regards the deposit cannot be
of _'.3 }:reditor and a debtor. The depositor (creditor)
executed without opening the box or receptacle
lends the ban.I< (debtqr) money and the bank agrees
(CIVIL CODE, Art. 1982).
to pay the depositor on demand (Central Bank of the
Philippines v. Citytrust Banking Corp., G.R. No.
10. OBLIGATION TO RETURN PROOUCTS,,
141835: Fe.br,ua,y 4, 2009).
ACCESSORIES, AND ACCESSIONS
(CIVIL CODE, Art 1983). Abar:il<. ca,n compensate or set off the deposit in its
ha~ds for the payment of any indebtedness to it on
REASON: The depositor is the owner or at least the part of the depositor (Equitable PC/ Bank v. Ng
represents the owner of the thing deposited. The Sheung Ngor, G.R. No. 171545, December 19,
products, accessions and accessories are 2007). In true deposit, such compensation or set-off
consequences of ownership (DE LEON, supra at is not allowed (CIVIL CODE, Art. 1287).
193).
IRREGULAR DEPOSIT V. MUTUUM
11. TO PAY INTEREST ON SUMS
CONVERTEDTOPERSONALUSEFROM
THE DAY OF CONVERSION IF THE
DEPOSIT CONSISTS OF MONEY (CIVIL
CODE, Art. 1983 and 1896). The consumable thing The lender cannot
deposited may be demand restitution until
REASON: If what has been deposited is money, the demanded at will by the the time for payment,
depositary has no right to make use of it. Therefore, depositor. as provided in the
he is not liable to pay interest (DE LEON, supra at contract, has arisen.
194).

However, if the depositary be in delay or has used

the money without permission, he shall be liable for
 UWMP \ /

MEM:~\-RV Al D
San Beda Unr,orsity College of Law - RGCT Bar Operations Cent61

which accrues to the transaction is the

depositor. necessity of the
borrower.

be made to him
The irregular depositor Common creditors (CIVIL CODE,
hr1s a preference over enjoy no preference in Art. 1214)
other creditors with the distribution of the
respAr:t to the thing debtor's property. Indivisible Solidary/not The same rule
deposited. solidary when the
obligation is
(DE LEON, supra at 183-184).
solidary,
regardless of
12. TO ADVISE. THE TRUE OWNER THAT A divisibility.
DEPOSIT HAS BEEN MADE SHOULD HE
DISCOVER THAT THE THING (CIVIL CODE, Art. 1985).
DEPOSITED WAS STOLEN FROM THE
NOTE: If there is a stipulation that the thing should
OWNER (CIVIL CODE, Art. 1984).
be returned to·one of the depositors, the depositary
shall return it only to the person designated (CIVIL
However, as a general rule, the depositary cannot
CODE, Art. 1985, par. 2).
demand that the depositor prove his ownership of
the thing deposited (CIVIL CODE, Art. 1984, par. 1).
DEPOSITARY'S RIGHT OF RETENTION
NOTE: If the owner, despite such information, does · The depositary may retain the thing in pledge until
not claim it within the period of one (1) month, the ,Nlt:payme11;t,of what may be due him by reason of
depositary shall be relieved from all responsibility by· the depo$it<(tlVIL CODE, Art. 1994). This ·article
returning the same to the depositor (CIVIL CODE, gives an exarople of pledge created by operation of
Art. 1984, par. 3). law (DE LEQ/11,'·supra at 204).

If the depositary has reasonable grounds to believe RULE . WtfEN AN HEIR OF THE
that the thing has not been lawft.Jlly acquired by the DEPOSITOR SOLD . THE THING
depositor, the former may return the same (CIVIL DEPClSIJE;Dc,c: ·•··
-. ,,,,..· ,. ,,.~•,i,'',~•:·,,·.·
CODE, Art. 1984, par. 4).
The deposftor'sti'tilr who in good faith may have sold
the thing which he did not know was deposited, shall
RULE WHEN THERE ARETWO OR qnly be bound to return the price he may have
MORE DEPOSITORS ,ci~~1'.l,~c.<?[to assign his right of .action against the
. buyer in case the price has not been paid to him
(CIVIL CODE, Art. 1991).

REASON: Equity

Divisible Not solidary Each one can If the heir ac.ts in bad faith, he is liable for damages.
(Joint) demand only his The sale or appropriation of the thing deposited
share. . constitutes estafa (DE LEON, supra a(201).

Regardless Solidary The depositary NOTE: Art. 1991 meant 'depositary's heir, as shown
of divisibility/ can return the in Article 1178 of the old Civil Code (5 TOLENTINO,
Indivisibility thing to any of supra at 468).
the depositors.
OBLIGATIONS OF THE DEPOSITOR
EXCEPT: When
there has been a 1. TO PAY EXPENSES FOR
demand judicial PRESERVATION IF THE DEPOSIT IS
or extrajudicial, GRATUiTOUS (CIVIL CODE, Alt. 1992)
for its return has (contemplates ordinary and extraordinary
been made by necessary expenses).
one of them,
payment should The law refers to necessary expenses. Useful
· expenses or those for pure luxury or. mere

pleasure are not covered (OE LEON, supra at
203).
NOTE: If the deposit is for a valuable
consideration, expenses for preservation are
borne by the depositary because they are
deemed included in the compensation, unless
there is a contrary stipulation (Id. at 202) . .
2. TO PAY FOR LOSSES INCURRED BY
THE DEPOSITARY DUE TO THE
CHARACTER OF THE THING
DEPOSITED (CIVIL CODE, Art. 1993).
GENERAL RULE: The depositor shall
reimburse the depositary for any loss arising
from the character of the thing deposited (DE
LEON, supra at 204).
EXCEPTIONS: (AENA)
a. At the time of the deposit, the depositor was
not 8_ware of the dangerous character of the
thing;
b. Depositor was not gxpected to know the
dangerous character of the thing;
c. Depositor Notified the -depositary of the
same; a·nd _· · .
d. The depositary was 8_ware of it IIVithout
advice from the depositor (CIVIL CODE,
Art.1993)..
EXTINGUISHMENT OF VOLUNTARY
DEPOSIT
The causes are similar to that of the extinguishment
of obligations in .Art. 1231 of the Civil Code:
(PR-RAP-MNLF)
1. fayment or Performance;
2. Remission or Condonation;
3. Rescission;
4. 8.nnulment;
5. frescription;
6. Merger or Confusion;
7. N_ovation;
8. b_oss of the thing due; and
9. .E ulfillment of a resolutory condition.
NOTE: Compensation as a mode of extinguishment
of obligations is not applicable to deposit (DE LEON,
supra at 206). Compensation is not proper when one
of the debts arises from a deposit or from the
obligations of a depositary or of a bailee in
commodatum {CIVIL CODE, Art. 1287).
A DEPOSIT IS ALSO EXTINGUISHED:
(LDRC)
1. Upon the b_oss or destruction of the thing
deposited;
LOAN AND DEPOSIT
Civil Law
2. In case of Gratuitous deposit, upon the Qeath of
either the depositor or the depositary (CIVIL
CODE, Art. 1995); .
REASON: Gratuitous deposits are personal in
nature (DE LEON, supra at 206).
Deposit for Compensation
A deposit for compensation is not extinguished
by the death of either party unless the deposit is
terminated by the heirs of the depositor. This is
different from the rule in gratuitous deposits
which are personal in nature (5 PARAS, supra
at 957).
3. By the Return of the thing by the depositary
(CIVIL CODE, Art, 1989);
4. By the fonversion of a deposit into another
contract if the depositor allows the depositary to
use t_he thing (CIVIL CODE, Art. 1978).
NOTE: The causes mentfoned in Article 1995 are
NOT exclusive (DE LEON, supra at 205).
NECESSARY'DEPOSIT
A deposit is necessary when:
1. M.ade in c;ompliance with a legal obligation
(CIVIL CODE, Art, 1996 par. 1).
Exc1mples: •· < :
<1.; JudiciaLdeposifof a thing the possession of
which is being disputed in a litigation by two
or more persons (CIVIL CODE, Art. 538);
a
a.· beposit with bank or public institution of
public bonds or instruments of credit
.payable to brder or bearer given in usufruct
when t~e usufructuary does hot give proper.
· •·'ij~c4rity for their conservation (CIVIL CODE,
. !).rt: 586);
· b. · Deposit of a thing pledged when the creditor
uses the same without the authority of the
owner or misuses it in any other way (CIVIL
CODE, Art. 2104);
c. Deposits required in suits as provided in the
Rules of Court; and
d. Deposits constituted to guarantee contracts
with the government. The deposit arises
from an obligation of public or administrative
eharacter (DE LEON, supra at 208);
NOTE: A deposit made in compliance with law is
governed by the provisions of such law and, in
default thereof, by the _rules on voluntary deposit
(CIVIL CODE, Art. 1997, par. 1).
2. Made on the occasion of any calamity such as
fire, storm, flood, pillage, shipwreck or other
similar event (CiVIL CODE, Art. 1996 par. 2).
This is referred to as involuntary bailment or
 ew@@·W ' 1
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involuntary deposit. Another name is deposito
miserable (DE LEON, supra at 207-208).
NOTE: There must be a causal relation between
the calamity and the constitution of the deposit
(Id. at 207).
The deposit made on any of the said calamities
shall be regulated by the provisions concerning
voluntary deposit and by Article 2168, i.e., when
during a calamity, property is saved from
destruction by another person without the
knowledge of the owner, the latter is bound to
pay the former just compensation (CIVIL CODE,
Art. 1997, Par. 2).
OTHER KINDS OF NECESSARY
DEPOSITS:
1. Deposits Made with Common Carriers:
2. Deposit by Travelers in Hotels and Inns:
The keepers of hotels or inns shall be
responsible as depositaries for the deposit of
effects made by travelers.
· Elements: (No-Pre)
a. Notice was given to thi:,m or to their
employees of the effects brought by the
guests; and
b. Guests take the Precaution$ which said
hotel-keepers or their substitutes advised by
their relative to the caxe and vigilance of
their effects (CIVIL CODE, Art. 1998).
This also applies to the passenger's baggage
which is in his personal custody (CIVIL CODE,
Art. 1754).
"Travellers" and "guests" refer to transient~ who
enter hotels or inns seeking lodging, and hot to
boarders in dormitories and lodging houses who
select their boarders usually for a contracted
period (DE LEON, supra at 211).
Extent of liability
Not limited to baggage or articles ordinarily used
by travelers. It also extends to vehicles, animals
and articles which have been introduced or
placed in the annexes of the hotel (CIVIL CODE,
Art. 1999).
A Hotel-keeper is liable in the following
instances:
When the loss oi injury is caused:
a. By his servants or employees as well as by
strangers provided that the notice has been
given and proper precautions taken; and
b. By the act of a thief or robber done without
the use of arms and irresistible force, for in
this case, the hotel-keeper is apparently
negligent (CIVIL CODE, Arts. 2000 & 2001).
A Hotel-keeper is NOT liable in the following
instances:
When the loss or injury is caused by:
a. Force majeure, theft by a stranger with the
use of arms or irresistible force (CIVIL
CODE, Art. 2000), unless he is guilty of fault
or negligence in failing to provide against the
loss or injury from his cause (DE LEON,
supra at 213-214);
b. The acts of guests, his family, servants or
visitors; and
c. The character of the things (e.g. it is
consumable) brought into the hotel (CIVIL
CODE, Art. 2002).
Rule in the occurrence of theft or robbery
The act of a thief or robber, who has entered the
hotel is not deemed force majeure, unless it is
done with the use of arms or through irresistible
force (CIVIL CODE, Art. 2001).
REASON: The innkeeper is bound to keep his
,house S!ilfe from the intrusion of thieves and if
'thi?y'atel~flowed to gain access to the house,
without the use of such force as will show its
marks upon the house, it is fairly presumable
that th!3 innkeeper is at fault (5 PARAS, supra at
964).
_·~~n1PHBe,8rJ>iminution of Li~bility
The;ijo{el~~~eper cannot free himself from the
responsibility by posting notices to the effect that
he is not liable for the articles brought by the
, 9 gµe,,st. Any stipulation to such effect shall be void
'?fciVILCODE, Art. 2003).
REASON: Public policy. The hotel business is
imbued with public interest (YHT Realty Corp. v.
CA, G.R. No. 126780, February 17, 2005).
NOTE: It is not necessary in order to hold an
inn-keeper liable that the effects of the guests be
actually delivered to him or his employees. It is
enough that they are within the inn (De Los
Santos v. Tan Khey, 58 0. G. No. 45-53; 29 Am.
Jur. 89-90, July 30, 1962).
Right of Retention by Hotel-keepers:
The hotel-keeper has a right to retain the things
brought into the hotel by the guest, as a security
for credits on account of lodging, and supplies
usually furnished to hotel guests (CIVIL CODE,
Art. 2004).
REASON: The right is given to hotel-keepers to
compensate them for the liabilities imposed
upon them by law (DE LEON, supra at 217).
;:_' : ' ,i' ' ; ±, .~
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' ,,_. ' Civil Law
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NOTE.: A safety deposit box in a hotel is a CHARACTERISTICS: (AF-NC)

contract of necessary deposit. The existing
1. ~ccessory
relationship is one of depositor and depositary
- it secures the performance of a principal
(YHT Realty Corp. vs CA, supra.).
obligation;

JUDICIAL DEPOSIT 2. formal

Judicial deposit or sequestration takes place when - it must be in a specified form to be valid i.e. in
an attachment or seizure of property in litigation is writing (CIVIL CODE, Art. 2134).
ordered (CIVIL CODE, Art. 2005).
REASON: To forestall the use of antichresis for
Movable as well as immovable property may be the purposes of usury (DE LEON, supra at 572).
object of sequestration (CIVIL CODE, Art. 2006).
3. Nominate
The depositary of property or objects sequestrated - it has been given a specific name by the Civil
cannot be relieved of his responsibility until the Code;and
controversy which gave rise thereto has come to an
end, unless the court so orders (CIVIL CODE, Art. 4. fonsensual
2007). - the Civil Code does not require delivery of the
immovable to the creditor (Id. at 572).
The depositary of property sequestrated i.s bound to
comply, with respect to the same, with all the
obligations of a good father of a family (CIVIL CODE,
ANTICHRESIS INVOLVES AN EXPRESS
Art. 2008). AGREEMENT BETWEEN PARTIES
WHEREBY:
As to matters not provided in the Civil ,Code, judicial 1. The creditor Will have possession of the
sequestration shall be governed b/'the Rules of debtor's r(;lal prqperty given as a security;
Court (CIVIL CODE, Art. 2009). . 2. Such credit6rwill then apply the fruits of the
.said prope,rty to the interest owned by the
NATURE AND PURPOSE OF JUDICIAL debtor, if any, to t,he principal amount;
DEPOSIT 3. Th_e cr~ditor reta1hs enjoyment of such property
.until the dE1btor has totally paid what he owes;
The deposit is judicial because it!is a1;1xi1iar,y to a anq · · ·
case pending in court. ·
4. Should the obligation be duly paid, then the
The purpose is to maintain the status q!Jo during the contract" is • automatically extinguished
pendency of the litigation or to ll)sure th~ righfofthe proceeding from the accessory character of the
parties to the property in case offf1vorable"ju9gm~nt agreement (Reyes v. Heirs of Benjamin
(DE LEON, supra at 220). . •. Malance; GR. No 219071, August 24, 2016).

·CUSTODIA LEGIS SPECJAL REQUISITES:

This occurs when a thing is shown to have been·and 1. ·It can cover only the fruits of an immovable
is subjected to the official custody of a judicial or property but not the immovable itself (DE LEON,
executive officer in pursuance of his execution of a supra at 600);
legal writ (Id. at 217).
NOTE: Article 1306 of the Civil Code gives parties
the freedom to stipulate otherwise. The
reduction of the amount of fruits available to the
creditor·does not vary the nature of the contract
ANTICHRESIS (Id.).
ARTS. 2132-2139
2. Delivery of the immovable is necessary only for
the creditor to receive the fruits and not for the
contract to be binding (Id.);
CONTRACT OF ANTICHRESIS
A contract whereby the creditor acquires the right to 3. Amount of principal and interest must be
receive the fruits of an immovable property of the specified in writing, otherwfse, the contract of
debtor, with the obligation to apply them to ·the antichresis shall be void (CIVIL CODE, Art.
payment of the interest, if owing, and thereafter to 2134); and
the principal of his credit (CIVIL CODE, Art. 2132).
 ff@¥#¥& \ I

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San Beda University College of Law - RGCT Bar Operations Center

4. Express agreement that the debtor will give Applicability of Other Articles
possession of the property to the creditor and The last paragraph of Article 2085, and Articles 2089
that the latter will apply the fruits to the interest, to 2091 of the Civil Code are applicable to this
if any, then to the principal of his credit (CIVIL contract (CIVIL CODE, Art. 2139).
CODE, Art. 2132).
An antichresis is also indivisible in nature (CIVIL
In the absence of this 4 th requisite, the contract CODE, Art. 2090 & Art. 2139).
shall be deemed to be one of mortgage (Diego
v. Fernando, G.R. No. L-15128, August 25, ANTICHRESIS AS COMPARED TO
1960). REAL ESTA TE MORTGAGE
Illustration: If a contract of loan with security
provides for the delivery to the creditor by the
debtor of the property given as security, in order
that the latter may gather its fruits but without
Real Property is Debtor usually retains
stating that said fruits are to be applied to the
delivered to creditor. possession of the Real
payment of interest, if any, and afterwards that of
Property.
the principal, t_he contract is a mortgage and not
antichresis

NOTE: The obligation to pay interest is not the Creditor acquires only Creditor does not have
essence of the contract of antichresis, there the right to receive the any right to receive the
being nothing in the Code to show that · fruits of the property; fruits; but the mortgage
antichresis is only applicable to securing the . hence, it does not creates a real right over
payment of interest-bearing loans. On the produce a real right. the property.
contrary, antichresis. is susceptible of
guaranteeing all kinds of obligations, whether 'er;· i'\mtichresis
pure or conditional in nature (DE LEON, supra a reaJ)ight if it is
at 569). red in the
try of Property (12,
MORTGAGEE IN POSSESSION
One who has lawfully acquired actual or constructive
possession of the premises under an . invalid
foreclosure proceedings, standing upon his rights as
credi1oi: unless
mortgagee and not claiming under another title for
there is stipulation to
the purpose of enforcing his security. upon such
Ittle. c9ntrary, is obliged
property or making its income to pay his debt (Diego 1
pay
fQ •· ,Jtie taxes and
v. Fernando, G.R. No. L-15128, August25, 1960).
charges upon the
estate.
His respective rights and obligations are ·sirnil.er to
the parties in a contract of antichresis, such that if
the mortgagee acquires possession in any lawful
manner he is entitled to retain such possession until
the indebtedness is satisfied and the property It is expressly stipulated There is no such
redeemed; that the non-payment of the debt within that the creditor given obligation on part of
the term agreed does not vest the ownership of the possession of the mortgagee.
property in the creditor; that the general duty of the property shall apply all
mortgagee in possession towards the premises is the fruits thereof to the
that of the ordinary prudent owner; that the payment of interest, if
mortgagee must account for the rents and profits of. owing, and thereafter to
the land, any amount thus realized going towards the the principal.
discharge ot the mortgage debt; that if the
mortgagee remains in the possession after the
mortgage debt has been satisfied, he becomes a
trustee for the mortgagor as to the excess of the I rhe subject matter of both 1s real property.
rents and profits over such debt (Diaz v. Mendezona, (DE LEON, supra at 601-602).
et al., G.R. No. L-24824, January 30, 1926).
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PROVISIONS INDICATIVE OF
CONTRACT OF MORTGAGE:
1. The agreement that the full amount of
indebtedness must be returned to the lenders
before the borrowers could demand the return of
the property, which is contrary to an antichretic ·
contact wherein the products of the land should
be applied to the interest and then to principal;
2. The use of the term "mortgage" in various parts
of the contract; and
3. The agreement that the lenders are not to pay
rentals on the property in consideration of the
fact that the borrowers do not pay interest on the
sum which they obtained as a loan (Id. at 603).
MEASURE OF APPLICATION OF FRUITS
TO INTEREST AND PRINCIPAL
The actual market value of the fruits at the time of
application thereof to the interest and principal shall
be the measure of such application (CIVIL CODE,
Art. 2133).
NOTE: The use of 'actual market value' Will 0foresb11
the use of antichresis for purposes of usury, (5
PARAS, supra at 1141).
RIGHTS OF ANTICHRETIC CREDITOR:
(FPS-R2)
1. The right to the ,Eruits and in@me of the thing
(CIVIL CODE, Art. 2132);
2. freference to the proc~ed$ of.,the sale ' of the
thing (5 TOLENTINO, supra at 567);
3. To have the thing §.old upon non~payment .at
maturity (CIVIL CODE, Art. 2137, Par,'2J;
NOTE: In this case, the Rules of Court on the
foreclosure of mortgages shall apply. , -
4. To Betain the thing until the debt is paid (CIVIL
CODE, Art. 2136, Par. 1); and
NOTE: The property delivered stands as a
security for the payment of the obligation of the
debtor in antichresis. (Macapinlac v. Repide,
G.R. No. 18574, September 20, 1922).
The antichretic debtor's complaint for recovery
of possession of the real property given as
security must be dismissed if debt has not been
totally paid (Sps. Reyes v. Heirs of Malance,
G.R.No. 219071,August24, 2016).
5. To be Reimbursed for his expense for
machinery and other improvements on the land,
and for the sums paid as land taxes (Magdafiga/
LOAN AND DEPOSIT
Civil Law
A v. Uchauco, GR. Nos. L-21377 and L-21659,
October 8, 1924).
OBLIGATIONS OF . ANTICHRETIC
CREDITOR: (TABA)
1. To pay I axes and charges on the estate, if there
has been no stipulation to the contrary, and to
bear the expenses necessary for preservation
and repair. The sums spent shall be deducted
from the fruits (CIVIL CODE, Art. 2135).
NOTE: The creditor has to pay for the taxes and
charges, even if the fruits be insufficient (5
PARAS, supra at 1145).
If he does not pay the taxes, he is, by law,
required to pay indemnity for damages to the
debtor (Pando v. Gimenez, G.R. No. 31816,
February 15, 1930).
Creditor may avoid said obligation by compelling
. debtor,)o reacquire enjoyment of the property,
· unless· ·there is a stipulation to the contrary
•. {CIVIL CODE, Art. 2136, par. 2).
. If the debtor has paid for the taxes, which the
creaitor shbuld have paid, the amount is to be
applied to, tbe, payment of the debt, and the
debfor is entitled to'the return of the property free
from all encumbr,,mces if he, in effect, by
adv;:incing t~e.tax.e~, had already discharged the
debt(Rosales·v.· fariseco, G.R. No. L-4135,
November 29, 195t).
2. · To'.Apply _all the fl'uits, after receiving them, to
the payment of interest, if owing, and thereafter
to the principal ir\ accordance with the provisions
of Ar!i9le 2133 or 2138 of the Civil Code (CIVIL
, COOE, Art. 2132)
3. . To . §.ear the, necessary expenses for its
preservation and repair (CIVIL CODE, Art.
2135);
4. To render an Account of the fruits to the debtor
(Nadalv. CA, G.R. No. L-46623, March 4, 1994).
REMEDIES OF CREDITOR IN CASE OF
DEFAULT
If the debt is not paid, the creditor does not.acquire
· ownership of the real estate, since what was
transferred is not the ownership, but merely the right
to receive fruits (CIVIL CODE, Art. 2137; DE LEON,
supra at 574). ·
The remedies of the antichretic creditor are:
1. Action for specific performance; and
2. Petition for the sale of the real property as in a
foreclosure of mortgages under Rule 68 of the
Rules of Court (CIVIL CODE, Art. 2137).
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NOTE: The parties may agree on an 2. If one benefits, he must reimburse; and
extrajudicial foreclosure in the same manner as 3. Justice and equity (5 PARAS, supra at 1157).
they are allowed in contracts of mortgage and
pledge (Tavera v. El Hogar Filipino, Inc., G.R. TWO PRINCIPAL KINDS:
No. 45963, October 12, 1939). 1. Negotiorum gestio (unauthorized
management); and
PROHIBITION· AGAINST PACTUM
2. Solutio indebiti (undue payment).
COMMISSORIUM
A stipulation authorizing the antichretic creditor to NOTE: The provisions for quasi-contracts do not
appropriate the property, upon the non-payment of exclude other quasi-contracts which may come
the debt, within the agreed period is void (CIVIL within the purview of Article 2142 of the Civil Code
CODE, Art. 2088). (CIVIL CODE, Art. 2143).

ACQUISITION BY PRESCRIPTION NEGOTIORUM GEST/0

GENERAL RULE: The creditor in antichresis and
his successors-in-interest cannot ordinarily acquire
the property subject of the anti_chresis by prescription
(Cotoner-Zacarias v. Sps. Revilla, GR. No. 190901,
November 12, 2014).
It arises when a person, without the express or
implied authority of, or opposition from, the owner of
a business or property which is neglected or
abandoned, takes charge of the agency or
management thereof (CIVIL CODE, Art. 2144).

EXCEPTION: He repudiates his status as an
antichretic creditor before he can claim ownership
(DE LEON, supra at 574).
Possession of the antichretic creditor is not in the
concept of an owner, which is required for the
purpose of acquisitive prescription. He is a mere
holder placed in the possession of the lanp by the
debtor-owner (Cotoner-Zacarias v. Sps. Revilla,
GR. No. 190901, November 12, 2014).·
· · 4. The-.offiq!Q~)manager must not have been
QUASI-CONTRACTS
ARTS. 2142-2176
QUASI-CONTRACT
It is a juridical relation resulting from a lawful,
voluntary, and unilateral act, and which has for its
purpose the payment of indemnity to the end that no
one shall be unjustly enriched or benefited at the
expense of another (CIVIL CODE, Art. 2142).
The ratification of the management by the owner of
the business produces the effects of an express
· agency, even if the business may not have been
successful (qJVIL CODE, Art. 2149).
Requisites of Negotiorum Gestio
1. No meeting of the minds;
2. Taking charge of another's business or property;
3. The property or business must have been
abandoned or neglected (otherwise, the rule on
U'}ci.tJJ~o~ig::?.?PrJracts would apply);
expressly'ot'implicitly authorized (otherwise, the
rule on agency would apply); and
g~ ;·The officious manager (gestor) must have
'. ;tyo[u11tafily taken charge (that is, there must be
·· no vitiation of consent. such as error in thinking
that he owned the property or the business) (5
PARAS, supra at 1159)
NEGOTIORUM GEST/0
V. IMPLIED AGENCY

BASES FOR QUASI-CONTRACTS:

1. No one must unjustly enrich himself at the
expense of another; Gestor should never The a!=Jent is actually
have been authorized in authorized to assume
NOTE: Two (2) conditions must generally any mann~r. the agency by virtue of
concur before the rule on unjust enrichment can the acts of the owner or
apply: by virtue of his silence,
inaction, or his failure to
a. A person is unjustly benefited; and repudiate the agency.
b. Such benefit is derived at another's expense
or damage (MC Engineering, Inc, v. CA,
G.R. No. 104047, April 3, 2002).
 ~ ' ,, , "
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Business or property Neglect
should be neglected or abandonment
abandoned. necessary.
(5 PARAS, supra at 1159).
NOTE: So long as the owner does not know that
another is acting on his behalf without authority,
negot,orum gestio exists, but once he becomes
aware of such fact and still he does not repudiate the
acts of the agent, the quasi-contract ceases to exist.
It has become an implied agency (5 PARAS, supra
at 1159).
Officious Manager/Meddler
A party who, in the absence of any contract
whatsoever, officiously undertakes to do a service
with respect to the property of another (5
TOLENTINO, supra at 578) . .
Responsibilities of the Officiou$ Martager:
1. Continue taking charg~ of the agency or
management until the termination of the affairs
and its incidents, but heq1ay require the owner,
if the latter is in a position to do so to substitute
the officious manager (Cl,VIL CODE, Art. 2144);
2. Perform his duties with the c!ifigenqe ofagood
father of a family, and pay the damages. which
through his fault or negligence may be suffei-ecl
by the owner of the property or business under·
management, but the coui:ts may however,
increase or moderate the indemnity according to
the circumstances of each case (CfViL".CODE, ·
Art. 2145);
NOTE: A gestor is liable for the acts or
negligence of his employees (5 PARAS, supra
at 1160).
3. Be liable for the acts of his delegate if he
delegated to another person all or some of his
duties, without prejudice to the direct obligation
of the delegate toward the owner of the business
(CIVIL CODE, Art. 2146, par. 1);
4. Be personally liable for contracts which· he has
entered into with third persons, even though he
acted in the name of the owner, and there shall
be no right of action between the owner and third
persons except:
a. When the owner has expressly or tacitly
ratified the management, or
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LOAN AND DEPOSIT
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· Civil Law
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b. When the contract refers to things pertaining
to the owner of the business (CIVIL CODE,
Ari. 2152).
NOTE: The responsibility of two or more
officious managers shall be solidary, unless the
or management was assumed to save the things or
is not business from imminent danger (CIVIL CODE,
Art. 2146, par. 2); and
5. The officious manager shall be liable for any
fortuitous. event:
a. If he undertakes risky operations which the
owner was not accustomed to embark upon;
b. If he has preferred his own interest to that of
the owner;
c. If he fails to return the property or business
after demand by the owner;
d. If he assumed the management in bad faith
(CIVIL CODE, Art. 2147);
e. Except when the management was
a,sst1med to save the property or business
from imminent danger -
1. If he . is manifestly unfit to carry the
management;
ii. lf by his intervention he prevented a
more competent person from taking up
the rn.al)agement (CIVIL CODE, Art.
2148): . •
· Responsibilities .of thJ Owner:
The owner of ;the property shall be liable for
all obligations · incurre.d h1 his interest, and shall
reimburs_E,l the ..officious manager for the necessary
ancl useful expenses and for damages, which the
latter may have suffered in the performance of his
duties in the following instances:
1. .When the ow"ner of the property or business
enjoyed _the advantages of the officious
management although it may not have been
expressly ratified by him. (CIVIL CODE, Ari.
2150, Par. 1).
2. When the management has for its purpose the
prevention of an imminent and manifest loss,
c1lthough no benefit may have been derived
(CIVIL CODE, Art. 2150, Par. 2).
3. Even if there had been no benefit to the owner
and there has been no imminent and manifest
danger to the property of business provided:
a. The officious manager has acted in good
faith; and
b. The property or business is intact, ready to
be returned to the owner (CIVIL CODE, Art.
2151).
NOTE: Even if the owner is a minor, he is still liable
under Article 2150 of the Civil Code for he should not
be unjustly enriched at another's expense (5
PARAS, supra at 1162).
 1
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MEM✓v-:RY Al D
Sar. Beda University Collego of Law RGCl' Bar Operntions Center
Liability for Contracts entered into by the
Officious Manager
The owner shall be liable for contracts which the
officious manager has entered into with third
persons when:
1. Such owner has expressly or tacitly ratified the
management; or
2. The contract refers to things pertainin(:J to the
owner of the business (CIVIL CODE, Art. 2152).
When is Management Extinguished:
1. When the owner repudiates it or puts an end
thereto;
2. When the officious manager withdraws from the
management, subject to the provisions of Article
2144 of the Civil Code; and
3. By the death, civil interdiction, insanity or
insolvency of the owner or officious manager
(CIVIL CODE, Art. 2153).
SOLUT/0 INDEBITI
This takes place when something is received when
there is no right to demand it, and it was undµly
delivered thru mistake (CIVIL CODE, Art. 2154).
It is presumed that there was a mistake in the
payment if soryiething which had never been due or
had already been paid was delivered; but he from
whom the return is claimed may prove that the
delivery was made out of liberality or for any other
just cause (CIVIL CODE, Art. 2163).
Payment by reason of a mistake in the cqnstruction
or application of a doubtful or difficult question of law
may come within the scope of solutio indebiti (CIVIL
CODE, Art. 2155).
NOTE: Whether the question is "doubtful or difficult"
or not must be determined by the actual knowledge
of law of the person who made the payment. If the
payer was in doubt whether the debt was due, he
may recover if he proves that it was not due (CIVIL
CODE, Art. 2156).
Requisites of Solutio lndebiti:
1. Receipt (not mere acknowledgment) of
something (CIVIL CODE, Art. 2154);
2. There was no right to demand it because the
giver had no obligation (5 PARAS, supra at
1164); and
3. The undue delivery was because of mistake
either of fact or of law, which may be doubtful or
difficult question of law (CIVIL CODE, Art. 2155).
NOTE: Payment by a joint co-debtor for the benefit
of another co-debtor or co-surety is not solutio
indebiti but a payment by a person interested in the
fulfillment of the obligation under Article 1236 of the
Civil Code (5 PARAS, supra at 1165).
Primary Responsibility of a Payee: To return what
he has received through error or mistake although
there is no right to demand it (5 Paras, supra at
1164).
Liability of a Payee in Bad Faith:
1. Pay legal interest if the sum of money is
involved; or
2. Liable for fruits received or which should have
been received if the thing produces fruits (CIVIL
CODE, Art. 2159, par 1).
REASON: The payee assumes all risks having
acted fraudulently though damages may be
mitigated under Art. 2215 of the Civil Code (5
PARAS, supra at 1168).
3. He shall furthermore be answerable for any loss
or impairment of the thing from any cause and
for damages to the person who delivered the
thing, until it is recovered (CIVIL CODE, Art.
2159, par. 2).
Liability of Payee in Good Faith:
1. In case of impairment or loss, liability is only to
, :',i; the extent of benefit; and
2: ··tn,case.ot alienation, price is to be reimbursed,
or in caset>f credit, the same should be assigned
(CIVIL COQE, Art. 2160).
NOTE: Ttie responsibility of two or more payees,
when th~e has been payment of what is not due is
solidafY,,;(;GfyJJ..Q(){)@, Art. 2157).
- ·t <·i, r \::,:·i:.fi;_:-t'
Exemption from Obligation to Restore
Th.is exemption shall apply to a payee, believing
· ggod fi;\ith that the payment being made was for a
legitimate and subsisting claim, who:
1. Destroyed the document;
2. Allowed the action to prescribe;
3. Gave up pledges; or
4. Cancelled guaranties for his right (CIVIL CODE,
Art. 2162).
NOTE: He who paid unduly may proceed only
against the true debtor or the guarantor with whom
the action is still effective (CIVIL CODE, Art. 2162).
Right of a Third Person
When the property delivered or money paid belongs
to a third person, the payee shall· comply with the
provisions of Article 1984 of the Civil Code (CIVIL
CODE, Art. 2158).
OTHER QUASI-CONTRACTS
1. When, without the knowledge of the person
obliged to give support, the support was given
by a stranger, unless it appears that he gave it
out of piety and without intention of being repaid
(CIVIL CODE, Art. 2164);
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Requisites:
a. Support has been furnished in favor of a
dependent of one bound to give support but
who fails to do so;
b. The support was supplied by a stranger;
c. The same was given without the knowledge
of the person charged with the duty; and
d. It must not have been given without the
expect;:ition of recovering it (Ramirez v.
Redfern, GR No. 26062, December 31,
1926),
2, When funeral expenses are borne by a third
person, without the knowledge of the relatives
obliged to give support to the deceased (CIVIL
CODE, Art. 2165);
3. When the person obliged to support an orphan,
or an insane or an indigent person unduly
refuses to give support to the latter, a third
person furnishes the support (CIVIL CODE, Art.
2166);
NOTE: As distinguished from Article 2164 of the
Civil Code, the obligor in the article unduly
refuses to support the_ persons referred to
therein (5 PARAS, supra at 1171 ).
Civil Law
9. When a possessor in good faith has incurred
necessary and useful expenses (CIVIL CODE,
Arts. 546 and 2172);
10. When a third person, without the knowledge of
the debtor, pays the debt (CIVIL CODE, Arts.
1236. 1237 and 2173);
11. When in a small community a majority of the
inhabitants of age decide upon a measure for
protection against lawlessness, fire, flood, storm,
or other calamity, anyone who objects to the plan
and refuses to contribute to the expenses but is
benefited by the project as executed shall be
liable to pay his share of said expenses (CIVIL
CODE, Art. 2174); and
12. When a third person was constrained to pay the
taxes of another (CIVIL CODE, Art. 2175).
NOTE: The foregoing provIs1ons are mere
illustrations of other specific cases of quasi-
r:;ontracts; the enumeration has no preclusive effect
on possible other instances (5 PARAS, supra at
1176). .

4. When through an accident or cause, a person is

injured or becomes seriously ill, and he_ is treated
or helped while he is not in a condition. to give
consent to a contract, he shalt.be Hable to pay
for the services of the physiciarior other person
aiding him, unless the service has been
rendered out of pure generosity (CIVIL CODE,
Art. 2167);

5. When during a fire, flood, storm, or other

calamity, property is saved from destruction by
another person without the knowledge.,of the
owner (CIVIL CODE, Art. 2168);

6. When the government, upon failure of any

person to comply with health or safety
regulations concerning property, undertakes to
do the necessary work, even over his objection
(CIVIL CODE, Art. 2169);

7. When by accident or other fortuitous event,

movables separately pertaining to two or more
persons are commingled or confused, the rules
on co-ownership shall apply (CIVIL CODE, Art.
2170);

8. When a person has found a lost personal

property (CIVIL CODE, Arts. 719, 720, and
2171);
 } ~ ~ , ' .
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MEM:Q~Y AID
Sari Seda University Col~ge of Law • RGCT 8ar Operations Center
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I LOAN AND DEPOSIT

7
GENERAL RULE: Non- Money or other Only movable (corporeal) things Movable as well
consumable goods consumable goods (CIVIL CODE, Art.1966; DE LEON, as immovable
(CIVIL CODE, Art. 1933). supra at 218). property (CIVIL
EXCEPTION: CODE, Art.
Consumable goods if 2006; DE LEON,
purpose is not the supra at 218).
consumption of the object.

(CIVIL CODE, Arts. 1933

and 1936; DE LEON,
supra at 9, 13).

Essentially gratuitous Gratuitous or Onerous,· Ge"Nl:flAt.RULE: Gratuitous Onerous (DE

(CIVIL CODE, Art. 1933;
DE LEON, supra at 13).
NOTE: If onerous or
compensation is paid, then
the contract may be Lease
(CIVIL CODE, Art. 1935).
that is, with a stipulation LEON, supra at
to pay interest (CIVIL EXCEPTIONS: 218).
CODE, Art. 1933; DE 1. When there· is an agreement to
LEON, Credit L the contrary;
Transactions, supra at ':2, Depositary is engflged in the
13).· ... s businesi,'.qf,sJqring goods;
3; Where p~OpEl_rtY>. saved from
destruction without knowledge by
•.·. the owner (CIVIL CODE, Art.
(;;J§ll}p; DE LEON, supra at 218).

Real contract; However, an accepted promise to Real contract; Nonetheless, for Not a contract. It
deliver something by way of commodatum or simple voluntary deposit, an agreement to is auxiliary to a
loan is a consensual contract (CIVIL CODE, Art. 1934; constitute a deposit is a consensual case pending in
DE LEON, supra at 14 and 12). contract (DE LEON, supra at 152 court.
(DE LEON,
supra at 217).

Use or temporary Consumption (DE LEON, Custody and safekeeping of the To guarantee
possession (DE LEON, supra at 13). thing deposited for the benefit of the the right of the
supra at 13). depositary (DE LEON, supra at plaintiff in case
218). of a favorable
judgment (DE
LEON, supra at
218).
 LOAN AND DEPOSIT
Civil Law

Retained by the bailor Transferred to the debtor Retained by the owner (Generally, No transfer of
(CIVIL CODE, Art. 1933; (CIVIL CODE, Art. 1933; depositor must be the owner, but it ownership.
DE LEON, supra at 13). DE LEON, supra at 13). may belong to a person other than
.a depositor) (CIVIL CODE, Art.
1962; DE LEON, supra at 148).

GENERAL RULE: After Upon expiration of the Upon demand of depositor (CIVIL Upon order of
the expiration of the period term (CIVIL CODE, Art. CODE, Art. 1988). the court or
stipulated, or after the 1946;). when litigation
accomplishment of the use has ended
for which the commodatum (CIVIL CODE,
has been constituted ·
Art. 2007; DE
LEON).
EXCEPTION: Bailor may
demand return or its
temporary use if he should
have urgent need of the
thing, or if the bailee
commits any acts of
ingratitude.
(CIVIL CODE, Arts. 1946
and 1948;).

Upon the death of either Upon' payrnenf ,Up6n.the los~ ordestruction of the Upon
the bailee or bailor, unless pertormah~: ,t,hi[lg <;!epos/ted, return of the thing, termination of
by stipulation the condonation " or' novation, merger, expiration of the litigation or upon
commodatum is remission, term: · fulfillment of the resolutory order of the court
transmitted to the heirs of merger, compensation, condition, annulment, rescission (CIVIL CODE,
either or both parties novation, annulment, Art. 2007).
rescission, fulfillment of a In case of gratuitous deposit, upon
(CIVIL CODE, Art. 1939; ).
resolutory condition, the death of either the depositor or
prescription (CIVIL depositary (CIVIL CODE, Arts.
CODE, Art. 1231). 1995, and 1231).
 G#M#MII \ 1
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S_an 86-da University Coliege of Law - RGCT Bar Operatons Center
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decision rendered thereon valid. (Vu&. de Mejia V.

COMPROMISE Loh/a & Loh/a, G.R. No. L-9354, February 15. 1957)

ARTS. 2028-2041 LAW AND JURISPRUDENCE RECITE

THREE MINIMUM ELEMENTS FOR A
VALID CONTRACT: (COC)
1. fonsent
COMPROMISE 2. Qbject certain which is the subject matter of the
A u>tnprornise is a contract whereby the parties: by contract
making reciprocal concessions, avoid litigation or 3. ~ause of the Obligation which is established
put an end to one already commenced (CIVIL (CIVIL CODE, Art. 1318).
CODE, Art. 2028).
ADDITIONAL REQUIREMENTS IN
BASIC DUTY OF THE COURT CERTAIN CASES:
WHENEVER A SUIT IS FILED 1. Special powers of attorney are necessary in:
The court shall endeavor to persuade the litigants in (3) To compromise, to submit questions to
a civil case to agree upon some fair compromise arbitration, to renounce the right to appeal from
(CIVIL CODE, Ari. 2029). a judgment, to waive objections to the venue of
an action or to abandon a prescription already
NATURE OF THE CONTRACT acquired (CIVIL CODE, Art. 1878).
A compromise is a consensual contract, and as
such, it is perfected upon the meeting of the minds ·NOTE: A special power to compromise does not
of the parties to the contract (2 ALBANO, Civil Law authorize submission to arbitration (CIVIL
Reviewer,(2020) p.1538). CODE, Art. 1880).

A compromise is an agreement between two or 2. 'ixbJpfwhen authorized by the other partners or

more persons who, for preventing or putting an end
to a lawsuit, adjust their respective positions by •
mutual consent in the way they feel they can live
with. Reciprocal concessions are the very heart and
life of every compromise agreement, where each
party approximates and concedes in the hope of
gaining balance by the danger of losing. It is, in
essence, a contract (Clark Development
Corporation v. Mondragon Leisure and Resoris
Corporation et al, GR. No. 150986, March 2, 2007).
.. • comprohiise (CIVIL CODE, Ari. 2037).
Consent could be given not only by the party hirnselr
but also by anyone duly authorized and acting for
and in his behalf (Id at p. 1540-1541).
GENERAL RULE: A contract entered into in the
name of another by one who has no authority or
legal representation, or who has acted beyond his
powers, shall be unenforceable. (CIVIL CODE, Art.
1317).
EXCEPTION: Unless it is ratified, expressly or
impliedly, by the person on whose behalf it has been
executed, before it is revoked by the other
contracting party (CIVIL CODE, Art. 1317). A
compromise agreement, like any other contract, may
be ratified. It has been held that although the
compromise agreement was signed by the husband
alone and therefore did not bind the wife who claims
the lot to be her paraphernal property, where the
wife actually had knowledge of the compromise and
executed acts tacitly to ratify the same, the
compromise agreement is binding on her, and a
unless they have abandoned the business, one
or more but Jess than all the partners have no
author.ity · to'; (5) Enter into a compromise
concE;lrnin9 a partnership claim or liability (CIVIL
CODE, Al:t. 1S'.f8).
,. ,' ;'
A compromise has upon the parties the effect and
<jll,lthority of res judicata; but there shall be no
· e5ce~!:Jtion _except in compliance with a judicial
If the compromise has the effect of a novation, the
surety is released from liability. But if the
compromise is merely a reduction of the obligation,
the surety is still liable for the subsisting part
(Morales v. Fontanos, G.R. No. 43299, January 29,
1937).
JUDICIAL COMPROMISE
A compromise agreement that is intended to resolve
a matter already under litigation is normally called a
judicial compromise. Once it is stamped with
judicial imprimatur, it becomes more than a mere
contract binding upon the parties. Having the
sanction of the court and entered as its
determination of the controve;sy, it has the fo;ce
and effect of any other judgment. Such agreement
has the force of law and is conclusive between the
parties. It transcends its identity as a mere contract
binding only upon the parties thereto, for it becomes

a judgment that is subject to execution in
accordance with the Rules.
Thus, a compromise agreement that has been made
and duly approved by the court attains the effect and
authority of res judicata, although no execution may
be issued unless the agreement receives the
approval of the court where the litigation is pending
and compliance with the terms of the agreement is
decreed (Viesca v. Gilinsky, G.R. No. 171698, July
4, 2007).
Courts as a rule may rtot impose upon the parties a
judgment different frbm their compromise
agreement. It would be an abuse of discretion.
(Municipal Board v. Samahang Magsasaka, G.R.
No. L-25818, February 25, 1975)
CIRCUMSTANCES WHERE A The court's approval is necessary in compromises
PROCEEDING IN A CIVIL ACTION MAY
BE SUSPENDED
a. If willingness to discuss a possible compromise
is expressed by one or both parties: or
b. If it appears that one of the_ parties, before the
commencement of the action or proceeding,
offered to discuss a possible compromise but
the other party refused the offer (CIVIL CODE,
Art. 2030).
NOTE: The duration and terms of the susp~nsion of
the civil action or proceedinganq simila.r .matters
shall be governed by such provisio"ns of the rules of
court as the Supreme Court shall promulgate. Said·
rules of court shall likew_ise provide for the
appointment and duties of arnicable
compounders(C/V/L CODE, Art. 2030).
REQUIREMENT IN ORDER THAT A
COMPROMISE MAY BE EXECUTED
The must be approval of the court (2 ALBANO,
supra at p.1536).
C,OMPROMISE APPROVED BY THE
COURT IS NOT APPEALABLE
Adjective law governing judicial compromises
annunciates that once approved by the court, a
judicial compromise is not appealable and it thereby
becomes immediately executory but this rule must
be understood to refer and apply only to those who
are bound by the compromise and, on the
assumption that they are the ONLY parties to the
case, the litigation comes to an end except only as
regards to its compliance and fulfillment by the
parties of their respective obligations thereunder (Id
at p.1542).
REASON FOR THE RULE
The reason for the rule is that when both parties
enter into an agreement to end a pending litigation
LOAN AND DEPOSIT
Civil Law
and request that a decision be rendered approving
said agreement, it is only natural to presume that
such action constitutes an implicit, as undeniable as
an express, waiver of the right to
appeal against said decision. Thus, a decision on
a compromise agreement is final and executory, and
is conclusive between the parties (Unirock
Corporation vs Carpio and Hardrock Aggregates
.Inc., G.R. No. 213421, August 24, 2020).
EARNEST EFFORT TO COMPROMISE
The courts may mitigate the damages to be paid by
the losing party who has shown a sincere desire for
a compromise (CIVIL CODE, Art. 2031).
COURT'S APPROVAL TO ENTER INTO
COMPROMISE IN CERTAIN CASES
entered into by: (GPAA)
a. §uardians,
b. .e_arent,s,
c. Abs~ntee:s representatives,
. d. · Administrators or Executors of decedent's
estates,
COMPROMISE WITHOUT THE
LAWYER'S' INTERVENTION
A client has an undoµbted right to settle a suit
without ,the intervention of his lawyer, for he is
generally conceded to ,have the exclusive control
overtl")e, subject;-matter of the litigation and may, at
any tih)e before judgment, if acting in good· faith,
compromise, settle, arid adjust his cause of action
out o,t court, without his attorney's intervention,
knowledge, br consent, even though he has agreed
with. his, attorney not to do so. Hence, a claim for
attorney's fees . · does not void the compromise
agreetnentand is no obstacle to a court approval_
As the validity of a compromise agreement cannot
be prejudiced, so should not be the payment of a
lawyer's adequate and reasonable compensation for
his services should the suit end by reason of the
settlement (Gubat v. National Power Corporation,
G.R. No. 167415, February 26, 2010).
JURIDICAL PERSONS
Juridical persons may compromise only in the form
and with the requisites which may be necessary to
alienate their property.
COMPROMISE IN CIVIL CASES
In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in
evidence against the offerer. Neither is evidence of
conduct nor statements made in compromise
negotiations admissible, except evidence otherwise
discoverable or offered for another purpose, such as

ME'M:Q~Y AID
San Bede Universrty College of Law • RGCT Bar Ope1 ations Center
proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an eff ort to
obstruct a criminal investigation or prosecution.
(REVISED RULES ON EVIDENCE, Sec 28).
COMPROMISE IN CRIMINAL CASES
There may be a compromise upon the civil liability
arising from an offense; but such compromise shall
not extinguish the public action for the imposition of
the legal penalty (CIVIL CODE, Art. 2036).
In criminal cases, except those involving quasi-
offenses (criminal, negligence) or those allowed by
law to be compromised, an offer of compromised by
the accused may be received in evidence as an
implied admission of guilt (REVISED RULES ON
EVIDENCE, Sec 28).
COVERAGE OF COMPROMISE
A compromise comprises only those objects which
are definitely stated therein, or which by necessary
implication from its terms should be deef!)ed to have
been included in the same (CIVIL CODE, Art. 2036):
A general renunciation of rights is understood to
refer only to those that are connected with the
dispute which was the subject of the compmmise
(CIVIL CODE, Art. 2036).
Compromise agreement must be strtctly interpreted·
and must be understood as inclqding only matters
specifically determined therein or which, .by
necessary inference from its wording, must be
deemed included. Hence, it has been held; that a
compromise agreement abrogating the right of a
party to retain possession of a property as a lessee,
does not necessarily destroy her right of redemption
created by another contract (Dimatulac v. Coronet,
G.R. No. L-14132, January 22, 1920).
GENERAL RULE: There may be a compromise
upon the civil liability arising from an offense; but
such compromise shall not extinguish the public
action for the imposition of the legal penalty (CIVIL
CODE, Art. 2034).
REASON: Even where the offended party has
expressly waived indemnification, it is the duty of the
public prosecutor to bring criminal proceedings (U.S.
v. Leana, G.R. No. 2741, August 16, 1906).
EXCEPTION: The NIRC authorizes the
Commissioner of Internal Revenue to compromise
violations of the NIRC. Where the taxpayer's
violation of the Tax Code was compromised with the
approval of the Commissioner of Internal Revenue
and the City Fiscal, before any information was filed
in court, and the taxpayer paid the amount stated in
the compromise agreement, he cannot be
prosecuted anymore for the said violation for the Tax
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Code (People v_ Magc.Jaluyu, G.R. Nu. L-16235, April
20, 1961).
WHAT CANNOT BE COMPROMISED
No compromise upon the following questions shall
be valid: (CVGSJL )
1. The Civil status of persons;
2. The Validity of a marriage or a legal separation;
3. Any ,ground for legal separation;
4. Future .§upport;
5. The Jurisdiction of courts;
6. Future Legitime .(CIVIL CODE, Art. 2035).
NOTE: The prohibitions in the Article 1490 and 1491
of the Civil Code are applicable to sales ·in legal
redemption, compromises and renunciations.
SALE OF PROPERTY BETWEEN
MARRIED SPOUSES
GENERAL RULE: Spouses cannot by compromise
evade the prohibition on the sale of property to one
another
EXCEPTIONS: (SJ)
1 ,., :When a.§.~paration of property was agreed upon
lri the! rriafriage settlements; or
2. When there has been a Judicial separation of
property ur'l'der article 191 (CIVIL CODE, Art.
1490).
WHEN.! MAY A COMPROMISE
AGREEMEN't?MA y BE ANNULLED OR
RESClt'.JOED: (MCNE)
a. A compromise in which there is Mistake, fraud,
;,;c '.,.:-violence, intimidation, undue influence, or falsity
) ).:~f~f\0§),cuments (CIVIL CODE, Art. 2038).
NOTE: However, one of parties cannot set up a
mistake of fact as against the other if the latter,
by virtue of the compromise, has withdrawn
from a litigation already commenced (CIVIL
CODE, Art. 2038).
Where the compromise is instituted and carried
through in good faith, the fact that there was a ·
mistake as to the law or as to the facts, EXCEPT
in certain cases where the mistake was mutual
and correctible as such in equity, cannot afford
a basis for setting aside a compromise (Asong
vs /AC, G.R. No 74461, May 12, 1989)
It is a general rule in this country that
compromise are to be favored, without regard to
the nature of the controversy compromised, and
that they cannot be set aside because the event
shows all the gain to have been on one side,
and all the sacrifice on the other, if the parties
have acted in good faith, and with a belief of the
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actual existence of the rights which they have

respectively waived or abandoned (Id).
The law does not relieve a party from the effects
of an unwise, foolish or disastrous contract,
entered into with all the required legal
formalities and with full awareness of what he
was doing (Tanda v. Aldaya, G.R. No. L-3278,
July 23, 1951)
b. The discovery of documents referring to one or
more but not to all of the questions settled shall
not itself be a cause for annulment or rescission
of the compromise, unless said documents
have been ~oncealed by one of the parties
(CIVIL CODE, Art. 2039).
c. If it refers only to one thing to which one of the
parties has no right, as shown by the Newly-
discovered documents (CIVIL CODE, Art.
2039).
If the motion is denied, he may, considering the
special finality feature of compromise agreement,
albeit partial, and its susceptibility to execution, take
an appeal from the order of denial under Rule 45 or
even, when circumstances particularly warrant, the
extraordinary remedy prescribed in Rule 65, of the
Rules of Court (Id at p. 1543)
A PERSON WHO IS NOT A PARTY TO A
CONTRACT OR COMPROMISE MAY
NOT ENFORCE IT
It is axiomatic that a contract cannot be binding upon
and cannot be enforced against one who is not a
party to it, even if he is aware of such contract and
has acted with knowledge thereof (UP v. Phi/ab
Industries Inc., G.R. No. 152411, September 29,
2004). A party person who is not a party to a
compromise agreement cannot be affected by it (2
ALBANO, supra at p.1544).

d. If after a litigation has been decided by a final INAPPLICABILITY OF ARTICLE 151

judgment, a compromise should be agreed
upon, either or both parties being unaware of
the gxistence of the final judgment, the
compromise may be rescinded (CIVIL CODE,
Art. 2040)(AQU/NO, Reviewer on Civil Law
(2018), p. 807).
NOTE: Ignorance of a judgment which may be
revoked or set aside is Mt a, valid ground for
attacking a compromise (Id).
No suit between members of the same family shall
prosper u_nless it should appear from the verified
complaint or petition that earnest efforts toward a
comprorpise have been made, but that the same
have failed. If it is shown that no such efforts were in
fact made, the same c;;1se must be dismissed. This
rule shall not apply tq cases which may not be
the subject of compromise under the Civil Code
(FAMILY CODE, Art. 1q1).

REASON: A valid compromise can be based

only upon doubt as to the rights of the parties,
and this doubt is non-existent when there is
already a final judgment on the matter
compromised (Rovero v. Amparo, G.R.. No. L-
5482, Mey 2, 1952).

REMEDY IN CASE OF BREACH

If one of the parties fails or refuses to abide by the
compromise, the other party may either:
a. Enforce the compromise; or
b. Regard it as rescinded and insist upon his
original der11crnt.l (CIVIL CODE, A/1. 2041).

REMEDY OF THE PARTIES WHO DID

NOT TAKE PART OF THE COMPROMISE
AGREEMENT
Where there are parties in a case who did not
participate in the compromise agreement, but who
are adversely affected, they should not be precluded
from invoking in the same proceedings an adequate
relief. A motion to set aside the judgment to the
extent he might feel aggrieved, or might justifiably
fear to be at risk, by acquiescence unless timely
invoked, is a remedy (2 ALBANO, supra at p.1543).
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I TORTS
I CLASSIFICATION OF
TORTS

TORTS
An unlawful violation of a priv.:ite right, not created by GENERAL CLASSES OF TORTS:
,,•r

r.nntrnr.t, ,mrl whir;h oive:c; ri:c;e to an action for 1. Property Torts

damages (AQUINO, Torts and Damages (2019), p.1
[hereinafter AQUINO, Torts and Damages]).
2.
"Tort" consists in the violation of a right given or the
omission of a duty imposed by law. Simply stated,
tort is a breach of a legal duty (Naguiat v. NLRC, G. R.
No. 116123, March 13, 1997).
- Injuries and damages to real/personal property.
Personal Torts
-Injuries to person, i.e., body, reputation,
character or feelings (DE LEON, Comments &
Cases on Torts and Damages (2019). p.8
{hereinafter DE LEON, Torts and Damages]).

It is a "tortious liability" which arises from the breach
of a duty primarily fixed by laws; such duty is toward
persons, generally, and its breach is redressible by
an action for unliquidated damages (ALBANO, Torts
and Damages (2016), p.1 [hereinafter ALBANO,
Torts and Damages]).
BASIC PURPOSES OF TORTS LAW:
1. To provide a peaceful means for adjusting the
rights of the parties who might otherwise take the
law into their own hands;
2. To deter wrongful conduct;
3. To encourage socially responsible behavior; and
4. To restore injured parties to their original
condition insofar as the law can do this
(ALBANO, Torts and Damages, supra at 10-11).
KINDS OF TORT LIABILITIES:
1. Negligent Tort (Negligence)
- Involves voluntary acts or omissions that result
in injury to others, without intending to cause the
same. The actor fails to exercise due care in
performing such acts or omissions (AQUINO,
Torts and Damages, supra at 2).
2. Intentional Tort
- Tori is in.tentional if an actor desires to cause
the consequences of his act or he believes that
the consequences of his acts are certain to cause
damage to .another (ALBANO, Torts and
Damages supra at 3).
It includes as$aUlt, battery, false imprisonment,
defamation, invasion of privacy, and interference
of property (AQUINO, Torts and Damages supra
£1( 3).

3. Strict Liability in Tort

- The person is made liable independent of fault
or negligence upon submission of pro0f of certain
facts. The conduct is generally not wrongful in
itself but the wrong consists in causing harm by

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS, Chairperson for Academics I RONALYN A.
GACUJ.A, Ad Hoc Director for Bar Matters I MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance I JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations I AUSSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit ! CORINA R. TAMPUS, Vice
Chairperson for Secretariat I ARVY KEITH N. CHUNG, Vice Chairperson for Logistics I ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership I JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair I KING LAUREN?. S. MASIJ,UNGAN, Assistant Subject Chair I Al.HEX ADREA M.
PERALTA, Subject Electronic Data Processing I SUBJECT HEADS: JOAN V. LAGRADIUA, Agency & Tnists I QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU R. TRINIDAD, Loan and J)eposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Re/a/ions I .!CllISTOFFER MONICO S. NG, Property I JULEEN EVETII
D. MALLARI, Land Titles and Deeds I MARISOL 0. SISON, Sales I GF.i\1 EDWARD E. AQUINO, Torts I PATRICIA MAE R. I'EDERIS,
Succession I ·

SAMAN'IHA YVES 0. PLACIDO, QUENNIE IRIS'· V. BULA.TAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQlJJo L. BAI.ISONG, ROSELLEJlJNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SAN'fOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YA.LAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MJKHAILA KLAUDJNE A. ROSALES

Ally. TL'v!OTEO B. AQUINO and Atty. JESUS ERICK F. STA. BARBARA


engaging in certain types of risky activities (Id. at
7).
REMEDIES FOR TORTS:
1. Compensatory
- actions for sum of money for damages suffered
(AQUINO, Torts and Damages, supra at 33).
2. Preventive
- prayer for injunction, and a writ of preliminary
injunction and a temporary restraining order, to
enjoin the defendant from continuing the doing of
the tortious conduct (Id.).
3. Restitution
- to disgorge gains that the defendant wrongfully
obtained by tort (DE LEON, Torts and Damages.
supra at 15).
I I
LEGAL INJURY
No obligation will be recognized and enforced by our
courts unless the plaintiff can justify said obligatio·n as
arising from one of the sources .enumerated in Art.
1157 of the New Civil Code. Of these sources of
obligations, only law, delit:t, and quasi delict inay
be appropriately cited as sources of tort liability
(AQUINO, Torts and Damages, supra at 36-37).
CAUSE OF ACTION IN TORT
Test: Whether the defendant owed plaintiff any legal
duty to do something which defendant wrongfully did
not do, or not to do something which he.wrongfully
did, in violation of plaintiff's legal right or rights· (DE
LEON, Torts and Damages, supra at 29),
ELEMENTS: (ROW)
1. A legal Right in favor of a person (plaintiff);
2. A correlative legal Qbligation on the part of
defendant to respect or not to violate such right;
and
NOTE: Moral rights and duties - those duties
which are dictated merely by good morals or by
humane considerations are not within the domain
of the law (id. at 30).
3. A Wrong, i.e., an act or omission in violation of
said legal right and duty with consequent injury or
damage to the plaintiff (Id. at 29).
TORTS AND DAMAGES
Civil Law
CONCURRENCE OF CAUSES OF
ACTION:
1. A single act or omission may give rise to two or
more causes of action, i.e., based on delict,
quasi-delict and contract;
2. Two persons may be liable for one act or
omission that causes the injury; and
3. There may be a concurrence of actions even if
only one person is sought to be held liable.
(AQUINO, Torts and Damages supra at 49-50)
Choice of remedy in concurrence of causes of action
pertains to procedural and jurisdictional issues of
action. The remedy may be based on a delict or
quasi-delict. A quasi-delict action may proceed
independently from the criminal action (Barredo v.
Garcia, G.R. No. L-48006, July 8, 1942); but it is
subject to the proscription against double recovery
(CIVIL CODE, Art. 2177).
MATERIAUTY OF MOTIVE
Where motive is material under the circumstances of
the particular case, a bad motive, in connection with
conduct which violates plaintiffs rights, has been held
to render the conduct tortuous (DE LEON, Torts and
Damages, supra af 40).
A bad motive is occp$ionally important in cases
involving certain economic torts, e.g., interference
with business opportunity without physical threat or
harm and claims for punitive damages (Id.).
MATERIALITY OF INTENT
Liability in tort for an injury is determined by conduct,
and can arise regardless of the mental state or intent
to commit an unlawful act (Id. at 42).
· PROSCRIPTION ON DOUBLE
RECOVERY
Although a single act or omission may give rise to two
different causes of action, the plaintiff cannot recover
damages twice for the same act or omission of the
defendant (CIVIL CODE, Art. 2177).
Inasmuch as civil liability co-exists with criminal
responsibility in negligence cases, the offended party
has the option between an action for enforcement of
civil liability based on culpa criminal under Article 100
of the Revised Penal Code and an action for
damages based on culpa aquiliana under Article
2177 of the Civil Code.
These two civil liabilities are distinct and independent
of each other; the failure to recover in one will not
necessarily preclude recovery in the other (People v.
Billaber y Matbanua, G.R. No. 114967-68, January
26, 2004).
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I NEGLIGENCE
l
NEGLIGENCE
The fault or negligence of the obligor consists in the
omission of that diligence which is required by the performance
nature of the obligation and corresponds with the (CIVIL CODE,
circumstances of persons, place and time (CIVIL Art. 1173).
CODE, Art. 1173).

There is no hard and fast rule whereby such degree

of care and vigilance is calibrated; it is dependent Direct, Direct, Negligence is
upon the circumstances in which a person finds substantive substantive and merely incident
himself. All that the law requires is that it is and independent to the
perpetually compelling upon a person to use that care independent. (l-/uang v. performance of
and diligence expected of sensible men under Philippine an obligation
comparable circumstances (PNR v. CA, G.R: Hoteliers, Inc., already existing
No. 157658, October 15, 2007). G.R. No. because of a
180440, contract (Huang
The existence of negligence in a given case is not December 5, v. Philippine
determined by reference to the personal judgment of 2012). Hoteliers, Inc..
the actor in the situation before him. The law GR No. 180440,
considers what would be reckless, blameworthy, or December 5,
negligent in the man of ordinary intelligence and 2012).
prudence and determines liability by that (Picart v.
Smith, Jr., GR No. L-12219, March 15, 1918).

Proof Preponderance Preponderance

MOTIVE NOT MATERIAL beyond of . evidence of evidence
Motive is not material in negljgence cases. The reasonable (RUJ,ES OF (RULES OF
defendant may still be held liable even if the act was daub( ·· .. . .COl:lRT, Rule COURT, Rule
meant to be a practical joke (AQUINO, Torts and (Barredo v. 133, Section 1, 133, Section 1,
Damages, supra at 61). Garcia, G.R. Casupanan v. Barredo v.
No. L-48006, Laroya, G.R. Garcia, G.R. No.
KINDS: Ji:Jly , 8, No. 145391, L-48006, July 8,
1942). August 26, 1942).
2002).
CULPA CRIMINAL V. CULPA AQUIUANA
V. CULPA CONTRACTUAL

None. No pre-existing There is pre-

oi.Jliyation existing
(except the duty obligation (a
to be careful in contract, either
all human express or
actuations) implied) (Huang
(Huang V. V. Philippine
Existence of Fault or Oblig::ition arises Philippine Hoteliers, Inc.,
;:iIriw r.lP.::i rly negligence from the breach Hoteliers, Inc., G.R. No. 180440,
punishing resulting in of the contract G.R. No. December 5,
the act damage or because of 180440, 2012).
(Nul/um injury to another defendant's December 5,
crimen sine (CIVIL CODE, failure to 2012).
lege). Art. 2176). exercise due
care in its
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G.R. No. 141910,

August 6, 2002).

In culpa
contractual, the
Not a proper As a general Not a complete plaintiff only
defense. rule, a complete and proper needs to
(ALBANO, proper defense. defense establish the
Torts and existence of the
Damages, However, even contract and the
supra at 7). if the employer obligor's failure
can prove the to perform his
diligence in the obligation
selection and (Torres-Madrid
supervision (the Brokerage, Inc.
latter aspect v. FEB Mitsui
has not _been Marine Insurance
established Co. Inc., G.R. No.
herein) of the 194121, July 11,
employee, s_till if 2016).
he ratifies the
wrongful acts,
or take no step
to avert further.
damage, ·. the
employer would
still be
Governed by Governed by Governed by
liable. (Spouses
Art. 365 of Art.' 2176; Arts. Arts. 1170-1174
Fontanilla v..
the Revised 1172-1174 are of the CIVIL
Hon. Maliaman,
G.R. No. L-
Penal Code. also applicable CODE.
(CIVIL CODE,
55963
Art. 2178).
December 1,
1989).
DEGREES OF NEGLIGENCE:
1. Simple Negligence
The No presumption The presumption - failure to observe for the protection of another
innocence of of negligence. of negligence person that degree of care, precaution, and
the accused Injured party in culpa vigilance which the circumstances justly demand,
is presumed must prove the contractual, whereby such other person suffers injury (Gaid v.
until the negligence of immediately People, G.R. No. 171636, April 7, 2009).
contrary is the defendant attaches by a
proven. (Cangco v. failure of the Elements:
Manila Railroad covenant or its (1) There is lack of precaution on the part of the
Company, G.R. tenor (FGU offender; and
No. L-12191, Insurance (2) The damage impending to be caused is not
October 14, Corporation v. immediate or the danger is not clearly
1918). G.P. Sarmiento manifest (St. Luke's College of Medicine v.
Trucking Perez, G.R. No. 222740, September 28,
Corporation, 2016).
 MEM:Ql{Y Al D
San Seda University College of Law - RGCT Bar Operations Center
L. Gross Negligence
- one that is characterized by the want of even
slight care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but
willfully and intentionally with a conscious
indifference to consequences insofar as other
persons may be affected (Bafio vs. Bachelor
Express, GR No. 191703, March 12, 2012).
In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross
negligence (CIVIL CODE, Art. 2231).
CULPA AQUIL/ANA OR QUASI-DELICT
It is an act or omission which causes damage to
another, there being fault or negligence and there
being no pre-existing contractual relationship
between the parties (CIVIL CODE, Art. 2176).
The concept of quasi-delict in Art. 2176 is broad; it
includes not only injuries to persons but also damage
to property (Cinco v. Canonoy, G.R. No. L-33171,
May 31, 1979).
Requisites: (ANICC)
1. An ~ct or omission;
2. The presence of fault or Negligenc;e in the
performance or non-performance of .~n act;
3. !njury; · possessing. such capacity, he might and ought to
4. ~ausal connection between the negligent act and
the and the injury; and
5. No pre-existing _g_ontractual relation (St. Martin
Polyclinic, Inc. v. LWV Construction Corporation,
G.R. No. 217426, December 4, 2017);
NOTE: Even prior to the enactment of the New Civil
Code, the Supreme Court had already adopted, in
some of its decisions, a broad concept of torts using
Article 1902 of the old Civil Code. It is noteworthy that
the same broad interpretation of quasi-delict had
been given to Article 2176, the provision on quasi-
delict under the New Civil Code. The Supreme Court
observed in a number of cases that Article 2176
includes intentional acts. (AQUINO, Torts and
Damages, supra at 8-9).
An action for quasi-delfct can be maintained even if
there is an existing contractual relation between the
parties, provided that in all such cases, the elements
of quasi-delict are present and the existence of
contract is merely incidental (Id. at 31).
REASON: The field of non- contractual obligation
[which includes quasi-delicts] is much broader than
that of contractual obligations, comprising, as it does,
the whole extent of juridical human relations. These
two fields, figuratively speaking, concentric; that is to
say, the mere fact that a person is bound to another
by contract does not relieve him· from extra-
.contractual liability to such person. When such a
cu11lractual relation exists the obligor may break the
contract under sudi conditions that the same act
which constitutes the source ·of an extra-contractual
obligation had no contract existed between the
parties (Cangco v. Manila Railroad, Co., G.R. No. L-
12191, October 14, 1918).
STANDARD OF CARE: DILIGENCE OF A
GOOD FATHER OF A FAMILY (PATER
FAM/LIAS) (CIVIL CODE, Art. 1173 in relation to
Art. 2178).
It is he who, in the performance of an act should
foresee the consequences of the same. If he does,
he is not negligent (ALBANO, Torts and Damages,
supra at 34). What should be determined in
negligence cases is what is foreseeable to a good
father of a family (AQUINO, Torts and Damages,
supra at 81).
A good father of a family is also referred to as the
~easonable man, man of ordinary intelligence and
prudence, or ordinary reasonable prudent man (Id. at
82),
Thel,;1w requlres a man to possess ordinary capacity
.to 'avoii:i,h,aniilng his neighbors unless a clear and
manifest incapacity is shown;but it does not generally
hold him liable for unintentional injury unless,
have foreseen the,.danger (Id. at 83).
·. g~s::;L~it1Ee~MINE THE EXISTENCE
1. Did the defendant in doing the alleged negligent
. act use reasonable care and caution which an
>"jJ[Pin,,irily prudent person would have used in the
's~\rie situation? If not, there is negligence (Picart
v. Smith, G.R. No. L-12219, March 15, 1918).
2. Could a prudent man, in the case under
consideration, foresee harm as a result of the
course pursued? If so, it was the duty of the actor
to take precautions to guard against harm (Id.).
Conduct is negligent when a prudent man in the
position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to
warrant his disregard of the conduct or guarding
against its consequences (Id.).
"DILIGENCE BEFORE THE FACT"
The conduct that should be examined in negligence
cases is conduct prior to the injury or the aggravation
thereof (St. Francis High School v. CA, G.R. No.
82465, February 25, 1991).
NOTE: The state of mind of the actor is not important
Good faith or use of sound judgment is immaterial
(Picart v Smith, supra) .
 ~) ~t~; ~ _:, iX_t;:')/ -~: ~,,,,,,
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Only juridicnl fault is subject to liability and not moral
fault (AQUINO, Torts and Damages, supra at 53).
CIRCUMSTANCES THAT MAY AFFECT
THE DETERMINATION OF NEGLIGENCE:
(PEST-GAP)
1. f erson exposed to the risk
In proper cases, higher degree of diligence
required if a child is involved, even if a trespasser,
because entry of children in vacant lot may be
foreseeable. such that the law imposes a duty of
care towards chilt.l11:H1 even if ordinarily there is no
· duty under the same circumstance if the person
involved is an adult with sufficient discretion.
(AQUINO, Torts and Damages, supra at 78-79).
2. gmergency
Emergency Rule or Sudden Peril Doctrine
GENERAL RULE: An individual who suddenly
finds himself in a situation of danger and is
required to act without much time to consider the
best means that may be adopted to avoid-the
impending danger is not guilty of negligence if he
fails to undertake what subsequently and upon
reflection may appear to be· a ·better solution (Id.
at 73, Makati Auto Line Transport Corporation v.
People, G.R. No. 152040, March 31, 2006).
REASON: A person who is confronted with a
sudden emergency may be le~ with no time for
thought and must make a spee9y decision largely
upon impulse or instinct(AQU/NO, supriiat 73l
EXCEPTION: The emergency rµle ca.nnot .be
invoked if the person invoking it fo4nd himself in.
danger which he himself cre<,1ted throu9h his own
negligence (Delsan Transport v. C a_nd A -
Construction, Inc., G.R. No. 156Q34, October 1;.
2003).
3. Social value or utility of action
Any act subjecting an innocent person to
unnecessary risk is a negligent act if the risk
outweighs the advantage accruing to the actor
and even to the innocent person himself
(AQUINO, Torts and Damages, supra at 76).
Illustration:
As has often been pointed out, if all the trains in
the country were restricted to a speed of five
miles an hour, there would be fewer accidents,
but our national life would be intolerably slowed
down. The purpose to be served, if sufficiently
important, justifies the assumption of abnormal
. risk {Id.).
4, The Time of the day may affect the
diligence required cl the actor (CIVIL
TORTS AND DAMAGES
Civil Lnw
CODE, /\rt. 1173), e.g., more prudence is
required when driving at night (Id. supra at 72).
5. §ravity of the ha.rm to be avoided
Even if the odds that an injury will result are not
high, harm may still be considered foreseeable if
the gravity of harm to be avoided is great (Id.
supra at 75)
6. Alternative courses of action
If the alternative presented to the actor is too
costly, the harm that may result mny still he
considered unforeseeable to a reasonable man.
More so if there is no alternative thereto (Id. at
76).
7. e_lace
The place where the actor is located may affect
the diligence required from him, e.g., ordinary or
_reasonable care in the operation of a motor
vehicle at an intersection would naturally require
more preec;iution than is necessary when driving
elsewhere in a street or highway (Caminos V.
People, G,R. No. 147437, May 8, 2009).
CIRCUMSTANCES MATERIAL IN
DETERMINING NEGLIGENCE:
(WINE-PICK)
1. Women ....
Whether the passenger acted prudently or
recklessly - the age; sex, and physical condition
of the passenger are circumstances necessarily
affecting the safety;Of the passenger should be
considered (AQUINO, Torts and Damages, supra
at112)., ··
woina,n
f':. driyi~g a vehicle suddenly crippled by
"a flat, tire pri a rainy night will not be faulted for
stopping at a point which is both convenient for
her·to do so and which is not a hazard to other
motorists. However, it can also be reasonably
argued that the same conclusion can be reached
if it was a man who was in the position of the actor
(Valenzuela v. CA, G.R. No. 115024, February 7,
1996).
2. !ntoxication
GENERAL RULE: Mere intoxication is not
negligence nor establishes want of ordinary care.
But it may be one of the circumstances to be
considered to prove negligence (Wright v. Manila
Electric Railroad ~ I ight Co., G.R. No. 7760,
October 1, 1914).
EXCEPTION: A person driving a motor vehicle is
presumed negligent if he is violating any traffic
regulation at the time of the mishap (CIVIL
CODE, Ari. 108).
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3. ~ature of Activity
When persons impose upon themselves certain
obligations, non-compliance therewith will be
considered negligence, e.g., railroad company on
having a gate at a railroad crossing (AQUINO,
Torts and Damages, supra at 107).
Some activities by nature impose duties to
exercise higher degree of diligence; e.g. banks
are required to exercise the highest degree of
diligence in the conduct of its affairs (Prudential
Bank v. Rapanot, G.R. No. 191636, January 16,
2017) and common carriers, from the nature of
their business and for reasons of public policy,
are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of
the passengers transported by them, according
to all the circumstances of each case (CIVIL
CODE, Art. 1733).
NOTE: Distribution utilities are public utilities
vested with public interest, and thus, are held to
a higher degree of diligence (Manila Electric Co.
v. Nordec Philippines, G.R. No. 196020, Apri/:/8,
2018).
4. gxperts and Professionals
An expert should exhibit the care and skill of one
ordinarily skilled in the particular field that he is
in. Those who undertake any work Galling for
special skills are required riot only exercise
reasonable care in what they do but.also possess
a standard minimum of special knowledge and
ability {AQUINO, Torts and Damages, supra af
10~. . ..
The rule regarding experts is applicable not only
to professionals, like doctors, lawyers, pilots and
others, who have undergone formal education
(Id. at 106).
5. .Ehysical Disability
GENERAL RULE: The weakness of a person will
not be an excuse in negligence cases. One
should not undertake a task in which he knows or
ought to know, that his weakness may be a
danger to others (Id. at 99).
EXCEPTION: If the defect amounts to a real
disability, the standard of conduct is that of a
reasonable person under like disability, e.g., the
standard of.conduct for a blind person becomes
that of a reasonable person who is blind
(Francisco v. Chemical Bulk Carriers
Incorporated, G.R. No. 193577, September 9,
2011).
6. Insanity
Under the Revised Penal Code, an insane
person is exempt from criminal liability but may
not be exempted from civil liability (AQUINO,
Torts and Damages, supra at 111 ).
Under the Civil Code, the insanity of a person
does not excuse him or his guardian from liability
based on quasi-delict (CIVIL CODE, Arts. 2180
and 2182).
Bases for Holding an Insane Person Liable
for His Tort:
a. Between · two innocent persons, the loss
should be borne by the one who occasioned
it;
b. To induce those interested in the estate of
the insane person to restrain and control him;
and
c. The fear that insanity would lead to false
claims of insanity and avoid liability
(AQUINO, Torts and Damages, supra at
100).
7. ~hildren
The care and caution required of a child is
according to his maturity and capacity only and
this is to be determined in each case by the
tCip;::umsUtnces of the case the question of
negligent~ necessarily depends on the ability of
the minor-tp understand the ctiaracter of his own
acts and their consequences (Taylor v. Mera/co,
G.R No. 4977, March 22, 1910).
If the chilq is under nine years, it is no longer
nect'l~~rxtq,deb,~rmine his maturity and capacity
becau§a\ti1;r i'S'"'conclusively presumed to be
incapable of negligence. If the child is above nine
to fifteen, he is disputably presumed to be
, , Jocapable of negligence but the opposing party
. \, •'can: pf6Ve that the child is at such stage of
maturity and capacity that he can alre;:idy
determine what a reasonable man would do
under the same circumstances (Jarco Marketing
Corporation, et al. v. CA, supra).
If the child is legally incapable of discernment, the
parents or any person exercising parental
authority over him may still be liable if proper
diligence in supervising the child was not
observed. The actor himself is liable up to the
extent of his properties (AQUINO, Torts and
Damages, supra at 92).
8. Knowledge and Experience of the Actor
There are matters which a prudent man is
conclusively presumed to know based on
knowledge and experience, e.g., familiarity of the
place means knowledge of the makeup of the
same area; or the basic laws of nature or physics
(Id. supra at 84).

OTHER FACTORS TO CONSIDER IN
DETERMINING THE PRESENCE OF
NEGLIGENCE:
1. Violation of Rules and Statutes
a. Statutes and Ordinances
GENERAL RULE: Violation of a statutory
duty is negligence per se (Cipriano v. CA,
G.R. No. 107968, October 30, 1996). The
reason for this is that the statute or ordinance
becomes the standard of care or conduct to
which the reasonably prudent person is held.
EXCEPTIONS~ (US)
i. When !J_nusual conditions occur and
strict observance may defeat the
purpose of the rule that may even lead to
adverse results; or
ii. When the §.tatute provides that the
violation merely establishes a There is negligence if a prudent man in the
presumption of negligence (AQUINO,
Torts and Damages, supra at 127-128
citing Ted/av. Ellman, 280NY. 124, 19
N.E. 20 987(1939)).
b. Administrative Rules
Violation of a rule promulgated by
administrative agencies is not negligence per
se, but may be evidence of nt?gligence
(Marinduque Iron Mines Agents, Inc. v. The
Workmen's Compensation Commission,
G.R. No. L-8110, June 30, 1956).
c. Private rules of Conduct ·
Violation of rules imposed by private
individuals (e.g., employers). is merely a
possible evidence· of neglit)ence
(AQUINO, Torts and Damages, supra at
128).
NOTE:
Compliance/non-conwliance with customs and
practices does not necessarily mean that the
actor W8S negligent/not negligent (Id. at 134).
A practice which is dangerous to human life
cannot ripen into a custom which will protect
anyone who follows it (Yamada v. Manila
Railroad, G.R. No. 10073, December 24, 1915).
TEST OF NEGLIGENCE
FORESEEABILITY
To be negligent, a defendant must have acted or
failed to act in such a way that an ordinary reasonable
man would have realized that certain interests of
certain persons were unreasonably sublected to a
general but definite class of risks (R Transport Corp.
v. Yu, G.R. No. 174161, February 18, 20f5).
TORTS AND DAMAGES
Civil Law
Foreseeability is the fundamental testof neglioenr.A
In determining whether the actor was negligent, the
court will place itself in the actor's position to see if a
prudent man could have foreseen the resulting harm
if the conduct is pursued (AQUINO, Torts and
Damages, supra at 55).
Even if the particular injury was not foreseeable, the
risk is still foreseeable if possibility of injury is
foreseeable (Id.).
TESTS OF FORESEEABILITY:
1. Unreasonable or Undue Risks
This risk is a danger which is apparent, or should
be apparent, to one in the position of the actor. It
is a risk that is reasonably foreseeable (Id. at 58).
2. Probability
position of the tortfeasor would have foreseen
that the harmful effect was sufficiently probable
to warrant his conduct. or guarding against its
consequen.ce (Picart v. Smith, Jr., G.R. No. L-
12219, March 15, 1918). If there is a great
probability and risk that damage will result, a
person is negligent if he did not exercise due
diligence fn the face of such great probability
(AQUINO, Torts and Damages, supra at 59).
Even if there is a lesser degree of probability that
damage will· result, the damage may still be
considered foreseeable (Id. at 60).
CALCULATION OF RISK:
1. Risk-Benefit Analysis
- Balancing the,risk, in light of the social value of
the interest threatened and the probability and
extent of the harm against the value of the
interes,twhich the actor is seeking to protect, and
the expedience of the course pursued.
The following circumstances should therefore be
considered:
a. Gravity of the harm to be avoided;
b. Utility of conduct or the social value it seeks
to advance; and
c. Alternative course of action, dangers, and
advantages to the person or property of the
actor himself and to others (Id. at 68).
2. The Hand Test
- Reduced the risk benefit to a negligence
formula: If the probability be called P; the injury L;
and the burden B; liability depends upon whether
B is less than L multiplied by P (Id. at 69).
The rule in the Philippines is that the risk-benefit
analysis amd the hand test do not apply. Courts in this
jurisdiction do not use any formula in determining if ·
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the dcfcndMt committed a negligent act or omission
(Id. at 70).
BURDEN OF PROOF
GENERAL RULE: The negligence or fault should be
clearly established as it is the basis of the action. The
burden of proof is upon the plaintiff (St. Martin
Polyclinic, Inc. v. L WV Construction Corporation,
GR. No. 217426, December04, 2017).
EXCEPTIONS: When the rules or the law provide for
cases when negligence is presumed (AQUINO, Torts
and Damages, supra at 143).
1. Disputable Presumptions of Negligence
a. Motor vehicle Mishaps - a driver is
presumed negligent if he:
i. Was found guilty of reckless driving or
violating traffic regulations at least twice
within the preceding two (2) months
(CIVIL CODE, Art. 2184, Par. 1); or
ii. Was violating any traffic regulation at the
time of the mishap (CIVIL CODE, Art.
2185).
NOTE: R.A. 4136 (Land Transportation
and Traffic Code) provides for instances
of_ traffic rules commonly vblated by
drivers, such as exceeding registered
capacity and obstruction of traffic.
b. Possession of dang~rous weapons or
substances, such as firearms and poison that
results in death or injury, except when the
possession or use thereof i~ indispensable in
his occupation or business (CIVIL CODE,
Art. 2188).
c. Common carriers are presurrled to have
been at fault or acted negligehtly in case of
death or injuries to passengers, unless they
P~?ve that they observed extraordinary
diligence prescribed in Articles 1733 and
1755 (CIVIL CODE. Art. 1756, SANGCO,
Torts and Damages (1984), p. 108)
[hereinafter SANGCO, Torts and Damages},
There is No Liability Under Article 2176:
a. Where there was a pre-existing contractual
relationship, except when the act of
breaching the contract is also tortious;
b. When the action is already barred by
µrel:ictiption Le. the action for quasi-delict is
instituted after four (4) years from the accrual
of the cause of action;
c. The injury suffered by a person is the result
of a fortuitous event; and
d. If there is no damage or injury caused to
another party (PINEDA Torts and Damages
(2009), p. 16-17 [hereinafter PINEDA, Torts
, and Damages]).
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2. Res lpsa Loquitur
"The thing or transaction speaks for itself."
The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of
r.ommon knowledge and experience, the very
nature of certain types of occurrences may justify
an inference of negligence on the part of the
person who controls the instrumentality causing
the injury in the absence of some explanation by
the accused-appellant who is charged with
negligence. It is grounded in the superior logic of
ordinary human experience and, on the basis of
such experience C>r common knowledge,
negligence may be deduced from the mere
occurrence of the accident itself. Hence, res ipsa
loquitur is applied in conjunction with the doctrine
of common knowledge (Jarcia, Jr. v. People.
GR. No. 187926, February 15, 2012).
The doctrine is not meant to and does not
dispense with the requirement of proof of
culpable negligence against the party charged,
rather, it merely determines and regulates what
shall be prima facie evidence thereof, and helps
the plaintiff in proving a breach of the duty
(Soliclum:v; People, GR. No. 192123, March 10
2014}:'J''. ,
The thing which caused the injury, without the
fault of the inj1,Jred, is under the exclusive control
of the defendant and the injury is such that it
would not have occurred if he, having such
coritrpl, <U~ecl pmper care (ALBANO, Civil Law
Rev,'d•;•Jeri~~pHi·at 934). .
, , •·.·• The doctrine is an exception to the rule that in
· ' i' qµal>i-delict cases, the burden of proof lies in the
''. ,:plalntiff·to show negligence of the defendant It
has been resorted to where no direct evidence
can be presented as to prove the liability of a
person (ALBANO, Torts and Damages, supra at
57),
Requisites: (ACE)
a. The ~ccident is of a kind which ordinarily
does not occur in the absence of someone's
negligence;
b. It is caused by an instrumentality within the
exclusive fontrol of the defendant or
defendants; and
c. The possibility of contributing conduct which
would make the plaintiff responsible is
gliminated (Tan v, Jam Transit, Inc., GR. No.
183198, November 25, 2009).
"
"Control of the Instrumentality" which caused
the damage is the fundamental element. Such
element of control must be shown to be within the
dominion of the defendant (AQUINO, Torts and
Damages, supra at 149).

The doctrine is inapplicable when:
a. There is a direct proof of absence or
presence of negligence (Huang v. Philippine
Hoteliers. Inc., supra); or
b. When an unexplained accident may be
attributable to one of several causes, for
some of which defendant could not be held
responsible (FGU Insurance Corporation v.
G.P. Sarmiento Trucking Corporation,
supra}.
AFFIRMATIVE DUTIES AND
MISCELLANEOUS ACTIVITIES:
GENERAL RULE: It is not part of the general duty of
care to perform a positive obligation; there is no
affirmative duty t-o perform an act for the benefit of
another (Cangco v. Manila Railroad Company, G.R.
No. 12191, October 14, 1918).
CLASSES:
1. DUTY TO THE RESCUER· (GOOD
SAMARITAN RULE)
One who was hurt ·trying to rescue another who
was injured through negligence may recover
damages from the person who originally caused
the injury (not the rescued petson) {AQUINO,
Tor1s and Damage~. supra at 166).
Requisites to Make a Tortfeasor Liable to the
Rescuer: (NICA)
a. The tortfeasor was, ~egligent to tl:le person
rescued and such negligence _ca.used the
peril or the appearance of peril to the person
rescued;
b. The peril or the appearance of peril was
!mminent;
c. A reasonable prudent person who .. would
have ~oncluded such peril or appearance of
peril existent; and
d. The rescuer ~cted with reasonable care in
effectuating the rescue (Id. at 169).
2. DUTY TO RESCUE
Even if the failure to help a victim of an accident
might be morally reprehensible, the person who
abstain from helping the victim is not legally
responsible. A person is bound to act with
prudence but not with charity (Id. at 171 ).
EXCEPTIONS:
Limited duty to rescue
a. In cases specified in Article 275 of the
Revised Penal Code:
i. To render assistance to any wounded
person or in danger of dying, found in an
uninhabited place, when assi&tance can
be rendered without danger to' himself,
unless such omission shall constitute a
more serious offense;
TORTS AND DAMAGES
Civil Law
ii. To render assistance to another whom
one has accidentally wounded or injured;
iii. To deliver an abandoned child under
seven years of age to the authorities or
his family or take him to a safe place;
b. No driver of a motor vehicle concerned in a
vehicular accident shall leave the scene of
the accident without aiding the victim unless
he is excused from doing so (R.A. 4136.
Land Transpor1ation and Traffic Code, Sec.
55);
c. Individuals required by law to take care of
another person, e.g., parents to their children
or guardians to their wards; and
d. The defendant in special relationships (e.g.,
Common Carrier-passenger, innkeeper-
guest) (AQUINO, Tons and Damages. supra
at 171-173).
3. DUTIES OF OWNERS, PROPRIETORS
AND POSSESSORS OF PROPERTY
.. General Rule: The owner has no duty to take
reasonabl_e care towards a trespasser for his
protection or even to protect him from concealed
danger (Id . .at 173).
EXCE;PTIONS: (VATS)
a. Yisitors; _ _ .
Owners ofbuildings or premises owe a duty
of care to visitors (Cabigao v. University of
the East, CA-G.R. No. 33554-R; August 24,
1973). <;omi:non carriers may be held liable
for negligence to persons who stay in their
premises even if they are not passengers (Id.
at 1.75).
b - · Doctrine of ~ttractive Nuisance (Torpedo
<>r furntable Doctrine);
Ar:i owner who maintains on his premises
·dangerous instrumentalities or appliances of
a character likely to attract children in play,
and fails to exercise ordinary care to prevent
children from playing therewith or resorting
thereto, is liable to a child of tender years
who is injured thereby, even if the child is
technically a trespasser in the premises
(Hidalgo Enterprises, Inc. v. Balandan, G.R.
No. L-3422, June 13, 1952).
NOTE: This is generally not applicable to
artificial or natural bodies of water in the
absence of some unusual condition or
artificial feature other than the mere water
and its location (Id).
c. Iolerated Possession
The owner is still liable if the plaintiff is inside
his property by tolerance or by implied

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permission (AQUINO, Torts and Damages,
supra at 173).
d. ~tate of Necessity (CIVIL CODE, Art. 432)
A situation of present danger to legally
protected interests, where the only remedy is
injuring another's also legally protected
interest (ALBERT, Justifying and Exempting
Circumstances under our Penal Code,
reprinted in AQUINO, Torts and Damages,
supra at 180).
For the defense of state of necessity to be
availing, the greater injury feared should not
have been brought about by the negligence
or imprudence, more so, the willful inaction of
the actor (Ty v. People, GR. No. 149275,
September 27, 2004),
4. DUTIES OF PROPRIETORS
BUILDINGS
The proprietor of a building or structure is
responsible for the damages resulting from its
total or partial collapse, if it should be due to the
lack of necessary repairs (CIVIL CODE, Art.
2190),
Proprietors shall also be responsible for
damages caused: (EEFE)
a. By the ~xplosion of machinery which has not
been taken care of with due diligence, and
the inflammation of explosive .substances
which have not been kept in a safe and
adequate place;
b. By .5.xcessive smoke, which may be harmful
to persons or property;
c. By the falling of trees situated. at or near
highways or lanes, if not caused by force
majeure; and
d. By Emanations from tubes, canals, sewers or
deposits of infectious matter, constructed
without precautions suitable to Hie place
(CIVIL CODE, Art. 2191).
If damage referred to in the two preceding articles
should be the result of any defect in the
construction mentioned in Art. 1723, the third
person suffering damages may proceed only
against the engineer or architect or contractor in
accordance with said article, within the period
therein fixed (CIVIL CODE, Art. 2192).
Liabilities of the Engineer and Contractor
The engineer or architect, or the crnltractor, shall
be responsible'tor damages if the building which
they built shall, within fifteen (15) years from the
completion of the structure, collapse for reasons
attributable to their negligence.
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If the engineer or architect supervises the
construction, he shall be solidarily liable with the
contractor (CIVIL CODE, Art. 1723 Par. 1).
NOTE: Acceptance of the building, after
completion, does not imply waiver of any of the
cause of action by reason of any defect
mentioned in the preceding paragraph. The
action must be brought within ten ('10) years
following the collapse of the building (CIVIL
CODE, Art. 1723, Par. 2 & 3).
5. DUTIES OF EMPLOYERS AND
EMPLOYEES
Employers
In common law; employees can claim
compensation from their employers if the latter
committed tortious actions against them. Liability
may be due to the negligence of the employer in
OF the maintenance of the workplace. In such cases,
the employee will be saddled with the burden of
proving negligence on the part of the employer
(AQUINO, Torts and Damages, supra at 187).
Employees
,An ~rnployee is liable for a tort when he neglects
to perforrn his duties properly to the damage of
the firm ofwhich he was an officer. It is of no
moment that he occupied a contractual position
as the existence of contract between the parties
is not a bar to.the commission of a tort and the
· consequent recovery of damages (Araneta v. De
Joya,:G.R>('!lo;:i:::25172, May 24, 1974).
Employees are bound to exercise due care in the
performance of their functions for the employers.
·. P€1itHity may be based on negligence committed
:, whmf iif the performance of the duties of the
employee (AQUINO, Torts and Damages, supra
at 188).
6. DUTIES OF BANKS
Banking is a business that is impressed with
public interest (Philippine National Bank v.
Santos, G.R. No. 208293, December 10, 2014).
Banks are expected to exercise the highest
degree of diligence in the selection and
supervision of their employees, (Bank of the
Philippine Islands v. CA, G.R. No. 102383,
Noverriber 26, 1992) as well as in the conduct of
its affairs (Prudential Bank v. Rapanot, G.R. No.
191636, January 115, :2011).
7. DUTIES OF COMMON CARRIERS
- Common carriers are required to exercise
extraordinary diligence in· the vigilance over
their passengers and transported goods,
according to all the circumstances of each case
(CIVIL CODE, Art. 1733).

A contract to transport passengers is different in
kind and degree from any other contractual
relation because of the. relation which an air-
carrier sustains with the public. Its business is
mainly with the traveling public. It invites people
to avail of the comforts and advantages it offers.
The contract of air carriage generates a relation
attended with a public duty. Neglect or
malfeasance of the carrier's employees is a
ground for an action for damages (Air France v.
Carrascoso, G.R. No. L-21438, September 28,
1966).
An airline passenger was illegally ousted
from his first-class accommodation despite
his first-class ticket. He was compelled to
take a seat in a tourist compartment. Can the
airline be held liable for damages?
Yes, the wrongful expulsion of the passenger
was a breach of a public duty by the air carrier.
Although the relation between a passenger and a
carrier is contractual both in origin and nature, the
act that breaks a contract may also be a tort (Air
France v. Carrascoso, G.R. No. L-21.438,
September 28, 1966).
8. DUTIES OF DOCTORS
Medical Malpractice
Is a particular form of negligence which co·nsists
in the failure of a physician or surgeon to apply to
his practice of medicine that degree of care and
skill which is ordinarily employed by the
profession generally under similar conditions,
and in like surrounding cir~umstances (AQUINO,
Torts and Damages, supra at 196).
Circumstances Considered in Medical
Malpractice:
1.) Doctor-Patient Relationship
The physician-patient relationship is usuarly
a contractual relationship. However, there
may be cases when there is no contract
between the doctor and the patient (Id. at
191). No contract is implied to make
compensation for personal services
performed for another arises "unless the
party furnishing the services then expected
or had reason to expect the payment or
compensation by the other party" (Aldaba v.
CA, G.R. No. 21676, February 28, 1969).
The liability of the doctor in these cases is
based on culpa contractual.
The treatment of the patient may be a purely
voluntary act on the part of the doctor and the
patient may not be in a position to give his or
her consent In these cases, the liability of the
doctor may be based on quasi-contract
TORTS AND DAMAGES
Civil Law
(AQUINO, Torts and Damages, supra at
191).
2.) Elements of Medical Negligence: (D-BrlP)
a. Quty to use at least the same level of
care that any reasonably prudent doctor
would use to treat a condition under the
same circumstances;
b. Breach of such professional duty or
improper performance thereof;
c. !njury is caused to the patient,
constituting actionable malpractice; and
d. The doctor's actions were the .eroximate
cause of the patient's injury (Li v.
Spouses Soliman, G.R. No. 165279,
June 7, 2011).
3.) Standard of Care:
a. General Practitioner
The standard of care demanded is
ordinary care and diligence in the
application of his knowledge and skill in
his practice of the profession. He ought
to apply to his patient what other general
practitioners will apply when confronted
with similar situation (AQUINO, Torts
and Damages, supra at 199).
b. Spe~ialist
The legal duty to the patient is generally
considered to be that of an average
specialist, not that of an average
physician. A physician who holds himself
out.as having special knowledge and skill
in .the treatment of a particular organ or
disease or injury is required to bring to
the discharge of his duty that special
degree of skill and care which
physicians, similarly situated who devote
,special study and attention to the
treatment of such organ, disease, or
injury ordinarily possess, regard being in
the state of scientific knowledge at that
time (Id.).
c. National Standards
Each physician may with reason and
fairness be expected to possess or have
reasonable access to such medical
knowledge as is commonly possessed or
reasonable available to competent
physicians in the same specialty or
general field of practice in the Philippines
(Id. at 200).
REASON: Nationalization of medical
education and training. Common sense
and experience inform us that the laws of
medicine do not vary from state to state
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in ,mylhiny like lhe manner our public law
does (Id.).
d. Locality Rule
The doctor must be aware of the
specialized services or facilities available
in his area. Hence, to a certain extent,
local medical custom and the facilities in
the community may affect the duty of
care of doctors but only in the sense that
the content of the duty of care may be
informed by local medical custom but
never subsumed by it (Id. at 201).
e. Neighborhood Rule
In treating his patient, a physician is
under a duty to the patient to exercise
that degree of care, skill, and diligence
which physicians in the same general
neighborhood and in the same general
line of practice ordinarily possess and
exercises in like cases (Lucas v. Tuano,
G.R. No. 171636, April 7, 2009).
One has to ask whether, as between the
alleged wrongdoer and the person who
has suffered damage there is sufficient
relationship of proximity or neighborhood
such that, in the reasonable
contemplation of the former,
carelessness on his part may be likely to
cause damage to the latter, in which
case a prima facie duty arises (AQUINO,
Torts and Damages, supra at 202).
Two-Pronged Evidence:
a. Evidence as to the recognized
standards of the medical community
in the particular kind of case; and
b. A showing that the physician
negligently departed from this
standard in his treatment (Garcia-
Rueda v. Pascasio, GR. No.
118141, September 5, 1997 citing
Davis v. Virginian Railway Company,
361 us 354).
4. Doctors Are Not Warrantors of Cure
Physicians are hot warrantors of cures or
insurers against personal injuries or death of
the patient (Cruz v. CA, G.R. No. 122425,
November 18, 1997). The mere fact that the
patient does not get well or that a bad result
occurs does not in itself indicate failure to
exercise due care (Lucas v. Tuano, G.R. No.
178763, April 21, 2009).
5. Error of Judgement
Whether an error of judgement is negligent or
not depends on the nature of the error
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(AQUINO, Torts and Damages, supra at
206),
In determining whether error of judgement is
negligent, the Supreme Court explained in
Casumpang v. Cortejo, that:
a. We do not decide the correctness of a
doctor's diagnosis, or the accuracy of the
medical findings and treatment. Our duty
in medical malpractice cases is to decide
whether a breach of duty took place;
b. A wrong diagnosis is not by itself medical
malpractice; it becomes an evidence of
medicai malpractice;
c. Medicine is not exact science; and
. doctors or even specialists, are not
expected to give a 100% accurate
diagnosis in treating patients who come
to their clinic for consultations (G. R. No.
171127, March 11, 2015).
6. Expert Witness
It is a matter of expert opinion whether a
physician or a surgeon has exercised the
requisite degree of skill and care in the
treatment of his patient (Cruz v. CA, GR No.
. 12244!5, November 18, 1997).
Courts defer to the expert opinion of qualified
physicians because the court's realization
'\ that the qualified physicians possess unusual
technical skills which laymen in most
-. +nstanq~~ are incapable of intelligently
evalµating ('AQUINO, Torts and Damages,
supra at 208).
Requisites to qualify as Expert Witness:
a, Has the required professional
knowledge, learning and skill of the
subject matter under inquiry sufficient to
qualify him to speak with authority on the
subject; and
b. Is familiar with the standard required of a
physician under similar circumstances
(Casumpang v. Cortejo, GR No.
171127, March 11, 2015)
Expert Witness Must Establish:
a. The standard of care that the defendant
was bound to observe under the
circumstances;
b. That the defendant's conduct fell below
the acceptable standard; and
c. That the defendant's failure to observe
the industry standard caused the injury to
his patient (Borromeo v. Family Care
Hospital, G.R. No. 191018, January 25,
2016),

7. Res ipsa loquitur applied:
a. In medical negligence, res ipsa loquitur
allows the mere existence of an injury to
justify a presumption of negligence on
the part of the person who controls the
instrument causing the injury (Cantre v.
Sps. Go, G.R. No. 160889, April 27,
2007).
b. Medical malpractice can be established
by res ipsa loquitur. It is limited to cases
where the court, from its common
knowledge, can determine the standard
of care or where an ordinary layman can
conclude that there was negligence on
the part of the doctor (Solid um v. People,
G.R. No. 192123, March 10, 2014).
c. Although generally, expert medical
testimony is relied upon in malpractice
suits to prove that a physician has done
a negligent act or that he has deviated
from the standard medical procedure,
when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for
expert medical testimony is dispensed
with because the injury its\91f provides the
proof of negligence, The doctrine is not
available in a malpractice suit ff the only
showing is that the des.ired result of an
operation or . treatment was not
accomplished (Solidu,n v. People, G.R.
No. 192123, March 10, 2014).
In the case of Borromeo_ v. -Family Care
Hospital, Inc. the Supreme Court ·explained
that this doctrine of res ipsa loquitur is used
in conjunction with the doctrine of common
knowledge. Such doctrine has been applied
in the following cases involving 'medical ·
practitioners:
a. Where a patient who was scheduled for
a cholecystectomy (removal • of gall
stones) but was otherwise healthy
suffered irreparable brain damage after
being administered anesthesia prior to
the operation;
b. Where after giving birth, a woman woke
up with a gaping burn wound close to her
left armpit;
c. The removal of the wrong body part
during the_ operation; and,
d. Where an operating surgeon left a
foreign object (i.e., rubber gloves) inside
the body of the patient (G.R. No. 191018,
January 25, 2016; AQUINO Torts and
Damages, at 218).
8. Lost Chance Rule
When a plaintiff prays for damages for lost
chance, the essence of the plaintiff's claim is
that prior to negligence, there was a chance
TORTS AND DAMAGES
Civil Law
that he would hove been better off with
adequate care. Because of the negligence,
this chance has been lost Loss of chance is
the lost opportunity for better result (Id, at
219).
9. Doctrine of Informed Consent
Unless excused, the doctor must secure the
consent of his patient, express or implied, to
a particular treatment or an investigative
procedure (Id.).
Elements essential in a malpractice
action based on the doctrine of informed
consent: (DFCI)
a. The physician has a Q.uty to disclose the
material risks;
b. The physician failed to disclose or
inadequately disclosed the risks;
c. As a direct and proximate result of the
failure to disclose, the patient ~onsented
to treatment she otherwise would not
have consented to; and
d. The .Plaintiff was !njured by the proposed
treatment (Li v. Spouses Soliman, G.R.
No. 1652?9, June 7, 2011).
CasesWhE1n•Tnere Is No Duty to Disclose
· (ETUT). .
a. gmergency situations;
b. Iime is of the essence;
c.. Where the :patient is .!,!nconscious or
oth,erwise ipcapable of consenting and
harm from f~ilure to treat is imminent and
outweighs "any harm threatened by the
proposed treatment; and
d. Use of Iherapeutic privilege. For
instance, on some occasions a candid
and ''thorough disclosure of information
will have· an adverse effect on the
patient's condition or health (AQUINO,
Torts and Damages, supra at 224).
The physician is not required to give the
patient a short medical education, the
disclosure rule only requires of him a
reasonable explanation, which mean
generally informing the patient in
nontechnical terms as to what is at stake; the
therapy alternatives open to him, the goals
expectably to be achieved, and the risks that
may ensue from particular treatment or no
treatment (Liv. Spouses Soliman, supra).
NOTE: In the case of Liv. Spouses Soliman,
The Separate Opinion of Justice Brion
presents two standards:
1. Professional Disclosure Standard
A charge of failure to disclose should be
judged by the standards of the
MEM:O~v AID
San Beda University College ot Law - RGCT Bar Operat,o,,s Center
reasonable medical practitioner.
2. Reasonableness Patient Standard
The test for determining whether a
particular peril must be divulged is its
materiality to the patient's decision: all
risks potentially affecting the decision
must be unmasked.
10. Captain of the Ship Doctrine
The operating surgeon is the person in
complete chmgc of the surgery room and oil
personnel connected with the operation.
Their duty is to obey his orders (Professional
Services, Inc. v. Agana, G.R. No. 126297,
January 31, 2007).
Liability of Hospitals
When There is Employer-Employee
Relationship Between the Hospital and the
Physician
Where employment relationship exists, the
hospital may be held vicariously liable under
Article 2176 in relation to Article 2180 of the Civil
Code or the principle of respondeat
superior (Professional Services, Inc., v. CA, GR.
No. 126297, February 2, 2010).
When There is No Employer-Employee
Relationship Between the Hospital and the
Physician
When no employment relationship exists but it is
shown that the hospital holc;ls out to _the patient
that the doctor is its agent,.the hospilal may be
vicariously liable under Art. 2176 in relation to Art.
1431 and Art. 1869 of the Civil Code or the
principle of apparent authority (Professional
Services, Inc., v. CA, G.R. No. 126297, February
2, 2010). . \,iijhPtteS OF LAWYERS
NOTE: In assessing whether such employer-
employee relationship in fact exists, the 'control
test is determining (Id) In this regard, the SC,
explained that:
"The control test essentially determines
whether an employment relationship exists
between a physician and a hospital based
on the exercise of control over the
physician as to details. Specifically, the
employer (or the hospital) must have the
right to control both the means and the
details of the process by which the employee
(or the physician) is to accomplish his task."
(Nogales v. Capitol Medical Center GR. No.
142625, December 19, 2006).
Doctrine of Corporate Responsibility/
Corporate Negligence
Regardless of the hospital's relationship with the
doctor, it may be held directly liable to the patient
for its own negligence or failure · to follow
established standard of conduct to which it
should conform as a corporation (Professional
Services, Inc., v. CA, G.R. No. 126297, February
2, 2010).
The corporate negligence doctrine imposes
several duties on a hospital:
1. To use reasonable care in the maintenance
of safe and adequate facilities and
equipment;
2. To select and retain only competent
physicians;
3. To oversee as to patient care all persons who
practice medicine within its walls;
4. To formulate, adopt, and enforce adequate
rules and policies to ensure quality care for
its patients (Professional Services, Inc. v.
CA, GR. No. 126297, January 31, 2007).
9. DRUGGISTS/DRUGSTORE BUSINESS
In the purchase and sale of drugs, the buyer and
· seller do not stand at arm's length. There exists
an imperative duty on the seller or the druggist to
take precautions to prevent death or injury to any
person who relies on one's absolute honesty and
peculiar learning (Mercury Drug Corporation v.
• pe Leon,,G.R. No. 165622, October .17, 2008).
In MercuryDrug Corporation v. Baking, Baking
was giv~h· a potent sleeping tablet, instead of
medicines to•_stabilize his blood sugar. On the
third day of taking the wrong medicine, Baking
figured in •a vehicular accident. He fell asleep
while driving. The proximate cause of the
accid¢iit<was the gross negligence •Of the
pharmacist who gave the wrong medicine to
Baking (Id.).
An attorney is bound to exercise only a
reasonable degree of care and skill, having
reference to the business he undertakes to do
(Adame v. Aldaba, A.C. No. 801, June 27 1978).
NOTE: The lawyer's liability may not be based
solely on that fact that his client lost the case
(AQUINO, Torts and Damages, supra at 254).
11. DUTIES OF EXPERTS
An expert should exhibit the care and skill of one
ordinarily skilled in the particular field that he is in
(Cu/ion Ice, Fish & Electric Co v. Philippine
Motors, G.R. No. 32611, November 3, 1930).

I DEFENSES
I The defense of contributory negligence does not
DOCTRINE OF CONTRIBUTORY
NEGLIGENCE
If the negligence of the plaintiff cooperated with the
negligence of the defendant in bringing about the
accident causing the injury complained of, such
negligence of the plaintiff would be an absolute bar to
recovery. If the negligence of the plaintiff was merely
contributory to his injury, the immediate and
proximate cause of the accident causing the injury
being the defendant's negligence, such negligence
would not be a bar to recovery, but the amount
recoverable shall be mitigated by the court (Phoenix
Construction v. /AC, G.R. No. L-65295, March 10,
1987).
Contributory negligence is conduct on the partof the
injured party, contributing as a leg,;11 cause fo the
harm he has suffered, which falls b.elow the standard
to which he is required to confor,m for his own
protection (Spouses Vergara v. Spouses Sonkin,
G.R. No. 193659, June 15, 2015).
There is contributory negligence when the party's act
showed lack of ordinary care an<:Jforesight that such
act could cause him harm_ or pJt his life in danger
(Estacion v. Bernardo, G.R. No. 1447231 February
27, 2006).
A collecting bank is guilty of contributory negligence
when it accepted for deposit a post-dated check
notwithstanding that said check had been cleared by
the drawee bank which failed to return the check
within the 24-hour reglementary period (Allied.
Banking Corporation v. Bank of the Philippine
Islands, G.R. No. 188363, February 27, 2013) ..
The underlying precept on contributory negligence is
that a plaintiff who is partly responsible for his own
injury should not be entitled to recover damages in
full but must bear the consequences of his own
negligence. The defendant must therefore be held
liable only for the damages actually caused by his
negligence (Spouses Vergara v. Spouses Sonkin,
supra).
In Ma-ao Sugar Central Co., Inc. v. CA, the Court
ruled that the petitioner company cannot excuse itself _
from its failure to properly maintain the wires by
attributing negligence to the victim. The responsibility
of maintaining the rails for the purpose of preventing
derailment accidents belonged to the company. The
company should not have been negligent in
ascertaining that the rails were fully connected than
to wait until a life was lost due to an accident (G.R.
No. 83491, August 27, 1990).
TORTS AND DAMAGES
Civil Law
apply in criminal cases committed through reckless
imprudence, since one cannot allege the negligence
of another to evade the effects of his own negligence
(Manzanares v. People, G.R. Nos. 153760-61,
October 12, 2006).
The defendant may still be held liable for damages
even if the act was meant to be a practical joke
(AQUINO, Torts and Damages, supra at 61).
As far as the act which caused the injury was
concerned, it was an innocent prank not unusual
among children at play and which no parent, however
careful, would have any special reason to anticipate
much less guard against (Cuadra v. Monfort, G.R.
No. L-24101, September 30, 1970).
DOCTRINE OF COMPARATIVE
NEGLIGENCE
The relative degree of negligence of the parties is
considered fr1 determining whether, and to what
degree, -either should be responsible for his
negligence (apportionment of damages) (AQUINO,
Torts and Damages, supra at 290).
The ruled involve' apportionment of damages. Under
the "pure" type of comparative negligence, the
plaintiff's contribµtory n/i)gligence does not operate to
bar his recovery altogether but does serve to reduce
his damage in proportion to his fault (Id. at 266-267).
U'illPUTED CONTRIBUTORY
NEGLIGENCE
Negligence 'is imputed if the actor is different from the
pers9n who is being made liable (Id. at 301).
Since ,a ma~ter may be held for his servant's wrongful
act, the law imputes to the master the act of the
servant, and if that act is negligent or wrongful and
proximately results in injury to a third person, the
negligence or wrongful conduct is the riegligence or
wrongful conduct of the master, for which he is liable
(Phil. Commercial International Bank v. CA, G.R. No.
121413, January 29, 2001).
Effect: The defendant will be subject to mitigated
liability even if the plaintiff was not himself personally
negligent because the negligence of another is
imputed to the plaintiff (REYES AND PUNO, Outline
of the Phil. Civil Law, Vol. 6, p. 169) {hereinafter, 6
REYES AND PUNO]).
Applicability: If the negligence was on the part of the
person for whom the plaintiff is responsible, and
especially, by negligence of an associate in the
transaction where he was injured (Id.).

MEM✓Q~Y AID
San Beda University College of Law RGC1 Bar Operations Center
VIOLATION OF STATUTE BY THE VICTIM
It is treated generally as negligence per se, except
when the law or rules specifically provide for a
different rule. The effect would depend on whether
the violation is:
1. Merely contributory negligence - partial defense;
2. The proximate cause of the loss - complete
defense; or
3 NAifhAr r:ontrihutory nor the proximate cause of
the loss - proof of causation required (AQUINO,
Torts and Damages, supra at 304).
NOTE: Contributory negligence is conduct on the part
of the injured party, contributing as a legal cause to
the harm he has suffered, which falls below the
standard to which he is required to conform for his
own protection. To hold a person as having
contributed to his injuries, it must be shown that he
performed an act that brought about his injuries in
disregard of warning or signs of an impending danger
to health and body. To prove contributory negligence,
it is still necessary to establish a causal link, although
not proximate, between the negligence of the party
and the succeeding injury. In a legal sense,
negligence is contributory only when it contributes
proximately to the injury, and not.simply a condition
for its occurrence (Dela Cruz v. Octaviano, GR. No.
219649, July 26, 2017).
FORTUITOUS EVENT (CASO FORTUITO)
An event which could not be foreseen, or which
though foreseen, was inevitabli;3 (CIVIL GODE, Art.
1174).
GENERAL RULE: It is a complete defense and a
person is not liable if the cause of the damage was a
fortuitous event (CIVIL CODE, Art. 1174).
EXCEPTION:
Partial Defense
If the fortuitous event is not the sole cause of the
injury and the courts may mitigate the damage if the
loss would have resulted in any event ( CIVIL CODE,
Art. 2215).
ESSENTIAL CHARACTERISTICS: (COFI)
1. The Cause of the unforeseen and unexpected
occurrence, or of the failure of the debtor to
comply with his obligation, must be independent
of the human will;
2. The occurrence must be such as to render it
impossible for the debtor to fulfill his Qbligation in
a normal manner;
3. The obligor must be free from any participation
in the aggravation of the injury resulting to the
, creditor; and
4. It must be !mpossible to foresee the event which
constitutes the caso fortuito or if it can be
foreseen, it must be impossible to avoid
, ( l'i : \ ,, \:
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(Spouses CruL v. Sun Holidays, Inc., GR. No.
186312, June 29, 2010).
ACTS OF GOD - Events which , are totally
independent of the will of every human being (e.g.,
earthquake, lightning, eruption of volcano) (OE
LEON. Obligations and Contracts, supra at 71).
ACTS OF MAN - Events which are independent of
the will of the obliger but not of other human wills e.g.,
war, fire, robbery, insurrection (Id.).
For a person to be exempted lrom liability due to
fortuitous event, the latter must be the proximate and
only cause of the loss or damage. The act must be
one occasioned exclusively by the violence of nature
and human agencies are to be excluded from
creating or entering into the cause of the mischief
(ALBANO, Torts and Damages supra at 52).
NOTE: A fortuitous event may either be an act of
God or natural occurrences such as floods or
typh~ons, or an act of man such as riots, strikes or
wars. However, when the loss is found to be partly
·.·•.the result of a person's participation - whether by
:active intervention, neglect or failure to act - the
whole ·OCcurrence is humanized and removed from
the rules applicable to a fortuitous event (Asset
Privatization · Trust v. T.J. Enterprises, G.R. No.
167195, Mqy 81 2q09).
· Fire is not a ,natural calamity as it arises almost
invariaplyJrqlJl?~l'Jll? f1Ct of man or by human means.
It does nohl~l('.Wlfhin the so-called "Acts of God,"
. except when'caused by lightning (Eastern Shipping
Lines, Inc. v. /AC, G.R. No. L-69044, May 29, 1987).
; t~tsf•;·Oburt,'Will no longer delve on the issue of
whether or not the fire which caused the loss of
and/or damage to respondent's personal effects is a
fortuitous event since both the trial court and the
Court of Appeals correctly ruled that the fire which
occurred in this case cannot be considered an act of
God since the same was not caused by lightning or a
natural disaster or other calamity not attributable to
human agency (International Container Terminal
Services, Inc. v. Chua, G.R. No. 195031, March 26, .
2014).
ACCIDENT
An accident pertains to an unforeseen event in which
no fault or negligence attaches to the defendant. It is
"a fortuitous circumstance, event or happening; an
event happening without any human agency, or if
happening wholly or partly through human agency,;an
event which under the circumstances is unusual or
unexpected by the person to whom it happens" (Jarco
Marketing Corporation v. CA, G.R. No. 129792,
December 21, 1999).

DOCTRINE OF ASSUMPTION OF RISK
A plaintiff who voluntarily assumes a risk of harm
arising from the negligent or reckless conduct of the
defendant cannot recover for such harm (SANGCO,
"Carts and Damages, supra at 170).
Elements: (KUF)
1. The plaintiff must ~now that the risk is present;
2. He must !J_nderstand its nature; and
3. His choice to incur it is Eree and voluntary
(AQUINO, Torts and Damages, supra at 306).
EXCEPTIONS:
The plaintiff is free from liability if:
1. An emergency is found to exist; or
2. The life or property of another is in peril when he
seeks to rescue his endangered property (/locos
Norte Electric Co. v. CA, G.R. No. L-53401,
November 6, 1989).
VOLENTI NON FIT JNJURJA
"That which a person assents are not esteemed in
law as injury." One is not legally injured if he has
consented to the act complained of or was willing that
it should occur. When the defense of assumption of
risk is based on this maxim, it negates negligence or
liability on the part of the defendant, even though his
conduct would otherwise have constituted actionable
negligence, and without regard to ~the fact that the
plaintiff may have acted in due care (SANGCO, Torts
and Damages, supra at 172).
Illustration: Petitioner's discontinuance from
teaching was her own choice. While the respondents
admittedly wanted her service terminated, they,
actually did nothing to physically prevent her from
reassuming her post, as ordered by the school's
Board of Directors. That the school principal and -F:r.
Wiertz disagreed with the Board's decision to retain
her, and some teachers allegedly threatened to
resign en masse, even if true, did not make them
liable to her for damages. They were simply
exercising their right of free speech or their right
to dissent from the Board's decision. Their acts
were not contrary to law, morals, good customs
or public policy. They did not "illegally dismiss" her
for the Board's decision to retain her prevailed. She
was ordered fo report for work on July 5, 1982, but
she did not comply with that order. Consequently,
whatever loss she may have incurred in the form of
lost earnings was self-inflicted (Garciano v. CA, G.R.
No. 96126,Augusf 10, 1992).
It does NOT apply:
Where one person created a danger and another
person, with knowledge and appreciation of its
exist!'lnce, voluntarily assumes the risk of such
danger but is not injured by it even though he is
injured in some other way in attempting to withdraw
TORTS AND DAMAGES
Civil Law
from the scene after the degree of danger increases,
the defense of assumption of risk cannot be made
available (SANGCO, Torts and Damages, supra at
171).
The defense of assumption of risk is not available to
the employer in cases covered by the Workmen's
Compensation Act. Here, the burden of risk of
industrial accidents has been transferred by the law
from the employee to the employer. Under the said
act, the employer is liable for damages or
compensation to the employee for any injuries which
the employee may suffer from any accidents arising
out of and in the course of his employment or other
illness directly caused by such employment
(PINEDA, Torts and Damages, supra at 74).
KINDS:
1. Express Waiver of the Right to Recover
(CIVIL CODE, Art. 6)
There is assumption of risk if the plaintiff in
advance has expressly waived his right to
recover damages for the negligent act of the
defendant (AQUINO, Torts and Damages, supra
at 308).
Effects of Waiver to Recover Before/After
Negligent A.ct:
a. Before__; invalid as it is prohibited.
b. After - valid; condonation of obligation (Id.).
2. Implied Assumptions
a. Dangerous (::Qnditions - A person who,
knowing that he is exposed to a dangerous
condition and, voluntarily assumes it may not
recover from the defendant who maintained
such dangerous conditions (Id. at 311 ).
Kinds of Dangerous Conditions:
i. Those which are inherently dangerous.
ii. Those where a person places a thing
which is not dangerous in itself, in a
dangerous position.
iii. Those involving products and other
things which are dangerous because
they are defective.
Illustrations:
i. A house placed near a railroad track
assumes the usual dangers attendant to
the operation of a locomotive.
ii. Spectators at sports event, customers at
amusement parks, and guest who find
dangerous conditions when they enter
business premises (Id. at 283-284).
b. Contractual Relations - There may be
implied assumption of risk if the plaintiff
entered into a contractual relation with the
defendant (Id.).
 &ii#IBM \ 1
MEM:-Q~Y AID
San Beda University College of Law - RGCT Ba< Operations Center
Illustrations:
i. The employees assume the ordinary
risks inherent in the industry in which he
is employed (Id. at 289).
In abnormal risks arising from unusual
conditions, it is a question of fact and
thEm~ must be cogent and convincing
evidence of such cons~nt (Id.).
ii. When a passenger boards a common
carrier, he takes the risks incidental to
the mode of travel he has taken (Yobido
v. CA, G.R. No. 113003, October 17,
1997).
iii. In case the plaintiff was employed by the
defendants as caretaker of their
carabaos, he was gored to death by one
of these carabaos. The Court held that it
was the caretaker's business to try to
prevent the animal from causing injury or
damage to anyone, including himself.
Being injured by the said animal was one
of the risks of the occupation, which he.
had voluntarily assumed and for which
he must take the consequences (Afialda
v. Hisole, G.R. No. L-2075, November
29, 1949).
c. Employment - Based on the implied
consent of the servant to accept or continue
in the employment after becoming aware of
the risk which resulted in his injury (AQUINO,
Torts and Damages, supra at 312).
Exception: An employee cannot be said to
have assumed a risk which is not incident to
his employment (Id.).
d. Joining Sports Events - Where a person
voluntarily participates in a lawful fame or
contest, he assumes the ordinary risks of
such game or contest so as to preclude
recovery from the promoter or operator of the
game or contest for injury or death resulting
therefrom (Abrogar v. Cosmos Bottling Co.,
G.R. No. 164746, March 15, 2017).
e. Defendant's Negligence - When the
plaintiff is aware of the risk created by the
defendant's negligence, but he voluntarily
decided to proceed to encounter it, there is
an implied admission e.g., Plaintiff assumes
risk of using unsafe product if he knew it to
be unsafe (Id. supra at 314).
PRESCRIPTION
An action based on quasi-delict prescribes in four (4)
years from the date of the accident (CIVIL CODE, Art.
1146) - to be counted from the last element of the
commission of ar1 act or omission violative of the right
of the plaintiff.
RELATIONS BACK DOCTRINE
An act done at one time is considered by fiction of law
to have been done at some antecedent period (Allied
Banking Corp v. CA, G.R. No. L-85868, October 13,
1989). The prescriptive period should commence to
run only upon discovery of the injury (AQUINO, Torts
and Damages, supra at 326).
Illustration: A doctor negligently transfused blood to
a patient that was contaminated with HIV. If the effect
became apparent only after five (5) years, the 4-year
prescriptive period should commence only when it
was discovered (Id. at 327).
INVOLUNTARINESS
It is a complete defense in quasi-delict cases and the
defendant is therefore not liable if force was exerted
on him (Id. at 328).
Illustration: When the defendant was forced to drive
his vehicle by armed men who were escaping from
·the.policemen, the defendant cannot be held liable if
a bystc1ntjeriS'.hit as a consequence (Id.).
Persons using violence or causing fear are primarily
liable for acts committed by third persons acting
under irres.istible force or uncontrollable fear. If there
· be no such persons, those doing the act shall be
liable secondarily (R£.VISED PENAL CODE, Art.
101). . '' . .
STATE OF MOST SIGNIFICANT
REJ,.:ATIONSHIP RULE
Wnehi''ator't is committed entirely or partly in another
country. The tort case may be dismissed of the
Philippines is not the State which has the most
significant relationship (Saudi Arabian A(rfines v. CA,
G.R. No. 122191, October 8, 1998).
What is important here is the place where the over-all
harm or the totality of the alleged injury to the person,
reputation, social standing and human rights of
complainant, had lodged, according to the plaintiff
(Id).
I THE TORTFEASOR
I
TORTFEASOR
Every person legally responsible is liable for a tort
committed by him provided it is the proximate cause
 TORTS AND DAMAGES
Civil Law

of an injury to another (DE LEON, Torts and

Damages, supra at 16).

PERSONS WHO CAN SUE AND BE SUED

FOR TORT:
1. Plaintiff NOTE: Article of a good
- natural or artificial persons injured by a tortious 221 of the father of a
act; can sue the tortfeasor and are entitled to Family code family to
damages (AQUINO, Torts and Damages, supra removes the prevent
at 29). alternative damage.
qualification
between
Except in cases where an injury to one person father and
operates as an injury to another, e.g., damages mother.
sustained by a parent arising from the injury
suffered by his/her child, an action for damages Guardians Minors or Direct and 1)Exercise
can only be maintained by the person directly (Art. 2180, incapacitate Primary of diligence
injured, and not by one alleging a collateral injury NCC) d persons of a good
(DE LEON, Torts and Damages, supra at 16). who are father of a
under their family to
authority and prevent
2. Defendant live in their damage.
- natural/artificial persons who may be held liable company
(Id. a_t 32).
School, A child who Direct, 1) The
DIRECT TORTFEASOR .Administrator,s ·. is: Principal! activity is
, Teachers, (i) a Minor; y and not an
As a general rule·, all persons Cir entitie_s are liable for and Individual, (ii) under Solidary authorized
torts committed by them, or by their agents while Entity or their Liable activity;
acting within the scope of their duties (DE LEON, lnstitutiof) supervision, (2012
Torts and Damages, supra at 16): Defendants in tort Engaged in instruction or Bar). 2) The child
cases can either be natural or: artificial beings Child Care custody; is not under
(AQUINO, Torts and Damages, supra at 32). (Art 218, (iii) · over NOTE: their
Family Code) which they The supervision
ex,ercise parents,
PERSONS MADE RESPONSIBLE' FOR special guardians instruction,
OTHERS parental or or custody;
The obligation imposed by Article 2176 of thE! .Civil authority persons
(2005Bar) exercising 3) Exercise
Code on quasi-delicts is demandable not only for
substitute of due
one's own acts or omissions, but also for those'. of NOTE: The parental diligence.
persons for whom one is responsibie (CIVIL, CO[,)£, . responsibilit authority
Art. 2180). . . y applies to . are
authorized subsidiary
The basis of liability is paterfamilias or the failute of activities liable.
the persons mentioned therein to exercise due care inside or
and vigilance over the acts of subordinates to prevent outside the
the damage (Fi/car Transport Services v. Espinas, school.
G.R. No. 174156; June 20, 2012). Teachers or Pupils, Direct, 1) The
Heads of students, or Primary, student is
PERSONS VICARIOUSLY LIABLE Establishment apprentices and not in their
of Arts and so long as Solidary custody;
Trade they remain
(Art. 2180, in custody - 2) Exercise
NCC) if they are no of due
longer diligence.
NOTE: minors.
Schools and
Parents Acts of their Direct and 1) The child
Administrators (For minor
(Art. 2180, children up Primary is not living
are NOT children,
NCC, and to 21 years in their
liable. apply Arts.
Arts. 221 and of who live in company.
218 and 219
236 Family their
of the Family
Code) company 2) Exercise
Code)
(2005 Bar) of diligence
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b. Court-appointed guardians (CIVIL CODE, Art

2182).

3. Those exercising ~ubstitute parental authority

a. Surviving grandparents (FAMILY CODE, Art.
214);
Employers Employees Direct, 1) The b. Oldest sibling, over 21 years old unless unfit
(Art. 2180, and Primary, employee or disqualified (FAMILY GODE, Art. 216, par.
NCC) household and is not
2); or
helpers - in Solidary performing
NOTE: It is the service with his c. Child's actual custodian, over 21 years old
NOT or, on employee functions or unless unfit or disqualified (FAMILY CODE,
necessary that occasion of (1997 is acting Art. 216, par 3);
they are their Bar) beyond the
engaged in functions or scope of Liability: Subsidiary
any business the scope of his REASON: They do not have the direct custody of
or industry their task. function; the child.
(2005 Bar)
2) Exercise
4. Those exercising _§_pecial parental authority: ·
of due
diligence in (SATI)
the a. §.chool;
selection or · b. _8dministrators;
supervision c. Ieachers; or
of the d. !ndividual, entity or institution engaged in
employee child care (FAMILY CODE, Art. 218).
(1992,
1997, and
2003 Bar)
The father and mother are civilly liable for any
The State Special Direct and 1) The damages that may be caused by the minor children
(Art. 2180, Agents Primary persons who live in their company, The provision with respect
NCC) one who who to parents in the second paragraph of Article 2180 of
receives a directly
• the Civil Code is modified by Article 221 of the Family
fixed order, caused the
foreign to the Code by removing the alternative qualification of the
lo~s is not a
exercise of special liability oHhJ~J~tti~r: and the mother.
the duties of agEint - the
the official official was REASON: The liability is a necessary consequence
performing .of tne parental authority they exercise over them.
the task •. (lf()J:JINO, Torts and Damages, supra at 658).
that
properly To sustain the liability of the father or the mother
pertain~ to
in proper cases, it is necessary that: (BTL)
him.
1. The child is ~elow twenty-one (21) years;
A Head of Subordinate Direct and 1) He did Except: Deep Pocket Theory
Department of s that he h3s Primary not give a 2. The child committed a Iortious act to the damage
Government authorized written and prejudice of another person; and
or Superior by written order. 3. The child b_ives in the company of the parent
Public Officer. order the concerned (Libi v. /AC, G.R. No. 70890,
(Sec. 38, specific act September 18, 1992).
Revised or
Administrative misconduct.
Code of 1987)
Under Article 221 of the Family ,Code, parents are
principally and primarily liable for acts or omissions of
their minor children resulting in injuries to others.
PERSONS LIABLE FOR ACTS However, for liability 'on the part of the parents to
COMMITTED BY MINORS: (POSS) attach, the minor child must be living in their company
1. ,!:arents; (CIVIL CODE, Art. 2180, Par. 2) and under their parental authority (Libi v. /AG, G.R.
No. 70890, September 18, 1992).
2. Those exercising parental authority Qther than
parents
a. Adopters; or

PERSONS EXERCISING PARENTAL
AUTHORITY OTHER THAN PARENTS:
1. Adopters
The Court does not consider that retroactive
effect may be given to the decree of adoption so
as to impose a liability upon the adopting parents
(Tamargo v. CA, G.R. No. 85044, June 3, 1992).
2. Guardians
They are liable for damages caused by minors or
incapacitated persons (even if they are already of
age) under their authority and living in their
company.
The legal authority referred to in Article 2180 is
legal authority over the person of the ward and
not legal authority only with respect to the
property of a person declared as incompetent
although of majority age (AQUINO, Torls and
Damages, supra at 674).
EXTENT OF SPECIAL PARENTAL
AUTHORITY
It can be exercised only over minors while un,dertheir
supervision, instruction or custody; including while in
authorized activities whether inside or outside the
school, entity or institution (Id.).
Custody - the protective and supervisory custody
that the school and its head and teachers exercise
over the pupils and students for a~ )ong as they are.
in attendance in the school, induding · re~ss time
(Salvosa v. Intermediate Appeilate Court, G.R. No.
70458, October 5, 1988).
As long as it can be shown thafthe student is in the
school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate right, and
even in · the enjoyment of a legitimate , stµdent
privilege, the responsibility of the school authorities
over the student continues (Amadora v. CA, G. R. No. ·
L-47745, April 15, 1988).
Liability: They are principally and solidarHy liable for
damages caused by the acts or omissions of the
minor (FAMILY CODE, Art. 219).
LIABILITY FOR ACTS OF THOSE NO
LONGER MINORS
DEEP POCKET THEORY
Young Filipinos aged 18-21 are usually. not yet
gainfully employed and without property. The law
allows the injured party to pursue actions against the
tortfeasor's parents (AQUINO, Torts and Damages,
supra, at 662).
TORTS AND DAMAGES
Civil Law
OWNERS AND MANAGERS OF
ESTABLISHMENTS
They are liable for damages caused by their
employees in the service of the branches in which
they are employed, or on the occasion of their
functions. It does not extend to acts of strangers who
committed unauthorized acts and inuoing so, caused
damages to others (CIVIL CODE, Art. 2180 Par. 4.).
"Manager" in Art. 2180 is used in the sense of an
employer. A managerial employee within the
contemplation of the Labor Code is not a manager
referred to in Art. 2180 because he himself may be
regarded as an employee or dependiente of the
employer (Philippine Rabbit Bus Lines, Inc. v. Phil.
American Forwarders, Inc., GR No. L-25142, March
25, 1975).
Co-employees are not liable even if they supervise
the employee (AQUINO, Torts and Damages, supra
at, 691).
EMRl;.-OYERS
Liable for 9amages caused by their employees and
household helpers acting within the scope of their
assigned tasks even .though the employer is not
engaged in any business or industry (CIVIL CODE,
Article 2180 Par; 5).
Although the employer is not the actual tortfeasor, the
law makes him vicariously liable on the basis of the
civil law principle. of pater familias for failure to
exercfse.due care and vigilance over the acts of one's
syborditiales to preverit damage to another (Fi/car
Trapsporl S.ervices v. Jose Espinas, G.R. No.
174156, June 20, 2012).
ReqGisltes oJ Employer's Vicarious Liability
Under Article 2180 of the Civil Code:
a: Tl]ere is employer-employee relationship; and
b. ' ihat the employee was acting within the scope of
his assigned task when the tort complained of
was committed (Caravan Travel and Tours
International, Inc. v. Abejar, G.R. No. 179631,
February 10, 2016).
DEFENSE OF EMPLOYER
When the employee causes damage due to his own
negligence while performing his own duties, there
arises the juris tantum presumption that the employer
is negligent, rebuttable only by proof of observance
of the diligence of a good father of a family.
To rebut the presumption of negligence, employer
must prove two things:
1) That it had exercised due diligence in the ·
selection of employees (culpa in eligiendo); and
 f!f'E~Q~Y AID
San Beda University College of Law - RGCT Bar Operabons Center
2) rhat atter hiring employees, employer had
exercised due diligence in supervising them
(culpa vigilando).
In order that the owner of a vehicle may be
considered as having exercised all diligence of a
good father of a family, he should not have been
satisfied with the mere possession of a professional
driver's license; he should h8VP. r.;:irnft1lly AXrlmined
the applicant for employment as to his qualifications,
his experience and record of service.
Due diligence in the supervision of employees, on the
other hand, includes the formulation of suitable rules
arid regulations for the guidance of employees and
the issuance of proper instructions intended for the
protection of the public and persons with whom the
employer has relations through his or its empl?yees
and the imposition of necessary disciplinary
measures upon employees in case of breach or as
may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to
their employer. Actual implementation and monitoring
of consistent compliance with said rules should be the
constant concern of the employer, acting through
dependable supervisors who should regularly report·
on their supervisory functions (Reyes v. Doctolero,
G.R. No. 185597,August2, 2017).
RULE IN CASES INVOLVING CRIMINAL
NEGLIGENCE
Article 103 of the Revised Penal Code governs the
subsidiary liability of the employer for the criminal
negligence of his employee (AQUINO, Torts and
Damages, supra at 722).
Employee's conviction of criminal neglig~nce proven
in a criminal action is sine qua non for employer's
subsidiary liability to attach. Employee's criminal
negligence conclusively binds the employer to be
subsidiary liable for the damages awarded (Fernando
v. Franco, GR. No. L-27786, January 30, 1971). The
defense that the employer exercised due diligence in
the selection and supervision of the employee is not
available herein.
REQUISITES OF VICARIOUS LIABILITY
OF EMPLOYERS UNDER ARTICLE 103
OF THE REVISED PENAL CODE: (ICE)
1. Employee is !nsolvent;.
2. Employee was .Q,onvicted of the offense
committed in the discharge of his duties; and
3. Employer is .!;,ngaged in any kind of industry
(Philippine Rabbit Bus Lines, Inc. v. People, G.R.
No. 147703, April 14, 2004).
The employer cannot defeat the finality of the
judgment by filing a notice of appeal on its own behalf
in the guise of asking for a review of its subsidiary civil
liability. Both the primal y civil liability of the accused-
employee and the subsidiary civil liability of the
employer are carried in one single decision that has
become final and executory (Philippine Bus Rabbit
Lines, Inc. v. People of the Philippines, G.R. No.
147703, April 14, 2004).
LIABILITY OF THE STATE
G[N[RAL RULE: The Stele is not vicariously lioblo.
REASON: It is a basic constitutional rule that the
State cannot be sued without its consent. Consent of
the State to be sued can be manifested through a
special law or general law allowing the State to be
sued (AQUINO, Torts and Damages, supra at 6732).
EXCEPTIONS:
1. Special Agent
- one specifically commissioned to carry out the
acts complained of outside of such agent's
reqular duties (Republic v. Hon. Palacio, G.R.
No. L-20322, May 29, 1968).
The responsibility of the state is limited by Article
.1903 of the Civil Code to ·the case wherein it
·oa:cts.tht;!=\\Jgh a special agent (and a special agent
is ohe'wrib receives a definite and fixed order or
commissibh, foreign to the exercise of the duties
of his office if he is a special official) so that in
repres(;lntation of the state and being bound to
act as an ,agent thereof, he executes the trust
confided to him., This concept does not apply to
any;e)(~,qqfiY,~;§lf)er'lt who is an employee of the
acting admhiistration and who on his own
responsibility performs the functions which are
ir,herent in and naturally pertain to his office and
~hi9'), l'l:Ce regulated by law and the regulations
''(Meiriftv. Government of the Philippine Islands,
G.R. No. 11154, March 21, 1916).
2. Government Owned and Controlled
Corporations
- Not all government entities, whether corporate
or non-corporate, are immune from suits.
Immunity is determined by the character of the
objects for which the. entity was organized
(Philippine National Railways v. /AC, G.R. No.
70547, January 22, 1993).
The point is that when the government enters into
a commercial business it abandons its sovereign
capacity and is to be treated like any other private
corporation (Id.).
Two Aspects of Liability:
1. Its public or governmental aspects where it is
liable for the tortious acts of the special
agents only.

2. Its private or business aspects (as when it
engages in private enterprise) where it
becomes liable as an ordinary employer.
NOTE: The State's agent, if a public official, must
not only be specially commissioned to a
particular task but that such task must be foreign
to said officials' usual governmental functions
(Sps. Fontanilla v. Maliaman, G.R. No. 55693,
December 1, 1989).
Liability of Other Public Corporations or
Officers
a. Municipal Corporations - Provinces, cities
and municipalities shall be liable for the death
of, or injuries suffered, by any person by
reason of the defective condition of roads,
streets, bridges, public buildings and other
public works under their control or
supervision (CIVIL CODE, Art. 2189).
b. Public Officers - A public officer is by law
not immune from damages in his/her
personal capacity for act::; done in bad faith
which, being outside the sc9pe of his
authority, are no longer protected by the
mantle of immunity for official actions
(Vinzons - Chato v. Fortune Tobacco
Corporation, G.R. No, 141309, June 19,
2007).
It is not necessary that the defendant
under Article 32 should have acted with
malice or bad faith, otherwise, it would
defeat its main purpose, which is the
effective protection of individual rights. It
suffices that there is a violation of the
constitutional right of the plaintiff (Silahis
International Hotel, Inc. v. Soluta, G.R. No.
163087, February 20, 2006).
3. Judges
- not liable for damages for errors in deciding
cases (Barroso v. Arche, A.G. No. 216-CFI,
September 30, 1975).
SCHOOLS, TEACHERS AND
ADMINISTRATORS
They are liable for damages caused by the pupils and
students or apprentices in their custody, instruction or
supervision, whether academic or non-academic
(AQUINO, Torts and Damages, supra at 674).
NOTE: Article 218 of the Family Code expressly
provides that the responsibility and authority of the
school and other persons exercising special parental
authority shall apply to all authorized activities
whether inside or outside the premises of the school,
entity, or institution (Id. at 632).
TORTS AND DAMAGES
Civil Law
When an academic institution accepts students for
enrollment, there is established a contract between
them, resulting in bilateral obligations which parties
are bound to comply with. For its part, the school
undertakes to provide the student with an education
that would presumably suffice to equip him with the
necessary tools and skills to pursue higher education
or a profession. On the other hand, the student
covenants to abide by the school's academic
requirements and observe its rules and regulations
(St. Luke's College of Medicine-William H. Quasha
Memorial Foundation v. Spouses Perez, _G.R. No.
222740, September 28, 2016).
STATUTORY BASIS OF LIABILITY:
1. Article 219 of the Family Code
- applies if the student is a minor.
Persons Liable:
a. School, administrators, teachers or
individual, institution engaged in child care
·- (e.g., ,Day care center) - principally and
solidarily liable.
Jii'o:fE:Proof of exercise of proper diligence
required under the particular circumstances
rtiay be ~ defe'nse.
b_. Parents , and ttmse exerc1s1ng substitute
parental ' authority - subsidiarily liable
(FAMILY CODE, Art. 219).
·, v, '
2. Art. 2180 of the Oivil Code
- applies even if student is NO longer a minor
(AQUINO; Torts qnd Damages, supra at 681).
Persons liable:
, a.' Teachers or heads of establishments of arts
.· andtrades - liable for damages caused by
their students so long as they remain in their
custody.
b. By way of exception, it is only the head of the
school who is liable where the injury is
caused in a school of arts and trade
(Amadora V. CA, G.R. No. L-47745, April 15,
1988).
3. Article 103 of the Revised Penal Code
,
- the subsidiary liability of the employer under
Article 102 shall also apply to teachers for
felonies committed by their pupils.
The phrase "so long as (the students) remain in
their custody" means the protective and supervisory
custody that the school and its heads and teachers
exercise over the pupils and the students for as long
as they are at attendance in the school, including
recess time. Nothing in the law requires that for such
liability to attach, the pupil-tortfeasor must live and

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San Bede University College of law - RGCT Bar Operations Center
board in the school (Spouses Palisoc v. Brillantos,
G.R. No. L-29025, October 4, 1971).
While the custody requirement does not mean that
the student must be boarding with the school
authorities, it does signify that the student should be
within the control and under the influence of the
school authorities at the time of the occurrence of the
injury. This does not necessarily mean that such,
custody be co-terminus with the semester, beginning
with the start of classes and ending upon the close
thereof, and excluding the time before or after such
period, such as the period of registration, and in the
case of graduating students, the period before the
commencement exercises. In the view of the Court,
the student is in the custody of the school
authorities as long as he is under the control and
influence of the school and within its premises,
whether the semester has not yet begun or has
already ended (Amadora v. CA, G.R. No. L-47745,
April 15, 1988).
As long as it can be shown that the student is in the
school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right,
and even in the enjoyment of a legitimate student
right, and even in the enjoyment of a legitimate
student privilege, the responsibility of the school
authorities over the student continues. Indeed, even
if the student should be doing nothing more than
relaxing in the campus in the company of his
classmates and friends and enjoying the· ambience
and atmosphere of the school, he is. stilt within the
custody and subject to the discipline of the school
authorities under the provisions of Article_ 2180 {Id.).
In one case, the Court ruled that it is only the teacher
and not the head of an academic school, whether
academic or non-academic, who ·should be
answerable for torts committed by their _children
(Ylarde v. Aquino, G.R. No. L-33722, July 29, 1988).
RULE ON ACTS COMMITTED OUTSIDE
SCHOOL
There are instances where the school might be called
upon to exercise its power over its student for acts
committed outside the school premises and beyond
school hours in the following:
1. In cases of violation of school policies or
regulations occurring in connection with school
sponsored activity off-campus; or
2. In cases where the misconduct of the student
involves his status as a student or affects the
good name and reputation of the school (Angeles
v. Sison, G.R. No. L-45551, February 16, 1982).
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ACTUAL TORTFEASOR IS NOT EXEMPT
FROM LIABILITY
The minor, ward, employee, special agent, pupil,
student and apprentice who actually committed the
delictual acts are not exempted by the law from
personal responsibility. They may be sued and made
liable alone as when the vicarious obliger proves that
lie exercised the diligence of a good father of a family
(OE LEON, Torls and Damages, supra at 396).
NATURE OF RESPONSIBILITY OF
VICARIOUS OBLIGOR
The liability of the vicarious obligor is primary and
direct, not subsidiary. His responsibility is not
conditioned upon the insolvency or prior recourse
against the negligent tortfeasor (De Leon Brokerage
Co. Inc. v. CA, G.R. No. L-15247, February 28, 1962).
PARTNERSHIP
Liability is entirely imputed, and the partnership
cannot obviously invoke diligence in the selection and
supervision of the partner (AQUINO, Torts and
Damages, supra at 729).
• 'fESl::OF),;.IABILITY
Whether the wrong was committed in behalf of the
partnership an'd within the reasonable scope of its
business. and if so, the partners are all liable as joint
tortfeasors (Id.).
· a. Absolute.:coffiinunity of property
It is answerable for liabilities incurred by either
.. _spouse by reason of crime or quasi-del1ct in case
; , ;_9f.iabsence or insufficiency of the exclusive
prcip'E!rty' of the debtor-spouse.
Payments considered as advances to be
deducted from the share of the debtor-spouse
upon liquidation of the community (FAMILY
CODE, Art. 94, par. 9).
b. Conjugal partnership of gains
GENERAL RULE: Pecuniary indemnities
imposed upon the husband or wife are not
chargeable against the conjugal partnership but
against the separate properties of the wrongdoer
(AQUINO, Torts and Damages, supra at 731).
EXCEPTIONS: Conjugal partnership should be
made liable:
i. When the profits have inured to the benefit of
the partnership; or
ii. If one of the spouses committed the tort while
performing a business or if the act was
supposed to benefit the partnership. (Id.).
 TORTS AND DAMAGES
Civil Law

c. Separation of Property Regime who can be held responsible in case of accident,

Each spouse is responsible for his/her separate damage or injury caused by the vehicle, so as not
obligation (Id.). to inconvenience or prejudice a third party injured
by one whose identity cannot be secured
MOTOR VEHICLE MISHAPS (Cadiente v. Macas, G.R. No. 161946, November
14, 2008).

NOTE: It is imperative to apply the registered-

The owner is inside the vehicle The owner is
owner rule in a manner that harmonizes it with
at the time of the accident. He solidarily liable
Articles 2176 and 2180 of the Civil Code. Rules
could have, by the use of with his driver.
must be construed in a manner that will
diligence, prevented the
harmonize them with other rules so as to form a
misfortune but did not do so RATIO: The
uniform and consistent system of jurisprudence.
(PINEDA, Torts and Damages, owner's own
In light of this, the words used in Del Carmen are
supra at 126). omission is a
particularly notable. There, this court stated that
concurring
Article 2180 "should defer to" the registered-
proximate cause
owner rule. It never stated that Article 2180
of the injury.
should be totally abandoned (Caravan Travel and
The driver was found guilty of The driver is Tours International, Inc. v. Abejar, GR. No.
reckless driving or violating disputably 170631, February 10, 2016).
traffic regulations at least twice presumed
within the next preceding two negligent, Therefore, the appropriate approach is that in
months before the accident: cases where both the registered-owner rule and
Article 21_ 80 apply, the plaintiff must:
1. First, establish that the employer is the
registered owner of the vehicle in question.
The owner was not in the Article 2180 2. Once the plaintiff successfully proves
motor vehicle at the time of the applies. ownership, there arises a disputable presumption
accident. that the requirements of Article 2180 have been
proven. (Id.).
(CIVIL CODE, Art. 2184).
NOTE: As a, consequence, the burden of proof
NOTE: It refers to owners of vehicles who . are not shifts to the defendant to show that no liability
included in the terms of Article 2faoas "owne'rs of an under Article 2180 has arisen. (Id.).
establishment or enterprise.~ It is intended to cover
owners of vehicles for private use (OE LEON, Torts
2. leasecjVehicles
and Damages, supra at 422).
The registered owner of any vehicle, even if not
fof public service, is primarily liable to third
There is a rebuttable presumptiori'that a driver of a
persons for deaths, injuries, and damages that it
motor vehicle has been negligent if at the time.of the caused. The rule applies even if the vehicle is
mishap, he was violating any traffic reguration (CIVIL
leased to third persons (BA Finance Corporation
CODE, Art. 2185). ..
v. CA, G.R. No. 94566, July 3, 1992).

REGISTERED OWNER RULE 3. Stolen Vehicles

1. Liability However, th.e registered owner is not liable when
The registered owner of a vehicle is primarily an accident was caused by the person who stole
responsible to the public tor whatever damage or it (Ouavit v. CA, G.R. No. 82318, May 18, 1989).
injury the vehicle may cause even if he had
already sold it to someone else (Erezo v. Jepte, 4. Kabit System
GR No. L-9605, September 30, 1957). The "registered owner" rule is applicable. The
registered owner who is sought to be liable for
Where the registered owner is allowed to evade quasi-delict cannot be allowed to prove the actual
responsibility by proving who the supposed operator of the vehicle involved in the accident
transferee or owner is, it would be easy for him, (Lim v. CA, GR. No. 125817, January 16, 2002).
by collusion with others or otherwise, to escape
said responsibility by transferring the same to an
indefinite person who possesses no property with
which to respond financially for the damage or
injury done. The policy behind the vehicle
registration is the easy identification of the owner
 fii@f4@J#i \ I
MEM✓CtRY AID
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RECOURSE OF THE REGISTERED
OWNER
The liability is subject to his right of recourse against
the transferee or buyer (AQUINO, Torts and
Damages, supra at 710).
NOTE: The policy cannot be applied if the plaintiff is
ti 1e person who is 8llogodly involved in such system
(Lim v. CA, CA, G.R. No. 125817, January 16, 2002).
EMPLOYER- EMPLOYEE RELATIONSHIP
The registered owner of the motor vehicle is
considered as the employer of the tortfeasor-driver ,
and is made primarily liable for the tort committed by
the latter under Article 2176, in relation with Article
2180, of the Civil Code (Metro Manila Transit
Corporation v. Cuevas, GR. No. 167797, June 15,
2015).There must be an employer-employee
relationship between the driver and the present
owner-buyer-lessee (who is deemed the registered
owner) and the driver must have caused the injury in
the performance of his functions (AQUINO, Torts and
Damages, supra at 718).
NOTE: Even if a sale has been executed before a
tortuous incident, the sale, if unregistered, has no
effect as to the right of the public and third _persons to
recover from the registered owner (PCI Leasing and
Finance, Inc v. UCPB General Insurance, Inc., G.R.
No. 162267. July 4, 2008).
JOINT TORTFEASORS
Two (2) or more persons acting together in
committing a wrong, or contributing to its commission,
or assisting or participating therein actively and with
common intent, so that injury results to a third person
therefrom (DE LEON, Torts and DamagfJs, supra at
18).
Test:
1. Whether plaintiff has a single cause of action
against such tortfeasors; or
2. Whether plaintiff has several causes of action
against each of tortfeasors (Id. at 18-19).
A payment in full for the damage done, by one of the
joint tortfeasors, of course satisfies any claim which
might exist against the others. There can be but
satisfaction. The release of one of the joint tortfeasors
by agreement generally operates to discharge all
(Lafarge Cement Philippines, Inc. v. Continental
Cement Corporation, G.R. No. 155173, November
23, 2004).
No actor's negligence ceases to be a proximate
cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is
responsible for the entire result and is liable as
though his acts were the sole cause of the injury (Far
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Eastern Shipping v. CA, G.R. No. 179446, January
10,2011).
Although the employer is not the actual tortfeasor, the
law makes him vicariously liable on the basis of the
civil law principle of pater familias for failure to
exercise due care and vigilance over the acts of one's
subordinates to prevent damage to another. In the
last paragraph of Article 2180 of the Civil Code, the
employer may invoke the defense that he observed
all the diligence of a good father of a family to prevent
damage (Fi/car Transport Services v. Jose Espinas,
G.R. No. 174156, June 20, 2012).
SOLIDARY LIABILITY OF JOINT
TORTFEASORS
The responsibility of two or more persons who are
liable for a quasi-delict is solidary (CIVIL CODE, Art.
2194).
Under Article 2194 of the Civil Code, joint tortfeasors
are solidarity liable for the resulting damage. In other
words, joint tortfeasors are each liable as principals,
to the same extent and in the same manner as if they
had performed the wrongful act themselves (People
v.Velasco, .G.R. No. 195668, June 25, 2014).
There is no .. contribution between joint tortfeasors
whose liability is solidary since both of them are liable
. for the total "damage. Where the concurrent or
: ; successive negligent acts or omissions of two or
more persons,' althdugh acting independently, are in
combinafiori the direct and proximate cause of a
single injury fo a third person, it is impossible to
determine in what proportion each contributed to the
· .. injury and either of them is responsible for the whole
inii,Jry(.P~op/e v. Velasco, G.R. No. 195668, June 25,
2014).
Joint tortfeasors are jointly and severally liable for.the
tort which they commit. The persons injured may sue
all of them or any number less than all. Each is liable
for the whole damages caused by all, and all together
are jointly liable for the whole damage. It is no
defense for one sued alone, that the others who
participated in the wrongful act are not joined with him
as defendants; nor is it any excuse for him that his
participation in the tort was insignificant as compared
to that of the others (Sing v, Li Seng Giap & Sons Inc.,
G.R. No. 170596, November 28, 2008).
CONCURRENT NEGLIGENCE
Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting
independently, are, in combination, the direct and
proximate cause of a single injury to a third person
and it is impossible to determine in what proportion
each contributed to the injury, either is responsible for
the whole injury, even though his act alone might not

have caused the entire injury, or the same damage
might have resulted from the acts of the other
tortfeasor (PNCC v. CA, G.R. No. 159270, August 22,
2005).
In other words, where their concurring negligence
resulted in injury or damage to a third party, they
become joint tortfeasors and are solidarily liable for
the resulting damage under article 2194 of the Civil
Code (Loadmasters Customs Services, Inc. v. G/ode/
Brokerage Corporation, G.R. No. 179446, January
10, 2011).
In case of an injury to a passenger due to the
negligence of the driver of the bus on which he was
riding, and the driver of the other vehicle, the drivers
and owners of the two vehicles are jointly and
severally liable for dam.ges (Construction Dev. Corp.
of the Phils. v. Estrella, et. al., G.R. No. 147791,
September 8, 2006).
Where the obligation of the parties is solidary, ~ither
of the parties is indispensable, and. the other is r19t
even a necessary party because Complete ,relief· is
available from either (Cerezo v. Tuazon, G.R.' No.
141538, March 23, 2004). ·
I PROXIMATE CAUSE
I factor (Id.).
PROXIMATE CAUSE
That cause which, in natural anti continuous
sequence, unbroken by any· efficient" intervening
cause, produces the injury, without which the.result
would not have occurred (Dela Cruz v. Viano, GR.
No. 219649, July 26, 2017).
REMOTE CAUSE
That cause which some independent force merely
took advantage of to accomplish something not the
natural effect thereof (AQUINO, Torts and Damages,
supra at 334).
NEAREST CAUSE
That cause which is the last link in the chain of events;
the nearest in point of time or relation {Id. at 336).
NOTE: Proximate cause is not necessarily the
nearest cause (Id at 334.).
CONCURRENT CAUSES
Where several causes producing the injury are
concurrent and each is an efficient cause without
which the injury would not have happened, the injury
may ,be attributed to all or any of the causes and
recovery may be had against any or all of the
TORTS AND DAMAGES
Civil Law
responsible persons (Far Eastern Shipping Co., v.
CA, G.R. No. 130068, October 1, 1998).
The actor is liable even if the active and substantially
simultaneous operation of the effects of a third
person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm so long
as the effects of the actor's negligent conduct actively
and continuously operate to bring about harm to
another (Africa v. Caltex. G.R. No. L-12986, March
31 1966).
CAUSE-IN-FACT
In determining the proximate cause of the injury, it is
first necessary to determine if defendant's negligence
was the cause-in-fact of the damage to the plaintiff. If
defendant's negligence was not a cause-in-fact, the
inquiry stops; but if it is a cause-in-fact, the inquiry
shifts to the question of limit of liability of the
defendant (AQUINO, Torts and Damages, supra at
341).
It is necessary that there is proof that defendant's
conduct is a factor in causing plaintiff's damage (Id,
at347-348),
NOTE: What needs to be determined is whether the
defenclant's act or omission is a casually relevant
CAUSE-IN-FACT TESTS
1. Sine Qua Non Test (but-for test)
Qefendant' 9 conduct is the cause in fact of the
• Injury undE?r the "byt-for-test" if the damage would
not have resulted had there been no negligence
on the· part of the defendant. Conversely,
defendant's negligent conduct is not the cause in
f$ct·of the plaintiff's damage if the accident could
not have been avoided in the absence thereof
(Id.),
NOTE: The concept "where if the first object had
not been, the second never had existed" is the
foundation of the "but-for-test" (Id.).
2. Substantial Factor Test
Makes the negligent conduct the c~use in fact of
the damage if it was a substantial factor in
producing the injuries (Id. at 349). The accident
would not have occurred had there been no
negligence of the part of the _defendant, the
defendant's conduct is a substantial factor in
bringing about the damage or injury (Id.).
3. Necessary element of Sufficient Set
(NESS Test)
The negligent act o, omission is a cause-in-fact
of the damage if it is a necessary element of a
sufficient set (NESS) (Id. at 350).

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San Beda University College of Law - RGCT Bor Operations Center
NOTE: Whether a particular condition qualifies
as a casually relevant factor will depend on
whether it was necessary to complete a set of
conditions jointly sufficient to account for the
given occurrenc'e (Id.).
Duplicative v. Pre-emptive Causation
Duplicative Causation occurs when two (or more)
such sets operate simultaneously to produce the
effect; in other words, the effect is over-
determined. Pre-emptive causation, by contrast,
occurs when one causal set 'trumps' another,
potential set lurking in the background (Id. at 351-
352).
Illustration: Suppose a man slips while running
down a slippery stair and two candidate causes
can be seen because they are not normally
present: (a) the man slipped simply because he
was running; and (b) the man slipped because
the stairs is slippery. There are at least four
possibilities here.
(a) The slippery stair is the only cause. The man
would have slipped even 1f he were not
running;
(b) The slippery stair is only one of the causes
simultaneously occurring. The fact that the
man was running was sufficientfor the injury,
by the fact that the stairs was slippery was
equally sufficient. There are two overlapping
causal sets.
(c) The slippery stair was a member of a causal
set contributing to the effect The slippery
stairs alone would not have been sufficient to
. cause the injury and the fact tnat .the man
was running was equally insufficient. . T('le
injury was a cumulative effect of all the
causes. .
(d) The slippery stairs may not have caused the
· injury. One possibility is that the man's
running may have been the only cause; it is
part of a set that was necessary.
In these cases, the slippery stairs will be
considered as a cause-in-fact of the injury
situations contemplated in (a), (b), and (c)
and obviously not in situation (d) (Id. at 352-
353).
NOTE: According to AQUINO, there is no statutory
provision in this jurisdiction that mandates the use of
a particular cause-in-fact test. But the primary test
in determining the cause-in-fact of the damage is
the "but-for-test". However, in cases involving
duplicative causes, either the Substantial Factor Test
or the "NESS" Test can be applied (Id. at 359).
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EFFICIENT INTERVENING CAUSE
One which destroys the causal connection between
the negligent act and the injury and thereby negatives
liability (novus actus interviens) (AQUINO, Torts
and Damages, supra at 370).
It will be regarded as the proximate cause and the
first cause as too remote, where the chain of events
is so hrokan that they become independent 8nrl thP.
result cannot be said to be the consequence of the
primary cause (Id.).
There is no efficient intervening cause if the force
created by the negligent act or omission have either:
1. Remained active itself;
2. Created another force which remained active
until it directly caused the result, or
3. Created a new active risk of being acted upon by
the active force that caused the result (Id.).
TEST OF SUFFICIENCY:
1. It must be new and independent and not under
the control of the wrongdoer, or one which by the
exercise of reasonable foresight and diligence,
. he should .have anticipated and guarded against
:if;. : ·t ::i. :
2. It must brnak the continuity of the causal
connection '.between the original negligent act
and omission; and
3. The injury so that \he former cannot be said to
have _been the efficient cause of the latter (Id. at
370c$71J, ... ..
. VIOL~ii~~,~#' 'A STATUTE
The mere fact of violation of a statute is NOT
::. sut'fit:ient basis for an inference that such violation
,::*a~f'.the.:-proximate cause of the injury complained.
However, if the very injury has happened which was
intended to be prevented by the statute, it has been
held that violation of the statute will be deemed to be
the proximate cause of the injury (Teague v.
Fernandez, G.R. No. L-29745. June 4, 1973).
FORESEEABLE INTERVENING CAUSE
This cannot be considered as a sufficient intervening
cause because there is · an opportunity to guard
against it (AQUINO, Torts and Damages, supra at
373).
NOTE: If the intervening cause is a recurrent feature
of the environment, it is not an efficient intervening
cause because it is foreseeable (Id. at 374).
A tortfeasor is liable for the consequence of
negligence, mistake or lack of skill of a physician or
surgeon whose treatment aggravated the original
injury. The same is considered a normal and
foreseeable risk (Id.).

UNFORESEEN AND UNEXPECTED ACT
OR CAUSE
The intervention of an unforeseen and unexpected
cause is not sufficient to relieve the wrongdoer from
consequences of negligence if such negligence
directly and proximately cooperates with the
independent cause in the resulting injury (Africa v.
Caltex, G.R. No. L-12986, March 31 1966).
An unforeseen and unexpected act of a third person
may not be considered an efficient intervening cause
if it is duplicative in nature or if it merely aggravated
the injury that resulted because of the prior cause.
The same conclusion can be reached if the third
person's act is part of the causal set, together with the
defendant's negligence, that operated to cause the
injury (AQUINO, Torts and Damages, supra at 375-
376).
CAUSE AS DISTINGUISHED FROM
CONDITION
The Supreme Court adopted the view that it is no
longer practicable to distinguish between cause and
condition {Id. at 366).
Many courts have sought to distinguish between the
active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the
defendant has created only a passive statiocondition,
which made the damage pos!>ible; the defendant is
said not to be liable. It is not the distinction between
"cause" and "condition" which is important but the
nature of the risk and the cha.racter o.f the intervening
cause (Phoenix Construction v. !AC, G.R. No: L-
65295, March 10, 1987).
DOCTRINE OF LAST CLEAR CHANCE
This principle states that the contributory negligence
of the person injured will not defeat the c!airti for
damages. if it is shown that the defendant might, by
the exercise of reasonable care and prudence, have
avoided the consequences of the negligence of the
injured party {ALBANO, Torts and Damages, supra al
40). .
Under this doctrine, the negligent act emanates
originally from the plaintiff buJ the defendant is aware
of that peril, to which the plaintiff has been exposed
to, yet he does not perform an act to avoid_ the
accident. The defendant is liable for damages
because he has not exercised the required degree of
diligence (Id.).
Sometimes referred to as:
1. Discovered Peril (AQUINO, Torts and Damages,
supra at 347); _ .
2. Doctrine of Supervening Negligence (Smg v. L,
Seng Giap & Sons, Inc., GR. No. 170596,
November 28, 2008); or
TORTS AND DAMAGES
Civil Law
3. Humanitarian Negligence Doctrine (PINEDA,
Torts and Damages, supra at 58).
Even though a person's own acts may have placed
him in a position of peril, and an injury results, the
inJured person is entitled to recovery (AQUINO, Torts
and Damages, supra at 384).
Elements: (PoKLA)
1. Plaintiff was in a Position of danger and, by his
own negligence, became unable to escape from
such position by the use of ordinary care;
2. Defendant Knew -that the plaintiff was in a
_ position of danger or in the exercise of ordinary
· care should have known such;
3. Defendant had the Last clear chance to avoid the
accident by the exercise of ordinary care but
failed to exercise such last clear chance; and
4. The Accident occurred as a proximate result of
such -failure (DE LEON, Torts and Damages,
supra at 291).
In Philippine Bank of Commerce v. CA (G.R. No.
97626, March 14, 1997), the doctrine of last clear
. chance was applie<:l to a banking institution. The
Supreme Court ruled that the bank, thru its teller, had
the last clear opportunity to avert the injury incurred
by its client, simply by faithfully observing their self-
imposed validation procedure.
Cases when the,doctrine was held inapplicable:
1. If the p!aintiff'was not negligent;
2. The defendant isrequired to act instantaneously,
and if the injury cannot be avoided by the
application of all the means at hand after the peril
is or shoJtld have been discovered;
3. If def(;)lidant's negligence is a concurrent cause
and which wasstill in operation up to the time the
injury was inflicted;
4. V\,/here the plaintiff, a passenger, filed an action
·against a carrier based on contract; and
5. If the actor, though negligent, was not aware of
the danger or risk brought about by the prior fraud
or negligent act (Bank of the Philippine Islands v.
CA, G.R. No. 102383, November 26, 1992).
Under the Doctrine of Last Clear Chance, the one
who has the last reasonable opportunity to avoid the
impending harm and fails to do so is chargeable with
the consequences without reference to the prior
negligence of the other party (Gian People's Lumber
Hardware v. /AC, G.R. No. 70493, May 18, 1989).
The Doctrine of Last Clear Chance cannot be
extended into the field of joint tortfeasors as a test of
whether only one of them should be held liable to the
injured person and it cannot be invoked as between
defendants concurrently negligent (E3ustamante v.
CA, G.R. No. 89880, February 6, 1991).
 MEM:Q~Y AID
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TORTS COVERED BY
THE CIVIL CODE
PROVISIONS ON
HUMAN RELATIONS
CATCH ALL PROVISIONS (CIVIL CODE,
ARTS. 19-21)
Articles 19, 20, and 21 are provisions on human
relations that "were intended to expand the concept
of torts in this jurisdiction by granting adequate legal
remedy for the untold number of moral wrongs which
is impossible for human foresight to specifically
provide in the statutes." (AQUINO, Torts and
Damages, supra at 392).
CLASSES:
1. Abuse of Right
2. Acts Contrary to Law
3. Acts Contrary to Morals or Acts Contra Bonus
Mores
Justice Leonen aptly elaborated on the distinctive
applications of Articles 19. 20 and 21, which are
general provisions on human relations. vis-a-vis
Article 2176, which particularly governs quasi-delicts:
"Article 19 is the general rule which governs the
conduct of human relations. By itself, it is not the
basis of an actionable tort. Article 19 describes the
degree of care required so that an actionable tort may
arise when it is alleged together with Article 20 or
Article 21.
Article 20 concerns violations of existing law as
basis for an injury. It allows recovery should the act
have been willful or negligent. Willful may refer to the
intention to do the act and the desire to achieve the
outcome which is considered by the plaintiff in tort
action as injurious. Negligence may refer to a
situation where the act was consciously done but
without intending the result which the plaintiff
considers as injurious.
Article 21, on the other hand, concerns injuries that
may b_e caused by acts which are not necessarily
proscribed by law. This article requires that the act be
willful, that is, that there was an intention to do the act
and a desire to achieve the outcome. In cases under
Article 21, the legal issues revolve around whether
such outcome should be considered a legal injury on
the part of the plaintiff or whether the commission of
the act was done in violation of the standards of care
required in Article 19 (Alano v. Magud-Logmao, G.R.
No. 175540, April 7, 2014 (J. Leanen, Concurrin9)
cited by AQUINO, Torts and Damages, supra at 393).
Article 2176 _covers situations where an injury
happens through an act or omission of the defendant.
When it involves a positive act, the intention to
commit the outcome is irrelevant. The act itself must
no~ ?e a breach of an existing law or a pre-
existing contractual obligation. What will be
considered is whether there is "fault or negligence"
attending the commission of the act which
necessarily leads to the outcome considered as
injurious by the plaintiff. The required degree of
diligence will then be assessed in relation to the
circumstances of each and every case (Alano v.
Magud-Logmao, supra).
Thus, with respect to negligent acts or omissions, it
shoLJld therefore be discerned that Article 20 of the
Civil Code concerns "violations of existing law as
basis for an injury", whereas Article 2176 applies
when the negligent act causing damage to
another does not constitute "a breach of an
existing law or a pre-existing contractual
obligation." (St. Martin Polyclinic, Inc. v. LWV
c;onstruction Corporation, G.R. No. 217426, 4
December 2017).
ABUSE OF HIGHT
Standards in the exercise of one's rights and in the
performance of one's duties:
· 1. To act with justice;
2. To give everyone his due; and
3. To observe honesty and good faith (CIVIL CODE,
Art. 19).
Aright, though by itself legal because it is recognized
or granted by law as such, may nevertheless become
the source of some illegality (Ardiente v. Sps. Javier ,
and Ma. Theresa Pastorfide, GR. No. 161921, July
17, 2013).
When a right is exerdsed in a manner which does not
conform to these standards and results in damage to
another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible (Ardiente v.
Sps. Javier and Ma. Theresa Pastorfide, G.R. No.
161921, July 17, 2013).
The following e·lements must concur: (LEP)
1. Existence of a 1,egal right or duty;
2. Which is Exercised in bad faith·
3. For the sole intent of frejudicing or injuring
another (Padillo v. Rural Bank of Nabunturan.
Inc., GR. No. 199338, January 21, 2013). · ·
Good Faith refers to the state of mind which is
manifested by the acts of the individual concerned. It
consists of the intention to abstain from taking an
unconscionable and unscrupulous advantage of
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another (California Clothing Inc. v. Shirley G.
Quinones, GR. No. 175822, October 23, 2013).
Malice or Bad Faith implies a conscious and
intentional design to do a wrongful act'for a dishonest
purpose or moral obliquity (California Clothing Inc. v.
Shirley G. Quinones, GR No. 175822, October 23,
2013),
ACTS CONTRARY TO LAW (CIVIL CODE,
ART. 20)
This article speaks of the general sanction for all
other provisions of law, which do not especially
provide for their own sanction (OE LEON, Torts and
Damages, supra at 79-80). ·
NOTE: Art. 20 does not distinguish; the act may be
done willfully or negligently (Id),
In the case of Bacolod-Murcia Milling Co. First
Farmers Milling Co. NIDC and PNB extended loans
to defendant sugar mills, which petitioner al)eges that
assists in the illegal creation and operation of said
mills, it therefore filed an action fo.r injunction af)d
prohibition with damages against NIDC and PNB.
The Supreme Court dismissed the petition, and held
that, what appears from the record is thafPNB and
NIDC came into the picture in the ordinary:and usual
course of its business after the borrowing entity had
established itself as capable of being treated as a
new milling district because it could already operate
and had its array of adhering partners (Bacolod-
Murcia Milling Co. v. First Farmers·;Milling Co., G.R:
No. L-29041, March 24, 1981), ·
RATIONALE: The doing of an act which is iri itself
perfectly lawful will not render one liable as for a tort,
simply because the unintended effect of such at is to
enable or assist another person to do or ac6bmplisli
a wrong (Id.).
ACTS CONTRARY TO MORALS OR ACTS
CONTRA BONUS MORES (CIVIL CODE,
ART. 21)
This article is designed to fill in the "countless gaps
in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually
suffered material and moral injury" (DE LEON, Torts
and Damages, supra at 80).
Elements: (LCD)
1. Act which is ,begal;
2. The act is ~ontrary to morals, good customs,
public order or public policy; and
3. The act is Qone with intent to injure (Mendoza v.
Spouses Gomez, G.R. No. 160110, June 18,
2014).
i ~ :' r::- '
TORTS AND DAMAGES
Civil Law
,,, '
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NOTE: Damages are recoverable even if no positive
law was violated (DE LEON, Torts and Damages,
supra at 361).
Illustrative Cases (BAD-ST AMPID)
1. §reach of Promise to Marry
GENERAL RULE: Breach of promise to marry
by itself is not actionable (AQUINO, Torts and
Damages, supra at 416).
EXCEPTIONS: In cases where there is an act
independent of the breach of promise to marry
which gives rise to liability:
a. Cases where there was financial damage
(Id.).
To formally set a wedding and go through
and spend for all the wedding preparations
and publicity, only to walk out of it when the
matrimony was about to be solemnized, is
v. palpably and unjustifiably .contrary to good
customs for which the defendant is
answerable for damages (Wassmer v. Velez,
G.R. _No. L-20089, December 26, 1964).
b. Social humiliation caused to one of the
parties (Id.)
c. Where there was moral seduction (Id.).
Moral seductiQn; although not punishable,
connote~ the · idea of deceit, enticement,
superior power or abuse of confidence on the
part of the sedµcer to which the woman has
yieldep (Bak~h v. CA, G.R. No. 97336,
February 19, 1993).
Breac~ of'promise to marry per se is not an
actionable wrong. But where a man's
promise to marry is in fact the proximate
cause of the acceptance of his love by a
woman and his representation to fulfill that
promise thereafter becomes the proximate
cause of the giving of herself unto him in a
sexual congress, proof that he had, in reality,
no intention of marrying her and that the
promise was only a subtle scheme or
deceptive device to entice or inveigle her to
accept him and to obtain her consent to the
sexual act, could jtistify the award of
damages pursuant to Article 21 not because
of such promise to marry but· because of the
fraud and deceit behind it and the willful injury
to her honor and reputation which followed
thereafter. It is essential, however, that such
injury should have been committed in a
manner contrary to morals, good customs or
public policy (Baksh v. CA, G.R. No. 97336,
February 19, 1993).

fk&Eij@'P \ /
MEM✓Q-RY Al D
San Boda University Coiiege of Law - ROCT Bar Operations Cent~r
No damages can be recovered under Art. ·19
and 21 where the sexual intercourse is a
product of voluntariness and mutual desire
(Constantino v. Mendez, G.R. No. 57227,
May 14, 1992). . Art. 448, 456).
2. Sexual ~ssault
Defendant is liable for all forms of sexual assault.
These include the crimes defined in the Revised
Penal Code such as rape, acts of lasciviousness,
and seduction (AQUINO, Torts and Damages,
supra at 421).
NOTE: Defendant is liable even if he satisfied his
lust without promising to marry the offended
party. It may not even matter that the plaintiff and
the defendant are of the same gender (Id.).
3. Qisconnection of Utilities
In case a person fails to pay 1 of 2 overdue bills
and consequently, his line gets disconnected
without prior notice. the SC ruled that the state
may regulate, as it has done through Section 97
of the Revised Order No. 1 of the Pu.blic Service
Commission, the conditions under which and the
manner by which a public utility such as Meralco
may effect a disconnection of service to a
delinquent customer. Among others, a prior
written notice to the customer is required before
disconnection of the service. Failure to give such
prior notice amounts to a tort (Mera/co v. CA,
G.R. No. L~39019, January 22, 1988) ..
4. .§eduction Without Breach of Promise to
Marry
Seduction, by itself, is also an act contrary to
morals, good customs and public policy.
(AQUINO, Torts and Damages, supra at 421),
The defendant is liable if he employed geceit,
gnticement, 2 uperior power or !!buse of
confidence (DESA) in successfully having sexual
intercourse with another even if he satisfied his
lust without promising to marry the offended
party.
It may not even matter that the plaintiff and the
defendant are of the same gender (Id.).
5. Irespass and Deprivation of Property
Kinds:
a. Trespass to and/or deprivation
property.
This is committed when a person unlawfully
invades the real property of another. Intent or
bad faith is required for liability for damages
under the Revised ·Penal Code and Article
451 of the Civil Code to attach (Id. at 422).
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No c:1diur1 for damages is allowed where the
builder, planter, or sower acted in good faith.
The landowner is limited to the options
provided for under Article 448 (CIVIL CODE:
A builder in good faith who acted negligently
may be held liable under Article 2176.
b. Trespass to or deprivation of personal
property.
Theft or robbery of personal property is
trespass.
In the field of tort, trespass extends to all
cases where a person is deprived of his
personal property even in the absence of
criminal liability (AQUINO, Torts and
Damages, supra at 424).
NOTE: It may cover cases where the
defendant was deprived of personal property
for the purpose of obtaining possession of
real property (Id.). ·
Ulusttation:
1. Petitioners, in the case of Magbanua v.
/AC were denied irrigation water for. their
far,m lots in order to make them vacate
their 1Jandholdings. The defendants
violated, the plaintiffs' rights and caused
1 f,)f8-i!-1.9,\F8,.to the latter by the unjustified
':\ QiV~r.sion of the water. Thus, petitioners
are entitled to damages. (Magbanua v.
/AC, G.R. No. L-66870-72, June 29,
,; 1985).
· 2~:,: A group of drivers took over all jeepneys
of a transportation company as well as
the operation of the service in the
company's route without authority. The
Supreme Court declared that the act was
in violation of Article 21 (Cogeo - Cubao
Operators and Drivers Association v. CA,
G.R No. 1007~7, March 18, 1992).
6. ~bortion and Wrongful Death
Damages may be recovered by both spouses if:
a. The abortion was caused through the
physician's negligence; or
b. Was done intentionally without their consent.
of real A doctor who performs an illegal abortion is
criminally liable under Article 259 of the
Revised Penal Code.
The ·husband of a woman who voluntarily
procured her abortion may recover damages
from the physician who caused the same on
account of distress and mental anguish
attendant to the loss of the unborn child and
 ~ ~
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the disappointment of his
expectation (Geluz v. CA, GR. No. L-16439,
July 20, 1961).
7. Malicious prosecution (see CIVIL CODE,
Arts. 19-21, 26, 32, 33, 35, 2217, 2219, Par.
8)
An action for damages brought by one against
another, against whom a criminal prosecution,
civil suit, or other legal proceeding has been
instituted maliciously and without probable
cause, after the termination of such prosecution,
suit or proceeding in favor of the defendant
therein (Magbanua v. Junsay, G.R. No. 132659,
February 12, 2007).
It is for the mere purpose of vexation or injury
(Ori/on v. CA, GR. No. 107019, March 20, 1997).
Requisites: (FAW)
1. The fact of prosecution and the further fact
that the defendant (respondent-)was himself
the prosecutor, and that the action finally
terminated with an acquittal;
2. That the . prosecutor was ~ctuated or
impelled by legal malice, that is, by improper
or sinister motive; and
3. That in bringing the action, the prosecutor
acted Without probable cause (Diaz v.
Davao Light and Power Co., Inc., GR.
No. 160959, April 4, 2007).
Presence of probable cause signifie~ absence of
malice (AQUINO, Torts and Damages, supra at
428).
NOTE: Probable Cause is the existence of such
facts and circumstances as would excite the
belief of the prosecutor that the person charged
is guilty if the crime for which he is-prosecuted
(Id.).
Absence of malice signifies good faith on fhe part
of the defendant; good faith may even be based
on mistake of law (Id.).
Acquittal presupposes that criminal information is
filed . in court and final judgment rendered
dismissing the case; prior acquittal may include
dismissal by the prosecutor after preliminary
investigation (Globe Mackay and Radio Corp.· v.
CA, G.R. No. 81262, August 25, 1989).
8. fublic Humiliation
Illustration: The defendant was held liable for
damages under Article 21 of the Civil Code for
slapping the plaintiff (a priest) in public (Patricio
v. Hon. Oscar Leviste, G.R. No. L-51832, April
26, 1989).
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TORTS AND DAMAGES
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parental Slander by Deed - similar acts punishable under
Art. 359 of the Revised Penal Code; committed
by one who performs an act of dishonor, discredit
or contempt upon the offended party in the
presence of other person or persons (REVISED
PENAL CODE, Art. 359).
9. !llegal Dismissal
The right of the employer to dismiss an employee
should not be confused with the manner in which
the right is exercised and the effects flowing
therefrom (AQUINO. Torts and Damages, supra
at 426).
If the dismissal was done oppressively or in a
manner contrary to morals, good customs and
public policy, the employer should be deemed to
have violated Art. 1701 of the Civil Code, which
prohibits acts of oppression by either capital or
labor against the other, and Article 21 of the Civil
Code (Id.).
Illustrations:
a. False imputation of misdeed to justify
dismissal (Quisaba v. Sta. Ines Melale-
Veneer and Plywood Inc., G.R. No. L-38088,
August 30, 1974).
b. The ground relied upon is a figment of
employer's imagination (Globe Mackay and
Radio Corp. v. CA, GR. No. 81262, August
25, 1989).
10. Qesertion by A Spouse
A spouse has a legal obligation to live with his/her
spouse. If a spouse does not perform his or her
duty to the other, he may be held liable for
damages for such omission because the same is
contrary to law, morals, and good customs
(AQUINO, Torts and Damages, supra at 421).
TORTS AGAINST HUMAN DIGNITY (SEE
CIVIL CODE, ART. 26)
Torts against human dignity, personality, privacy and
peace of mind of his neighbors and other persons,
though they may not constitute a criminal offense,
shall produce a cause of action for damages,
prevention and other relief. ·
1. VIOLATION OF THE RIGHT OF PRIVACY
The ~ssence of privacy is the right to be left alone
(Opie v. Torres, G.R. No. 127685, July 23, 1998).
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of
intrusion is impermissible unless excused by law
and in accordance with customary legal process
(Sabio v. Gordon, G.R. No. 174340, October 17,
2006).

'5'WtWffl \ I
M E~Q,RY Al D
San Seda Universitv College of L:,w ~ RGCT Bar Operations Center
Reasonableness of Expectation of Privacy
Two-P2rt Test:
a. Whether by his conduct, the individual has
exhibited an expectation of privacy; and
b. Whether this expectation is one that the
society recognizes as reasonable (Opie v.
Torres, G.R. No. 127685, July 23, 1998).
NOTE: Other factors, such as customs, physical
surroundings, and practices of a particular
activity, may serve to create or diminish this
expectation (Id.).
It is within the prerogative of educational
institutions to require, as a condition, for
admission, compliance with reasonable school
rules and regulations and policies (which
includes mandatory, random, and suspicion less
drug testing of students). However, the rule is
different with respect to an accused who is
charged before the prosecutor's office. Drug
testing in this case would violate a persons' right
to privacy (SJS v. Dangerous Drugs Board, G.R.
No. 157870, November 3, 2008).
Facets of Privacy
Privacy in the Constitutional sphere includes:
a. Privacy in a physical sense
- denotes seclusion, solitude, security, or
bodily •integrity.
b. Privacy in an informational sense
- denotes confidentiality, secrecy, or
anonymity, especially with respect to
correspondence, conversation, and records.
c. Proprietary privacy
- limits the use of a person's name, likeness,
identity, or other attributes of identity and
exclusive possession.
d. Privacy in a decisional sense
- denotes liberty, freedom, choice, or
autonomy in decision making about sex,
reproduction, marriage, family, and health
care (AQUINO, Torts and Damages, supra at
446-447).
Who can invoke;
a. The right to privacy can be invoked only by
natural persons. Juridical persons cannot
invoke such right because the entire basis of
right to privacy is an injury to the feelings and
sensibilities of a party; a corporation would
have no such ground for relief (Valmonte v.
Belmonte, G.R. No. 74930, February 13,
1989).
EXCEPTION: The right against
unreasonable searches and seizure can be
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invoked by a juridical entity (Bache & Co.
(Phi/s.), Inc. v. Ruiz, G.R. No. L-32409,
February 27, 1971).
b. Right to privacy is purely personal in nature,
hence:
i. It can be invoked only by the person
whose privacy is claimed to have been
violated.
ii, It can be subjeet to waiver of the person
whose privacy is sought to be intruded
into.
iii. The right ceases upon the death of the
person (AQUINO, Torts and Damages,
supra at 451).
EXCEPTION: A privilege may be given to the
surviving relatives of a deceased person to
protect his memory but the privilege exists for
the benefit of the living, to protect their
feelings and to prevent the violation of their
own rights in the character and memory of
the deceased (Id. at 451).
Illustrations:
i. .Ill.some cases, the law allows the heirs
ofthe deceased to enter into a licensing
agreement for the depiction of the life of
the deceased (Lagunzad v. Vda. De
Gonzales, G.R. No. L-32066, August 6,
1919r
ii. Courts have allowed recovery of
d~rn(':\ge:s for the unauthorized use of the
, n;=frn~ or picture of a deceased person for
advertising or trade purposes (AQUINO,
Torts and Damages, supra at 416).
A corporation has no right of privacy in its
name since the entire basis of the right is an
injury to the feelings and sensibilities of the
party and a corporation would have no such
ground for relief (Valmonte v. Belmonte, GR.
No. 74932, February 13, 1989).
Standard Used
The standard to be applied in determining if there
was a violation of the right is that of a person of
ordinary sensibilities. It is relative to the customs
of time and place, and is determined by the norm
of an ordinary person (AQUINO, Torts and
Damages, supra at 458).
Four Types of Invasions of Privacy: (PIFA) (Id.
at 459)
a. fublication of Private Facts
Consists of a cause of action in publicity, of a
highly objectionable kind, given to private
information about the plaintiff, even though it
is true and no action would lie for defamation.

The interest sought to be protected is the
right to be free from unwarranted publicity,
from the wrongful publicizing of the private
affairs and activities of an individual which
are outside the realm of legitimate public
concern (Id. at 475).
Requisites: (PWI)
i. ~ublicity is given to any private or purely
personal information about a person;
ii. Without the latter's consent; and
iii. That the publication was made with
!ntent of gain or for commercial and
business purposes aggravates the
violation of the right, regardless of
whether or not such publicity constitutes
a criminal offense, like libel or
defamation (Id at 475.).
NOTE: Because of the interest they generate,
and their newsworthiness, public figures,
most especially those holding responsible .
positions in government enjoy a more limited
right to privacy compared to ordinary
individuals. To be liable, the defendant must
be guilty of knowing and recktess disregard
of the truth (Ayer Productions v. Capulong,
GR No. 82380; April 29, 1988).
Kinds of Public Figures: ,
1. Involuntary Public Figures
- persons who !;)ecome public figures
through no purposeful actions of their
own;
2. Public Figures for All Purpose
- persons who attain a status according
to which they assumed roles of special
prominence in the affairs ofsot:iety;
3. Limited-Purpose Public Figures
- persons who have thrust themselves to
the forefront· of particular public
controversies in order to influence the
resolution of the issues involved.
(AQUINO, Torts and Damages, supra at
594-595). . in Section 1 of RA No. 4200 thus the use
Rule on Publication of Official
Proceedings and Official Functions
The publication of facts derived from the
records of official proceedings which are not
otherwise declared by law as confidential,
cannot be considered a tortious conduct (Id.
at480).
The right to privacy belongs to the individual
acting in his private capacity and not to a
governmental agency or officers tasked with,
TORTS AND DAMAGES
Civil Law
and acting in, the discharge of public duties
(Id.).
b. !ntrusion
Protects a person's sense of locational and
psychological privacy. The claim is not so
much one of total secrecy as it is of the right
to define one's circle of intimacy - to choose
who shall see bequeath the quotidian mask
(Id. at.459).
Is not limited to cases where the defendant
physically trespassed into another's
property. It includes cases when the
defendant invaded one's privacy. by looking
from the outside (Id. at 460).
The law protects everyone, whether the
plaintiff is popular or not (Id. at 462).
Intrusion in Public Places
No invasion of right to privacy when a
journalist records, photographs or writes
about something that occurs in public places.
·Pepple in public places must assume that
they might be photographed or recorded (Id.
at 461).
EXCEPTION: When the acts of the journalist
is to sucti extent that it constitutes
t:iarassment or overzealous shadowing {Id. at
482).
· R:A. 4200 or ttie Anti-Wiretapping Law
It is illegal for .any person not authorized by
all the partie~ to any private communication
to 'secretly ,record such communication by
,-friea11s o_f, a tape recorder (Ramirez v. CA,
G.R. No'. 93833, September 28, 1995).
Tne use of a telephone extension for
purposes of . overhearing a private
conversation without authorization does not ·
violate R.A. 4200 as it cannot be placed in
the same category as a dictaphone,
dictagraph or the other devices enumerated
thereof cannot be considered as "tapping"
the wire or cable of a telephone line (Gaanan
v. lAC, G.R. No. L-69809, October 16, 1986).
Limitations on the Right to Information:
Intrusion and Freedom of the Press
The Constitution protects freedom of the
press. However, the Constitutional right has
never been construed to c;lccord newsmen
immunity from torts or crimes committed
during the course of newsgathering
(AQUINO, Torts and Damages, supra at
462).

MEM✓Q~y Al D
San Seda University CQUege of Law · HGCT Bar Opt.nattons Cbnter
Intrusion in the Internet
There will be intrusion through the internet if
a person is engaged in what is known as
unlawful ::IGGtlcc c.;ur 1l811 rplated under the
Electronic Commerce Act, to wit:
"Access to an electronic file, or an electronic
signature of an electronic data message or
electronic document shall only be authorized
and enforced in favor of the individual or
entity having fl \f)gn! right to tho possession
or the use of plaintext, electronic signature or
file or solely for the authorized purposes. The
electronic key for identity or integrity shall not
be made available to any person or party
without the consent of the individual or entity
in lawful possession of that electronic key
(RA 8792, Sec. 31)".
c. Publicity which Places a Person in a False
Light in the Public Eye - privacy. Celebrities who file actions to protect
What is protected is the interest of the
individual in not being made to appear before
the public in an objectionable false light or
false position (AQUINO, Torts and Damages,
supra at 489).
NOTE: In many cases, the publicity given to
the plaintiff is defamatory, hence an action for
libel is also warranted; the action for invasion
of privacy will afford an alternative remedy
(fd. at 490).
PUTTING ANOTHER IN FALSE LIGHT
V. DEFAMATION
Not the reputational harm Reputational harm.
but rather the
embarrassment of a
person being made into
something he is not (fd. at
490),
The statement should be Publication
actually made in public. satisfied if a lettP.r is
sent to a third person.
Defendant may still be held
liable even if the
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statements tell something
good about the plaintiff.
d. Commercial Appropriation of Likeness
The tort of commercial appropriation of
likeness has been held to protect various
aspects of ~n individual's identity from
commercial exploitation: name, likeness,
achievements, identifying characteristics,
actual performances and fictitious characters
created by a performer (Id. at 491).
With respect to celebrities, however, the right
of publicity is often treated as a separate right
that overlaps by us distinct from the right of
their right to publicity do so to protect their
economic interest (fd. at 492).
2. INTERFERENCE WITH FAMILY AND
. , ,OT_HER'~ELATIONS
ttmayJ,e:
a. Alienatipn of affection of spouse
b. Disturbing family relations (Id. at 493-494).
Alienation of Affection
This consists e;>f depriving one spouse of the
affection1 Society,.companionship and comfort of
the ;oth€i1r.,;i,t;extends to all cases of wrongful
interference in the family affairs of others
whereby one spouse is induced to leave the other
~ouse or to conduct himself or herself in such a
. way<tha't the comfort of married life is destroyed
(fd. at 494).
Alienation by In-laws
If the interference is by the parents of the spouse
on the assumption that the wife was ill-treated, it
may be reasonably presumed that they have
acted with commendable motives and a clear
case of want of justification may be justly shown
before they should be held responsible (Id. at
495).
Elements:
is 1. A valid marriage;
2. Wrongful conduct uy llie Llefe11dant with the
plaintiffs spouse;
3. Loss of uffecliu11 ur conso1iiurn; and
4. A causal relation between tho defendant's
conduct and the deprivation of affection.
The requirement of malice is necessary if the
defendant is not a relative of a· spouse whose
'" \ ,:q; 1'1 \ t ,;';\', / \ ' \ Sf"y•; ~-"" •
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affection was said to have been alienated (Id. at
496). "EMOTIONAL DISTRESS" TORT ACTION
V. DEFAMATION
Disturbing Family Relations
A person may be held liable if he disturbs family
relations (CIVIL CODE. Art. 26).

The law recognizes the right of the parent to

advise the son or daughter:
a. When the advice was given in good faith, and
Properly belongs to the Calls for the application
results in separation, the act does not give
reactive harm principle of the relational harm
the injured party the right of action.
(which includes injuries principle (which includes
to individual emotional harm to social
b. Malice must be established, and it must
tranquility) (AQUINO, relationships in the
appear that defendant's acts were the
Torts and Damages, community in the form of
controlling cause of the loss of affection to
supra at 507). defamation) (Id.).
recover damages (Tenchavez v. Escano,
G.R. No. L-19671, November 29, 1965).
TORTS WITH INDEPENDENT CIVIL
3. VEXATION AND HUMILIATION ACTIONS (CIVIL CODE, ART. 32, 33 AND
Vexation • 34)
This refers to an act of annoyance or irritation that
causes distress or agitation (MVRSPublications, Independent Civil Actions include: (VD-FIN)
Inc, v. Islamic Da 'wah Council of the Philippines, 1. Y:iolation of civil and political rights (Art. 32);
· Inc., et. al., GR No: 135306, January 28, 2003). 2. Qefamation (Art. 33);
3. fraud (Art. 33);
May Consist of: 4. Physical !njuries (Art. 33); ·and
a. Humiliation on Account of · Personal 5. .!::l_eglect of duty by public officers (Art. 34)
Condition
Vexing or humiliating another on account of Basis of Liability
his religious beliefs, lowly station in life, place Two views:
of birth, physical defect, or other personal 1. Tolentino
condition (Art. 26(4), Civil Code). - The civil action.which the Civil Code provisions
allow to be, filed· (particularly Article 33) is ex-
b. Intentional Infliction of Emotional delicto, that is, civifliability arising from delict.
Distress
Requisites: (MICE) 2. Caguioa
i. Plaintiff's ,Mental distress was extreme - The · liability sought to be enforced in
and severe; independel)t civil actions granted under Articles
ii. Conduct of the defendant was intentional 3,~, 33 and 34 is not the civil liability arising from
or in reckless disregard of the plaintiff; cnlne. The basis is said to be tortuous actions
iii. fausal connection between defendant's more of the nature of culpa aquiliana and
conduct and plaintiff's mental distress; therefore, separate and distinct from civil liability
and · arising from crime.
iv. Conduct was gxtreme and outrageous -
beyond all possible bounds of decency, It is believed that the latter view is the better view
regarded as atrocious, and utterly because even the Report of the Code Commission
intolerable in civilized society (MVRS cited in Madeja v. Caro refers to civit actions that are
Publication, Inc. v Islamic Da'wah absolutely separate and independent (G.R. No. L-
Council, G.R. No. 135306, January 28, 51183, December 21, 1983; AQUINO Torts and
2003). Damages, supra at 5.12).

Illustration: Emotional distress caused by 1. VIOLATION OF CIVIL AND POLITICAL

discrimination against a person because of
his physical defect.
NOTE: Plaintiff cannot recover merely
because of hurt feetings (MVRS Publication,
Inc. v Islamic Da'wah Council, G.R. No.
135306, January 28, 2003);
RIGHTS (CIVIL CODE, ART. 32)
REASON:
a. In most cases, the threat to freedom originates
from the abuses of power by government officials
and peace officers. But frequently, no criminal
action is filed by the prosecuting attorney.
 1
CNf$1¥Mt» '
MEM:Q~Y AID
Sun Geda Urnvers!ty College of L..1w - RGCT Bru Operations Cerner

b. The requirement of proof beyond reasonable Art. 32 speaks of c111 officer or err1µluyee ur µerson
doubt often prevented the appropriate "directly or indirectly" responsible for the violation of
punishment. An independent civil action would the constitutional rights and liberties of another. Thus,
a·ttord the proper remedy by a preponderance of it is not the actor alone (i.e., the one directly
evidence. responsible) who must answer for damages under
c. Direct and open violations of the Revised Penal Art. 32; the person indirectly responsible has also to
Code trampling upon the freedom named are not answer for the damages or injury caused to the
so frequent as those subtle, clever and indirect aggrieved party (Aberca v. Ver, GR. No. 69866, April
ways which do not come within the pale of the 15, 1988; Silahis International Hotel, Inc. v. Soluta,
penal law (AQUINO, Torts and Damages, supra GR. No. 163087, February 20, 2006).
at 536).
Invalid Defenses:
Committed by: a. State Immunity
1. Public officer or employee; or, Reason: Officers do not act within the ambit of
2. Any private individual. their powers if they violate the constitutional
rights of persons (AQUINO, Torts and
Judges are not liable under this Article unless the act Damages, supra at 504);
or omission is a crime. This is because in the case of
a crime, it is well known that a person criminally liable b. Suspension of the writ of habeas corpus·
is also civilly liable (PARAS, Persons and Family cannot be used as a defense in cases involving
Relations, at 202). Also, Commissioners may not be Article 32 of the Civil Code (Aberca v. Ver, GR.
held liable under Art. 32 for they are in the same No. 69866, April 15, 1988).
category as a judge (Serrano v. Munoz Motors, Inc.,
GR No. L-25547. November 27, 1967). ARTICLE 32 V. ADMINISTRATIVE CODE
NOTE: An individual can hold a public officer
personally liable for damages on account of an act or
Liability of public Lays Jown the rule on the civil
omission that violates a constitutional right only if it
officers for liability of superior and
results in a particular wrong or injury (Vinzons-Chato
violation of rights subordinate public officers for
v. Fortune Tobacco Corporation, G.R. No. 141309,
and liberties of a acts don in the performance of
June 19, 2008).
person their duties
The failure to perform a public duty can constitute an Malice and bad Presence of malice and bad
individual wrong only when a person can show that, faith a·re not. faith is necessary
in the public duty, a duty to himself as an individual is required
also involved, and that he has suffered a special and
peculiar injury by reason of its improper performance Covers specific Covers the general acts done in
or non-performance (Id.). acts · that may the performance of official
give rise to an duties
Motive or Bad Faith is Not Necessary action for
It is not necessary that the defendant under this damages
Article (32) should have acted with malice or bad
faith, otherwise, it would defeat its main purpose, (Vinzons-Chato v. Forlune Tobacco Corporation,
which is the effective protection of individual rights. It supra, 2007)
suffices that there is a violation of the constitutional
right of the plaintiff (Vinzons-Chato v. Fortune In addition to the Bill of Rights provisions, Art. 32
Tobacco Corporation, G.R. No. 141309, June 19, refers to:
2007). 1. Freedom of Suffrage;
2. Freedom from being forced to confess guilt, or
Art. 32 also applies to military .officials and officers. from being induced by a promise of immunity or
(Aberca v. Fabian Ver, G.R. No. 69866, April 15, reward to make such confession, except when
1988). the person confessing becomes a state witness
(PARAS, Persons and Family Relations, supra at
Art. 32 allows an independent civil action, whether or 196).
not a crime has been committed, with indemnification
for moral and exemplary damages in addition to other 2. DEFAMATION (CIVIL CODE, ART. 33)
damages ((PARAS, Persons and Family Relations, Defamation, which includes libel and slander,
supra at 204). means the offense of injuring a person's
character, fame, or reputation through false and
malicious statements (MVRS Publications, Inc. v.

Islamic Da'wah Council of the Phi/s., Inc., G.R.
No. 135306, January 28, 2003).
It is that which tends to injure reputation or
diminish the esteem, respect, good will, or
confidence in the plaintiff or to excite derogatory
feelings or opinions about the plaintiff (Id.).
Reason for liability: The desire to protect the
reputation of every individual (AQUINO, Torts
and Damages, supra at 549).
It is an invasion of a relational interest since it
involves the opinion which others in the
community may have, or tend to have, of the
plaintiff (Id.).
Requisites for One to be Liable for
Defamatory Imputations: (DIMP)
a. It must be Q.efamatory;
The statement is defamatory as a matter of
law where imputation is the commission of a
crime; the defamation is so plain that· the
charge is automatically deemed libelous.
If the statement is not defamatqry ~~ a matter
of law, the Court : must then make a
determination on the defamatory capability of
the statement (AQUINO, Torts and
Damages, supra at,551).
b. The victim must be -Identifiable;
He must establish that the defamatory
statement referred to h1m i:ilthough it is not
necessary that he be named. The plaintiffs
include both natural and juridical persons. ·
It is insufficient that the offended. party
recognized himself as the person attacked or
defamed. It must be shown that at least a
third person could identify him as the pbject
of the libelous publication (Id. at 566). · ··· ·
c. It must be ,Malicious; and
Existence of malice in fact may be shown by
extrinsic evidence that the defendant bears a
mudge against the offended party, or that
there is rivalry or ill feeling between them (Id.
at 562).
d. It must be given fublicity.
It is not required that publication is made in
the media publication. Dissemination to a
number of people is, however, not required
and communication to a single individual is
sufficient (Id. at 561 ).
TORTS AND DAMAGES
Civil Law
Test in Determining the Defamatory Character
of the Words Used
A charge is sufficient if the words are calculated
to induce hearers:
a. To suppose and understand that the
person/s against whom they were uttered
were guilty of a certain offense;
b. Are sufficient to impeach their honesty, virtue
or reputation; or
c. To hold the person/s up to public ridicule
(Sazon v. CA, G.R. No. 120715, March 29,
1996).
NOTE: The judge must consider the allegedly
libelous passages in the context of the entire
article and evaluate the words as they are
commonly understood. Put another way, he must
put himself in the shoes of the ·average reader'
and decide whether such a reader would interpret
the message as libelous (AQUINO Torts and
Damages, supra at 552).
Illustrations:
a. The fact that the language is offensive to the
plaintiff does not make it actionable by itself
(MVRS Publications, Inc., et al. v. Islamic
Da'wah Council of the Philippines, Inc., et al.,
supra).
b. Personal hurt or embarrassment or offense,
even if real, is ndt automatically equivalent to
defamation. It is the community, not personal
standards, which is taken into account in
evaluating any_ allegations of libel and any
claim 9 for damages on account thereof. This
is known as the community standard (GMA
Network and Vidal v. Bustos, G.R. No.
146846, October 17, 2006).
c. Alleged defamatory statements should be
taken in their entirety and the statements
should not be interpreted by taking the words
uttered one by one out of context and giving
them twisted meanings (AQUINO Torts and
Damages, supra at 557).
d. Slight unintentional errors will be excused
(Flor v. People, G.R. No. 139987, March 31,
2005).
e. Mere assertion that a person failed or refused
to perform a contractual obligation does not,
in and on itself, injure the person's business
reputation or deprive him of public
confidence (Insular Life Assurance Co., Ltd.
V. Serrano, G.R. No. 163255, June 22,
2007).
f. In civil action for damages, no liability will
result if the defamatory matter is not seen
fifkS@#ri \ I
MEM✓Q~Y AID
San Beda University CoUege at Law , RGCT Bar Operations Center
or heard by anyone except the defendant
and the plaintiff. Damages to character or
reputation of the plaintiff is the estimate
which others hold him and not what he
himself thinks (People v. Si/vela, G.R. No. L-
10610, May 26, 1958).
Presumption of Malice
GENERAL RULE: Malice in law as contemplated
in Article 354 of the Revised Penal Code every
defamatory imputation is presumed to be
malicious, even if it is true, if no good intention or
justifiable motive for making it is shown (AQUINO
Torts and Damages, supra at 565).
EXCEPTIONS:
a. A private communication made by any
person to another in the performance of any
legal, moral or social duty; and
b. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official ·
proceedings which are not of confidential
nature, or of any statement, report, or speech
delivered in said proceedings or of any other
act performed by public officers in the
exercise of their functions (REVISED PENAL
CODE, Art. 354).
Cases
a. Once it is established that the 'article is of a
privileged character, the onus of proving
actual malice rests on the plaintiff who must
then convince the court that the offender was
prompted by malice or ill will. When this is
accomplished the defense of privilege
becomes unavailing (Santos v. Court of
Appeals, G.R. No. L-45031, October 21,
1991).
b. To be considered malicious, the libelous
statement must be shown to have been
written or published with knowledge that they
are false or in reckless disregard of whether
they are false or not. Reckless disregard of
what is false or not means that the author
or publisher entertains serious doubt as to
the truth of the publication, or that he
possesses a high degree of awareness of
their probable falsity (Villanueva v. Philippine
Daily Inquirer, et. al., G.R. No. 164437, May
15, 2009).
c. Every citizen of course has the right to enjoy
a good name and reputation, but we do not
consider that the respondents, under the
circumstances of this case, had violated said
right or abused the freedom of the press.
Newspapers should be given such leeway
and tolerance as to enable them to
courageously and effectively perform their
important role in our democracy. In the
preparation of stories, press reporters and
[editors] usually have to race with their
deadlines; and consistently with good faith
and reasonable care, they should not be held
to account, to a point of suppression, for
honest mistakes or imperfection in the choice
of words (Arafiles v. Philippine Journalists
Inc., G.R. No. 150256, March 25, 2004).
Kinds of Malice:
a. Malice in Law is a presumption of law. It
dispenses with the proof of malice when
words that raise the presumption are shown
to have been uttered. It is also .known as
constructive malice, legal malice, or implied
malice (AQUINO, Torts and Damages, supr~
at 564).
b. Malice in Fact is a positive desire and
intention to annoy and injure. It is also called
express malice, actual malice, real malic;e,
true malice, or particular malice (Yuchengco
v. The Manila Chronicle Publishing
Corporation, G.R. No. 184315, November
•. ;25/2009).
CYBER LIBEL
Unlawful or prohibited acts of libel as defined in
Art. 3~5 ofthe'Revised Penal Code, as amended,
commfaed through a computer system or any
other.~imilar;m~a1:1s which may be devised in the
futu/-i4•(~~c/J4-(i5)(4), R.A. No. 10175).
GROUP LIBEL
, . R~quisites: (ABS)
·· ':rlJi(ubel directed Against a fairly large group;
b. Libel can reach §.eyond the mere collectivity
to do damage to an individual group
member's reputation; and
c. The statement is so §weeping and all-
embracing as to apply to every individual in
that group or class so that he can bring the
action separately if necessary (Newsweek,
Inc., v. /AC, G.R. No L-63559, May 30, 1986).
Declarations made about a large class of people
cannot be interpreted to advert to an identified or
identifiable individual. Absent circumstances
specifically pointing or alluding to a particular
member of a class, no member of such class has
a right of action without at all impairing the e~ually
demanding right of free speech and expression,
as well as of the press, under the Bill of Rights
(MVRS Publications, Inc., et al. v. Islamic Oa'wah
Council of the Philippines, Inc., et al., supra).
An individual Muslim has a reputation that is
personal, separate and distinct in the community.

Each reputation is personal in character to every
person. Together, the Muslims do not have a
single common reputation that will give them a
common or general interest in the subject matter
of the controversy (Id.).
If the defamatory statements were directed at a
small, restricted group of persons, the applied to
any member of the group, and an individual
member could maintain an action for defamation.
(Id).
Deceased
Relatives of the deceased can file an action for
damage to the reputation of the latter. Article 353
of the Revised Penal Code expressly provides
that defamatory statements include those which
tend to blacken the memory of one who is dead
(AQUINO, Tons and Damages, supra at 573).
Corporation
Article 353 of the Revised Penal Code expressly
recognizes that a juridical person can be a victim
of libel. Hence, a corporation can be a
complainant of a libel case. The corporate can file
a case if its reputation as an entity was defamed
(Id.).
Defenses
1. Privileged Statements
Two Kinds of Privileged Communication:
a. Absolutely Privileged - not actionable
even if the author acted in bad faith
(Manila Bulletin Publishing Corp. v.
Domingo, GR. No. 170341, July 5,
2017).
Illustrations:
i. Allegations and averments in pleadings
filed in court as long as relevant and
pertinent to the issues;
ii. A member of the Congress is exempt
from liability for any speech or debate in
the Congress or any Committee thereof
(CONST Art. VI, Sec. 11).
b. Qualifiedly Privileged - not actionable
unless found to have been made without
good intention or justifiable motive
(Manila Bulletin Publishing Corp. v.
Domingo, G.R. No. 170341, July 5,
2017).
Classes:
i. A private communication made by any
person to another in the performance of
any legal, moral or social duty;
ii. A fair and true report, made in good faith
without any comments or remarks, of any
TORTS AND DAMAGES
Civil Law
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or
speech delivered in said proceedings, or
of any other act performed by public
officers in the exercise of their functions;
iii. Fair commentaries on matters of public
concern (Yuchengco v. The Manila
Chronicle Publishing Corporation, G.R.
No. 184315, November 25, 2009).
A .complaint against public officials addressed
to proper authorities is qualifiedly privileged
(AQUINO, Torts and Damages, supra at 546).
Test: Good Faith
Even if the statement is untrue, the same may
not be considered defamatory under the said
test (Ponce v. Legaspi, G.R. No. 79184, May
6, 1992).
2. Private Communication (REVISED PENAL
CODE, ART 34)
Requisites: (DAG)
i. the person who made the
communication had a legal, moral, or
societal Quty to make the
communication, or at least, had an
· interest to protect, which interest may
either be his. own or of the one to whom
it is made;
ii. the communication is 8ddressed to an
officer or a board, or superior, having
some interest or duty in the matter, and
who has the power to furnish the
protection sought; and
iii. the statements in the communication are
made in Qood faith and without malice
(AQUINO, Torts and Damages, supra at
585).
3. Doctrine of Fair Comment (REVISED
PENAL CODE, ART 34)
Fair commentaries on matters of public
interest are privileged and constitute a valid
defense in an action for libel or slander. The
discreditable imputation directed against a
public person in his public capacity, is not
necessarily actionable. In order that such
discreditable imputation to a public official
may be actionable, it must either be a false
allegation of fact or a comment based on
false supposition (Borja/ v. CA, G.R. No.
126466, January 14, 1999).
The doctrine of fair comment means that
while in general every discreditable
imputation publicly made is deemed false,
because every man is presumed innocent
 F~IrM✓c>~v Alo
S<ln Beda University College of law - RGCT 8Ar Operations Center
until his guilt is judicially proved, and every
false imputation is deemed malicious,
nevertheless, when the discreditable
imputation is directed against a public person
in his public capacity, it is not necessarily
actionable. In order that such discreditable
imputation to a public official may be
actionable, it must either be a false allegation
of fact or a comment based on a false
supposition. If the comment is an expression
of opinion, based on established facts, then
it is immaterial that the opinion happens to be
mistaken, as long as it might reasonably be
inferred from the facts (Manila Bulletin
Publishing Corp. v. Domingo, supra).
3. FRAUD (CIVIL CODE, ART. 33)
There is fraud when, through insidious words or
machinations of one of the contracting parties,
the other is induced to enter into a contract which,
without them, he would not have agreed to
(Tankeh v. Development Bank of the Philippines,
G.R. No. 171428, November 11, 2013).
Elements of Deceit: (FFKAIS)
a. Defendant made Ealse representation to the
plaintiff through:
i. Written or spoken words, or
ii. Conduct;
b. The representation must be one of Eact;
REASON: The view that propositions of law
are generally matters of public record to
which the plaintiff and defendant have equal
access.
c. Defendant _!Snows that the representation is
false or is reckless about whether it is false;
It is also enough that the defendant has no
sufficient basis of information to make
representation or what is known as scienter;
d. Plaintiff must have ~cted on the false
representation;
e. Defendant must have !ntended that the false
representation should be acted on; and
f. Plaintiff _§uttered damage as a result of acting
on the false representation (AQUINO, Torts
and Damages, supra at 602).
Rule on Opinion
GENERAL RULE: A mere matter of opinion does
not signify fraud (Id. at 603).
EXCEPTION: When made by an expert and the
other party relied on the farmer's special
knowledge (CIVIL CODE, Art. 1341).
Half-Truths
It is actionable if it is such a partial and
fragmentary statement of fact, as that the
withholding of that which is not stated makes that
which is stated absolutely false (AQUINO, Torts
and Damages, supra at 602).
4. PHYSICAL INJURIES (CIVIL CODE, ART.
33)
Battery - an intentional infliction of a harmful or
offensive bodily contact (AQUINO, Torts and
Damages, supra at 605).
Offensive Bodily Contact - offends a
reasonable person's sense of dignity even
though it is intended only as a joke or a
compliment (Id.).
Assault - intentional conduct by one person
directed at another placing the latter in
apprehension of immediate bodily harm or
offensive act. It includes bodily injuries causing
death (Id.).
Physical injuries resulting from negfigence or
imprudence is not included in Article 33; they are
already covered by Article 2176. Thus, the crime
of homicide due to reckless imprudence is not
covered by Article 33, but by Article 2176 of the
Civil Code(/d. at 608).
5. NEGLECT OF DUTY BY POLICE
OFFICERS (CIVIL CODE, ART. 34)
Intended to afford a remedy against police
officers "who connive with bad elements, are
afraid of them or are simply indifferent to duty"
(AQUINO, Torts.·and Damages, supra at 608).
Subsidiary Liability of Cities and
. Municipalities imposed so that they will
exercise:
a. Great care in selecting conscientious and
duly qualified policemen; and
b. Supervision over them in the performance of
their duties (Id. at 609).
UNJUST ENRICHMENT
Every Person who, through an act of performance by
another, or any other means, acquires or comes into
possession of something at the expense of the latter
without just or legal ground, shall return the same to
him (Art. 22, Civil Code) This provision contemplates
what is known as accion in rem verso (AQUINO,
Torts and Damages, supra at 757).
An accion in rem verso is considered merely an
auxiliary action, available only when there is no other
remedy on contract, quasi-contract, cri~e, and quasi-
delict. If there is an obtainable action under any other
institution of positive law, that action must be resorted
to, and the principle of accion in rem verso will not lie
(Shinryo [Philippines] Company, Inc., v. RRN
Incorporated, G.R. No. 172524, 20 October 2010).
·: , : : , , ,: , r'' , \:' ; y~0 TORTS AND DAMAGES
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~ , ,l ~
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, e?
Civil Law

Civil Code as one of the reasons why there is civil

In order that accion in rem verso may prosper, the liability ex delicto if a special criminal law is violated
essential elements must be present: because it is clear from the said provision that "every
1. That the defendant has been enriched; person who, contrary to law, willfully or negligently
2. That the plaintiff has suffered a loss; causes damage to another, shall indemnify the latter
3. That the enrichment of the defendant is without for the same."
just or legal ground; and
4. That the plaintiff has no other action based on Rule on proximate cause in quasi-delict cases is
contract, quasi-contract, crime or quasi-delict. applicable to cases involving civil liability arising from
delict (CIVIL CODE, Art. 2202).
Even when an act or event causing damage to
another's property was not due to the fault or
negligence of the defendant, the latter shall be liable
for indemnity if through the act or even he was
benefited (CIVIL CODE, Art. 23).
1. Violation of 1. Persons exempt
Illustration: A's cattle was saved after having been ordinances, game from criminal liability
driven by flood to B's cultivated highland. A should laws, and traffic (REVISED PENAL
indemnify B for the destruction of the latter's crops. rules when no one is CODE, Art. 12);
hurt; and· _ 2. Employees
2. Treason, rebellion, subsidiarily liable
espionage, piracy, under Articles 102
CIVIL LIABILITY contempt, g9 mbling and 103 of the
and betting, infidelity Revised Penal
ARISING FROM in the custody of Code;
DELICT prisoners, abortion 3. Relatives
practiced by the mentioned in Article
woman herself and 332 of the Revised
other similar crimes. Penal Code
CIVIL LIABILITY ARISING FROM DELICT involving theft,
BASIS: Every person criminally liable .for felony is swindling or
also civilly liable (REVISED PENAL CODE,.Art 100). malicious mischief;
4. When accused is
GENERAL RULE: Crimes give rise to both criminal acquitted because
and civil liability (Dual Character of Crimes) . of reasonable
a. Criminal Liability - An offense against. the doubt;
State. 5. In cases of
b. Civil Liability - An offense against-the private independent civil
person injured (DE LEON, Torts and Damages, actions (CIVIL
supra at 520). CODE, Art. 32, 33,
and 34);
6. In civil actions under
SPECIAL CRIMINAL LAWS
Article 2177 of the
The dual character of crimes is present not only in Civil Code; and
felonies defined under the Revised Penal Code but 7. When acquitted in a
also in cases governed by special laws such as: criminal action but
a. RA 9262 - Anti-Violence Against Women and the court rendered a
Their Children Act 2004; civil liability.
b. B.P. 22 - Bouncing Checks Law; and
c. Rule 10 of A.M. No. 09-6-8-SCcRules of
Procedure of Environmental Cases. NOTE: It should be pointed out that the presence of
civil liability in offenses is not determined by the fact
What gives rise to civil liability is the obligation to that the crime is public or private. In other words,
repair or to make whole the damage caused to there is civil liability even if the offense is a public
another by reason of his act or omission, whether offense, as in the case of bigamy (AQUINO, Torts
done intentionally or negligently and whether or not and Damages, supra at 613).
punishable by law (Nuguid v. Nicdao, G.R. No.
150785, September 15, 2006). In connection
therewith, the SC, in Banal v. Hon. Tadeo (G.R. No.
78911-25, December 11, 1987) cited Article-20 of the
 tA&;triMffi \ 1

MEM:Q~Y AID
San Seda University College of Law - RGCT Bar Operations CtmtBr

PERSONS LIABLE damages in the criminal case can file another

a. Principal;
b. Accomplice; and
c. Accessories (REVISED PENAL CODE, Art. 108,
109 and 110).
Two or More Persons Civilly Liable for a Felony
If there are two or more persons civilly liable for a
felony, the court will determine the specific amount of
liability of each of these persons. The amount of
damages to be awarded must be apportioned
according to their respective responsibilities to be
paid by them solidarily within their respective class
and subsidiarily for the others of a different class
(Garces v. People, G.R. No. 173858, July 17, 2007).
case under Article 33 of the Civil Code (People v.
Bayotas, G.R. No. 102007, September 2, 1994).
Illustration: In case of self-defense, the
defendant is privileged to respond with
reasonable amount of force in self-defense. It is
the objective reasonableness of his conduct that
relieves him from liability.
ARTICLE 30 OF THE CIVIL CODE IN
RELATION TO RULE 111, SECTION 3 OF
RULES OF COURT

SEPARATE AND SUBSIDIARY LIABILITY Plaintiff is merely required to

The court may fix the amount for which the principal prove his case by mere
is primarily liable and determine a separate amount preponderance of evidence.
of liability of the accessory. Each of them shall be
subsidiarily liable for the other's share in case of the
latter's insolvency (AQUINO, Torts and Damages, The pending civil action shall be
supra at 614). suspended in whatever stage it
may be found, until final
WHAT IS INCLUDED IN CIVIL LIABILITY: judgment in the criminal action
a. Restitution (REVISED PENAL CODE, Art. 105); has been rendered.
b. Reparation (REVISED PENAL CODE, Art. 106);
and The evidence presented and
c. Indemnification (REVISED PENAL CODE, Arl. admitted in the civil action shall
107). be deemed automatically
reproduced in the criminal
EXTINCTION AND SURVIVAL OF action, without prejudice to the
LIABILITY admission of the additional
evidence that any party may
Civil liability under the Revised Penal Code shall be
wish to present. The criminal
extinguished in the same manner as obligations in
and civil action shall be tried
accordance with Civil Law (REVISED PENAL CODE,
and decided jointly.
Art. 112). .

EFFECT OF PARDON ART. 30 V. ART. 31

Pardon does not erase civil liability (Monsanto v.
Factoren, G.R. No. 78239, February 9, 1989). It is not
one of grounds recognized under the Civil Code that This refers to a separate This refers to an
extinguishes civil liability (AQUINO, Torts and civil action which is independent civil action
Damages, supra at 626). based on the criminal based on an obligation
liability of the defendant. arising from other
EFFECT OF DEATH: sources such as law,
contracts, quasi-
a. Death after Final Judgment: contracts and quasi-
Extinguishes criminal liability of the person liable
delicts.
but will not extinguish the civil liability (Id. at 624).

b. Death before Final Judgment: VIOLATIONS COMMITTED BY PUBLIC

GENERAL RULE: Defendant is relieved from
criminal and civil liability arising from the offense
(Id.).
EXCEPTIONS: The aggrieved party in a libel and
physical injuries case who initially opted to claim
OFFiCERS
GENERAL RULE: A public officer is not liable for
damages which a person may suffer arising from the
just performance of his official duties and within the
scope of his assigned task.
 } ';i:c,.,_(> ; , ',I,;\~,:,..,
744 • ,f •, 0
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~ ''
'
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. Civil Law

EXCEPTION: A public ott1cer maybe validly sued on It is not necessary for the defective road or street to
his/her private capacity for acts done in the course of belong to the province, city, or municipality for liability
the performance of the functions of the office, where to attach. The article only requires that either control
said public officer: or supervision is exercised over the defective road or
1. Acted with malice, bad faith, or negligence; or street (Gui/atco v. City of Dagupan, GR. No. 61516,
2. Violated a constitutional right of the plaintiff March 21, 1989).
(Vinzons-Chato v. Fortune Tobacco Corporation,
supra, 2007). The local government unit cannot escape liability by
claiming that its officials do not have knowledge of the
TWO-KINDS OF DUTY: existence of excavations on its road; the obligation to
1. Public Duty; and, make the road safe is a continuing obligation
2. Duty Owing to Particular Individuals. (Municipality of San Juan v. CA, GR. No. 121920,
August 9, 2005) Under Sec. 149 of the LGC, the
When what is involved is a duty owing to the public in sangguiniang bayan shall regulate the drilling and
general, an individual cannot have a cause of action excavations of the ground (AQUINO, Torts and
for damages against the public officer, even if though Damages, supra at 738).
he may have been injured by the action or inaction of
the officer. In such a case, there is damage to the OWNER OF MOTOR VEHICLE (CIVIL
individual but no wrong to him (Vinzons-Chato v. CODE, ART 2184)
Fortune Tobacco Corporation, supra, 2008). In Art. 2184, the New Civil Code, declares that in
motor vehicle mishaps, the owner is solidarily liable
EXCEPTION: When the complairiing individual with his driver, if the former, who was in the vehicle,
suffers a particular or special injury on account of the could have, by the use of due diligence, prevented
improper or non-performance of the public duty {Id.}. the misfortune xxx if the owner was not in the motor
vehicle, the provisions of Art. 2180 are applicable
An independent civil action may be filed for the (JURADO, Civil Law Reviewer, (2019) p. 1271
liability of city or municipal police force who refuses [hereinafter, JURADO, Civil Law Reviewer]).
or fails to render aid or protection. Primary liability is
against the member of the police force who refuses
or fails to render such protection. And subsidiary
liability is imposed on the city or municipality
Owner of the vehicle Defense of due
concerned in case of insolvency (CIVIL CODE ART.
cannot avail himself of diligence and
34, PARAS, Persons and Family R(Jlations,:supra at
the defense of due supervision of his
223).
diligence in the selection employees is available
and supervision of his
This Article 34 does not grant to the government the
employees
defense of due diligence in the selection and
supervision of the policemen {Id.). Owner is solidarily liable Owner is not solidarily
with his driver. liable with his driver.
Since Art. 34 speaks merely of city or municipal
police, it would seem it does not apply to. the He may, after payment, He can, after. payment,
Philippine National Police Force and to the National demand reimbursement demand from the driver
Government {Id.). from the driver of ½ of reimbursement of the
the entire amount he has entire amount which he
PROVINCES, CITIES, AND paid (Art. 1217, NCC) has paid (Art. 1218,
MUNICIPALITIES (CIVIL CODE, ART NCC
2189) (Id.).
The liability of public corporations for damages
arising from injuries suffered by pedestrians from the VIOLATIONS OF DATA PRIVACY
defective conditions of roads is expressed in (Art. 32) Having an expectation of informational privacy is not
the Civil Code (AQUINO, Torts and Damages, supra necessarily incompatible with engaging in
at 735). cyberspace activities, including those that occur in
online social network (Vivares v. St. Theresa's
Relatedly, Sec. 24 of R.A. No. 7160 provides that College, G.R, No. 202666, September 29, 2014).
local government units and their officials are not
exempt from liability for death or injury to persons or It is through the availability of said privacy tools that
damage to property. many online social network users are said to have a
subjective expectation that only those to whom they
grant access to their profile will view the information
 fH1tklif9:ii■ \ 1
MEM:Q~RY AID
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they post or upload thereto. Before one can have an
expectation of privacy in his or her OSN activity, it is
first necessary that said user manifest the intention to
keep certain posts private. through the employment
of measures to prevent access thereto or limit its
visibility. And this intention can materialize in
cyberspace through the utilization of the OSN's
privacy tools (Id.)
There is no fundamental right to acquire another's
personal data (Disini v. Secretary of Justice, G.R. No.
20333, February 11, 2014).
I STRICT LIABILITY
l The head of the f.=imily may recover from the
There is strict liability if one is made liable
independent of fault, negligence or intent after
establishing certain facts specified by law. Strict
liability tort can be committed even if reasonable care
was exercised regardless of the state of mind of the
actor at that time (AQUINO, Torts and Damages,
supra at 742).
TYPES:
1. ANIMALS (CIVIL CODE, ART. 2183)
GENERAL RULE: The possessor of an animal
or whoever may make use of the same is
responsible for the damages which it may cause
although it may escape or be lost.
EXCEPTIONS: When the damage was caused:
a. By force majeure; or
.b. By the person who suffered the damage
(AQUINO, Torts and Damages, supra at
743).
NOTE: The law used the generic term animal. It
covers all kinds of animals (PINEDA, Torts and
Damages, supra at 122).
This is applicable whether the animal is domestic,
domesticated or wild (Vestil v. /AC, G.R. No.
74431, November 6, 1989).
NOTE: Wild animals are possessed only while
they are under one's control; domesticated or
tame animals are considered domestic or tame,
if they retain the habit of returning to the premises
of the possessor (CIVIL CODE, Art. 560).
Possessor or user is still liable even if damage is
caused by the negligence or fault of third person
unless equated with force majeure (AQUINO,
Torts and Damages, supra at 743).
2. FALLING OBJECTS (CIVIL CODE, ART.
2193)
.The head of a family that lives in a building or a
part thereof is responsible for damages caused
by things thrown or falling from the same.
Head of the family is not limited to the owner of
the building, and it may even include the lessee
thereof (Dingcong v. Kanaan, G.R. No. 47033,
April 25, 1941).
This does not exempt cases involving force
majeure (AQUINO, Torts and Damages, supra at
745).
person who caused the damage. The liability is
solidary (CIVIL CODE, Art. 2194).
3. LIABILITY OF EMPLOYERS (CIVIL CODE.
ART. 1711)
GENERAL RULE: Owners of enterprises and
other employers are liable to pay for the death or
injuries to their employees, even if the cause is
purely accidental,
EXCEPTION: If the mishap was due to the
employee's· own notorious negligence, or
voluntary ad or drunkenness.
EXCEPTION TO EXCEPTION: When the
employee's lack of due care only contributed to
his death b.r injury, the employer shall be liable for
compensation but the same shall be equitably
reduced.
When the plaintiffs negligence was the
imm~dla.te and proximate cause of his injury, he
cannot recover damages. But if his negligence
was only contributory, the immediate and
proximate cause of the injury being the
defendant's lack of due care, the plaintiff may
recover damages, but the courts shall mitigate
the dam·ages to be awarded (Travel & Tours
Advisers, Inc. v. Cruz, Sr., G.R. No. 199282,
March 14, 2016).
Rules on Employer's Liability for Injuries
caused by Fellow-worker:
a. If the death or injury is due to the negligence
of a fellow-workman the latter and the
employer shall be solidarily liable for
compensation; and
b. If a fellow-worker's intentional or malicious
act is the only cause of the death or injury,
the employer shall not be answerable unless
it should be shown that the latter did not
exercise due diligence in the selection or
supervision of the plaintiff's fellow-worker
(CIVIL CODE, Art. 1712).
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4. NUISANCE (CIVIL CODE, ART. 694)
Any act, omission, establishment, business,
condition of property, or anything else which:
(ISA-HO)
a. !njures or endangers the health or safety of
others;
b, ~hocks, defies or disregards decency or
morality;
c. ~nnoys or offends the senses;
d. Hinders or impairs the user of property; or
e. Obstructs or interferes with the free passage
of any public highway or street, or any body
of water.
GENERAL RULE: Everyone is bound to bear the
habitual or customary inconveniences that result
from the proximity of others, and so long as this
level is not surpassed, he may not complain
against them (Velasco v. Manila Electric Co., ..
G.R. No. L-18390, August 6, 1971).
EXCEPTION: If the prejudice exceeds the
inconveniences that such proximity habitually
brings, the neighbor who causes such
disturbance is held responsible for the resulting
damage, being guilty of causing nuisance (Id.).
Nuisance is either public or private, A public
nuisance affects a community or neighborhood or
any considerable number of persons,, although
the extent of the annoyance, danger or' damage
upon individuals may be unt3quaL f;.. private
nuisance is one that is not included in the
foregoing definition (CIVIL CODE, Ari. 695).'
A private nuisance, or one "that is not included in
the foregoing definition" which, in jurisprudence,
is one which "violates only priv,ate rights• and
produces damages to but one or a few persons
(Cruz v. Pandacan Hiker's Club, Inc., GR.. No.
188213, January 11, 2016).
A nuisance may also be classified as to whether
it is susceptible to a legal summary abatement, in
which case, it may either be: (a) a nuisance per
se, when it affects the immediate safety of
persons and property, which may be summarily
abated under the undefined law of necessity;
36or, (b) a nuisance per accidens, which
"depends upon certain oonditions and
circumstances, and its exIstM1ce being a
question of fact, it cannot be abated without due
hearing thereon in a tribunal authorized to decide
whether such a thing does in law constitute a
nuisance (Id.).
·. Liability of Successive Owner or Possessor
Every successive owner or possessor of property
who fails or refuses to abate a nuisance in that
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TORTS AND DAMAGES
' Civil Law
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property started by a former owner or possessor
is liable therefore in the same manner as the one
who created it (CIVIL CODE, Ari. 696).
NOTE: An action to abate nuisance is
imprescriptible (AQUINO, Torts and Damages,
supra at 754).
Any person injured by a private nuisance may
abate it by removing, or if necessary, by
destroying the thing which constitutes the
nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is
indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private
person be followed (CIVIL CODE, Ari. 706).
5. PRODUCT LIABILITY BY
MANUFACTURERS (CIVIL CODE, ART.
2187)
Manufacturers and processors of foodstuffs,
drinks, toilet articles and similar goods shall be
liable .for death or injuries caused by any noxious
or harmful substances· used, although no
contractual relation exists. .
Requisites: (MUNIF)
a. The defendant is the Manufacturer or
processor of foodstuff, drinks, toilet articles
a,nd similar goods involved;
b. Plaintiff Y,sed or consumed such product
. unaware of the injurious condition of the
· product;
c. The defendant used Noxious or harmful
substances in the manufacturing or
processing of the foodstuff, drink or toilet
articles and similar goods;
.d. _Plaintiff's !njury or death was caused by the
product used or consumed; and
e. The Eorms or kinds of damages suffered and
· the amount thereof (PINEDA, Torts and
Damages, supra at 132).
Product and Service Liability
Product Liability Law
This governs the liability of manufacturers and sellers
for damages resulting from defective products
(AQUINO, Torts and Damages, supra at 760).
Liability for defective products may be based on
fraud, warranty, neqliqence or strict liability. The
action is based on quasi-delict; therefore, it
prescribes in four years. The allegations in the
complaint makes a reference to the reckless and
negligent manufacture of "adulterated food items
intended to be sold for public consumption." The
vendee's remedies are not limited to those prescribed
in Article 1567 of the Civil Code. The vendor could be
liable for quasi-delict under Article 2176, and an
action based thereon may be brought by the vendee
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(Coca-Cola Bottlers Phils. v. CA, G.R. No. 110295;
October 18, 1993).
CONSUMER ACT
A law that is meant to protect the consumers by
providing for certain safeguards when they purchase
or use consumer products (R.A No. 7394, Consumer
Act).
Alternative theories that may be used to justify
product liability:
1. Fraud or Misrepresentation
GENERAL RULE: Not all expressions of opinion
or usual exaggerations in trade are actionable
misrepresentations if they are established to be
inaccurate.
EXCEPTION: An act or practice shall be deemed
deceptive whenever the producer, manufacturer,
supplier or seller, through concealment, false
representation or fraudulent manipulation,
induces a consumer to enter into a sale or lease
transaction of any consumer product or service
(R.A. No. 7394, Art. 50)
2. Warranties
Enforcement of Warranty Rights - By
presentment of a claim. It is sufficient for the
purchaser to present to the immediate seller
either the warranty card or the official receipt
along with the product to be serviced or returned
to the immediate seller (R.A No. 7394, Art. 68).
d. State the warrantor will do in the event of a
defect, malfunction or failure to conform to
the written warranty and at whose expense;
e. State what the consumer must do to avail od
the rights which accrue to the warranty; and
f. Stipulate the period within which, after notice
of defect, malfunction or failure to conform
with the written warranty, the. warrantor will
pe1iorm any obligntion under the wnrranty
(R.A. No. 7301, Soc. 68).
3. Neglig~nce
It is considered negligence per se if it is an act or
omission in violation of:
a. Those expressly prohibited by Product
Liability statutes;
b. Standards imposed by special laws, rules
and regulations of proper government
agencies with respect to Product Liability
Law (AQUINO, Torts and Damages, supra at
770).
Liability attaches if due care of an ordinarily
prudent man was not exercised in manufacturing,
packaging, marketing or distributing of the
'product (Id, at 769).
4. Delict
Basis of Liability:
a. Criminal n_egligence under the Revised Penal
Code;-and
b. \liolation ol any special law, even in the
· E!b~!=lr,JCeQf;i.i;itent (Id. at 771).
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Subsidiary Liability of Retailer - Retailer is

subsidiarily liable under the warranty in _case of
failure of both the manufacturer and distributor to
honor the warranty (AQUINO, Torts and
Damages, supra at 768).
Privily of contract is not necessary in successfully
pursuing an action for breach of warranty or iri
enforcing the same under the Consumer Act (Id.
at 769).
5. _Strict Liability
,'flt< is imposed on manufacturers under the
. 'Consumer Act and privity of contract is not
required (Id. at 772).
It does not preclude an action based on
negligence (quasi-delict) for the same act of
using noxious or harmful substances (Id.).

Governing Law: The provisions of the Civil Code Manufacturer

on conditions and warranties shall govern all a. Includes any person, who manufactures,
contracts of sale with conditions and warranties assembles or processes consumer products;
(R.A. No. 7394, Art. 67). and
b. Any person who attaches his own brand
Warranty Under the Consumer Act name to the consumer products,
In addition to the Civil Code provisions on sale manufactured, assembled, or processed for
with warranties, the following persons shall him (Id. at 780)
govern the sale of consumer products with
warranty: Defective Product or Service - when it does not
a. Set forth the terms of warranty in clear and offer the safety that the consumer may rightfully
readily understandable language and clearly expect of it (R.A. No. 7394, Art. 97, par. 1).
identify himself as the warrantor;
b. ·Identify the party to Whom the warranty is Kinds of Defective Products: (MD-PA)
extended; 1. _Manufacturing defect - resulting from
c. State the products or parts covered; manufacture, assembly and erection;
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2. Qesign defect - resulting from design; Reasonable Alternative Design

3. ,Eresentation defect - resulting from handling, The design shall be presumed safe unless, at the
making up, presentation or packing of the time the product left the control of the manufacturer,
products; or a practical and technically feasible design was
4. 8,bsence of appropriate warning - resulting from available that would have prevented the harm without
the insufficient or inadequate information on the significantly impairing the usefulness, desirability, or
use and hazards of the products (AQUINO, Torts marketability of the product (Id. at 786).
and Damages, supra at 782).
Test under The Consumer Act
NOTE: Design defect cannot be identified by The Consumer Act adopts the "Consumer
comparing the injury producing product with the Expectation Test" in determining what is defective (Id.
manufacturers plans or other unit. It can be at 787).
established by comparing it with standards
established by law or government agencies (Id. at Defenses
783). . 1. Manufacturer, builder, producer, or importer
shall not be liable when it proves:
Defect, which resulted because of the packaging and a. That it did not place the product on the
presentation of the product, can be included under market;
the broad concept of manufacturing defect or design b. That although it did place the product on the
defect (Id.). market such product has no defect; and
c. That the consumer or a third party is solely at
Liability for Defective Product or Service: fault (R.A. No. 7394, Art. 97).
1. Manufacturer
- liability shall be imposed upon manufc1cturers 2. Supplier of the services shall not be liable
independent of fault (R.A No.' 7394, Arts. 97 and when it is proven:
99). a. That there is no defect in the service
rendered; and
2. Tradesman or Seller b. That the consumer or a third party is solely at
- not generally liable for damages caused by fault (R.A. No. 7-394, Art. 99).
defective products under the "Consumer Act" or
"R.A. 7394". Requisites for Enforcing Liability against the
Defendarit
EXCEPTIONS: The plaintiff should allege and prove that:
a. It is not possible to identify the manufacturer, 1. The product was defective;
builder, producer or importer; 2. · The product was manufactured by the defendant;
b. The product is supplied, without clear and
identification of the manufacturer., producer, 3. The defective product was the cause in fact of his
builder or importer; injury (AQUINO, TORTS and DAMAGES, supra
c. He does not adequately preserve perishable at 794).
goods (R.A. No. 7394, Art. 98).
BUSINESS TORTS
Consumer Expectation Test Kinds:
Under the consumer expectation test a product may
1. N_on-Possessory Invasion
be found defective in design, if the plaintiff
Elements:
demonstrates that the product failed to perform as
a. The other has property rights and privileges
safely as an ordinary consumer would expect when yvith respect to the use or enjoyment
used in an intended or reasonably foreseeable
interfered with;
manner (Barker v. Lull Engineering, S.F. No. 23519,
b. The invasion is substantial;
January 16, 1978).
c. The defendant's conduct is a legal cause of
invasion; and
Risk-Utility Test d. The invasion is either intentional and
States that a product is defective in design when the unreasonable or unintentional and actionable
foreseeable risks of harm posed by the product could under general negligence rules (Id. at 797).
have been reduced or avoided by the adoption of
reasonable alternative design by the seller or other
2. Interference of Contracts
distributor, or a predecessor in the commercial chain
Statutory Basis: Any third person who induces
of distribution, and the omission of the alternative
another to violate his contract shall be liable for
design renders the product not reasonably safe
damages to the other contracting party (CIVIL
(AQUINO, Torts and Damages, supra at 785).
CODE, Art. 1314).

A'EM:Q~Y Al D
San Beda UnivcHslty College of Lew - RGCT Ba.r Opo,ations Center
GENERAL RULE: Only the parties to a contract
are bound by the terms of the contract and only a
party can file an action for breach of contract or
for rescission or annulment thereof (CIVIL
CODE, Art. 1312).
EXCEPTIONS:
a. Stipulation in favor of third person;
b. Contracts intended to defraud creditors
(CIVIL CODE, Art. 1313).
It is tortuous because it violates the rights of the
contracting parties to fulfill the contract and to
have it fulfilled, to reap the profits resulting
therefrom, and to compel the performance by the
other party (AQUINO, Torts and Damages, supra
at 797-798).
Elements: (EK!)
a. ~xistence of a valid contract;
NOTE: No action can be maintained if
contract is void (Id. at 801).
b. Knowledge on the part of the third person of
the existence of the contract; and
NOTE: Malice in the sense of ill-will or spite
is not essential.
c. Interference of the third person without legal
Justification (Go v. Cordero, GR. No.
164703, May 4, 2010).
NOTE: Breach must occur because of the
alleged act of interference (Bun v. CA, G.R.
No. 120554, September 21, 1999).
Elements of Privilege to Interfere:
a. The defendant's purpose is a justifiable one;
and
b. The actors do not employ means of fraud or
deception, which are regarded as unfair
(AQUINO, Torts and Damages, supra at
805).
Extent of Liability:
a. The exteot of the liability for the breach of a
contract must be determined in the light of
the situation in existence at the time the
contract is made; and the damages ordinarily
recoverable are in all events limited to such
as might be reasonable are in all events
limited to such as might be reasonably
foreseen in the light of the facts then known
to the contracting parties (Daywalt v. La
Corporacion, G.R. No. L-13505, February 4,
1919);
b. Defendant cannot be held liable for more
than the amount for which the contracting
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paIiy wl10 was induced to break tile conlraGl
can be held liable; and
c. Rule under Articles 2201 and 2202 of the
Civil Code
If in bad faith: Defendant is liable for all
natural and probable consequences of his
act or omission, whether the same is
foreseen or unforeseen (Go v. Corderdo,
G.R. No. 164703, May 4, 2010).
If in good faith: Defendc)nt is liable only for
consequences that can be foreseen.
3. Interference with Prospective Advantage
It is a tort committed when there is no contract yet
and the defendant is only being sued for inducing
another not to enter into a contract with the
plaintiff (AQUINO, Torts and Damages, supra at
808).
Illustrations:
a. Philip, with ill will, induced an employer not to
J•iire James, tile latter may hold Philip liable
for interfering with a prospective advantage
(Id.).
b. Ernest, a wealthy banker and a man of
considerable influence in the community. He
maliciously established a barber shop and
employed his influence to attract the
custpmers of the plaintiff's barber shop.
Ernest's sole purpose in establishing his
shop was to ruin the plaintiff (Id.).
4. Unfair Competition
Unfair competition has been defined as the
'i:iassing off (or palming off) or attempting to pass
off upoh the public the goods or business of one
person as the goods or business of another with
the end and probable effect of deceiving the
public (Co v. Spouses Yeung, G.R. No. 212705,
September 10, 2014).
True Test: Whether the acts of defendant are
such as are calculated to deceive the ordinary
buyer making his purchases under the ordinary
conditions which prevail in the particular trade to
which the controversy relates (Alhambra Cigar &
Cigarette Manufacturing Co v. Mojica, GR No.
8937, March 21, 1914).
Unfair competition in agricultural, commercial, or
industrial enterprises, or in labor, through the use
of force, intimidation, deceit, machination or any
unjust or oppressive or highhanded method shall
give rise to a right of action by a person who
thereby suffers damage (CIVIL CODE, Art. 28).
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Cases included: (PIMM)
a. fassing off and disparagement of products;
b. Interference;
Unfair competition includes cases involving
the tort of interference with contractual
-relations and interference with prospective
advantage.
c. Misappropriation;
Unfair competition is likewise present if the
defendant committed fraudulent
misappropriation against a competition.
d. Monopolies and predatory pricing (R.A. No.
8293, Sec. 168).
Monopoly - any combination the tendency of
which is to prevent competition in the broad and
general sense, or to control prices to the
detriment of the public (Gokongwei, Jr v. SEC,
G.R. No. L-45911, April 11, 1979).
In short, it is the concentration of business in the
hands of a few. The material consideration in
determining its existence is not that prices are
raised and competition actually excluded, but that
power exists to raise _prices or exclude
competition when desired." (Agan, · Jr. .v.
Philippine International ,1ir Terminals Co., Inc.,
G.R. Nos. 155001, 155547 & 155661, May 5,
2003).
Predatory pricing - means selling or offering to
sell any product at a price unreasonably below
the industry average cost so as to attract
customers to the detriment of competitors (R.A.
No. 8180, An Act Deregulating the Downstream
Oil Industry, and for Other Purposes).
Cartel - any combination of or . agreement
between two (2) or more persons engaged in the
production, manufacture, processing; ,storage;
supply, distribution, marketing, sale O( disposition
of any basic necessity or prime commodity
designed to artificially and unreasonably increase
or manipulate its price (R.A. No. 7581, The Price
Act, Sec. 5).
5. Securities-Related Torts (R.A. No. 8799,
Securities Regulation Code);
Kinds:
a. Fraudulent transactions (Securities
Regulation Code IR.A. No. 8799, Sec. 26);
b. Misstatements or omission of statement of a
material fact required to be stated (R.A. No.
8799, Sec. 56 - 57).
Defendants are not liable if they can prove-that
at the time of the acquisition, the plaintiff knew of
the untrue statement or if he was aware of the
falsity.
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TORTS AND DAMAGES
' Civil Law
'
DAMAGES
(ARTS. 2195-2235)
The provisions on Damages found in Articles 2195 to
2235 of the Civil Code are applicable to all kinds of
obligations (Ari. 1157) whatever may be their sources
(CIVIL CODE, Art. 2195).
DAMAGE
This refers to the detriment, injury or loss which are
occasioned by reason of fault of another in the
property or person (AQUINO, Torts and Damages,
supra at 819). ·
The pecuniary compensation, recompense, or
satisfaction for an injury sustained, or as otherwise
expressed, the pecuniary consequences which the
law impose$. for the breach of some duty or the
violation of some rights (People v. Ballesteros, G.R.
No. 120921, January 29, 1998; People v. Oandasan,
Jr., G.R. No. 194605, June 14, 2016).
DAMAGE VS. INJURY
Damage is the indemnity recoverable by a person
who has sustained an injury either in· person, or
relative rights through the act or default of another. It
is the injury or loss for which compensation is sought
(Bouviere's Law Dictionary, 749-750 citei:J by
ALBANO, Torts and Damages, supra at 400).
Injury-is the wrongful act or tort which causes harm to
another. The word '.'injury" denotes the illegal act; the
term. "d;=images" means the sum recoverable which
amemds for the wrong (Id. at 401).-
DAMAGE V. INJURY V. DAMAGES
Damage is the loss, hurt, or harm which results from
the injury; Injury is the legal invasion of a legal right;
and Damages are the recompense or compensation
awarded for the damage suffered (Far East Bank and
Trust Company v. Paci/an, Jr., G.R. No. 157314, July
29, 2005).
NOTE: A complaint for damages is a personal action
(AQUINO, Torts and Damages, supra at 820).
DAMAGES V. RESTITUTION V.
INJUNCTION
Money Requires the Forbids
awarded to defendant to threatened
the person restore any gains actions, requires
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considering the situation of the defendant and the

injured by the he made in a the defendant to
evidence on hand (SUAREZ, Torts and Damages
tort of transaction, or by alter harmful
(2011), p.151 [hereinafter SUAREZ, Torts and
another (DE his act or conduct or
Damages]).
LEON, Torts omission (Id. at repair its
and 634). consequences
Damages, (Id.). KINDS OF DAMAGES: (MENTAL)
supra at 1. _Moral;
t5JJ). 2. gxernplary or corrective;
3. ~ominal;
4. Iemperate or moderate;
NOTE: Both restitution and injunction are 5. ~ctual or Compensatory;
occasionally ava,ilable in tort cases (Id.). 6. .!:iquidated (CIVIL CODE, Art. 2197).

AWARD MUST BE MONETARY ACTUAL OR COMPENSATORY

In actions for damages, courts should award an
amount to the winning party and not its ~quivalent in
property. The money value of such damages must be
awarded (Id. at 820).
DAMNUM ABSQUE INJURIA (DAMAGE
WITHOUT INJURY)
Under this principle, the legitimate exercise of a
person's rights, even if it causes loss to another, does
not automatically result in an actionable injury. The
law does not prescribe a remedy for the loss (Amonoy
v. Gutierrez, GR. No. 140420, February 15, 2001).
Hence, in the case of Seferino v. FEBTC (G.R. No.
171845; October 10, 2012), the SupremEl Court ruled
that in the absence of any positive duty of to an
adverse claimant. there could be no breach that
entitles the latter to moral damages.
DAMAGES
Damages awarded to a person as compensation or
indemnity for such pecuniary loss suffered by him as
he has duly proved (CIVIL CODE, Art. 2199-2215).
PURPOSE: To repair the wrong that has been done,
to compensate for the injury inflicted and not to
impose penalty (PNOC Shipping and Transport Corp .
. v. CA, G.R. No. 107518, October 8, 1998).
Re~ti,tutio injntegrum
The' amour'lt'to be awarded to the plaintiff should be
that sum of money which will put the party who has
been injured or who has suffered in the same position
as he would have been if he had not sustained the
wrong for which he is now getting his compensation
or reparation (AQUINO, Torts and Damages, supra
at 827).

PECUNIARY LOSS The primary oo)ect of an award of a civil action, and

Loss of money or something by which money or · the fundamental principle or theory on which it is
something of money value may be acquired (DE . l:>~se:d, is just compensation, indemnity or reparation
LEON, TORTS, supra at 624). . forttiefoss or injury (Id. at 827-828).

- By way of exception, damages are measured by the

GENERAL RULE: Every judgment for damages,
whether arising from breach of contract or the result benefit that has accrued to the. defendant in certain
of some provision of law, must rest upon satisfactory cases (e.g., The Intellectual Property Code allows the
proof of the damages alleged to have been suffered recovery of the amount that was earned by the
(Id. at 625). defendant who infringed the nght of the owner of the
mark) (Id. at 828).
NOTE: Credence can be given only to claims duly
supported by receipts (Comsavings Bank v. Sps. Plaintiff is entitled to an adequate
Capistrano, GR. No. 170942, August 28, 2013). compensation only for pecuniary loss he
. suffered and which he has duly proved.
EXCEPTION: In case of moral, nominal, temperate,
liquidated or exemplary damages (CIVIL CODE, Art. Classifications of actual damages:
2216). Being incapable of exact pecuniary 1 . Dano emergente or dammim
estimation, the assessment of such damages, except emergens - loss of what a person
for liquidated damages which the parties, themselves already possesses.
fix, is left to the sound discretion of the court (People
v. Dianos, GR. No. 119311, October 7, 1998). 2. Lucro cessante or gan13cias
frustradas - failure to receive as a
Damages as and by way of compensation is based, benefit that which would have pertained
however, not only on what the plaintiff claims to be to him (CIVIL CODE, Art. 2205)
just, but also on what may be deemed conscionable

a. Loss or impairment of earning
capacity in cases of temporary or
permanent personal injury; or
b. Injury to the plaintiff's business
standing or commercial credit
NOTE: Restitutio in lntegrum - Amount
should be that which would put plaintiff in
the S81ne µusitiurr as he would have been if
he had not sustained the wrong for which he
is now getting his compensation or.
reparation (AQUINO, Torts and Damages,
supra at 828).
Speaks of damages in contracts and
quasi-contracts:
1. Obligor in Good Faith
Liable for natural and probable
consequences of the breach of the
obligation and which the parties have
foreseen or could have reasonably been
foreseen at the time the obligation was
constituted.
Obligor in Bad Faith
Liable for all damages which may be
reasonably · cittributed to the non-
performance of the obligation.
Speaks of Damages in Crimes and
Quasi-delicts
He is liable for all damages which are the
natural and probable consequences-of the
acts or omission complained of. It is NOT
necessary that such damages have been
foreseen or could have reasonably been
foreseen at the time the obligation was·
constituted. There should be restitutio in
integrum.
Doctrine of Avoidable Consequence,s
Injured victims have a responsibility to act
reasonably to limit or mitigate lqsses
incurred. Failure to mitigate the injury will
~ot hold the defendant for incremental
losses that otherwise could have been
avoided.
Where as a consequence of the refusal of
the injured to submit to an operation, a
series of infections ensued and required
constant and expensive medical treatment
for several years, the defendant should not
be charged with the expenses {Lasam v.
Smith, G.R. No. 19495, February 2, 1924).
A person who reasonably attempts to
minimize his damages can recover the
expenses that he incurred.
TORTS AND DAMAGES
Civil Law
Increase or Reduction of Damages in
Crime
The liability for damages may be
respectively increased or lessened
depending on the presence of mitigating or
aggravating circumstances.
Mitigation of Liability (CIVIL CODE, Arts.
2203, 2204, 2214, 221b).
DOCTRINE OF AVOIDABLE
CONSEQUENCES V. CONTRIBUTORY
NEGLIGENCE
Acts of the plaintiff occur Plaintiff's act or omission
after the act or omission occurs before or at the
of the defendant time of the act or
(AQUINO, Torts and omission of the
Damages, supra at 869). defendant {Id.).
Injured victim has a Contributed to causing
responsibility to . act the accident responsible
reasonably to limit or for the injury.
mitigate losses incurred
(Id.).
GENERAL RULE: Actual ·damages must be proved
with a reasonable degree of certainty. A court cannot
rely on speculation, conjecture, or guesswork as to
the fact and amount of damages but must depend on
competent proof that they have suffered, and on
evidence of the actual amount thereof (Loadstar
Shipping Co., Inc. v. Malayan Insurance Co., Inc.,
G.R. No. 185565, November 26, 2014).
EXCEPTIONS: (PLL-FDI)
1. Whe11 a fenalty clause Is agreed upon in the
contract between the parties (CIVIL CODE, Art.
1226); .
2. When the .!:,iquidated damages have been
agreed upon (CIVIL CODE, Art. 2226);
3. When the Loss is presumed as when a child or
spouse dies as a result of the act or omission of_
a person (Manzanares v. Moreta, G.R. No. L-
12306, October 22, 1918);
4. Forfeiture of bonds in fayor of the government for
the purpose of promoting public policy or interest
(Far Eastern Surety and Insurance Co. v. CA,
G.R. No. L-12019, October 16, 1958);
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5. "Damages for Qeath caused by a crime or delict"
which can be awarded forthwith to the heirs of the
victim by proof alone of such fact of death; and
6. Damages !mplied by law (e.g., the complainant in
libel cases is not required to introduce evidence
of actual damages at least, when the amount of
the award is more or less nominal. The injury to
the reputation is a natural and probable
consequence of the libel (Quemel v. CA, G.R.
No. L-22794, January 16, 1968).
Where, however, it is reasonably certain that injury
consisting of failure to realize otherwise reasonably
expected profits had been incurred, uncertainty as to
the precise amount of such unrealized profits will
NOT prevent recovery or the award of damages
(Talisay-Silay Milling Co. v. Asociacion de
Agricultores de Talisay-Si/ay, Inc., GR. No. 91852,
· August 15, 1995).
the award is the sum of money which plaintiff
would have to pay in the market for identical or
essentially, similar good, plus in proper cases,
damages for the loss of use during the period
before replacement (AQUINO, Torts and
Damages, supra at 834).
2. Damage to Real Property
The measure of damage for a permanent injury
is ordinarily the difference t.ielwee11 l11c
reasonable market value of the property
immediately before and after the injury. In case
of total loss, the value of the real property at the
time and place of the loss must also be
assessed and such assessed value is the
measure of the damage due to the plaintiff (Id.
at 835).

MORAL DAMAGES (CIVIL CODE, ARTS.

May Actual Damages be Recovered on the Basis 2217-2220)
of Mere Testimony?
Moral damages include: (BMW-F-PMS 3)
No. The Supreme Court ruled In Fuentes v. CA (G.R
1. §.esrnirched reputation;
No. 111692, February 9, 1996) that as there is no
tangible document upon which the actual damages is
2. M,cral shock;
3, Woun_ded feelings;
based, actual damages cannot be recovered on the
4. [right;
basis of mere testimony. To seek recovery for actual
5. fhysical suffering;
damages, it is essential that the injured party proves
6. Mental anguish;
the actual amount of loss with reasonable degree
7. §.erious anxiety;
premised upon competent proof and on the best
8. §.ocial humiliation
evidence available (JURADO, Civil Law Reviewer,
9. §.imilar injury (CIVIL CODE, Art. 2217).
supra at 1279).
Article 2217 of the Civil Code states what are
Doctrine of Foreseeable or Anticipated
included in moral damages while Article 2219
Consequences
enumerates the cases where they may be recovered.
Only those injuries which could have been
reasonably foreseen by the parties at the time the
NOTE: The cases when moral damages may be
contract was entered into are recoverable contr;3ct
awarded are specific. Unless the case falls under the
damages (SANGCO, Torts and Damages, supra at
enumeration as provided in Article 2219, which is
952).
exclusive, and Article 2220 of the Civil Code, moral
damages may not be awacded (Coca-Cola Bottlers
If there was a stipulated date of delivery of goods,
Phils., Inc. vs. Menez, G.R. No. 209906, November
damages may come in the form of the difference
between the value of the goods at the time they
22, 2017).
should have been delivered and at the time of actual
The award of moral damages is designed to
delivery ( Uy Chaco v. Admiral Line, G.R. No. 22134,
compensate the claimants for actual injury and is not
October 17, 1924); (ALBANO, Torts and Damages,
meant to enrich the complainant at the expense of the
supra at 419).
defendant. The grant of moral damages is based on
the ancient maxim "when there is a wrong there is a
In a building contract, if there is a time frame within
remedy" (AQUINO, Torts and Damages, supra at
which to complete the repairs of construction, in case
875).
of delay, the contractor may be liable for damages (Id.
at 420).
They are awarded only to enable the injured party to
obtain means, diversions or amusement that will
Damage to Property
serve to alleviate the moral suffering he has
1. Damage to Personal Property
Where goods were destroyed by the wrongful undergone by reason of the defendant's culpable
act of the defendant, the plaintiff is entitled to action (Kierulf v. CA, G.R. No. 99301, March 13,
1997).
their value at the time of destruction. Normally,

In the case of Kieruff v. CA, pP.tition~r spouses argue
that respondent court should have considered the
loss of their conjugal fellowship and the impairment
of destruction of their sexual life in computing the
moral damages to be awarded to them as a
consequence of the disfigurement of the wife.
Petitioners cited a California case "Rodriguez v.
Bethe/em Steel Corp." which ruled that when a
person is injured to the extent that he/she is no longer
capable of giving love, affection, comfort and sexual
relations to his or her spouse, that spouse has
suffered a direct and real personal loss. The Supreme
Court ruled that whether the Rodrigeuz case may be
cited as authority to support the award of damages
for loss of consortium cannot be properly considered;
that petitioners claim is not supported by the evidence
on record; that · he had not testified that, in
consequence of the disfigurement, his right to marital
consortium was affected (Id.).
NOTE: In the above case, the Supreme Court did not
make a definite ruling that loss of marital consortium
cannot be included · in the computation of moral
damages.
Among the factors that can be considered in
assessing moral damages is the standing of the
offended party in the community, on th"! one hand,
and the financial capability of the offender, upon the
other hand, without either being preclusive of other
circumstances even perhaps more primordial, like the
gravity of injury and the wrong causing it, that may be
attendant to each case (Former Mayor Brigida Simon
Jr. v. Martinez, GR. No. 156025, January 31, 2007).
Nature and Purpose
Moral damages are not punitive and not ir:itended to
enrich the complainant in order to punish the
defendant. They are for reparation _of the spirltual
status quo ante; a means to assuage the moral
suffering of the complainant brought about by
defendant's culpable action (Manila Electric Co. v.
Spouses Ramos, G.R. No. 195145, February 10,
2016).
Proof and Causation
No proof of pecuniary loss is necessary in order that
moral damages may be adjudicated. The
assessment of such damages is left to the discretion
of the court, according to the circumstances of each
case. However, there must be proof that defendant
caused physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, similar injury
to the plaintiff (AQUINO, Torts and Damages, at 877-
878).
Amount of Moral Damages to be Awarded
It must be commensurate to the suffering or
proportionate to the wrong committed (Manila Electric
TORTS AND DAMAGES
Civil Law
Company v. Jose, G.R. No. 152769, February 14,
2007).
Factors in Determining Amount: (EPS)
1. .!;xtent of Humiliation;
2. fain and suffering;
3. Official, political, social and financial §.tanding;
and,
4. ~ge. (AQUINO, Torts _and Damages, supra at
886-890).
Proximate Result
Such damages must be the proximate result of a
wrongful act or omission the factual basis of which is
satisfactorily established by the aggrieved party (Lim
v. Gomez, G.R. No. 160110, June 18, 2014).
GENERAL RULE: The plaintiff must allege and
prove:
1. The factual basis for moral damages; and
2. l_ts causal relation to the defendant's act
(AQUINO, Torts and Damages, supra at 878).
EXCEPTION: Moral damages may be awarded to the
victim in criminal proceedings without the need for
pleading of proof of th_e basis thereof (Id.).
Requisites forAwar~ <>f Moral Damages:
1. Injury. whether physical, mental or psychological,
clearly susta\ned by the claimant;
2. Culpable act or omission;
3. Such.act or pmissioh is the proximate cause of
the injury; and
4. Damages predicated on the cases cited in Art.
2219 of the Civil C0de and analogous cases, to
wit:
a. A criminal offense resulting in physical
injuries;
b. Quasi-delicts causing physical injuries;
c. Seduction, abduction, rape, or other
lascivious acts;
d. Adultery or concubinage;
e. Illegal or arbitrary detention or arrest;
f. Illegal search;
g. Libel, slander or any other form of
defamation;
h. Malicious prosecution; or
i. Acts mentioned in Art. 309; Acts and actions
referred to in Art. 21, 26, 27, 28, 29, 30, 32,
34, and 35 (DE LEON, Torts and Damages,
supra at 804).
Moral Damages in Culpa Contractual
In culpa contractual, moral damages are recoverable
only if the defendant acted fraudulently or in bad faith,
or is found guilty of gross negligence amounting to
bad faith, or in wanton disregard of his contractual
obligations. The breach mtist be wanton, reckless,
malicious or in bad faith, oppressive or abusive
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(Emmanuel B. Aznar v. Citibank, N.A., (Philippines),
G.R. No. 164273, March 28, 2007).
A conscious or intentional design need not always be
present since negligence may occasionally be so
gross as to amount to malice or bad faith. Bad faith in
the context of Article 2220 of the Civil Code includes
gross negligence (Bankard, Inc. v. Feliciano, G.R.
No. 141761, July 28, 2006).
In an action for breach of contract of carriage, moral
damages may be awarded only in case:
1. an accident results in the death of a passenger; or
2. the carrier is guilty of fraud or bad faith (Darines v.
Quinones, G.R. No. 206468, August 02, 2017).
Moral damages in case of physical injuries are
recoverable only by the party injured (Manila Doctors
Hospital v. So Un Chua, G.R. No. 150355, July 31,
2006).
Moral Damages in Quasi-delict
Moral damages may be aptly recovered:
1. When an act or omission causes physical
injuries
2. Where the defendant is guilty of intentional'
tort, (DE LEON, Torts and Damages. supra at
805).
NOTE: This rule also applies, as aforestated, to
contracts when breached by tort (Id).
Moral Damages in Crimes or Felonies
It could be lawfully due when the accused is found
guilty of physical injuries, lascivious acts, adultery or
concubinage, illegal or arbitrary detention, illegal
arrest- or . search, defamation and malicious
prosecution (Id.).
The award of civil indemnity is mandatory without
need of proof other than the commission of the crime
(People v. Credo, G.R. No. 197360, July 3, 2013).
Though R.A. 9346 prohibits the imposition of death
penalty, the civil indemnity is proper, because it is not
dependent on the actual imposition of the death
penalty but on the fact that qualifying circumstances
warranting the imposition of the death penalty
attended the commission of the offense (People v.
Credo, G.R. No. 197360, July 3, 2013).
May a Person Who Slapped Another on the Face
be Held Liable for Damages?
Yes. The act of slapping another in the face is
contrary to morals and good customs and under the
circumstances, could not but have caused the latter
mental anguish, moral shock, wounded feelings and
social humiliation.
A slap on the face is an unlawful aggression. The face
personifies one's dignity and slapping it is a serious
personal affront. It is a physical assault coiirlP.rl with
a willful disregard to the integrity of one's person
(ALBANO, Torts and D;;,mages, supra at 493).
Persons who may Recover Moral Damages
GENERAL RULE: Only the victim can recover.
EXCEPTION: The following relatives of the victim
may recover:
1. The spouse. legitimate and illegitimate
descendants and ascendants of the deceased
(CIVIL CODE, Art. 2209).
2. The parents of a female seduced, abducted,
raped, or abused (CIVIL CODE, Art. 2219 par 3).
3. The spouse, descendants, ascendants, and
brothers and sisters, in the order named, against
any person who shows disrespect to the dead, or
wrongfully interferes in the funeral of the
deceased.
NOTE: They must also suffer mental anguish, serious
anxiety, wounded feelings, moral shock and other
similar injuries (AQUINO, Torts and Damages, supra
c1t893-894).
Note, however, that the right to claim damages by the
siblings (brothers and sisters) is limited only to the
third enumeration. Hence, in the case of Sulpicio
Lines v. Curso~ et al., the Supreme Court ruled that
the surviving siblings of a passenger during a voyage
may not clai_m __ moral damages in behalf of the
deceased (G,RNo. 157000, March 17, 2010).
Award of Moral Damages to Corporations
GFNERAL RULE: A corporation may not be awarded
moral' damages, it being a juridical person; it cannot
suffer from wounded feelings, serious anxiety, mental
anguish or moral shock (Manila Electric Co. v.
T.E.A.M. Corporation, G.R. No. 131723, December
13, 2007).
EXCEPTION: Libel, slander or any .other form of
defamation. But there must be evidence to prove it to
justify the award (CIVIL CODE, Art. 2279 par. 7,
Filipinas Broadcasting Network, Inc. v. Ago Medical
and Educational Center - Bicol Christian College of
Medicine, GR. No. 141994, January 17, 2005):
NOTE: In Manila Electric Co. v. T.E.A.M. Corporation
(supra), the Court deemed it proper to delete the
award of moral damages. TEC's claim was premised
allegedly on the damage to its goodwill and
reputation. It is essential to prove the existence of the
factual basis of the damage and its causal relation to
petitioner's acts. In the present case, the records are
bereft of any evidence that the name or reputation of
TEC/TPC has been debased as a result of
petitioner's acts. Besides, the trial court simply
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awarded moral damages in the dispositive portion of However:

its decision without stating the basis thereof. 1. In cases where the resulting injury might be
continuing and possible future complications
NOMINAL DAMAGES (CIVIL CODE, ART. directly arising from the injury, while certain to
2221-2223) occur are difficult to predict, temperate damages
can and should be awarded on top of actual or
· They are those recoverable where a legal right is
compensatory damages. In such cases, there is
technically violated and must be vindicated against no incompatibility between actual and temperate
an invasion that has produced no actual present loss damages when both are provided; or,
of any kind, or where, from the nature of the case,
2. In cases of additional damages to cover
there has been some injury arising from a breach of
estimated future cost of proper care where it
contract or legal duty the amount thereof has not
would not be equitable for the victim to constantly
been or cannot be shown. (OE LEON, Torts and
come to court and invoke their aid in seeking
Damages, supra at 837).
adjustments to the compensatory damages
previously awarded, temperate damages are
Purpose: In order that a right of the plaintiff, which
appropriate (Ramos v. CA G.R. No. 124354,
has been violated or invaded by the defendant, may April 11, 2002).
be vindicated or recognized. It is not for the purpose
of indemnifying the plaintiff for any loss suffered by Heirs of the victim of murder are entitled to
him (CIVIL CODE, Art. 2221). Pho50 000 as civil indemnity, which is manciatory and
granted without need of any evidence or proof of
However, an award of nominal damages precludes
damages other than the commission of the crime
the recovery of actual, moral, and temperate
(People v. Cabinan, G.R. No. 176158, March 27,
damages (DE LEON, Torts and Damages, supra at
2007).
845).
Temperate Damages in Lieu of Actual Damages
The law presumes damage although actual or Since the heirs undeniably incurred expenses for the
compensatory damages are not proven (Gonzales v.
wake and burial, the Supreme Court awarded
People, G.R. No. 159950, February 12, 2007).
temperate damages in the amount of P25,000
pursuant to prevailing jurisprudence, in lieu of actual
Nominal damages are recoverable where a legal right damages as it would be unfair to the victim's heirs to
is technically violated and must be vindicated against get nothing, despite the death of their kin, for reason
an invasion that has produced no actual present loss
alone that they cannot produce receipts (Philippine
of any kind or where there has been a breach of National Railways v. Ethel Brunty, G.R. No. 169891,
contract and no substantial injury or actual damages November 2, 2006).
whatsoever have been or can be shown ( Cathay
Pacific Airways v. Reyes, G.R No. 185891, June 26,
The court did not award actual damages due to lack
2013). ·
of proof of actual expenses, but instead granted
temperate damages in the amount of P50,000.
TEMPERATE OR MODERATE DAMAGES Temperate damages may be recovered when
(SEE CIVIL CODE, ART. 2224 AND 2225) pecuniary loss has been suffered but its amount
Under Article 2224 of the Civil Code, temperate cannot be proved with certainty (People v. Berondo,
damages may be recovered when the court finds th_at G.R. No. 177827, March 30, 2009).
sorrie pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be When the crime is heinous, the Supreme Court
proved with certainty. increased the award for mandatory civil indemnity to
P75,000.00 to conform to recent jurisprudence
These are damages, which are more than nominal (People v. Vergara, G.R. No. 177763, July 3, 2013).
but less than compensatory, and may be allowed in
cases where from the nature of the case, definite LIQUIDATED DAMAGES (SEE CIVIL
proof of pecuniary loss cannot be adduced, although CODE, ART. 2226-2228)
the court is convinced that the aggrieved party Those agreed upon by the parties in a contract, to be
suffered some pecuniary loss (Adriano v. Lasala, paid in case of breach thereof.
GR. No. 197842, October 9, 2013).
PURPOSE: To strengthen the coercive force of the
Temperate and. actual damages are mutually obligation by the threat of greater responsibility or
exclusive in that both may not be awarded at the consequences in the event of breach (DE LEON,
same time (People v. Gutierrez, G.R. No. 188602, Torts and Damages, supra at 853).
February 4, 2010).
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Liquidated damages, whether intended as an also be iniquitous by a supervening change of

indemnity or a penalty, shall be equitably reduced if
they are iniquitous or unconscionable (CIVIL CODE,
Art. 2227).
!-iquidated damages are those agreed upon by the
parties. No proof is necessary. It is not subject to any
contingency or determination as it is already agreed
upon. The reason why there is no need for proof to
recover liquidated · damages is because the
agreement is the law between the parties (ALBANO,
Torts and Damages, supra at 512).
LIQUIDATED DAMAGES V. PENALTY
circumstances, which makes the amount grossly
disproportionate to the damage suffered by the
creditor. In such cases, the court may reduce the
amount of penalty (ALBANO, Torts and Damages,
supra at 512).
EXEMPLARY OR CORRECTIVE
DAMAGES (CIVIL CODE, ART. 2229-2235)
Imposed by way of example or correction for the
public good, in addition to the moral, temperate,
liquidated or compensatory damages. It is required by
public policy to suppress wanton acts (AQUINO,
Torts and Damages, supra at 916).

Sum inserted in a Sum inserted in a 2. ~ot recoverable as a matter of right, their
contract as a measure contract as a punishment
of compensation for its for default, or by way of
breach (DE LEON, security for actual
Torts and Damages, damages which may be
supra at 853). sustained because of
non-performance (Id.).
Requisites: (ANB)
1. Imposed, by way of example in ~ddition to
compensatory damages, only after the claimant's
right to it has been established;
determination depending upon the amount of
compensatory damages that may be awarded;
and
3. The act must be accompanied by ~ad faith or
done in wanton, fraudulent, oppressive or
malevolent manner (Id. at 917).

Exemplary Damages in Delict or Crime

Relative to the civil aspect of the case, an aggravating
Its essence is a An agreement to pay a
· circumstance, whether ordinary or qualifying, should·
genuine covenanted stipulated sum on breach
entitle the offended party to an award of exemplary
pre-estimate of of contract irrespective of
damages within the unbridled meaning of Article 2230
damages (Id.). the damage sustained
of the Civil Code (People v. Vergara, G.R. No.
(Id).
177763, Jufy 3, 2013).

Exemplary Damages in Quasi-Delict

It may be awarded if the defendant acted with gross
negligence (CIVIL CODE, Art. 2232).

Exemplary Damages in Contracts and Quasi-

Contracts
It may be awarded if the defendant acted in a wanton,
fraudulent, reckless, oppressive, malevolent manner
(CIVIL CODE, Art. 2232).

ART. 2233 V. ART. 2234 V. ART 2235

Should the principal obligation be void, the
stipulation on liquidated damages will also be void;
Exemplary Although the Agreement
both damages being accessory obligations to the
damages amount of to renounce
principal obligation (CIVIL CODE, Art. 1230).
cannot be exemplary exemplary
recovered as a damages need damages in
The amount of penalty is not determined by the injury matter of right. not be proved, advance
suffered by the creditor, but by what has been agreed This may be plaintiff rnust show shall be null
upon by the parties who are free to determine such granted at the that he is entitled and void.
amount. The limits of good customs, however, should discretion of to moral,
not be infringed. A penalty would be contrary to good the court even temperate or
customs if it would occasion the economic ruin and if not expressly compensatory
represent an undue exploitation of the debtor. It may pleaded or damages.
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I prayed for, LOSS OF EARNING CAPACITY (CIVIL

OTHER KINDS OF DAMAGES
Compensation for
WorkmAn ::ind other
employees. This covers
ua111c1yes rur workmen
and other employees in
case of death, injury or
illness under special law
(e.g., indemnity for
worker).
When May Exemplary Damages be Imposed?
1, In criminal offenses, it may be imposed when the
crime was committed with one or more
aggravating circumstances;
2. In quasi delicts, it may be imposed if the
defendant acted with gross negligence;
3. In contracts and quasi-contracts, it may be
imposed if defendant acted in wanton, fraudulent,
reckless, oppressive, or malevolent manner
(JURADO, Civil Law Reviewer, supra at 1315),
DAMAGES IN CASE OF DEATH
The amount of damages caused by a crime,or quasi-
delict shall be at least Php 3,000·.oo, even though
there may have been mitigating circumstances
(CIVIL CODE, Art. 2206; See Summary of Damages
pursuant to People v Jugueta, GR_ No. 202124,
April 5, 2016 below).
When the death occurs due to a crime, the following
may be awarded; ( 1) civil indemnity ex delicto for the
death of the victim; (2) actual or compensatory
damages; (3) moral damages; (4) exemplary
damages; (5) temperate damages (People v. Asis, et
al., GR No, 177573, July 7, 2010).
In addition, the defendant shall be liable for:
1. Loss of the earning capacity of the deceased,
to be paid to the heirs of the deceased;
Exception: if the deceased had no earning
capacity at the time ofhis death.
2. The recipient of support who is not an heir called
to the decedent's inheritance by the law of testate
or intestate succession, may demand support
from the person causing the death, for a period
not exceeding 5 years, the exact duration to be·
rixeu by ltie court; and
3. The spouse, legitimate and illegitimate
descendants and ascendants of the deceased
may demand moral damages (CIVIL CODE, Art.
2206).
CODE, Art. 2205, par. 1)
Formula:
{213 x (80-age of death)} x monthly earnings x 12
2
(AQUINO, Torts and Damages, supra at 842).
This covers damages
awarded when there is Variables considered are:
no proof of pecuniary 1. Life expectancy, computed as:
loss. This Is left to the {2/3 x (80 - age at death)} (Id); and
discretion of the court, 2. Net income/earnings - the total of lhe ec1111i11g::;
according to the less expenses necessary for the crention of such
circumstances of each earnings and less living or other incidental
case (e.g., damages expenses {Id. at 843).
arising from tort or
crime). The Court considered as an important element in
measuring the loss of earning capacity, the net
earnings of the deceased as well as the latter's
potentiality and capacity to increase his future income
(Villa Rey Transit v. CA, G.R. No, L-25499, February
18, 1970).
The plaintiff is also entitled to damages for loss of
earning capacity when the defendant's act or
omlssion resulted in his permanent incapacity. Thus,
in Borromeo v · Manila Electric Railroad & Light Co.
(G.R. No. 18345, December 5, 1922), the Supreme
Court awarded in favor·of the plaintiff an amount for
his lossof earning capacity because he lost his left
· foot, and because of such loss, he could no longer be
em.ployed as a marlne engineer on any vessel
(AQUINO, Torts and Damages, supra at 839-840).
Illustration:
In People v, Galvez (G.R. No. 136790, March 26,
2001), deceased died at the age of 21 and was
working as. a construction worker with a monthly
income of P3,262,50. .
2/3 x (80,21) (age of victim at time of death) = 39,33
P3,262.50 x 12 = P39, 150,00 (Gross annual Salary)
P39,150,00 x 0,50 (a/location of living expenses) =
P19,575,00 (Net Income)
Loss of Earning Capacity
= 39.33 X P19,575.00
= 7~9,884.75
Ascertaining the Amount of Compensation:
1. Determination of the extent to which such
capacity has been diminished;
2. Determination of the permanency of the
decrease in earning capacity; and
3. The fixing of the amount of money which will
compensate for the determined extent and length
of impairment, includin~ a reduction of the award
to its present worth (DE LEON, Torts and
Damages, supra at 699).
 flFfi,RWD \ 1
MEM✓v-RY Al D
San Beda University College' of Law - RGCf Bar Opmauors Canter
It is not necessary for the plaintiff to be employed at
the time of the injury for the court to be able to
compensate him both for the value of the time lost
after the injury and before the trial and the impairment
to his capacity to earn money in the future (Id. at 702-
703).
Indemnification for loss of earning capacity must be
duly proven. It partakes the nature of actual
damages. It refers to the net income, i.e., his total
income net of expenses (People v. Cuenca, G.R. No.
143819, January 29, 2002).
In computing the loss of earning capacity of the
victim, several factors are considered besides the
mathematical computation of annual income times
life expectancy. Allowances are made for
circumstances which could reduce the computed life
expectancy of the victim, e.g., nature of the work, his
life style, age, and state of health prior to his death
(ALBANO, Torts and Damages, supra at 430).
May the Financial Capacity of a Carrier-Defendant
be Considered in the Award of Damages?
Yes. The financial capacity of the carrier may not be
necessary in determining whether or not it is liable,
but such financial capacity becomes relevant and
necessary in determining a reasonable or equitable
amount of compensation or damages that may be
awarded to the victims should the court be convinced
that the carrier is liable (Id. at 433).
GENERAL RULE: Documentary evidence should
substantiate the claim for damages for loss of earning
capacity (AQUINO, Torts and Damages, supra at
846).
NOTE: Nothing in the Rules of Court requires that
only documentary evidence is allowed in civil cases.
All that is required is the satisfaction of the quantum
of evidence, that is, preponderance of evidence. In
addition, the Civil Code does not prohibit a claim for
loss of earning capacity on the basis that it is not
proven by documentary evidence. · Testimonial
evidence, if not questioned for credibility, bears the
same weight as documentary evidence (Torreon v.
Aparra, Jr., G.R. No. 188493, December 13, 2017).
EXCEPTIONS:
1. The award of temperate damages for loss of
earning capacity in lieu of documentary evidence;
2. Non-working victims;
3. The deceased is self-employed and earning less
than the minimum wage under current labor laws;
and
4. When testimonial evidence sufficiently
establishes the loss (e.g., testimony of the
corporate officers of employer or the widow of the
victim) (AQUINO, Torts and Damages, supra at
847-848).
Loss of Earning Capacity of Non-working Victims
Earning capacity may be impaired even if no actual
earning is lost in the meantime. In a number of cases,
the Supreme Court recognized the entitlement of the
heirs of the deceased for loss of earning capacity of
the deceased even if the said deceased was not
working at the time of the accident What is important
is that there is proof of loss of earning capacity and
not necessarily actual loss of income (Id. at 850).
Can ttie Court Award Indemnification for Loss of
Earning Capacity Without Adequate Proof?
No. Well settled is·the rule that the indemnification for
loss of earning capacity must be duly proven. Hence,
the bare testimony of the brother of the deceased is
not sufficient proof. Indemnification for loss of earning
capacity partakes of the nature of actual damages
which must be duly proven. A self-serving statement,
being unreliable is not enough. But for the lost income
to be recovered, there must be likewise an unbiased
proof of the deceased's average, not just gross,
income (People v. Cuenca, G.R. No. 143819,
January 29, 2002).
LOSS OF PROFITS
Determine.d by considering the average profit for the
preceding years multiplied by the number of years
during which the business was affected by the
wrongful act or breach (Id. at 857) (Consolidated
Dairy Products et al. v. CA, G.R. No. 100401, August
24, 1992).
Injury to bus,iness.standing
If a suit is filed by one against another in bad faith,
resulting in besmirched reputation which affected the
• latter's business standing, an award of damages is
pr()pElf(ALBANO, Torts and Damages, supra at 424).
ATTORNEY'S FEES:
1. Ordinary
- · the attorney's fee is the reasonable
compensation paid to a lawyer by his client for
the legal services he has rendered to the latter.
BASIS: the fact of his employment by and his
agreement with the client (Traders Royal Bank
Employees Union v. NLRC, G.R. No. 120592,
March 14, 1997).
2. Extraordinary
-- the attorney's fee is an indemnity for damages
ordered by the court to be paid by the losing party
in a litigation to the prevailing party.
Attorney's fees may be awarded when a party is
compelled to litigate or incur expenses to protect its
interest, or when the court deems it just and equitable
(Durban Apartments Corp. v. Pioneer Insurance and
Surety Corp., GR No. 179419, January 12, 2011).
 ,1 /~,'"' ~ • ... '
·1ao· ·, :_·: .:· ··.•:
I
'
\
. '
)
' ~ '
~
'
An award of attorney's fees is the exception rather
than the rule, as they are not always awarded every
time a party prevails in a suit because of the policy
that no premium shall be placed on the right to litigate
(Financial Building Corp v. Rud/in International Corp,
et al., G.R. No. 164186, October 4. 2010).
Payable not to the lawyer but to the client, unless they
have agreed that the award shall pertain to the lawyer
as additional compensation or as part thereof
(Benedicto v. Vil/aflores, G.R. No. 185020, October
6, 2010).
The law allows parties to recover attorney's fees
under a written agreement. In Barons Marketing
Corp. v CA (G.R. No. 126486, February 9_, 1998), the
Court ruled that the attorney's fees provided in the
contract are in the nature of liquidated damages and
the stipulation therefor is aptly called a penal clause.
· So long as such stipulation does not contravene law,
morals, or public order, it is strictly binding upon the
defendant.
Plaintiff must allege the basis of his claim for
attorney's fees in the complaint (AQUINO, Torts and
Damages, supra at 861).
Basis: Any of the cases provided bf law where such
award can be made, such as those authorized in Art.
2208 of the Civil Code (Construction Development
· Corp. v. Estrella, G.R. No. 147791, September 8,
2006).
Grounds for claiming attorney's, fees: (SL tuM-
D20W2G)
1. In a §.eparate civil action to recover civil liability
arising from a crime;
2. When defendant's act or omission compelled the
plaintiff to _bitigate with third persons or to incur
expenses to protect his interest:
3. In actions for _begal support;
4. In a clearly !:!_nfounded civil action or proceeding
against the plaintiff;
5. In criminal cases of M_alicious prosecution
against the plaintiff;
6. When exemplary Qamages are awarded;
7. When at least Qouble judicial costs are awarded;
8. In any Qther case where the court deems it just
and equitable that attorney's fees and expenses
of litigation should be recovered;
9. In actions for the recovery of Wages of household
helpers, laborers and skilled workers;
10. In actions for indemnity under Workmen's
compensation and employer's liability laws; or
11. Where defendant acted in gross and evident bad
faith in refusing to satisfy the plaintiffs valid, just
and demandable claim (CIVIL CODE, Art. 2208).
NOTE: In all cases, the attorney's fees and expenses
of litigation must be reasonable (CiVJL CODE Art.
-:/ "
TORTS AND DAMAGES
Civil Law
2208). The amount to be awarded is left to the
discretion of the courts (AQUINO, Torts and
Damages, supra at 860).
Although the institution of a clearly unfounded civil
suit can at times be a legal justification for an award
of attorney's fees, such filing, however, has almost
invariably been held not to be a ground for an award
of moral damages (Expertravel & Tours, Inc. v. Court
of Appeals, G.R. No. 130030, June 25, 1999).
Rationale: The law could not have meant to impose
a penalty on the right to litigate. The anguish suffered
by a person for having been made a defendant in a
civil suit would be no different from the usual worry
and anxiety suffered by anyone who is haled to court,
a situation that cannot by itself be a cogent reason for
the award of moral damages; otherwise, moral
damages must every time be awarded in favor of the
prevailing defendant against an unsuccessful plaintiff
(Id.).
When Attorney's fees may not be recovered:
1. When it is shown that the judgment creditor did
not come to court with clean hands; and
2. When there is no evidence of fraud and bad faith
on the part of the tortfeasor ( Tac-an Danao v. CA.
GR no. 62251, July 29, 1985).
INTEREST (CIVIL CODE, ART. 2209, 2210
AND 2212)
1. Breach of obligation consisting of
payment of sum of money (e.g., a loan or
forbearance of money):
a.· The .interest due is that stipulated in writing
and the interest due shall i!self earn legal
interest from the time it is judicially
demanded.
b. The rate of interest shall be 6% per annum,
in the absence of express contract as to such
rate of interest, including the rate allowed in
judgments (BSP Cir. No, 799, series of 2013)
computed from default, i.e., from judicial or
extra-judicial demand subject to Art. 1169 of
the Civil Code.
2. Breach of obligation not constituting a
loan or forbearance of money:
a. An interest on the amount of damages to be
awarded may be imposed at the discretion of
the court at the rate of six percent (6%) per
annum.
b. No interest shall be adjudged on unliquidated
claims or damages, except when or until
demand can be established with reasonable
certainty.
 MEM✓Q~Y AID
San Beda Unlversity College of Luw - RGCT Bar Operabons Center

c. Where the demand is established with

been suffered but its amount
reasonable certainty, the interest shall begin
cannot, from the nature of the
to run from the time the claim is made
case, be proved with certainty
judicially or extrajudicially (Bernal v. Villaflor,
while actual damages must be
G.R. No. 213017, April 18, 2018).
proved with a reasonable degree
of certainty.
Interest due shall earn interest not from default but
from the time of judicial demand (ALBANO, Torts and
Damages, supra at 452).

DAMAGES THAT CANNOT CO-EXIST

Nominal damages are

recoverable where a legal right
is technically violated and must
be vindicated against an
invasion that has produced no
Nominal actual present loss of any kind or
damages and where there has been a breach
Actual damages of contract and no substantial
InJury or actual damages
whatsoever have been or can be·
shown but actual damages must
be proved with a reasonable
degree of certainty.

In nominal damages, it is
recoverable where a legal right
is technically violated and must
be vindicated against an
invasion that has produced no
actual present loss of any kind or
Nominal where there has been.a breach
damages and of contract and no substantial
Moral damages injury have been or can be
shown but in moral damages, it
must be shown that plaintiff
suffered mental anguish, serious
anxiety, wounded feelings,
moral shock and other similar
injuries.

In nominal damages, it is
recoverable where a legal right
is technically violated and must
Nominal be vindicated against an
damages and invasion that has produced no
Temperate actual present loss of a11y ki11d
rt1mngor. but in temperate damages, it
may be recovered when the
court finds that some pecuniary
loss has been suffered.

Temperate Temperate damages may be

damages and recovered when the court finds
Actual damages that some pecuniary loss has
 LAND TITLES AND DEEDS
Civil Law

I
In its broad sense, the term "jura regalia" refers to

I
LAND TITLES AND
DEEDS
LAND TITLE
Is the evidence of the right of the owner or the extent
of his interest and by which means he can maintain
control and as a rule, assert right to exclusive
possession and enjoyment of the property (PENA,
Registration of Land Titles & Deeds Revised Edition
(2008), p 3 {hereinafter PENA, Land Titles and
Deeds]).
royal rights, or those rights which the King has by
virtue of his prerogatives (Id.).
CONSTITUTIONAL BASIS
All lands of the public domain, waters, mine_rals,
coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are
owned by the State. With the exception of
agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and
utilization of natural resources shall be under the full
control and supervision of the State (CONST Art. .
XII, Sec. 2, Par. 1).

DEED Both the 1935 and the 1973 Constitutions prohibited

A deed refers to a written document executed in
accordance with law, wherein a person grants or
conveys to another a certain land, tenements, or
hereditaments (PENA, supra at 4).
the alienation of all natural resources, except
agricultural lands oJ the public domain. The 1987
Constitution readopted this policy. Indeed, all lands
of the public domain as well as all natural resources
enumerated in the Philippine Constitution belong to

I
the State (Collado v. CA, GR. No. 107764, October

I
REGALIAN DOCTRINE
CONCEPT
Under the concept of jura regalia, private title to land
must be traced to some grant, express or implied,
from the Spanish Crown or its successors, the
American Colonial Government, and thereafter, the
Philippine Republic. The belief that the Spanish
Crown is the origin of all land titles in the Philippines
has persisted because title to Jarid must emanate
from some source for it cannot issue forth from
nowhere (AGCAOILI, Property Registration Decree
. (Land Titles and Deeds) Revised Edition (2018), p.
3 [hereinafter AGCAOILI, Land Titles and Deeds]).
4, 2002). .
Simply means that the State is· the original proprietor
of all lands and, as such, is the general source of all
private titles (Republic v. Santos, G.R. No. 180027,
July 18, 2012).
EFFECTS
All lands of whateverclassification and other natural
resources not 'Otherwise appearing to be clearly
within privateownership are presumed to belong to
the State, which is the source of any asserted right
to ownership of land (Republic v. Sin. G.R. No.
157485,March 26, 2014).
Accordingly, public lands not shown to· have been
reclassified or released as alienable land or
alienated to a private person by the State remain
part of the inalienable public domain (Republic v. Tri-

l'M■bL&Jli.ii!lllli&~~'·!!IEfll!lil~
DOHN ALFRED E. AQUILIZAN, Over-All Chairperson I NICHOLE VANE B. SANTOS. Chairperson for Academics i RONAL YN A.
GACULA, Ad Hoc J)irectorfor Bar AJatters ! MARIEi.LE CIEI.O B. BELGIRA, Vice Chairperson for Finance i JUAN INIGO S. MIGUEL,
Vice Chairperson for Operations i ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson .for Audit I CORINA R. TAMPUS_, Vice
Chairperson for Secretariat I ARVY KEITH N. CHUNG, Vice Chairperson for Logistics I ANTONIO JUN-JUN C. MANALIGOD IV. Vice
Chairperson for Membership IJORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

L; tar HD r !llfllSMIR\: [ 111':ra.:&BGJ'!,IMihla IL fl I I [& i liilPHil

NOS LEN ANGINEB E. MENDOZA, Subject Chair/ KING I.AURENZ S. MASILUNGAN, Assistant Subject Chair I ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing! SUBJECT HEAJ}S; JOAN V. LAGRADILLA, Agency & T111sts / QUENNIE IRIS V.
BULATAO, Conflicts of Law I JESSU _R. TRINIDAD, Loan and Deposit I SKY BLUE C. SAMSON, Obligations and Contracts I
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Relations I KRISTOFFER MONICO S. NG, Property• JULEEN EVETTE
D. MALlARI, Land Titles and Deeds I MARISOL 0. SISON, Sales I GEM-EDWARD E. AQUINO, Torts I PATRICIA MAE R. FEDERIS.
Succession I

SAMANTHA YVES 0. PLACIDO, QUENNIE IRIS V. BlTLATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BAUSONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BAT.LE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. !BE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHff, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHEU.E D. PAYONGAYONG, MA. NICOLAI i\1. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JOSEPH FERDINAND DECHA VF.Z

 fMN& \ 1

MEM:Q,RY AID
San Bada Urnversity College of Law ·· RGCT Bar Operations Ci;,ntof

Plus Corporation, GR. No. 150000, September ?ti,
2006).
Applying the Regalian Doctrine, the State owns all
waters and lands of the public domain, including
those physically reclaimed. As a general rule,
therefore, only the National Government can reclaim
foreshore lands and other submerged areas
(Republic v. Court of Appeals, G.R. No. 103882,
November 25, 1998).
REGALIAN DOCTRINE DOES NOT
NEGATE "NATIVE TITLE"
When, as far back as testimony or memory goes, the
land has been held by individuals under a claim of
private ownership, it will be presumed to have been
held in the same way before the Spanish conquest
(Carino v. Insular Government, 212 U.S. 449
(1909)).

Property of the public domain is beyond the

commerce of man and not susceptible of private
appropriation acquisitive prescription. Occupation
thereof and in the concept of owner, no matter how
I TITLE
I
long, cannot ripen into ownership and be registered
as a title (Republic v. Candy Maker, Inc., G.R. No. TITLE
163766, June 22, 2006). The right of the owner or the extent of his interest
and by means of which he can maintain control, and
That land has been removed from the scope of the as a rule, assert his right to the exclusive possession
Regalian Doctrine and reclassified as part of the and enjoyment of the property (NOBLEJAS,
public domain's alienable and disposable portion Registration of Land Titles and Deeds, (2007) p. 6
cannot be assumed or implied. The prevailing rule is [hereinafter NOBLEJAS, Land Titles and Deeds]).
that the applicant must clearly establish the
existence of a positive act of the government CERTIFICATE OF TITLE
(Republic v. Jabson, G.R. No. 200223, June 6,
AIJ\:ere e\fidence of ownership. It is not a source of
2018). The burden of proof in overcoming the
right but' merely confirms or records a title already
presumption of State ownership of the lands of the
existing and vested (Tiro v. Phil. Estates Corp., G.R.
public domain is on the person applying for
No. 170528, August 26, 2008).
registration (or claiming ownership), who must prove
that the land subject of the application is alienable or
disposable. To overcome this presumption, TITLE V. CERTIFICATE OF TITLE
incontrovertible evidence must be established that
the land subject of the application (or claim) is
alienable or disposable (Diaz-Enriquez v. Director of
Lands, G.R. No. 168065, September'6, 2017). Constitutes a just Mere evidence of
Gause of exclusive ownership; not the title to
Act No. 2874 (Second Public Land Act), possession of which is the land itself.
promulgated in 1919 and reproduced in Section 6 of the foundation of
CA No. 141 (Public Land Act of 1936), gave the ownership of property.
Executive Department, through the President, the (Casti/lo v. Escutin, G.R No. 171056, March 13,
exclusive prerogative to classify or reclassify public 2009).
lands into alienable or disposable, mineral or forest.
Since then, courts no longer had the authority,
whether express or implied, to determine the
MODES OF ACQUIRING TITLE: (PRADA-
classification of lands of the public domain VINE)
(Secretary of the DENR v. Yap, GR. No. 167707, 1. public Grant
October 8, 2008). - By administrative process, the government
transfers land to a private individual by the
EXCEPTION TO THE REGALIAN issuance of sales patent or special patent ( CA
DOCTRINE No. 141, also known as The Public Land Act, as
amended).
It was ruled that any land under native title, or those
that should have been in the possession of an
Commonwealth Act No. 141 (CA 141), also
occupant and of his predecessors-in-interest since
known as the Public Land Act, remains to this
time immemorial is an exception to the Regalian
day the existing general law governing the
Doctrine. · Such possession would justify the
classification and disposition of lands of the
presumption that thEt land had never been part of the
public domain, other than timber and mineral
public domain or that it had been private property
lands. Under the Regalian Doctrine embodied in
even before the Spanish conquest (Carino v. Insular
our Constitution, land that has not been acquired
Government, 212 U.S. 449 (1909)).

from the government, either by purchase, grant
or any other mode recognized by law, belongs
to the State as part of the public domain. No
public land can be acquired by private persons
through any other means, and it is indispensable
that the person claiming title to public land
should show that his title was acquired through
purchase or grant from the State, or through any
other mode of acquisition recognized by law
(Republic v. Heirs of Juan Fabio, GR. No. L-
65818, May 13, 1991).
2. Reclamation
- 1t is the method of filling submerged land by
deliberate acts and reclaiming title thereto
-(NOBLEJAS, supra at 42).
Under RA 1899, also known as An Act
Authorizing The Reclamation Of Foreshore
Lands By Chartered Cities And Municipalities.
June 22, 1957, the National ·Goyernment
granted to all municipalities and chartered 9ities
the authority to undertake and carry out at their
own expense the reclamation by dredging,
filling, or other means, of any foreshore lands
hordering them. Any and all :,Uch land rcdcJimed
will become property of th~ respective
mI inir.ir8lities or chartered cities; but the new
foreshore along the reclaimed nrnris shAH
continue to become property, of the National
Government.
NOTE: Under RA 1899, foreshore lands should
not be construed to inch..ide s·ubmerged areas.
(Republic v. CA and Repilblic Real Estate Corp.,
G.R. No. 103882, November 25, 1988).
3. ~cquisitive Prescription ·
- Must be in the concept of an owner (CIVIL
CODE, Art. 525). A person acquires land titl.e by
acquisitive prescription if he has been in open,
continuous, exclusive, and notorious possession
for a period prescribed by law.
a. Ordinary Prescription - possession in
good faith and with just title for ten ( 10)
years (CIVIL CODE, Art. 1134)
b. Extraordinary Prescription - adverse
possession without need of title or of good
faith for thirty (30) years (CIVIL CODE, Art.
1137)
Open, continuous, and exclusive· possession of
land classified as alienable and disposable for at
least thirty years segregates the land from the
public domain and ipso jure converts the same
into private property (Buenaventura v. Republic,
G.R. No. 166865, March 2, 2007).
LAND TITLES AND DEEDS
Civil Law
Prescription is concerned with lapse of time in
the manner and under conditions laid down by
law, namely, that the possession should be in
the conc,ept of an owner, public, peaceful,
uninterrupted, and adverse. Possession is open
when it is patent, visible, apparent, notorious
and not clandestine. It is continuous when
uninterrupted, unhrokP.n ;=md not intermittent or
occasional; exclusive when the adverse
possessor can show exclusive dominion over
the land and an appropriation of it to his own use
and benefit; and notorious when it is so
conspicuous that it is generally known and
talked of by the public or the people in the
neighborhood (Republic v. Northern Cement
Corp., G.R. No. 200256, April 11, 2018).
Just Title
It means "with color of title and good faith" or con
justo titulo y buenafe (Alba v. CA, G.R. No.
120066, September 9, 1999).
For purposes of prescription, there is just title
when the · adverse claimant came into
possession of'the property through one of the
recognized modes of acquisition of ownership or
other real rights but the grantor was not the
owner or could not transmit any 1iyl1l (lmuan v.
(;emno, GR. No. 1G7995, September 11,
2009).
The rule is well-settled that prescription does not
run against registered land. Thus, under Sec. 47
of PD. 1529, othervvise known as the Property
Registration Decree, it is specifically provided
that "no title to registered land in derogation of
that of the registered owner shall be acquired by
prescription or adverse possession" (Spouses
.Ocampo v. Heirs of Dionisio, G.R. No. 191101,
Qctob(;Jr 1, 2014). A title, once registered, cannot
be defeated even by adverse, open and
notorious possession. The certificate of title
issued is an absolute and indefeasible evidence
of ownership of the property in favor of the
·person whose name appears therein. It is
binding and conclusive upon the whole world. All
persons must take notice and no one can plead
ignorance of the registration (Dr. Rel/in v.
Belarmino, G.R. No. 153691, July 19, 2006).
4. Qescent or Devise
a_. By Descent - acquired by virtue of
hereditary succession to the estate of a
deceased owner; or
b. By- Devise - succession need not be in favor
of a relative (NOBLEJAS, supra at 42).
5. Accretion
:-r o the owners of lands adjoining the banks of
rivers belong the accretion which they gradually
 MEM:Q~Y AID
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receive from the effects of the currents of the
waters. (CIVIL CODE, Art. 457).
The alluvial property obtained due to accretion
is not automatically covered by a Torrens title.
Ownership of a piece of land is one thing, and
registration under the Torrens system of that
ownersl1iµ is t.JUite c1not11er. To be covered by tl1e
Torrens title, the alluvial property m11st hP. rl;:ir.P.o
under the operation of the registration laws
(Grande v. CA, G.R. No. L-17652, June 30,
1962).
Accretion formed as a result of dumping of
sawdust is part of public domain. The word
"current" indicates the participation of the body
of water in the ebb and flow of waters due to high
and low tide (Vda. De Nazareno v. CA, G.R. No.
98405, June 26, 1996).
6. yoluntary Transfer
- The transfer is given by the voluntary
execution of a deed of conveyance in certain
prescribed form, completed by the recording or
registration thereof because registration is the
operative act that binds and affects third
persons. Nonetheless, the contract is binding
between parties, their heirs, assignees and
successors in interest (CIVIL CODE, Art. 1311).
Persons Bound Notwithstanding Lack of
Registration:
a. The grantor;
b. The grantor's heirs and devisees; and
c. Third persons having actual notice or
knowledge thereof (PENA, supra at 48).
NOTE: Although the cause is not stated in the
contract, it is presumed that it exists and is
lawful, unless the debtor proves the contrary
(CIVIL CODE, Art. 1354).
7. !nvoluntary Alienation
- This does not require the consent or
cooperation of the owner of the land and is
usually carried out against his will. Usual forms
of involuntary alienation are expropriation or
condemnation proceedings. Other examples are
escheat, reversion, seizure based on tax
delinquency, levy on attachment, and levy on
execution (NOBLEJAS, supra at 41).
8. _t!ative Title
- Refers to pre-conquest rights to lands and
domains which, as far back as memory reaches,
have been held under a claim of private
ownership by Indigenous Cultural
Communities/Indigenous People, have never
been public lands and are thus indisputably
presumed to have been held that way since
before the Spanish Conquest (IPRA, Sec. 3,
par.1).
The rights of Indigenous Cultural
Communities/Indigenous People to their
ancestral domains (which also include ancestral
lands) by virtue of native title shall be recognized
and respected (IPRA; Sec. 11).
The presumption of the land "never to have been
public land" arises when the title is held (a) as
f.ar back as testimony or memory went and (b)
under a claim of private ownership (Cruz v. Sec.
of Environmental and Natural Resources, G.R.
No. 135385, December 6. 2000).
9. Emancipation Patent or Grant
- By virtue of Presidential Decree No. 27, tenant-
farmers are deemed owners of the land they till.
This is for the purpose of ameliorating the said
plight of tenant-farmers (PENA, supra at 41).
NOTE: P.D No. 27 has been superseded by the
Comprehensive Agrarian Reform Law (CARL)
approved on June 10, 1998.
PAST AND PRESENT
LEGISLATION ON LAND
REGISTRATION
• When the Philippines was discovered and
~onquered by Spain, the Law of the Indies was
pasied. ordering that all lands became the
exclusive patrimony and dominion of the Spanish
Crown.
• Subsequently, the Ley Hipotecaria or the
Mortgage Law of 1893, otherwise known as
the "Spanish Mortgage Law" was established
providing a more systematic and scientific mode
of registering titles and deeds and other claims of
ownership.
• In 1984, the Spanish Mortgage Law and the Law
of Indies were partly amended by the Royal
Decree of 1894 otherwise known as the
"Maura Law" requiring that all agricultural lands
must· be adjusted or registered otherwise the
same shall revert back to the State.
• During the American regime, the system of land
registration was simplified. The Philippine
Commission enacted Act No. 496 otherwise
known as the "Land Registra'tion Act of 1903"
which was approved on November 6, 1902 and
became effective on January 1, 1903 placing all
grants of public land under the coverage of the
Torrens System of Property Registration. It also
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created the "Court of Land Registration" which the two relcitP.s to thP. trnnsitory provisions on the
had exclusive jurisdiction to hear, determine, . rights of American citizens and corporations
adjudicate and execute applications for original during the Commonwealth period at par with
registration. Filipino citizens and corporations.
• On February 11, 1913, Act No. 2259 otherwise • Under Sec 103 of PD No. 1529 or the Property
known as "Cadastral Act of 1913" was enacted Registration Decree, it is provided that whenever
as supplement of Act No 496. Section 5 of the public land is alienated, granted, or conveyed to
said Act provides that when, in the opinion of the any person by the government, the same shall be
President, the public interest requires that title to brought forthwith under the operation of the
any lands be settled adjudicated, he shall order Decree.
the Director of Lands to make a survey thereof,
with notice to all persons claiming an interest
therein. Thereafter, the . Director of Lands,
represented by the Solicitor General, shall
institute registration proceedings _by filing a
petition in the proper court against the holders,
I LAND REGISTRATION I
claimants, possessors, or occupants of such
lands, stating that the interests require that the LAND REGISTRATION
titles to such lands be settled and adjudicated.
A judicial or administrative proceeding, whereby a
• On June 11, 1978, Presidential Decree NQ.
person's claim of ownership over a particular land is
1529 now known as "Property Registration
determined and confirmed or recognized, so that
Decree" was approved and enacted to update
such land and the ownership thereof may be
Land Registration Act and to codify various laws
recorded in a public registry.
relative to registration of property and to facilitate
effective implementation of the said laws, It
supersedes all other laws relative reg'istration to CONCEPT AND DEFINITION
To register is to record or annotate. American and
of property (Director of Lands vs Santiago, GR
No. L-41278, April 15, 1988). Spanish authorities are unanimous on the meaning
• The Decree substantiaHy incorporatetl both the of the term "to register" as "to enter in a register; to
substantive and procedural aspects of the Land record formally and distinctly; to enroll; to enter in a
Registration Act of 1902 and widened the horizon list."
of the coverage to include: Judicial confirmation
of imperfect or incomplete titles (Section 14 In general, registration refers to ariy entry made in
paragraph 1); Cadastral Proceedings (Section the books of the registry (now Electronic Primary
51-58); Voluntary and Involuntary (Section 51- Entry Book [EPEB]), including both registration in its
77); the Certificates of Land Transfer and ordinary and stric,£ sense, and cancellation,
Emancipation Patents (Section 104-106, PD 27); annotation, and even the marginal notes. In strict
the Reconstitution of Lost or, Destroyed Titles acceptation, it pertains to the entry made in the
(Section 11 O); and the consulta (Section 117, PD • regil:>try which records solemnly and permanently
1529) (MOGELLO, Guidelines and Procedures in the.rightofownership and other real rights. Simply
Land Titles and Deeds, 2019 Edition). stated, registration is made for the purpose of
notification (Cabiling v. Fernandez, GR No.
LAND OF PUBLIC DOMAIN 183133, July 26, 2010),
• In 1903, the United States colonial government,
The mere presentation to the office of the Register
through the Philippine Commission, passed Act
of Deeds of a document on which acknowledgement
No. 926, the first Public Land Act. The law
of receipt is written is not equivalent to recording or
governed the disposition of lands of the public
registering the real property (Po Sun Tun v. Price
domain.
and The Provincial Government of Leyte, G.R. No.
• Act No., 926 was superseded in 1919 by Act No.
31346, December 28, 1929).
2874, the seco11d Public Land Act. This new
law was passed under the Jones Law. It was
more comprehensive in scope but limited the
exploitation of agricultural lands to Filipinos and
Americans and citizens of other countries which
gave Filipinos the same privileges.
• After the passage of the 1935 Constitution, Act
No. 2874 was amended in 1936 by CA No. 141,
the present Public Land Act approved on
November 7, 1936, which is essentially the same
as Act No. 2874. The main difference between
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REGISTRATION OF TITLE V. LAWS IMPLEMENTING LAND
RECORDING OF EVIDENCE REGISTRATION
1. Property Registration Decree (P. D. No. 152.9, as
amended);
2. Cadasfral Act (Act N 2259, as amended);
State provides a public Involves the recording of 3. Public Land Act (C.A. No. 141, as amended);
record of the title itself deeds of conveyance 4. Emancipation Patent or CARP of 1972 (P.O. No.
upon which a and other instruments, 27);
prospective purchaser without guaranteeing th€ 5. Comprehensive Agrarian Reform Law of 1988
or · someone else title, leaving to the (R.A.6657, as amended); and
interested may rely prospective purchasers 6. Indigenous Peoples Rights Act or IPRA of 1997
or other persons (R.A. 8371).
interested to examine
the instruments in the NATURE OF LAND REGISTRATION
records and formulate Judicial proceedings for the registration of lands
their own conclusions as throughout the Philippines shall be in rem and shall
to their effect on the title. be based on the generally accepted principles
(PENA, supra at 7). underlying the Torrens system (P. D. 1529, Sec. 2,
Par. 1).
SYSTEMS OF REGISTRATION IN THE
Jurisdiction in rem cannot be acquired 1mless there
PHILIPPINES: (STU) be a constructive seizure of the land through
1. System under the _§panish Mortgage Law; publication and service of notice (Republic v. CA and
2. Torrens System; and Ribaya, G.R. No. 113549, July 5, 1996).
3. System of Recording for .!,!nregistered Land
(PENA, supra at 4). ?OR.POSES OF LAND REGISTRATION
(QC-NHP-MEG)
REGISTRATION UNDER THE SPANlSH
1. To Quiet title to land and stop forever any
MORTGAGE LAW DISCONTINUED question as to the legality of said title (Legarda
P.O. 892 was issued decreeing the discontinuance v. Saleeby, G.p. No. L-8936, October 2, 1915);
of the system of registration under the Spanish 2. To serve as a Constructive notice to all persons
Mortgage Law and the use of Spanish Title as frorti .the-'.tirne7ot such registering, filing or
evidence in land registration proceedings enterrng ofevery conveyance, mortgage, lease,
(AGCAOILI, Land Titles and Deeds (2018), p. 30). . lien, attachment, order, judgment, instrument, or
entry affecting registered land (P.O. 1529, Sec.
NOTE: Lands granted under Spanish Mortgage 52J;._,
Law, which are not yet covered by certificate of title 3. To N6tify and protect the interests of strangers
under Torrens System are considered· as to a given transaction, who may be ignorant
unregistered lands (P. D 1529, Sec. 3). thereof (Casica v. Villasoca, G.R. No. L-9590,
April 30, 1957);
Hereafter, all instruments affecting lands originally 4. To enable every registered owner and every
registered under the Spanish Mortgage Law may be subsequent purchaser of registered land taking
recorded under Section 113 of this Decree, until the a certificate of title for value and in good faith to
land shall have been brought under the operation of Hold the same free from all encumbrances,
the Torrens Title ;::;-xr:ept those registered (P.O. 1529, Sec. 44);
5. To Prevent fraudulent transactions. No vol1.mtary
The books of registration for unregistered lands instrument shall be registered by the Register of
provided under Section 194 of the Revised Deeds, unless the owner's duplicate certificate
Administrative Code, as amended by Act No. 3344, is presented with such instrument (P.O. 1529,
shall continue to remain in force; provided, that all Sec. 53);
instruments dealing with unregi~le1ed lands shall 6. To enable the Register of Deeds to ,Maintain a
henceforth be registered under ·sec 113 of this repository (Primary Entry Book) of all
Decree (MOGELLO, Guidelines and Procedures in in~lruments affecting registered land (P.O. 1529,
Land Titles and Deeds (2019), p. 10). Sec. 56);
7. To issue a certificate of title to the owner, which
shall be the best Evidence of his ownership of
the land described therein (Lee Tek Sheng v.
CA, G.R. No. 115402, July 15, 1998); and
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8. To ~uarantee the integrity of land titles and to
protect thE;!ir indefeasibi!ity once the claim of
ownership is established and recognized
(Traders Royal Bank v. CA. G.R. Nos. 114299
and 118862. September 24, 1999).
NOTE: R~gistration does not vest title. It is not a
mode of acquiring ownership but is merely evidence
of such title over a particular property. It does not
give the holder any better right than what he actually
has, especially if the registration was done in bad
faith. The effect is that it is, as if, no registration was
made at all (Avila v. Tapucar, G.R. No. L-45947,
August 27, 1991).
It is emphasized that the registration of a patent
under the Torrens System merely confirms the
registrant's title. It does not vest title where there is
none because registration under this system is not a
mode of acquiring ownership (Heirs of Spouses De
Guzman v. Heirs of Bandong, G.R. No. 215454,
August 9, 2017). Registration does not give the
registrant a better right than what he had prior to
registration (Duque-Rosario v. Banco Filipino
Savings and Mortgage Bank, G.R. No, 140528;
December 7, 2011 ).
Where a document so registered is invalid,or legally
defective, registration. will not in any way render it
valid or cure its defect (Santos v. Robledo, GR. No.
L-9197, October 22, 1914).
EFFECTS OF REGISTRATION:
1. Registration in the public .registry is notice to the
whole world; · which took effect on June 11, 1978, otherwise known
2. The act of registration is the operi;ltive ad to
convey or affect the land insofar as thirdpersons ·
are concerned; and
3. While registration operates as a notice of the
deed, contract, or instrument to ottiers, it does
not as to its validity nor converts an invalid
instrument into a valid one; neither does it
recognize a valid and subsisting interest in the
land (AGCAOILI, supra at 44).
ADVANTAGES OF REGISTRATION: (SP-
SiR-8):
1. §.ecures title;
2. frotects against fraud;
3. Simplifies dealings;
4. Restores the estates to its just value, whose
depreciation is caused by some blur, technical
defect; and
5. ~ars the recurrence of faults in the title (Legarda
v. Saleeby, G.R. No. L-8936, October 2, 1915).
LAND TITLES AND DEEDS
Civil Law
BURDEN OF PROOF
The burden of proof in land registration cases rests
on the applicant who must show clear, positive, and
convincing evidence that his alleged possession and
occupation were of the nature and duration required
by law. Bare allegations, without more, do not
amount to preponderant evidence that would shift
the burden to the oppositor (Republic v. Enciso, GR.
No. 160145, November 11, 2005).
I TORRENS SYSTEM
I
TORRENS SYSTEM
A system of registration of transaction with interest
in land whose declared object is, under government
authority, to establish and certify to the ownership of
an absolute and indefeasible title to realty, and to
simplify its transfer (AGCAOILI, supra at p. 9-10).
Nature: It is judicial in nature (P.O. 1529, Sec. 2).
HISTORYAND INTRODUCTION
It was devised 'and first.introduced in South Australia
by Sir Robert Richard Torrens in 1857. It was
introduced in the Philippines by Act No. 496, which
took effect on January 1, 1903 (Sotto v. Sotto, G.R.
No. 17768; Sep{ember1, 1922).
It was h;1ter amended and superseded by P.O. 1529,
as the Property Registration Decree. Its object is
to do al/',/_ay with the delay, uncertainty, and expense
of the old conveyancin~ system. It updated the Land
Registration Act and codified the various laws
relative to registration (AGCAOILI, supra at 20).
ADVANTAGES OF THE TORRENS
SYSTEM: (PRIMEA-MAKGITS)
1. frotects against encumbrances not noted on the
Torrens certificate;
2. Reduces records enormously;
3. !nstantly reveals ownership;
4. Makes fraud almost impossible;
5. ~liminates repeated examination of titles;
6. ~bolishes endless fees;
7. Makes possible the transfer of titles or of loans
within the compass of hours instead of a matter
of days and weeks;
8. ~ssures;
9. ,!Seeps up the system without adding to the
burden of taxation (because the beneficiaries
pay the fees);
10. Gives practically eternal Otle as the state insures
perpetually (PENA, supmat 45);
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San Bed& Universrt:y College of Law - RGCT Bar Operations Cent&
·11. It gliminates Iax titles; and
12. It furnishes §late title insurance instead of
private title insurance.
The purpose of land registration is not the
acquisition of title but only the registration of title,
which the applicant already possessed over the
land. Registration was never intended as a means of
acquiring ownership (Republic v. CA, G.R. No. L-
43105, August 31, 1984).
PURPOSES OF THE TORRENS
SYSTEM: (QUIPPERS)
1. To Quiet title to land; to put a stop forever to any
question of the legality of the title, except claims
which were noted at the time of registration, in
the certificate, or which may arise subsequent
thereto (Legarda v. Saleeby, G.R . .No. L-8936,
October 2, 1915);
2. To relieve the land of !J.nknown liens or claims,
just or unjust, against it except Statutory Liens
under Section 44 of P.O. 1529;
3. To create !ndefeasible and imprescriptible title
binding the whole world (NOBLEJAS, supra at'
3);
4. To frevent fraudulent claims;
5. To provide means of ,Eublication or notice to
third persons;
6. To _!;stablish priority in right. - ",First in Time,.
Stronger in Right" (Primus Tempore, Potior
Jure); _ ·
. 7. To facilitate transactions rel;:itive thereto by
giving the pu_blic the-right to Rely upon the face
of the Torrens certificate of title and to dispense
with the need of inquiring further, except when
the party concerned has actual knowledge of
facts and circumstances that should imply a
reasonably cautious man to make such further
inquiry; and
8. To provide §.!ability to land titles (AGCAOILI,
Land Titles and Deeds, supra at 10-12).
NOTE: Registration is not equivalent to legal
title. (Wee v. Mardo, G.R. No. 202414, June 4,
2014)
Under the Torrens system, registration only
gives validity to the transfer or creates a lien
upon the land. It merely confirms, but does not
confer, ownership (Lu v. Manipon, G.R. No.
147072, May 7, 2002).
EFFECTS OF ISSUANCE OF TITLE:
(TRI-IC)
1. The land is placed under the operation of
Iorrens System; (P.O. 1529, Sec. 3);
2. Land is Believed from all claims except those
noted thereon and provided by law; (P.O. 1529,
Sec. 46);
3. Title to the lw1<J becomes !mprescriptible; (P.D.
1529, Sec. 47);
4. The land becomes Jncontrovertible and
indefeasible (P.D. 1529, Sec. 32); and
5. The certificate of title is not subject to follateral
attack. (P.D. 1529, Sec. 48).
REGISTRATION UNDER ACT NO. 3344
INEFFECTIVE AGAINST THIRD
PERSONS
Section 194 of the Revised Administrative Code, as
amended by Act No. 3344, provides for the
registration of deeds or instruments relating to lands
not registered under the Torrens system. If a parcel
of land covered by Torrens title is sold, but the sale
is registered under Act No. 3344 and not under the
Land Registration Act, the sale is not considered
registered and the registration of the deed does not
operate as constructive notice to the whole world
(Mefencion v. CA, G.R. No. 148846, September 25,
2007).
REGISTRATION UNDER THE TORRENS
SYSTEM A PROCEEDING IN REM
A ptoceeding:in rem is when the object of the action
is to bar indifferently all who might be minded to
make an objection of any sort against the right
sought to be established, and if anyone in the world
has a right to be heard on the strength of alleging
facts which if true, shows an inconsistent interest
(AGCAOILI, supra at 22) .
A land regi~tri:ltiori is a proceeding in rem, and
jurisdiction in rem cannot be acquired unless there
be.. constructive seizure of the land through
pl:lblioation and service of notice (Republic v. CA,
GR. No. 113549, July 5, 1996).
Registration under the Torrens System constitutes,
at the very least, constructive notice to any boundary
owner of who is his neighbor (Francisco v. CA, G.R.
No. L-35787, April 11, 1980).
TORRENS TITLE
A Torrens title is the certificate of ownership issued
under the Torrens system of registration by the
government, through the Register of Deeds, naming
and declaring the owner in fee simple of the real
property described therein, free from all liens and
encumbrances except as may be expressly noted
thereon or otherwise reserved by law (ALBANO,
Civil Law Reviewer Revised Edition (2013), p. 798
[hereinafter ALBANO, Civil Law ~eviewer]).
Legally defined, a certificate of title is the transcript
of decree of registration made by the Register of
Deeds (Manotok IV v. Heirs of Homer Barque, G.R.
 -7-. _,:
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Nos. 162335 and 162605, December 18, 2008, registration of title to lands, induding improvements
citing PNB v. Tan Ong Zse). and interests therein, and over all petitions filed after
original registration of title; with power to hear and
Probative Value: Torrens Title''may be received in determine all questions arising upon such
evidence in all courts of the Philippines, and shall be applications or petitions (MOGELLO, Guidelines and
conclusive as evidence with respect to the Procedures in Land Titles and Deeds (2019), p. 8).
ownership of the land described therein and other
matters which can be litigated and decided in land EXCEPTION: (Delegated Power)
registration proceedings (AGCAOILI, supra at 12). The Metropolitan Trial Courts (MeTCs); Municipal
Courts in Cities (MTCCs); Municipal Trial Courts
TWO TYPES OF TORRENS (MTCs); Municipal Circuit Trial Courts (MCTCs)
CERTIFICATE OF TITLE: have jurisdiction to hear and determine cadastral or
land registration cases by virtue of the delegated
1. Original Certificate of Title (OCT) jurisdiction granted by the Supreme Court (Section
- The first title issued in the name of the 34, B.P. Big. 129 as amended by R.A. No. 7691)
registered owner by the Register of Deeds based on the following instances:
covering a parcel of land, which had been
registered under the Torrens System by virtue of 1. Where the lot sought to be registered is not
a judicial or administrative proceeding. the subject of controversy or opposition; or
. 2. Where the lot is contested but the value
It consists of one original copy filed jn •the thereof does not exceed P100,000.00, such
Register of Deeds, and the owner's duplicate value to be ascertained by the affidavit of the
certificate delivered to the owner (AD. 1529, claimant or by the agreement of the
Sec. 39). ·· ·
respective claimants, if there be more than
,'one,·· or ' from the corresponding tax
2. Transfer Certificate of Title. (n;tf) declaration o_f the real property.
- The title issued by the Rey1!:>fe,{ of Deeds in
favor of a transferee to 'Aihom tl}t=l ownership of VENUE
a registered land has oeenJransferred by any
Actions affecting title· to or possession of real
legal mode of conveyance.(fl4 sale, donation}.
It also consists of an original and an owner's property, or inte~st the~in shall be commenced and
tried in :the. proper cbOrt which has jurisdiction over
duplicate certificate. (PD. 1529, Sec: 43).
the ar~a wherefn the_ real property involved , or a
portion. thereof; fs ·situated (RULES OF COURT,
AGENCIES IMPLEMENTING. > l.AND RULE4, Sec. ;1). .
REGISTRATION PROC~EDINGS UND·E~
THE TORRENS SYSTEM; HEARING
1. Courts (RTC acting as Land 'Registratii'm_Court); Application~ for registration shall be heard in the
2. Department of Environment and ,Natural regional trial court or, in proper cases, in first level
Resources (DENR); courts, in the same manner and shall be subject to
3. Department of Justice (DOJ) through-ttie Land the sf:lme procedure as established in the Property
Registration Authority (LRA) and its Register of. Registration Decree (AGCAOILI, supra at 173).
Deeds (RD);
4. Department of Agrarian Reform (DAR); and NOTE: While a referee can receive evidence and
5. Department of Agriculture (DA). objections, it has no power to rule on the case. Its
main duty is to receive evidence and submit its
findings and recommendations to the court (P.D.
1529, Sec. 27).
JURISDICTION,
HEARING, JUDGMENT JUDGMENT
All conflicting claims of ownership and interest in the
IN ORDINARY LAND land subject of the application shall be determined
REGISTRATION by the court {P.O. 1529, Sec. 29).

The court is now authorized to hear and decide not

only non-controversial cases but even contentious
JURISDICTION issues which used to be beyond its competence
(Ligon v. CA, G.R. No. 107751, June 1, 1995).
GENERAL RULE: The Court of First lnstance (now
the Regional Trial Courts) shall have exclusive
jurisdiction over all applications for original
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P.O. 1529 eliminated the distinction between the
general jurisdiction vested in the Regional Trial
Court and the limited jurisdiction formerly conferred
upon it when acting merely as cadastral court. Thus,
the court may resolve issues other than those strictly
pertaining to land registration in cases (ALBANO,
supra at 817).
DUTIES OF THE COURT:
1. Render judgment, declare the same final, and
cause the decision's entry (P.O. 1529, Sec. 29);
and
Functions of the LRA: {SAC)
a_ Extend ~peedy and effective assistance to
Department of Agrarian Reform, the Land
Bank and other agencies in the
implementation of the land reform program;
b. Extend ~ssistance to courts in ordinary and
cadastral registration proceedings; and
c. Be thc~cntml ropm;itory of records relative
to original registration of lands titled under
tli~ Tu118ns :3ystem, including subdivision
and consolidation plans of titled lands (P.O.
1529, Sec. 6 (2)).

2. Order the LRA to issue a decree of registration
(P.O. 1529, Sec. 30).
Only claimed property or a portion thereof can be
adjudicated. If the applicant asserts ownership to
and submits evidence only for a portion of a lot, the
inclusion of the portion not claimed by the applicant
is void and of no effect for a land registration court
has no jurisdiction to decree a lot to a person who
puts no claim to it and who never asserted any ri_gt,t
of ownership over it (Almarza v. Arguelles, G.R. Nix
L-49250, December 21, 1987).
The court may reverse its decision even after the
LRA has already issued the decree of registration
(Gomez v. CA, G.R. No. 77770 December 15
1988). , . ' an,o functions in relation to the registration of
The judgment becomes final upon the lapse of
fifteen (15) days counted from receiptof notice of the
judgment (B.P. 129, Sec. 39; Heirs of Cornelie
Labrada v. Monsanto, G.R. No. L-66242; Aug11st 31,
1984). ·However, notwithstanding the lapse of the 15-
day period from receipt of judgment by the parties,
the court continues to retain control over the case
until the expira~ion of one ( 1) year after the enµy of
the decree of registration by the LRA (Republic v.
Associacion Benevola de Cebu, G.R. No. 77243,
October 26, 1989; P.D. 1529, Sec. 32).
Functions of the LRA Administrator
(formerly Commissioner):
a. Issue decrees of registration pursuant to
final judgments of the courts in land
registration proceedings and cause the
issuance by the Registers of Deeds of the
corresponding certificates of title;
b. Exercise supervision and control over all
Registers of Deeds and other personnel of
the Commission;
c. Resolve cases· elevated en consulta by or
on appeal from the decision of the Register
.. ... ,,,_ of ~~ds;
. ' d:>- ,Exere,ise executive supervision over all
clerkt( of court and personnel of the courts
with0/~spect to the discharge of their duties
lqnds;
e. I/nplerneni all orders, decisions, and
c:,,)' · 0s1-~fQmuigated relative to the
··+St lands and issue, subject to the
approval of the Secretary of Justice, all
needful rules and regulations; and
:j::,r,;;;/,, Verify and approve subdivision,
,,;;;:,:i;-":?;<~·:;i;Ltoi:lsolidation, and consolidation-subdivision
survey plans of properties titled under Act
No. 496 ,;ind P.D. · 1529 except those
covered by P.O. 957; (P.O. 1529, Sec. 6);
and
g. Act as Clerk of Court in land registration
proceedings.

NOTE: Recognizing the overlapping of

LAND REGISTRATION functions, P.D. 239, dated July 9, 1973, was
COMMISSION implemented stating that the LRA was no longer
authorized to approve original survey plans for
original registration. Thus, the Land
Management Bureau (LMB) is now authorized to
1. LAND REGISTRATION AUTHORITY verify and approve original survey plans
(LRA) (MOGELLO, Guidelines and Procedures in Land
Titles and Deeds (2019), p. 22).
Agency of the government charged with the
execution of laws relative to the registration of Ministerial Duty of LRA to Issue Decree of
lands and under executive supervision of the Registration
DOJ (P.D. 1529, Sec. 4).
The duty of the LRA to issue a decree of
registration is ministerial only in the sense that
they act under the orders of the court, and the
 ~ ~
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decree must be in conformity with the decision
of the court and with the date found in the record.
However, if they are in doubt upon any point in
relation to the preparation and issuance of the
decree or if they have personal knowledge of the
fact that the property subject of the decision is
already covered by a decree of registration, it is
their duty to refer the matter to the court.
(AGCAOILI, supra at 41).
NOTE: The issuance by the Land Registration
Authority Officials of a decree of registration is not
purely mini'sterial in cases where they find that such
would result to the double titfing of the same parcel
of land (MOGELLO, Guidelines and Procedures in
Land Titles and Deeds (2019), p. 14).
2. REGISTER OF DEEDS (RD)
The public repository of records of instrum~nts
affecting registered or unregistered lands and
chattel mortgages in the province orcity wherein
such office is located (P.D. 1529, Sec. 10).
NOTE: There shall be at least one Register of
Deeds for each province and· one for each city
(P.O. 1529, Sec. 7).
Functions and Duties of the Register of
Deeds: (ISDAK)
a. !mmediately register an instrument
presented for regislration dealing with real
or personal property, whichcomplies with all
the requisites for registration;
b. _§ee to it that the instrument bears the proper
documentary and science stamps and that
the same are properly cancelled;·.
c. Qeny registration, if the instrument is. not
registrable (on its face), and inform the
presentor of such denial in writing1 st.:iting
the ground or reason therefor; . 2.
d. ~dvise the presentor (denied of registration)
of his right to appeal by consulta; and
e. Prepare and ~eep in every Registry an
index system which contains the names of
all registered owners alphabetically
arranged, and all the lands respectively
registered in their names (P.D. 1529, Sec.
10 and Sec. 12).
The Registry of Deeds is the repository of titles,
deeds, conveyances, court orders and other
instruments used as basis in the subsequent
registration. Their duty includes the obligation to
accept docµments presented for registration; assign
the corresponding number based on the Electronic
Primary Entry Book (EPEB), process, exam1rie and
release the said document within a reasonable
period of time. Titles kept in the registry are arranged
numerically (according to the title number) and not
;
LAND TITLES AND DEEDS
Civil Law
based on the name of the registered owner
(MOGELLO, Guidelines and Procedures in Land
. Titles and Deeds (2019), p. 14).
MINISTERIAL DUTY OF THE RD TO
REGISTER
The function of the Register of Deeds with reference
to the registration of deeds, encumbrances,
instruments, and the like is ministerial in nature
(Baranda v. Gustilo, G.R. No. 81163, September 26,
1988).
The Register of Deeds is entirely precluded from
exercising his personal judgment and discretion
when confronted with the problem of whether to
register a deed or instrument on the ground that it is
invalid. The determination of whether a document is
valid or not is a function that belongs properly to a
court of competent jurisdiction (AQUINO, supra at
11).
The law on registration does not require that only
valid instruments_ shall be registered. If the purpose
of registration is merely to give notice, then
questions regarding the effect or invalidity of
instruments are expected to be decided after, not
before registration. It must follow as a necessary
consequence that registration must first be allowed,
and its validity or effect is litigated afterwards
(Almirol v. The Register of Deeds of Agusan, G.R.
No. L-22486, March 20,.1968).
INSTANCES WHEN RD MAY DENY
REGISTRATION: (NO3 -MORE-CfV-PRE)
t. When the d0<;::ument is Not verified and
· acknowledged before a notary public or other
public officer authorized by law to take
acknowledgment (Gallardo v. /AC, G.R. No. L-
67742, October 29, 1987);
When the land involved is a Non-registrable
land;
3. Where required certificates or documents are
Not submitted;
4. Where there is More than one (1) copy of the
owner's duplicate certificate of title and not all
such copies are presented in the Register of
Deeds (i.e., when there are co-owner's
duplicates of the same title);
5. Where the property is presumed to be fonjugal
but the instrument of conveyance bears the
signature of only one spouse;
6. Where the voluntary instrument bears on its face
an !nfirmity;
7. .Where the y:alidity of the instrument sought to be
registered is in issue in a pending court suit
(AGCAOILI, supra at 48-49);
8. Where the adverse claim of ownership over a
parcel of land is based on prescription and
adverse possession (Estrella v. Register of
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Deeds of Rizal, G.R. No. L-12614, January 29,

I
MODE OF
I
1960); .
9. Where the cancellation of an ·adverse claim is
based on a mere Request and not upon the REGISTRATION
order of the court (Sajonas v. CA, G.R. No.
102377, July 5, 1996).

"EN CONSUL TA" 1. Judicial Legalization

a. Judicial Confirmation of Imperfect or
When the Register of Deeds is in doubt with regard
Incomplete Title (C.A. 141 as amended,
to the proper step to be taken or memorandum to be
Sec. 48 (b));
made in pursuance of any deed, mortgage or other
b. Voluntary or Ordinary Land Registration
instrument presented to him for registration, or
(P.O. 1529); and
where any party in interest does not agree with the
c. Cadastral Proceedings (P.O. 1529).
action taken by the Register of Deeds with reference
to any such instrument, the question shall be
submitted to the Commissioner of Land Registration
2. Administrative Legalization
a. Filing of application at CENRO/ PENRO;
by the Register of Deeds, or by the party in interest
b. Forwarded to the Registration Director
through the Register of Deeds (P.O. 1529, Sec.
and/or DENR for the issuance of patent and
117).
Register of Deeds for issuance of OCT; and
c. Through the NCIP - For native title over
A deed of sale executed in a place other than where
both ancestral lands arid domains
the property is located does not affect the extrinsic
(AGCAOILI, supra at 123).
validity of the instrument as long as the notary public_
concerned has authority to acknowledge the
document executed within his territorial jurisdiction.
Notarial acknowledgment attaches full faith and
credit to the document and also vests upon it rhe 'CITIZENSHIP
presumption of regularity (Sales v. CA, G.R. No. L- RAQUIREMENT
40145, July 29, 1992) .

.PROCEDURE FOR "EN CONSUL TA"

1. Natural Persons:
GENERA( ~ULE: Only Filipino Citizens can
REGISTRANT acquWe' prliJate or .public agricultural lands.
(CONST., Art. XII, Sec. 7).
Register of Deeds
. EXCEPTIONS:
(Sec. 117, P.D. No. 1529)
a. · f~'case of hereditary succession, aliens may
be a transferee of private lands (CONST.,
Art XII, Sec. 7); and
b. A natural-born citizen of the Philippines, who
Land Registration Authority has lost his Philippine citizenship may be a
transferee of private lands, subject to
· limitations provided by law (CONS., Art XII,
Sec. 8).

. Court of Appeals Limitations:

(Rule 43, Rules of Court) a. Any natural-born citizen of the
Philippines who has lost his Philippine
citizenship and who has the legal capacity to
enter into a contract under Philippine laws
may be a transferee of a private land up to
Supreme Court a maximum area of one thousand (1,000)
(Rule 45, Rules of Court) square meters, in the case of urban land, or
one (1) hectare in the case of rural land, to
be used by him as his residence (B.P. Big.
185, Sec. 2);
b. In the case of married couples, one of them
may avail of the privilege granted above;
provided, That if both shall avail of the same,
 ''
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the total area acquired shall not exceed the
maximum authorized (B.P. Big. 185, Sec. 2);
c. In case the transferee already owns urban
or rural lands for residential purposes, he
shall still be entitled to be a transferee of
additional urban or rural lands for residential
purposes which, when added to those
already owned by him, shall not exceed the
maximum areas herein authorized (B.P. Big.
185, Sec. 2);
d. A natural-born who has lost his
Philippine citizenship and who has the
legal capacity to enter into a contract under
Philippine laws may be a transferee of a
private land up to a maximum area of
five thousand (5,000) square meters in the
case of urban land or three (3) hectares in
the case of rural land to be used by him for
business or other purposes (R.A. No.
7042, Sec. 10, as amended by R.A.
No.8179); . . ..
e. In the case of married couples, otie of them
may avail of the privilege granted. But if both
shall avail of the same, the total area
acquired shall not exGeed Jhe,.maxjmum ·
fixed (R.A. No. 7042, Sec.16; amended
by R.A. No. 8179); and . ultirnateiy a,ff thE(rights of which ownership is
f. In case · the tra11sferee :already owns
urban or rural land for business or other
purposes, he shall still be entitled to be a
transferee of additional .urban or rural land,
which when added to those alreatjy owned
by him, shall not exceedthe maxifl)uri1 areas
authorized (R.A. No: 7d42, Sec. 10, as
amended by R.A. No.8179). ·
NOTE: The acquisition by aliens of private lands
in case of hereditary successftm is notsubjed: to.
limitations (Republic v. CA and, Sps: Lapifla,
. G.R. No. 108998, August 24, 1994)c
Aliens may lease Private Lands
While aliens are disqualified from acqu1nng
lands of public domain, they may however lease
private lands. (id. at 191).
Citizens of the Philippines may lease not more
than five hundred (500) hectares, or acquire not
more than twelve (12) hectares thereof, by
purchase, homestead, or grant (CONST., Art.
XII, Sec. 3).
A lease to an alien for a reasonable period is
valid. So is an option giving an alien the right to
buy real property on condition that he is granted
Philippine citizenship. Aliens are not completely
excluded by the Constitution from use of lands
for residential purposes. Since their residence in
the Philippines is temporary, they may be
granted temporary rights such as a lease
' '
LAND TITLES AND DEEDS
Civil Law
contract which is . not forbidden by the
Constitution. Should they desire to remain here
forever and share our fortune and misfortune,
Filipino citizenship is not impossible to acquire
(Philippine Banking Corporation v. Lui She, G.R.
No. L-17587, September 12, 1967, citing
Krivenko v. Register of Deeds (1947)).
The only instance where a contract of lease may
be considered invalid is, if there are
circumstances attendant to its execution, which
are used as a scheme to circumvent the
constitutional prohibition.
If an alien is given not only a lease of, but also
an option to buy, a piece of land, by virtue of
which the Filipino owner cannot sell or otherwise
dispose of his property, this to last for 50 years,
then it becomes clear that the arrangement is a
virtual transfer of ownership whereby the owner
divests himself in stages not only of the right to
. enjoy the land (jus possidendi, jus utendi, jus
tiuendi,,andjus abutendi) -rights, the sum of
. Wt)ich mq)(e up ownership._ It is just as if today
the ·pqssession,is transferred, tomorrow the use,
as the next day Jhe disposition, and so on, until
ma~ up are ccinsolidated in an alien (Philippine
Banking Corporation v. Lui She, G.R. No. L-
175$7, September, 12, 1967; L/antino v. Co
Uong Chogg, -.• G,R. No. L-29663, August
20,1990). . .
Filipino Vendor' Cannot Recover Land Sold
to an Alien (in pari delicto)
T,he question was answ~red in the negative in
the early cas~ of Rellosa v. Gaw Chee Hun
pectiu~, th~.; Filipino vendor was in pari delicto
•. ~ith,th~ alien vendee (A GCA OIL/, supra at 187;
"' Bellos0"v. Gaw Chee Hun, G.R. No. L-1411,
September 29, 1953).
Effect of Subsequent Naturalization of the
Transferee
If 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 title of the
transferee is rendered valid (Borromeo v.
Descal/ar, G.R. No. 159310, February 24,
2009).
Rationale: The ban on aliens is intended to
preserve the nation's land for future generations
of Filipinos (Muller v. Muller, G.R. No. 149615,
August 29, 2006).
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San Seda University College of law RGCT Bar Operations Cente,
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Alienation in Favor of Foreign Government It the predecessors-in-interest of the corporation

to be Used as Chancery or Residence of
Diplomatic Representatives
The prohibition in the Constitution against
alienation of lands in favor of aliens does not
apply to alienation of the same in favor of foreign
governments to be used as chancery and
residence of its diplomatic representatives.
As part of its treaty obligation under International
Law, the State shall either facilitate the
acquisition on its territory, the premises
neGessary for the fTlission by a sending state, or
assist the latter in obtaining accommodations in
the country (Vienna Convention on Diplomatic
Relations, Art. 21).
The State shall also, when necessary, assist
missions in obtaining accommodations for its
members (Vienna Convention on Diplomatic
Relations, Art. 21 ).
Foreigners are Allowed to Purchas.e
Condominium Units
Aliens may acquire condominium units and
shares in condominium corporations up to no
more than 40% of the total and outstanding
capital stock of a ·Filipino-owned or:cbhtrolled
corporation (R.A. 4726, The Condominium Act,
Sec. 5).
Under this setup, the ownership of th.e land is
legally separated from the tJ!lit itself, .therefore
the constitutional proscription against aliens
owning real property does not apply (Hulst v. PR
Builders, Inc., G.R. No. 156364, September 25,
2008).
2. Corporations
GENERAL RULE: Private corporatioqs or
associations me not legally qualified own
alienable lands of public domain except through
lease (CONST., Art. XII, Sec. 3).
EXCEPTION: By lease, for a period not
exceeding twenty-five (25) years, renewable for
not more than twenty-five (25) years, and not to
exceed one thousand (1,000) hectares in area
(CONST., Art. XII, Sec. 3).
EXCEPTION TO THE EXCEPTION:
Possessory claims to the property acquired
before the 1935 Constitution prohibited the
alienation of all lands of the public domain,
except agricultural lands, subject to vested
rights existing at the time of its adoption (Atok-
Big Wedge Mining Co. v. CA and Consi, G.R.
No. 8888~; January 18, 1991).
have been in possession of the land in question
since June 12, 1945 or earlier, then it may
rightfully apply confirmation of title to the land.
That vested right has to be respected (Director
of Lands v. /AC and Acme Plywood & Veneer
Co. Inc,, G.R. No. 73002, December 29, 1986).
NOTE: Filipino corporations and
associations may acquire private land.
The prohibition does not apply to land no longer
public land and are thus private land (Director
of Lands v. /AC and Acme Plywood & Veneer
Co. Inc., G.R.,No. 73002, December 29, 1986).
Limitations:
a. Private Lands
i. At least 60% of whose capital is owned
by Filipino citizens to acquire private
land;
ii. Restricted as to the extent reasonably
necessary to enable it to carry out
purpose which it was created;
iii. If engaged in agricultural - restricted to
: :, ;:;:i ''". tl,;024 hectares; and
3:lf:;;.)\pplicable to Filipino corporations only
~f;ONST., Art. XII, Sec. 2).
NOT!;: The purpose of the sixty per centum
(60%} requirement is obviously to ensure
that corporations or associations a,llowed to
,;folpqµir~.. · ,.ltural land or to exploit natural
· re~~tit , all be controlled by Filipinos;
and the spirit of the Constitution demands
that in the absence of capital stock, the
., -' , controlling membership should be
, :,:/composed of Filipino citizens (Register of
Deeds of Rizal v. Ung Siu Si Temple, G.R.
N9. L-6776, May 21, 1955).
to
b. Patrimonial Property of State
i. Lease for 25 years renewable;
ii. Limited to 1,000 hectares; and
iii. Applicable to both Filipino and foreign
companies ((:ONST., Art. XII, Sec. 3).
Foreign Corporation: It is disqualified to own
lands in the Philippines. It is also disqualified to
own rights to ownership to such lands.
AGCAOILI, supra at 189).
Religious Association Controlled by Non-
Filipinos: The Constitution makes no exception
in favor of religious associations. To permit
religious associations controlled by non-Filipinos
to acquire agricultural lands would be to drive
the opening wedge to revive alien religious land-
holdings in the country (AGCAOILI, supra at
184).

Corporation Sole: It may acquire and register
private agricultural land. It has "no nationality",
thus the constitutional proscription against
private corporations acquiring agricultural lands
will not apply. (Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration
Commission, G.R. No. L-8451, December 20,
1957).
I CLASSIFICATION OF
I
LAND
1. Public or Private;
2. Alienable or Inalienable;
3. Registered or Unregistered; and
4. Registrable or Non-registrable (AGCAOILI,
supra at 206).
GOVERNMENT LANDS
Government land includes public land_ and also all
other lands of the government ~!ready reserved or
devoted to public use or subject to private right
(Montano v. Insular Government, G.R. No. 3!14,
January Lo, WU!J).
PUBLIC LANDS
Public land is equivalent to public domain. It does not
by any means include all lands of government
ownership, but only so much of said _lands as are
thrown open to private appropriation and settlement
by homestead and other like general laws {Montano
v. Insular Government, G.R. No. 37)4, J;:muary 26,
1909). . inalienable .public domain (Republic v. Mendiola,
Land is considered of public dominion if it either: (a)
is intended for public use; or (b) belongs to the State,
without being for public use, and is intended for
some . public service or for the development of
national wealth. Land belonging to the State that is
not of such character, or although of such character
but no longer intended _for public use or public
service forn1s par( or ll'te patrimonial property of the
State.
PRIVATE LANDS
Land that is other than part of the patrimonial
property of the State, provinces, cities, and
municipalities of private ownership if it belongs to a
private individual (AGCAOILI, supra at 195).
LAND TITLES AND DEEDS
Civil Law
Power to Classify Lands is an Executive
Prerogative
The classification of public lands is an exclusive
prerogative of the executive department and not of
the courts (AGCAOILI, Property Registration Decree
and Related Laws (Land Titles and Deeds) (2018),
p.193). The classification and reclassification of
public lands into alienable or disposable, mineral or
forest land is the exclusive prerogative of the
Executive Department, and is exercised by the laller
through the President, or such other persons vested
with authority to exercise the same on his behalf
(Republic v. Heirs of Cabrera, G.R. No. 218418,
November 08, 2017).
The government, as the agent of the state, is
possessed with the plenary power as the persona in
law to determine who shall be the favored recipients
of public lands, as well as under what terms they
may be granted such privilege, not excluding the
plating of obstacles in the way of their exercise of
what otherwise would be ordinary acts of ownership
(Gonzaga v. CA, G.R. No. L-27455, June 28, 1973).
In orderto prove that the parcel of land is part of the
disposable and alie.nable lbnds ofthe public domain,
a certificatioh from the DENR-CENRO is
insufficient. What is required is the certification
from the DENRS~cretary (Republic v. Josefina, G.R
No. 210341; July 1, 2015; Republic v. Spouses Go,
G.R. No. 197297, August 2, 2017).
Certifications issued by the CENRO, or specialists of
the DENR, as well as Survey Plans prepared by the
DENR containing annot9tions that the subject lots
are alienable, do not constitute incontrovertible
evidence to overcome the presumption that the
property sought to be registered belongs to the
GR .. No. 211144, December 13, 2017).
Neither does a survey plan. The fact that the land
has been privately surveyed is not sufficient to
prove its classification or alienable character. While
the conduct of a survey and the submission of the
original tracing cloth plan are mandatory
roquiromonts for applications for original registration
of land under P.O. 1529, they only serve to establish
the true identity of the land and to ensure that the
property does not overlap with another one covered
by a previous registration. These documents do not,
by themselves, prove alienability and disposability of
the property (Republic v. Nicolas, G.R. No. 181435,
October 2, 2017).
The trial court must be given a certified true copy of
the classification made by the DENR Secretary or
the President because it is the only acceptable and
sufficient proof of the alienable and disposable
character of the land (Duma v. Republic, G.R. No.
 1
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MEM✓Q-RY AID
San 8e{;lti Un!Vere1ty College of Law - RGCT Bw Operations Center
218269, June 6, 2018). Failure lo presertl a cer lirieu
true copy of the original classific(:ltion approved by
the DENR secretary is fatal in securing registration
of title (Republic v. Rovency Realty and
Develuµ111&11I Cwµ., G.R. Nu. 190817, Januaty 10,
2018).
ALIENABLE AND INALIENABLE LANDS
Whether or not land of public domain is alienable
and disposable primarily rests on the classification
of public lands made.under the Constitution.
The 1987 Constitution adopted the classification
under the 1935 Constitution into agricultural, forest
or timber, and mineral. but added national parks.
The identification of lands according to their legal
classification is done exclusively by and through a
positive act of the Executive Department.
Under Section 2 Article XII of the 1987 Constitution,
only agricultural lands of the public domain may be
alienated; all other natural resources may not be.
(AGCAOILI, supra at 196).
REGISTRABLE LANDS
1. Alienable p_ublic agricultural lands (CONST., Art.
XII, Sec. 2); and
2. Private lands. (CIVIL CODE, Arts. 421, 425).
NOTE: Alienable and disposable lands of the State
fall into two (2) categories, to wit: · 107794, October 4, 2002).
a) Patrimonial lands of the State, or those
cla~sified as lands of private ownership
under Article 425 of the Civil Code, without
limitation; and
b) Lands of the public domain, or the public
lands as provided by the Constitution, but
with the limitation that the lands must only
be agricultural (AGCAOILI, supra at 196).
Only Alienable and Disposable (A and D) Lands
May be Subject to Disposition
The Court has time and again emphasized that there
must be a positive act of the government, such as
an official proclamation, declassifying inalienable
public land into disposable land for agricultural or
other purposes. In fact, Section 8 of CA No. 141
limits alienable or disposable lands only to those
lands which have been "officially delimited and
classified"(Secretary of DENR v. Yap, G.R. No.
167707, October 8, 2008).
t-or the purpose ot their administration and
disposition, the lands of the public domain alienable
or open to disposition shall be classified, according
to the use or purposes to which such lands are
destined, as follows:
a. Agricultural;
IJ. Residential, commercial, industrial or for similar
productive purposes;
c. Educational, charitable, or other similar
purposes; and
d. Reservations for town sites and for public and
quasi-public use (C.A. 141, Sec. 9).
NOTE: Land so granted donated, or transferred to a
province, municipality, or branch or subdivision of
the Government shall not be alienated, encumbered,
or otherwise disposed of in a manner affecting its
title, except when authorized by Congress (CA 141,
Sec. 60).
NON-REGISTRABLE LANDS
Those found in Civil Code provisions dealing with
non-registrable properties (e.g., property of public
dominion) ( CIVIL CODE, Art. 420).
SPECIFIC KINDS OF NON-
REGISTRABLE PROPERTIES OR
LANDS: (F2LAWN-M 3 P2 G)
1. .E orest or timberland, public forest, &
forest reserve (AGCAOILI, supra at 213);
Forest lands are inalienable and possession
thereof, no matter how long, cannot co,wert
the same into private property. Courts are
withoutjurisdiction to adjudicate lands within
the forest zone (Collado v. CA, G.R. No.
Tir:pber Hc:enses merely evidence a
privilege granted by the State to qualified
entities, and do not vest in the latter a
permanent or irrevocable right to the
. particular concession area and the forest
products therein. They may be validly
amended, modified, replaced or rescinded
by the Chief Ex~cutive when national
interests so require (Tan v. Director of
rorestry, G.H. No. L-24548, October 27,
1983).
A forested area classified as forest land of
the public domain does not lose such
clom,ificotion simply bocouso loggers or
settlers have stripped it of its forest cover
(Amunategui v. Director of Forestry, G.R.
No. L-27873, November 23, 1983).
Without the official declaration that the
subject land is alienable and disposable or
proof of its declassification into disposable
agricultural land, the "unclassified public
forest lands" legal classification of the
subject land remains. Testimonial evidence
on the physical layout or condition of the
subject land - that it was planted with
coconut trees and beach houses had been

constructed thereon - are not conclusive
on the classification of the subject land as
alienable agricultural land. Rather, it is the
official proclamation releasing the land
classified as public forest land to form part
of disposable agricultural lands of the public
domain that is definitive (Republic v.
Saromo, G.R. No. 189803, March 14, 2018).
2. .E oreshore land & seashore
- Seashore, foreshore, and/or portions of
territorial waters and beaches, cannot be
registered (AQUINO, supra at 184);
3. bakes
- Are part of public domain (CIVIL CODE, Art.
502(4));
4. ~lluvial deposit along river when man-
made (CIVIL CODE, Art. 420(1); Art. 502(1));
5. Watershed
- The Constitution expressly mandates_., the
conservation and utilization of<nalural resciurces,
which includes the country's watersh-ed (Tfm v.
Director of Forestry, G.R. No. L-24548, October
27, 1983);
6. Navigable rivers, streams & creeks (Id.at
246);
NOTE: In Maneclang v. /AC (G.R. No. L-66575,
September 30, 1986), the Supreme Court, ruled
that a creek defined as a recess or arm
extending from a river and participating in the
ebb and flow of the sea is a property belonging
to the public domain. This recent case will erase
all doubts whether a stream or a creek will have
to be navigable to be of public ownership.
Streams and creeks, whether navigable or not,
are of public dominion (161 RODRIGUEZ,
PROPERTIES OF PUBLIC DOMINION (Under
Art. 420 of the New Civil Code (1988), p. 480).
7. Mangrove swamps
- Mangrove swamps or mangrove should be
understood as comprised within the public
forests of the Philippines as defined in Section
1820, Administrative Code of 1917 (Director of
Forestry v. Villareal, G.R. No. L-32266, February
27, 1989);
8. Mineral lands
- Both under the 1987 Constitution and Section
2 of the Public Land Act, mineral lands are not
alienable and disposable (Lepanto Consolidated
Mining Co. v. Dumyung, G.R. No. Lc31666, April
30, 1979).;
LAND TITLES AND DEEDS
Civil Law
9. Military Reservations
- The reservation made segregates it from the
public domain and no amount of time in
whatever nature of possession could have ripen
such possession into private ownership
(Republic v. Marcos, GR No. L-32941, July 31,
1973);
10. p_reviously titled land;
11. p_rotected Areas (R.A. 7586, also known as
NIPAS Act of 1992); and
12. Grazing land
- While the 1987 Constitution does not
specifically prove that grazing lands are not
disposable, yet if such lands are part of a forest
reserve, there can be no doubt that the same are
incapable of registration (AQUINO, supra at
184).
NOTE: Foreshore and submerged areas "shall not
be alienated," unless they are classified as
C
"agricultural lands" of the public domain" The mere
reclamation of foreshore areas does not convert
these inalien;.:ible natl)ral resources of the State into
alienable or disposable lands of the public domain
(Chavez v. Public Estates Authority, GR Noc
133250, July 9, 2002F
There must be a law or presidential proclamation
offjcially classifying these reclaimed lands as
alienable or disposable and open to disposition or
concession. Moreover; these reclaimed lands
cannot be classified as alienable or disposable if the
law has reserved them for some public or quasi-
public use (Chave~ Ve Public Estates Authority, G.R.
No. 133250, July 9, 2002).
I REGISTRATION
I
REGISTRATION
Registration means any entry made in the books of
the registry (now Etectronic Primary Entry Book
[EPEBJ), including both registration in its ordinary
and strict sense, and cancellation, annotation, and
even marginal notes" In its strict acceptation, it is the
entry made on the registry which records solemnly
and permanently the right of ownership and other
real rights (Cheng v. Genato, G.R. 129760,
December 29, 1998).
1. Original Registration
a. Voluntary
ic Property Registration Decree
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San Seda University College of Law - RGCT Bar Operations Center
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